Thursday, July 30, 2009
Ind. Courts - Still more on: Managing the electronic communication revolution in the Indiana courtroom
Updating this ILB entry from July 25th, it turns out the ILB completely missed relevant details/dicta from one recent decision of our Supreme Court, Henri v. Curto, an opinion by Justice Dickson issued June 17th (and briefly summarized by the ILB here on June 17th).
In Curto, during the deliberations, one of the jurors received a phone call and took it outside the jury room, accompanied by the bailiff. Here are some quotes from the opinion:
Ms. Henri presented her claim of error due to the juror's cell phone use in her motion to correct error. It was denied by the trial court, which concluded that "[n]othing about these events comprise[s] misconduct in any form." On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue.
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 re-cording, 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 de-vices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.
 Cases involving claims of juror error based on such technology are sprouting up with some regularity. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009, at A1. See, e.g., 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); Scott F. Davis, No New Trial Over Juror's Twittering, N.W. Ark. Times, Apr. 4, 2009.