Real-Time Googling of Jurors During Voir Dire

From Carino v. Muenzen (N.J. Super. Ct. App. Div.):

During jury selection, Joseph’s counsel began using a laptop computer to access the internet, intending to obtain information on prospective jurors. Defense counsel objected and the following exchange took place:

THE COURT: Are you Googling these [potential jurors]?
[PLAINTIFF’S COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I — any courtroom —
THE COURT: Is that what you’re doing?
[PLAINTIFF’S COUNSEL]: I’m getting information on jurors — we’ve done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says — …
THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it.
[PLAINTIFF’S COUNSEL]: I understand.
THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you’re doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless internet access.
[PLAINTIFF’S COUNSEL]: Correct, Judge.
THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don’t particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to — I can’t control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

In making his ruling, the trial judge cited no authority for his requirement that trial counsel must notify an adversary and the court in advance of using internet access during jury selection or any other part of a trial. The issue is not addressed in the Rules of Court.

We note, however, that on April 25, 2008, the trial court administrator for the Morris/Sussex Vicinage issued a press release announcing that “wireless internet access” had become available throughout the Morris County Courthouse to “maximize productivity for attorneys” and other court users. The press release quotes the assignment judge as stating that the “courthouse enhancement allows court users” to “access online databases.” There is nothing in the press release, or elsewhere as far as we can determine, that requires attorneys to notify the court or opposing counsel in advance of their intention to take advantage of the internet access made available by the Judiciary.

Despite the deference we normally show a judge’s discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph’s counsel. There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

For more, see this story.

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