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Another knee-jerk reaction to technology — this time in California


Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.


Another knee-jerk reaction to technology — this time in California

California legislators and court officials are taking a stand. It’s a murky, misguided one, lacking in common sense, but it’s a stand nonetheless. It’s a stand against progress, the Internet, and the looming threat of this newfangled thing called social media. And they’re going to win this fight, no matter what the cost to the jury and judicial system.

At least, that seems to be their end goal, but I could be wrong. It’s a bit hard to tell since they’re so caught up in preventing conduct that’s been around as long as the jury system (but now wears a 21st century mask) that it’s difficult to discern the rationale behind their muddled thought processes.

Let me back up. I’m getting a bit ahead of myself. Let’s start with the facts. There is California legislation pending that is supported by state court officials that will result in fines being imposed on jurors (up to $1,500) for using the Internet to research and communicate about pending cases. This legislation was drafted in response to the purported threat of increasing mistrials due to juror misconduct.

Now let’s face reality. Mistrials have always occurred due to juror misconduct. Jurors have always disregarded court instructions and researched cases using outside resources. This is nothing new.

In the past, jurors read newspapers or watched the evening news to obtain information about pending cases. Jurors also discussed the cases with their spouses or neighbors. Nowadays, jurors continue to use more traditional methods to learn about cases and parties, but also have the Internet available to them and conduct online research and share their experiences via social networks.

The only difference is that jurors’ impermissible online activities can now be documented and tracked. It’s a simple matter to access digital data evidencing a blatant disregard of a court’s instructions, but it’s another matter entirely to prove that a juror read a newspaper or spoke to another person about a pending case in violation of a judicial order to refrain from doing so. So, because the violative digital interactions are more easily preserved, more mistrials may be arising due to those particular actions.

But it’s important to acknowledge that it’s not the behavior that has changed, it’s the method. Jurors are violating court orders in more trackable ways. And now that judges can prove jurors are ignoring them, heads are gonna roll! Jurors heads. Ok not their heads. But their wallets will most certainly be impacted. And that’ll teach ‘em, right?

One thing it will undoubtedly teach them is that sitting on a jury is a risky—and potentially costly—business. Instead of encouraging citizens to participate in the democratic process of serving on a jury, this legislation will have the opposite effect. People will be more reluctant to serve on juries and our judicial system will suffer. Jurors will find ways to avoid jury duty (and potential fines) and the concept of “ a jury of your peers” will become an antiquated concept that is so 20th century.

If that’s the goal of the California legislature, then Bravo! They’re well on their way to stifling voluntary citizen participation in the jury process. But it that’s not the intention, then perhaps it would be wise to reconsider penalizing jurors for simply being human in the 21st century.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.