by The Honorable Tyrie W. Boyer
Justice R. Fred Lewis of the Florida Supreme Court recently requested that the Supreme Court Committees on Standard Jury Instructions (SJI), Civil and Criminal, prepare instructions regarding a problem which has developed in recent years. Apparently it has become common for jurors to use their cell phones, Blackberrys, iPhones and other computers to do research for and during trials and deliberations. As a result there have been a rash of mistrials throughout the country when the courts learn that a jury went beyond the evidence in the courtroom. Apparently the jurors feel that Florida Standard Jury Instructions 1.1 and 2.1 do not prohibit such activity.
There was one case where a witness was found to be chatting with one of the parties via text messaging, while the witness was on the stand and the lawyers were at the sidebar. Other cases involve jurors researching with cell phones, everything from the reputation of lawyers and witnesses, to opinions held by others regarding facts similar to those presented at trial.
The SJI Committee, Civil, upon which I serve, has worked extensively with the criminal committee counterpart to write a proposal for the Supreme Court’s consideration. However, the final draft will not get to the Court before January, 2010. In the meantime, lawyers and judges need to be aware of the problem and consider special jury instructions to be given before voir dire, opening statements, closing statements, and deliberations. It is hoped that during voir dire the lawyers will take the opportunity to educate the jurors on the necessity to avoid obtaining or utilizing any information not provided by the lawyers and the judge.
Trials are time consuming and expensive. By addressing this problem with the courts before trial (and with the jurors during trial), the parties may avoid a mistrial as well as an expensive retrial.