Blown To Bits

Mistrial by Google

Wednesday, March 18th, 2009 by Harry Lewis

Jury trials are a carefully managed game of information control. The jurors are screened to try to weed out people who know too much ahead of time. Only certain kinds of information are admissible, and whatever is presented by one side can be challenged by the other. The jurors are supposed to isolate themselves from other sources of information — when they go home to their families at night, they are supposed not to talk about the ongoing events or to try to find our more about them. In extreme cases, when it is just too likely that information will assault them by accident, they may be sequestered.

The digital explosion makes such information quarantine an unnatural condition at best, and perhaps an impossible one. And indeed, the New York Times reports today that jurors are routinely using search engines to find out more about the events they are adjudicating. (As Jurors Turn to Web, Mistrials are Popping Up) In a recent trial, a judge at first hoped that only a single juror had been using Google to check things out — in that case, he could throw the juror off the jury and continue the trial.

But then the judge found that eight other jurors had done the same thing — conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked by the judge about the research, said, “Well, I was curious,” according to Mr. Raben.

Mistrial. But the impulse is so easy to imagine. I myself was once on a jury trial in a reckless driving case, in which the defendant was charged with careening down residential streets at high speeds. A crucial piece of evidence was a hubcap coming off as he screeched around a sharp corner. The jury deliberations lasted overnight. Were the trial taking place today, I could use Google Street View after I got home to see what that corner looks like.

Did anyone see this coming? Not the attorneys in the case, apparently.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

Hit over the head by the force of the digital explosion. One minute you have a stable, reliable social institution that is the descendant of centuries of experience, as good and as fair a system as democratic societies know how to create. A minute later, you have to wonder if it can survive at all, since it is premised on conditions that no longer exist.

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