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It's A New Age For Trial/Witness Prep

What technology giveth (in terms of ease), technology taketh away.

Technology was supposed to make trials and presentations easier. And in many ways, it does. But it also has this nasty habit of causing problems. Big problems. Attorneys have already adjusted to MySpace and Facebook and the like. We not only use them to investigate defendants, but we have to make sure that our clients are diligent about not posting things that will hurt their cases. And I’ve previously posted about the problems that are occurring with jurors using Twitter or the internet to research or communicate about cases.

But this morning I read something that I had not yet considered. A Miami judge declared a mistrial after a witness was receiving text messages while on the witness stand. Not just any text messages — text messages clarifying what the witness’s testimony needed to be. While all of the attorneys were at the bench for a conference, the plaintiff’s COO took the opportunity to text the witness with suggested amendments to the witness’s testimony.

After someone in the courtroom passed a note to the defense lawyer, the deed was discovered. Needless to say, the judge was not happy.

Before that, Silverman had engaged in a heated exchange with Toledano.

“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.”

I suppose the lesson for all of us is to be constantly mindful of the way technology can affect our jurors and our clients and to include instructions for those things that seem even basic.

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