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.