Yesterday I posted an article titled "Judge warns about growing problem of ‘mistrial by Google’" which ran in the Toronto Star.
Judge John Kane sent me some thoughts on the topic in an e-mail. As always, his take is thought-provoking. With his permission, I post what he wrote . . .
The dangers of "mistrial by Google" have been in place for a number of years. The use of various devices to access the internet is ubiquitous and more than a few mistrials have had to be declared because of such misuse. I know I had one --- and none since--- over three years ago. An instruction at the close of the evidence is not sufficient to enable a jury to refrain from this international obsession. It is necessary to dwell on the nature of a trial and the responsibilities of jurors beginning with the voir dire, and instructing before the opening statements, during the taking of testimony and at the close. I cannot conceive of instructions that do not set forth the reasons for them. It is also necessary to provide jurors with copies of the instructions at the beginning of the trial, to allow them to take notes, to submit questions and to include an instruction that each juror is responsible for the proper conduct of the other jurors. The instructions should also advise the jurors that failure to comply, failure to confine deliberations to the evidence adduced at trial and failure to insure one another's proper conduct can be deemed a contempt of court. Even with this "organic" infusion of instructions, it remains essential to prohibit the possession of cell phones and such during court sessions and throughout jury deliberations. Given the easy access to information for everyone in our society, including jurors, the idea of waiting until the end of the case to present instructions for the first time is patently ludicrous.
When asked by a blogger if he believed anything was going to stop people from Googling, he responded:
Yes, I do believe it and have employed practices followed by post-verdict interviews that confirm my solutions to the problem. I'd be happy to talk with him or anyone else about this. "Mistrial by Google" is a symptom of an underlying malaise that is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV.
Note (added August 10, 2011): Scott Greenfield at Simple Justice posted about Judge Kane's thoughts and added his own: The Google Instruction.
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