In New York City, a high-profile criminal trial is about to begin. Viktor Bout, a businessman and alleged arms trafficker, is on trial—accused of planning to sell weapons to Colombian rebels. Mr. Bout is a colorful character, and a quick Internet search on his name reveals many news stories and comments, and much information, that might well prejudice a jury. Thus, the attorneys in the case are concerned that, during trial, jurors will search the Internet to learn more about Mr. Bout.
The judge in the case—Judge Shira Scheindlin, of the U.S. District Court for the Southern District of New York—came up with a simple, but apparently as-yet-untried solution. She told the lawyers that she would write a pledge that jurors would be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial, until the trial is concluded
In this column, I will examine Judge Scheindlin’s proposal in light of the apparent increase, in recent years, in the number of mistrials related to problems with jurors’ unauthorized Internet searches. I conclude—for now—that a pledge like Judge Scheindlin’s is a simple, straightforward way to deal with this issue before trial begins.
A separate, but related, issue is whether even taking such a pledge will keep jurors from searching online. Some commentators argue that the temptation to go online is just too great for jurors to resist, no matter what a judge may say to them, or what pledge they may take. Resolving whether that is actually true, however, will require much more study—and if it is true, our justice system will face the thorny question of how to respond to this modern reality.
Judge Scheindlin’s Pledge, and Why Mr. Bout’s Defense Lawyers Want the Jurors to Take It
According to news reports, Judge Scheindlin commented, at a hearing this month in the Bout case, “I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name [on the Internet].” She added, “We in the judiciary have been discussing this.” And, it is for this very reason that she has proposed the “No Internet” pledge.
Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they were to violate the terms of the pledge.
It is a longstanding policy that jurors rendering a verdict may consider only evidence presented during a trial, and judges have always tried to ensure that deliberations are not tainted by outside information. But the Internet has arguably posed more temptation to jurors than they faced in the past.
Many jurors have numerous ways to get Internet access (mobile phones, PDAs, laptops, computers at work and at home, and more) so for some, the temptation to research the case or the defendant may be constant. Wikipedia may offer the history of a particular event, or biographical info about a suspect or witness. Google Maps may tempt jurors to try to play detective—deducing, for instance, the distance between the defendant’s home and the crime scene.
With access to the Internet, jurors may end up believing false information, and even if the information they find is true, it has not been tested by the rules of evidence, pursuant to which even true information can be excluded—for instance, if it is hearsay or overly prejudicial.
And it’s much easier for a juror to be an Internet sleuth—for Internet searches are quick and easy—as compared to having to go to the library or to a government archive to track down facts or information about a case, which is what would have been required prior to the advent of the Internet.
Why Mr. Bout’s Attorneys Support the “No Internet” Pledge
In the Bout case, the defense lawyers support Judge Scheindlin’s suggested use of the “no Internet” pledge. And it’s understandable why.
Mr. Bout, who has pleaded not guilty, is accused of agreeing to sell millions of dollars’ worth of weapons, including surface-to-air missiles and AK-47s, to federal agents who posed as members of the Revolutionary Armed Forces of Colombia (also known as the FARC) during a sting operation. The undercover agents claimed that they wanted the arms to use against American pilots who were monitoring drug trafficking.
Mr. Bout, a former Soviet air force officer who owns several air cargo companies, is considered by many to be one of the world’s largest arms dealers. He has been referred to by some as “The Merchant of Death,” and some claim his life is the basis for the 2005 film “Lord of War,” in which Nicolas Cage portrays a weapons merchant chased by Interpol.
In pretrial hearings, Judge Scheindlin—after hearing arguments from both sides—carefully carved out which parts of Mr. Bout’s history can (and cannot) be presented to jurors. For instance, the judge said she will not allow any reference to Bout’s involvement with countries like Liberia and Rwanda, reasoning that such references could prejudice the jury, as both countries suffered brutal armed conflicts with much bloodshed.
The Era of the “Google Mistrial,” and Judicial Responses to the Problem
The phenomenon of jurors’ accessing the Internet during a trial has been occurring at least for the past several years—and has caused some mistrials in high-profile cases.
Notably, in Florida in 2009, U.S. District Judge William J. Zloch declared a mistrial in a federal drug case after learning that nine jurors had conducted improper Internet searches about the case. The eight-week trial had concluded; closing arguments were complete; and the jury was deliberating. Then, one juror contacted the judge to say that another juror had admitted searching on the Web to find out more about the defendant. When questioned by the judge, the juror admitted that, through his searches, he had learned about evidence that the judge had specifically excluded.
Even worse, the judge found that eight other jurors (for a total of 9 out of 12!) had also conducted Internet research, ranging from conducting Google searches on the lawyers and defendant, to reading news articles about the trial online, and even checking definitions of key terms via Wikipedia.
Judge Zloch thus had no choice but to declare a mistrial—a waste of eight weeks of work and time.
The examples go on: A juror conducted her own medical research in a gruesome 2011 murder case in Pennsylvania, where a defendant was on trial for allegedly causing the death of an infant after severely shaking it. The juror researched the injuries suffered by the infant victim and relied on that information, rather than on the medical testimony presented by experts in court. In a Maryland case, a juror used the Internet to look up the definition of “oppositional defiant disorder” and learn whether lying was a symptom of the disorder. During the trial, a therapist had testified that she had diagnosed a key witness as having the disorder.
While there appears to be no official count of the number of cases that have been disrupted by juror Internet searches, one thing seems certain: With increasing access to mobile devices and small Internet tablets, the numbers are sure to grow.
Why a “No Internet” Pledge Might Be Superior to Other Strategies Combating Juror Internet Use
Courts have used a variety of methods to try to keep jurors from doing their own detective work on the Internet. One common strategy is revising jury instructions to advise jurors not to consult the Internet. Thus, in September 2010, the U.S. Judicial Conference sent a set of model jury instructions to the federal judiciary that was meant to deter jurors from using electronic technologies to research or communicate about cases on which they served. Among other statements, the model instructions advise jurors: “you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case.”
Similarly, twenty states have referenced juror Internet use in at least some of their standard jury instructions. Jurors have been fined for violating bans on Internet use and, in some cases, judges have even contemplated charging jurors with contempt of court for out-of-court Internet activity.
Additional measures to combat jurors’ researching cases on the Internet have included (1) banning or restricting jurors’ use of cell phones and mobile devices while they are within the courthouse; (2) confiscating such devices; and (3) allowing lawyers to ask jurors during voir dire (jury selection)—directly or via a jury questionnaire—about their Internet use, so that the attorneys can find out if jurors are bloggers or Facebook users, for example.
Some commentators have also proposed asking jurors to provide their online IDs and passwords so that their Internet use can be directly monitored during the trial. However, this seems very intrusive, and a potential First Amendment violation to boot.
A pledge like Judge Scheindlin’s seems to be a more straightforward, direct way of dealing with the issue. Unless a jury is sequestered, seizing jurors’ Internet-enabled devices does nothing to stop them from using the Internet in the privacy of their homes. Moreover, the Internet issue may get lost in the reading of long, complex jury instructions. Having a separate pledge, in contrast, would ensure that jurors focus specifically on the Internet issue, and would put them in the position not of passive listeners, but of active readers, signers, and promissors.
The growing number of U.S. mistrials has potentially staggering implications. With trials costing many thousands of dollars a day, a mistrial that is declared only after weeks have passed could represent hundreds of thousands, or even millions, of wasted dollars. And there are other, non-monetary costs, as well—such as the time and emotional toll for all parties.
Is the Ban on Internet Searches Simply an Unrealistic Measure, Which Jurors Will Often Flout, No Matter What Measures Are Taken?
I’ve suggested above that Judge Sheindlin’s pledge is a wise step in controlling juror Internet use. However, even this smart solution may not be effective in the end, for some experts have put forward the radical contention that no Internet ban will ever work; the temptation for jurors is just too great. Thus, they recommend that courts and bar association study ways to modify—but not ban—the current prohibition on Internet searching, and/or look at alternatives to mistrial in cases where jurors are found to have gone online.
Going down this route would be directly contrary to the way our legal system—which consistently insulates jurors from outside influence—has always worked. But if the empirical reality is that jurors cannot keep themselves from researching the case and the parties online, should the law ignore that reality, pretending that it does not exist? That is the difficult question we will have to face if more and more studies confirm that nothing will convince jurors to refrain from doing their own online inquiries.