Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.” In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online. We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.
Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed. Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it. Stranger things have happened, though we can’t think of any offhand.
Be that as it may, the internet is forever, and it seems to get read from time to time. Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared. That’s when we seem to field calls about it, anyway.
And that’s what happened earlier this week. We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time). When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there. (You can read the resulting article here.)
We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there. Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.
But on second thought, we actually said some new stuff in this interview. Some new policy considerations came to mind. The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us. She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it. It was a pretty skillful interview. Pity none of the good stuff made it into the article. We blame the editors, of course.
So for the benefit of those who have bothered to read this far, here’s the good stuff:
We don’t want jurors going out and gathering evidence that wasn’t presented at trial. The trial is a tool for testing evidence, in order to determine whether the government has proven its case or not. The burden is on the state to do the proving. If the state doesn’t do its job, then the state doesn’t get to take away the defendant’s life, freedom, or money. The state puts on its evidence, and the defense gets to cross-examine it. The evidence is only admissible in the first place if it meets certain requisites of basic reliability. Then the defense cross-examination is there to test that reliability and credibility even further. For jurors to go out and gather evidence on their own defeats the whole purpose of a trial. The evidence they gather is not subjected to any evidentiary rules, and is not tested by any cross-examination. It may be perfectly unreliable, it may be less than credible. But even if it is perfectly truthful it’s still wrong, because the state has the burden, not the jurors.
Remember, in a criminal trial, the jury’s job is not to figure out what happened. It is not. The jury’s job is to determine whether the prosecution met its burden, and nothing else. It’s perfectly formulaic: if the prosecution proved elements A B & C beyond a reasonable doubt, then the defendant is guilty of crime X. If the prosecution failed to prove A B or C beyond a reasonable doubt, then the defendant is not guilty. It has nothing to do with whether or not the defendant committed the crime. It’s only about whether the prosecution could prove it.
If the jurors are out there gathering additional evidence, they’re missing the whole point of their function. They’re trying to figure out what the facts of this case really are, acting as their own witnesses, instead of assessing whether the state did its job right. Might as well not bother having a trial, if that’s going to be happening.
But gathering evidence is different from gathering general knowledge.
Jurors should not be allowed to investigate whether person Z did act X at location C. But there’s nothing wrong with jurors knowing on their own that location C happens to be at the corner of 23rd and Elm. That’s just basic background knowledge.
Likewise, we’d have no problem with a juror, who happens to be a doctor, knowing that the word “ecchymosis” refers to a kind of bruise where blood leaks under the epidermis. We’d have no problem with jurors understanding that clouds are big fluffy white things that hang in the sky and sometimes bring rain. We’d have no problem with jurors knowing the meaning of the phrase “ordered a pizza.” It’s all just background knowledge.
Where we go wrong is when a non-doctor juror might not have known what “ecchymosis” means. The juror might, or might not. But most people probably don’t. What now?
The rule has always been that the definition has to come out on the stand, subject to the same evidentiary rules of reliability and credibility as apply to actual evidence. We’re not talking about evidence, but mere general information, but jurors can’t get that information unless it’s treated like evidence. If they already know the information, fine. But they can’t go learning it on their own. If they didn’t already know it, they have to get the information from a witness.
Before 2001 or so, this wasn’t such a bad rule. Most jurors would have to go significantly out of their way to look up information they didn’t already have. Specialized dictionaries weren’t commonly available, even at many public libraries. The internet hadn’t yet evolved to a point where one could find accurate information on pretty much anything. The internet’s information was still pretty spotty back then. Books were still the way to go. And even if one could find a resource in a library, it was time-consuming and you sort of had to know what you were looking for to begin with. It was more akin to investigating for evidence than relying on general common background information.
But once the internet really took off, it quickly became second-nature for the vast majority of people to use it to look stuff up. As dial-up modems gave way to cable and T1 connections, and as wireless internet evolved to a handheld browser in practically every cell phone, looking stuff up became essentially costless, instantaneous, and ubiquitous. As the scope and accuracy of the resources online grew and grew, the accuracy and reliability of the information out there became just as good as that available to specialists.
Being able to look up information — even specialized information — is now as second-nature as breathing to a large chunk of the population. It’s only going to get more so.
Again, this is not the same thing as looking up evidence that the government has to prove. The government does not have to prove that a detached retina is what happens when the retina separates from the back of the eyeball, and that it can be caused by such things as X Y or Z. The government has to prove that the defendant injured the victim and caused the victim’s retina to detach.
So if a juror goes online and starts reading news accounts detailing facts about how the defendant injured the victim, and how that injury caused that victim’s retina to become detached? Well, that’s flatly wrong. Not allowed. Defeats the purpose.
But if a juror goes online to find out what the phrase “detached retina” means, what kinds of things are known to cause it, and stuff like that? That’s just background knowledge. There’s nothing wrong with it.
When we wrote that original article a couple of years ago, we said that the rule ought to be “data that is commonly available is treated as if it were common knowledge.”
That’s fine, but needs to be limited. Data that is evidentiary can and must be precluded from independent juror investigation. But anything that is not a specific fact about what this defendant did? That’s not evidence. It’s information. And jurors should be allowed to look it up.
They’re going to anyway. It’s as natural as breathing. It’s an unthinking, automatic response. As we told the reporter, these days everyone is a researcher. You don’t know a fact, you look it up. Instantly. You’ve learned to assess the reliable sources and ignore the gossip and noise.
That’s what we expect jurors to be able to do at trial, when evaluating evidence.
It’s called “common sense.”
It’s time for the courts to start using it.