Twitter is a much more useful social media tool than I had imagined. I’ve been using it for several weeks now to produce the daily links to interesting legal stories here at CDU Law and Business Online. Contrary to previous impressions, I’ve discovered that you can conduct a reasonably effective conversation despite the 140 character limit on any one “tweet”.
One example is an exchange I had yesterday with Sydney celebrity lawyer Chris Murphy. Readers may recall that I wrote a slightly equivocal (though mostly positive) article some weeks ago about Murphy and his noble fight against alleged ongoing police harassment of Muslim lawyer Adam Houda.
After clearing the air on that front we discussed a more general legal issue: the effect on juries of the Internet and the propensity of some jurors to use Google to do some amateur sleuthing into the case before them:
My own man,fame no spur
@CDUlawschool opinion pce by1 who hasn’t met me.Fighting corrupt police ,empty courts brought no change.I have
Hopefully Murphy will get back to me. Although quite a lot has been written in the last few years about jury prejudice and the influence of the Internet, I think there’s a worthwhile conversation to be had between practising criminal lawyers like him, academic lawyers and idealistic young law students.
In the meantime, here are some extracts from an article by US academic Gareth Lucy which makes many of the points I think merit discussion:
Prejudicial effect of extraneous material may be exaggerated
After commentators raise concerns about jurors turning to extrinsic information, their most common recommendation is for courts to issue stronger admonitions to juries.[xv] Other suggestions include more vigorous voir dire or banning cell phones in the courthouse.[xvi] The problem with these recommen-dations is that courts are already doing most of these things. Juries are already told not to conduct outside research. Voir dire is about as vigorous as it can get.[xvii] Cell phone bans might help for one-day trials, but they will have no effect—and maybe even adverse effects—on multiday litigation. In short, commentators have offered few new suggestions for how to respond to juries using the Internet.
The reason these suggestions have been minimal is because they contain an underlying assumption that external information biases jurors. This assumption therefore restricts the judiciary’s options; if external information is always harmful, cell phone and Internet policies should not be liberalized. One California legislator who adopts this view introduced a bill imposing criminal penalties on jurors who access the Internet.[xviii] This assumption behind the restrictive policies—that external information is always harmful—should be questioned.
Courts and commentators have generally not given balanced appraisals of the scientific research on the effect of outside information on jury decision-making.[xix] For example, a recent article on jury Internet usage states confidently: “[j]urors may feel their searching is harmless and will not bias them, something that research has demonstrated is untrue.”[xx] But has scientific research really demonstrated outside research is always harmful? Indeed some research suggests jurors are influenced by pretrial publicity or negative information.[xxi] But the majority of these studies were laboratory simulations, not field studies of actual jury behavior.[xxii] Moreover, a close examination of the scientific evidence reveals more nuanced data than most courts and commentators have acknowledged.[xxiii]
Researchers have found, for example, that in federal criminal cases “it does not appear that highly publicized defendants are treated much differently in terms of ultimate conviction rates than defendants who receive no publicity at all.” Moreover, it was low levels of publicity that resulted in greater probability of conviction.[xxv] Other research found evidence that pretrial publicity did not influence trials outcomes.[xxvi] These results suggest that courts ought to focus on the content and quantity of the information jurors receive, rather than on outright bans.
Researchers have also found that when juries learn substantial and contrary information from evidence and judicial instructions during trial, they are capable of displacing information received before trial.[xxvii] In other words, prior beliefs are diluted by new, relevant information.[xxviii] When trial evidence is strong, this can reduce the effect of bias and external information: “the effect of irrelevant, inadmissible, or biasing information is reduced in its effect to the degree that relevant, probative evidence is available for the jurors’ considera-tion.”[xxix] Again, this suggests that courts should manage the flow of information rather than make unrealistic efforts to weed out all juror exposure to the Internet. …
Jurors are not going to stop looking at outside information. The best way to keep jurors away from Wikipedia would be to sequester them. But sequestration is rarely practical on a large scale because it is prohibitively expensive and tends to promote mistrust for the jury system.[xxxiii] A more realistic response would be for attorneys and courts to conduct advance Internet research to identify what information about their case is available online, analyze that information, and then deal with it during trial. Another realistic response would be to give jurors the tools they need to make informed decisions in court so they do not need to conduct outside research.
Jurors want to know everything they can about a case so they can make informed decisions. But rather than promote the jury’s interest in Truth and Justice, courts tend to discourage curiosity and obscure information. For example, some courts still debate the “fairly recent innovation” of “allowing jurors to take notes during trial.”[xxxiv] Note-taking! And while some evidence shows judicial resistance to note-taking may be waning, individual judges still have the final say.
Juries were not always this sheltered. For four-hundred years after William the Conqueror’s reign, jurors were expected to investigate facts and “declare the truth” on the basis of personal knowledge.[xxxv] Even after sworn testimony became common in the sixteenth century, jurors were still permitted to ask questions. It was only when lawyers began to assert the function of law-making and law-finding that “[t]struggle for control over the jury came to a head.”[xxxvi] Rules of evidence then emerged to limit the information available to juries and to control how the information was received.[xxxvii] Jury power was ultimately curbed by strong demands from bankers, merchants, and industrialists for a more predictable—and sympathetic—legal system.[xxxviii] As for the prohibition against note-taking? That arose at a time when most jurors were illiterate.[xxxix]
Then again … maybe not
On the other hand, maybe Lucy understates the extent to which jurors may be irretrievably prejudiced by information they find on the Internet through their own ad hoc research. Certainly that’s the subjective fear of many if not most trial lawyers, and it would be an arrogant ivory tower academic who would dismiss their experience out of hand. Moreover, recent psychological research in some ways bears it out. Jonathan Haidt is an American researcher who espouses an approach to moral/ethical decision-making which he calls “social intuitionism”.
The vast majority of what passes for moral “reasoning”, Haidt argues, is in reality no more than post hoc justification of decisions actually already reached on an intuitive basis. According to Haidt, the brain’s intuitive “innate moral modules” are also eminently susceptible to triggering and therefore manipulation by the way in which a moral (or moral/legal) issue is “framed” (ref Tversky and Kahneman in economics, Sunstein from a more specifically moral perspective), a proposition that also won’t come as a surprise to marketing gurus or political spin doctors.
Haidt identifies 5 specific “innate moral modules” in the human brain:
- Harm (a sensitivity to or dislike of signs of pain and suffering in others);
- Reciprocity (a set of emotional responses related to playing tit-for-tat, such as negative responses to those who fail to repay favors);
- Hierarchy (a set of concerns about navigating status hierarchies, for example anger towards those who fail to display proper signs of deference and respect);
- Concerns about purity (related to the emotion of disgust, necessary for explaining why so many moral rules relate to food, sex, menstruation, and the handling of corpses); and
- Concerns about boundaries between ingroup and outgroup .
Fairly clearly, the Social Intuitionist Model even if only partly correct has enormous relevance for a wide range of fields, including law and politics. As Haidt observes:
If the Social Intuitionist Model is right and moral reasoning is usually post-hoc rationalization, then moral philosophers who think they are reasoning their way impartially to conclusions may often be incorrect. Even if philosophers are better than most people at reasoning, a moment’s reflection by practicing philosophers should bring to mind many cases where another philosopher was clearly motivated to reach a conclusion, and was just being clever in making up reasons to support her already-made-up mind. A further moment of reflection should point out the hypocrisy in assuming that it is only other philosophers who do this, not oneself. The practice of moral philosophy may be improved by an explicit acknowledgment of the difficulties and biases involved in moral reasoning.
It is possible that some jurors, despite being sincerely convinced that they are listening to the evidence and making up their minds on the merits of the case put before them, are really just engaging in post hoc justification and have really already made up their “minds” intuitively on the basis of extraneous material they’ve found from an Internet search.
However, even if that’s the case, is it actually possible in the real world, where the Internet is ubiquitous, to insulate jurors from its influence in any reliable way?