The legal community is ablaze with shock and anger at the revelation that irresponsible jurors actually exist. Lawyers are writing articles, blogs, and their congressmen about the prospect that jurors are using a new technological device called the "Inter-web" (apparently some sort of system that links computers all over the world and allows them to share information) to research cases they are serving on. This, apparently goes against hundreds of years of jurisprudence. Mistrials due to this abuse of technology are popping up all over the country. For a few examples of the legal community’s shocked reaction you can click here or here for a couple of NY times articles on the subject.
I am just as shocked as the rest of the legal community except that my shock is directed at the legal community and not the jurors. Are we REALLY so daft as to think that jurors don't watch television or read the newspaper? Do we REALLY believe that some jurors don't research the cases they are sitting for? Granted, the internet makes getting information much easier, but it takes the same kind of juror to research that information on the internet as it does to watch the news or read a newspaper. I know jurors aren't supposed to do that, but we're just fooling ourselves if we believe that they don't. With the dawn of the iPhone and a better, faster internet, it's just easier to catch a juror than it was before, since he's researching right at the courthouse. Regardless, the legal community shouldn't mistake this new revelation as proof that the problem didn't exist before...
Our entire country and educational systems are all about finding our own answers. We question the establishment. We rebel against "the Man." We stamp our feet and exclaim that our ideas are our OWN ideas and not given to us by anyone else. With that state of mind praised and rewarded, how can we expect jurors to just sit back to do what they're told? It's our American nature to find our own answers and come to our own decisions. We're holding jurors to an ideal that the rest of us refuse to practice.
I do know why the legal community is upset. It's upset because the average American doesn't really care about the legal profession at all. The average American treats us the way I treat my doctor. When I walk in for a physical and the doctor can clearly see that I haven't lost the weight that I promised him to lose, I'm sure he's offended too.
I understand that for us lawyers, this is our life. This is our livelihood. We know the history behind our legal system and why we do what we do... or at least most of us do. How can we expect the average American to respect the legal system when we do everything in our power to exclude him from it? We want Jurors to take our word for it when it comes to trial, but why should they? The stereotypes about greedy, manipulative lawyers are out there and still going strong. If a respected doctor can't get me to exercise and eat right, then what chance does a lawyer have at getting a juror to do what's right? A juror is much more likely to trust information he gets on his own before trusting the word of someone the media paints as a practiced liar and expert manipulator.
So what's the answer? I don't know, but I do have some ideas.
The first idea is that we can just decide to sequester all juries in a room containing a 10 x 15 print of "Big Brother is Watching You" in the jury room (See George Orwell's 1984). We can take away their newspapers, TV's, phones, and deactivate their bio-implanted micro-computers (oh, it's coming, my friends!). This makes sure that the only web information they get is the finely spun web of lies, er, I mean truth, that a lawyer makes in court. I can't say, however, that this option will do anything to help the already prevalent fear of getting that little paper in the mail, which assigns jury duty.
The second idea I have is to instill a "Don't ask, don't tell" policy at trial. If it works for the military, it can work for us, right? We don't ask where jurors come up with their cockamamie verdicts and they don't tell us how little they believe of what we say in court. Maybe ignorance really is bliss?
The third idea I have is to attack the problem where the problem really lives - the mind of the average American. A lot of lawyers claim that the problem is the American people's lack of respect for the law. We're blaming the public for this problem and pretending like we're off the hook when it is we, the lawyers, who represent the law. If the American public doesn't respect the law, then they don't respect us. If they don't respect us, then then why should they base justice on what we have to say in court? The legal community needs to do something to eliminate the stigma on lawyers and resurrect our profession's reputation. Knowledge of the law is a beautiful thing and it's time the public knew that. If jurors trust us, understand the legal process (I mean really understand it beyond what TV shows them), and they respect that process, then they'll want to participate in the correct way. They need to know why procedure is important, how that due process relates to their fundamental rights, and how that process results in justice.
Lastly, we need to accept the use of technology as a resource for trial rather than something to fear and cower away from. If there's one thing the legal field is full of, it's tradition, which isn't always a positive thing. I know the idea of doing things differently scares a lot of people, but this technology is coming whether we like it or not, so why don't we try getting ahead of the train instead of getting run over by it? There is no doubt in my mind that when a juror watches a lawyer fumble with papers, use an old VCR to play important video, or talk endlessly trying to illuminate a single point, that a techno-savvy juror's faith in the legal system is shaken. We're already fighting something academics call: "The CSI-Effect," which we need to address rather than stamp our feet against it in stubborn refusal (See a brief video on our website about the "The CSI-Effect"). People today are used to information driven home in small quick chunks. The American public peruses hundreds of words in mere seconds through the honed art of scanning. With a culture that is spiraling into impatience, we need to deliver our cases in the most efficient way possible. We have the chance and ability to show jurors that the law and its procedures can work using modern methods of communication.
The bottom line is that we need to stop acting so shocked and offended when we know that the internet is merely highlighting a problem we already had before. Let's stop whining about it and try helping jurors to understand the importance of their role in society again before our finger-pointing becomes just one more stereotype that the public can harp on. Let's grab hold of technology and show juries that their iPhones aren't the only things that can tell them about the law. Let's make it work for us instead of trying to thwart something that is already so imbedded in our everyday culture.