Stories of jurors Googling details during trial or deliberations have become pervasive, as social media has become part of the fabric of our lives.  For every participant in the system, this presents a nightmare, where the limitations of admissibility of evidence and the instruction to base the verdict only on the evidence presented in the courtroom become meaningless.

At  Idealawg, Stephanie West Allen offers Senior District of Colorado Judge John Kane’s thoughts on how to avoid “mistrial by Google.”

The dangers of “mistrial by Google” have been in place for a number of years.  The use of various devices to access the internet is ubiquitous and more than a few mistrials have had to be declared because of such misuse.  I know I had one — and none since— over three years ago.  An instruction at the close of the evidence is not sufficient to enable a jury to refrain from this international obsession. 

By the close of evidence, there’s a good chance that it’s too late.  Indeed, by the first recess, chances are good that the jurors are already busy putting thumb to QWERTY to check out the lawyers, judge and especially the defendant.  And all that fine stuff, whether in the paper or on the Police Department’s Facebook page, shows up.  There’s no unringing that bell, especially since the court has no idea that it’s been rung in the first place.  But it should.

It is necessary to dwell on the nature of a trial and the responsibilities of jurors beginning with the voir dire, and instructing before the opening statements, during the taking of testimony and at the close.  I cannot conceive of instructions that do not set forth the reasons for them.  It is also necessary to provide jurors with copies of the instructions at the beginning of the trial, to allow them to take notes, to submit questions and to include an instruction that each juror is responsible for the proper conduct of the other jurors.  The instructions should also advise the jurors that failure to comply, failure to confine deliberations to the evidence adduced at trial and failure to insure one another’s proper conduct can be deemed a contempt of court. 

Notably, Judge Kane covers both the velvet glove and the fist, and does so at the earliest opportunity, voir dire.  He explains the reasons why jurors, on their own personal “Google search for the truth” aren’t helping the cause of a fair trial, and what happens should the jurors decide that they’re going to do it anyway.

Even with this “organic” infusion of instructions, it remains essential to prohibit the possession of cell phones and such during court sessions and throughout jury deliberations.  Given the easy access to information for everyone in our society, including jurors, the idea of waiting until the end of the case to present instructions for the first time is patently ludicrous.

While it seems obvious that jurors should not be twiddling with social media during the course of trial or deliberations, depriving them of their smartphones or computer access when their day is done may be pushing the envelope too far, and could well backfire.  Rather, the combination of factors, intelligent instructions, forewarning of consequences and reasonable precautions, is Judge Kane’s prescription.

I wondered, after seeing Stephanie’s post, whether Judge Kane believed that his methods were truly effective, or merely the best one could do under the circumstances.  Judge Kane responded:

Yes, I do believe it and have employed practices followed by post-verdict interviews that confirm my solutions to the problem.  I’d be happy to talk with him or anyone else about this.  “Mistrial by Google” is a symptom of an underlying malaise that is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV. 

Don’t be fooled by his “senior” status, as Judge Kane is one of the most forward thinking and aware federal judges on the bench.  There’s nothing to be gained in ignoring or denying popular culture.  Googlers gonna Google, unless someone explains to them up front why they really can’t and shouldn’t. 

It appears that Judge Kane’s methods rely on the very remarkable fact that most jurors truly want to do right.  Whether they have the capacity is another matter, but it’s always remarkable how they desire to be good jurors.  Of course, there are always the “stealth” jurors who have their own agenda, and no plan of adhering to the judge’s instructions, but these jurors can’t be helped anyway and the admonitions of contempt are, hopefully, sufficient to make most of them think twice.

While it may not be a foolproof plan, it’s certainly one that we should know about and advocate for in order to prevent the jury from deciding guilt because Google (or Facebook, or Twitter, or whatever the next cool thing may be) says so.  As Judge Kane says, waiting to deal with the problem until the end of trial is “ludicrous,” and given that social media isn’t always kind to those accused of crimes, it’s certainly in our best interest to make sure that the evidence is limited to what comes through the witness stand.