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Due process in the Information Age means leveling a dynamic playing field. As courtrooms are being wired for computer access, jurors and litigants are opening the courthouse doors just enough to allow the Internet inside. These online excursions are challenging current notions of fair trial and equal justice. Jurors are required to follow a judge’s instructions and consider only the evidence presented in court. Independent investigation and research are discouraged and talking to people outside court about a case is proscribed. The advent of blogs, wireless connections, and nearly universal access to the Internet have redefined the limits of juror behavior. Take, for example, the case of Stephen Goupil, who was convicted of a felony in a New Hampshire court. After it was revealed that one of the jurors had posted something on his blog about the case, all the jurors were brought into court and questioned about it. [FOOTNOTE 1] Although the judge did not find “anything of concern,” the defense attorney was worried that his client’s right to a fair trial was compromised. The content of the posting might have been innocuous or administrative. But in another trial, a juror went beyond posting information to downloading something central to the decision making process. In Kentucky, a young woman was tried and convicted of child abuse. [FOOTNOTE 2] Among the issues she raised on appeal was the judge’s failure to grant a mistrial when he discovered that a juror had done research into the case on his own. At the close of trial, the jurors had deliberated for a few hours and then recessed. Before leaving, the judge admonished them not to do any independent research. Despite this warning, one juror went online and found a definition of culpable mental states. A court inquiry determined that the juror did not share that information with the others, and the definition was “precisely” the same as in the jury charge. Defendant’s motion for a mistrial was denied. And the decision was upheld on appeal because the juror’s research did not affect the outcome of the trial or the defendant’s substantial rights. The Colorado Supreme Court recently tackled the question of the Internet. Deborah Wadle was tried in that state for child abuse resulting in the death of her 4-month-old step-grandson. [FOOTNOTE 3] Her husband testified that she had taken an anti-depressant called Paxil. After the case went to the jury, they asked the judge to explain why this drug was prescribed in lieu of another and requested a copy of the Physician’s Desk Reference. The court declined to provide the reference book, and reiterated its instructions. Wadle was found guilty. Later, two jurors informed the judge that a third juror researched Paxil on the Internet and shared it with the others. Based on this revelation, defense counsel requested a new trial. Despite the juror misconduct, the motion was denied. The trial judge found “no reasonable possibility the extraneous information affected the verdict.” Colorado’s highest court disagreed. It held that the juror’s unguided online medical research would have influenced the decision making process of a “typical jury.” Some attorneys have suggested expanding voir dire to counterbalance the inclination of jurors to explore the Internet. [FOOTNOTE 4] In addition, defense counsel should consider the value of specific jury instructions and post-trial investigations. [FOOTNOTE 5] A live Internet connection inside the courtroom draws attention to a different concern, equal access. New York’s State Insurance Fund is a governmental agency, but when it appears in proceedings before the Workers’ Compensation Board, it is just another insurer pressing its case. So when the board allowed the Insurance Fund to install computers and wireless Internet access in its Syracuse office, where no other litigant had that privilege, eyebrows were raised. ARTICLE 78 PETITION The New York Workers’ Compensation Bar Association brought an Article 78 motion challenging the policy. It pointed out that this equipment allowed the fund to access case files, exhibits, legal research and other information during hearings, which other litigants could not do. The court agreed and found the policy to be arbitrary and capricious. [FOOTNOTE 6] The State Insurance Fund case underscores a due process principle so vital in criminal trials — a level playing field. There is a disparity between the resources available to the government and the defense. For example, an indigent criminal defendant has a right to expert assistance but as one scholar recently noted, it has not been fully implemented. [FOOTNOTE 7] Moreover, due process mandates access to government expertise in some cases. “Where the government holds a monopoly of expertise on a matter that reasonably bears on a defense in a criminal action, due process requires that a defendant be afforded access to this expertise,” a Manhattan Supreme Court justice has ruled. [FOOTNOTE 8] There is also a gap between government and defense technological resources. In its report, “Indigent Defense and Technology,” the U.S. Department of Justice observed that the “defenders’ ability to use technology effectively is being hampered by disparities in resources and technological expertise.” [FOOTNOTE 9] The report concluded, “local justice systems work most efficiently when the agencies that compose them operate with parity in staffing and technological resources.” The need to balance access to technology for the defense is similar to opening the doors to unique government expertise essential to fulfilling the right to counsel and the right to present a defense. And cases will arise where the proper balance of technology in the courtroom will be judged by due process, equal protection and right to counsel principles. Currently, federal courts are being outfitted with high-tech presentation equipment that allows plaintiffs and defendants, equally, to show and explain evidence with digitized efficiency. But putting a document on a screen during trial is vastly different from searching a database inside a courtroom. Access to technology by litigants and decision makers raises a whole new range of questions about the fair administration of justice. Ken Strutin is director of legal information services at the New York State Defenders Association.

::::FOOTNOTES:::: FN1 Geoff Cunningham, Jr., Goupil’s Lawyer: Web ‘Blog’ Tainted Trial, Citizen Online, March 22, 2005. FN2 Ross-Carter v. Commonwealth, 2005 WL 678539 (Ky. Ct. App. March 25, 2005) (unpublished opinion). FN3 People v. Wadle, 97 P.3d 932 (Colo. 2004). FN4 Tresa Baldas, “Lawyers Report Jurors Gone Wild,” National Law Journal, May 20, 2005, at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1115975115624. FN5 See generally Michael M. Martin, Second Chances and Jury Verdicts, NYLJ, Dec. 13, 2000, at 3. FN6 Matter of Central New York Workers’ Comp. Bar Assn. v. State of New York Workers’ Compensation Bd., 16 A.D.3d 1066, 791 N.Y.S.2d 758 (4th Dep’t 2005). FN7 See Paul C. Giannelli, “‘Ake v. Oklahoma’: The Right to Expert Assistance in a Post-Daubert, Post-DNA World,” 89 Cornell L. Rev. 1305 (2004). FN8 People v. Evans, 141 Misc.2d 781, 783, 534 N.Y.S.2d 640 (Sup. Ct. N.Y. County 1988). FN9 Indigent Defense and Technology 2 (U.S. Dept. of Justice 1999).

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