Why Shouldn't Jurors Be Able To Use Technology To Do More Research?

from the yeah,-that's-not-going-to-work dept

We've pointed out in the past that, eventually, the judicial system is going to have to come to terms with the fact that people use technology to research and communicate, rather than trying to pretend it can be stopped. But, it sounds like that's going to take a while. Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense? The idea that you have no outside influences in making a decision as a jury is an idealistic fantasy anyway. Jurors always make decisions based on their own history and experiences. It's part of what makes a jury a jury. Otherwise, you'd just have one guy who would weigh all the facts in a case and who would always pop out a perfect decision. So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?


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    aguywhoneedstenbucks (profile), Feb 8th, 2010 @ 8:36am

    The only problem I see

    The only problem I see with this is vetting who a smart juror is. A smart juror would use the technology to look up terms they didn't understand, to look up other similar cases and draw conclusions based on that research. An idiot juror would see who the media is slaughtering during the case, pick up a bunch of circumstantial evidence (for higher profile cases), and make their decision based on the court of public opinion rather than the facts of the case. While this may work for small trials, I don't think it would work well for any sort of high profile trials where the jury is sequestered and the media is slaughtering someone (rightfully or wrongfully).

     

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    Vadim, Feb 8th, 2010 @ 9:31am

    Evidence admissibility

    This approach will completely void the evidence admissibility concept.
    It will be suffcinet to publish evidence on the Net and it will be accessible to the jurors bypassing all admissiblity rules (For example for evidence obtained illegally)

     

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    The Anti-Mike (profile), Feb 8th, 2010 @ 9:36am

    Re: Evidence admissibility

    You are correct.

    Court cases should be decided on the evidence presented. If the judge feels that the jury requires more information, that information is provided by the court.

    Can you imagine an IP lawsuit settled because someone read Techdirt or Torrentfreak? The appeals would be instantaneous.

     

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    Hulser (profile), Feb 8th, 2010 @ 9:36am

    Voir dire for dummies

    can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?

    Isn't the purpose of jury selection to weed out the smart people?

     

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    Ima Fish (profile), Feb 8th, 2010 @ 9:40am

    "The question is does this really make sense?... Jurors always make decisions based on their own history and experiences."

    It's one thing for a juror to make a decision based upon his or her own history and experience. That's fine. No one is arguing against that. But you're not asking why a jury should not be allowed to research their own history and experience. You're asking why they should not be allowed to research facts which were never presented at trial.

    This is one of your weaknesses Mike. You've never went to law school so you do not have a clue about the litany of rules of evidence and the centuries of case law interpreting those rules. It is a prosecutor's burden to prove his or her case through the evidence presented, not through inadmissible heresy or via "story" published in a muckraking newspaper.

     

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    BBT, Feb 8th, 2010 @ 9:42am

    I guess if you decided that the rules of evidence admissibility were all worthless, allowing jurors to do their own research would be a good idea. You may as well throw out the 4th Amendment, since police can just do an illegal search/seizure and then leak the results. It gets barred from the trial, but then the jurors research the case, find the leaked results, and use it to color their judgment. Brilliant!

     

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    Scote, Feb 8th, 2010 @ 9:42am

    "And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?"


    These two sentiments are contradictory. We can't ask if it makes sense without talking about why courts do this.


    Court cases are subject to **rules of evidence**, which are there for sound reasons, such as making sure the evidence is sound, or, at the very least, so that the other side can cross examine it and object to it. The attorneys can't do that to "evidence" that jurors find on their own.

     

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    Ima Fish (profile), Feb 8th, 2010 @ 9:42am

    Re: Re: Evidence admissibility

    "Court cases should be decided on the evidence presented."

    OMFG, the Anti-Mike and I completely agree on something!

     

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    The Anti-Mike (profile), Feb 8th, 2010 @ 9:47am

    Just plain wrong

    the judicial system is going to have to come to terms with the fact that people use technology to research and communicate, rather than trying to pretend it can be stopped.

    Mike, you are coming at this from entirely wrong end. The court system is one of the few places where we can in fact control what happens, and in order for just verdicts to be reached, you have to control the environment.

    Juries make their decisions based on the facts of the case as presented, not based on third party information that may or may not be relevant to the case. The rules of admissibility of evidence, how that evidence is presented, even the chain of custody of physical evidence is all part of the discussion of a legal case.

    Let's say as an example someone is arrested for murder, and a gun is discovered in a locked box in the trunk of their car, but is found without a warrant. That gun is the gun that killed the person, has some splatter of their blood on it, and the killer's finger prints on the gun (and it's in his car!). All of those facts are discussed online, they go back and forth, but in court the gun is excluded because the search was made without a warrant. Now, your "smart juror" could go online during the case, search for information on the case, and discover that there was a gun, and it was in the car, and it had a finger print, all that was discussed during the motion hearing that got the gun thrown out.

    How do you undo that knowledge? Now the "smart juror" knows the guy is guilty, yet the evidence presented in court isn't enough to convict him. Will you permit the juror to find him guilty on the basis of information found online that was specifically excluded from the case? Do you violate the defendant's rights in order to do this?

    One day you will realize that "because you can" isn't always the right answer. Until then, you will keep asking silly questions like this.

     

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    Hulser (profile), Feb 8th, 2010 @ 9:51am

    Re: Evidence admissibility

    It does seem like the issue of evidence admissibility is a showstopper. You can make a case that people are savvy enough now to read between the lines in a biased story in a newspaper article about the case, but in terms of people getting online and reading about inadmissible evidence, the whole issue gets much more complicated. What are you going to do? Totally sequester a jury for the entirety of the case because it's just too tempting not to look up the details when everything is at your fingertips? That's just not practical. At some point, you're going to have to rely on people to be responsible and not look up this information.

    Maybe today a stern command from the judge just isn't enough. Maybe you'd actually have to explain to people why it's a bad idea to look up information about the case. It seems silly, but maybe a little civics lesson would help.

     

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    Ima Fish (profile), Feb 8th, 2010 @ 9:56am

    Re: Just plain wrong

    And the Supreme Court's strict ruling regarding the admissibility of scientific evidence in its infamous Daubert decision would be toast.

    If some wacko juror thought that mental illness is "really" cased by thetans levels or some horrendous disease is "really" caused by fluoride in our water supply... under Mike's system such evidence would come in during deliberations. Any evidence could come in regardless of whether it's relevant, unfairly prejudicial, or even scientifically meaningful.

     

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    :Lobo Santo (profile), Feb 8th, 2010 @ 9:57am

    Re: Just plain wrong

    Clarification request: So, you'd rather a guilty person was released on a technicality?

    Personally, I'd rather said guilty person was found guilty--and the cops who performed said warrantless search punished to help convince other cops to get a warrant first.

    Alternately, by the same virtue, would you rather an innocent person was convicted because the prosecutor got certain bits of evidence ruled as "inadmissable"?

     

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    Richard (profile), Feb 8th, 2010 @ 9:59am

    Re: Re: Evidence admissibility

    Can you imagine an IP lawsuit settled because someone read Techdirt .......? The appeals would be instantaneous.

    I agree - mostly because they might have been reading your comments here!

     

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    Designerfx (profile), Feb 8th, 2010 @ 9:59am

    yeah, my thoughts too

    I was thinking about this and my thoughts were similar.

    I thought: what if a lawyer explains something improperly, you look it up and actually understand it? That should be banned?

    There are situations I can see on both sides of the equation, such as where it might be inappropriate to use tech to look up parts of the case but I don't think that the ability to gain research/understanding should be able to be violated by a protective court order.

    Like what if someone implies that x technology = 100% illegal activity, and a simple wiki search would prove that it's not? Like what if they said breathing implied criminal intent and the judge didn't call the lawyer on it nor the opposing party?

     

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    Anonymous Coward, Feb 8th, 2010 @ 9:59am

    Jurors always make decisions based on their own history and experiences.

    And that is what the jury selection process is for: to weed out jurors with histories, experiences and preconceived notions that would bias their decisions.

    I suppose Mike would have no problem, for example, seeing rape juries stacked with nothing but vengeful rape victims since they have "experience" with the subject that would make them oh-so-much-better jurors.

     

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    Dark Helmet (profile), Feb 8th, 2010 @ 9:59am

    Re: The only problem I see

    That is indeed the crux of the matter. Particularly when said traditional media holds any kind of stake in the matter. The Drew Peterson case here in Chicago is a perfect example of this, as so much of what is currently going on in the case began when the media got involved.

    Not that DP isn't a class A Deutche Bag, but what Fox did to involve themselves in the case was retarded....

     

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    Ryan, Feb 8th, 2010 @ 10:01am

    Re:

    He was not propositioning a debate on whether allowing online research would fit perfectly into existing legal constructs, but on whether we should allow online research. That existing protocol does not allow this is irrelevant - it's called fiat.

    Not to say anything of you, but I have noticed that lawyers often spend so much time learning and practicing the law that they seem to lose the ability to discuss it normatively.

     

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    Ima Fish (profile), Feb 8th, 2010 @ 10:04am

    Re: Re: Just plain wrong

    "So, you'd rather a guilty person was released on a technicality?"

    Yes. Emphatically yes. The entire premise our country's legal system is based upon the idea that no one is above the law. Not the police and not the prosecutor.

    The police and the prosecutor have to prove their case within the confines of the United States Constitution. If they fail to do so by violating the defendant's constitutional rights, they lose and they should lose.

    If the police and prosecutors are not limited by the Constitution then they would be free to do anything they wanted. That's exactly the system of government the founding fathers were attempting to avoid.

     

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    kirillian (profile), Feb 8th, 2010 @ 10:07am

    Re: Re: Re: Evidence admissibility

    Definitely agreed. Just barring people from doing anything without explaining the reasoning behind your decisions seems to cause nearly as much of a problem as the issue you were trying to prevent in the first place - i.e. trying to shelter your kids from .

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:08am

    If true, then apparently Albert Einstein is wrong in The Court's eyes

    ONE OF Einstein's colleagues asked him for his telephone number one day. Einstein reached for a telephone directory and looked it up. "You don't remember your own number?" the man asked, startled.

    "No," Einstein answered. "Why should I memorize something I can so easily get from a book?"


    So it seems Einstein's method is not applicable today.

     

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    Dark Helmet (profile), Feb 8th, 2010 @ 10:11am

    Re: If true, then apparently Albert Einstein is wrong in The Court's eyes

    "So it seems Einstein's method is not applicable today"

    I'll have to remember that quote. I never know my cell number, and I innevitably get questioned as to why.

    My answer to date has always been, "Uh, because I never call myself, stupid..."

     

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    Ima Fish (profile), Feb 8th, 2010 @ 10:13am

    Re: Re:

    "He was not propositioning a debate on whether allowing online research would fit perfectly into existing legal constructs..."

    I never said that Mike was making such an argument. My argument was and is that we have centuries of law regarding the admissibility of evidence in place for a reason and it's simply asinine to throw it all away without a very good reason. Mike never provided that reason.

    "I have noticed that lawyers often spend so much time learning and practicing the law that they seem to lose the ability to discuss it normatively."

    Bashing lawyers. Wow, you're really creatively aren't you?

     

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    Matthew, Feb 8th, 2010 @ 10:16am

    Re: Re: Evidence admissibility

    This is a good argument. Should jurors have the ability to request specific information from the court? (Do the jurors have that ability now?) If the jurors do not understand the meaning of a term, require means to interpret the ramifications of an argument that has been made, or want to see the text of a law or previous rulings based on that law, should the court be obligated to provide them with reasonable accommodations?

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:16am

    Re: Re: Just plain wrong

    Clarification request: So, you'd rather a guilty person was released on a technicality?

    Innocence is just a technicality.

     

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    Ima Fish (profile), Feb 8th, 2010 @ 10:17am

    Re: yeah, my thoughts too

    "what if a lawyer explains something improperly, you look it up and actually understand it?"

    That's why we have an adversarial system. When one side screws up, the other side points it out.

    "There are situations I can see on both sides of the equation, such as where it might be inappropriate to use tech to look up parts of the case..."

    And that's exactly why we have centuries of law devoted to the admissibility of evidence. For example, there is a general rule against hearsay evidence. But there are exceptions to that rule because we realized it makes sense to admit it in certain circumstances.

     

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    Comboman (profile), Feb 8th, 2010 @ 10:22am

    Re: yeah, my thoughts too

    Like what if someone implies that x technology = 100% illegal activity, and a simple wiki search would prove that it's not?

    Riiiight, because Wikipedia is never wrong. If I've ever on trial, I'll be sure to make lots of edits to Wikipedia that prove my innocence just before the jury starts deliberating.

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:22am

    How about judges?

    We read of judges who search the web when deliberating, or even quote blogs in issued opinions. Should we sequester the judges' Internet access as well? Maybe we assume that judges are trained enough to know what info is kosher and what's not in rendering verdicts. All the same, counsel can't cross-examine something that the judge read offline.
    Maybe it'd be better if the judge made the parties aware of what external resources he uses beforehand, and give them opportunities to object, discredit, or answer those points.

     

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    bob, Feb 8th, 2010 @ 10:25am

    The Law

    The real problem with all this is that the whole of law is now based on case law and not on constitutional law.
    If laws were based on the constitution, the states constitutions, and municipalities charters, there would be much less problems today.

    Constitutional Original Intent
    Jury Nullification
    Freedom and Liberty

     

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    Ima Fish (profile), Feb 8th, 2010 @ 10:25am

    Re: If true, then apparently Albert Einstein is wrong in The Court's eyes

    Your attempt at making an analogy fails because you don't seem to understand our trial system at all.

    All the facts the jury would need would be presented to them at trial. However, if some necessary fact was not presented, then the person who brought the case would lose, as he or she failed in his burden in proving his or her case based upon the evidence presented.

     

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    The Anti-Mike (profile), Feb 8th, 2010 @ 10:27am

    Re: Re: Re: Just plain wrong

    Damn, it's a weird day when we are agreeing.

    Yes. Emphatically yes. No question.

    Technicalities are just one step away from being railroading. Was the gun really in the box, or did someone plant it?

    I wouldn't want a misinformed juror to call someone guilty on evidence that was not presented in court.

     

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    Mike Masnick (profile), Feb 8th, 2010 @ 10:34am

    Re:

    You've never went to law school so you do not have a clue about the litany of rules of evidence and the centuries of case law interpreting those rules. It is a prosecutor's burden to prove his or her case through the evidence presented, not through inadmissible heresy or via "story" published in a muckraking newspaper.

    Yes, that's the way the system is today. No one denies this, and I'm quite familiar with this.

    I'm asking if it really makes sense. You didn't explain why it does, you just said "but this is the way it's always been done!!!!"

    I'm sorry if I don't find that convincing.

    I believe that more information is a good thing, and that includes in the courtroom.

     

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    Comboman (profile), Feb 8th, 2010 @ 10:36am

    Yes it makes sense.

    And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?

    Yes it does. Let's say you're on trial for burglary. As a kid, you were arrested for shoplifting (but not convicted, a case of being in the wrong place at the wrong time). If the prosecution brings up your prior arrest to make some point about you being a lifelong thief, the judge will tell the jury to disregard it and may even demand a retrial, since the awareness of your previous arrest may prejudice the jury (even though it is completely unrelated to the current trial). Do you really want the jury to be able to use the internet to do their own research and discover who knows what (both true and false) about you rather than deciding based only on the facts as presented at the trial?

     

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    Jimr (profile), Feb 8th, 2010 @ 10:36am

    Just allow the juror to prepare a list of questions and present it to judge who then can clear the list to all parties to give suitable answers in open court.

    Given the level at which information can be accessed it will become increasing harder to really enforce any such ban on technology. You just have to trust your juror,

     

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    Richard (profile), Feb 8th, 2010 @ 10:39am

    What should be allowed

    What should be allowed is factual information not actually part of the case.


    What cannot be allowed is information about the case itself.

    A juror may need to get information because of other issues in their life. You can't expect every juror to completely put their life on hold for the duration.

     

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    Alan Gerow (profile), Feb 8th, 2010 @ 10:41am

    Re:

    "I guess if you decided that the rules of evidence admissibility were all worthless"

    Not all of them, but enough of them.

     

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    sinrtb (profile), Feb 8th, 2010 @ 10:46am

    Re: Evidence admissibility

    I registered because of this article. Both sides of the argument are not only valid but make perfect sense.

    On one hand we have the wealth of knowledge of The Internet that could help any juror come to a much more reasoned decision than they would be able to one their own. Not only that but as time progresses more and more people will be banking their knowledge on The Internet rather than keeping it stored in their head. Most people on this site do this already, as well as most tech orientated websites. If we do not know something then we just google it, look it up on wikipedia, search relevant websites etc... As we as a species become more and more reliant on the Internet we will memorize less and focus more on the abilities of finding the information needed. If we suddenly take that ability away from people not only will we have a group of the only people that could not get out of jury duty, but they will be a disabled group not able to get out of jury duty.

    The other side of the argument is equally valid. Admissibility of Evidence and prevention of outside biased sources from contaminating the vacuum of the jury. As someone pointed out many jurors would just rely on the court of public opinion to make their decisions. Lets not forget the centuries of trial and error to used to create the system we have today. It is obviously not perfect but it took centuries to get it to this point, to start over now would be much worse than keeping the system in place.


    The beauty of this article is both sides are absolutely correct. We use tech in our daily lives and to take that away would place us at a disadvantage. But the court system cannot be radically changed, because there is new technology.

    However there is a solution, looking at the purpose of the vacuum that jurors are kept in along with why they would need the 'Net provides an obvious solution.

    In a criminal trial limit the 'Net to what is not newer than the date of the crime.

    In a civil case limit it to the date that papers were served.

    This keeps out all information that could be about the trial, as well as public opinion about the trial.

    Would it cost money? Sure but it would be cheaper than jailing innocent people.

    Would it allow outside opinions into the case? Sure but no more so than what is already available at the time, anything that is on the internet at the date of the crime, or when papers are served could have reasonably already been viewed by any juror.

    If my hypothesis of banked knowledge is correct this would be an even better solution than what is offered now. Jurors would have access to the worlds combined knowledge but be even less tainted by current public opinion.

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:46am

    Re: Re: If true, then apparently Albert Einstein is wrong in The Court's eyes

    >> Your attempt at making an analogy fails because you
    >> don't seem to understand our trial system at all.

    That's okay. But your attempt to make an analogy fails because you don't seem to understand the value of researching douches at all.

    If we would have known a previous boss was convicted and spent time in jail for embezzling the Teamsters pension, I don't think any of us would have worked there. In the end, the company was seized by the state revenue authority and we all lost several months backpay.

    Who came out ahead you may ask. The douche that continued to get a paycheck, and the douche's lawyer friend.

     

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    The Anti-Mike (profile), Feb 8th, 2010 @ 10:49am

    Re: Re:

    Mike, apparently you just don't understand the legal system or all that goes into it. Allowing information (and worse, opinion) to come into a juror's hands during a court case dminishes the entire system.

    We might as well just try people by a vote on TMZ.

    When you post up stuff like this, you leave me shaking my head. It exposes a huge streak of ignorance on your behalf.

     

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    Michael, Feb 8th, 2010 @ 10:50am

    Re: Re: Evidence admissibility

    But for everyone who read TechDirt and agreed on the jury, there would be one IP troll who didn't read anything and assumed they knew everything on the topic.

    If your jury is well-balanced and an appropriately selected group representative of the community, who cares? It seems like having them educate themselves on a subject is just as likely to yield a fair result than the current practice of making sure they are ignorant and feeding them strategic portions of information from both sides.

    The only real problem I can see is that this practice is likely to allow the rich to buy more media coverage to taint the jury. The only real question is if we believe society has gotten to the point in which the average person can tell the difference between facts and "purchased facts".

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:52am

    Re: Re: Re: Evidence admissibility

    Should jurors have the ability to request specific information from the court? (Do the jurors have that ability now?)

    Yes, they have that ability now. During deliberations they can send the judge notes with questions they may have.

     

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    Ian, Feb 8th, 2010 @ 10:53am

    The other thing is that a lot of evidence excluded in a criminal trial is excluded not because of rights violations (where the exclusion is highly contentious), but because it's evidence that is of very low reliability that is also likely to be given unduly high weight by a jury. For example, hearsay evidence is generally excluded for that reason. In Canada, long before the Charter introduced the fact that confessions under duress can be excluded as a violation of civil rights, confessions given under duress were excluded because juries feel they're likely to be accurate, but we know they're fundamentally flawed.

    The other aspect is that juries will be told during the trial what the law is. If they're doing their research on the law outside the trial, they're likely to hear a lot of things that are outright wrong.

     

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    Anonymous Coward, Feb 8th, 2010 @ 10:56am

    Re: Re: Re: Just plain wrong

    That sounds rather dangerous though, how many people who are innocent would get convicted under that same argument? I would rather a hundred guilty men walk free than one innocent man hung.

    That said, I think there should be a supply of information that juries could access, give them a huge electronic encyclopedia filled with law references or something, so they can look up different aspects (say, for example, what exactly the differences between manslaughter and the various degrees of murder are)

     

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    Paul (profile), Feb 8th, 2010 @ 11:01am

    Re: Re: Re: (by Ima Fish)

    I, for one, am not compelled by "centuries of law." In fact, one of the central problems with the legal system is, in fact, that the sheer volume of context it enshrines REQUIRES the presence of a person trained specifically and at length to handle legal matters. Which is to say, the layman is assumed not to understand the laws he is expected to follow. At its core, this premise is nonsensical.

    If jurors can't be trusted to research information, they can't be trusted to make meaningful decisions. Those bars are set equally high.

     

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    Just Joe, Feb 8th, 2010 @ 11:02am

    Wrong argument Mike

    Mike, I normally agree with a lot of what you write about. In this case I think you've gone the wrong way.

    Juries are like an antiquated business model. Choosing 12 random people to make decisions that can affect the next 5-50 years of someone's life seems like a poor way to do things. I don't care so much about the tech they have access to so much as I care who these people actually are.

    Shouldn't we think more along the lines of choosing professional juries? People who are experts in given fields and can make informed decisions about the evidence presented.

    I just don't think choosing 12 people who were not bright enough to get out of jury duty is the best way to go about things.

     

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    Anonymous Coward, Feb 8th, 2010 @ 11:02am

    Re: Re: Evidence admissibility

    On one hand we have the wealth of knowledge of The Internet that could help any juror come to a much more reasoned decision than they would be able to one their own.

    If there is some information on the net that would be legitimate evidence then it can be presented in court during the trial by one side or the other. Simple. What Mike is proposing is letting illegitimate evidence in through the backdoor outside of review by the court.

     

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    Michael, Feb 8th, 2010 @ 11:04am

    Re: Re: Re:

    Once again, you have posted something with no evidence to support it.

    "Allowing information (and worse, opinion) to come into a juror's hands during a court case dminishes the entire system"

    Exactly how? Produce a shred of evidence that this is true. Have you found a study that even suggests this?

     

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    Sneeje (profile), Feb 8th, 2010 @ 11:08am

    Re: Re: Re: Evidence admissibility

    I don't think he's proposing anything, just asking the question of us as to whether or not it's time to change the approach.

     

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    Sneeje (profile), Feb 8th, 2010 @ 11:11am

    Re: Wrong argument Mike

    Sorry, that will fail just on the practicality standpoint. The pool of potential jurors must scale with the number of cases and the expectation on those jurors must have a minimal impact on an individual jurors' life.

    Your suggested approach would guarantee that the same jurors would be called multiple times each year to meet the caseloads.

     

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    Anonymous Coward, Feb 8th, 2010 @ 11:13am

    Re: Re: Re: Re: Evidence admissibility

    I don't think he's proposing anything,...

    Seriously? OK dude, there goes your credibility in my book.

     

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    The Groove Tiger (profile), Feb 8th, 2010 @ 11:17am

    Re: The only problem I see

    An idiot juror is going to try to make an idiotic decision no matter what, even if they're presented with the evidence, and having court officers explain to them what constitutes reasonable doubt or whatever, they're going to go like "but I don't want him near my children!" or "black people should stay together!" and crap like that, instead of making a rational decision whether someone is guilty or not.

    Meanwhile, the smart ones trying to weigh the evidence will try to find out what makes a piece of evidence decisive or not, or if witnesses aren't always 100% trustworthy, or whatever, won't be able to, because they try to put them in isolation and in fact, turn them more like their idiot counterparts.

     

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    Chris-Mouse (profile), Feb 8th, 2010 @ 11:17am

    Re: Re: Just plain wrong

    As a matter of fact, I would like to see a guilty person released on a technicality, because the alternative would be to have innocent people convicted.

    Like any other testing system, the legal system has both false positive results, an innocent person found guilty, and false negative results, a guilty person found innocent. Short of finding some magic way of making humans less fallible, anything you do to reduce one error will increase the other.
    The whole 'presumption of innocence' basis for the legal system is designed to reduce the number of false positive results, and the increase in the false negatives is considered an acceptable exchange.

     

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    Free Capitalist (profile), Feb 8th, 2010 @ 11:22am

    Re: Wrong argument Mike

    Shouldn't we think more along the lines of choosing professional juries?


    Well, at least with professional juries they are already identified, bought and paid for before the trial even starts.

     

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    another mike (profile), Feb 8th, 2010 @ 11:23am

    Re: Re: Re: Evidence admissibility

    It's a sign of the end times. The apocalypse is approaching. Soon, you'll be "thissing" each other and simul-posting. And before you know it, you'll be walking Shoggoths together and all Azathoth will break loose.

     

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    Anonymous Coward, Feb 8th, 2010 @ 11:27am

    Re: Re: Re:

    Oh TAM, is there nothing you do not know? Where did you attain such a wide and worldly expanse of knowledge? Are you even truly human?

     

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    Anonymous Coward, Feb 8th, 2010 @ 11:29am

    In the future, a person shall be judged by a jury of their peering robots.

     

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    WisconsinGod, Feb 8th, 2010 @ 11:47am

    Re: Re: Re: Evidence admissibility

    Jurors can ask the court for any clarification or additional understanding on any piece of evidence submitted. They cannot ask for additional information or evidence not presented or admitted. All information provided to the Jury needs to be recorded into the trial records.

    There is no need for a Juror to access wikipedia or any other reference directly for clarification on a topic. The Court is the ultimate authority on the law, so anything related to the law (which is what you as a Juror are applying, not public opinion or your own moral thoughts) can be received from the court.

    Jurors only have 1 question they have to deal with, nothing else is relevant. It is not a question of "Did someone do something illigal or wrong or unjust, etc" the question: Did the prosecution prove beyond a reasonable doubt that the law as defined was broken by the defendant.

    While prior experience and knowldege plays a role in the jury room, only the facts presented in the courtroom should determine the outcome.

    If you want to get the law clarified or more information placed in the hands of the court, then the Jury room is not the place to do that. That should be done with the legislature. If a law is outdated our incomplete, it is not the responsibility of the court to clarify it, it is the responsibility of the legislature.

     

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    Anonymous Coward, Feb 8th, 2010 @ 12:17pm

    Re: Re: Re: Just plain wrong

    "The entire premise our country's legal system is based upon the idea that no one is above the law."

    Doesn't this example place the perpetrator of the crime above the law? He did the crime, but the law is powerless against him because of the mistakes of others. That places him above the law in that instance. That is wrong.

    The prosecutors/cops should be punished, yes. But so should the perpetrator of the crime, regardless of circumstance.

     

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    jjmsan (profile), Feb 8th, 2010 @ 12:22pm

    Re: Re:

    It isnot about the volume of information. Currently both sides disclose the information that they plan to present. If a juror goes online and acquires information how exactly does the opposite side respond. They would not even know it was done. The idea is to present organized evidence not everything that is available.

     

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    jjmsan (profile), Feb 8th, 2010 @ 12:26pm

    Re: Re: Re: Re: Just plain wrong

    That was an earlier argument as to how to enforce the law. The reason we do things the way we do now is that law officers were never punished. So what incentive did they have to follow the law?

     

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    Ian, Feb 8th, 2010 @ 12:27pm

    No one is "above the law" in the sense of not being ruled by it. A perpetrator of a crime who gets off because of a "technicality" (like that the police 'technically' beat the hell out of him until he told them where the gun could be found) is still being judged by the law.

    The method being suggested (allow in all evidence despite civil rights breaches, and then refer the police to disciplinary hearings/lawsuits/criminal charges for their misconducts) has been tried. It was the rule in Canada for a long time (up until the Charter). The net result is that police were largely free to ignore rights, because typically it is very difficult or impossible to get actual damages from suing a police officer for breaching your rights, the disciplinary hearings would at most give a slap on the wrist, and criminal charges were few and far between (because prosecutors and police have to work closely together). Basically, it meant that your rights were meaningless. The major reason now that a police officer will get in trouble if he performs an illegal search is that the evidence will get excluded. Otherwise, he's a hero around the station for being the guy who saves the day.

    What it basically comes down to is that the reason why the police don't search your car trunk or your home without a warrant is because it can't do them any good. Excluding the evidence removes the incentive. The only reason your rights mean much of anything in a practical sense is because the courts let bad people go free. It's the price of the rights.

     

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    No Legal Eagle, Feb 8th, 2010 @ 12:33pm

    Jurors doing research

    As far as I know, (my wife is a prosecutor), jurors can only consider the evidence presented. They can't consider what they saw on CSI, they can't replay 12 angry men, and they can't base an opinion on an article they read in some obscure online website. The author dismissess that fact in such an off the cuff fashion, that I was alarmed.
    Yes, you can consider personal life experieinces when you weigh the evidence, but the evidence is key, not the experience. You don't change how sucky the system is by altering it internally (jury nullification), you pressure legislators to write new rules.

    Try being a prosecutor trying a simple case and having a jury expectiing you to DNA, GSR, fiber analysis, etc when you are on a budget! Factor in the ability of jurors to second guess the system, and you might was well go professional juries.

     

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    Danny (profile), Feb 8th, 2010 @ 12:43pm

    Re: Re: The only problem I see

    Not sure what you are getting at with DP and Fox. Am in Chicago too and have been following the case. I know about the current proceedings about use of hearsay - but what did Fox do.

    And for others: as of yet there is no jury in this case.

     

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    Danny (profile), Feb 8th, 2010 @ 12:48pm

    Lets take this to the next step

    If jurors are permitted to do their own research, then won't we have a cottage industry emerge with the specific purpose of putting information in front of jurors to lobby them toward a particular conclusion?

    I strongly suspect that outcome would take about 15 minutes to develop. Then the question becomes: do we police that cottage industry in some way (to, for example, prevent interested parties from lying to jurors), or do we simply consider that part of the eco-system of justice and everything is fair play?

     

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    The Mighty Buzzard, Feb 8th, 2010 @ 12:59pm

    Yeah, um... that's a really freaking stupid idea, Mike. All the evidence presented to jurors now, someone had to swear to it's truth to the best of their knowledge. Not so what they look up on wikipedia during deliberations.

     

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    Dark Helmet (profile), Feb 8th, 2010 @ 1:02pm

    Re: Re: Re: The only problem I see

    "Not sure what you are getting at with DP and Fox. Am in Chicago too and have been following the case. I know about the current proceedings about use of hearsay - but what did Fox do."

    In the Savio case (the one he's going to trial over), the original ME's report stated that she had died because of an accident. The reason this is going to trial now is because a new ME performed a second report/autopsy and went the other direction, saying that the cause of death was NOT accidental.

    That second ME was explicitly paid for by our local Fox affiliate, who then ran with headlines on the DP case for weeks on end, and are continuing to report on it to this day. They are specifically profiting from the sensational headlines created by the second ME's report, which they paid to have performed.

    If that ain't a conflict of interest on BOTH the ME and Fox, I'm not sure what is....

    Again, DP appears to be a class A douche, and he is certainly ACTING guilty....but that doesn't make Fox and the ME's actions any less inconscionable....

     

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    PrometheeFeu (profile), Feb 8th, 2010 @ 1:14pm

    While I think juries without outside knowledge of the case would be significantly better, I think it is un-reasonable such people will still exist in the short term. I think that instead of trying to fight the tide, the legal system should study the impact of outside information and decide on the best way to handle it in a manner that is consistent with judicial principles. Perhaps the jury should be allowed to bring up their independent research which the parties and the court can then address according to the rules of evidence. Perhaps the jury instructions need to be revised to address independent research as something else than inexistent. I'm sure we can come up with a smart way to deal with this.

     

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    The Anti-Mike (profile), Feb 8th, 2010 @ 1:38pm

    Re: Re: Re: Re:

    I already gave a great example: Evidence that has been denied by the court for whatever the reason may be.

    The US (and most western) court systems are based on the evidence presented in the court. The jurors take that evidence, and make their decision based on what is in court. Period.

    They don't base their judgments on Rush Limbaugh or Al Franken. They don't listen to Dave, Jay, or Oprah, they don't get The View, they don't get to open wikipedia, and they don't get to visit techdirt.

    They have to base their judgment on what is presented in court. Everything else is "evidence not admitted or not presented" and is misleading.

    How difficult an idea is that?

    If they jury needs more information, the come back to the court, and ask the judge for guidance, information, or clarification.

    That stops outside sources from tainting the process.

     

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    Dark Helmet (profile), Feb 8th, 2010 @ 2:03pm

    Re: Re: Re: Re: Re:

    I agree with you here (this is becoming a disturbing trend...).

    I liken it to a football game. The current laws of discovery and information the jury is supposed to have access to are like the rules of the game, and they serve a purpose. They aren't perfect, so occassionally we change them for better or worse (I.E. changing the horse collar rules or hitting the QB in football, dammit let those human behemoths PLAY for chrissakes!), but they still have to play by the rules because, unlike other situations, it's generally accepted that the outcome is better for rules rather than worse.

    This change is more akin to the Colts suddenly deciding to carry handguns in their pads. While it might make the game a hell of a lot more efficient last night, we're no longer playing football at that point....

     

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    rwahrens (profile), Feb 8th, 2010 @ 2:07pm

    Re: Re: Re: Evidence admissibility

    But the problem with allowing a jury to access information from outside is that there is then no record of what information influenced the jury's decision for the trial record, which is what appeals courts use to decide appeals.

    Another problem is that when information is accessed outside of court channels, there is no way for the court to ensure that the information accessed is correct. You KNOW that there is a lot of misinformation on the internet or from some idiot reporter's un-fact-checked-story?

    Do YOU want your future to rest on what some idiot on your jury finds on some other idiot's site that may be more full of holes than swiss cheese?

    Not me.

     

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    AnonCow, Feb 8th, 2010 @ 2:20pm

    There is no such thing as a "smart juror". If you are smart, you can find a way to be excused from jury duty.

    Also, what would prevent a defendant from creating misinformation online and gaming Google results such that jurors searching for his name or other relevant searches would display biased information? Or even just manipulating Wikipedia entries? Maybe not likely for your average petty crime, but completely believable for an OJ level murder trial.

     

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    Anonymous Coward, Feb 8th, 2010 @ 2:47pm

    Re: Re: Re: Re: Evidence admissibility

    " If a law is outdated our incomplete, it is not the responsibility of the court to clarify it, it is the responsibility of the legislature."

    Not true. The purpose of a jury is also to determine if a law should be enforced, otherwise we wouldn't have jury nullification, the people's last line of defense against an unjust law.

    http://en.wikipedia.org/wiki/Jury_Nullification

     

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    NAMELESS.ONE, Feb 8th, 2010 @ 3:07pm

    this is so simple

    in order to prop up the american forever copyright ideal and patent for ever ideal they must restrict anyone form every having any tool that can allow you to think beyond a monkeys.

    YES folks dumb stupid and lazy just how we all like em.

     

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    Ian, Feb 8th, 2010 @ 3:19pm

    Also, part of how the adversarial system finds truth is by allowing every piece of evidence that is introduced (by the defence or prosecution, plaintiff or defendant) to be challenged by the other side.

    If the jurors are going off and finding new pieces of evidence, these pieces of evidence are things that the other side has not been able to address. They may be outright falsehoods, but you may never get to challenge them.

    The adversarial system is one of the fundamental underpinnings of the system. Undermining it isn't a small change, it's basically destroying the entire value of the system.

     

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    Willton, Feb 8th, 2010 @ 3:26pm

    Re: Re:

    I'm asking if it really makes sense. You didn't explain why it does, you just said "but this is the way it's always been done!!!!"

    I'm sorry if I don't find that convincing.

    You're missing the point. What Ima Fish said is that if you went to law school, then you would KNOW the reasons why we have the rules of evidence that we have and would not need someone to explain it to you. Needless to say, the reasons why we have the rules of evidence that we do are too voluminous to be discussed comprehensively in a comment to a blog post.

    If you want to know why we have the rules that we have, you should do some legal research on your own.

     

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    nasch (profile), Feb 8th, 2010 @ 3:38pm

    Re: Re: The only problem I see

    Not that DP isn't a class A Deutche Bag, but what Fox did to involve themselves in the case was retarded....

    Hey, leave the Germans out of this.

     

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    Anonymous Coward, Feb 8th, 2010 @ 3:42pm

    Re: Re: Re: Re: Re:

    They don't base their judgments on Rush Limbaugh or Al Franken. They don't listen to Dave, Jay, or Oprah, they don't get The View, they don't get to open wikipedia, and they don't get to visit techdirt.

    Ah, but you see, Mike thinks they *should*. Get out those torches and pitchforks!

     

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    Mike Masnick (profile), Feb 8th, 2010 @ 3:44pm

    Re: Re: Re:

    You're missing the point. What Ima Fish said is that if you went to law school, then you would KNOW the reasons why we have the rules of evidence that we have and would not need someone to explain it to you.

    I do know the reasons. I actually took a fair number of law classes, including an entire course on the rules of evidence, that covered both criminal and civil law, as well as how the statutory law diverges from common law. It was a fun class.

    Ah, but you want to make assumptions.

    Needless to say, the reasons why we have the rules of evidence that we do are too voluminous to be discussed comprehensively in a comment to a blog post.

    Um. Ok. I see that and all I hear is "I don't really have an answer, so I'm going to pretend that you need to be a part of the club." No, it is not "too voluminous to be discussed." Certainly I don't expect a thesis, but you could at least put forth, I don't know, a SINGLE argument?

    As I said in the post (which you seem to ignore) I understand the reasons why we've always had rules of evidence. I'm questioning whether they still make sense. Your response isn't to address that question, but to falsely claim I don't understand why we have rules of evidence.

     

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    nasch (profile), Feb 8th, 2010 @ 3:47pm

    Re: Evidence admissibility

    The police could even manufacture evidence that would never pass muster in a court, and then leak it somewhere. If the defense found out, they would raise a stink, but consider your average juror. Mightn't they think, "boy, these guys really don't want this evidence considered, they must have something to hide."

    Perhaps we should change jury rules so that the jury can request new evidence be admitted. For example, background information on such-and-such industry. If the defense and prosecution can agree on a source, admit it. Or maybe just leave it up to the judge to avoid deadlock. For the facts of the case, stick with the evidence presented, because there's a reason any other evidence didn't get admitted. For details of the law, ask the judge.

     

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    nasch (profile), Feb 8th, 2010 @ 3:56pm

    Re: Re: Just plain wrong

    Alternately, by the same virtue, would you rather an innocent person was convicted because the prosecutor got certain bits of evidence ruled as "inadmissable"?

    IANAL, but how does defense evidence get ruled inadmissible? I would think it's because the evidence is not credible or not relevant. However, it's impossible for the evidence to be barred because it was obtained by violating the prosecution's civil rights. That is a primary reason prosecutorial evidence is barred, but not defense. Thus, the situations are not parallel.

    And add me to the list of people who would rather a guilty person be aquitted than to allow a conviction based on illegally-obtained evidence - which you described as a "technicality". IMO the 4th Amendment is far more than a technicality.

     

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    jjmsan (profile), Feb 8th, 2010 @ 3:56pm

    Re:

    What if I want to be on a jury because I think it is important? Does this automatically make me stupid?

     

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    Clueby4, Feb 8th, 2010 @ 4:27pm

    Jury duty

    Why do get a feeling that Mike hasn't had jury duty.

    @Mike what's up with your reply did you skip the 30 preceding posts to your comment, and frankly post #2 really covers why this would be incredibly bad idea.

    "Wealth of knowledge" yea you can argue that but there is also a wealth of stupidity, falsehoods, worthlessoffensivetrivial content, etc all which are subjective to opinion, ie just because you found it on the internet does not make it true.

    And while evidence admissibility is the show stopper there are a plethora of other issues: jury tampering, jury distraction, validationvetting of information used, accessibility, and most importantly need, since I've yet to see a VALID reason to allow such luxury.

    Frankly, before we ponder how we can "tech up" the justice system, I rather get the basic concept of jury nullification drilled into the masses skulls first.

     

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    Willton, Feb 8th, 2010 @ 4:58pm

    Re: Re: Re: Re:

    As I said in the post (which you seem to ignore) I understand the reasons why we've always had rules of evidence. I'm questioning whether they still make sense. Your response isn't to address that question, but to falsely claim I don't understand why we have rules of evidence.

    That's because you did not present any of said reasons before beginning to question them. For instance, if you are questioning whether the principle of cross examination still makes sense or has value, then you should specifically say so. If you are questioning whether credibility or verification are good reasons for having the rules that we do, then you should specifically say so.

    If you understand the reasons for having rules of evidence and are then questioning whether they still make sense, then perhaps you should specifically spell out which rules or reasons you are questioning. Making some generalized statement like "Why do these rules/reasons make sense?" without providing the rules or reasons that you are questioning, you leave it up to your readership to wonder what the hell you are talking about. Since you did not provide the thing you are questioning, I can only assume that you don't know what you are questioning.

     

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    Ian, Feb 8th, 2010 @ 4:59pm

    Re: Nasch

    I'm not a lawyer either, but I am a law student. Defence evidence is ruled inadmissible all the time (or defence just doesn't bother trying to introduce it, knowing that it'll be shut out).

    Examples of types of evidence that a defendant might want to introduce that are excluded (note: All of this applies in my area, and may not apply in yours--I'm also not in the US, though our systems have a number of similarities):
    -When the defendant was picked up, he told the police that he didn't do it. The fact of this statement is inadmissible under the rule against self-serving evidence.
    -The defendant wants to introduce the fact that he passed a lie-detector test into evidence. Where I am, that would be inadmissible as not sufficiently supported by science.
    -A defendant accused in a rape case wants to introduce the fact that he's been in a relationship with his accuser for the past nine months, for the purposes of showing that it was likely she'd have consented to the sex. This is barred by rape shield statutes in my area.
    -The defendant can bring someone forward who says that he heard another man confess to the crime. That other man has since died. That evidence would be hearsay, and so unless it can be brought within one of the hearsay exceptions, it is inadmissible.

    And so on, and so on, and so on.

     

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    Willton, Feb 8th, 2010 @ 5:24pm

    Re: Re: Nasch

    Other examples of evidence presented by a criminal defendant being excluded:
    - Evidence that is not relevant and designed to confuse or inflame the jury (the victim was [insert race/creed/nationality/religion/association here])
    - Evidence that cannot be verified (a photo/video that provides the defendant with an alibi, but no one can authenticate it)
    - Evidence of plea negotiations (plea negotiations could prove that the state does not have a good case, but such negotiations are barred from admissibility under the Federal Rules of Evidence to promote the resolution of cases without a trial)

     

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    Messenger, Feb 8th, 2010 @ 6:50pm

    Mr. Masnick,

    You have been accused of raping and killing a young girl in 1990. You may hereby plead guilty to these crimes or a not guilty plea will be entered on your behalf. In the case of a not guilty plea a jury trial will be held.

    You don't need to do anything for the trial because we're going to do it your way. In fact, you won't need an attorney or even to know when or where the trial will be held because there will be no evidence or testimony introduced in court by either side. Instead, we are going to send the jury out to investigate on its own. There are no rules as to what is or is not admissible as evidence and you are free to post anything you want to about your case on the internet for the jury to possibly find and consider. However, you will not have a chance to challenge or refute anything the jury finds as these things will be known only to the jury. The jury will then render a verdict at the end of their combined investigations and deliberations. I am sure you will find this system to be fair as per your own standards.

     

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    Hoeppner, Feb 8th, 2010 @ 7:04pm

    If the defenses/plaintiffs lawyers can't present information relevant to the case, then it's the failing of the lawyers.

    I mean really if juries "researched" fingerprinting in the first court cases they would have just found a few science fiction books, conflicting papers on the topic, and a whole lot more opinion. Juries not being able to actively research is very important because it reduces the "noise" in a case.

     

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    Willton, Feb 8th, 2010 @ 8:05pm

    Re: Mr. Masnick,

    You have been accused of raping and killing a young girl in 1990. You may hereby plead guilty to these crimes or a not guilty plea will be entered on your behalf. In the case of a not guilty plea a jury trial will be held.

    You don't need to do anything for the trial because we're going to do it your way. In fact, you won't need an attorney or even to know when or where the trial will be held because there will be no evidence or testimony introduced in court by either side. Instead, we are going to send the jury out to investigate on its own. There are no rules as to what is or is not admissible as evidence and you are free to post anything you want to about your case on the internet for the jury to possibly find and consider. However, you will not have a chance to challenge or refute anything the jury finds as these things will be known only to the jury. The jury will then render a verdict at the end of their combined investigations and deliberations. I am sure you will find this system to be fair as per your own standards.


    Now that's funny.

     

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  88.  
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    Mark Harris (profile), Feb 8th, 2010 @ 8:18pm

    Re: Re: Re: Re: Evidence admissibility

    They can only ask questions about the evidence already presented in court, though, as I understand it. THey can't ask for new evidence that hasn't been consedered by the court.

     

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  89.  
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    rwahrens (profile), Feb 8th, 2010 @ 8:23pm

    Re: Re: Re: Re: (by Ima Fish)

    The issue isn't whether jurors can be trusted.

    The issue is that evidence presented AT TRIAL is what the jury is supposed to consider.

    The ONLY evidence the government can present is that which is LEGALLY obtained by the police and the prosecutor's office. There are limits to the government's ability to obtain evidence for a reason, and that is to protect YOUR rights.

    The only rebuttal to the government's case allowed is that presented to the jury AT TRIAL.

    This two stage process is to allow both sides to be able to view the opposing side's evidence BEFORE it is presented in the courtroom so each can vet the information to be presented, for, among other things, validity and admissibility.

    This assures a fair, balanced trial with few surprises, most of the time.

    The jury isn't allowed to present evidence or dig for more evidence. It must go to the judge for explanations of matters at law and for the possible re-viewing of evidence already presented (which is not always allowed).

    If the jury were allowed to dig for its own information, there is no control over either validity or credibility and whether that information may be unduly prejudicial to either side.

    Plus, no record would be madeof what was viewed, where it was obtained, or who may have compiled it, so the appeals court has nothing to see in order to determine how the appeal should be settled.

    In other words, a cluster f**k.

    No thanks, I'll take my chances with the current legal structure, thankyouverymuch.

     

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  90.  
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    rwahrens (profile), Feb 8th, 2010 @ 8:27pm

    Re: Re: Re: Re:

    Oh, come on, this is readily available information, any dolt off the street can take classes to obtain this same knowledge. In fact, ALL citizens should know how the legal system works, and should by the time they are Juniors in high school.

    This isn't rocket science. Grow up.

     

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  91.  
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    rwahrens (profile), Feb 8th, 2010 @ 8:39pm

    Re: Re: Re: Re:

    Since you have taken classes on rules of evidence, then you should be aware that technology doesn't change the facts of how our system works.

    It may change how that system USES it, but the reasons for those rules are still valid.

    Juries are still composed of humans, who may be biased and who may still have hidden reasons for that bias. Lawyers are still human, as are judges, and outside parties related to the defendant or victim still have reasons for wanting to taint that process.

    The government is still a more powerful entity that the rules are designed to prevent from wielding too much power over any one defendant, so the playing field can be at least somewhat level.

    Technology doesn't change ANY of that.

    Your reasoning in allowing juries to independently obtain information is flawed because it short-circuits the system, and allows possibly tainted, incorrect or even planted information to skew how a jury would view a defendant, which would be totally out of the control of the court.

    But then, you know that. So this post is pretty much a waste of time as presented.

    Instead, it should have explored ways to use modern tech to enhance the courtroom instead of undermining the process.

     

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  92.  
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    Mike Masnick (profile), Feb 8th, 2010 @ 9:38pm

    Interesting

    Reading the replies, it appears that the folks here who disagree with me seem to assume that the average person is a moron, easily fooled by reports.

    I tend to have more faith in humanity and their ability to understand things.

    Are there idiots out there? Sure. But perhaps I have too much faith in human beings to be competent. I find it kind of sad that so many folks here have such little respect for fellow human beings.

     

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  93.  
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    Messenger, Feb 8th, 2010 @ 10:13pm

    Re: Interesting

    Reading the replies, it appears that the folks here who disagree with me seem to assume that the average person is a moron, easily fooled by reports.

    No, Mr. Masnick, and I'm sure your trial will be very fair, as per your standards. I'm also glad to hear you have so much respect for the jurors, although we may have to replace one of them because I hear he followed his GPS off a cliff.

    By the way, you might want to consider trying to get your defense, if any, published in the National Inquirer, as I understand it is a favored source for several of the remaining jurors.

     

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    Ian (profile), Feb 8th, 2010 @ 10:13pm

    Re: Interesting

    Juries get extensively studied, and what is consistently found is that juries are not necessarily good at sorting out evidence that they should disregard.

    For example, juries treat confessions as extremely strong evidence, even where there's substantial reason to doubt the confession. In mock trials, juries will usually convict on the basis of a confession that they are told was A) obtained by force after physical torture, and B) is completely contradicted by solid physical evidence. IE, mock juries will convict in situations where it is impossible for the person to have done it, just because they confessed as a result of torture.

    I'm not assuming anything. Further, this isn't a matter of being a moron, it's a matter of being human. There's a further wrinkle in that juries in criminal trials experience strong selective pressures. People with jobs desperately seek to avoid jury duty because the pay is terrible and they can't afford to live on a juror's wages. Students are routinely excluded, as are teachers. Further, in the US they will often exclude those who have heard about the incident, which weeds out the media savvy.

    A lot of evidence that is excluded might be the sort of thing you'd expect an intelligent person to consider. The fact that the accused had a bloody knife in his car is a highly salient fact--but the jury may be foreclosed from considering that fact due to the improper behaviour of the police. Other evidence is excluded because it is irrelevant or of only weak value, but the average person is likely to weigh it too strongly (hearsay evidence, past sexual behaviour of the complainant in sex offence trials, etc).

    Mr. Masnick, I am not normally a detractor of yours. On this subject, however, you are arguing from a position of ignorance, and your arguments lack a basic logical foundation and have mostly been open questions that suggest an answer without offering any reasons for it ("Why not do this?") or appeals to emotions. You've been ignoring the fact that what you suggest would undermine the fundamentals of our justice system and could have great adverse effects on trial fairness.

     

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    Mike Masnick (profile), Feb 9th, 2010 @ 12:00am

    Re: Mr. Masnick,

    You don't need to do anything for the trial because we're going to do it your way. In fact, you won't need an attorney or even to know when or where the trial will be held because there will be no evidence or testimony introduced in court by either side. Instead, we are going to send the jury out to investigate on its own. There are no rules as to what is or is not admissible as evidence and you are free to post anything you want to about your case on the internet for the jury to possibly find and consider. However, you will not have a chance to challenge or refute anything the jury finds as these things will be known only to the jury. The jury will then render a verdict at the end of their combined investigations and deliberations. I am sure you will find this system to be fair as per your own standards.

    Wow. Strawman much? No one said any of that. You can still hold a trial, but that doesn't preclude the ability to do additional research as well.

    But, yes, if I were on trial for something I would want the jury to be able to do additional investigation.

     

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  96.  
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    Mike Masnick (profile), Feb 9th, 2010 @ 12:01am

    Re: Re: Interesting

    No, Mr. Masnick, and I'm sure your trial will be very fair, as per your standards. I'm also glad to hear you have so much respect for the jurors, although we may have to replace one of them because I hear he followed his GPS off a cliff.

    Thus proving my point.

     

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  97.  
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    Anonymous Coward, Feb 9th, 2010 @ 1:23am

    Re: Interesting

    Are there idiots out there? Sure. But perhaps I have too much faith in human beings to be competent. I find it kind of sad that so many folks here have such little respect for fellow human beings.

    People or organizations thereof whose competence, honesty, intelligence, or foresight is questioned, implicitly or explicitly, on the front page of this blog, right now:

    - Rupert Murdoch, the AP, and others
    - A court in Norway
    - AT&T
    - Brian Mazzaferri
    - The Authors Guild
    - The RIAA
    - AT&T (again)
    - Verizon Wireless
    - The Economist (sorta; gets credit for being "about as good...as you might expect to see in such a mainstream publication")
    - Every lawyer in the film "Copyright Criminals"
    - People who do not see the shame in not having a shared experience of art
    - A minimum of one court in the 3rd Circuit
    - The IEEE
    - Anyone who leaves money in a PayPal account
    - PayPal
    - The entertainment industry
    - The Italian Supreme Court and one or more lower courts
    - Anyone who thinks the ruling by the Italian Supreme Court and one or more lower courts will make a difference
    - At least one court in the 11th Circuit
    - Olivia Munn's attorneys
    - Jeff Zucker
    - Bryan Roberts
    - The folks at NBC Universal

     

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  98.  
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    Mike Masnick (profile), Feb 9th, 2010 @ 2:02am

    Re: Re: Interesting

    People or organizations thereof whose competence, honesty, intelligence, or foresight is questioned, implicitly or explicitly, on the front page of this blog, right now

    Uh yeah, 'cause I always write articles about your average every day people. If I'm writing about something it's because I find it noteworthy, not because it's your ordinary American.

    So your list is meaningless.

    It's also wrong. First you included a lot of people who I most certainly DID NOT question their honesty implicitly or explicitly. I may have questioned a decision they made, but that's entirely different than suggesting they were idiots or would't take the idea of being on a jury seriously.

     

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  99.  
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    Messenger, Feb 9th, 2010 @ 2:24am

    Re: Re: Mr. Masnick,

    No one said any of that.

    On the contrary, I said all of that. Are you saying that you're opposed to some part of it in principle? If so, what part and on what grounds?

     

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  100.  
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    Anonymous Coward, Feb 9th, 2010 @ 2:32am

    Re: The only problem I see

    "Smart Juror"? You're kidding, right? That's an oxymoron if I EVER read one! Haven't you heard the joke? Sent to prison by 12 people too dumb to get out of jury duty!
    Understand, I'm all for allowing jury members to do research on their own. Especially if I'm the defendant and the case is heavily technical. We're supposed to be judged by a jury of our peers, and I don't think that they're going to bother to track down 12 computer science people. So, the only solution is to educate the jurors on the issues. If the court won't do it, they at least shouldn't stop the jurors from educating themselves.

     

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    Anonymous Coward, Feb 9th, 2010 @ 2:43am

    Re: Evidence admissibility

    I understand the issue of evidence admissibility, believe me I do. But, we don't live in a vacuum, the alleged crime was not committed in a a vacuum, potential punishment will not be carried out in a vacuum, so why do we decide guilt vs. innocence in a vacuum?

     

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  102.  
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    Anonymous Coward, Feb 9th, 2010 @ 2:51am

    Re: Re: Re: Re: Evidence admissibility

    Actually, you couldn't be more wrong. Or government consists of three branches specifically to provide a system of checks and balances. Clarification of an outdated or incomplete law is the responsibility of ALL THREE branches of government. Sure, the legislature can pass a law that makes it illegal for women to cut their hair (ridiculous, but I'm making a point), but the president will simply veto the bill. If he doesn't, then the courts will strike the law down as unconstitutional. Checks and balances.

     

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    Mike Masnick (profile), Feb 9th, 2010 @ 3:05am

    Re: Re: Re: Mr. Masnick,

    On the contrary, I said all of that. Are you saying that you're opposed to some part of it in principle? If so, what part and on what grounds?

    Ok, perhaps you are single-handedly trying to convince me that you're the idiot I should be afraid of?

    Yes, of course YOU said that, but you were saying it *as if I had suggested that's what I wanted.* But that's not what I said at all. And you know that.

     

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  104.  
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    Messenger, Feb 9th, 2010 @ 4:15am

    Re: Re: Re: Interesting

    Thus proving my point.

    If your point was that some of the jurors may be a little lacking in the critical thought department and prone to believing almost anything they're told, then yes, your point was nicely proven.

     

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  105.  
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    Messenger, Feb 9th, 2010 @ 4:31am

    Re: Re: Re: Re: Mr. Masnick,

    Ok, perhaps you are single-handedly trying to convince me that you're the idiot I should be afraid of?

    Now now, Mr. Masnick, ad hominem attacks and name calling will get you nowhere and do nothing for your credibility.

    Yes, of course YOU said that,

    Good, I'm glad we got that straightened out.

    but you were saying it *as if I had suggested that's what I wanted.*

    Not at all, just in line with principles you seem to find acceptable.

    But that's not what I said at all. And you know that.

    Now I thought we had that straightened out. One more time: No, you didn't "say that", I said it. I never claimed you said it and *you know that*. However, I note that you have also failed to point any part of it to which you are opposed in principle and so the trial will continue as described.

     

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  106.  
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    Mike Masnick (profile), Feb 9th, 2010 @ 4:56am

    Re: Re: Re: Re: Re: Mr. Masnick,

    Now now, Mr. Masnick, ad hominem attacks and name calling will get you nowhere and do nothing for your credibility.

    There was no ad hominem. You are making an idiotic argument and I am telling you it is an idiotic argument. The fact that you are not admitting who you are is pretty telling.

    Now I thought we had that straightened out. One more time: No, you didn't "say that", I said it. I never claimed you said it and *you know that*. However, I note that you have also failed to point any part of it to which you are opposed in principle and so the trial will continue as described.

    You are using Scott Adams famous "truckload of vegetables" argument.

    A: Vegetables are good for you.
    B: Don't be ridiculous, if you ate a truckload of vegetables you would die.

    I stated a simple question: does it make sense to allow juries to have access to additional information. You then took that to ridiculous extremes and suggested I supported that.

    Do you honestly believe there's no middle ground? Do you honestly believe that anything I suggested involved doing away with the rest of the trial?

     

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  107.  
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    Luci, Feb 9th, 2010 @ 5:55am

    Re: Re: Re: Re: Re:

    Wilton, instead of going off in a rant about how he didn't point to what he was questioning, why not re-read the post? Hmm? It's right there in black and white. The first few lines, in fact.

    At a guess, from the evidence provided, I'd say you would make a horrid lawyer or investigator, and an even worse judge.

     

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  108.  
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    Luci, Feb 9th, 2010 @ 5:59am

    Re: Re: Just plain wrong

    That would be a religious belief, and if that juror had not been eliminated, then their religious beliefs would still color their decision. Do you really think that juries forget all they already know, think or feel just because a judge tells them to? Sorry, doesn't happen.

     

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  109.  
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    Luci, Feb 9th, 2010 @ 6:04am

    Re: Re: yeah, my thoughts too

    > That's why we have an adversarial system. When one side screws up, the other side points it out.


    Not if it's to the other side's advantage, they don't.

     

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  110.  
    identicon
    :), Feb 9th, 2010 @ 6:37am

    Juries.

    I do think it make sense.

    Bad juries could use technology to engage in bribing and other things.

    But there is the obvious information choke that happens that is bad, but given the alternative(juror being coerced, bribed etc) this is second to that and there is some ways to deal with it.

    Jury sequestration for me is about reducing external factors that could facilitate corruption and violence as tools to influence courts.

     

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  111.  
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    Willton, Feb 9th, 2010 @ 7:38am

    Re: Re: Re: Re: Re: Re:

    Wilton, instead of going off in a rant about how he didn't point to what he was questioning, why not re-read the post? Hmm? It's right there in black and white. The first few lines, in fact.

    This is what he said:
    And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?

    Does what make sense? If he understands the reasons for why we only allow juries to see evidence that's presented during trial, then why the open question as to why they make sense? That leads me to believe that he DOES NOT understand such reasons; otherwise he wouldn't be asking the question.

    However, if Mike wants to question why such reasons make sense, then he should be able to point out which reasons do not make sense and why. Otherwise he leads the reader to believe that he has no idea what he is talking about and is just trying to stir the pot. And based on the discourse of this thread, my guess is that he likely does not have a clue as to what he is talking about, and perhaps should do some more research on his own before he starts spouting off on how trials should be run.

     

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  112.  
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    Messenger, Feb 9th, 2010 @ 8:44am

    Re: Re: Re: Re: Re: Re: Mr. Masnick,

    There was no ad hominem.

    The readers can look up above and decide for themselves.

    The fact that you are not admitting who you are is pretty telling.

    Telling? In what way? Who do you think I am, Mr. Masnick?

    Do you honestly believe that anything I suggested involved doing away with the rest of the trial?

    You can present any evidence you want to in your defense (post the URL and we'll pass it along to the jurors). You can even testify in your own defense without facing cross examination from the prosecution. Furthermore, that testimony doesn't even have to be under oath (although you can swear an oath anyway if you like). Finally, the prosecutor isn't even going to present a case! Now how much more could the cards be stacked in your favor? Which part of the trial are you missing?

    You've been repeatedly asked to identify what you're opposed to and to state the grounds for your opposition and you have not done so. Instead, you've resorted to claiming I said you said things I didn't say you said and name calling. Mr. Masnick, I sincerely hope you can do better than that with the jury.

    Judge Messenger

     

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  113.  
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    rhandrich (profile), Feb 9th, 2010 @ 9:09am

    Why jurors on the internet don't work

    If you are interested in learning how jurors on the internet (and in social media) have had negative impact on trials, check out our article in The Jury Expert here: http://www.astcweb.org/public/publication/article.cfm/1/21/6/Why-Jurors-Turn-to-the-Internet

    Ther e are really good reasons to not want this to happen--and you wouldn't want this sort of issue coming up if you were the one on trial. Hope you'll visit!

    Rita Handrich, Editor, The Jury Expert

     

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  114.  
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    Mike Masnick (profile), Feb 9th, 2010 @ 10:30am

    Re: Re: Re: Re: Re: Re: Re:

    Does what make sense? If he understands the reasons for why we only allow juries to see evidence that's presented during trial, then why the open question as to why they make sense? That leads me to believe that he DOES NOT understand such reasons; otherwise he wouldn't be asking the question.

    Talk about a tautology.

    "If you understand why US citizens are allowed to have slaves, then why question as to why it makes sense? This leads me to believe he does not understand such reasons, otherwise he wouldn't be asking the question."

    Just because there are reasons why something was done, it doesn't mean those reasons are good, Willton.

     

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  115.  
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    Trial Consultant, Feb 9th, 2010 @ 10:37am

    reality v. legal system

    Mike, you are pushing in the right direction. The facts are that the legal system labors under a 19th century directive for much. However, we have seen progressive opening up of the system. For example, many jurisdictions now allow jurors to question witnesses by passing questions to the judge. Once upon a time they were not allowed to take notes. Now they can. Lawyers presentations are becoming more visual in form as jurors are used to getting their information visually now. Few jurors would participate in the legal system if they felt they would be sequestered from friends and family for periods of time, so we are seeing less of that, even for high profile cases. And in cases where we see that happen we know that the jurors bond and most likely talk to each other about the case well before the judge has instructed them to.

    I feel certain that a couple of times over the last year jurors have "googled" experts and other parties in a trial that I was involved in. With modern information technology we have been and will increasingly see it happen no matter what the judge instructs. Only the oldest generation has so much respect for authority that they will whole heartedly obey a judges instructions in my opinion.

    To think you could stop and reverse these societal tendencies [more openness, more available information, less adherence to authority]is foolishness in my opinion.

    We counsel attorneys to be aware of what is out there on the internet about their case and to actively counter it at trial if possible. It is really not that hard.

    As academia developed tools to counter the cheating of students getting papers from the internet and wrong information students gleamed from the internet so will the court system. But banning activity has never really worked in the past and certainly won't work going forward.

     

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    Willton, Feb 9th, 2010 @ 11:15am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Just because there are reasons why something was done, it doesn't mean those reasons are good, Willton.

    Fine, then why don't you explain why they are NOT good reasons? That's what you have not done. You want to question the reasons why we don't allow jurors to do their own research about a case on which they sit, but you don't even provide which reasons you question, let alone why they should be questioned. All you say is that you are questioning them. Well, what reasons are you questioning?

    Honestly, Mike, if you understand the reasons for our rules of evidence so well, then you should be able to clearly point to the reasons that do not make sense in your opinion. Then people like me can raise counterpoints to your arguments. Thus far you've failed to do so, either because you don't know what the reasons are or because you want to keep your opinions secret. Either way, you are not promoting honest debate because you're leaving your readership to guess what the heck you are talking about.

     

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    Willton, Feb 9th, 2010 @ 9:07pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    By the way, Mike, your silence is deafening.

     

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    masini (profile), Feb 10th, 2010 @ 6:57pm

    No

    Justice has not been and will never be impartial Whatever endeavor. Jury are subjective and that is the truth. Technology is not how to penetrate the life of justice than to a point.

     

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  119.  
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    Anonymous Coward, Feb 15th, 2010 @ 7:35am

    Re: Re: Mr. Masnick,

    There are two very clear arguments (though the opponents have failed to acknowledge such). The problem is not with the arguments, but whether there is objective evidence to favor one over the other.

    The reason for the rules of evidence and preventing jury contamination has been proven over and over and over again. How many times do we need mistrials and changes of venue to prove that juries can be contaminated by doing "additional investigation" on their own?

    I recall a recent case in central Illinois where there had been so much press regarding a case where a mother and her boyfriend were accused of murdering her children that the defense requested, and got, a change of venue. The defense's argument? The jury pool in the immediate area had been tainted by media coverage of the case. Watching the news reports, reading newspaper accounts and reading the internet, it was hard to avoid inferring that the two were guilty. Yes, they ultimately were found guilty, but they were found guilty based on evidence admitted at trial, not based on conclusions drawn by news reporters, newspapers, and "citizen" journalists.

    If a defendant discovered that even one juror did "additional investigation," regardless of whether that "additional investigation" was relevant to the reason the defendant was found guilty, would the defendant have a case for an appeal or a mistrial? Absolutely.

    Is having "more information" better for making a decision? Maybe. The question is not whether "more information" is better, but just what does "more information" mean? I could make up ludicrous examples all day, but let's try one with a bit of realism...

    A defendant has been charged with stabbing someone. The evidence seems to point to the defendant being guilty. A juror decides to go out and do a little "additional investigation." The juror is bothered by the following facts, or lack of facts, presented during the trial:

    - No cuts on the defendant, which is unusual in a stabbing attack.
    - Though the defendant's finger prints were on the knife, there was no other DNA evidence submitted by the prosecution, and the defense never raised the issue of the lack of DNA evidence.
    - The defendant had no prior history of violence or any other stabbing attacks. The defendant knew the victim. Yet, there were no indications of hesitation, as would be expected in a defendant of that background.

    It would be easy for a juror to be convinced through "additional investigation" that the prosecution had not provided convincing evidence to explain what this juror had found through "additional investigation."

    If these areas were truly concerns, the defense could have brought them up. However, the defense already knew that the crime scene had been contaminated with bleach and there was no usable DNA evidence. The prosecution did not bring up the lack of DNA evidence because it did not clearly help their case, even though a shirt with bleach stains on it was found in the defendant's home. The defense did not bring up the lack of DNA evidence because that would have introduced the bleach stained shirt, which still had a lingering bleach smell and which the defendant had tried to hide, and the defense was not sure how the stained shirt would be perceived.

    The lack of cuts on the defendant was mentioned, but never detailed by either the prosecution or the defense. The prosecution decided not to pursue the evidence because the lack of cuts favored the defense. The defense already knew that the reason the defendant never got cut was because the defendant only stabbed the victim twice, and the knife never got sufficiently slippery with blood for the defendant's hand to slip on the knife - but the lack of cuts without this background appeared to argue in favor of innocence. But the defense never brought the issue up because the prosecution would have pointed out the lack of blood on the handle of the knife, and the defense felt that they would come out behind in pursuing lack of cuts on the defendant as leading to innocence.

    As for the lack of hesitation marks, the prosecution was unable to explain that as well. Probably because the prosecution was unaware that the defendant, though never having exhibited violence in the past, was known to have terrible road rage, which was actually an outlet for other anger issues. The defendant had actually been in counseling, though the stated reason for counseling was not "anger management" or "violence," but frustration and depression. Again, even though there were underlying issues that caused the attack, the available evidence was insufficiently compelling for either the prosecution or the defense to bring up.

    So, what did the "additional investigation" yield? The juror thought defense attorney was incompetent for not bringing these issues to light and the juror thought the prosecution was hiding relevant information from the jury, though neither was true.

    What did happen is that the trial appeared to be heading for a hung jury until the juror admitted that he did "additional investigation" and was unable to resolve the problems in the testimony. A mistrial was declared and the case had to start all over again.

    The press had a field day with the "issues" brought up by the "additional investigation," ready to hang the defense attorney for lack of competence. In the second trial the defense and the prosecution were forced to deal with these issues, which ultimately convinced the following jury that the guy was guilty (sorry "additional investigating" juror - the guy was guilty, you just drew the wrong conclusion from insufficient information).

    Unfortunately, these situations (though I cheated and combined them all into one case) actually happen, and actually cause mistrials and hung juries, and even improper convictions and acquittals.

    While you may think that you want a jury to be able to do "additional investigation," I suggest that you would be better off with your attorney explaining evidence in context and deciding which evidence helps your case the best. If the prosecution and the defense decide to avoid particular areas of evidence because the first to bring the evidence up might likely end up being the loser, then having a juror drawing conclusions either in favor of the defendant or the prosecution based on "additional investigation" without having the "facts" from that "additional investigation" explained in context does neither side a service.

     

    reply to this | link to this | view in thread ]

  120.  
    identicon
    Messenger, Feb 18th, 2010 @ 9:26pm

    Mr. Masnick

    Mr. Masnick,

    After a fair trial (as per your own standards of fairness) the jury has found you guilty as charged.

    Judge Messenger

     

    reply to this | link to this | view in thread ]


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