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The Jury & The Adversarial System

Yesterday, a friend and I were working in my office — yes, we knew it was Sunday; no, our clocks didn’t spring all the way forward to Monday — and towards the end of our day, she told me about the importance of a new cover for the iPhone, specially-designed to direct radiation away from your brain.

This is very important, she said, because cell phone radiation is so significant that it can make popcorn pop.

“Uh, right,” I responded. A moment later, I proved the Internet is merely a tool which can be used both for evil and good, when my 10 seconds of research demonstrated the falsity of the claim. To make the point in an even more funny way, though, we watched the Revenge of the Popcorn. This, plus the video showing how bananas make popcorn pop pretty much brought home the point: don’t trust everything you find on the Internet.

Meanwhile, I was already dreading a response from another friend who, the day before, had emailed me some information to prove how evil Democrats are. According to her email — with claims similar to the version you can read here — Democrats have totally broken the Social Security system, removing tax breaks, adding new taxes, and giving the money away to undeserving illegal immigrants, among other things. Something like this immediately jumps out as “suspect” when I see the gratuitous connection to Hitler and the globalized statements that completely implicate Democrats for all the evil moves and implies that the well-known Republican attacks on Social Security are (also) fabrications of the Democrats.

And, unsurprisingly, it turns out to be a mix of true and false information.

I say I was dreading the response, because I wrote her and complained that forwarding such information to numerous others who might not research the point contributes to the problem we have today in America: we can’t solve our problems, because we’re too busy spreading misinformation, pointing fingers, and trying to score political points.

(Incidentally, if you wish to discount my comments because you think I’m a Democrat, or even a Democrat sympathizer, you’re not only wrong: you’re stupid. I don’t care about the politics; I’m not supporting one party over another; the example is apropos to my point about information obtained outside an “adversarial” examination.)

In case I haven’t shown it plainly enough, what I’m suggesting is that there is not infrequently a problem with receiving information from untested sources. The final piece of this foundation has to do with the recent NPR debacle where Ron Schiller allegedly slammed the Tea Party and suggested that NPR did not need federal funding.

Turns out: “Not so much.” As that NPR article notes, even Glenn Beck’s The Blaze found the originally-released video was edited in a way that makes it misleading.

The Blaze article, written by Scott Baker, concludes:

Anyone looking at the edited version of the Project Veritas video would be concerned about the conduct and views expressed by the NPR representatives. But should we also be concerned about the deceptive nature of some of the video’s representations? Some will say no — the end justifies any means, even if unethical. Others may be bothered by these tactics and view similar projects with a greater degree of skepticism.

Which brings us to our adversarial-oriented legal system, intended to help juries get to the truth.

Nathaniel Burney, a criminal defense lawyer in New York, and author of The Criminal Lawyer blog, who would remind me of Locutus of Borg if Locutus hadn’t regained the ability to use the correct pronoun to describe himself, has written more than one article about the problem of Google in the courtroom. I’m not sure I agree with what he had to say, so I decided to tackle the subject myself.

At the start, however, Mr. Burney and I can at least agree on this much:

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.

So far, so good. But then Mr. Burney goes on to state:

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.

Maybe it’s a semantic quibble, but I don’t think so, and I can’t agree with the proposition. At first blush, it appears to be internally inconsistent — at least from where I sit — but after I think about it, I realize it’s not internally inconsistent: it’s just wrong.

“It has nothing to do with whether or not the defendant committed the crime,” is something I seriously doubt anyone believes. I hope to goodness that a trial is about exactly whether or not the defendant committed the crime. Sure, on one level it’s about whether or not the State could “prove” the case. It is, of course, possible to “prove” someone committed a crime when they didn’t really commit a crime. There are already far too many innocent people behind bars, though, and I don’t think that’s anything that any of us really think is okay. It’s also true that someone who actually didcommit a crime might be acquitted, although these days I think it’s far more likely that 10 innocent people will go to prison than that one guilty person will go free. (It wasn’t always this way.) At any rate, I doubt very many of us think it’s okay for people to commit crimes and get away with it. The job of a criminal defense attorney is to defend people accused of crimes and it is our job to make the prosecution prove its case; that doesn’t mean that criminal defense attorneys want people to commit crimes with impunity.

I also disagree with Mr. Burney that

[I]f 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.

There is — even more so than the statement that a trial isn’t about whether someone did or did not commit a crime — absolutely something wrong with it.

What if one of the issues is whether the “detached retina” was really detached? What if one of the issues is whether the “detached retina” became detached by the action of the accused? What if the presence of a “detached retina” is supposed to support believing some other thing? Mr. Burney says “what kinds of things are known to cause it” is “just background knowledge” and it should be okay for jurors to go online for that.

I disagree.

Mr. Burney himself correctly addressed this earlier on in the same article:

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.

Why is this the rule? How do I know — how does anyone know — that the source whence the curious juror learned a definition (e.g., the meaning of the phrase “detached retina”) from a reliable source? Because it comes in through a witness who has, first, been “vetted” according to the procedural rules of trial and, second, will be, where necessary, challenged on his or her answer by one side or the other.

Mr. Burney had it right when he started; wrong when he ended. The “crucible of meaningful adversarial testing,” as I’ve pointed out before, is a necessarycomponent of criminal trials. In my prior article, I quoted the United States Supreme Court:

The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment. (Herring v. New York (1975) 422 U.S. 853, 862 [95 S.Ct. 2550, 45 L.Ed.2d 593].)

Aside from the lovely “guilty be convicted and the innocent go free” which reinforces what I said above about the purpose of a trial, it is the attorneys involved in the case who “marshal the evidence for each side before submission of the case to judgment.” The attorneys: not some juror out looking for something that someone other than the attorneys (like the juror) decides is “common knowledge.” Too many people today “know” that the Democrats do this-or-that; too many “know” that cellphones can pop popcorn. I don’t want people thinking that they’ve found out “what something means” where there’s a risk that what they find out hurts my client. If it’s part of the case — including a definition of something discussed in the case with which the jury is unfamiliar — then the evidence for “what we’re talking about here” has to come from a witness. This principle developed over hundreds of years of jurisprudential experience; it wasn’t some arbitrary decision. It was not necessarily harder in the past for a juror to consult a dictionary than it is to research something on the Internet today. The rule that evidence — the stuff presented to the jurors senses during the attempt to prove, or to challenge, a case — comes only through a witness is crucial to the conduct of a fair trial.

To say otherwise is just bananas.

Finally, I get to close this out by finding another area of agreement with Mr. Burney. It should go without saying that having jurors research a case on the Internet is “Not A Good Thing™” anymore than having them read a newspaper to get more information would be. Anyone familiar with criminal defense can tell you that accused people are seldom presented in a good light by the media, however much some might occasionally throw in the word “alleged.” Set aside the fact that criminal defense lawyers are unlikely to want to put the facts of their investigation on public display before trial; the reporters seldom care to print all the reasons the accused might be innocent. If they did, readers these days are disinclined to believe it. More often, what’s printed in the paper is prejudicial to an accused person. Partly, that’s just the nature of “news.” Partly, it’s the fact that a good defense lawyer isn’t going to be talking to the press much. Partly, it’s because the prosecution is.

In short, I would argue that the same flaws that dog what Mr. Burney calls “data that is evidentiary” dog “data that is commonly available.” If it’s not been presented in court, it hasn’t been proven by “the crucible of meaningful adversarial testing.” To re-use another quote from my prior article on adversarial testing:

This system is premised on the well-tested principle that truth — as well as fairness — is ‘best discovered by powerful statements on both sides of the question.’” (Commonwealth v. Rahim (Dock. #SJC-09031 Suffolk Co. Mass 2003) not paginated.)

When a juror does their own research, tries to ferret out “data that is commonly available,” even to figure out “what something means,” no one — not even the juror — can be sure that has happened.

Now, could someone please pass the popcorn?

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