Ernie the Attorney posted an interesting (as usual) entry yesterday regarding another unexpected effect of the internet’s incursion into our daily lives. In this case, the internet is affecting one of the cornerstones of our legal system: the impartial jury. As Ernie says,
Ernie speculates that jurors might have always been curious, but the print and broadcast media can’t cover every single trial. It was most likely the inaccessibility of information which kept jurors from doing their own research. But, with a broadband connection…
He also cites the “increasing prevalence of multi-day trials”*, where the jurors go to their homes at the end of the day with an admonition from the judge not to talk about the case. I suspect that it is the rare juror who keeps a spouse or a loved one in the dark about the events of the courtroom. It is even easier — and less likely to bring a scolding from a conscientious spouse — to type a defendant’s name into the Google toolbar.
But the most important point in this article is the observation that “When faced with a new disruptive situation, most organizations (and most people) don’t try to gain insight; they try to control the problem.” This is especially true when we are talking about the law. Congress is trying to control the spread of pr0n by restricting public access to nearly any material not suitable for minors. The Justice Department is trying to control the use of encryption on the internet. RIAA and MPAA are using legislation to try and control what their listeners can and can’t do with music and movies. None of these actions are enjoying great success. (Thank heavens!)
Meanwhile, a company such as Apple, by approaching its customers without heavy-handed restrictions, controls and caveats sells 1,000,000 songs from its new music store in one week. I don’t have firm numbers, but I am certain that this probably surpasses the entire download history of the major labels’ iron-fisted music “services”. There are other similar successes: in the open-source software arena, companies are making money selling service and support for freely available programs; Cory Doctorow’s novel “Down and Out in the Magic Kingdom” is currently ranked 4,481 in sales at Amazon, despite being freely available for download on the web.
Apple and Red Hat and Cory D. are certainly taking risks in jumping into these forms of business ventures, but what they are risking is their own fortunes. The situation with curious jurors is different, in that the risk is borne by the parties to the trial. It is the job of the attorneys and the court to limit the universe of knowledge about the parties to the narrow sphere of the issue at hand; lawyers are required to critically establish the veracity and reliability of all sources of evidence. The web undermines this because there are no filters between the keyboard and the rest of the world.
So, how can the courts relinquish control over the jurors’ research, while still maintaining the broadly-constructed rules for protecting defendants? As in so many other fields, it may be necessary to stop relying on “secrecy through obscurity.” Perhaps opening up all the data to the jury on specially-constructed websites will be the solution to incomplete or biased information. Perhaps judges and juries will deliberate together — the judge acting as an expert in the law, while the jury acts as the hand of justice. Perhaps we will have to rethink the voir dire process, since, in a highly networked society, the only people uninformed enough about cases will likely be those people least desirable for jury service.
I’m glad Ernie brought this up, and I hope its the beginning of some serious thought and discussion by the legal profession.
*I’m curious about Ernie’s statement about multi-day trials: are they truly on the increase? Is there research on this topic, or is it based on Ernie’s own observations?
