Wednesday, November 24, 2010

Does social media threaten the jury system?

The top judge in England and Wales, the Lord Chief Justice, Lord Judge (I'm not making this up) has added his voice to those concerned about the risks social media poses to the jury system.
"We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged." -- Lord Judge
He noted during his lecture that some jurors in a rape case used the internet to conduct research during the trial. He also pointed out an incident in Manchester where a judge had to dismiss the jury and restart the trial because a juror posted details of the trial on her Facebook page and asked her friends "did he do it?"
"If it is not addressed, the misuse of the internet represents a threat to the jury system which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge." -- Lord Judge
We also have a case in California where a judge ruled that a plaintiff had waived some privileged communications with her attorney by posting information on her blog while the case was pending.

Jurors know that what they see and hear in the courtroom is not the whole truth. The rules of evidence under which we operate serve to keep information away from jurors. If you have a multi-day trial, you can be assured that your jurors are going to do some research of their own on the internet - despite the admonitions of the judge.  Is explicitly banning the use of social media by jurors a Luddite reaction or the only way to preserve the jury system?

The larger question isn't whether social media will make the jury system obsolete, but whether it will change our traditional view of trials.  Isn't the notion that we can bring in six or twelve disinterested people who can listen to testimony and decide the fate of someone based solely upon that evidence a bit naive? In every arena outside the courtroom we strive to gain as much knowledge about a subject as possible. Imperfect information is the enemy of efficiency - yet we are asking jurors to decide a person's fate based on imperfect information.

If you choose to ignore this reality and bury your head in the sand, you do so at your own peril.


Unknown said...

If "we are asking jurors to decide a person's fate based on imperfect information," then should every criminal defendant be acquitted on grounds that imperfect information necessarily generates a reasonable doubt?

Paul B. Kennedy said...

Thank you for your question.

We can never attain perfect information - but we strive to obtain as much information as we can. In the courtroom, the rules of evidence serve as a barrier to information.

The concept of reasonable doubt takes in account the fact we are dealing with imperfect information. My question is whether our method of trying cases will change as information has become so accessible to jurors.

I don't necessarily think it's a good idea but we are trying to place a 19th century template on a 21st century society.