« NYT enforces copyright over bloggers | Main | Bain call »
Googling jurors again
By Steven | March 25, 2009
A Florida drugs trial had to be abandoned this month because no fewer than nine of the jurors had been conducting their own research online, despite a warning from the judge not to. In NZ Judge David Harvey has been warning about this for ages. Is anyone listening? It’s becoming clear that we can’t rely on stern instructions from judges.
I can’t see any alternative to having someone sitting down as particular trials are looming (and periodically during the trials), conducting the obvious Google searches (eg the defendant’s name), seeing whether any of the accessible material on the first few Google screens is prejudicial, and contacting those hosting the material to have it taken down temporarily. (Has anyone done this with the Bain case, I wonder?) It really needs to start happening now. Developing a protocol with news organisations about their archives would be a good start.
In most cases, any prejudicial material is likely to be hosted in NZ (who else cares?). No doubt, some people receiving such a warning would take delight in ensuring that the material appeared on an overseas site where it couldn’t be touched. We need to be ready for that, too. If the material can’t be removed, and is likely to be looked up and believed by jurors, I think it will have to be brought up explicitly at the trial, no matter how prejudicial it is. The judge would need to explain the reasons why it’s dangerous and unfair to place any weight on it. I don’t think we can any longer act on the assumption that jurors won’t know it. It’s either that or start sequestering them in such cases (in which case, they’ll probably realise there’s prejudicial material that’s being kept from them and there’s still no guarantee they won’t already know it, or find out somehow).
Another possibility is questioning jurors about what they know before the trial. It has happened in the UK, and our Court of Appeal has said it could be done here in exceptional cases. But that wouldn’t get around the problem of jurors Googling during the trial.
Topics: Contempt of Court | Comments Off on Googling jurors again