Mistrial by Twitter


The Times has a story today about jurors who are increasingly using the web to do a bit of extracurricular research on the cases they’re hearing, facebooking and twittering the proceedings even as they are going on, and even using their knowledge of how they are about to decide civil suits to engage in a bit of insider trading. For anyone wedded to the ancient “rules of evidence, developed over hundreds of years of jurisprudence” — that is to say, almost all of us – this is a problem. 

I’m increasingly convinced that the single biggest sociological challenge of the next 5 to 15 years is going to be coming to grips with the information panopticon. Lawrence Lessig was warning a decade ago about the way a great deal of the freedoms and privileges we cherish, and the institutions that run our lives, actually rely upon a great deal of real-world friction in the transmission of information for their proper functioning. I’d go further and argue that the end of privacy in all its forms is a far, far greater threat to liberal democracy than the demise of the newspaper that has everyone (well, everyone in the biz anyway) typing away in a panic. The question is whether we can merely adjust, or whether we need to build some barriers to information flows into the architecture of our world. I’ve tried to argue for the latter, though I won’t claim any great successes. 

Anyway, to the matter at hand: One solution to google-happy jurors would be to sequester them all inside Faraday cages for the duration of every trial. That’s not practical. Another would be to screen out all jurors who know how to use the internet. Again, not going to happen. 

So where does that leave us? Is the ancient common-law tradition of the jury trial going to disappear, or will it adapt? How? Any legal minds out there want to help me out?

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Mistrial by Twitter

  1. There is, alas, no shortage of opportunity for creeps to game the system. But I would submit it was ever thus. The bulk of minor and major legal transgressions have / will likely never been / be caught and properly prosecuted. We put up with the cheaters because we expect most of us are not cheaters.

    Flaws and all, I think I will still opt for justice that includes a dozen of my peers who swore an oath, still idealistically thinking that for most of that dozen this still actually means something. Any other jurisdiction that metes out justice by other mechanisms is just way less… appealing.

    But I’ll stop there, because you were looking for a legal mind.

    • no, keep going. Legal, or just smarter than me on this. I’m really at sea on how — if at all — we should deal with this.

      • Just hold jurors in contempt of court if they are caught twittering. Am I being too simplistic?

      • We should deal with it by first acknowledging the Truth: that there is no such thing as an impartial decision and that every juror brings their own bias and knowledge to every vote and that jury trials are not the best way to ensure good decisions. The twittering and facebooking is just insider media coverage and so the easy solution is a gag order that specifically includes these devices. Big deal…it’s a no brainer. The problem of jury bias is not going away while there are juries.

  2. I don’t quite grasp why this is a new problem. Presumably jurors were never allowed to call up the newspaper in the evenings and chat about their deliberations. Why is the Internet different? Just take away their cell phones, iPhones, berries, etc.; and enforce the penalties for breaking their oath not to blab.

    Which is not to say that Mr. Potter’s main point isn’t very true and very important. E.g. once everybody has a few nude pictures of themselves, as it were, circulating on the Internetz, we’re going to have to reevaluate our standards of Purity.

    • Jack, most jurors are not sequestered. They have to promise to avoid any extraneous information about the case, and for the most part we have to trust them. The temptations are far more accessible.

      • Ah, thanks. Still, if people can’t resist temptation — and don’t dread punishment if they give in to it — we’re damned no matter what we do.

        Maybe the solution is to revert to the old practice of sequestering them without food until they reach a verdict? It would also help speed justice along.

        • It would help speed deliberation, surely. Would it tend to speed or derail justice, though?

          • I dunno, it seems to me you can have as much justice as you’re willing to pay for, i.e. our verdicts would be that much more just if trials were twice as long as they are now. So it’s a balance between justice and expense/promptness. In the case of twittering jurors, it’d be pretty open-and-shut to begin with, in terms of evidence, etc.; but generally I think you could cut back substantially on appeals etc. and not see a major decline of basic justice. I mean, why were trials so much faster 100 years ago? Our ancestors seem to have managed reasonably well with those.

        • The problem isn’t during the verdict stage, its the during trail stage. If a trial goes over days, weeks, etc. the jurors go home.

          My mother’s been on jury duty a few times. During trials she was very disciplined and stayed away from the papers, and any other local news broadcast on radio or the TV. She took her oath seriously.

          But even that was hard (especially for a 3 week trial, which one was).

          I can’t imagine the self discipline required for that, nevermind now that the Internet is all pervasive.

          • Ah, thanks. I clearly don’t understand the jury system!

            OK, I am now convinced, like Mr. Potter, that there is a problem here.

  3. Very simple. If they’ve taken an oath, or had been instructed by the Judge not to indulge in these types of activities, and they go against his/her specific instructions, hold them in contempt of court – fine and/or jail time.

    • Well, you’re right about very simple, Dot. Too simple. There is the little matter of enforcement. Which, I think, was Andrew’s point.

      • Well, a few 1-year sentences for contempt go a long way, no?

        • Yes, a long way to paralyzing the system. You’ve got to charge, do pleas, do bail, set dates, bring in more lawyers, hear evidence, all for a “sorry I misunderstood, milord…” Oh, and then there’s the mistrial do-over of the original case.

          But you’ve got to catch them at it first. Which, I will maintain, was (I think) Andrew’s original point.

          It may turn out that we will need to relax the rules about information obtained outside the trial, with instructions to specifically disregard it (I recognize that’s tough, even judges likely delude themselves if they think they can impartially unlearn something usually germane to the case).

          • Good point. In fact, let’s not enforce any laws – it does tend to paralyze the system.

          • “You’ve got to charge, do pleas, do bail, set dates, bring in more lawyers, hear evidence, all for a “sorry I misunderstood, milord…” Oh, and then there’s the mistrial do-over of the original case.”

            I have obviously not briefed you on my Grand Scheme to speed up the course of justice. In brief: no forced confessions, but no do-overs.

            Actually I thought contempt of court was pretty much at a judge’s discretion.

  4. Oh was it Andrew’s point? I guess I missed that part. So did the NY Times story – the jurors that were caught appeared to simply be dismissed.

    • My point — such as it was — was more that enforcement is impossible. Think of the comparison with the skyrocketing plagiarism rates in universities. Are students today that much more dishonest than students of 20 years ago? I highly doubt it. Sure, you could start enforcing the academic code of conduct and throwing them all out or giving them all automatic fails, and we could start holding all jurors in contempt. It would be just like the war on drugs, but instead it would be a war on information. And as I see it, the chance of success there is nil.

      People haven’t changed, but our informational environment has. Trying to shore up institutions build for one environment but which fail in the new one doesn’t strike me as that successful a strategy.

      • I’m not sure your university example is analagous. University students have a personal/economic incentive in cheating, and being ranked closer to the top of their classes. Jurors, in the circumstances described, do not.

        I don’t know what type of instructions these judges have been giving to their jurors, but if he read them the riot act, took more time explaining the seriousness of the offence, and the personal consequences of their actions, well, I for one would be less inclined to surf or twitter. A few well publicized cases/prosecutions may help.

      • Um… I think enforcement is completely possible. What happens to media organizations if they violate a gag order of the court? The same penalties could be applied to individuals.

  5. To focus on the jury – as anyone experiencing jury proceedings will attest, the ritual is flawed. Strong personalities hold sway over weak, stubborn adherence to conclusions reached in advance is common and the strongly held bias of one juror can infect the judgment of the rest. Adding the taint of wider information access through new technologies serves only to magnify existing imperfections.

    On close examination, jury trials look and play out like games of chance, with this latest twist a mere added variable.

    More important to any system of justice and governance is its continuing questioning of the means employed in ensuring fair outcomes. For example, does a high rate of incarceration indicate an efficient justice system, a failed jury system or bad laws?

    To shorten a long argument, let me suggest we need to take justice back – out of the hands of the few judges, lawyers and legislators – and place it in the forefront of our thinking. We need more awareness, not less, and we need more citizens involved, not fewer. Perhaps the “new journalism” will be in the vanguard, who knows.

    • A very successful Canadian civil lawyer told me the other day (and I’m paraphrasing) ‘you’ve got to be a complete idiot to get on a jury. If know anything, have an opinion, or a job of any consequence, you’re likely to get out of it.’

      He was remarking, largely, on his experience of the American system – since we rely less on jury trials, especially for civil matters, in Canada.

      A lot of more serious criminal matters are still decided by juries, though, and I think there are probably a lot of lawyers who would argue it’s important that those jurors get no more information than the advocates on each side give them, within the strict rules of evidence. That’s how our system is supposed to work.

      But you have to remember that even though the rules of evidence are set up to restrict the information that goes to the jury, what we’re really interested in is how the information gets used. We prevent the jury from getting certain evidence because we’re worried it will be given undue weight, will be used to draw an improper inference, or even become a waste of the courts time. In other words, we make sure juries don’t get certain information because – even with a judge’s instruction – we don’t trust them to use it properly.

      Contrast that with judge only trials, where a judge typically sees a great deal of inadmissible evidence, but is trusted to use it properly.

      One thing that might allow us a better idea of whether jurors are getting information off the web, and more importantly how that information is being used in deliberations, would be to amend the rules to authorize live jury studies (which can be done in the US, but not in Canada).

      • Can you explain to the court the meaning of “live jury studies”?

  6. A study of an actual jury, in an actual case, as it makes its actual decision.

    As opposed to ‘mock jury studies’ which involve watching a fake jury, in a fictional case, make a decision they know will not have actual consequences.

  7. “The question is whether we can merely adjust, or whether we need to build some barriers to information flows into the architecture of our world.”

    By “we” I suppose that you mean “the government” and by “the government” you mean “elites” … by “information flows” you would seem to mean “free speech” and by “free speech” you mean “thought”. But I have to admit, totalitarianism sounds a lot nicer the way you put it.

    A couple of questions … if you think that “our global architecture” needs elites to control what people say and think, then how were you planning to prevent these elites from abusing this tremendous power for their own benefit? Do we need super-elites to control the regular elites? And where do the super-elites get off? If you were thinking that media can be the watchdog and that democratic elections can dislodge the elites who abuse their power over speech and thought, then how were you thinking that this could happen, when the elites who need to be removed actually control what is in the media and what is allowed to be communicated during election campaigns?

    “we make sure juries don’t get certain information because – even with a judge’s instruction – we don’t trust them to use it properly.”

    In other words, allowing ordinary people the freedom of information and thought interferes with elites’ decisions as to what constitutes justice and it must be rigorously suppressed. Correct?

    • I’m going to ignore the first part of what you said for the most part, since I think it was directed at Andrew anyways. Except I will say I think you’re trying to argue we have to burn down the forest because we don’t like a few trees.

      On the point relating to the quote from my earlier post, the short answer is no, not correct.

      To get to the long answer, I have to start by defining the scope of what we’re talking about – because we wouldn’t want anyone carelessly broadening the conversation or anything.

      In the Canadian context, what we’re talking about when we discuss juries are criminal trials – and then, usually only the more serious criminal trials. The vast majority of civil matters that reach trial do so only after a long procedure of discoveries, motions and applications that are decided by judges and masters, and even then are usually adjudicated by a judge sitting alone. Criminal offences are divided into categories, and the less serious ones are decided by provincial court justices sitting alone, of the serious (indictable) offences there are some that will still be in the exclusive jurisdiction of the provincial court (i.e. no jury), some that will be subject to an election of the accused (they chose the level of court, and whether they want a jury) and a very few that must be tried by a judge with a jury at the superior court level (homicides, for instance).

      The basic principles that underlie the rules of evidence are that in order to be admissible, it must be relevant, and the probative value of the evidence should outweigh any prejudicial effect it could have. In a criminal trial, when we talk about ‘prejudicial effect’ we’re normally talking about the prejudicial effect against the accused person. I would submit to you that in the vast, vast majority of criminal proceedings the accused person is not an ‘elite’ in any sense of the word.

      So when I talk about the rules of evidence being set up to prevent the jury from drawing improper inferences, or assigning improper weight to certain types of evidence, that usually means they’re set up from preventing the Crown from convicting an accused without fully discharging their burden. In fact, most rules of evidence are relaxed in favour of the accused (who has much more freedom to introduce evidence on things like character, for instance).

      The rules are set up because the only way we can be sure that the jury doesn’t misuse the evidence is by preventing them from seeing it at all. Juries aren’t required to explain their reasons for making a decision (in fact, they’re barred from doing so), and are generally newcomers to the legal process. Judges, on the other hand, have to thoroughly explain their decisions and can be assumed to know the relevant law – i.e. the types of unfair inferences that should not be drawn, and the appropriate weight to give to evidence. When they apply the law improperly, they’re also more open to appeal.

      Now, if you’ll look at what I said above, what I’m actually saying is that if we accept that there is only a problem with juries getting information if they’re using it in an improper way, then we don’t actually need to filter that information unless they’re using it unfairly – and by unfairly, I mean in favour of the prosecution – the Crown. The ‘elites’ in this scenario.

      The problem remains, though – we don’t know how juries are using the information they get from twitters and googles and wikipedias.

      A practical example –

      Say a juror in a murder trial goes online and looks up information on the case they are trying and finds a graphic picture of the murder victim and a newspaper article listing off the convictions of the accused. The picture may move them emotionally, and they could conclude that such a violent act screams out for punishment. Knowing the accused has been convicted of crimes in the past may lead them to conclude that he (it’s usually a he) is just the type of awful person who would do such a thing. This could mean a potentially innocent person is convicted on the basis of an emotional response, and a character judgment. On the other hand it might not. The problem is we could never be sure.

      • How can people be expected to obey the law, if they are deemed to be too ignorant (or stupid) to understand its complexities when called to serve as jurors? Sounds like a con game.

        I think that legal complexity is not intended to protect the public from the state, but is instead intended as a kind of job creation and preservation program for lawyers. Not just for lawyers but for police, prison guards, parole officers, etc. for the simple reason that the more complex the law, the harder it is for people to avoid breaking the law, and the more of them will be caught up in “the system”. It’s also a good makework project for bureaucrats, social workers, politicians, etc. as they are urged to “do something” to ameliorate all the corrosive effects on society of the overly complex legal code. In other words, complex laws are pro-state and not pro-liberty.

        This is a problem with any monopoly – those who hold the monopoly have a motivation to increase the circumstances under which their customers will be forced to buy their services. When you hold a monopoly on the arbitration of property disputes (and assault/murder/etc. are simply property disputes involving one’s body), it is in your interest to write the rules in such a way that it will tend to increase the number of times you are required to step in as arbitrator, and which will make the arbitration proceedings as long, complex and costly as possible.

        Regarding the issue of jury sequestration, blocking electronic devices, anti-twitter laws, etc. this makes jury duty look more like a prison sentence than an essential part of the maintenance of liberty. It’s telling the public that their only role in the justice system is either as victim or as prisoner, or some kind of combination of the two.

    • Yeah sure dude. It’s one short step from a judicial publication ban on IDing rape victims to the stinking ovens of Auschwitz.

  8. I can’t help but wonder whether this is a case of more jurors seeking outside information, or of more jurors getting caught. In the past, how was one to know if a juror went home at night and got information about the case from the newspaper or on television, unless they confessed? It seems to be our rampant need to comment about almost everything online that is leading to more of these incidents being detected.
    I also suspect that many people are seeking outside information less from their desire to cheat than by a general feeling of inadequacy in their ability to judge important legal cases.
    The solution? We could always reinstate trial by ordeal :-)

    • Darn you Wotcher, you beat me to it.

      There is a problem if jurors are twittering, twattering or blathering online while in the courtroom. That’s reasonably simple, confiscate all electrical devices or faraday cage the whole courtroom (the courtrooms I’ve seen are all windowless rooms, so this isn’t as hard as it sounds).

      The problem, if it exists, is outside the courtroom. As wotcher points out, is this really new? The downside of online communicating is, many people do it under their real identity, and thus are easier to catch.

      Someone that reads or listens to the news or other commentary, online or through traditional methods isnot caught. Before the advent of online participation, how many jurors had their opinions formed during a trial by outside information that was available to them that they did not reveal?

      We don’t know, do we? I submit that is the real problem. Not that people acccess information online, but whether they do it at all, and how much they weigh it vs. the testimony in the courtroom. Unless we can quantify that, this whole discussion about twitter is moot.

      (This comment submitted by Blackberry from the lounge at the Calgary airport. My apologies for any errors in spelling and/or grammer)

      • Sorry Catelli. It must have been my rampant need to comment.

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