THE collapse of a trial in Florida last week has acted as a lightning conductor, attracting further tales of the intrusion of the internet and its Twittering, blogging derivatives into the jury room.
The absolute principle that a jury should reach its verdict only on the basis of evidence played out in the courtroom with defence and prosecution lawyers having the opportunity to cross-examine each other's witnesses appears to be under serious threat.
In Scotland, Paul McBride, QC, regards the internet as the elephant in the jury room. He said: "The judiciary and politicians have tried not to notice juries are using Google to second-guess evidence. They know that, as soon as they acknowledge it, they will either have to do something about it or abandon the pretence that we have a Contempt of Court Act that means anything in the age of the internet.
"It is quite absurd that a newspaper editor could be sent to jail for publishing prejudicial material during a trial but any juror can Google for information that would be inadmissible or prejudicial or is plain wrong and no-one turns a hair."
The Florida case involved someone charged with illegally selling prescription medicines through the internet. Defence and prosecution had made their closing speeches after an eight-week trial and the judge, William Z Zloch, had sent the 12-person jury off to consider their verdict.
One juror contacted the judge to say another member had admitted carrying out his own research on the case over the internet at home – including evidence specifically excluded by the judge.
It might have been expected that the juror in question would simply have been discharged and the verdict left to the remaining 11. However, when the judge conducted his inquiries, he discovered nine of the 12 had been at it. The retrial is due to begin today, so the judge declined to comment.
The defence attorney, Peter Raben, is similarly constrained from discussing the detail of the first trial. However, he is in no doubt that legal academics will swarm around the issue. It is less clear that they will alight on a simple solution.
"Some courts confiscate phones and iPods and other electrical equipment on arrival. But there is no way to monitor what jurors do at home," Mr Raben said.
"The reality is that this has probably been going on for years and it would be an unusual juror who doesn't know how to ask Google for the answer to any question about the case unfolding in front of them. Modern technology is intruding into an antiquated system and we don't know what to do. Judges have always warned juries they should reach a decision purely on the evidence led in the course of the trial. Previously we sort of expected jurors would pretty well do what they were told. We can't assume that any more."
As news of the Florida case spread, others came to light – not only jurors checking evidence but also publishing blogs in the course of a trial and promiscuously Twittering. In the US state of Arkansas, a building products company asked a court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.
Defence lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J Fumo, demanded the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers a "big announcement" was coming. The judge decided to let the trial continue. The jury found Fumo guilty but his lawyers plan to use the internet postings as grounds for appeal.
The internet is causing concern in Scotland. Donald Findlay, QC, says it is "the most serious issue affecting our criminal justice system. It is obvious that jurors Google the name of the accused when they get home. Not only will they find out previous convictions and other prejudicial material, but they will also be able to access information that is at entirely false."
In serious cases, where there isn't an immediate arrest, there may be weeks or months of commentary on the investigation and speculation on evidence that turns out to be incorrect. But no-one weeds the internet to remove errors.
Mr McBride says: "We all know there's an issue, especially in the most serious cases. I tried to raise it in the Nat Fraser case. There were sites on the internet that purported to give details of the murder of his wife. The judge thought it sufficient to instruct the jury to disregard everything they might read and consider only the evidence presented in court."
Solicitor John Keenan recalls a High Court trial involving a charge of death by dangerous driving, in which copies of extracts from the Highway Code had been printed off from the internet and left in the jury room. "We agreed that as far as the issues to be resolved in the trial were concerned, the fact that someone had taken it on themselves, probably in good faith, to discover some evidence of his or her own was unlikely to affect the outcome. The trial continued with a warning by the judge to the jury to stick to the evidence.
"But what if the information had been incorrect or the action hadn't been in good faith but because the juror was partial and seeking to influence the others? It's a bit of a mess right now," he said.
It is believed there is a case under consideration by the Scottish Criminal Case Review Commission after a juror alleged that a fellow member had admitted conducting internet research on the case.
Advocate Keith Stewart said: "The problem is really an updating of one which has existed ever since it became the norm for trials to run over more than one day, and it ceased to be the norm for juries to be sequestered in hotels during the course of the evidence. In such circumstances, there was no guarantee that jurors could not speak to people outwith the jury, or make unauthorised locus inspections. The only safeguard is the admonition of the judge against such conduct."
But is that enough? Paul McBride said: "If we can't control the internet, we may have to consider in the most serious cases bringing back sequestration of juries. First, we have to stop pretending this isn't an issue worth worrying about."