From the time AOL introduced the country (possibly the world) to the internet by distributing free software–there has been a deep chasm between the institutions of our society and technology. By institutions read here government and courts.
I can remember how proud police departments in and around NYC were 25+ years ago when they announced the creation of computer crimes squads. Congress debated for years what would be the first round of the Digital Media Copyright Act (DMCA) only to have it obsoleted by the time it was enacted.
Now comes the stories of sitting jurors Tweeting about deliberations. In law parlance-this is now a slippery slope for the courts–and by extension for all of us.
If you have ever served on jury duty or sat in during a trial every time the jury leaves the room the judge delivers a set of admonitions–which include not to discuss the case or read about it. The reason for this–in the jury system 1-there are rulings that have been made on evidence and research may undo some of those rulings and 2-as a lawyer you hope a juror does not begin to assimilate thoughts on the case until they have heard all of the evidence (or at least all of your evidence).
But what is the damage of a juror Tweeting that they are in deliberations? They say the bell can’t be unrung, but I am not sure this rings a bell.
Courts in some cities have taken to taking away cell phones from jurors during the day while they are in court. That is not reasonable–and certainly not in the domain of legal (a whole Fourth Amendment search and seizure issue I would think).
So what is the answer? The answer is for the court system–and beyond that the institutions to realize that we are not in 1985 any longer.
Back in my radio days–this goes back to the early 1990’s, I can remember covering courts and trials throughout the New York Metropolitan area. During this time, NY State courts were conduction an “experiment” with allowing cameras and microphones in court. Countless times we set up “daisy chains” of cable to get audio and visuals of court proceedings. That “experiment” was allowed to end, and has never been revisited in NY.
During this same time period, there was no such experiment in the US Federal Courts. However, I can remember covering hearings and trials in the court toom of Vincent Broderick–who passed soon after leaving the bench in the mid-1990’s. Judge Broderick never understood the ban–and openly defied it. I got tape of sentencings, rulings and hearings in his court. The reason–this was the technology of the time and it was part of society.
I had long conversations with the judge about this–he was a techno-file of sorts. And his philosophy was that the court had to be open to the public to be effective–and the technology of the early 1990’s made the courts open to technology.
Back to 2009.
The problem is not rogue jurors doing what they do every day. The problem is a rigid institution unwilling to accept that this is not 1985 any longer. It took until 2009 for a US president to have a BlackBerry, computer and CTO?
Yeah, we need institutional change.