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Is Google "Destroying" the Jury System?
From: David Farber <dave () farber net>
Date: Wed, 18 Mar 2009 10:55:22 -0400

Begin forwarded message:

From: Lauren Weinstein <lauren () vortex com>
Date: March 17, 2009 9:03:36 PM EDT
To: dave () farber net
Subject: Is Google "Destroying" the Jury System?

                    Is Google "Destroying" the Jury System?


Greetings.  A fascinating story in the current New York Times --
"Mistrial by iPhone" -- explores how easy access to Google and other
Internet-related technologies are throwing judges into a tizzy all
through the U.S. court system
( http://www.nytimes.com/2009/03/18/us/18juries.html ).

One of the perceived problems is that jurors are blogging, twittering,
and otherwise communicating about current cases in proscribed manners.

But a much more serious issue -- from the standpoint of those
observers who are so upset about it -- is jurors using Google and
other reference facilities to do their own research on cases, despite
judges' admonitions not to engage in such behaviors -- with easy
access to the Net from cell phones and other portable devices rapidly
accelerating this trend.

While I understand the concerns, I would be less than totally honest
if I didn't state plainly that I have very little sympathy for the
"Google and friends will destroy the jury system" argument.

Unless there are plans to sequester all juries from start to finish of
trials in Faraday cages, the jury system will just have to adjust to
the fact that jurors can no longer be relied upon to act as "empty
vessels" into which carefully controlled facts can be poured, isolated
from all outside inputs.  To expect jurors to comply with "no
research" orders with such vast information resources literally at
their fingertips is unrealistic in the extreme.

It seems certain that the changes in the jury system that will be
wrought by these technologies will be significant, quite possibly game
changing in many ways.

But there are many persons, including myself, who have long felt that
the current U.S. jury system is severely dysfunctional and long
overdue for major and fundamental alterations.

Too often the surest way to get tossed from a jury pool
is -- egads! -- to actually *know* anything about the topic at hand.
Cases are legion of jurors expressing horror after verdicts regarding
miscarriages of justice, caused by the withholding of basic
information from juries during the trials themselves.  Evidence
manipulation -- and jury manipulation by lawyers -- have become both
sciences and art forms.

A current example of unconscionable fact suppression is the conviction
under federal statutes of a legally-licensed (here in California,
under state law) seller of medical marijuana.  He's about to be
sentenced, with a theoretical exposure to decades in federal prison.
Yet during the trial his lawyers were forbidden by the court from even
mentioning the key fact that he was selling medical marijuana in
accordance with California law, while prosecutors were free to
describe the defendant as if he were a run-of-the-mill drug dealer.
"Disgraceful" doesn't begin to describe the obscenity of the process
in this case.

So it should be no surprise that many persons reading about
technology's impact on jury trials may react with something akin to
"Good -- It's about time that our legal system advanced beyond 19th
century information control concepts."

I realize that some readers may strongly disagree with me about this
topic, and I welcome your thoughts.  But I always call issues as I see
them, and when it comes to technology vs. the current jury system, I
hope (and expect) that technology will win -- because ultimately, in
my opinion, that will be best for us all.

Lauren Weinstein
lauren () vortex com
Tel: +1 (818) 225-2800
Co-Founder, PFIR
  - People For Internet Responsibility - http://www.pfir.org
Co-Founder, NNSquad
  - Network Neutrality Squad - http://www.nnsquad.org
Founder, GCTIP - Global Coalition
  for Transparent Internet Performance - http://www.gctip.org
Founder, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy
Lauren's Blog: http://lauren.vortex.com

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