NJ Appeals Court Allows Googling of Potential Jurors During Jury Selection Process

As one recent New Jersey appeals decision confirms, the Internet can serve as a valuable tool  for trial attorneys and litigants to research information about potential jurors.   The concept of "Googling" someone's name has now become part of New Jersey trial practice.  

In Carino v. Muenzen, M.D., No. 5491-08, 201 N.J. Super. LEXIS 2154 (Aug. 30, 2010), the appeals court determined that the trial court erred in prohibiting the plaintiff's lawyer from conducting Internet research on potential jurors at the counsel table.  More specifically, the Carino court reasoned that there is nothing 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." Id. at *26.

The Carino court determined that the fact that plaintiff's counsel "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.'" Id. at *27.  On the contrary, the playing field was already level "because Internet access was open to both counsel, even if only one of them chose to utilize it." Id. In addition, the Carino court reasoned that prohibiting attorneys from using the Internet in court would have little practical effect because "counsel could have researched the prospective jurors overnight or during breaks." Id.

This ruling is one of the latest examples of how the use of advanced technology in the courtroom can reshape and significantly impact New Jersey trial practice.

Carino was a medical malpractice case where the plaintiff, as executor of his decedent wife's estate, alleged that the defendant doctor committed malpractice by failing to timely diagnose a brain hemorrhage. During jury selection, plaintiff's counsel was observed using a laptop computer to access the Internet via the court's Wi-Fi connection.  Defense counsel, who did not bring a laptop computer to the trial, objected to this tactic and the following exchange occurred between the trial judge and the plaintiff's lawyer:

THE COURT: Are you Googling these [potential jurors]?

[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. 

The trial judge, however, noted that it would have been acceptable for plaintiff's counsel to use his laptop to access such information if he had provided advance notice to the court and defense counsel, and that the failure to do so resulted in giving the plaintiff an inherent advantage during jury selection.

After the jury returned a no-cause-of-action verdict, the plaintiff filed an appeal on several grounds, including the trial judge's preclusion of using the laptop to access information about potential jurors during jury selection.  On appeal, plaintiff contended that the trial judge deprived him of one of the fundamental rights of litigation as it related to jury selection by precluding research about potential jurors.

The New Jersey Appellate Division acknowledged that trial judges have broad discretion regarding the manner in which jurors are selected, but it also noted that the New Jersey Court Rules do not address the issue of laptop use to access the Internet during jury selection. The appeals court explained that in April 2008 wireless Internet access in courtrooms first became available, and noted the absence of any administrative orders or instructions requiring counsel to notify the court and opposing counsel of the intent to use the Internet during jury selection.

The appellate court concluded that the trial judge acted unreasonably in prohibiting plaintiff's counsel from using his laptop to access the Internet during the jury selection process.   The appellate court emphasized that there was not any suggestion in the record that plaintiff's counsel was disruptive while accessing the Internet with his laptop.  The appeals court addressed the "level playing field" rationale cited by the trial judge in his ruling below by noting that plaintiff's counsel had the foresight to utilize a laptop during jury selection, while defense counsel chose not to. The court also remarked that the use of a laptop computer "simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field.'"

Notwithstanding this finding, the appellate court refused to reverse the trial court's decision on this issue, concluding that plaintiff failed to demonstrate any prejudice based on the lower court's ruling.  Plaintiff did not point to "a single juror who was unqualified or as to whom he claims he would have exercised a peremptory challenge, even though he has subsequently had the opportunity to perform an Internet search concerning each juror," the appeals court explained.

This appellate decision highlights the ever-increasing use of technology in the courtroom and how our trial and appellate courts continue to wrestle with issues that stem from the use of such technology.   Want to find out more about your potential jurors who may decide your New Jersey case?  Try "Googling" them at the counsel table.