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  • Without a net: Judges tell jurors with smart phones, "No surfing allowed"

    According to the New York Times, jurors around the country have been triggering mistrials by using their iPhones to research the cases they’re deciding, or worse yet, by Twittering trial updates. Judges traditionally instruct jurors not to read about or discuss the case outside the courtroom. Now they’ve added prohibitions against surfing or talking about the case online as well, because more and more are googling plaintiffs and defendants and the finer points of the law on their web-enable cell phones, or posting trial trivia on Facebook.

    It won't be long before Law and Order runs an episode on this new kind of jury tampering – L and O's unaccredited but fully-functional Hudson University School of Law has already worked getting juries offline into its curriculum – but real-life attorneys fear that web-savvy jurors are undermining the criminal justice system and they want the internet out of court.

     Hudson University Seal

    All the L1's at Law and Order's Hudson Law School now have to take a required online course in how to keep the jury offline 

    One law professor, apparently outraged that jurors want to learn as much as they can about the issues they're supposed to consider before actually reaching a verdict, insisted to the Times that "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." And the author of a legal textbook groused, "You lose all that when the jurors go out on their own."  

    Fred Thompson as a Law and Order D.A. 

    No surfing in the jury box

    Apparently jury panels are supposed to forget everything they know when they enter the courtroom door. But the idea that a juror is a tabula rasa – that's Latin for an unformatted disk – is the real fiction here. I'm not a lawyer, and I don't play one on T.V., but it seems to me that as deep as we are into the information age, it's unrealistic to expect to find twelve ignorant people whose knowledge consists only of what the judge and the lawyers tell them. That would hardly be a jury of one's peers.

    Yes, judges need to instruct juries on the law or tell them what they should and shouldn't consider in reaching their decision. It even makes sense to order jurors to stay away from news stories about their trial, particularly when the case is controversial, and to refrain from talking about it with others in order to resist bias and prevent the leaking of sensitive information. But telling a jury panel used to spending much of their day online to go without a net in court seems both unrealistic and wrongheaded.

     Antonin Scalia waves his hands

    And speaking of building a firewall around the courtroom . . .  

    Jurors are supposed to keep an open mind, but that's hardly the same thing as an empty mind. Judges, prosecutors and defense attorneys all have great latitude to research the case in point, reading, talking to colleagues, even paying experts to help them frame their arguments. Take away their Westlaw and their Lexis/Nexis accounts and they'd be completely helpless. 

    Surely a reasonable person – according to West's online law dictionary, "a hypothetical person in society who exercises average care, skill, and judgment" – can be expected to separate what they know from what they've been instructed to consider when rendering a verdict.  If they can't do that already, building a firewall around the jury box probably won't help them make a wiser decision.

#1
cats22@stny.rr.com Mar 19, 2009 9:17 am

Part of the problem stems from what you expressed in your last paragraph, featuring the words "what they know".

As I understand it, the rules of (jury trial) law want all jurors to have _the same_ information,as presented by the opposing sides and the presiding judge. When one or more jurors gets information from elsewhere, that assumption is defeated.

That's one issue. Another harks back to the concept that "a fool is his own lawyer" -- the inferences including the idea that one is likely to have blind spots about what's in his/her own best interest and even matters of 'truth', and that being 'self taught' on the legal points of even one specific case is a (little knowledge being a) dangerous thing.

But the long-term prospects, or relatively short-term ones, anyway, of 'solving' this 'surfing while jurying' issue are not promising.

Books, as I said 20 years ago about on-line affairs, will be written.

#2
cpn004@yahoo.com Mar 19, 2009 12:36 pm
In one sense, I agree. In another I don't. Most of us, when we're ill, we go see a doctor, a specialist in diagnosing illness. We might do our own research, but still we rely on the doctor for an informed opinion on what we've found. However, if we reject the doctor's advice, we affect only ourselves. Even so, we cannot legally self-medicate, at least with prescription drugs. Not even well-informed doctors are supposed to self-medicate. However, in the case of a courtroom, our rejection (or non-notifying) of informed law specialists leaves us without an expert-informed opinion on our research and it affects others besides ourselves.

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