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Posted by Susan J. Levy

In June, the Indiana Supreme Court decided a civil rape case where a juror received a cell phone call during deliberations. In Henri v. Curto, No. 49S02-0812-CV-641, (Ind. S. Ct., Jun. 17, 2009), the appellant challenged the verdict on the grounds that the juror’s receipt of an incoming cell phone call during jury deliberations pressured the panel to reach a hasty verdict. The Court upheld the verdict, but the Judge wrote:

We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror’s receiving improper information or otherwise being influenced; and a witness’s or juror’s distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.

Id. at 6-7
In a footnote to this paragraph, the Court cites numerous cases of juror error based on similar technology:

United States v. Siegelman, No. 2:05-cr-119-MEF-CSC, 2007 WL 1821291 (M.D. Ala. June 22, 2007);

Commonwealth v. Guisti, 867 N.E.2d 740 (Mass. 2007) (juror email);

People v. McNeely, No. D052606, 2009 WL 428561 (Cal. Ct. App. Feb. 23, 2009) (juror blogging) (unpublished), rev. denied;

State v. Goehring, No. OT-06-023, 2007 WL 3227386 (Ohio Ct. App. Nov. 2, 2007) (juror blogging);

Gregoire v. City of Oak Harbor, No. 58544-4-I, 2007 WL 3138044 (Wash. Ct. App. Oct. 29, 2007) (juror blogging), rev. granted in part;

Commonwealth v. Rodriguez, 828 N.E.2d 556 (Mass. App. Ct. 2005) (juror cell phone use).

Id. at 7
In July, Michigan’s Supreme Court responded to this disturbing trend by enacting a rule which, beginning September 1, 2009, will require trial judges to instruct jurors not to use cell phones or any other electronic devices during trial or deliberations. Michigan Court Rule 2.516. New Jersey has enacted a similar rule. See the March 2009, Jur-E Bulletin from the National Center for State Courts which monitors these and other trends.

To date, no similar rule is percolating through the courts in Georgia. One DeKalb County State Court Judge recently stated that she lets jurors have free use of their phones during trial, but clamps down during deliberations. At that point, she sternly instructs them that cell phones are to be used only when supervised by court personnel and that under no circumstances should they access the Internet for e-mail, research, texting, blogging, or for any other reason. So far, jurors have, to her knowledge, followed her instructions and she has had no problems. However, in Brown v. State, 275 Ga. App. 281 (2005), a Georgia criminal defendant appealed his conviction for aggravated child molestation after a juror used his cell phone to Mapquest the distance between a store where the alleged molestation occurred and the defendant’s home after the jury questioned the evidence presented at trial.

I do not believe that it will be long before Georgia and every other state in the country has strict regulation on cell phone (Blackberry, etc.) usage in courtrooms. While I understand the need to be available for clients, the need to arrange for childcare, and the myriad of other stresses placed on jurors, that cell phones help alleviate (not to mention sheer boredom), I fear that, ultimately, banning those devices altogether may be the only solution. Otherwise, we risk allowing a juror to view the site of the accident on Google Earth during a bathroom break in deliberations, check the PDR at lunch in the middle of a medical malpractice case, or in a few years, do something that today we can’t even imagine.

As trial lawyers, we know jurors have access to these devices at home and, for now, in court. To compensate, we need to do our best to anticipate their questions and answer them during trial. Additionally, we need to respect their time by not droning on with long, unnecessary examinations designed more to hear ourselves talk than to simply elicit the evidence we need to prove our case.