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June 20, 2018

Florida Law

Mixed Messages

A Florida Supreme Court task force is studying what to do when tech and testimony intersect.

Art Levy | 5/1/2010

Gavel vs. Phone
At a fraud trial in Miami last year, a witness on the stand sent a text message to a business associate about the testimony he was giving. The judge found out and declared a mistrial. In another Miami case last year, nine of 12 jurors admitted to the judge that they had searched the web to learn more about the case. Some had Googled the lawyers’ names. Some had read online newspaper accounts of the case, and others used Wikipedia to look up legal terms. That case also ended in a mistrial, as did a Polk County trial in which a juror used the internet to research the defendant’s criminal record.

Joseph L. Amos Jr., a partner at Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap in Orlando, says similar incidents have become so common and problematic in Florida that the Florida Supreme Court created a task force to figure out what to do. Amos, chairman of the task force’s committee on jury instructions in civil cases, attributes the rising problem to iPhones, BlackBerrys and other hand-held devices that have made it easier for jurors to discretely search the web during courtroom breaks, meals or even during deliberations.

“The boundaries of evidence are the courtroom walls,” Amos says. “We can’t have jurors Googling a defendant to find out if they have a prior criminal history. If a juror starts doing their own personal research, that could understandably be brought into the deliberations, perhaps even unintentionally, and influence unfairly the decision.”

In its report, the task force recommended that both prospective jurors and those chosen to serve on juries in state courts no longer have access to their smart phones. Prospective jurors would be informed of the policy as they arrived for jury duty so they couldn’t surf the web while waiting to see if they’ll be picked. Amos expects that the Supreme Court will make a decision on the proposed ban later this year.

Tom Julin
Tom Julin
The task force’s recommendations didn’t address the use of smart phones by anyone other than jurors. Tom Julin, a partner at Hunton & Williams in Miami, says he would be opposed to any effort to ban the devices from the gallery. Julin is keeping tabs on a growing number of incidents in which judges have asked gallery members to stop using iPhones or BlackBerrys during trials. In a U.S. District Court Southern District of Florida case, for example, a judge ruled that a reporter in the gallery could not use a BlackBerry to send messages. There have been other instances involving limits on communications from courtrooms, including a Maryland case in which a judge prevented journalists from tweeting from the courtroom.

“A lot of people are starting to focus on this,” Julin says. “They’re trying to decide whether the courts need to really step in and have one rule that applies across the board. I don’t see any reason to prohibit the devices from the courtroom. They’re really no different than a reporter writing on a pad of paper. As a matter of constitutional law, I think you could make a pretty good First Amendment argument that if the judges want to exclude the devices, or if the parties want to exclude them, they should be required to put on some evidence to show that they are disruptive to what’s happening in the courtroom. And they just aren’t.”

Tags: Politics & Law, Government/Politics & Law

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