Commercial Litigation and Arbitration

Internet, Cell Phones, Blogs, BlackBerrys — and Jurors

From Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. Sup. Ct. 2009):

[P]ermitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror's receiving improper information or otherwise being influenced; and a witness's or juror's distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.

Sources cited by the Court: John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009; United States v. Siegelman, No. 2:05-cr-119-MEF-C SC, 2007 U.S. Dist. LEXIS 45647, 2007 WL 1821291 (M.D. Ala. June 22, 2007); Commonwealth v. Guisti, 449 Mass. 1018, 867 N.E.2d 740 (Mass. 2007) (juror email); People v. McNeely, No. D052606, 2009 Cal. App. Unpub. LEXIS 1402, 2009 WL 428561 (Cal. Ct. App. Feb. 23, 2009) (juror blogging) (unpublished), rev. denied, State v. Goehring, 2007 Ohio 5886, 2007 WL 3227386 (Ohio Ct. App. 2007) (juror blogging); Gregoire v. City of Oak Harbor, No. 58544-4-I, 2007 Wash. App. LEXIS 2929, 2007 WL 3138044 (Wash. Ct. App. Oct. 29, 2007) (juror blogging), rev. granted in part; Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 828 N.E.2d 556 (Mass. App. Ct. 2005) (juror cell phone use); Scott F. Davis, No New Trial Over Juror's Twittering, N.W. Ark. Times, Apr. 4, 2009).

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