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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