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.

Imperfect information

A couple of weeks ago my colleague, Mark Bennett, posted an article on his blog, Defending People, about David Sklansky's theory of poker.  The theory is, boiled down to its essence, that, in poker, you win anytime you make an opponent play a hand differently than they would have played it if they knew what you were holding.  And, on the other hand, you lose anytime you play a hand differently than you would have played it had you known what your opponent was holding.

This same concept in an economic context is known as the problem of imperfect information.  In a market analysis, information is a commodity and is available for exchange.  However, as the guiding principle of market economics is scarcity, the acquisition of information is subject to competition.  And, as a result of this competition for information, no one has perfect information.

The lack of perfect information is why some investors can "beat" the market while others lose -- if we all had perfect information our return would be the same as that of the market.  The random walk theory holds that our collective imperfect information guides the market and that, in the long run, we are better off spreading our risk across the entire market rather than trying to beat it here and there.

And this brings us back to the courtroom.  None of us has perfect information.  We weren't witnesses to whatever happened.  Police officers have to decide whom to believe when putting together an offense report. Clients lie to the police.  Clients lie to us.  Witnesses don't remember key facts.  Jury selection is limited to 20-30 minutes.  Judges won't allow questionnaires.

And so, in the courtroom, just as at the poker table, you must make decisions based upon what you think the other side is holding based on your reads and the prosecutor's actions.  And, just as in poker, the object is to make correct decisions -- you can't always control the outcome.