Tuesday, February 9, 2010

Jurors, technology and confrontation

Mike Masnik of the Techdirt blog asks why shouldn't jurors be allowed to do a little online research outside the courtroom. His view is since jurors come to the table with their outside experiences, biases and prejudices, what harm would it do to allow the smart ones to use a little technology to aid their decision-making.
Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?
So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?
First off might be the oath that jurors in Texas take before any evidence is presented. Texas Code of Criminal Procedure Art. 35.22 states the the court shall administer the following oath to the jury:
"You and each of you do solemnly swear that in the case of the State of Texas [against the defendant], you will a true verdict render according to the law and the evidence, so help you God."
The evidence refers to any pictures, photographs, charts, graphs, tangible items and testimony introduced and admitted at trial. There are plenty of items that might qualify as evidence that a crime was committed, but are deemed inadmissible as a result of the law.

To allow the use of technology by jurors would also gut the Confrontation Clause of the sixth amendment. The defendant in a criminal matter has the right to cross-examine the witnesses brought against him. Cross-examination can be used to attack the witness' account of the event or to challenge the assumptions or bases of a scientific opinion or to impeach the witness. If Joe Juror googles the defendant on his computer one night, the defendant is robbed of his right to challenge the information.

Here is one of the more interesting comments to Mr. Masnik's post:

Wrong argument Mike

by Just Joe

Mike, I normally agree with a lot of what you write about. In this case I think you've gone the wrong way.

Juries are like an antiquated business model. Choosing 12 random people to make decisions that can affect the next 5-50 years of someone's life seems like a poor way to do things. I don't care so much about the tech they have access to so much as I care who these people actually are.

Shouldn't we think more along the lines of choosing professional juries? People who are experts in given fields and can make informed decisions about the evidence presented.

I just don't think choosing 12 people who were not bright enough to get out of jury duty is the best way to go about things.

Who would serve on the jury for a DWI case? A kiddie porn case? A rape case?

Thanks to Dr. Dennis C. Elias, Ph.D. for spotting Mr. Masnik's article.

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