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September 11, 2010

Should we embrace and even enhance the prospect of "Jury 2.0"?

The question in the title of this post is inspired by a new article, which is titled simply "Jury 2.0" and available here, authored by Professor Caren Myers Morrison.  Here is the abstract:

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial.  But in the past few years, such cases have increasingly been making headlines.  The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention.  This article seeks to focus legal discourse on this under-examined phenomenon.

While the media have characterized this issue as little more than a new variety of juror misconduct, that description may be unnecessarily reductive.  This article argues that juror attempts to gain information about the defendant and about the law may not reflect misconduct so much as a misplaced sense of responsibility to render the “right” decision. These efforts might also be a signal from jurors that they are chafing under the restrictions of their role.

The modern conception of the jury as passive and uninformed replaced a more active body envisaged at common law and by the Framers.  To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This article argues that we need to rethink the jury’s role for the 21st century and restore some of the jury’s active engagement in the process of fact-finding.  The jury that may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears.

On a somewhat related front, I found of great interest this new article from the New Jersey Law Journal, which is headlined "N.J. Court OKs Googling Jurors During Voir Dire."  Here is how it begins:

Now that New Jersey courtrooms have Wi-Fi capability, trial lawyers with wireless laptops have a distinct edge: the ability to Google prospective jurors at the counsel table.  And an appeals court has given its blessing to the practice, reversing a trial judge who told a lawyer to disconnect lest he gain an unfair advantage.

"That [plaintiff's counsel] had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field,'" the court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.  "The playing field was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it."

September 11, 2010 at 11:08 AM | Permalink


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Given that, as Supremacy Clause is fond of pointing out, knowledge of the defendant and even the dispute by jurors was no great hindrance to jruy service for those of the founding generation, perhaps the modern phenomena should simply be viewed as restoring historical balance.

Allowing adversaries to decide which facts are important to the exclusion of all other facts may well have run its course.

Posted by: Soronel Haetir | Sep 11, 2010 11:23:21 AM

The jury is a methodology, like timing a car with a radar gun. It must be proven accurate. Its management must be standardized under the edict of the Equal Protection Clauses. Like a radar gun, it must be maintained, calibrated and retested for accuracy every day.

Unlike the radar gun, this tool is used by the lawyer to put people to death, and to transfer $trillions, and to have untold but important effects on the economy, the culture and the behavior of the public.

How can it be improved?

1) Selection should reflect statistical principles. If it to represent the population at large, random selection from the entire population is essential. That means, no one can get out of it. And the selection is random.

2) Stop excluding people with knowledge either of the subject matter or of the parties. If you had no recordings, having a juror who walked the boundaries of the property 10 years earlier at the time of transfer is invaluable in a property dispute. Nothing has changed. If you have someone who ran with the defendant and knows all his secrets is OK to have on the jury. Why do doctors' wives have to be forced off in a medmal case. Her bias could go either way, and the risks cancel each other.

3) Only the first secret ballot represents a valid finding. Subsequent ballots represent the opinion of a big loudmouth bully and the desire of the rest to just go home. There should be one ballot, and a supermajority requirement reflecting the burden of proof certainty.

4) Stop the slavery. Pay people their standard daily earnings, up to some high maximum.

5) Stop the hobbling of the jury. Allow note taking. Allow questioning of witnesses by juries, for example, they may want to say to an expert, "Doctor, we have no idea what you mean. Could you rephrase your opinion in simpler language?" Or would lawyers prefer they keep that feeling to themselves?

6) Allow the strengths. They have the wisdom of the crowd. They have balance. Group think and pressure is where extreme views get polished, and become less extreme.

Posted by: Supremacy Claus | Sep 11, 2010 11:18:47 PM

Lawyers have a professional duty to Google, at this late date. The lawyer failing to do it is committing legal malpractice.

Posted by: Supremacy Claus | Sep 11, 2010 11:25:56 PM

hmm he was doing good with most of it. but this statment shows he has no clue what he's talking about at least about the founding fathers!

"When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial."

Sorry to break it to him but when the jury was created most people in most towns in this country KNKEW EVERYONE there and KNEW most of their business .....like the old saying "ain't no secrets in a small town"

The jury was created to PROTECT the defendant from the Govt! They would know him/her and know pretty much how you had lived your whole life to the point suddenly the govt was after you! At that point the jury would be able to look at the defendant and AT THE SAME TIME look at the law itself.

Posted by: rodsmith | Sep 12, 2010 1:49:31 AM

If you are interested, I've also discussed some of these issues on a podcast at the Mercatus Center at George Mason University, http://surprisinglyfree.com/2010/09/13/caren-myers-morrison-on-jury-2-0/. One issue that makes it difficult to simply go back in time to the medieval village model is that so much of the information on the Internet is erroneous, misattributed, or even malicious. So "knowing" the defendant because he was a neighbor is not exactly the same as reading everything about a person on the Web.

Posted by: Caren Morrison | Sep 13, 2010 9:49:44 AM

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