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Googling jurors again

By Steven | March 25, 2009

A Florida drugs trial had to be abandoned this month because no fewer than nine of the jurors had been conducting their own research online, despite a warning from the judge not to. In NZ Judge David Harvey has been warning about this for ages. Is anyone listening? It’s becoming clear that we can’t rely on stern instructions from judges.

I can’t see any alternative to having someone sitting down as particular trials are looming (and periodically during the trials), conducting the obvious Google searches (eg the defendant’s name), seeing whether any of the accessible material on the first few Google screens is prejudicial, and contacting those hosting the material to have it taken down temporarily. (Has anyone done this with the Bain case, I wonder?) It really needs to start happening now. Developing a protocol with news organisations about their archives would be a good start.

In most cases, any prejudicial material is likely to be hosted in NZ (who else cares?). No doubt, some people receiving such a warning would take delight in ensuring that the material appeared on an overseas site where it couldn’t be touched. We need to be ready for that, too. If the material can’t be removed, and is likely to be looked up and believed by jurors, I think it will have to be brought up explicitly at the trial, no matter how prejudicial it is. The judge would need to explain the reasons why it’s dangerous and unfair to place any weight on it. I don’t think we can any longer act on the assumption that jurors won’t know it. It’s either that or start sequestering them in such cases (in which case, they’ll probably realise there’s prejudicial material that’s being kept from them and there’s still no guarantee they won’t already know it, or find out somehow).

Another possibility is questioning jurors about what they know before the trial. It has happened in the UK, and our Court of Appeal has said it could be done here in exceptional cases. But that wouldn’t get around the problem of jurors Googling during the trial.

Topics: Contempt of Court | 5 Comments »

5 Responses to “Googling jurors again”

  1. Will de Cleene Says:
    March 25th, 2009 at 9:59 am

    Good luck with that. What’s to stop jurors googling the police witnesses, the police, the victim, etc. Perhaps we should lock up the juries as well as the accused!

    The implications of Googling are still being realised. Everything is different. In the mind of a juror, they would consider all the evidence they can find, including online. Employers do it all the time with prospective employees, so it is reasonable for jurors to do it too.

    While a judge’s explanation might help, I don’t think you can stop jurors doing what they believe is in their best interests into understanding of the case before them. And considering that police are now allowed to pull a juror’s background file without their permission, it is only fair to allow jurors to search on the credibility of the police as well.

  2. ross Says:
    March 26th, 2009 at 10:14 am

    Steven,

    What about public libraries who stock Joe Karam’s books on the Bain case? Are you suggesting they be pulled? I think the whole process then descends into farce. Determined jurors will always be able to find ways to circumvent a judge’s wishes.

    I have previously made the point that one way to reduce the problem is to admit as much evidence as possible. Jurors might be concerned if they are being denied access to information, hence their reason to want to find out more. Maybe jurors should be encouraged to ask speficic questions of the judge as to whether information is being denied them and why. Maybe the jury foreman could meet with the judge to discuss the issues. I am not suggesting that would always remove the potential for abuse but it might help.

    As far as the Bain case is concerned, it is apparent that there is evidence which is now being traversed which the original trial did not see or hear. I suspect that jurors from that trial might be somewhat annoyed that they were denied acess to potentially crucial information.

  3. R_ya_havn_a_Laugh Says:
    March 29th, 2009 at 10:10 pm

    i think the solution is to get rid of google.

    would u really miss it?
    would u

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