‘Google Mistrial’ – Is Search Getting In The Way Of Justice?

Ask around and you probably won’t find many people who think the idea of “Internet everywhere” is a bad thing. Thanks to laptops and smart phones, wi-fi and 3G, we can work (or play) at airports, check email during cab rides, and compare prices online from any department store. We can Google anyone or anything from anywhere, and turn around and broadcast what we find on Facebook, Twitter, or our blogs.

Who’s complaining?

Pretty much everyone in the U.S. legal system, at least this week.

The New York Times has coined a new term: the “Google mistrial.” It reflects the growing number of mistrials and legal disruptions caused by the idea of “Internet everywhere” — three cases in just the last two weeks. Jurors are using their cell phones to research defendants, lawyers, and facts of law, often in violation of the judge’s orders about admissable evidence.

“A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.”

There’s a rich irony here. As far back as 2004, CNET reported on a 2002 California Supreme Court decision in which the Justices used Google to help decide a case.

“In the United States and abroad, judges are turning to search engines such as Google to check facts, to look up information about companies embroiled in litigation, and to challenge statistics presented by attorneys in court. Dozens of judges have penned opinions describing Google as a valuable–and sometimes crucial–source of knowledge.”

Lawyers are doing it, too:

• Last summer, a Florida attorney used Google to help defend the owner of a pornographic web site, trying to make the case that the number of sex-related searches done locally can define “community standards.”
• In 2006, lawyers in Wisconsin successfully used Google searches to get a hacking defendant to plead guilty.
• In 2005, prosecutors used Google searches as evidence in a murder case, citing a man’s searches for things like “neck,” “snap,” and “break” shortly before his wife was found dead.

You could make the argument that judges and lawyers are furthering the cause of justice more often than not when they bring search and the Internet into the courtroom.

The problem with people like you and me doing it is that we’re usually getting in the way of justice. In one of the recent cases cited by the NY Times, an eight-week trial — and probably hundreds of hours of pre-trial work — was thrown out when nine jurors admitted to researching the case online. In Arkansas, a judge has to decide if one juror’s use of Twitter is grounds to throw out a $12.6 million judgment. And a Pennsylvania judge recently ignored the fact that one juror in a corruption trial was posting updates on Twitter and Facebook, and allowed the case to continue.

Our appetite for “Internet everywhere” is only going to grow, and search will continue to get more ubiquitous. But it may be up to the legal system to decide how far online conveniences can infiltrate the courtroom. Some judges are amending their jury instructions, and some courthouses are forbidding jurors from bringing cellphones inside.

Meanwhile, I’m scheduled for jury duty next month. I’m planning to bring my iPhone with me when I report.