You are viewing extempore

Jan. 29th, 2008 @ 05:42 am stop basing your verdict on what's "true"
I don't read newspapers, but I was waiting in line for food: Juries raise a digital ruckus.
Last week in Washington County Circuit Court, a judge dismissed a jury that had already deliberated for more than four hours over two days after he became aware that two jurors disobeyed his orders and looked up legal concepts on their home computers.

"It isn't becoming a trend -- it is a trend," said Douglas Keene, an Austin, Texas, forensic psychologist who has worked with juries for 15 years and is president-elect of the American Society of Trial Consultants.

"I think it happens a great deal more than is reported," Keene said. Mistrials based on jurors getting outside information are not common but are happening more, he said.

In a note passed to Washington County Circuit Judge Donald Letourneau on Thursday morning, the jury foreman said two jurors had gone home the night before and looked up "implied consent" and "beyond a reasonable doubt" on a Web site. One of them also looked up the accuracy of a field sobriety test administered in the case.
What kind of monster would try to educate himself about relevant legal matters before participating in handing down a verdict that will alter someone's life? Leave all that fancy lawyer talk to the experts. Your job as a juror is to vote in line with the level of intellect and specific prejudices you displayed during voir dire.
"In an ironic way, those jurors probably thought they were being helpful," Keene noted. "They were probably stuck on their understanding of something and deliberations were going long, and one or two of them said to themselves, 'I'm going to help out, I'm going to look it up.' "
That certainly is ironic, assuming by ironic he means "not ironic in the least", which I know has been the prevailing definition for some time.
Letourneau told the jurors that looking up the information, "as a practical matter, really undercut the process." He could have found them in contempt of court and fined or jailed them, but didn't because he said the two jurors reacted as humans.

"I totally sympathize with that," Letourneau said.
Pussy! Jail time is the only way they'll learn.
"Ninety-nine percent of jurors follow the judge's instructions," said Thomas Kohl, Washington County presiding judge. "Or I should say I hope 99 percent are following the instructions."
Which is more disturbing, if he's wrong or if he's right? If as a juror you are unwilling to educate yourself about a legal issue relevant to your case, I say you are either slavishly devoted to the law, right or wrong (which makes you a good little authoritarian and an ideal cog in the machine) or you are uninterested in the fairness of your verdict.

Every force in our system of "justice" exerts evolutionary pressure toward the stupid and the proudly ignorant. How far does all this go? If I receive a jury summons in the mail, can I try to understand reasonable doubt before I go in? Judge's explanations about what constitutes reasonable doubt and notoriously vague and variable. Anyone who wants something real to go on is a danger to this utterly perverse idea of "fairness" and must be excluded.
Internet information is particularly dangerous, Thuemmel said, because Web sites often are run by people or organizations with a bias.

"I didn't know if they went to a defense Web site or a cop Web site," he said. "Web sites can say anything, and very little of it is true."
Other information sources however are as pure as the driven snow. It's that internet, always that damned internet. Get off my lawn!

I should say I have no problem with forbidding jurors from reading about the case they're involved in - my issue is with this absurd idea that the exact set of prejudices and misconceptions you hold when you enter the courtroom must be preserved at all costs, except to the degree that you can be led and misled by the trial participants.
About this Entry
From:nahmiase
Date:January 29th, 2008 02:13 pm (UTC)

Juries

(Permanent Link)
Certainly the American system of jurisprudence is far from perfect, but if you were a defendant in a criminal case, would you really want the people who are deciding your fate getting their legal definitions from who-knows-where? Sure, they could have used wikipedia, or westlaw, or some other halfway reputable source.

But what if they used some crap site from page 20 of google's results? Would anyone want that juror returning the next day to deliberations with a comment like "Hey, listen up, I did some research last night, and that judge and those lawyers are WAAAAAAAY off. The definition of reasonable doubt is actually..."

As imperfect as the adversarial system of justice is, I can't see it improved by people trying to give themselves even a minimal legal education overnight and then returning to their duty 'ready' to decide my fate.

A ban on reading about the case is certainly justified, as is a ban on jurors looking to educate themselves on the law during their free time. If the jury instructions given by the judge aren't clear, the jurors are free to ask for as many clarifications as they need. Most judges go way out of their way to make the legalese more digestable, often providing 'real world' examples to bring the crappy legal writing down to a comprehendable level. The ones that don't are mistakenly uninterested in avoiding having to retry cases after they've been overturned on appeal for failure to propertly instruct the jury.

[User Picture Icon]
From:extempore
Date:January 29th, 2008 03:11 pm (UTC)

Re: Juries

(Permanent Link)
Contrast with "I happen to have read a lot about this subject before the trial began, and that judge and those lawyers were WAAAAAY off."

Of course you known we are not often talking about a situation where the judge and both lawyers agree on something and a juror disagrees with everyone. Far more likely it's some factually false statement made by one of those parties which for whatever reason isn't corrected. This happens multiple times in every trial. Can I apply my own knowledge there or not?
From:nahmiase
Date:January 29th, 2008 03:34 pm (UTC)

Re: Juries

(Permanent Link)
I believe this article you read was only speaking to the situation where the jury reads up on 'the law'. Or at least that was the impression I got from the snippets you posted. In a criminal trial (or most any trial for that matter), issues of law are not argued about by the lawyers. A lawyer could, however, misstate the law during closing arguments and it would be up to the opposing lawyer to object (strenuously...) and/or the judge to admonish the lawyer and then instruct the jury that the lawyer is mistaken and they should consider only the definitions of law that the judge gives them, as they are the correct ones.

In short, the lawyers do argue the law TO the jury, but they don't argue about the law in front of the jury. Any mistakes are quickly corrected and/or objected to so that the correct law can be given.

Of course, this isn't a perfect world, so misunderstandings and mistakes will happen and a juror could get the wrong impression or flat out make a mistake,.

And lawyers can and do misrepresent the law and facts. Can you apply your own knowledge there or not? In general, the answer is 'yes', you can apply your own common sense and critical thinking skills to determine who is telling the truth, which argument is more persuasive, and which version of the truth is more 'reasonable'.

But I disagree that you should be allowed to go to an outside source to find definitions of the law.
From:nahmiase
Date:January 29th, 2008 03:38 pm (UTC)

Re: Juries

(Permanent Link)
I just re-read your quoted text and realized I didn't quite address it precisely. May try again...
From:samholden
Date:January 29th, 2008 03:44 pm (UTC)

Re: Juries

(Permanent Link)
Of course not. Once brain wiping is perfected it'll be applied to jurors at the start of the trial. In fact, we'll only need a small set of jurors since we'll wipe them after the trial too and then send them to the next trial none the wiser...

From:nahmiase
Date:January 29th, 2008 04:06 pm (UTC)

Re: Juries

(Permanent Link)
2nd try...

In matters of definitions of the law, I don't believe jurors should be allowed to apply their own knowledge. More often than not, especially in this so-called 'information age', their knowledge is completely off-base.

In matters of truth-detecting, critical thinking, b.s. radar, logic, etc..., not only should jurors use their own knowledge and common sense, but in most if not all states they are specifically instructed to do so.

In the case you posted, the juror went out of bounds by looking for 3rd party definitions to legal terms that are supposed to be solely defined by the judge and the laws of the state.
From:inet_stranger
Date:January 29th, 2008 11:46 pm (UTC)

Re: Juries

(Permanent Link)
That merely highlights another way the process can be 'undermined', rather than to assune undermining this way is tacitly acceptly and by inference is googling. If the jury is primed at the start of proceedings it would be self-defeating to sanction activities that bid to undo it.
From:drizztdj
Date:January 29th, 2008 03:07 pm (UTC)
(Permanent Link)
Question for lawyers out there...

If a juror is hung up on a legal definition, how are they supposed to learn it? Since motorized internet machines are unreliable, where does that person turn to?

From:kid76
Date:January 29th, 2008 03:34 pm (UTC)
(Permanent Link)
I'm not a lawyer, but when I was on a jury, they told us we could request further explanation, transcripts of testimony, etc from the clerk. The clerk would then get the requested information and bring it back to the room. This obviously takes a while and probably doesn't get done much since most jurors just want to get out of there.
I have to say, I don't necessarily trust every juror to get their definitions from the most reliable sources on the web. I mean, how smart can they be...they couldn't even get out of jury duty!
Idea: what would happen if a computer was set up in each jury room for researching terms? Not connected to the web, but just containing definitions, FAQs, whatever. That would sure move things along and settle juror disagreements. Or maybe they'd spend all day looking up and arguing about every single thing? Better that, then getting it wrong...
[User Picture Icon]
From:ronebofh
Date:January 29th, 2008 05:09 pm (UTC)
(Permanent Link)
I like your idea, mister.
From:vmole
Date:January 29th, 2008 09:12 pm (UTC)
(Permanent Link)

I mean, how smart can they be...they couldn't even get out of jury duty!

Or, possibly, they might actually think that occasional jury duty is a reasonable cost of being a US citizen, what with the whole "rights imply responsibilities" thing.

I've served on two juries, one criminal, one civil. In both cases, most (or even all) of the jurors paid attention, considered the facts (as presented, filtered through the usual BS detector), the law, and, to what extent we could, the justice of the cases. I don't know if we were perfect, but we tried. If you ever end up in front of a jury as a defendant, you better hope you get at least some of us who were too stupid to get out of it.

From:kid76
Date:January 30th, 2008 12:54 am (UTC)
(Permanent Link)
That little part was meant as a joke. I'll put a little ;-) after my next one. I've actually served myself and found it extremely enlightening.
From:vmole
Date:January 30th, 2008 06:04 pm (UTC)
(Permanent Link)
Oh. Sorry about that. I'm usually better at spotting those, but missed it this time.
From:nahmiase
Date:January 29th, 2008 03:37 pm (UTC)

Ask the judge

(Permanent Link)
The judge is there to answer any and all questions the jury have, from the mundane to the incredibly complicated. And most judges treat their juries like their own kids, coddling them, encouraging them, etc...
[User Picture Icon]
From:m_fallenangel
Date:January 29th, 2008 04:24 pm (UTC)
(Permanent Link)
I would imagine most judges, and certainly this one, would have tried to get the jury in the Zenger trial locked up for sedition.
[User Picture Icon]
From:allknight
Date:January 29th, 2008 04:32 pm (UTC)
(Permanent Link)
Perhaps another solution to this new trend is to give the jury access to a couple good law resources for legal definitions. And let them know they should ask the judge for any further clarifications.

Reminds me how I was previously (late 70's early 80's) trained to do research for college in a library. When I finally went back to school to get my BS degree in the late 90's I started doing research in the library. Soon after I switched to doing the same work online. You make a good point Paul though "Other information sources however are as pure as the driven snow," yes it is hard to determine what sources are solid online or in book form...
From:davedorr9
Date:January 29th, 2008 05:01 pm (UTC)

Dialogue versus punishment.

(Permanent Link)
It seems the missed opportunity is akin to that of a patient bringing information in to a doctor's office.

On the one hand, mis-information (or biased information) is quite dangerous. On the other, no one person can possibly keep up with all the advances and possibilities for appropriate treatment; thus, acting as your own advocate by thoughtfully searching for material you feel is appropriate and useful and _is_ condoned by many forward thinking health care providers and organizations. Better yet, many organizations provide links to relatively vetted sources of health information.

Similarly, shouldn't we provide juries with the best opportunity to become well informed in the basic principles as possible? The court can provide links to principles appropriate to the case from vetted sources and the judge can arbitrate confusion. I realize this flies in the face of the history of law and our current system. However, I have become increasingly concerned that isolation and jury selection process may result in series of extremely submaximal outcomes.

A similar concern is the punishment - follow our set of byzantine rules or we will punish you!
From:salixquercusii
Date:January 29th, 2008 05:42 pm (UTC)
(Permanent Link)
I object to busting on the guy's use of "ironic". The jurors' helpful intentions actually destroyed the whole enterprise. Close enough for government work.
[User Picture Icon]
From:mojolang
Date:January 29th, 2008 07:06 pm (UTC)
(Permanent Link)
"That certainly is ironic, assuming by ironic he means 'not ironic in the least,' which I know has been the prevailing definition for some time."

David Cross has an amazing bit on this on his Shut Up You Fucking Baby album.
From:salixquercusii
Date:January 29th, 2008 07:35 pm (UTC)

Irony detection test

(Permanent Link)
Which, if any, of these scenarios is ironic:

A. Guy trains dog to be a vicious killer. Dog escapes cage one day and mauls guy to death.

B. Guys spends 47 days on a liferaft praying for land. On day 48, guy is smashed to death against rocky island coast.

C. Author commits suicide to attract attention to book. Book is universally judged to suck.
From:salixquercusii
Date:January 29th, 2008 07:44 pm (UTC)

Re: Irony detection test

(Permanent Link)
P.S.not trying to be a know-it-all. I'd say only B is ironic, but I could be wrong.
From:directcodeword
Date:January 30th, 2008 01:25 am (UTC)

persuasive?

(Permanent Link)
...so at the end you admit that allowing jurors to read newspapers would clearly fuck up the process - how is this different than allowing them on the net?

...to address your issue, if the jurors haven't been rid of their prejudices and misconceptions about the law by the end of trial a google search ain't gonna enlighten them...especially when you're dealing with vague legal concepts that can't be quantified...that's the beauty of concepts like reasonable doubt - it precludes rubber stamping verdicts because wikipedia won't provide you with a magic formula for applying it...

...this rule about banning outside information stems from precluding juror access to information which is not admissible at trial, and of course potentially biased...most admissibility rules are there to preclude bias against defendants, for what that's worth...

...furthermore, if the judge fucks up the jury instructions then it's up to the lawyers to appeal if their client gets bent over...the system has its faults, it is run by humans afterall, but I shudder to think of joe juror telling the judge "Okay, thanks for the input your honor - but you don't know what you're talking about, i just read the definition of negligence on wikipedia and, etc." You think that would lead to more justice? C'mon...
From:loser_variable
Date:January 30th, 2008 04:05 am (UTC)

Take the plea

(Permanent Link)

I had jury duty recently. Among other things:

- I was walking in on day two with a fellow juror. Testimony had barely started on day one. He said to me, "I'm sure the doctor has insurance. Let's just give her the money and go home."

- Overnight several jurors Googled both attorneys, the plaintiff, and the defendant and shared their findings with everyone.

- The defense attorney was an attractive woman who appeared to be in the very early stage of pregnancy. The women on the jury mostly talked about her, including a daily analysis of her attire.

- This was a medical malpractice case. During the voir dire, we were asked about prejudices against doctors, nurses, hospitals, etc. The 12 impaneled obviously revealed no such prejudices. One young (under 30) juror turned out to have lost his wife during what should have been routine surgery and, unsuprisingly, was extremely bitter against the medical establishment ("they all stick together.") His vote was cast before the trial began.

- The first vote was in favor of the plaintiff. Ultimately we found no malpractice, but the debate was as much about which juror could argue a side well. We became de facto advocates. I honestly believe if I was blasé or timid and just went with the majority the case would have gone the other way.

What I think I learned: (1) the outcome of a trial is often more about which side (or attorney) the jury likes better. (2) The outcome can depend on the jury's leader(s). (3) I never, ever, want to have my fate decided by a jury as anything can happen regardless of the facts.
[User Picture Icon]
From:extempore
Date:January 30th, 2008 02:56 pm (UTC)

Re: Take the plea

(Permanent Link)
No matter how often I hear variants of this story, it still gets me. I wonder how often people walk out of the jury room feeling great about the process.

And missing the guy who lost his wife during jury selection in a medical malpractice suit has to be one of the biggest fumbles in jury selection history. How do you explain that one to the partners...
[User Picture Icon]
From:extempore
Date:January 30th, 2008 02:57 pm (UTC)

Re: Take the plea

(Permanent Link)
Before anyone nails me on it, I'm aware he didn't lose his wife during jury selection, ha ha.
From:loser_variable
Date:January 30th, 2008 03:31 pm (UTC)

Re: Take the plea

(Permanent Link)
They did ask us if any of us had bad experiences / ill will towards doctors, nurses, etc. The guy in question remained silent and wound up being picked. The plaintiff's attorney likely never knew anything about it. Voir dire on 120 people is fairly generic. They don't interview each person separately.

I was happy with the verdict. An injury indeed occurred, but it was not IMO the result of negligence. Surgery entails some risk. Many jurors seemed to think any non-perfect result = negligence.

What I felt kind of bad about was not narcing out about 8 other jurors for breaking the rules, which I could have. I suspect this is usually how it goes.
From:treed214
Date:January 30th, 2008 06:58 am (UTC)

Why do they need to look up this information?

(Permanent Link)
Any questions they have concerning legal definitions could have been posed to the judge. This means that the only reasons to look the definitions up on thier own were either because they didn't want to look stupid by asking what reasonable doubt is, or because they thought there was a better definition elsewhere. How is justice served better in either of these cases?

Our legal system is often based on legal definitions that may or may not match up with what you can find in a dictionary, let alone website X. In some cases the definitions change from case to case (i.e. "intent" is a different concept in a first degree murder case then a negligent homicide case). Verdicts should be based on the definitions that apply to the case at hand, which can best be expressed and clarified by the judge.

Other then definitions, the only other reason to look up the information would be to clarify someones interpretation of the concepts (either the person looking up the information or someone who disagrees with that person). We could have the same definition of reasonable doubt, but have completely different interpretations as to whether the evidence in a particular case meets that requirement. This difference in interpretation is critical to our form of justice. After all, if we all interpreted evidence on concepts the same, why would we need juries? With this in mind, if I research reasonable doubt to develop my interpretations for the case, then how is this any different then researching the facts in the case? If I research reasonable doubt in order to change your interpretations, then this is even worse as I would be less likely to be using unbiased sources.
[User Picture Icon]
From:extempore
Date:January 30th, 2008 02:51 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
Your first paragraph seems to imply there is a standard definition of "reasonable doubt" which you can depend upon the judge to give you. I am under the impression this is far from the case. And in general, I object to the idea that the judge is an unbiased party. The main reason juries exist (as far as I'm concerned) is because that is not a given.
[User Picture Icon]
From:qwrrty
Date:January 30th, 2008 05:13 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
Well then thank god we have the Internet, by gum, which as we all know is as unbiased as the driven snow!
From:nahmiase
Date:January 30th, 2008 05:47 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
There absolutely is a standard definition of reasonable doubt in California, where I was a Deputy District Attorney. It is defined in one of the jury instructions and read to every jury in every criminal case across the state. I can't imagine the process is different in the other 49 of them. The problem, which I think you are alluding to, is that the definition is hard to grasp, even for legal experts. It sucks. It's a bad attempt at putting legalese into layperson language, but it mostly does the trick and most juries can understand it more or less. If the jury can't wrap their collective heads around the definition, they should absolutely ask the judge for clarification until they get it. But going to who-knows-where to get a definition can only cause serious problems.
[User Picture Icon]
From:extempore
Date:January 30th, 2008 06:09 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
I chose that word poorly - I should have said a standard interpretation of what constitutes reasonable doubt. Definitions are rarely the end of the line when trying to understand anything complex; they just spread the ambiguity around better.

I find that the dismissive "information from who-knows-where" depiction of people thinking for themselves to be unfortunately common. You'll trust them in the jury box to decide whether someone lives or dies, but you can't trust them to use the internet? If they can't assess the reliability of a web site, how are they going to assess the reliability of an eyewitness? What's wrong with that picture?
From:nahmiase
Date:January 30th, 2008 06:30 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
If 'standard interpretation' is your premise, then I agree with you it is a problem no such standard exists. But as imperfect as that system is, I still can't see how it helps in any way for a juror to seek even more information about a subject that even the people who work in the field can't define with certainty. If you couldn't properly explain to me some programming or mathematical concepts such that I'd comprehend them (highly likely...), would you trust that I could get my questions answered from some random site on the internet or some other source (thereby trusting me to do a thorough search) at a level which you'd then feel comfortable letting me use that new knowledge to make a decision which would alter the course of your life?

Seems to me that if you don't trust a juror to make an informed decision after getting all the relevant law and explanations from the judge himself (who is tasked with delivering the enacted laws to the jurors' heads), perhaps you just don't trust the jury-of-my-peers system to begin with. And many people don't. Maybe you'd prefer a 'professional juror' system? It's often floated around legal communities, usually after a jury somewhere renders an inexplicably unjustifiable verdict.

As for the 'information from who-knows-where" depiction, I disagree that it refers to people 'thinking for themselves'. To the contrary, it refers to people filling their heads with someone else's thoughts. And when it comes to the internet, again, who-knows-where they got it from.

Thinking for themselves is an important part of every trial, and involves all of the things some of us have mentioned above: common sense, b.s detection, logic, and whose version of the truth is more reasonable. When it comes to definitions of the law, a juror should by all means refrain from thinking for themselves. They must only apply the law to the facts. That is their sole task. Once they stray from that, the jury system fails.
[User Picture Icon]
From:extempore
Date:January 30th, 2008 07:14 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
perhaps you just don't trust the jury-of-my-peers system to begin with.

Certainly not in its present form! Who could? But I can't properly evaluate it or propose any better alternative out of context, and the context of today is that a great many things are against the law that ought not to be, and the law is applied in a terribly unfair and selective manner. Under such circumstances I don't think juries can elevate the proceedings to a point where I can respect them, no matter who they are and no matter how they deliberate.

My lack of faith is in something much more fundamental than juries, the sorry state of which is more a symptom than a cause.
[User Picture Icon]
From:qwrrty
Date:January 30th, 2008 08:23 pm (UTC)

Re: Why do they need to look up this information?

(Permanent Link)
But I can't properly evaluate it or propose any better alternative out of context,

It seems to me that is exactly the reason that jurors are forbidden from trying to teach themselves the law during a trial. They are not in a position where they can properly evaluate the information out of context.
From:estwald
Date:January 30th, 2008 03:39 pm (UTC)

seems to be a trend

(Permanent Link)
There are parallel stories in the news from time to time, where doctors complain about patients reading up on webmd or whatever. I'm sure lots of other professionals hate the Internet as well.
From:directcodeword
Date:January 31st, 2008 01:15 am (UTC)

additional tidbit

(Permanent Link)
...the law, believe it or not, does provide a fail-safe for the application of potential unjust authoritarian laws, it's called jury nullification - which essentially means the jury, by law, can make their decision completely irrespective of what the judge and lawyers have told them they should do...of course, no one tells this to the jurors - and no jurors actually know enough about the law to know this, but that's besides the point...if the jury acquits a guy prosecuted under a bullshit crime, he walks, doesn't matter how guilty he is...that doesn't work on the converse, because a defendant has options to overturn a bullshit conviction, but an acquittal? game over...the system isn't set up to fuck people at the mercy of an authoritarian government, that's just the way it turns out sometimes because the people on the jury follow suit - and that's a problem that goes much, much deeper than imperfect legal procedure...perhaps there's another society in the world with a better procedure for determining guilt or innocence? i'd love to hear about it, cuz i don't know one...