iPhone as Grounds for New Trial

Several recent articles have discussed the new phenomenon of jurors use of the internet during trials on which they are empaneled.  With the prevalence of handheld mobile devices with internet capability, it is feasible to gather information regarding almost any subject from the jury room, or even the jury box. Furthermore, social networking site such as Twitter and Facebook allow jurors to post updates as a trial is ongoing.
Recently, the New York Times  reported that a Florida judge declared a mistrial in a criminal matter in which no less than nine jurors researched the case on the internet during trial.
Not content to let jurors have all the fun, a state special education hearing office was terminated for blogging about cases on her docket.  As Law.com  reported, the district court that heard her appeal “found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer’s impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.”
Although Alabama courts have not yet taken up the issue of internet research or blogging during deliberations, several Supreme Court opinions would indicate that such conduct is improper.  First, regarding communications by jurors, to grant a new trial or mistrial, the court must find that “the conduct of the juror should be such as to indicate bias or corruption in the performance of his duty, or the circumstances should indicate that his misconduct influenced the verdict rendered.”  Carr v Irons,  259 So.2d 240 (Ala. 1972).  This rule could certainly apply to blogs, email, and postings on Twitter, Facebook, etc., if the communication is deemed to show bias or corruption.  Also troublesome is the potential for receiving comments or other feedback from the juror’s audience, and the potential that he or she will gain insight outside the evidence presented.
The second consideration is the possibility of jurors conducting their own research into the evidence.  Although this practice has long been improper, the advent of handheld technology has certainly created a new wrinkle, as jurors now have virtual libraries at their fingertips at all times.  Pursuant to Alabama law, jurors may not consider “extraneous facts,” defined as those “obtained by the jury or introduced to it by some process outside the scope of the trial.”  Sharrief v. Gerlach, 798 So.2d 646, 653 (Ala.2001).  In non-internet cases, the Supreme Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia.  See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).
The following are contained in the Alabama Pattern Jury Instructions, and are currently given by Alabama judges:
APJI 1.11 Jurors Not to Discuss Case During Trial
Until this case is submitted to you for your deliberations, you must not discuss the case with anyone nor permit anyone to discuss the case with you or in your hearing. You are to keep an open mind and you shall neither discuss nor decide any issue in this case among yourselves until the case is submitted to you for your deliberations under the instructions of the Court.
If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court’s instruction not to discuss it. The attorneys, parties and witnesses are not permitted to talk to you during the trial. Even a discussion which has no relation to the case might give a bad appearance. If the participants in the trial fail to greet you or converse with you during this trial it will be due to this rule.
APJI 1.14 Jurors Should Not Make Any Investigation of Their Own During the Course of Trial
No juror should attempt to make an individual investigation of the facts or of the place testified about. It therefore follows that you are not authorized to gather evidence on your own account or on behalf of any of the parties to this case. You should not [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room].
Some Alabama judges are beginning to modify the above instructions by specifically mentioning internet research.  Also, depending on the nature of the case, thought should be given to discussing the use of the internet, blogs and social networking during voir dire examination of the jury panel.  Hopefully, more specific instructional and discussion will serve to limit new trials and mistrials that result from such conduct.  However, we have probably only seen the beginning of a trend.

Several recent articles have discussed the new phenomenon of jurors’ use of the internet during trials on which they are empaneled.  With the prevalence of handheld mobile devices with internet capability, it is possible to gather information regarding almost any subject from the jury room, or even the jury box. Furthermore, social networking sites such as Twitter and Facebook allow jurors to post updates as a trial is ongoing.

Recently, the New York Times reported that a Florida judge declared a mistrial in a criminal matter in which no less than nine jurors had researched the case on the internet during trial.

Not content to let jurors have all the fun, a state special education hearing office was terminated for blogging about cases on her docket.  As Law.com reported, the district court that heard her appeal “found that given her blog posts, which offered criticism about the school district and administrative policies, the hearing officer’s impartiality had come into question, prompting parties to request her recusal in multiple matters and causing disruption to the school district.”

Although Alabama courts have not yet taken up the issue of internet research or blogging during deliberations, several Supreme Court opinions would indicate that such conduct is improper.  First, regarding communications by jurors, to grant a new trial or mistrial, the court must find that “the conduct of the juror should be such as to indicate bias or corruption in the performance of his duty, or the circumstances should indicate that his misconduct influenced the verdict rendered.”  Carr v Irons,  259 So.2d 240 (Ala. 1972).  This rule could certainly apply to blogs, email, and postings on Twitter, Facebook, etc., if the communication is deemed to show bias or corruption.  Also troublesome is the potential for receiving comments or other feedback from the juror’s audience, and the potential that he or she will gain insight outside the evidence presented.

The second consideration is the possibility of jurors conducting their own research into the evidence.  Although this practice has long been improper, the advent of handheld technology has certainly created a new wrinkle, as jurors now have virtual libraries at their fingertips at all times.  Pursuant to Alabama law, jurors may not consider “extraneous facts,” defined as those “obtained by the jury or introduced to it by some process outside the scope of the trial.”  Sharrief v. Gerlach, 798 So.2d 646, 653 (Ala.2001).  In non-internet cases, the Supreme Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia.  See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).

The following are contained in the Alabama Pattern Jury Instructions, and are currently given by Alabama judges:

APJI 1.11 Jurors Not to Discuss Case During Trial

Until this case is submitted to you for your deliberations, you must not discuss the case with anyone nor permit anyone to discuss the case with you or in your hearing. You are to keep an open mind and you shall neither discuss nor decide any issue in this case among yourselves until the case is submitted to you for your deliberations under the instructions of the Court.
If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court’s instruction not to discuss it. The attorneys, parties and witnesses are not permitted to talk to you during the trial. Even a discussion which has no relation to the case might give a bad appearance. If the participants in the trial fail to greet you or converse with you during this trial it will be due to this rule.

APJI 1.14 Jurors Should Not Make Any Investigation of Their Own During the Course of Trial

No juror should attempt to make an individual investigation of the facts or of the place testified about. It therefore follows that you are not authorized to gather evidence on your own account or on behalf of any of the parties to this case. You should not [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room].

Some Alabama judges are beginning to modify the above instructions by specifically mentioning internet research.  Also, depending on the nature of the case, thought should be given to discussing the use of the internet, blogs and social networking during voir dire examination of the jury panel.  Hopefully, more specific instructional and discussion will serve to limit new trials and mistrials that result from such conduct.  However, we have probably only seen the beginning of a trend.


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2 Responses to iPhone as Grounds for New Trial

  1. bradley says:

    Enjoying the blog.

    I’m just a layman, but I enjoy the clash between technology and institution.

    I understand the problems with the growing trend to share anything remotely interesting with the general public. Not to mention the possible corruption from how easy it would be for a juror to take a poll of popular opinion. The existing boundaries definitely need to remain in place.

    I guess the problem I have is in the distinction between personal experience and individual investigation. I suppose the defense couldn’t just take into account that it’s not enough to merely dismiss someone with prior knowledge… Access to information could create a new “expert”?

    Oath or not, it just sounds like a constant issue for mistrial. But hey… I’m just saying this because I don’t make a very good juror.

    • bhamdefenseatty says:

      Thanks for your comment, Brad. I see it as being a constant issue as well. I know I have gotten used to being able to look up virtually anything, and now can merely type it up on my Blackberry and get it on the run. It’s natural for jurors to have questions, and sometimes the laws of evidence prevent lawyers from being able to supply them with the answers to them.

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