Sep 13, 2010

Two Courts Rule on Internet Use: Lawyer's Use OK; Juror's Use is Not

In two recent decisions, appellate courts in New Jersey and Florida addressed use of the Internet to conduct research during trial. 

The big difference was who was doing the research: the New Jersey court held that an attorney could research potential jurors during voir dire, but the court in Florida held that a juror's research during deliberations was improper.

In Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010) (unpublished), an appeals court declined to reverse a jury verdict in a medical malpractice case in which the judge barred plaintiff's counsel from using the courthouse's free wifi to "google" prospective jurors during voir dire, holding that it gave that attorney an unfair advantage. In rejecting the trial judge's rationale, the appeals court held, 

Despite the deference we normally show a judge's discretion in controlling the courtroom," we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. 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.

Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling.

But a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of "prudence" -- used in the jury instructions -- during a break in deliberations and shared the definition with other jurors. Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010).   

"Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual," the appeals court wrote in its opinion. "It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court."


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