Blog Ipsa Loquitur

Published on under The News

The trial process is fairly straightforward in America; we have an adversarial trial system which is founded on the presumption that the ultimate truth is reached through a vigorous debate. The thinking goes that instead of entrusting the finding of facts to a single neutral investigator, we can just embrace the human tendency to make snap judgments or bring biases with them into their courtroom. It’s easier to trust someone to be biased than neutral, I suppose.

So we set up two parties on opposing sides, to seek the truth through competition. Like most competitions in our society, however, we don’t allow the competitors to employ every vicious trick they can think of.  Partly because there are some really effective tricks that lawyers can think of.

As such, this vigorous debate in search of the ultimate truth has to have some kind of rules, and a party that’s neutral enough to apply them. In much older lawsuits, these people were sometimes described as referees, but we usually go with the term “judge” now. (Similarly, the powdered wig look has faded into the ages alongside the term that evokes thoughts of the soccer pitch over the courtroom.)

In this theater of the jurisprudential, we almost have the stage completely set. The last role to be cast is the finders of fact: the people that decide who wins the competition. In an actual sporting event, the referees keep score, but our metaphorical trial (alternately a sporting event and a play in my increasingly tortured prose) relies on the community at large to declare the victor.

In the trial of Socrates, the jury probably numbered about five hundred men. I’m kind of fuzzy on the details, but I think we switched to a smaller jury when it became apparent that you’d need a time machine to find five hundred people who hadn’t heard of OJ Simpson’s double murder escapades.  So we pick a handful of your peers, and let them decide which witnesses are lying, which witnesses are competent, and ultimately, which party has carried their respective burdens of proving which facts.

The jury is a passive entity. The jury asks no questions, and neither does the judge. (The judge enforces the rules, but only in the most egregious breaches of the rules may the judge intervene on her own. For the most part, the judge is a spectator with a hammer and sweet chair.) Like the judge, the jury spends the vast majority of their time sitting and watching the events unfold, and trying to piece together a story of what happened out of the cases that the two parties present to them. The jury is permitted to ask the judge to clarify certain complex legal concepts during their deliberations, but they have no interaction with the two parties or their witnesses.

I mentioned before that the law imposes certain rules on the parties, as a matter of fairness.  There are the “Law & Order” rules, that everyone’s seen on TV: Sam Waterston yelling “Objection, your honor!” There are rules about impeaching the character of a witness, rules about hearsay, rules about bringing up criminal history, and a whole bunch of other rules that determine which evidence is excluded on the basis of being too prejudicial to the jury, and not probative enough. The judge has the final say about what evidence the jury may be exposed to.

But in our wacky modern times, this delicate balancing act of referee, competitors, and spectators is being strained.  John Schwartz of the New York Times has an interesting article about the growing trend of jurors investigating and gathering information of their own accord: with cell phones.  Jurors have long been instructed to avoid contaminating their view of the trial or the parties involved with information that has not been sanitized through the judicial filter. From the article:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence.

I’m not sure why this is happening: are people just ignoring the judge’s instructions to not seek information independently? I found Evidence pretty interesting: maybe we could force jurors to sit through a lecture about the reasons that we don’t let the lawyers say whatever they like.

sidebar: I’ve written about my experience as a juror in the past, and I did so in the past tense; I did not share anything with the world until the experience was over. I also did not do my own damn case research, because I listened to the person with the hammer and sweet chair.

We exclude evidence from the courtroom because our judicial system recognizes that there’s a lot of unfair stuff you can do. For instance, in an murder trial, you could bring up evidence that people with tattoos have a higher tendency to be convicted of violent crimes, and then ask the defendant how many tattoos he has.  You can even play on subconscious elements of the human psyche: the so-called “gory photograph rule” prohibits showing juries horrific photos of a crime scene if they only serve to inflame the passions of the jury and make them more eager to see the defendant hang.

If the jury seeks out evidence on their own, they run the risk of coming across all sorts of prejudicial facts and conjecture that the judge has seen fit to keep out of the courtroom.  In cases like these, where jurors have ignored the judge’s instructions and exposed themselves to information on their own, the judge is forced to remove that juror from the jury.

If there are a lot of jurors (in one case in the article, there were eight!) who have tainted themselves, the only solution may be a mistrial: the legal equivalent of a do-over.  Judges can hold members of the jury in contempt of court, and I think they truly ought to.  Bringing a newspaper into the jury room is impermissible: why should surfing on your phone be any different?