Recent cases in the U.S. have spotlighted the growing concern over the ease with which technology can be improperly used by jurors and the impact this has on the fairness of trials. Specifically, the use of cell phones and PDA’s to disseminate confidential information, and even the use of search engines and online databases to search relevant information, have all made it much more difficult for judges to ensure that proper procedures are being followed in and out of court sessions.

In Florida, a judge was forced to order a mistrial after finding out that nine jurors had been involved in outside research on the subject matter of the case. All after an eight week trial and the related work put in by everyone involved. In Arkansas, a juror was sending Twitter updates during trial, implying what the outcome was going to be and boasting about handing over $12 million, which has prompted a motion for a mistrial. And in Pennsylvania, another juror on a federal corruption trial of a state senator was found to be posting information on both Facebook and Twitter before the verdict was delivered. The judge allowed the juror to remain and continue deliberating on what was eventually a guilty verdict.

Though I have never served on jury duty before, I think it is safe to assume that jurors are not trying to be more callous today than they were twenty years ago regarding their attitude toward judges’ orders about gathering and transmitting information that they are not supposed to. These cases expose what may have been occurring all the time: jurors discussing cases with others who are not supposed to be involved. However, the potential for procedural unfairness is amplified today since much more information is easily shared and accessible. Because of the greater ease of wrongly obtaining or divulging information, it might even be the case that jurors are more naturally disposed to breaking the rules. As we all know, the internet is very easy to access, and the amount of specific information that can be found there is massive and growing.

There have even been reports of judges using Google to obtain information about matters that helped in reaching decisions. There is no doubt that most information found online is subject to less scrutiny than evidence brought forth in a court.  Also, many technical issues require a proper presentation by experts for a judge to fully understand them. So should we really be concerned about the actions of these judges? The answer likely lies in one’s personal beliefs as to how much discretion there should be with regards to following outlined procedure and the impact this really has on the fairness of a case. Those of us in the legal field, especially students, have no doubt been reminded of the importance of strictly following procedure as a means of administering ‘justice’ and for respect of the rule of law itself. However, when considering the matter practically, perhaps the internet should be allowed as a tool for judges, mixing in a bit of the inquisitorial system with our adversarial model.

As a caveat, I should say that I believe that an experienced judge is capable of determining which pieces of searched information may be used in a fashion that does not run contrary to the underlying rationale of particular procedural rules, whereas jurors are not. If the same information was not found online during the course of a trial and was instead simply known by the judge beforehand, then it would not be of issue even though the judge would still have to use his or her legal expertise in order to determine how much of this information is allowed to be used in the case at bar. All judges have pre-conceived understandings of issues, and they must always use their discretion to balance out their own views with the views being presented in court. The difference with jury members is that they have not been trained to be as impartial, and it is assumed that their opinions on issues of fact can be more easily tainted, especially when affected by evidence that has been excluded by the judge.

Though it has been suggested that these U.S. cases “should be ringing alarm bells in Canadian courtrooms” and that clear instructions should be uniformly administered by trial judges here, simply charging a jury in a specific manner will likely not stop those jurors who are prone to breaking the rules anyway. Sequestering and greater monitoring are also possibilities, but it is questionable whether these measures would be worth it in every case. At the end of the day, it seems quite difficult for judges to take effective measures, in a non-draconian manner at reasonable cost, to prevent a jury from disobeying the rules. Technology has permitted this white elephant of our legal system to evolve into a slightly more problematic and untamed beast.