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Wednesday, March 18, 2009

Trial and Error 404

How do you stop jurors from inappropriately discussing a case when all they need to do to communicate with the outside world is send a tweet from a Blackberry?  How do you keep jurors from conducting their own research into a case when they have the World Wide Web at their fingertips, 24/7?

Judges, prosecutors, and defense attorneys are confronting these questions.  Some cases have ended in mistrials because of jurors using the internet to gather extra information on plaintiffs or defendants or even lawyers and judges--information that for one reason or another had been deemed inadmissible or prejudicial.

One of the bedrock premises of our judicial system is that prosecution and defense present their evidence, and the jury is allowed to consider only that evidence when deliberating.  For better or worse, though, it is becoming more and more difficult to enforce this prohibition in the internet age.

For better?  Maybe.  Sure, we can all imagine "for worse": A juror basing a decision on an unvetted Wikipedia entry claiming the defendant's hobbies include panda vivisection; a serial killer acquitted because his Mom zaps off Jpegs of our modern-day Bundy as an adorable toddler chewing the ears off his stuffed rabbit.  These outcomes would be undesirable and should be scrupulously guarded against.

But the fact is the technology is here.  It's not going away.  Couldn't the easy availability of excesses of information be useful to the judicial system?  Indeed, many of the jurors who have engaged in this illicit websurfing are actually trying to do their jobs better.  They want as much information as possible before making what may be life and death decisions, and they believe--rightly--that the courtroom adversaries are not giving them as much information as they could possibly get.

Isn't it at least worth considering a different approach: Encourage jurors to conduct research.  Not in some private, surreptitious, and/or scattershot way, but as a group, with attorneys present.  Jurors could actually ask attorneys and judges questions.  If information is deemed unverifiable (as in a prejudicial Wiki entry), the judge could disallow it and explain why.  On the other hand, if valuable information comes up, then the burden falls on the attorneys to explain why it should or should not be entered into evidence.

Is an old-fashioned judicial model that implicitly values the ignorance of its deliberators really the BEST model or just one to which we've become accustomed?  If a trial is a process of truth-seeking through the careful analysis and interpretation of facts, isn't it better to acquire and consider as many facts as possible?

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