Set the Juries Free!

John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 17, 2009, at A1:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

And this is a bad thing? A juror who looks for other useful sources of information is taking her job seriously. She really is committed to ascertaining the truth of what happened. If lawyers and judges are getting in her way, then they’re the enemies of truth-seeking, not her.

Roll the clock back 800 years, and the jury was the group in the courtroom that knew the most about the case. They came, not to hear, but to speak. Take a case from Wiltshire in 1249. Ralph de Harpetr turns up dead in Haseleg Field. There suspicion that the Fugimar brothers, William and Nicholas, killed him. But the king’s judges have no idea whether William and Nicholas are the murders or not. So the judges summon a jury of twelve men from nearby Malmesbury, and the jury says, yes, we know all about it, they’re guilty. The whole point of a jury was that they were well-informed about the events.

Over the centuries since then, two things happened to make the legal system start treating jurors like mushrooms. First, the scope of social life outgrew the close social bonds of small rural villages in which everyone really did know everyone else’s business. Sometimes the jury would show up and they really wouldn’t the truth of the matter firsthand. That meant there had to be a procedure for telling them what happened. But once the legal system started taking on the role of informing the jury by presenting evidence, the second transformation happened: the lawyers took over.

Our modern rules of evidence, that whole “adversary system” thing—these are just inventions created by lawyers to make sure that they’re firmly in charge of the trial. Think about how much of the edifice of the modern trial is designed around ensuring that jurors remain ignoramuses: incomprehensible jury instructions, the objection system that shuts off relevant lines of questioning and tells juries to forget what they’ve just heard, criminal procedure rules that encourage defendants—the people in the courtroom with the best information about what actually happened—to stay silent, and, of course, jury sequestration. These aren’t glorious guarantees of individual rights; they’re procedural perversions that systematically hide useful evidence from the jury.

Once the trial was about lawyering rather than the truth, the jury was retheorized as an empty vessel, prized for its lack of knowledge. Any attempt at juror self-education threatens the lawyers, so of course they scream bloody murder when jurors actually care about getting it right. Ignorance is truth.

The iPhone juror isn’t—as They would have you believe—a grave threat to justice. She may threaten the usual ways of doing things in the legal system, but she’s advancing the cause of justice. The rise of Internet technology is making it much more possible for jurors to become well informed: about complex medical subjects (Wikipedia), about the bona fides of witnesses (Facebook), about the physical scene of the crime (Google Street View), and about so much else. We should celebrate this trend, which takes us back to the jury’s true roots, as the ultimate well-informed and participatory civic institution.

While I generally agree with you, one thing to consider is that the proliferation of sources also allows really bad information to become conventional wisdom. Imagine that a defendant is on trial for battering his wife. An anonymous online poster says, “I heard from my best friend’s cousin that he beat his wife every night!” This leads to a Wikipedia entry saying that “The defendant’s best friend heard that the defendant beat his wife every night.” And an outraged blogger cites Wikipedia to say that “The defendant’s best friend listened, night after night, as the defendant brutally battered his wife.” Thus does rumor transmogrify into an “eyewitness” account.

I’m sure that small villages weren’t immune to rumor and gossip. But it’s arguable, I think, that jurors drawn from small communities would be more likely to rely on personal observation or well-sourced knowledge than a juror today, who is more likely to be relying on the unauthenticated online testimony of complete strangers.

I agree with your view, but I think that is unlikely to be a favored view among lawyers.

A great deal of our modern conception of the legal system seems to me to be based on paying lip service to respect for the jury while harboring grave suspicions of jurors. Thus, you have the various contemptuous comments that lawyers make about juries awarding “outrageous awards”; that juries cannot be trusted to make decisions about capital punishment; that jury nullification should be disallowed and criminalized; that juries must be treated as mushrooms; etc.

There’s a negative feedback cycle going on too: the more juries are treated as mushrooms, the less likely that individual jurors will take initiative, causing more mushroom management. I’m surprised that these jurors even went as far as they did.

The question really is how do we preserve the good bits about the rules of evidence without embedding them, as we do now, in the institutional hands of the lawyers who are paid by the disparate resources of the litigants. Any thoughts?

I’m all for well-informed juries. But you assume that using Internet technology makes one better-informed or better able to ascertain the truth, and I don’t see much clear evidence of this. Perhaps using Internet technology allows one to more easily find support for and thus reinforce one’s existing biases. Personally, I don’t want to go back to the days when someone was executed just because “everyone in town knew he was no good.”

Plus, the original jurors were uniquely qualified to contribute their personal knowledge. Present-day jurors aren’t chosen because they’re the best internet researchers. If they’re going to be allowed access to random information to use as a basis for their decision, I don’t think it’s that horrible to want a central clearinghouse for vetting that information. A court may not be the perfect vetter, but it’s probably better than nothing.

James, you are very wrong here (assuming you are not kidding). You say the rules of evidence exclude relevant information. But the evidence rules exclude seemingly relevant information only if experience teaches that it is unreliable or if the law deems it privileged for important public policy reasons. The googling juror can readily learn that the defendant presently on trial was previously tried and acquitted of similar conduct (or perhaps suspected, but uncharged for lack of competent evidence), or that evidence illegally obtained was excluded to enforce the Constitution, or that a key witness has inflammatory and unpopular political views. The juror can pick up “expert” opinion lacking reliability, or inapplicable to the facts of the case for reasons overlooked by the amateur sleuth, and/or which may be highly biased on bases that would be revealed by cross-examination. The ideas that these rules are some sort of elitist power-play by lawyers against ordinary folks is mind-bogglingly baseless; the modern rules of trial and evidence are imperfect, to be sure, but hardly some kind of conspiracy against “truth.”

I’m concerned that letting juries search the case online would circumvent certain protections. What if there’s information that was excluded from the trial because it was obtained illegally, but it’s readily available online? What if the case revolves around an issue in which “common knowledge” happens to be wrong? Or heck, what if those close to the case edit Wikipedia entries or build sites that come up easily under certain search terms, designed to influence the jury?

Chiming in very late here, but as I learned my legal history, the adversary system arose long before the existence of lawyers or jurors and can be traced back to trial-by-combat, not to anything created by attorneys.

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