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The Internet and the Courtroom


This week's Daily Record column is entitled "The Internet and the Courtroom."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.


The Internet and the Courtroom

The Internet is a force to be reckoned with. It has altered our collective reality in ways never before seen, leveling the playing field and providing anyone with a computer and online access instantaneous access to information
of all types and kinds. And, with the increasing availability of smart
phones, tablet computers, and personal MiFi systems (which provide users with their own portable wifi network), the Internet can be accessed virtually anywhere, anytime.

The ubiquity, accessibility and reach of the Internet, of course, present a problem for the courts, as jurors, lawyers and just about anyone else sitting in a courtroom now have the ability to access and disseminate information about the cases being litigated in a courtroom. So, it’s no surprise that stories of juror misconduct   
relating to improper Internet access are becoming increasingly commonplace.

For example, in a recent Florida case, Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010), a manslaughter conviction was overturned due to juror misconduct where, during jury deliberations, the juror used his iPhone to search online for the definition of “prudence,” a key term used in the jury instructions.

The court explained that the juror’s actions were improper, thus requiring reversal of the conviction: “In this case, the trial court found the utilization of the smart phone to access Encarta to lo o k up the definition of ‘prudent’ was juror misconduct. Using Encarta to access a dictionary is, of course, no different than utilizing a bound dictionary. A dictionary is not one of the materials permitted to be taken into the jury room... The concept of ‘prudence’ is one that could be key to the jury’s deliberations. At the very least, we cannot say that there is no reasonable possibility that the juror’s misconduct, by utilizing the smart phone to retrieve the definition of ‘prudence,’ did not affect the verdict in this case.”

In another case, a Michigan juror was removed from a jury last month after she posted on Facebook her belief that the defendant, who was charged with resisting arrest, was guilty. Her determination of guilt was posted online before the trial had concluded and was discovered by the defense attorney’s son, while searching for the names of jurors during the trial in the evening hours, after court had convened for the day.

In another recent case, Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010), at issue was whether attorneys may access the Internet during jury selection to obtain information about jurors on the panel. The appellate court concluded that accessing the Internet during jury selection was permissible:
“(W)e...conclude that the judge acted unreasonably in preventing use of the internet... There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of ‘fairness’ or maintaining ‘a level playing field.’ The ‘playing field’ was, in fact, already ‘level’ because internet access was open to both counsel, even if only one of them chose to utilize it.”

It’s quite clear from these cases that the Internet has invaded the courtroom. For now, courts will simply have to grapple with these issues on a case-by-case basis. Eventually, however, clear standards and precedent will be established that govern how and when the Internet can be accessed and used during trials.
This process will take time; change usually does. But, change will occur, Internet access during trials will be commonplace, and our court system will be better because of it.

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].


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