Courts - Technology in the courtroom Judges giving more specific instructions to jury regarding Internet use

By Karen Nelson

The Sun Herald

GULFPORT, Miss. (AP) -- Technology in the courtroom?

It's a good thing when it's a Smart board making evidence easier for everyone to see. It's a bad thing when it's a smart phone in the hands of a curious juror.

With technology so readily at their fingertips, Americans today don't think twice about texting what they're doing or jumping on the Internet to check a fact.

But in the courtroom, for jurors, that's dangerous.

What's at risk is the trial. If a well-meaning juror makes a quick Web search or reads an opinionated text from a friend, he could derail the trial.

Jackson County has already run into this. A circuit court juror recently caused a mistrial when she went home and looked up what the sentence would be if she voted to convict.

Jurors are told not to do their own research.

But somehow, with technology such a routine part of everyday life, it may not seem like "research."

"Judges have always instructed jurors during a trial to not read the papers about the trial and to not listen to the TV and radio so they won't be tainted by what they hear," said Brice Wiggins, assistant district attorney for Jackson, George and Greene counties. "It's just that now there's another form of media, the Internet."

For example, he said, a juror doesn't need to know if a defendant has prior convictions. That information is not admissible in court, Wiggins said. That's so a jury doesn't convict a man based on something he's done in his past.

It's admirable that a juror would want to look deeper into a case, but under the legal system that can't happen. Twelve jurors can't go off and do their own research, Coast attorneys and judges said.

Everyone has their role in a trial. The jury's is to take what's given to them and come up with a conclusion.

It's a closed system for a reason, at the heart of which is a fair trial and the constitutional rights of the defendant.

So in light of all the communication technology, judges on the coast are getting very specific with jury instructions:

"You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social-networking Web sites, including Facebook, MySpace, LinkedIn and YouTube."

Those words are part of a model given to federal judges to make sure the message gets across.

In the meantime, some county judges are using the federal model.

"Jurors have no business being on any device inquiring into any aspect of the trial, period -- about the parties, about the attorneys, anything," Circuit Court Judge Robert Krebs said. "They're the fact-finders and the facts they have to rely on are what's presented in the courtroom.

"I rule on various legal issues. But the parties on both sides (defense and prosecution) put on the facts they want the jurors to hear," Krebs said.

"It has worked for a long time."

U.S. District Court Judge Louis Guirola said personal technology in the courtroom is an issue that has exploded.

"Everyone has a BlackBerry," Guirola said. "So in the jury room with jurors deliberating, one juror might say, 'I don't know what this word means. Let's look it up on my phone, iDictionary.' That would be improper.

"If the term is not defined in the courtroom, it's just as improper for them to look it up on an iPhone as it would be to ask the bailiff to bring in a dictionary," he said.

Either would be an error that could cause the verdict to be reversed.

"All they can use is what's in their head and what's presented to them in court," he said.

"They can't use outside reference material.

"Both sides (the prosecution and the defense) have to be given the opportunity to argue the definition, if it needs to be defined at all," he said.

Even with all this, many judges still allow jurors to keep their phones. They say it's hard enough to get them to serve without cutting them completely off from the outside world.

In two capital murder cases in Harrison County this past year the jurors, who were sequestered, were instructed to leave their cell phones at home, said Joel Smith, assistant district attorney for Harrison, Hancock and Stone counties. Family members were given a bailiff's number for emergencies.

And though they haven't had a mistrial because of jurors and technology, Smith said, three years ago they had allegations of witness tampering.

It turns out two witnesses were texting each other during the trial to make sure their testimony was consistent, when communication is banned for that very reason.

Criminal charges can be brought against witnesses or jurors who defy the system.

In the case in Jackson County, no charges were brought.

The jury had returned a guilty verdict in a DUI-death case, Krebs said. The defense asked that the jury be polled and one woman said she had not found the defendant guilty.

Krebs said he sent the jury home.

"I generally tell them don't discuss the case, with anyone, avoid media and don't do any research," he said.

When they returned he asked them if anyone had done any research and the woman said she had.

"She had looked up the statute to see what the maximum and minimum penalty was," he said. "The defense moved for a mistrial, and I had no choice but to grant it.

"I did not find her in contempt because she was honest with what she had done," he said. "And I had to look at whether I had been specific enough in my instructions."

But since then Krebs said he has become considerably more specific.

He uses the federal charge to the jury.

It covers the bases, he said. If the situation arises again, he said, he is less likely to be lenient.

And Krebs has instituted another procedure in his court.

Jurors may have their phones during the trial, but when it's time to deliberate, he has the bailiffs take them up.

Published: Tue, May 4, 2010