The Dawn of E-Trials?


If you can, find a copy of the letters to the editor in Monday's New York Times. Six letters were published under a banner headline that reads: "When Jurors Seek Evidence Online." The viewpoints expressed there have had me ruminating for days.

The letters were in response to a front-page story about jurors' use of the Internet, Twitter and other electronic devices during trial. Recently, a two-month long criminal case was mistried in Florida when it was discovered that jurors were violating a court order by communicating about the case and doing research online.

One of the law's great fictions is the presumption that a properly instructed jury follows the law. Tell a juror not to do something, and, the law presumes, if the instruction was correct, that all is ducky. But do jurors really follow the law? Do they really speak to no one about the case on which they are sitting as the case progresses? Do they never visit the crime scene as they drive home and no one is looking? And, in this the easiest of all possible information ages, do they really refrain from looking things up on line during trial?

When the jury system was first born in England jurors were drawn from a cross section of people who knew their community. They were aware of who the players in the case were. Indeed, knowing about the people seemed to make sense. If Joe the Candlemaker was a notorious blowhard then, of course, you'd discount what ever version of the truth he offered on a given day.

Over time, the requirement for a fair cross section of the community has morphed into something resembling the a jury of perfect strangers. We work so hard to eliminate bias now that the metaphor most apt to define a courtroom is an operating room. We elimante as many sources of infection as we can. If you know a party, or a location, you are done.

The letter writers to the Times challenged me to rethink not just whether the courtroom can be a sterile operating room, but even whether it should be. A law student in Washington, Luke Wilson, writes: "Jurors' use of the Internet reflects both the bay-to-day importance of the Internet as well as a revolt against a system that insists on keeping intelligent and discerning jurors from being given the whole truth before they render a verdict."

Most states require jurors to follow the law as given, and forbid them from nullifying a bad law. We then tell jurors that the consequences of a sentence of guilty are not their concern. During trial, we clip the edges of things such that the jurors see only a piece of the larger reality animating a case. Is it any wonder that jurors revolt and seek a fuller picture where they can find it?

I confess to tunnel vision. Come the trial of a case I see only what I perceive to be my client's interest, and then I fight like a cornered dog to make sure the jury sees only what I want it to see. We assume that if my adversary does likewise and a competent judge does hers, the process will yield justice. Perhaps jurors are telling us otherwise. Is the use of the Internet during trial inevitable?

The Times letter has me rethinking trial strategies.

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