This is a post from an old blog.
For essentially five hundred years, the Anglo-American system of justice has been about trying to weed out information that was potentially biased.
You can't use what other people say to you without calling those people to the stand (with some specific exceptions), you can't use scientific information unless you can show it's valid.
It's an exercise in giving a few people who don't have strong feelings on an issue the power to decide that case, feeling that they would be in a better position to hear these "trusted" pieces of evidence and decide the matter based on them. Had a DWI ten years ago? Well, the jury might not find that out in a trial accusing you of theft. We don't want the jury colored by facts that may not paint you as the greatest character, but doesn't really bear on the case at hand.
Except no one told the rest of the world. Snap judgements? We got em.
Biased information? Boo ya. We're all over the place, in 140 characters or less. Arrest records, embarrassing Facebook photos, whatever you can think of, we can unleash it. It's one google away.
But that's really earthshattering to a jurisprudential system that has always placed a premium on the sanctity of the jury room, and to the facts that the judge decides should be let in.
In a recent Arkansas tort case , a defense attorney sought a new trial after a jury member tweeted, "So, Johnathan, what did you do today? Oh, nothing really.
I just gave away TWELVE MILLION DOLLARS of somebody else's money!"
Thirty-four minutes later, the same juror wrote, "Oh, and nobody buy Stoam.
It's bad mojo, and they'll probably cease to exist, now that their wallet is $12M lighter."
Not exactly the tone we want coming from someone who had just sworn an oath to listen to all the testimony before making his decision. And with all the information that a juror has after a day of hearing testimony, it is only going to get worse. Jurors will research the case, and essentially become detectives themselves.
What to do? I don't know, but I've got a few suggestions:
1. STRESS WHY THIS IS IMPORTANT. Look if YOU were on trial, wouldn't you want a judge telling you what facts are legally important to a case? It sounds great when you don't have anything to lose, but this is different.
It needs to be treated that way. Lawyers are going to have to come off of their Latin-tinged high horse and speak to people directly:
THIS ISN'T FAIR. THE JUDGE KNOWS WHAT INFORMATION YOU NEED TO DECIDE THIS CASE. THAT'S THE RULES WE ALL AGREE ON. WOULDN'T YOU WANT THAT IF YOU WERE HERE?
2. ALLOW MONITORED TWEETING. Let the jury tweet questions to the judge.
You could keep a record of it, and the judge could decide which, if any, of those questions to ask the witnesses. Let them be involved in some way that makes their courtroom experience less different from their real-life experience, and maybe people will be less likely to go searching on their own.
3. GIVE THE JURY THEIR OWN MULTIMEDIA CONTENT. Provide them with discs with all exhibits from both sides. Let them take and study the parts that all agree are worthy of study. Again, maybe by providing them with an outlet from now-idle hands, you can keep them from going so far afield.
Something's going to have to give. We cannot live in the information-rich world that we do and expect people to sit on their hands when they join a jury. But we must make sure that what we give them is valuable and within the spirit of the law. Those five hundred years have produced a pretty great system. We just need to make it last longer than this morning's tweet.
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