Thursday, September 9, 2010
When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article seeks to focus legal discourse on this under-examined phenomenon.
While the media have characterized this issue as little more than a new variety of juror misconduct, that description may be unnecessarily reductive. This article argues that juror attempts to gain information about the defendant and about the law may not reflect misconduct so much as a misplaced sense of responsibility to render the “right” decision. These efforts might also be a signal from jurors that they are chafing under the restrictions of their role.
The modern conception of the jury as passive and uninformed replaced a more active body envisaged at common law and by the Framers. To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This article argues that we need to rethink the jury’s role for the 21st century and restore some of the jury’s active engagement in the process of fact-finding. The jury that may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears.