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Googling Your Jurors?

September 14, 2010

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Technology often times comes slow to the legal process. Many courtrooms are not wired for wi-fi and do not have the capability to project documents or digital images. To say that there are very few "smart" courtrooms is an understatement. Yet slow, incremental changes are coming. Many attorneys bring their own technology to the courthouse through the use of laptops at depositions and trials to access and publish documents. Smartboards and ELMOs are now part of a sophisticated attorney's arsenal. Rather than carting around thousands of documents, the use of a "thumb" drive or the internet can put the services of the attorney's office at her fingertips.
How far can an attorney go in using available technology in the courtroom during a trial? is it proper to "google" prospective jurors while sitting at counsel table during the court's questioning of the jury panel? What if only one attorney has brought an internet enabled laptop while the other is using an old fashioned legal pad?
In New Jersey, absent a specific court rule, an attorney is free to "google" prospective jurors according to a recent unpublished Appellate Division decision. In <i>Carino v. Muenzen</i>, the defense attorney objected that his adversary appeared to be "googling" jurors during the voir dire process. When questioned by the judge, the attorney readily admitted his activities but protested that there were no rules prohibiting such conduct. In response, the trial judge directed that the attorney cease his "googling" in the courtroom, relying on a vague sense that there was an "unlevel playing field" because one attorney had a laptop while the other did not. The jury eventually rendered a defense verdict and the plaintiff appealed.
The Appellate Division held that there was nothing improper about "googling" a prospective juror during the jury selection process. The courthouse had a wireless internet connection that was accessible to the public for about 1 year before the trial, which was equally available to both sides. The court rules did not address the issue and there was no written requirement that parties seek prior approval of their intent to use the internet. Accordingly, the Appellate Division held that the trial court's order was erroneous.
Sometimes, you can win the battle but lose the war. The Appellate Division also found that although the trial judge was wrong in ordering the plaintiff's attorney to close his laptop, the error was harmless. The jury verdict of "no cause' was affirmed and the case dismissed.
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