The Tyco mistrial wasn’t directly caused by the bounty of information on the Internet, but it’s just a matter of time before we see jurors’ deliberations affected by the Internet –either because the jurors are surfing the web, or because other web surfers are influencing jurors. In the Tyco trial it was a letter sent to juror #4 that disrupted the proceedings. Next time it will be an email.
People have access to their E-mail by phone now, and it won’t be long before someone sends a juror an E-mail during the course of their proceedings; maybe it will be someone they know, or maybe it will be a stranger. Technology is giving us new communications tools and making them more pervasively available. Jurors are not supposed to have too much information, at least not outside the case that they are responsible for deciding. Are courts going to be able to control the flow of information that jurors receive? Yes, for a period of time.
In high-profile cases that last more than one day (and there are a lot of those aren’t there?) the judge has the option of sequestering the jury to limit outside influence. Is the judge going to take away the jurors’ cellphones? If the jurors are holed up in a hotel that has a phone line with a data port is the judge going to forbid them from using the internet? I don’t think the Sheriff or courtroom security person is going to have trouble noticing that juror #9 is carrying a laptop, which will lead to its confiscation.
But is the court security person going to notice that the juror’s PDA is bluetooth enabled, with the result that the juror’s PDA is wirelessly going through the cellphone in the juror’s pocket to tap into the Internet? Oh sure, we can take away all of the jurors’ battery powered devices and lock them up for months at a time like they are criminals, but somehow that seems like something that isn’t going to be tolerated by people who are giving up their personal/work time to perform a civic duty. Not for $40 a day and a parking voucher.
I’ve written about this problem before, and I’m sure I’ll write about it again. One trend you can safely predict: attorneys are going to be disinclined to pick jurors who they think might have excessive technical skills (i.e. ‘watch out for that guy because he looks like a hacker’).