The Noisy Channel

 

Law vs. The Pursuit of Truth?

March 17th, 2009 · 5 Comments · General

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.

5 responses so far ↓

  • 1 Ryan Shaw // Mar 18, 2009 at 12:03 am

    Daniel, I think you would agree that there is a lot of false information out there. Furthermore, even credible or verifiable information is unevenly distributed: e.g. it may be easy to find records of prior criminal activity but difficult to find records of intervening rehabilitation. And all information is biased in some way in that it represents a particular perspective, but what this perspective is is rarely clear. So clearly it is important that lawyers do discovery, gather documents, and work with experts, compiling all potentially relevant evidence that can be presented to the jurors. Now perhaps a sufficiently advanced IR system could do the same (though I am skeptical). But why? Why would we prefer that an algorithm replace humans in the role of mediating between jurors and the evidence they must interpret? There isn’t a bottleneck or scaling problem here. This isn’t Amazon trying to figure out how to serve millions of customers the way an expert salesperson might have in the offline world. The jurors already have the best possible IR system: trained lawyers representing both sides of the case (and thus biased in predictable ways). Now, certainly, algorithmic IR systems can and do help lawyers with the discovery process. But they don’t and shouldn’t have a role to play in trials.

  • 2 Daniel Tunkelang // Mar 18, 2009 at 12:27 am

    Ryan, I agree that information in the wild is a mixed bag, and that people have not always demonstrated a capacity to think critically.

    Nonetheless, you have a lot more faith in lawyers and judges than I do. For example, in the case where I was a juror, the plaintiff’s lawyer seemed sub-par. But I wasn’t interested in grading the lawyers; rather I was interested in contributing to a just outcome. I would have loved, for example, to check on my own if the judge’s objections were valid. Why shouldn’t that be within my purview as a juror? In fact, the courts could make a vetted set of resources available to jurors, including the compendium of federal, state, and local law and all evidence deemed admissible. But, to the best of my knowledge, juror are forbidden from consulting any such research.

    I understand that our legal system is an adversarial one. But, given the enormous responsibility placed on jurors as referees, shouldn’t we have optimal access to the data and to the rules themselves? Why shouldn’t we have a more active role in working with the information that will ultimately inform our decisions? How would that undermine fairness?

    As it is, aren’t we left with a situation where jurors can make black-box decisions anyway? Why not optimize the effectiveness of the decision-making process?

  • 3 Ryan Shaw // Mar 18, 2009 at 1:45 am

    No, I don’t think it is within your purview as a juror to second-guess the judge. You don’t have the training to interpret the law and are likely to make mistakes. Also, the courts do make a vetted set of resources available to jurors–they just present them via the cases that the lawyers for both sides make in the courtroom rather than via an IR system. And I believe that this is preferable.

  • 4 Daniel Tunkelang // Mar 18, 2009 at 8:38 am

    Well, you are lucky to prefer the approach that corresponds to the legal regime. I’m curious how much you’ve worked with lawyers, since you seem to have more faith in their abilities than I do.

    For that matter, forget second-guessing–why don’t the jurors have an interactive role in the proceedings? Why couldn’t a juror raise a hand and ask for transparent explanations?

  • 5 Ryan Shaw // Mar 18, 2009 at 2:51 pm

    Actually some jurisdictions do allow jurors to submit written questions for witnesses (see http://bit.ly/ADTy). I support that, but I think that’s a separate issue from whether jurors should decide on the legal propriety of a line of questioning, or decide which evidence is admissible, or gather new evidence on their own.

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