March 18, 2009

The Golden Shield of Law

Filed under: Politics, Tech — Chris @ 12:05 am

It sound like the legal system might be the next RIAA, doomed to stand athwart history, yelling stop:

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.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

“That’s the beauty of the adversary system,” said Professor Wellborn, co-author of a handbook on evidence law. “You lose all that when the jurors go out on their own.”

All of the lawyers or judges quoted in this article seem to think the question is: how can we make these people STOP?

The real question is: how are we going to adapt?

Instead of reinforcing the levees, let’s tear them down and let the wetlands do the work. Instead of “nobody looks at the Internet,” how about “everybody looks at Internet”? The jurors are encouraged to independently research the case. If a juror finds something she thinks is interesting or relevant, she has to present it to the judge so the lawyers can respond. Nothing gets cited in the jury room that hasn’t first been aired in open court. If that means the jurors have to work harder to look past prejudicial evidence, so be it. (It probably means the end of the exclusionary rule, but that was all over but they crying anyway.)

You think this idea is stupid? Give me an alternative, short of sequestering all juries five miles from the nearest cell tower.



  1. Just take away their cell phones. Simple.

    I am not entrusting my life (if I was on trial) to the internet, especially when my so-called peers are the ones doing the searching…
    Sorry, but I think allowing jurors to do their own sleuthing is idiotic, if we are to have a trial by jury. you might as well have an internet poll on whether or not you’re guilty.

    American Idol/Law and Order. That’s ridiculous.

    Comment by Zo — March 18, 2009 @ 10:10 am

  2. Are the jurors allowed to go home?

    Comment by Chris — March 18, 2009 @ 12:16 pm

  3. Sometimes they’re not. But even when they go home, the judge must tell them that doing their own research anywhere is a breach of their duty.
    It’s not like 20 years ago, they couldn’t do research at home, so just because its EASIER doesn’t mean that its any different then in the past.

    Can we start expecting people to be adults and act responsibly when it comes to things like this?
    Perhaps we’ve become such a lazy society that we can’t be bothered with rules that help protect us from random opinions in a court of law.

    Comment by Zo — March 18, 2009 @ 1:36 pm

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