Cross-posted from PrawfsBlawg

Like I said last time, my inner stoner hates jury duty. Another reason is that he’s a bit of a conspiracy theorist; he really bugs out when he thinks people in power are hiding something from him. So you can imagine how he’s been reacting to stories about jurors being dismissed for looking things up on Wikipedia and doing other online research. I tried to explain that it was about ensuring a fair trial, but he wasn’t interested. The way he sees it, for a system that supposedly thinks the jury is smart about ferreting out the truth, we sure don’t trust its judgment very much. And trying to stanch the flood of the Internet is the very definition of a losing battle. So, he asks, why not encourage the jury to do its own research?

It used to be, as Mark Spottswood observed last time, that the jury was self-informing. It was summoned because jurors actually knew what had happened; they came to court to give evidence, not to receive it. That system went by the wayside as jurors stopped having personal knowledge of events, and then the lawyers took over everything and the ideal jury shifted from being merely neutral to being actively ignorant. The modern treatment of the jury is honorific in theory but contemptuous in practice. Rules of evidence are designed to conceal from the jury any information that hasn’t been pre-masticated into flavorless cud by the attorneys; trial procedure reacts with horror to jurors who know something useful or have well-formed opinions on anything relevant.

The Internet age, though, gives us a chance for a do-over. Instead of trying ever harder to stuff blank-slate jurors into informational Faraday cages, how about we embrace the idea that jurors know what they’re doing? Jurors could ask questions of witnesses and do their own research. If they want to go to the crime scene on their own and take a look around, let them. If they need to consult a dictionary to figure out what the words the judge used in the jury instructions mean, let them. Honestly, if the jurors are surfing Wikipedia, they’re probably doing about as well, if not better, than they’re getting from at least one side’s expert witness. And really, if the jurors are going home at night and surfing Wikipedia, how often do you think we’re going to catch them at it?

Crazy, or so crazy it might just work?

Are there other countries that have legal systems that let/encourage the jurors to ask their own questions of witnesses? I seem to recall hearing there were (like other rich western countries), maybe.

Jurors could ask questions of witnesses

This used to be a common practice in English trials.

See for example:

Foreman of the Jury. My Lord, please to ask him whether there was no Quarrel, Bustle, or Struggling, between Annesley , Redding, and Egglestone, before the Gun went off.

The Trial of James Annesley and Joseph Redding for murder, 15th July 1742

Examined by a JUROR. Q. Are there any other means of knowing a forged note, besides those you have expressed

The Trial of William Jones for coining, 2nd December 1818

A Juror to MR. COPE. Q. What was the market price of this silk at that time - A.21 s. 6 d. and the duty is 5 s. 6 d. per lb.

The Trial of James Ford, William White, William Wells for grand larceny, 11th April 1821.

A Juror. Being in the drapery trade, I know something of silk handkerchiefs. I should say that this is quite a new handkerchief, and has never been washed.

The Trial of Charles James Dabinet for stealing a postal packet, 8th October 1912

Then there are cases like this:

Henry Hide of Mark-lane, wine-merchant, and William Smart , a Juror, gave the prisoner a good character.

The Trial of Medford John Spring for forgery, 16th May 1833

Having jurors “know something useful” is a good idea.

Then there’s having them surf Wikipedia.

That fills me with horror. Some of my worst Wikipedia experiences come from the disdain its culture has against people who know something useful, rather than regurgitating newspaper reports.

When you say “Honestly, if the jurors are surfing Wikipedia, they’re probably doing about as well, if not better, than they’re getting from at least one side’s expert witness”, it’s also true that “Honestly, if the jurors are reading the tabloid press, they’re probably doing about as well, if not better, than they’re getting from at least one side’s expert witness”. But I hope you wouldn’t derive then that they should read the tabloid press for trial information.

Regarding “And really, if the jurors are going home at night and surfing Wikipedia, how often do you think we’re going to catch them at it?”

Consider “And really, if the jurors are going home at night and reading the tabloids about the case, how often do you think we’re going to catch them at it?”

This isn’t an “Internet” issue. It’s avoiding a “trial-by-press” issue.

It’s not self-evident, at least, that the information jurors get inside the courtroom is significantly better than the information they’d get from reading the yellowist of the tabloid press. The adversarial system is a truly terrible way of sorting and presenting evidence. In most cases one side is trying to avoid the truth coming out, and in some cases, both sides are. You don’t have to like Wikipedia very much to think that jurors would do better reading it than listening to many so-called “expert” witnesses.

I don’t like the video idea, I think jurors need to feel engaged by the live process.

Aside from that: My one experience on a jury was on a small landlord-tenant case. A couple had been evicted and the wife was in tears at the trial. This was when local rentals were scarce and expensive; and as a tenant myself, I sympathized emotionally with the couple. But, my duty was to make the right logical decision, and there were various aspects to the case, even a history. The landlord couple and the tenant couple lived in the same building, they hated each other, and this was the third time they had been to court. The jury consisted pretty evenly of landlords and tenants, but none of us knew much about the relevant laws. We were just put in a room and we had no idea what to do, although we were all concerned about doing the right thing. As a group of total strangers, we didn’t even know how to organize ourselves. We were given no procedures for debating. All I can say is, I hope juries are better instructed for more important trials, or somehow know more.

Would empowering jurors to gain knowledge hamper the ability of attorneys to suppress evidence that was obtained illegally (or for some other reason that one can rightfully suppress evidence)?

Almost certainly, yes. But in my ideal world, we wouldn’t rely as much on the exclusionary rule: the government would routinely have to pay tort damages for illegal searches.