THWARTING OR HEIGHTENING FUNDAMENTAL FAIRNESS?THE JURY TRIAL IN CYBERSPACE

Erica S. ChengInternet & Society SeminarAdvisor: Jonathan ZittrainThird Year Paper Draft

- 1 -

THWARTING OR HEIGHTENING FUNDAMENTAL FAIRNESS?THE JURY TRIAL IN CYBERSPACE

Twelve strangers without special skill or training are called upon to exercise their sense of justice and draw on their most astute perceptions of people. Each jury in its own way represents the best and worst of us as a society.

-- Seymour Wishman, ANATOMY OF A JURY: THE SYSTEM OF A TRIAL, 1986.

The jury has the power to bring in a verdict in the teeth of both law and facts.

-- Holmes, J., Horning v. District of Columbia, 224 U.S. 135, 138 (1920)

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

-- Oliver Wendell Holmes, THE COMMON LAW, 1881, p. 5.

The jury trial has been intertwined in the American legal

process throughout our country's history. The idea of a jury of one's

peers, deciding their fellow man's fate, has been embedded in our

current court system. The jury system brings together twelve jurors,

selected without merit-type qualifications of education or training for

service, given absolute power, without accountability, to acquit with

only the requirement that they deliberate until all are in total

agreement.1 Despite the beauty of this mini-democracy, where each

man's opinion counts just as much as the next, the jury system has 1 These characteristics are typical of jury trials although some district court systems allow six jury member trials, and other jurisdictions do not require that the jury’s verdict be unanimous.

- 2 -

endured much criticism for its lack of efficiency and fairness. In stark

contrast to the long history and tradition of the jury trial, for little

more than the past decade, the scope of the American landscape has

been changed by the increasing burgeoning of technology into every

part of our lives. Cyberspace has become mainstream in many

aspects of society;2 could its benefits be transferred to the arena of

jury trials in the legal world?

In this paper, I will examine the feasibility of holding jury trials

in cyberspace in addressing the goals of efficiency and fairness that

the jury process was aimed to accomplish. Does a jury trial

conducted in cyberspace fulfill the fundamental rights of justice and

due process it was designed for? I will lay out the goals, purposes

and criticisms of the current jury system, detail how the jury trial

would be transferred to cyberspace, and analyze the limitations and

benefits of holding jury trials in cyberspace (using the Jury Trial in

Cyberspace on-line course as a model). In addition, I will elucidate

the perspectives of those most experienced with the jury system --

litigators and judges -- in exploring how they view the jury trial

changing with technology. Finally, I will investigate how the code of

cyberspace can assist and hinder the jury process through the

opportunities and limitations of cyberspace interaction and suggest

possible ways in which a jury trial or portions of the judicial process

could be performed in cyberspace.

2 Add cites regarding cyberspace’s impact on society: i.e., holiday e-commerce sales, brokerage, education, etc.

- 3 -

The jury trial adversarial process was designed to ensure both

fairness and efficiency. The rules governing the jury process were

aimed to ensure that the defendant receives the fairest trial possible.

In addition, many scholars believe that in order to accomplish

efficiency goals, the best way to uncover the truth is through the

adversarial process. The right to a jury trial is embedded in our

Constitution. The Sixth Amendment guarantees "the right to a speedy

and public trial, by an impartial jury of the state and district wherein

the crime shall have been committed."3 In combination with the Fifth

and Seventh Amendments, the Sixth Amendment guarantees the right

to a jury trial for all criminal cases and in all civil suits exceeding

twenty dollars.4

As we move into the 21st century, and courtrooms and the legal

process are becoming more and more technologically advanced,5 the

idea of holding a jury trial in cyberspace seems less distant and more

appealing. How would one translate the proceedings of a jury trial

into cyberspace? The beauty of cyberspace lies in its ability to

connect many together quickly and efficiently.6 Would the fairness

and efficiency goals of a jury trial be accomplished in the venue of

cyberspace?

Conducting jury trials in cyberspace would most likely entail

having jury members being notified of jury duty through e-mail, being

questioned in a voir dire process either through an on-line chat 3 Sixth Amendment. U.S. Constitution4 V, VI, VII Amendment, U.S. Constitution.5 Technologically advanced courtrooms like Boston.6 Add quote from Professor Zittrain.

- 4 -

process or by filling out a jury questionnaire, and participating in the

jury trial from the comforts of their own home by having video

streaming of the trial enter their individual terminals. Each day, the

trial's proceedings could be taped and put onto the trial's web site so

that the participants could download the day's proceedings and watch

them at their own leisure. They would deliberate through on-line chat

with their fellow jurors at a scheduled time after the trial's

proceedings were over.

In the following sections, I will describe how various elements

of the jury trial would be altered and affected in cyberspace.

I. VOIR DIRE

The jury trial is often referred to as a "jury of one's peers."7 The

selection of jury participants has evolved through the years to

culminate today in a system in which voter registration lists are used

to create a jury pool to ensure that minorities and women are

included in juries. This process of drawing from the community is

used to protect the rights of the accused. Many consider the jury

selection process to be one of the most important aspects of the jury

trial. As stated by Judge Atkins in his editorial on the jury voir dire, "I

believe strongly in the jury system. It is such an integral part of our

judicial procedure that we must, in the selection process, place

primary emphasis on the main object of jury assignment -- the

7

- 5 -

rendering of a fair and impartial verdict based solely on the evidence

and law."8

The voir dire process was designed to guarantee each

defendant's right to a fair and impartial jury. In this pretrial process,

the judge will dismiss anyone whose beliefs and biases will interfere

with their duties as a juror.9 Lawyers do not choose the members of

the jury, but they can eliminate prospective jurors by using "for

cause" (based on a potential jury member's knowledge of the case or

inability to follow the law) and "peremptory" (for any or no reason)

challenges. The functions of the voir dire include detecting the

unpredictable juror, ascertaining backgrounds of specific jurors to see

which lines of reasoning they would be most receptive to,

predisposing the jurors to certain lines and questioning, and

imparting information.10 The counsel questions the potential jurors in

order to probe for hidden prejudices; they ask questions about their

background, prior knowledge of the case, and opinions on relevant

issues. As stated in Rosales-Lopez v. United States, "Without an

adequate voir dire the trial judge's responsibility to remove

prospective jurors who will not be able impartially to follow the

court's instructions and evaluate the evidence cannot be fulfilled."11

8 Atkins, Jury Voir Dire: The Judge's Perspective, 2 Litigation, Winter 1976, at 19, 50.9 Valerie P. and Neil Vidmar, JUDGING THE JURY, 1986, p. 31.10 Margaret C. Roberts, Trial Psychology: Communication and Persuasion in the Courtroom, 141-143 (1987).11 Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981).

- 6 -

How is a fair voir dire to be conducted in cyberspace? In

cyberspace, the voir dire process would most likely be accomplished

through either a questionnaire or through an on-line chat process.

Using a questionnaire format, potential jury participants would fill

out a jury survey in order to participate. The benefits of this format

are that the potential juror can answer the questionnaire on his or her

own time without having to go to a specific location. In addition,

instead of just 40 jurors participating in the selection process, a

significantly larger portion may be screened easily. The problems

with this process are plentiful. Since no direct questioning by lawyers

takes place, jurors will be able to lie more easily through the written

answering of questions. The attorneys will not be able to personally

detect any prejudices and biases of the jurors. Additionally, jurors

who are interested may already have predetermined viewpoints and

prejudices, which they will be able to hide more easily than through

direct questioning.

Using the on-line chat process, the trial attorneys can screen

potential jurors by questioning them through an on-line chat process.

This alternative does not seem as feasible as the questionnaire

because it does not save time and may not be as convenient. Each set

of lawyers must be present on-line while questioning jurors. Jurors

can still lie more easily through written answering of questions than

through direct questioning (since the attorneys cannot see juror

expressions or body language). Again, the benefit of this process

- 7 -

would lie in the flexibility of the method: jurors can answer

questionnaire from home without having to go to a specific location.

In addition, the defendant has the constitutional right to be

present during jury selection,12 which may pose problems in the jury

trial conducted in cyberspace. Defendants will not be able to observe

jury selection since participants will be able to fill out the

questionnaire or be screened at home on their own time. If jury

participants fill out a demographic survey in order to participate, the

defendant will obviously not be present.

II. REPRESENTATIVENESS OF JURY PARTICIPANTS

Conducting the jury trial in cyberspace could also alleviate one

of the major criticisms of the process: that the jury participants come

from a small percentage of the population. Many commentators have

attacked the non-representativeness of the jury pool and the actual

jury participants. As Christie Davies wrote in her article, "Trial by

Jury Should be Abolished," the lack of jury qualification based on

property and education can lead to somewhat intellectually dull

jurors.13 Paul Grossman echoes this belief in the intellectually-

challenged juror, advising fellow litigators, “Always remember that

the jury has the mentality of an average 11- to 14- year-old. Use

simple terminology. Try to avoid complicated statistical offerings.

12 Gomez v. United States, 490 U.S. 858, 873, 104 L.Ed. 2d 923, 109 S. Ct. 2237 (1989).13 Davies, Christie, "Trial by Jury Should be Abolished," The Jury System (1997)

- 8 -

Try to offer as few exhibits as possible. If you have access to a 11- to

14- year-old child, try out your theories of a case on them.”14

Currently, the jury pool contains a disproportionate number of senior

and less well-off jury participants. Despite the system’s attempts, the

jury does not represent an accurate cross-section of the American

population.

The jury trial conducted in cyberspace may result in a better

cross-section of the general population participating as jurors since

people would be more likely to participate in cyberspace. People

could participate from the comfort of their own home and observe the

day's proceedings at their own leisure. Thus, through this increased

convenience, they would be less likely to duck jury duty.

However, while more of the general population may be

convinced to participate in jury trials instead of avoiding jury duty,

the jury may still not be representative of the general population.

While it is more convenient for people to watch the day's proceedings

from their own computers at their own leisure, people must still log

on at the same time to deliberate. Thus, the flexibility of the jury

process becomes somewhat diminished and less appealing.

Another major obstacle to the increased representativeness of

the jury pool in cyberspace is the existence of technological haves and

have-nots.

If cyberspace trials were to become the norm, computer and internet

access would be required for participation. Both economic class and

14 Paul Grossman, “Thoughts on Jury Trial,” 520 PLI/Lit 383, 386 (1994).

- 9 -

education, for all in the general population would not know how to use

the internet, would come into the process. Instead of voter

registration forms, internet know-how and computer ownership would

become requirements or practical necessities at least.

III. JUROR’S ROLE

The juror's role in the jury trial process is an interesting one.

While they passively observe the courtroom proceedings, they have

full autonomy in deciding the verdict of the case. The jurors listen

silently to testimony, pass in and out of the courtroom when told, and

if obedient, avoid any discussion of the case until the case is no longer

pending. As they hear the evidence, they evaluate and weigh the

testimony of the various witnesses. As stated by Cornelius Callahan,

jurors are almost always instructed, "You are the sole judges of the

credibility of the witnesses and of the weight to be given to the

testimony of each of them. In determining the credit to be given any

witness you may take into account his ability and opportunity to

observe, his memory, his manner while testifying, any interest, bias,

or prejudice he may have, and the reasonableness of his testimony

considered in the light of all the evidence of the case."15 The jurors’

role in cyberspace would become even more passive in cyberspace

since they would not even be present in the courtroom. Transferring

the jury trial to cyberspace would also lessen the gravity of the task 15 Cornelius P. Callahan, THE SEARCH FOR TRUTH: AN INTRODUCTION TO THE JURY TRIAL PROCESS (1997), viii.

- 10 -

set before the jurors. As almost every judge admonishes the jury

before they begin deliberations, "Ladies and gentlemen, you are the

final determiners of the facts," the jurors have a weighty task before

them in deciding to some extent (if not completely), the fate of their

fellow man. The formality and special proceedings of a real-space

courtroom where all participants are in one place are essential in

imparting the gravity of the jury's task to the jurors.16 If jurors watch

the trial proceedings from their own home on a terminal screen, the

trial will likely lose some of the seriousness attached with their duties

as jurors. While viewing the proceedings from home may be

convenient, many distractions will impede the attention the juror will

pay to the court's events. Children or household duties may interfere

with the careful watching and listening of the day's proceedings.

IV. JURY DELIBERATIONS

Jury deliberations are often conducted in a black box since they

are completely closed off to outside observers. The jury deliberations

begin with the selection of a foreperson. Typically, the foreperson

that emerges is a white male with a college degree or postgraduate

work, in a high-status occupation, and with previous jury service.

Interestingly, he or she is often the first person nominated.17 While

real jury deliberations are closed off to any outside observers,

researchers have often simulated mock jury deliberations to glean the 16 Interview with William Lee, Hale & Dorr, December 1, 1998.17

- 11 -

interactions that take place. Generally, juries employ polling methods

to see where jury stands both at the beginning and end of jury

deliberations.18 The amount of participation in group discussion and

deliberations seems to depend on personality characteristics.

Typically, men and those who have attained higher education speak

more. Scholars hold different beliefs regarding the effect of jury

deliberations on the verdict of the trial. Some people believe that

deliberations should be compared to the development of exposed film:

"It brings out the picture, but the outcome is predetermined."

From one perspective, the deliberation process could be one of

the most problematic areas for the cyberspace jury trial process.

Many problems exist with on-line deliberations since obvious

differences exist between on-line deliberations and face-to-face

deliberations. Various cyberspace venues could be utilized for the

jury deliberations. In electronic chat rooms, the jurors would log into

the internet to an on-line discussion area, where they would type in

their comments for the other jurors to read and respond to. While

this is the most cost-efficient and likely of cyberspace alternatives,

many limitations exist with this venue. In this type of deliberation

setting, jurors cannot display the extent of their feelings as well.19

Jurors will not be able to sway their jurors as emotionally with

rhetoric. In addition, people may tend to think about their comments

1819 In real space, jurors can raise their voice, pound their fists, or use hand gesticulations to accentuate their feelings. In cyberspace chat rooms, emotions can only be displayed USING CAPS, **asterisks**, or parentheticals (displaying various emotions or actions).

- 12 -

more before typing them in. The sheer nature of typing in comments

could possibly bring in the element of educational restriction, for

writing and reading skills come more into play. If a juror is unable to

read or write quickly, he or she may not be able or inclined to keep up

with discussions. Juror attention span during deliberations will also

probably lessen since people will not feel as accountable in paying

attention if others are not directly watching them. In addition, in

cyberspace, jurors will lose accountability for their knowledge.

The most effective way to simulate real-space jury deliberations

in cyberspace is through the usage of video streaming technology,

where participants would be able to see the expressions of their

fellow jurors. This type of deliberation setting would ensure that all

the jurors took their roles seriously and in good faith.

On the other hand, on-line deliberations in which personalities

and rhetoric take a lesser role may actually be beneficial to the jury

process. Jury deliberations in cyberspace may become more

inherently fair. Perhaps jurors would concentrate more on the actual

evidence presented in the trial. They would be moved and convinced

by the impact of facts and arguments and no longer be as swayed by

personality conflicts and affinities among the jurors (personality

conflicts, tendency to follow natural leaders, etc.). On-line discussion

may be better due to a less emotional, more decision-making based on

facts than emotions.

- 13 -

V. EXAMINATION OF EVIDENCE

Another drawback of cyberspace is that the actual examination

of physical evidence is not possible in cyberspace. While jurors will

be able to see the evidence, they will not be able to personally handle

it. This disadvantage could be crucial in criminal cases where the

attorney claims that the small-proportioned defendant was not able to

use the bulky murder weapon in the crime because of sheer size. The

physical handling of the evidence could lead the jurors one way or the

other.

VI. INTERACTIONS WITH THE JUDGE

The manner in which the judge presides over a jury trial

changes in cyberspace also. While questions by jurors are usually not

allowed in the courtroom, they are left to the discretion of the judge.

In cyberspace, if jurors have questions, they would most likely e-mail

them to the judge, who would then respond to them by e-mail.

Otherwise, they could talk directly through face-to-face internet

telephony. In addition, the jury should see the interactions and tone

of communications between the judge and the attorneys live in a

courtroom.20

VII. INTERACTIONS WITH THE ATTORNEYS

20 Interview with William Lee, Hale & Dorr, December 1, 1998.

- 14 -

Many of the potential enhancements to fairness of jury trials in

cyberspace lie in criticisms of the jury trial process itself. Many

critics claim that the personalities and reputation of the lawyers

themselves often play too large a part in the jury's final verdict. In

cyberspace, juries will be less influenced by the personalities and

magnetism of the lawyers' presentation since they will not be able to

interact on any level with the lawyers. They are just purely passive

observers.

One of the most salient problems with conducting jury trials in

cyberspace will be the difficulty in judging the credibility of those

involved with the process. Jurors have to judge for themselves the

believability of those before them in forming their own opinions about

a case. In the courtroom, jurors are asked to judge whether the

testimony of witnesses before them are credible and reliable and

match up with the rest of the evidence presented in the case. In

addition, jurors also make judgments about the credibility of the

lawyers before them. Litigators often speak about the rapport or

antagonisms that develop during a jury trial. They often state that

they know when they have lost a case when a juror who always looked

them straight in the eye refuses to meet his gaze when the verdict is

impending.

This type of interaction and judgment of credibility will be more

difficult for jurors in the cyberspace forum. William Lee, head of the

litigation department at Hale & Dorr, stated that he believes the

observational readings of emotional reactions and body language that

- 15 -

goes on between the lawyer and the jury, the lawyer and the judge,

and the judge and the jury are essential to the adversarial process.21

He pointed out that in conducting a witness examination or cross-

examination, the lawyer focuses just as much on the jury's reaction to

the witness's testimony as the testimony itself. He stated that when

you see jurors rolling their eyes or shaking their heads, it's time to

pull that witness off the stand. In cyberspace, the jury trial would

lose this type of interaction between the jury and the attorney. The

attorney in cyberspace would proceed just as if he was conducting a

deposition, asking all of his questions without regard to what the

jury's perception and reaction to this examination is.

VIII. JURY MISCONDUCT

In the current system, judges remove jurors for jury incapacity

or misconduct. Generally, jurors are not allowed to discuss the case

with anyone including each other until they retire to deliberations.

Jury misconduct may lessen in the realm of cyberspace. In

cyberspace, jury members would be less impelled to discuss details of

case with each other; they would not have as much occasion to

engage in small talk, and they may have less incentive to discuss the

case details over e-mail than in person. They also will not be affected

by prejudicial behavior by the public in the courtroom – the public’s

disruptive behavior which may prejudice the jury against your client

21 Interview with William Lee on December 1, 1998.

- 16 -

may violate the client's due process rights as well as the Sixth

Amendment right to be tried by an impartial jury.

On the other hand, jury misconduct may be more likely in jury

trials in cyberspace on the aspect of discussions with others not

involved in the case. If jurors do decide to discuss case before

deliberations, it will be very difficult to monitor and enforce rule of no

communications before deliberations for many reasons. First, the

very nature of watching the trial proceedings from home may

encourage jurors to speak about the case more freely with family

members and friends. Also, during deliberations, it will be even more

difficult to keep jurors from discussing the case with anyone else

outside of the other jurors since jurors will not be sequestered

IX. COSTS OF CYBERSPACE JURY TRIALS

The problem with conducting jury trials in cyberspace could be

the greater costs incurred without necessarily matching benefits. The

trial would have to be videotaped from several different angles. A

judge would still have to preside, so the number of cases on his or her

docket would essentially remain the same. Court personnel would

still be needed.

X. CODE REQUIREMENTS/PRECAUTIONS IN CYBERSPACE

- 17 -

If cyberspace were implemented, there may have to be

alterations and special precautions taken in the adversarial process.

Technological code problems may come into play. Jury deliberations

now are kept private to the complete extent possible with a jury being

sequestered and guarded for security purposes. One could imagine in

cases which have captured national attention such as the O.J.

Simpson case, the privacy of jury deliberations may be undermined

through the talents of hackers.22 In on-line deliberations, hackers or

those actively concerned with the deliberations (newspaper

journalists, etc.) may break into the code/security of the deliberations

and tarnish the authenticity of the communications (from

impersonating jurors to releasing status of deliberations). While one

could argue that technological code is generally quite sound,

measures would need to be taken to ensure the authenticity of juror

identities and preserve the privacy of deliberations.

In addition, administering jury trials in cyberspace would

require great forethought in developing the appropriate code and

technological input.

XI. UTILIZING CYBERSPACE IN THE JUDICIAL PROCESS

While it does not seem like the jury trial would translate well

into cyberspace due to the special nature of the jury trial, other

methods exist in which the efficiencies of cyberspace may help the

22 A "hacker" is defined as a .

- 18 -

judicial process. These instances could be through the grand jury

investigation process, arraignments, and the efficient delivery of

overseas witness testimony.

More discussion regarding group decision-making in

cyberspace: arbitration, mediation, cyber-community norms in

sysopdom.

ALTERNATIVE DISPUTE RESOLUTION AND CYBERSPACE

Descriptions of developments from Christine Lepera, New Areas in

ADR, 770 Pli/Comm 709, January 1998.

The Virtual Magistrate (http://vmag.vcil.org) a self-contained, on-

line arbitration system initially restricted to disputes between users of

on-line systems, systems operators and those who claim to be harmed

by wrongful messages, postings or files, e.g., whether it would be

reasonable for a system operator to delete or restrict access to

content on the basis that it violates intellectual property rights,

defamation, deceptive trade practices, and invasion of privacy.

Virtual Magistrate was developed to demonstrate that on-line

technology can be put to work to resolve Internet disputes quickly in a

cost efficient, accessible manner. Long term goals of the project

include extending the process to other classes of cases and the

possibility of creating an industry wide protocol to resolve disputes

through ADR.

- 19 -

Launched in March 1996, Virtual Magistrate is a joint venture of

the Cyberspace Law Institute, the AAA, the National Center for

Automated Information Research and the Villanova Center for

Information and Policy. Once a case is accepted after review by AAA,

a single arbitrator ("magistrate") is appointed by random selection

from a pool of available magistrates. The arbitrators, who are not

required to be attorneys, are chosen on the basis of their expertise in

on-line technology. All communications, including the filing of briefs

and the award of the magistrate, take place via e-mail. Private e-mail

can be arranged at the discretion of the magistrate, but all

correspondence will probably be preserved for the file, raising

confidentiality issues. Each case is assigned a docket number,

protected by the use of a password system; once the arbitration is

completed, however, the docket becomes available to the public. The

goal of the Virtual Magistrate project is to resolve all disputes within

three business days of submission.

On-line Ombuds Office (http://www.ombuds.org/): on-line

mediation system, operating similarly to the traditional

omsbudsperson, that will handle any dispute arising from on-line

activity; mediation is conducted by e-mail and telephone and the

"ombuds office" exists on Cyberspace on the World Wide Web. The

program was envisioned to make use of discussion groups and

emerging videoconferencing technology.

- 20 -

OTHER ISSUES TO DEAL WITH

Arguments for and against videotaped testimony.

Videotaped depositions (even well-executed ones are never quite as

good as real depositions).

Editing Option

The real video option allows the court to edits the videotape to

eliminate sidebar conferences, references to inadmissible evidence,

and trial motions.

i. Must consider effect of viewing over video rather than live

ii. Must consider passive role on verdicts and perception of jury

service

iii. Effects of production quality of real video

- 21 -