What about judges?

Good Day Readers:

The impact of the electronic age on legal systems is a topic getting increased coverage in the media today particularly as it relates to a juror's instantaneous access to online information while a trial is in progress. We've highlighted a couple revealing quotes from the National Post article shown below.

While the focus to date has been on jurors what about judges? Presumably they have unfettered access to anyone's civil and criminal records but before or during trial are they allowed to Google jurors, defence/prosecution lawyers, witnesses, the accused the plaintiff(s)? What about income tax returns and other restricted government records for these individuals?

Anyone know?

Sincerely,
Clare L. Pieuk
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'Google Mistrials' Derail Courts
Critics say system ignores impact of new technology
Cassandra Jowett, National Post
Published: Monday, March 23, 2009

The modern addiction to instant communication appears to have given rise to the "Google mistrial" -- the use of new technology to inadvertently skew the scales of justice.

In one Florida mistrial, nine jurors admitted to doing Internet research on a federal drug case when they were not in court, and in a recent Arkansas case, a juror was alleged to be providing Twitter updates on the trial he was observing.

Then last week, a judge declared a mistrial before the verdict in the federal corruption trial of a former Pennsylvania state senator because a juror had posted updates relating to the trial on Twitter and Facebook.

Canadian experts say while they are not aware of any such trial disruptions in this country, it is likely jurors here are doing similar things.

Alan Young, a professor at York University's Osgoode Hall law school, notes that Canada's laws and legal processes are generations behind contemporary science and technology. "No one has considered the ultimate impact of instantaneous communication on ... the day in court."

He believes jurors go against judges' instructions more often than the legal community would like to think, at least partly due to modern society's addiction to constant communication and information consumption.

"We are so hooked on this instantaneous communication, we can't seem to drop it even for a short period of time in order to discharge a civic duty."

Technically, jurors are allowed to ask questions if they're curious about a missing detail or don't understand something, but the feedback isn't nearly as instant as a Google search. They must submit a question in writing to the sheriff who then presents it to the judge.

"Because of the formality of the process and because the jurors are not allowed to stand up and say, 'One second, I don't understand -- explain it to me this way,' it rarely happens," Mr. Young said.

In the recent Florida case, one juror came forward to say another juror had admitted doing outside research on the case involving allegations of prescription drug fraud. That juror could simply have been removed, but then the judge found that eight other jurors had done the same thing - conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked about the research by the judge, said, "Well, I was curious," according to a lawyer who worked on the case.

Jonathan Freedman, a retired University of Toronto psychology professor, said although the way jurors find or disseminate information today may be different than in the past, they've always had the desire and ability to do it.

"It's human nature," Mr. Freedman said. "Of course you're curious, but you're not supposed to be curious until after the trial."

Although a verdict can potentially be overturned in the United States if evidence is found that the jury considered information obtained outside the court room, in the recent Arkansas case - the company that lost a US$12.6-million civil judgment wants it quashed in part because one juror sent Twitter messages including the line, "I just gave away TWELVE MILLION DOLLARS of somebody else's money" - it's virtually impossible in Canada to overturn a verdict for the same reason.

It's also against the law to disclose what occurred while the jury was deliberating.

Mr. Young said these U.S. incidents indicate it may be time to examine jury deliberations and verdicts more closely in this country.

Information a juror finds on the Internet could have serious consequences, he notes. "The danger is that everybody is a know-it-all on the Web. It lacks accountability."

Criminal lawyer Yossi Schochet said he thinks Canadians need to trust the jury system and repealing the criminal prohibition on disclosing a jury's deliberation would be a mistake."It undermines the integrity of the jury. It might not be the perfect system, but it's the closest we can get."

However, he's not saying jury misconduct isn't a problem: "This is not a new phenomenon.

Anyone who thinks it's unusual is living in a dreamland."

He says education is the only solution. To ensure jurors understand their responsibilities, he suggests judges in Canada should specifically condemn the type of misconduct seen in the U.S. cases and explain in detail the role of the jury in the justice system.

"The law is not about truth-finding. It's about, ‘Can we convict this guy based on the rules of evidence?' " he said. "That's something that really has to be stressed over and over again."

Olin Guy Wellborn, a law professor at the University of Texas, explains that the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides.

"That's the beauty of the adversary system," said Mr. Wellborn, co-author of a handbook on evidence law. "You lose all that when the jurors go out on their own."

National Post, with files from The New York Times