Judges Allowed To Use Google To 'Confirm Intuition' In Cases

from the well,-there's-that dept

One of the more controversial posts we've had recently concerned the discussion about whether or not jurors should be allowed to use the internet to do research related to a case they are hearing. It seems like most folks here were very much against it, though I think it's something worth exploring in more detail. But, let's take this question a few steps across the courtroom. What about judges? In a recent appeals court ruling, it was found that it's okay for a judge to use Google to "confirm his intuition."

The case involved a bank robber, and a question over whether or not he violated the terms of his release by (you guessed it) robbing another bank. There was a question over what the robber wore that resulted in the Googling:
Chin reviewed several pieces of evidence, including a bank surveillance video showing a robber who wore a yellow rain hat. A yellow rain hat was found in the garage of [Anthony] Bari's landlord.

Noting similarities between the hats, Chin at a hearing said he resorted to Google Inc's search engine for help. "We did a Google search," and "one can Google yellow rain hats and find lots of different yellow rain hats," he said.
While that single point seems to favor the suspect, in providing some bit of reasonable doubt that the yellow rain hat alone proves who it was, the judge, Denny Chin, felt that there was enough overall evidence, and sentenced the guy to three years in jail. However, because of that Google search, Bari appealed, saying this violated federal rules of evidence. However, the appeals court had no problem with it:
In its decision, the appeals court said most federal evidence rules "do not apply with their full force" in proceedings to revoke supervised releases.

Using this "relaxed" standard, it endorsed Chin's effort to confirm his "common sense supposition" that more than one yellow rain hat is available for sale.

But it went further, saying improved broadband speeds and Internet search engines cut the cost of confirming intuitions.

The court said that 20 years ago. "a trial judge may have needed to travel to a local department store to survey the rain hats on offer.
"Today, however, a judge need only take a few moments to confirm his intuition by conducting a basic Internet search," it added. "As the cost of confirming one's intuition decreases, we would expect to see more judges doing just that."
I'm curious to see if the same people, who were horrified at my suggestion that Google searches for juries might not be such a horrible thing, feel the same way in the case of a judge. Because one of the key points raised in the discussion here was that "rules of evidence" were concrete and could never be messed with -- and even suggesting that the concept might be due for an update was pure blasphemy. Yet, here it seems that an appeals court recognizes that modern technology may change how rules of evidence can work.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:00am

    "I'm curious to see if the same people, who were horrified at my suggestion that Google searches for juries might not be such a horrible thing"

    Mike, I've said this before I'll say it again. In our legal system both sides present evidence. The jury looks at the evidence as presented and makes a finding of fact based upon that evidence.

    If the jury is lacking some information and needs to do research, that only means that one of the parties failed in his burden and loses the case.

    Just give me one legally valid instance where a jury would have a need to do research?

     

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

  2.  
    icon
    ComputerAddict (profile), Mar 23rd, 2010 @ 9:02am

    He had to look?

    Did the judge really need to google it to find out there are more than one company in the yellow rain gear market?

     

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

  3.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:08am

    Re: He had to look?

    There's an Administrative Law Judge in my area who does driver license appeals. I.e., people are attempting to get their driver licenses back after a drunk driving conviction.

    Anyway, at the hearing on the record this Judge looks up the appellant's facebook and myspace accounts. He'll find pictures of them drinking, hanging out with people drinking, or comments about how they were "so shit faced drunk last saturday, dude."

    I think it's hilarious. The attorneys are not happy with it.

     

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

  4.  
    icon
    Andrew F (profile), Mar 23rd, 2010 @ 9:15am

    Re:

    When one party has a very crappy lawyer

     

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

  5.  
    icon
    PaulT (profile), Mar 23rd, 2010 @ 9:17am

    Re: Re: He had to look?

    Hmmm... I fail to see why that has anything to do with regaining their licence. Getting drunk does not mean you'll get behind the wheel afterwards. Do your local laws include something about needing to be teetotal before a licence can be returned?

     

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

  6.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:19am

    Re: Re:

    And in our adversarial system people with crappy lawyers lose.

    And I'm sure some people think it's unfair. That only if the jury could do its own research trials would be much more fair.

    But can you imagine a medical malpractice trial if the jury could ignore the expert medical evidence as presented by both sides and rely on the teachings of L. Ron Hubbard? Would that be fair? Mike seems to think so.

     

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

  7.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 9:21am

    Re: Re: Re:

    Uhh, if the juror is someone likely to follow the teachings of L. Ron Hubbard, they can follow them with or without access to the internet.

     

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

  8.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:22am

    Re: Re: Re: He had to look?

    "Do your local laws include something about needing to be teetotal before a license can be returned?"

    If the license was taken because of drunk driving, the answer to your question is a big fricken yes.

    The person attempting to get his license back will claim before the ALJ that he's no longer drinking and no longer associating with his old drinking buddies. Which is why the ALJ's research is so damn funny!

     

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

  9.  
    icon
    Brooks (profile), Mar 23rd, 2010 @ 9:24am

    Re:

    That's a circular argument you've got there. Your opinion is that any information the jury needs should be provided by one of the parties. So any evidence the jury might need -- clarification of medical terminology, what the weather was like on a certain date -- just proves your point.

    The question is whether justice is better served by punishing a party for failing their burden in the courtroom, or by getting an outcome that's more congruent with the happenings that are in dispute.

    You're clearly in the camp that the courtroom matters more than the underlying case, which is your prerogative. But I hope you can see how that prejudices you so you'll just see any situations someone posts as further confirmation of your already-held belief.

     

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

  10.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:25am

    Re: Re: Re: Re:

    They can. They can do anything. But under the law jurors make a promise to make their decision based only upon the evidence presented. Mike's argument eliminates that promise and would allow a juror to use any evidence he or she might find.

     

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

  11.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 9:26am

    Re: Re: Re: Re: Re:

    Uhh...you just said that they can "do anything." That includes...ignoring the promise...again, with or without the internet.

     

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

  12.  
    icon
    Brooks (profile), Mar 23rd, 2010 @ 9:26am

    Re: He had to look?

    What's even more interesting is the reason for looking -- if there's more than one yellow rain hat available, the defendant is less likely to be guilty?

    That seems the exact opposite of common sense. If there were, in fact, only one type of yellow rain hat, isn't it *more* likely to be a case of mistaken identity? The more unique the hats are, the more a similarity is damning. I would think.

     

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

  13.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 9:28am

    Re:

    The issue here is 'want' to do research, not 'need'.

    The argument has been made that no juror needs to do research. But what if they want to anyway? That's the issue.

     

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

  14.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:31am

    Re: Re:

    I've already explained this before, but jurors take a promise to make their decision based only upon the evidence presented.

    Under Mike's argument, that promise would no longer exist. The jury would be free to use any "evidence" it feels appropriate to help them. As I've pointed out above, it could lead to highly unfair proceedings.

    I work in a court day after day. If a jury has a question about medical terminology, that can be answered.

    And if a party fails to prove its case, it is not being punished. It simply lost. Why should someone win a case who failed to prove their case? That makes no sense.

    Judge: Jury, have you reached a verdict?

    Jury foreperson: Yes your honor. Despite the fact that the plaintiff presented no evidence and did nothing but drool on the table, we award her 2 trillion dollars based upon our research into the existence of fairies.

     

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

  15.  
    icon
    PaulT (profile), Mar 23rd, 2010 @ 9:35am

    Re: Re: Re: Re: He had to look?

    So if, for example, you're caught sleeping drunk in the back seat of your car and it gets classified as a DUI (as it does in some states), you can never drive again if you have another drink? While drunk driving is stupid, it seems a little strange to have this kind of rule unless the person involved is clinically alcoholic or a repeat offender. IMHO, of course.

     

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

  16.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:35am

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

    You're right. And despite the law against murder, I can still kill the person sitting next to me. But that does not mean we should eliminate laws against murder.

    I've worked with juries for a little over a decade. Overwhelmingly they do follow their duty to rule only upon the evidence presented. I can only think of one case where a juror ruled based upon her own research, and for that we had a hearing where she admitted she did her own research, and she served a weekend in jail.

    Under Mike's argument jurors would not be bound by any evidence and could do anything they wanted. And as I've explained, that would lead to much more unfairness.

     

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

  17.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:36am

    Re: Re:

    "But what if they want to anyway?"

    If they want, they can wait until they leave the deliberation room or until the trial is done.

     

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

  18.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 9:38am

    Re: Re: Re:

    If they didn't ignore at least one 'expert' opinion, any jury would be hung. Each doctor claims their side is right, even if both disagree. If I have 2 alleged experts, one is agreed with by many in the same field, one not at all, which one is mostly likely right? {At least for the burden of proof in civil law.}

     

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

  19.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:38am

    Re: Re: Re: Re: Re: He had to look?

    "you can never drive again if you have another drink"

    If you're convicted of drunk driving, yes, they can take your license. Not forever. For a year. Your state's laws and regulations may be different.

     

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

  20.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:40am

    Re: Re: Re: Re:

    "If they didn't ignore at least one 'expert' opinion, any jury would be hung."

    I never said a jury cannot ignore the evidence presented. What I said is that they have to base their verdict on the evidence presented. There's a difference.

     

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

  21.  
    icon
    PaulT (profile), Mar 23rd, 2010 @ 9:45am

    Re: Re: Re: Re: Re: Re: He had to look?

    Hmmm... OK on re-reading your original comment I see that you were talking about appeals so that makes more sense. I don't agree with the idea that "he was seen drinking a beer last week" equals "this guy is likely to drive drunk again" (unless said guy is known to be an alcoholic), but I see why this might be useful for an early appeals process.

     

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

  22.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:51am

    Re: Re: Re: Re: Re: Re: Re: He had to look?

    No one wants to be the guy who gave the drunk driver, who just ran over a cute little girl, his license back the month before. Those ALJs bend over backwards to ensure that no one gets their licenses back. They're a complete waste of time as far as I'm concerned.

    You can appeal those ALJ decision to a higher court, but you're faced with the same situation. No one wants to be responsible for the guy getting his license back and then getting in serious accident.

     

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

  23.  
    identicon
    lawgeeknz, Mar 23rd, 2010 @ 9:53am

    Judge Chin using Google - irony

    Completely off-topic but it's a little ironic that the Googling Judge in this instance is none other than Judge Denny Chin. He probably has Google indelibly etched on his brain as he struggles to reach his Googlebooks settlement agreement fairness decision.

    On the main point, I have three concerns.

    - a Judge is not an expert in independent research. The likelihood that an overworked Judge will miss something in a cursory online search must be higher than relevant evidence being missed by prosecution and defence whose job it is to uncover whatever they can
    - because the evidence that the Judge is therefore taking into account is hidden, there is no way the parties can see and provide argument on whether that evidence is relevant or, worse still, is being used by the Judge to confirm his or her undisclosed prejudices
    - Worst of all, there is no way of the parties to debate the weight that should be given to that evidence. One hopes that a Googling Judge looking at the results does not place a great deal of weight on a wikipedia entry but who knows if they do not tell anyone.

     

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

  24.  
    icon
    jjmsan (profile), Mar 23rd, 2010 @ 9:53am

    Re: Re: Re: Re: Re:

    Actually, you are not saying the jury is ignoring one side, they are giving more weight to one side than the other. As an example one side presents and expert with 1 year of experience and the other side presents an expert with 10 years of experience. The jury decides which opinion it gives more weight to.

     

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

  25.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:55am

    Re: Re: Re:

    I'm sure some people will think my "fairies" example is ludicrous and would never happen in the real world. You're right. But the reason it would never happen in the real world is because our common law adversarial system has developed centuries of law on evidence as to what is allowed and what is not allowed. Mike's argument eliminates those evidential safeguards and would let anything come in.

     

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

  26.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 9:55am

    Re: Re: Re:

    "If a jury has a question about medical terminology, that can be answered."

    Seems to me the issue is the type of question that the jury can ask.

    If a juror happens to have foreknowledge that a particular person's testimony is widely disputed, it would then by OK for a juror to ask the person to clarify why so many disagree with them? On the other hand, if they get that knowledge after the trial has started, it's somehow not as valid?

    I can see where it's good to avoid outside opinion on a particular case. But that not the same as looking up widely accepted facts on the subject matter. In the medical example, a juror looking something up in a medical textbook should not invalidate his/her opinion as a juror.

    I think that is what Mike is referring to, not judgment by the court of opinion.

     

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

  27.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 9:56am

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

    They can give evidence more weight, or they can outright ignore it. As long as their decision is based upon the evidence presented at trial.

     

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

  28.  
    identicon
    Ross Nicholson, Mar 23rd, 2010 @ 9:58am

    This will be moot anyway

    We now have the ability to cure criminal behavior and it is easy. I don't know what these supercilious judges and juries will be doing, but working on 'cases' will not be in the cards.
    It turns out that criminal behavior, indeed all 'thrill-seeking' behavior including drugs, escapes, and perversion, is merely a pheromone deficiency. It is easier to cure than boiling water and costs virtually nothing. The pheromone is the grease on the male judge's nose, forehead, chin, cheeks, and you just wipe it with any food (we use chewing gum) to collect it. 150 mg of the oil can be collected with 3 ordinary packs of new fresh chewing gum. Unwrap, rub the pieces directly on the older man's skin, re-wrap and label 'home remedy--not for sale'. Then give the gum to the delinquent/runaway/drug addict/homosexual and viola! They're cured instantly. There is no processing needed (unlike vitamins), and all you need is an older man to donate a little face grease.
    We are going to close the prisons, close the police departments, and end the 'criminal justice system' as we know it.

     

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

  29.  
    icon
    greg.fenton (profile), Mar 23rd, 2010 @ 9:58am

    Re: Re: Re: Re: Re: He had to look?

    It isn't a matter of never drinking again. It is a matter of showing some amount of reform.

    If you are still whooping it up and being a jackass in your attitude (online or elsewhere), you aren't displaying decent judgement.

    Why on earth should a judge be giving back a license to someone who needs to be hit by a clue train, not hurling 2 tonnes of metal down a road?

     

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

  30.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 10:02am

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

    Yes, the weight of the more compelling testimony discredits the lesser one. In essence, it is ignored since it didn't help the case. That is what was meant.

     

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

  31.  
    identicon
    Ryan, Mar 23rd, 2010 @ 10:04am

    Re: Re: Re: Re: Re:

    How do they decide which side presented better evidence, or more competent experts? Why even have a mixed jury of peers instead of just one person deciding everything? Because everybody has different experiences and sources of knowledge that they bring to the table. I fail to see any problem with using google to determine that, say, a yellow raincoat is actually much more common than the prosecution would have you believe. Trials are not fucking dick-measuring contests to prove that one lawyer is better than the other; they exist to establish guilt and innocence(or liability).

    And if a party fails to prove its case, it is not being punished. It simply lost. Why should someone win a case who failed to prove their case? That makes no sense.

    Because nobody gives a shit whether a lawyer proved his case or not, they care that justice was served. The question is whether justice is better served on a macroscopic scale by allowing juries to be better informed via internet access. This can certainly be debated, but you seem incredibly insistent that the justice system should refuse to adapt to change at all even if that change may be beneficial.

    What if the record labels decided to refuse to adapt to change because "the way consumers listen to music is by buying a plastic CD for $15. Period!" Oh wait, they do do it that way.

     

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

  32.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 10:05am

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

    Ima, Is your argument that jurors are simply to stupid to properly research and evaluate additional evidence?

    If that's the case, then wouldn't we need to get rid of jury trials altogether?

    No one should ever lose a court case because the jury couldn't do a google search to get additional factual information that a lawyer did not anticipate affecting their decision.

    That would make our legal system a farce.

     

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

  33.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:05am

    Re: Re: Re: Re:

    "Seems to me the issue is the type of question that the jury can ask."

    Medical terminology is usually not a fact in dispute, but is simply a fact. So you're right, juries can ask that sort of stuff. We've given juries dictionaries, maps, and calculators before to help them reach verdicts. Once again, those types of facts are not in dispute.

    "If a juror happens to have foreknowledge that a particular person's testimony is widely disputed..."

    In the real world I'd think that if the juror had such knowledge, he'd never be allowed on the jury. If he is allowed to deliberate, he's allowed to take his common sense and experience with him.

    "In the medical example, a juror looking something up in a medical textbook should not invalidate his/her opinion as a juror. I think that is what Mike is referring to, not judgment by the court of opinion"

    If that is what Mike is arguing, he's not making it very clear. His argument as presented again and again is that jurors should be allowed to research the facts in controversy in the case.

    But even if he is talking about researching facts that are not in dispute, the jury should still do that via processes that are already in place.

     

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

  34.  
    icon
    jjmsan (profile), Mar 23rd, 2010 @ 10:10am

    Matter of Opinion

    Mike are you basically upset that the flow of opinion was against yours or just want to see how we would apply ours?
    From reading your post and not the actual court decision, I would say the appellate court simply looked at the fact that judges determine whether evidence is admissible or not and the the effect of his going to check out the hats was the same as asking the attorneys for the information. Judges get to determine whether or not evidence is presented juries do not. Also the court said that the level of evidence that is applied in this type of hearing is not the same as that in an original trial. Real trials are a lot more boring than the ones in fiction.

     

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

  35.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:13am

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

    "Ima, Is your argument that jurors are simply to stupid to properly research and evaluate additional evidence?"

    God, I'm repeating myself again and again.

    If you're right that jurors should be allowed to do their own research, then verdicts would become less fair. As I've said, we have centuries of laws on the books dealing with evidence in an attempt to make sure trials are fair.

    If juror could do their own independent research their verdicts could be highly unfair and legally valid. For example, a juror sitting on criminal trial against a black person could rely on research that black people are born criminals. Would that be fair? Under your system, it would be. Under our present system, it could happen, but at least it would be a basis for a new trial. The unfairness could corrected.

    "No one should ever lose a court case because the jury couldn't do a google search to get additional factual information that a lawyer did not anticipate affecting their decision"

    You simply have no idea how cases and trials operate. They take years to get to trial where evidence is requested and exchanged, depositions are taken, and motions to dismiss are filed.

    Please give me one case, just one case, where a person was denied a fair trial because the jury could not research an issue. If you think we should throw out our current system, where there are laws in place to ensure the evidence is fair, and replace it with a system were jurors can rely on any evidence they want, please give me a valid reason for this change. I don't see it.

     

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

  36.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 10:14am

    Re: Re: Re: Re:

    Yes. Centuries. Two of them, so barely centuries.

    Because in Englad, the jury can ask questions, ask for additional investigation, evidence, etc.

    Which is SO much better, in my humble opinion.

     

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

  37.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:15am

    Re: Re: Re: Re: Re: Re: He had to look?

    "someone who needs to be hit by a clue train"

    Brilliant!

     

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

  38.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 10:20am

    Re: Re: Re: Re: Re:

    Actually, the intent of the jury system is for the jury to use the evidence presented, and their entire life experience. That was the original intent.

    Of course, if it's a medical case, the lawyer with the weaker argument would dis-allow any juror with a medical background from getting past the selection process.

    That's how the system is rigged. As more people believe it is rigged they will obtain information on their own, irregardless of the court's instruction. They figure they won't get caught, and they're doing their public duty by being informed in order to make an informed judgment.

    Not like it all you want.

     

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

  39.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:21am

    Re: Re: Re: Re: Re:

    Juries can ask questions in our system. But they are not allowed to do it independently. They do it as a part of our system of evidence just as they do in England.

     

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

  40.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 10:25am

    Re: Re: Re: Re: Re:

    I thought juries could ask questions in the United States as well. As for "additional investigation," I think that depends on what you mean by "additional investigation."

    In theory, the jury is only supposed to make a determination based on the facts as they were known at the time of the trial. If the prosecution has not provided "additional investigation," then having the jury be their proxy is unfair to the defendant.

    If the defendant has not performed "additional investigation," then the attorney may be incompetent OR, big OR here, the defense attorney may already know the answer to the "additional investigation" but feels it is in the best interest of his client to not present "additional investigation."

    The same with "evidence." In theory, the best available evidence will be presented at trial. How could you ask for better evidence than that which is already presented by the sides with the best interest in presenting the best available evidence?

    While I am fine with juries asking questions, when the jury veers from their prescribed duties to serve as investigators and demanding evidence (including evidence that might be prejudicial or have no probative value), then the jury is no longer a jury and may have lost whatever impartiality they may have had.

     

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

  41.  
    icon
    Txknight (profile), Mar 23rd, 2010 @ 10:31am

    I would hope this gets struck down, this on some level feels like a violation of evidence rules, as neither side can control nor be aware of what or why the juries are looking something up, what idiots blog or craptastic wikifullofshite story they read and put more truth in some conspiracy nutjobs website about whatever the case is

    There are good reasons why jurors are not supposed to read newspapers or watch the news or discuss the case outside the courtroom, they do not need the influence of speculating news stories and internet instant stories

     

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

  42.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:36am

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

    "I thought juries could ask questions in the United States as well"

    They can. I've been a lawyer working for a court for over a decade. I have not seen a single case where a jury didn't ask a question.

    Of course Mike and Rose M. Welch want them to ask questions and perform research independently of the court system, even though they do no such thing in "Englad."

     

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

  43.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 10:37am

    Re: Re: Re: Re: Re:

    "I think that is what Mike is referring to, not judgment by the court of opinion.
    If that is what Mike is arguing, he's not making it very clear."

    Why should he need to? I have never seen Mike post ANYTHING implicating internet [mob] opinion should rule in legality. He does that for issues with an economic vs. legal clash, his point being, 'it's an uphill battle that's likely not winnable'.

     

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

  44.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:39am

    Re: Re: Re: Re: Re:

    "Yes. Centuries. Two of them, so barely centuries."

    I was going to let this slide, but just I have to comment on this.

    The common law system the US uses is much older than two centuries. Why do you guys (and gals) feel a need to comment on topics you know absolutely nothing about?!

     

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

  45.  
    icon
    ChurchHatesTucker (profile), Mar 23rd, 2010 @ 10:39am

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

    "Please give me one case, just one case, where a person was denied a fair trial because the jury could not research an issue."

    Never been selected, so can't answer your question directly. But the fact that I never was is probably telling.

    I just amused myself by anticipating the defense's objections before they voiced them. Voir Dire is an insult.

     

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

  46.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:41am

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

    "Why should he need to?

     

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

  47.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:43am

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

    I've always wanted to tell a jury, in a courtroom full of jurors, that I could not serve because I'm from the planet Zargranon and I am duty bound not to interfere with human matters. God, that's fricken be hilarious.

     

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

  48.  
    icon
    Ima Fish (profile), Mar 23rd, 2010 @ 10:44am

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

    Ooops...

    Why should Mike make his arguments clear? So we better understand them.

     

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

  49.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 10:45am

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

    What if they asked, "Who disagrees with you and why?" Can a juror request an opposing opinion of testimony if one is not offered by the opposing council?

     

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

  50.  
    icon
    Richard Corsale (profile), Mar 23rd, 2010 @ 10:48am

    Not a good idea..

    I for one, would be able to stock the pond with favorable information about myself through SEO. I mean, could you imagine how easy it would be to shape search queries on your name?? Not that hard if you're not famous.

    In general the concept of reading a robots recommendations about what is prudent to an individual is fundamentally flawed.

    -- IMO

     

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

  51.  
    identicon
    None, Mar 23rd, 2010 @ 10:49am

    There is a difference when it comes to a jury trial vs revoking a defendant's probation due to a probation violation. The burden is set higher for a jury trial, thus you can't do these google searches. In a probation violation, there needs to be a hearing vs a jury trial. And simply testimony from an officer or someone will show that the defendant has commited a violation of probation.

     

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

  52.  
    icon
    ChurchHatesTucker (profile), Mar 23rd, 2010 @ 10:55am

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

    Yeah, but the woman in Starfleet drag got selected, so YMMV.

    I've always wanted to serve, but I figured if I didn't the quickest ticket out would be to mention Jury Nullification at some point.

     

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

  53.  
    icon
    Dan (profile), Mar 23rd, 2010 @ 10:59am

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

    The fairness in the jury system is NOT what one particular juror has researched or not, rather the collective knowledge [factual or otherwise] of all of them, and the diversity of that knowledge base. Whatever "facts" one particular juror may happen to see is largely nullified since he/she is one of a group.

    As this post points out one of the liabilities of letting a lone [legally well informed] judge decide a case can be, he may have read something that will bias his opinion if he is legally 'on the fence'.

     

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

  54.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 11:08am

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

    Because you would like a doctor helping to decide on medical malpractice awards or a police officer deciding if other officers are guilty of excessive force or not. Those are certainly relevant life experiences. The rules are there to make things are fair as possible and not to allow someone who has a prejudce to use the law to take it out on people.

     

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

  55.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 11:10am

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

    The defendant can ask for just a judge, actually the reason to have a jury is that groups generally arrive at correct decisions more often than a single person.

     

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

  56.  
    icon
    jjmsan (profile), Mar 23rd, 2010 @ 11:14am

    Re: Judge Chin using Google - irony

    The evidence is not hidden. If it were hidden how did the defendant know to file an appeal based on the judge googling it?

     

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

  57.  
    icon
    Mike C. (profile), Mar 23rd, 2010 @ 11:23am

    Example against...

    Seeing this exchange made me start thinking about examples where things could go wrong for the defendant and I quickly came up with this one:

    In a case of mistaken identity, a person is arrested for a robbery they did not commit. An officer goes over the line and improperly coerces a confession after 16 hours of interrogation. This confession is leaked to a blog which is then picked up by multiple blogs following the story. The defense attorney gets the confession supressed. Trial starts.

    At this point, the confession will NOT be a part of the evidence presented, but WILL show up in Google results. To allow jurors to perform searches unsupervised would allow evidence that should not be allowed.

    Do you think this is fair?

    Now, that being said, I'm curious what recourse a juror has when they DO have questions that were not answered at trial? What if they wanted a witness to clarify a statement because it was expressed in a way they didn't understand (something my kids do constantly)?

    There are two sides to this and I really don't think it's possible to set any clear and hard rules on the matter.

     

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

  58.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 11:35am

    it could be appealed and the case likely sent for a new trial. the judge added information that was not presented at trial.

     

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

  59.  
    icon
    kirillian (profile), Mar 23rd, 2010 @ 11:45am

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

    Actually, I've always struggled with this concept...because the means by which they determine which "expert" to trust must come from one of only a few things - either the evidence presented before them in court alone (which is difficult to do in cases where there are experts on both sides), evidence from outside the courtroom (which the juror swears not to use), or a mix of both, whether consciously or not (which, I would submit, is the most likely of the three).

    I can't help thinking that the average (I guess in this particular case, I mean 'every') juror would NEED outside knowledge of some sort in order to evaluate whether or not one of the "experts" is more trustworthy than the other. Otherwise, you are left to evaluations based on charisma or some other less-than-desirable characteristic.

     

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

  60.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 11:55am

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

    Ima:

    I gotta challenge you on what could be a key point here (insert sarcmark, of course). How do YOU know what they do in Englad? Have you ever been to Englad? Hell, I have never even HEARD of Englad, much less been there.

    So, unless you know something I do not, I hereby declare you incapable of rendering factual information regarding Englad.

    Now, if we want to talk about England, I might grant your expertise.

    Heh, heh...Sorry. I had to milk that one some more.

     

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

  61.  
    icon
    kirillian (profile), Mar 23rd, 2010 @ 11:57am

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

    I understand that you are quite a bit more informed than just about all of us here, but we comment because this matters to us. We feel controlled, bullied, and victimized by this system, so its intricacies matter a GREAT deal to us. It doesn't matter that we need this system to keep order. What matters to us is what we see as injustice or abuse. So, we look at this system from the outside, knowing that, one day, we could potentially be under the heel of such a system.

    Ya...its a big deal. As to how much we know...doesn't it bother you that citizens aren't privy to the knowledge of how their own government works?

     

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

  62.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 12:25pm

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

    Kirillian:

    Your scenario does point out one of the risks of using experts. However, both sides have equal opportunity, right? Each is permitted to choose experts and to choose WHICH experts it wants to use. The moral of the story is to choose well.

    In real life, cases can be heavily influenced by expert witnesses. Juries will balance credibility and coherency and the team with the better experts will get jury points. But, again, both the prosecution and the defense have the opportunity to challenge expert witnesses and ask questions. When someone is reading a Wikipedia article about guns, stabbings or explosives, all because of what they are hearing in a trial, who does the prosecution or the defense cross-examine? Certainly not the juror.

    Allowing juries to go out and do their own research leads to drawing their own conclusions independent of cross-examination and the ability to explain things in context. I, for one would not want to be on either side in that trial. There is no way to know which way the trial will go.

     

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

  63.  
    icon
    harbingerofdoom (profile), Mar 23rd, 2010 @ 12:27pm

    personally, i do not agree with juries being able to do their own research. if a litigator does a bad job, the ability for a jury to research independently in order to correct for that is not the proper method for fixing the issue. that is, in part, what the appeals process is for.

    and dont forget one issue that i have not seen anyone mention (sorry if you did & i didnt catch it) is that a jury, during deliberations is allowed to ask for clarification and additional instruction from the judge. it would be at that point that asking questions regarding any such research should be brought up and handled as a case by case basis on the merits of the question, the need for such research and its ability to withstand legal scrutiny during appeal within current law. if at that point a judge says yeah cool go for it, ok then you have a reasonable means to allow for it.
    but to just have a blanket statement saying there is no reason for it does not work. there are many good reasons why rules of evidence exist and tossing them out simply because some people dont see those reasons are a very bad idea.

    as far as judges go, they should be held to the same rules of evidence as with any case. in this particular issue, the appeals court says that the actions of the judge were no different than had he gone to a store to look at the items themselves which is correct. all he did was use a faster method that saved time and money to accomplish the same thing as getting in a car and driving to the store would have done. so yes, in that situation using a search engine would be fine.

    two very different issues with two very different sets of rules.

     

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

  64.  
    icon
    jjmsan (profile), Mar 23rd, 2010 @ 12:59pm

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

    So you don't know how it works but you feel controlled or victimized. So why don't you find out how it works? There are books in libraries, sites on the web, classes you can attend. If you wait to be told all you will get is being good at taking orders.

     

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

  65.  
    icon
    kirillian (profile), Mar 23rd, 2010 @ 1:16pm

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

    Dang it...do I have to be explicit 100% of the time? LOL...I hate that...I was trying to use the first-person to clarify the general feeling that I get from people around me along with my own personal feeling. Whereas I tend to keep pretty well informed of stuff, I do realize that most people around me do not. At the same time, however, I am not the only person that feels a little jaded with our current court system.

    The issue with what you state is that most people do not have the time or patience to learn about every single subject they are interested in. Ok, that's understandable. I also would not want to discuss some things with those people because they wouldn't have an inkling of what is going on around them. However, I don't completely feel that such is the case on this site (certainly, there are those people that seem clueless, but I have long felt that most people here at least grasp reality somewhat).

    It still bothers me that even those of us who do take time to research the things we care about so that we aren't completely in the dark still don't know enough to be considered knowledgeable about the system...and those that don't take the time are just plain screwed.

    Somehow, I am still under the impression that this system was never intended to work out this way. It was intended for the common man (ahem...wealthy, "landed", middle-class, if not upper-class man) to understand and be able to deal with this type of thing. The fact that many still do not is where I am a bit concerned...truth be told. The government system was never designed to be a true democracy (lower-class citizens were never really intended to be voters in its original context...something that has completely changed the way that the system now works), yet, we wield it as if it were.

    No, I will be the first to admit that I do not know all the nuances of every stinking law out there, but I do know enough to get by. Yet, that 'enough' is, seemingly, not enough...

     

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

  66.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:11pm

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

    That's not what I said at all. You're welcome to debate this issue all you want, but don't put words in my mouth. You have no idea what I want, or what I think, because you don't know me and haven't read anything that I've written about this subject.

    Further, American juries and English juries have different rights and responsibilities. If you're even a half-assed attorney, you know that. Don't pretend it isn't true just because you think it might make your opinion look a little weaker.

    And last, but certainly not least, juries sit trials without asking questions frequently. It's possible that you have a well-educated pool of jurors where you're at, or that your court makes sure that jurors understand their rights as jurors, but that certainly doesn't make it true everyone, or anywhere but where you are.

    Yes, the common law system that the US uses is much older than two centuries, but the rights of American jurors are different than the rights of the system that our courts originated from. Therefore, the practices of our jurors cannot be more than two centuries old, and are probably less, since it took a bit to work the system out to where we are now.

    Quit being an asshat, Ima. People will be more willing to listen to you if you stick to making legitimate points, instead of just trying to score them.

     

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

  67.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:12pm

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

    Yes, the common law system that the US uses is much older than two centuries, but the rights of American jurors are different than the rights of jurors in the system that our courts originated from. Therefore, the practices of our jurors cannot be more than two centuries old, and are probably less, since it took a bit to work the system out to where we are now.

    Quit being an asshat, Ima. People will be more willing to listen to you if you stick to making legitimate points, instead of just trying to score them.

     

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

  68.  
    icon
    jjmsan (profile), Mar 23rd, 2010 @ 2:13pm

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

    Do you know anything in which people who do not know the rules are not screwed? The most the legal system can do is impose rules that give the lower classes a chance. The powerful never worried about rules they did what they wanted. At least the current system tries to use rules to even things out.

     

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

  69.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:16pm

    Re: Re: Re: Re: He had to look?

    It is pretty funny, especially since it's happening to people who are such asshats that they're not only still yucking it up, but they're not even bothering to hide the evidence by making their info private.

    If you're that dumb, possible you should lose your license forever... :P

     

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

  70.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:18pm

    Re: This will be moot anyway

    Roflmao, asshat. You're just trying to sell your book. Your badly reviewed book.

     

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

  71.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:33pm

    I agree that jurors shouldn't be able to pop open their netbook and start googling keywords about the trial before them. Anything that's done needs to be documented and verified before it goes back to the jury. I disagree that juries should just shut up and accept what they're told, no matter how many glaring holes that they spot.

    I also disagree that everything should rest on the attorneys. Attorneys are not perfect, and they can miss things just like everyone else. If a jury can ask a few questions and the information helps the jury make their decision, I'm all for it.

    Right now, the prosecutor tries hard to make sure that the jury has information that leads them to a guilty verdict. The defendant's attorney tries hard to make sure that the jury has any and all information that might help them reach a more favorable verdict. In the middle of those two, there is more than enough room for facts to slip through, as we all know.

    If asking for additional research helps the jury reach a just verdict, then everyone should be in favor of it. That's the point, you know. Making sure that juries have all of the legally-obtained information they need to make their decision.

    Anyway...

     

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

  72.  
    icon
    Rose M. Welch (profile), Mar 23rd, 2010 @ 2:35pm

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

    I typed 'Englad' first, lol.

     

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

  73.  
    icon
    Chargone (profile), Mar 23rd, 2010 @ 3:27pm

    Re: Re: Re:

    which does rather defeat the point of the exercise

     

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

  74.  
    identicon
    Jesse, Mar 23rd, 2010 @ 3:33pm

    Re:

    How about in instances where the judge/jury wanted to find a just outcome based in reality rather than who had the pricier lawyer?

    GASP! But how can law and justice overlap?? Blasphemy.

     

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

  75.  
    identicon
    EdB, Mar 23rd, 2010 @ 3:34pm

    Correct me if I'm wrong here, but since the case discussed here is an appeals case then juries don't matter. Right?

    Anyway I see no need to let jurors google or bing stuff. Way too easy to NOT hear the actual evidence presented, plus (as has been said repeatedly) they promised to make their decision based on the evidence presented in court. So - duh - do that! In the case of an appeals judge using a search engine to gain extra info: yeah cool go for it.

    By the way we should probably do away with the "jury by peers" thing but that is unrelated

     

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

  76.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 4:21pm

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

    Yeah, nothing like being tossed in the clinker for contempt of court.

     

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

  77.  
    identicon
    Anonymous Coward, Mar 23rd, 2010 @ 5:19pm

    Re:

    You did not just say "bing stuff"... Bing is not a verb. It's a wannabe verb. Heretic! lol...

     

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

  78.  
    identicon
    Joe Smith, Mar 24th, 2010 @ 10:40am

    CSI

    This is the CSI effect. Judges running out and doing independent factual research is such a huge risk to the proper working of the justice system that the appeals court should have squelched it hard.

     

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

  79.  
    identicon
    yuregininsesi, Jun 24th, 2010 @ 4:22pm

    That's a circular argument you've got there. Your opinion is that any information the jury needs should be provided by one of the parties. So any evidence the jury might need -- clarification of medical terminology, what the weather was like on a certain date -- just proves your point.

    The question is whether justice is better served by punishing a party for failing their burden in the courtroom, or by getting an outcome that's more congruent with the happenings that are in dispute.

    You're clearly in the camp that the courtroom matters more than the underlying case, which is your prerogative. But I hope you can see how that prejudices you so you'll just see any situations someone posts as further confirmation of your already-held belief.

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This