I’ve always bristled at the legal principle, at least in the United States, that a judge has absolute power to decide what evidence is admissible in a trial. I recognize how this power is can prevent abuse by prosecutors or other government officials (cf. 4th amendment, 5th amendment). I also realize that judges are supposed to ensure that the law constrains jurors, and that there are important historical precedents for having judges enforce the law in the face of juror prejudice.
Nonetheless, I find that this power puts jurors in an awkward position. As luck would have it, I’ve only served as a juror once, in a civil case. When the plaintiff asked a witness questions following a line of inquiry that seemed highly relevant to the case, the judge sustained objections by the defendant. The case was settled mid-trial, but my fellow jurors and I questioned whether the judge was right to sustain the objections. In fact, we had become increasingly sympathetic to the plaintiff, since we had come to our own conclusions about the answers to the suppressed questions, and those presumed answers made a strong case for the plaintiff.
That brings us to today’s New York Times story: “Mistrial by iPhone: Jurors’ Web Forays Are Upending Trials“. A juror in a federal drug trial admitted to the judge that he had researching the case on the Internet. The judge questioned the rest of the jury, only to find out that eight other jurors had been doing the same thing. The judge declared a mistrial.
The article quotes Douglas L. Keene, president of the American Society of Trial Consultants: “There are people who feel they can’t serve justice if they don’t find the answers to certain questions.” The article continues by quoting University of Texas law professor Olin Guy Wellborn III: “the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides.”
Some rules make a lot of sense to me. For example, I’m not amused by the juror who recently used Twitter to provide a running commentary on the proceedings of a trial. That was not only illegal but just plain dumb.
But preventing jurors from doing their own research is a hard rule for me to stomach as someone who has not only devoted his professional life to the process of uncovering truth, but who is actually building machinery with the goal of improving that process. There is something that feels intellectually dishonest about even temporarily giving up that pursuit, especially given the potential stakes of a legal proceedings. Trusting in the infallibility of a judge just doesn’t come naturally to a skeptical inquirer.
Nonetheless, I don’t expect the advent of mobile browsers to up-end centuries of legal tradition; it is more likely that people simply won’t be allowed to bring them into court houses. If nothing else, the story serves as a reminder that some of our bottlenecks in working with information aren’t technical.