Trial lawyers rely on two bedrock legal fictions. One is that the jurors will decide cases based solely on the evidence in court. The other is that they will accept the legal instructions as given by the judge. Is it time to put these fictions to bed?
At Co-Op and PrawfsBlawg, lawprofs discuss how they use and fight television in attempting to teach criminal law. It’s not that TV isn’t an influential tool, but that it’s almost invariably wrong, and they find themselves fighting the erroneous assumptions that law students bring to the classroom. If law students don’t get it, what chance do others have in recognizing that their entire framework of criminal law is totally off base?
On the other side, Anne Reed at Deliberations posts about the juror who twitted about the $12 million verdict, and proclaims that jurors and social media are with us forever. Rather than assume that it can be controlled, is it time to assume that it is part of normal juror life, and is happening whether we know it or not?
Between television, the internet and social media, have we lost any pretense at control over the jury pool? Is it time to abandon our beloved legal fictions and come to grips with the fact that jurors are beyond our control?
Discuss amongst yourselves.
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I think the burning question is, “Have jurors lost all control over themselves?”
The fact that the tweeting juror made comments to the effect that he had absolutely no respect for the duty he was given, and his follow up comments about going before the judge, is an indication of how many people today have so little respect for anyone.
One thing his tweets indicated was his strong bias aganist the defendant in the case.
How do you get through Voir Dire and weed people like that out? You can’t unless you are a mind reader. Or is one of the questions going to have to be, “Do you tweet?”
When you the tabloid news shows that cover cases these days in nauseating detail with tons of opinionated commentators talking about crap they have no idea about and the absolute one sided spin these programs spew, it’s no wonder so many are “tainted.”
Okay, I’ll start. The point of my post was actually that nothing has changed, and that the juror tweet story is no story at all. Jurors have been “talking about the case,” both properly (as this juror did) and improperly, since jurors and talking have existed. When the telephone was invented, they started talking about the case on the phone. Same with E-mail; same with social networking. There’s nothing new here.
I have a similar reaction to the idea that “jurors will accept the instructions as given by the judge.” Studies consistently show that the instructions are only part of the framework jurors are working in, together with community attitudes, personal attitudes, the influence of leaders in the group, and so on and on. Television didn’t change that; it just became part of it, like radio before it and newspapers before that.
What’s interesting to me is the reaction to something like the juror tweet story. My feed reader today is still clogged with it. (So much for any hope that my little post would put it to rest.) I sometimes wonder if our strong reactions to jurors and social networking reflect more anxiety about social networking in general — and, for example, Dan Solove’s frightening privacy stories — than anxiety about the jury system.
I actually read the “tweets” as showing much more respect for the jury system than we often see. They showed a juror who was excited to participate, and (after the verdict) struck by the importance of what the group had done.
The change is one of degree, and that change has been a landslide. Jurors are inundated today, both with entertainment influences as well as social media/internet information sources. It may well have been there for generations, but before it was limited and relatively difficult to find. Today, it can’t be avoided. More importantly, never in the history of mankind has so much been so readily available to so many, and have so many availed themselves of it.
Nothing to disagree with there, and I’d add one other thing that has changed: jurors have been talking about the case for centuries, but now we can much more easily find out about it.
“no respect for the duty”? What tweets are you looking at? He researched jury duty to figure out how to prepare. He said he was excited to be there.
And I’m no lawyer, but I think it’s only bias against the defendant to say bad things about him before the trial. Afterwards, it’s informed opinion.
(Unless you’re counting the “Angry Men” remark, like the defense attorney is. Either he (a) missed the movie reference, (b) forgot the verdict from the movie, or (c) is just trying to get some traction.)