The Iphone and Blackberry mistrials: the factors courts consider and proposed solutions.

• Author: Kourinian, Arsen

JURY TRIALS play a pivotal role in our form of government and judicial system. In 1789, Thomas Jefferson expressed these sentiments when he stated "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1) Jury trials are important to the judicial system because they prevent the arbitrary exercise of power and provide "the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge." (2)

One of the core tenets for a fair jury trial is to have an impartial jury. While the Constitution does not provide a test to help determine impartiality, an important element of this concept is for a jury to reach a verdict based on the evidence admitted in court. (3) Case law and jury instructions explicitly forbid jurors from conducting an independent investigation of the facts in a case. (4) Despite safeguards and laws against jurors seeking outside information during a trial, the development of cell phones that can text and access the Internet are making it easier for jurors to violate these laws.

The article will explain how jurors who use the Internet and cell phones during a trial threaten a defendant's right to an impartial jury. It will analyze the three factors that courts have held to be significant when determining whether to grant a mistrial because of Internet or cell phone use. Additionally, the article will propose solutions that courts can adopt to prevent jurors from using their cell phones and the Internet to obtain extraneous information about a case.

THE SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY IS BEING JEOPARDIZED

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a trial by an impartial jury. (5) To protect this right, due process requires "a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences when they happen." (6) In other words, the defendant's guilt must be determined based on the evidence presented at trial and the court's instructions about the law. (7)

Prior to the Internet era, the judicial system sought to preserve impartiality by preventing jurors from accessing inadmissible evidence through the media. (8) Trial courts had the discretion to use their sequestration powers to isolate jurors from the rest of society to accomplish this objective. (9) Sequestration powers were most often used in high-profile cases that received widespread media coverage, such as the Charles Manson, Patty Hearst, and O.J. Simpson trials. (10) Outdated jury instructions and sequestration powers, however, are no longer adequate to prevent juror misconduct because jurors can use their cell phones and the Internet during trial and in the jury deliberation room. (11)

In fact, not only are jurors capable of accessing the Internet during a trial--but now more than ever--they are more likely to do so. Today, nearly half of all Americans have reported using the Internet for more than one hour per day. (12) This number has doubled from 2002 when only 26 percent of the American public used the Internet with such frequency. (13) Additionally, with cell phones such as the Blackberry and iPhone, the public can access the Internet at any location. Furthermore, more Americans have a desire to stay connected online because of the recent proliferation of social networking Web sites such as Facebook, Twitter, and MySpace. (14)

Jurors in this new technologically sophisticated era are also extremely attached to their cell phones and the Internet. (15) Many have developed a habit of informing others about what they are doing at any given moment by text messaging and updating their statuses on social networking Web sites and blogs. (16) Because jurors can text, update their statuses online, and search for information on the Internet more readily, their techno-savvy skills are giving them access to inadmissible evidence during trial.

Jurisdictions across the United States have revealed jurors who text message; (17) post messages on blogs; (18) and research information about trials on the Internet. (19) Jurors do not just text message and access the Internet for social reasons. Empirical studies have shown that jurors have difficulty understanding jury instructions. (20) Because of this confusion, jurors are taking matters into their own hands and researching information about cases on Web sites such as Google and Wikipeida. (21) While their actions are sparked by benign motives, they run contrary to our system of jurisprudence.

FACTORS THAT LEAD TO A MISTRIAL

The United States Supreme Court has established a clear test to preserve juror impartiality and prevent rogue jurors from conducting independent research about a case. The Court has held that a presumption of prejudice arises when a juror is directly or indirectly exposed to extraneous information. When this presumption arises, the burden shifts to the government to show "that such contact with the juror was harmless to the defendant." (23) If the government is unable to rebut this presumption, the defendant is entitled to a new trial. (24)

Judges have consistently looked to several key factors when applying the presumption shifting test to cases where jurors have accessed extraneous information through the Internet, text messaging, or phone calls. Judicial opinions have overwhelmingly discussed the following three factors as the crux to their decision:

* whether the juror posted or obtained the information relating to a case;

* whether the juror who received extraneous information communicated it to the other jurors; and

* whether a verdict was already rendered when the juror received the extraneous information.

Whether the juror posted or obtained the information relating to a case.

Courts have held that when jurors merely text message, call, or post information online about a case to nonjurors, these are insufficient grounds for a mistrial. However, if a juror receives outside information by using the Internet or a cell phone, courts are more likely to grant a mistrial.

In People v. McNeely, (25) the court denied the defendant's motion for a mistrial because the juror had merely posted about the case online rather than receiving outside information. In McNeely, the jury convicted the defendant on numerous charges of theft and burglary. (26) The defendant appealed the conviction on the ground that the trial court erred in dewing him a new trial based on juror misconduct. (27) The juror accused of committing the misconduct was a licensed California attorney. (28) During the trial, the juror posted detailed information about the case on an Internet blog. (29) In the blog, the juror described the trial and his experience as a juror in great detail and in a very derogatory manner. (30) For example, the juror referred to the defendant as "Donald the Duck" and one of the other jurors as "skinhead Brad." (31)

While the juror committed misconduct by sharing information on the Internet, the court ultimately denied the motion for a new trial because the People rebutted the presumption of prejudice. (32) The court evaluated the juror's act of posting on the blog as a factor under the totality of the circumstances and concluded that the evidence did not "raise a 'substantial likelihood' that Juror No. 8 (or any other juror) was actually biased against McNeely [the defendant]." (33)

Similar to McNeely, the court in State v. Goupil also denied the defendant's motion for a mistrial because he had merely posted information on the Internet. (34) In Goupil, prior to jury selection, one of the jurors wrote the following blog entry online: "Lucky me, I have Jury Duty! Like my life doesn't already have enough civic participation in it, now I get to listen to the local riff-raff try and convince me of their innocence." (35) After the juror was seated for the trial, he also wrote "After sitting through 2 days of jury questioning, I was surprised to find that I was not booted due to any strong beliefs I had about police, God, etc." (36) The juror had also posted in the blog his views on a recent United States Supreme Court decision and a "photograph depicting a woman's deformed face after she was hit by a drunk driver...." (37)

Consistent with McNeely, the court denied the defendant's motion for a new trial. (38) The court found it significant that the defendant had merely posted information on...