Does Facebook Threaten Trial by Jury?

I'm still at the Law and Society Association conference in Chicago, and today I heard a very interesting presentation titled "Jury 2.0" by Caren Myers Morrison, a law professor at Georgia State University (and a former assistant U.S. attorney), on the effect of the internet in general—and social media in particular—on the nature of the modern jury and the sanctity of the jury trial.

As you probably know, traditionally juries are supposed to be sequestered, either literally or figuratively, for the duration of a trial. If they are not sequestered literally (that is, kept in a hotel with minimal contact with the outside world), they are instructed while outside the courthouse not to talk to anybody about the trial, not to make contact with any of the other trial participants (counsel, witnesses, and so on), and not to read or watch anything in the media regarding the case. These prohibitions are meant to ensure that the judge can control what the juries do and do not know, about the facts of the cases and the law relevant to it, so they can render their judgment in ideal conditions and ensure a fair trial. Also, this makes sure the lawyers on both sides know what information the jurors have, so that they can respond to that information during the adversarial trial process.

In the old, pre-internet days—which fewer and fewer of us remember anymore, but bear with me—the main concerns used to be that jurors would talk to family or friends about the trial, or perhaps watch the TV news or read a newspaper, and in those ways get information other than that which the judge allows, such as information about suppressed evidence that was kept from the jury following the rules of evidence. Or maybe a juror would bump into an attorney or witness in the courthouse elevator and inadvertently exchange potentially valuable information. Problems, to be sure, but manageable ones.

But then Al Gore went and invented the internet.

Now we have jurors Googling defendants' names during a trial, looking up legal and scientific terms for themselves (with questionable reliability), Facebook "friending" other members of the jury, or getting matched on internet dating sites with expert witnesses—all actual occurrences. One juror even went so far as to hold a poll on Facebook, giving the facts of the cases and asking her "friends" to vote on the defendant's guilt.

Younger jurors who grew up with the internet—and many not-so-young ones who nonetheless have embraced it—think nothing of connecting with people from all walks of life on social networking sites and looking up anything they want to know. It's an information society, and potential and actual jurors are starting to resent being told that they can't get information on their own, that they have to accept what the judge decides they should know or not, as well as who they can and can't connect with. And since virtual identities are increasing becoming an intrinsic part of individual and social identities, forcibly separating people from their online connections may be not only inconvenient, but in the worst cases psychologically damaging. (Plus, it would make it even harder to get people to serve on juries!)

What kind of threat do 24/7 online connectivity and information availability pose to the sanctity of the impartial jury? That depends on how we understand the role of the jury. In "ye olden days," jurors were drawn from smaller, more tight-knit communities, and all the jurors usually knew the defendant and the facts of the case—all that was asked of them was a judgment of guilt or innocence. Also, juries called and questioned witnesses until the current adversarial system started to develop, overseen by a judge and where lawyers for each side asked questions of witnesses. Gradually, juries became more passive, and in the modern day they can be considered a "black box" into which the judge and attorneys fed carefully crafted data and rules, and out of which they expected a verdict.

The point—well, one of many, but the one on which I'll focus here—that Morrison makes is that while social networking, and information availability may threaten the modern idea of the isolated and controlled jury, it can be also considered a return of sorts to the original notion of a jury, in which impartiality only referred to the absence of conflicts of interest, not a complete absence of information outside that provided at trial. This will demand drastic changes in the way trials are run, but some may consider this a change for the better. But no matter how society chooses to deal with it, things are changing—Jury 2.0 is coming.

And wait til you see the iCourt!