And What Else Aren't You Telling Me

Great article in the New York Times about how technology is turning the rules of evidence, which have been established over the past 400 years, on its head.

Its a standard admonition from a judge to jury. Do not read any newspapers, watch any television, or investigate for yourself. Do not discuss the case with fellow jurors, or talk to anyone about the matter on which you are deciding. The purpose of the instruction is to ensure that a case is solely decided on the admissible evidence permitted in the court room by an untainted, unbiased and impartial jury.

Problem is that in this day of the Blackberry and iphone, accessing information has never been simpler. Go to any court room, any day and you will see just about everyone: clerks, lawyers, jurors, even judges plugged in and surfing the net. Whether they are checking emails, texting, updating facebook status, Twittering, or just playing games or catching up on headlines the courts are not excluded are saturated with interconnected activity.

Last week the conviction of former Pennsylvania state senator, Vincent J. Fumo was threatened, and still might be on appeal, because one of the jurors was using Twitter to send messages to his followers about the trial. He was questioned by the judge and the attorneys and insisted that no one passed any information to him about the case so the judge allowed the guilty verdict to stand. But how easily could it have been otherwise? that question will be dealt with on appeal.

In a less publicized case, a Federal drug trial in Florida was overturned when a juror was confronted, and admitted having done independent on-line research, in violation of the rules of evidence and the judge's instructions. However in a twist showing the pervasiveness of the potential problem, 8 of the other 11 jurors admitted having done the same thing. An isolated incident? Perhaps. But perhaps not.

My perception is there has always existed a frustration among jurors that they believe they are not getting a full story and that it is not fair to them to exclude what they perceive to be pertinent information. Often it is true that they are not given all the details. In the case of a criminal defendant, his past crimes cannot come into evidence unless he testifies and only then for the purpose of attacking his credibility. But jurors can't ordinarily know about past bad acts because the rules say a person has to be tried on the charges before him and not because a thief is always a thief. The rules make sense but that doesn't make it any less frustrating.

The bias today is towards information -- all information and the more, the better. People go on WebMD before visiting their doctors. They go to Edmunds or carfax before buying a car and if they can access information about a matter in which they could very well be deciding someone's freedom the temptation to find out more than what hired representative is telling you can just be too much.

The legal profession generally does not like change, certainly not quick change. The legal principle of stare decisis, letting established law stand, is well grounded and well meaning but right now the hands of judges are being forced. The legal system is not going to be able to ignore the impact of technology much longer. It's one thing to say that all outside influences should be ignored at a trial; it's another to ignore reality. And right now the reality is the jurors want to know more. Somehow we need to find a way, with fairness for all, to give it to them.