Beardsley, Jensen and Von Wald
A Google search by a prospective juror was the issue in a recent decision from the South Dakota Supreme Court. It's one example of how the internet is impacting our legal system.
In Russo vs. Takata Corporation and TK Holdings, Inc., 2009 SD 83, a sixteen-year Natasha was driving her mother's 1996 Geo Tracker with her then ten-year old sister, Jessica. While traveling on Highway 385 near Hill City, the vehicle crossed the centerline, traveled back into its lane of traffic, slid sideways off the shoulder of the road and rolled almost three times down a steep ravine before hitting a tree.
Natasha was thrown across the front seat and partially ejected from the vehicle, being pinned under the Tracker. She died at the scene. Jessica was thrown into the back seat but was not physically injured.
The mother of Natasha and Jessica - the Plaintiff - brought suit against General Motors Corporation, Suzuki Motor Corporation, and the seat belt and buckle manufacturer Takata Corporation and its American Subsidiary, TK Holdings, Inc. She claimed both girls were buckled into their seat belts before the crash and that the seat belts simultaneously unlatched due to inertial forces.
Plaintiff claimed that the seat belts unlatched because they were defective and unreasonably dangerous and negligently designed. The manufacturer defended on the theory that the girls did not buckle their seat belts before the crash and that Natasha failed to maintain control of the vehicle.
Prior to trial, prospective jurors received a summons and a questionnaire. Prospective juror Flynn did not recognize the Takata name so wondered "what they did." Flynn conducted two Google searches: (1) his first search term was "Takata" and it took Flynn to its home page that revealed it "was a seat belt and airbag manufacturer;" and (2) the second search term was "TK Holdings" which revealed it "was the American subsidiary of Takata."
During jury selection, prospective jurors were asked by plaintiff's counsel whether they had ever heard of Takata before arriving at court. No one, including Flynn, responded positively.
Liability for the accident was hotly contested. There was evidence presented regarding whether Takata had notice its seat belts were defective. The evidence included cases of four other drivers who claimed their seatbelts had come unbuckled during accidents, and the fact that ten other lawsuits had been filed against Takata.
During deliberations on the issue of whether Takata had notice of any defects prior to this incident, juror Flynn told another juror that he had conducted a Google search and learned that Takata manufactured seatbelts and airbags. Flynn also said he did not find any lawsuits during his search. Another juror told juror Flynn that jurors were not to take into account outside information. Flynn tried to retract what he had said, but attention had been drawn to the exchange. Three other jurors heard the exchange which lasted three to five minutes.
After another one and one-half hours of deliberation, the jury reached its verdict for the defense. Nothing was said of the Google search exchange when the verdict was read in the courtroom.
Later, after the trial, plaintiff learned of the Google search exchange by the jury and brought a motion for a new trial alleging jury misconduct. The trial court granted the motion. The 19-day jury trial - with all of the time, expense, and emotion that involves - would have to be redone.
Our Supreme Court agreed with the trial court's judgment that the Google search constituted "extrinsic information" - knowledge relevant to the facts in issue obtained by the juror other than through evidence at trial. It was not the kind of "general knowledge" jurors bring with them to the courtroom from their every day experiences.
The extrinsic information was relevant and prejudicial because there was "a reasonable probability that Juror Flynn's information, that there were no other lawsuits against Defendants, impacted the jurors' decision as to whether or not the product was defective and further, whether Takata had notice of any defects in the product." A typical, reasonable, or normal juror could have been influenced by Flynn's remarks.
The Supreme Court stated this was a "close case." The Court stated that it was not announcing a "hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict." Rather, the Court said it was deferring to the trial judge under the circumstances because the trial judge had the "distinct advantage of being present throughout the nineteen-day trial" to determine whether the information was "extrinsic" and prejudiced the jury.
What's the practical result of this decision?
Questionnaires to prospective jurors will likely include language advising that no information about the case or parties should be sought by any means, including computer searches. Lawyers will include questions about internet searches in their questions during jury selection. Instructions to jurors during a trial will probably be revised to instruct that internet searches about the case (parties and issues) should not be conducted during the course of the trial.
The goal is for the jury to make its decision based upon the testimony presented during the trial and the law instructed by the court. Jurors are instructed they can use common sense in reaching their verdict; but, they cannot go beyond the courtroom to conduct their own investigation into the issues they are to decide.