Suggestion: Don't Text Message Your Boss While On The Witness Stand

from the that-would-be-a-mistrial dept

Mon, May 18th 2009 8:11am — Mike Masnick

We recently wrote about a trial where there were concerns that a jury member was sending Twitter messages during the trial, but that's nothing compared to text messaging while on the witness stand. Yes, apparently a guy who was being questioned as a witness, used a break in the action (as the judge spoke to the lawyers in the case) to text message with his boss, who was also in the court room and at the plaintiff table. After being alerted to this by a "courtroom spectator," the judge declared a mistrial:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

These stories of technology in the courtroom seem to be coming up more and more frequently. It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in "constrained" areas.

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Filed Under: text messaging, trial, witness

25 Comments

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Steven Randal, 18 May 2009 @ 8:24am

That's one of the downsides of technology I guess! Nice story!
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- Mechwarrior, 18 May 2009 @ 8:44am
  
  Re:
  Id like to associate this kind of behavior with being a dumbass. Technology doesnt really have much to do with it. A dumbass will always be one, no matter what technology is present.
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Anonymous Coward, 18 May 2009 @ 8:45am

But... We were on a break
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- JT, 18 May 2009 @ 10:52am
  
  Re:
  LOL there's the comment I was looking for. :)
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- cvpunk, 18 May 2009 @ 11:02am
  
  Re:
  hahaha everyone knows it doesn't count if you are on a break.
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Anonymous Coward, 18 May 2009 @ 8:49am

I really don't see the problem. Judges and Lawyers have the mystifying opinion about the courtroom - So, he said something while under oath via txt... to someone who was in the courtroom listening to the entire thing.

Whats the big deal?

I think its disgusting that plaintiffs, jury's, Lawyers, ect, are not allowed COMPLETE information about anything they want to know about in order to make in informed decision - instead they are only allowed pre-chewed "Fit for your eye's information".

Let everyone have a cell phone, laptop, broadband, and access to Lexis Nexis while in a courtroom.
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- Baloney Joe, 18 May 2009 @ 8:53am
  
  Re:
  good thing you're not a judge, lawyer or jury.
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- Attorney Repped, 18 May 2009 @ 10:18am
  
  Re:
  If you don't see the problem with allowing a witness on the stand to comunicate with the named parties in a case you need to wake up. This is a conflict of interest of the worst kind. This is essentially allowing the witness to "check in" in order to make sure that he is answering the questions the way the plaintiff wants him to. Seriously, wake up! This is not about some clandestine denial of information. The courtroom is not the CIA, there is no need to know. All parties are permitted access to all of the information. The problem here is that the witness' text messages to the plaintiff were tantamount to wearing an earpiece and being fed the answers to the questions.
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- Dansmusings, 18 May 2009 @ 10:33am
  
  Re:
  If I understand the article correctly - the point here is that the plaintiff in the case was texting a witness while he was physically sitting on the witness stand - presumably to influence his testimony. So you think it would be OK for the mob boss to send a message to a witness as long as "everyone have a cell phone, laptop, broadband, and access to Lexis Nexis while in a courtroom." I don't think I want to take part in that justice system!
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Lickity Split, 18 May 2009 @ 8:52am

It seems as though very few people have really thought through the implications..."

of being a complete idiot when considering where it is appropriate to use the tech.
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whitemouse, 18 May 2009 @ 8:52am

They could ban technology like phones from the courts...
Yes that's maybe going too far...
But idiots are idiots and we live in a society where "Caution contents may be hot" stickers are on the side of coffee cups!
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Mike C., 18 May 2009 @ 8:56am

Not too switf...
Maybe I just watch too much TV (Matlock, Perry Mason, etc), but since when was the witness ever allowed to talk (e.g. communicate) with anyone except the court officers. In other words, they could talk to the judge, the plaintiff and defense attorneys and the bailiff, but not to the actual plaintiffs, defendants or court room spectators. They were essentially "on their own".

From the article, this is not the first time the plaintiff has been caught doing this either. Sounds like someone needs to address this issue with him.

As to the subject of technology in the courtroom, I believe you have to allow cell phones for non-participants, but have a solution for jurors, witnesses, plaintiffs and defendants. Perhaps something as simple as depositing them with the bailiff at the beginning of the day and retrieving at the end. Of course, to handle "emergency contact" issues, you'd probably have to have a dedicated phone in each court (or something similar). I do agree that a plan of some kind does need to be created and implemented soon.
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- MiamiMark, 18 May 2009 @ 9:12am
  
  Re: Not too switf...
  Just a note on phones in Court... many courts don't let cell phones in the building.... e.g., the Southern District of FL requires all non-lawyers to check them at the Ct. House door.
  
  If I get more time today, (and no one else has done it) I'll address the very big problem raised by AC of allowing access to any/all information during a proceeding.
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  - David Lee, 18 May 2009 @ 12:06pm
    
    Re: Re: Not too switf...
    "If I get more time today, (and no one else has done it) I'll address the very big problem raised by AC of allowing access to any/all information during a proceeding."
    
    Please do, MiamiMark.
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Anonymous Coward, 18 May 2009 @ 9:14am

Did this guy think he was Ross on Friends? "but, we were on a break"

Yeah, Rachel didn't respond to that one either.
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Dave, 18 May 2009 @ 9:52am

ah, excellent
Thank you for today's laugh. There are no bounds to the extremely stupid use of electronic devices nowadays. Comedic gold!
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Potato Head, 18 May 2009 @ 9:54am

Well...
I mean, they were on break...
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scott, 18 May 2009 @ 10:13am

What difference does it make?
These two have been talking before, during and after the trial (oh sure, the judge actually believes they aren't - he's the only one). So exactly why is it an different that they are now talking? None. If they hadn't talked then they would have talked at the next lunch break, after the day's trial, etc. It's all a ruse to presume the courtroom is some kind of "sanctified" place. It's just a room with a bunch of people sitting in it being people. Nothing else. For the judge to declare this is "outrageous" shows how over-inflated his ego is that he believes he is somehow a god that can make people behave differently. Laughable.
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- Anonymous Coward, 18 May 2009 @ 10:51am
  
  Re: What difference does it make?
  Reference above comments for realization on how stupid your take is. Have a nice day.
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Ilfar, 18 May 2009 @ 10:49am

Make them pay?
I say if someone causes a mistrial, make them have to pay court costs.

I don't understand why, if the they aren't allowed to use them, they're still allowed to carry them into the building...
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Anonymous Coward, 18 May 2009 @ 10:52am

All he had to tell the judge was "It's for the Children!" and he would have allowed it.
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Matt T., 18 May 2009 @ 1:14pm

Can he even have the phone?
Coincidentally, I went to court today to get my driver's license, and they don't let you bring any phones into the courtroom to begin with. It's surprising that this guy was able to get that far with it.
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Anonymous Coward, 18 May 2009 @ 4:59pm

It's different in different courts. As said above, some make you check them at the door, some don't. But every court room I've ever been in says you can't actually use them, and I've seen judges stop everything if they see somebody using a phone.

A courtroom IS a "sanctified" place, as it should be. It's a place where people liberties get taken away, with very specific rules on how to do that. This kind of behavior is indeed an incredible violation of everything the court stands for. I think both parties should have gotten worse for it. In a courtroom, the judge IS god, what (s)he says goes. Yes there's bad judges, but (from this story) not this one.
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Daz, 18 May 2009 @ 8:14pm

If only...
"very few people have really thought through the implications of the many channels of communication that every individual now has with them"

Few need to though, just the law & policy makers would be enough!
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SunKing, 19 May 2009 @ 8:08am

Nursery stuff...
Oh come on now! As if they didn't know it was wrong to communicate. The technology angle is irrelevant and doesn't change a thing. It's as plain as day! They were trying it on, plain and simple. When collared, red handed, the excuse was.....brrrrrr *drum roll* "we were on a break". L.M.F.A.O. Seriously.

This is something a 6 year old would come out with. And about as transparently blatant too.
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