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Using Facebook and Twitter in the Courtroom

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The Wall Street Journal Law Blog recently had a post on social networking sites being used to determine a person’s suitability to sit on a jury.  For decades we have used a traditional strategy to select a jury called voir dire.  In voir dire, prospective jurors are questioned about their background and any potential biases from both attorneys in a case.  Rounds of elimination ensue until a jury of twelve is reached.  Since this method has worked so well, would adding technology be so horrible?

Whether you love it or hate it, social networking sites such as Facebook and Twitter have seeped into our daily lives.  People check their profiles multiple times during the day.  Statuses are updated on an hourly basis via one’s computer or phone.  People often look up people who they have just met, or may meet in the near future, to get a sense of the individual.

Therefore, why should it be left out of the courtroom?  After all, is it not in the best interest of our justice system to have the most capable, unbiased, and prudent people on a jury?  Facebook and Twitter allow for lawyers to get an idea of prospective jurors, which can better help them choose suitable individuals.

Many people are objecting to the use of Facebook and Twitter by lawyers during jury selection because they claim it is an invasion of their privacy.  However, if privacy is defined as being able to seclude oneself from public view, merely joining Facebook and Twitter allows others to invade our privacy.  By joining these sites, a person allows their information to be online, available to others.

Now of course, there are privacy settings, but people have found ways around them; hence the constant updates to the privacy policies of these sites. Therefore, a person cannot accuse another of invading their privacy when they themselves have made their information public.

Rather than a random person reading your profile, a lawyer may do so to get a sense about you.  However, the lawyer is not invading your privacy because you voluntarily put the information out there.  Since Facebook and Twitter have made us all accessible to anyone and everyone all over the world, it is unreasonable for us to believe that we can control how our information is being used.  Rather than complain about these uses, we need to remind ourselves that social networking sites carry with them the price of sacrificing some of our privacy.

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The Montana Pot Rebellion and Jury Nullification

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There’s an interesting story coming out of Montana involving what may be one of the most extreme cases of jury nullification I’ve ever heard of. In a criminal case involving possession of a small amount of marijuana, an entire jury panel refused (also seen here) to sit, each of them saying that they would never convict a defendant for possession of a fraction of an ounce of marijuana.

The defendant ended up pleading no contest, which is not an admission of guilt, even though it usually has the same practical effect.

This case raises some extremely interesting questions about marijuana laws, jury nullification, and just how responsive the courts have to be when public opinion is overwhelmingly opposed to a particular law.

First of all, public opinion seems to be shifting against criminalization of marijuana, or at least extremely harsh punishments for its possession and use. Obviously, this is a matter of personal opinion, policy preferences, and priorities, on which reasonable minds can differ.

The fact remains, however, that the public (at least in some parts of the U.S.) is firmly on the side of decriminalization of marijuana, or greatly reducing the criminal penalties for possession of the drug. So, what happens when the state calls on members of the public to serve on a jury where the defendant is charged with an act that the public doesn’t believe should be criminalized?

If you’ve ever been called to jury duty, you probably know the drill: the judge and the lawyers for both sides tell you that you have to render a verdict based solely on the evidence presented by each side, and the law as instructed by the judge. You’re told that you have to put your personal views on a particular law aside, and if you’re unable to, you will probably be dismissed from the jury pool.

However, what the court rarely tells the jury about is the practice of “jury nullification.” This is when a jury finds a defendant not guilty, even if they believe that the prosecution has proven all of the facts alleged against the defendant, because they disagree with the law the defendant broke.

The exact nature of jury nullification is sometimes hard for people to wrap their heads around. It’s not a special right of jurors codified in the constitution, or any other source of law, nor is it some secret cheat code.

It’s simply a by-product of the basic nature of the jury system: when a jury renders a verdict, the jurors don’t have to explain their reasoning. It’s that simple. U.S. courts have held that, while jury nullification isn’t exactly a “right” of jurors, jurors can never be punished for rendering an “incorrect” verdict, unless there is clear evidence of misconduct. In criminal cases, unlike civil cases, a court cannot under any circumstances direct a verdict against the defendant. This makes sense, because our constitutional right to a trial by jury in criminal cases wouldn’t mean much of the jury’s verdict could be easily overridden by the court.

This makes jury nullification an extremely powerful tool, and if juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective. After a while, prosecutors start to focus on prosecuting other crimes, and with a law going completely un-enforced, lawmakers may reconsider its wisdom.

However, this case went a step further: during jury selection, every prospective juror stated that they would not convict the defendant, regardless of the evidence, to the point that an unbiased jury could not even be impaneled. I’ve never heard of anything like this happening before, and if you’re in Montana, and believe that marijuana should be decriminalized, you might take this as a sign that public opinion is shifting in your favor.

So, what do you do if you’re picked for jury duty and are strongly opposed to the law that the defendant is charged under? That’s actually not an easy decision. If you simply state your views on the law, the prosecution is almost certain to dismiss you as a juror. However, if you really want to be on the jury specifically for the purpose of nullifying the charges, you have to lie when asked about your ability to be impartial. Obviously, it’s best to simply tell the truth.

Interestingly, David Simon, the creator of The Wire, has called on Americans, when called to serve on juries in cases involving non-violent drug offenses, to vote for acquittal, regardless of the evidence. It’s unknown how effective this campaign has been, but it’s an interesting idea. But is it a good one?

Jury nullification is not without controversy. Some have argued that it amounts to mob rule, and undermines our unique brand of representative democracy (as opposed to direct democracy). On the other hand, if a person is called to serve in a jury – an important civic duty – they effectively become part of the criminal justice system, and can serve in the role of the justice system’s conscience, and can serve as a direct check against government overreaching. If the people are the “fourth branch” of government, jury nullification is their primary means of exercising their power.

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What You Should Know About Jury Duty

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If you’ve ever been called for jury duty, you probably know that it can sometimes be pretty inconvenient. This might be especially true if you live in a state where your employer is not required to pay you for the time you’re at jury duty. That’s most of them, in case you’re wondering.

The temptation to slack off and not pay attention can be pretty strong, especially if the case isn’t very interesting (and that’s the case with the vast majority of them). However, whenever you’re on a jury, and you begin to think of letting yourself fall asleep in your chair, or making a few quick updates to Facebook or Twitter, you should remember this: anybody, including you, could be on trial one day. Would you want a jury made up of people who take their jobs as jurors seriously? I know I would.

So, with that in mind, let’s look at some things that you should and shouldn’t do when you’re a juror. The list of things you should do is pretty short. Let’s see…

  1. Show up on time
  2. Pay attention
  3. Follow the judge’s instructions

That’s about it.

The list of things that you shouldn’t do as a juror is seemingly endless. And it seems like it’s every day that a juror does something that nobody would even have thought to warn against, because it should simply go without saying.

Case in point: a juror in Connecticut came very close to causing a mistrial in a murder case, and getting herself into serious legal trouble, when she tried to slip a note to the court’s bailiff, asking him on a date.

Now, this might seem relatively harmless. It’s not as if this juror was communicating with the defendant, or anything. But, there are plenty of things wrong with this. It’s really easy to come up with a list of flaws that appear to be inherent in the jury system. One of these flaws is that jurors, being ordinary people who probably don’t really want to be on a jury in the first place, might be easily corruptible. This may or may not be true, but it’s a common perception.

So, to minimize even the appearance of impropriety, courts have very strict rules restricting contact between jurors, and everyone else involved in the case they’re deciding. Basically, jurors are not allowed to have ANY contact with the judge, lawyers, and parties involved in their case. Even if the contact is an innocent conversation about the weather, an outside observer who sees the conversation, without context, might assume that something improper is going on, which undermines public confidence in the jury system.

The amorous juror got a very stern lecture from the judge (along the lines of “I didn’t tell you not to do this because it should have gone without saying”), and the judge very seriously considered declaring a mistrial. In the end, however, the juror was allowed to remain on the panel, and the trial went forward. The bailiff was transferred to another courtroom, and the judge ultimately concluded that the juror’s impartiality in the case was not impacted.

Still, the juror showed spectacularly, monumentally, nightmarishly poor judgment. One could argue that the juror should have simply been removed and replaced with an alternate juror, to eliminate this as an issue for appeal. But I’m not going to second-guess the court’s decision here.

Oh, and you might also have heard about the story a few months ago, where a juror posted on Facebook that she was going to enjoy convicting the defendant…before the trial had concluded. Obviously, this was a problem. This juror ended up getting kicked off the panel, and, last I heard, was defending herself against a contempt charge, carrying hefty fines and a short jail sentence.

I should note that the vast majority of jurors, even if they don’t want to be there, take their responsibility seriously, and perform their duties competently.

But why are we always hearing about stories about jurors who clearly don’t care about their responsibilities? I believe it’s due to an inherent contradiction in our jury system. In our criminal justice system, jurors are arguably the most important people in the case, and they’re constantly lectured on the essential function they’re performing. However, in most states, the court system does not treat them as if they’re very important.

In the vast majority of states, employers are not required to pay their employees even a fraction of their normal wage when they’re on jury duty. And the “compensation” that the state provides jurors is a pittance – usually in the area of $15-$20 per day – barely enough to buy lunch and cover transport costs, if that. While every state strictly bars employers for firing or otherwise punishing their employees for serving on juries, the fact that most of them don’t provide for any significant compensation can make jury service extremely burdensome, especially for workers who are paid by the hour.

Think about it: if you’re a juror, and are constantly being told that you’re the most important part of the criminal justice system, yet that same system can’t be bothered to provide you with any meaningful compensation for your time, they’re sending the message that the criminal justice system must not be all that important.

Perhaps one solution to incompetent or apathetic jurors is to make jury duty less burdensome on them, and back up all the talk about jurors being the most important part of a trial. This wouldn’t be terribly difficult. A huge step in this direction would be to pay jurors at least minimum wage for their time. Obviously, this would cost a lot more than the pittance that jurors currently receive, so maybe part of it could be covered by their employers, with the other part covered by the state.

Jury duty will always involve some measure of inconvenience. That doesn’t mean that jury duty isn’t essential to the functioning of our judicial system, as it’s currently structured. Perhaps, rather than piously lecturing jurors on the importance of their role, and expecting them to take that on faith, we should show them that we understand the importance of their work by actually providing them with meaningful compensation for the work they do.

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Courtroom Etiquette: Like Dinner Etiquette Only More Terrifying

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A courtroom can be a pretty intimidating place.  Everyone is dressed up in suits.  There’s a bailiff in the corner who can place people under arrest if they act out.  Not to mention the judge, who’s treated like a god.  But this intimidation factor can feel like it’s multiplied tenfold when you’re the one on trial for a criminal offense.  However, the biggest reason why most people are intimidated by courtrooms is that they just feel like they don’t belong there.  So what’s a person to do?  Simple.  Just follow these basic rules of courtroom etiquette and you’ll be fine.

Now before I jump into the list, I just want to preface it by saying a lot of these may seem like common sense – and they are.  However, there are a lot of people who seem to forget how to apply common sense even in the most dire of situations.  For instance, if you’re unfortunately convicted of an offense, when you have to show up to prison to serve your sentence, don’t drive there drunk.  Now you might be thinking to yourself, “Who’d be dumb enough to do that?”  Yes, who indeed.  And on that delightful reminder of the importance of common sense, here are some rules you should always observe while in court.

First Rule: Dress in formal business attire.  A no-brainer, but one that people can forget.  Courtrooms are very formal places steeped in age old customs and traditions that still influence it today.  One of these ancient traditions is formal attire.  This tradition started way back in the old English courts, which our current common law justice system is derived from.  People would dress in their “Sunday Best” to show respect for the court and the law – feel free to extrapolate some religious overtones from this tradition, as well.

Second Rule: When addressing the judge, do so by saying, “Your Honor.”  This one probably sounds completely ridiculous to most people, at least to me it did.  When I was younger, the idea of having to address another person using such a referential term used to make me really angry, especially in light of all the judicial abuse cases reported in the news.  My thinking was that if everyone had to call you “Your Honor” before even be able to speak with you, of course you’d get a big head.  But as I learned, this again is a custom steeped in a tradition of respect.  The reason you address the judge by this term isn’t necessarily just because he or she is the judge (though that’s part of it, too); the real reason is that when you’re speaking to the judge, you’re speaking to the law itself.  Sound funny, right?  “The law is an incorporeal entity created by people and the judge is just a person, not the law,” is what you might be thinking.  This is true, but when the judge dons the black robe, the judge actually becomes the law itself or if you prefer, a representative of the law.  You see, the black color of the robe isn’t just a stylistic choice; the color is supposed to represent neutrality and fairness.  In essence, that the person wearing the robe has now put aside all his or her biases and will adjudicate all matters before the court as the law would dictate.  That’s not to say of course that judicial abuse still doesn’t happen, because it does.  But hopefully this little tidbit will make saying those two words a lot easier for those of you who feel uneasy about it like I did.

Third Rule: Don’t bring food, beverages, or turn on/use any noise-producing electronics into court.  Really, do I have to enumerate on this one?  How respectful do you think it will appear to the court if during your arraignment if you’re biting into a burger while downing a coke and texting your buddies that the judge is a jerk?

Fourth Rule: Don’t bring audio or video recording devices into the court.  Honestly, I never understood this one.  The rationales for this are two-fold.  One, it’s a rule primarily directed a jurors to prevent them from reporting to outside sources what’s going on in trial and during their deliberations.  And two, it’s because traditional court rules say so.  Not very good reasons, but reasons nonetheless.  I mean most criminal trials are public and journalists are allowed into the court to report on its happenings, so why can’t they or the public bring in anything to record it.  Oh yeah… I forgot.  Actually, this rule might change one day in the future as many see it as antiquated.  So stay tuned folks, but for now just don’t do it.

Fifth Rule: When it doubt, don’t do it.  This is my universal catch all rule.  If you suspect that exhibiting a certain behavior or saying a certain comment may be perceived as disrespectful to the judge or court, just don’t do it.  It’s better to be safe than to be sorry, as the old adage goes.  Remember judges have the power to hold people in contempt, which can mean fines, but generally is usually a public tongue-lashing in front of everyone in the courtroom.

And if you’re really unsure of how to act in court, feel free to ask the court information desk.  Or better yet, you can also go on this new fangled invention called the Internet and check your local court’s website for proper courtroom etiquette.  Ahhhh, the marvels of our modern world…

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$1.5 Million Verdict for a Company that Can’t Adopt a New Technology

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There’s this new technology called SawStop (click for a video demonstration – it’s not at all violent, but a few bits might be cringe-inducing nonetheless). It’s currently quite expensive, but it’s very, very impressive. Essentially, it’s capable of stopping and retracting the blade of a table saw the instant anybody’s skin comes in contact with it, protecting the user from serious injury. It appears that, at worst, the user might sustain a minor knick.

It would be wonderful if such technology became standard in table saws (imagine a world in which every woodshop teacher has all 10 fingers!). There’s a problem, however. It’s expensive, and it only works once (the blade and SawStop module are destroyed if it is activated. They can be replaced, but they’re not cheap).

So, it would clearly be very difficult for every manufacturer to add this technology to its products, unless the price comes down significantly.

At what point, then, should lack of such a feature in a table saw render it defective? Right now, according to a Boston jury. A man was using a saw which didn’t have this feature, and injured his hand in the process. It seems undisputed that this technology would have prevented his injuries. He sued the manufacturer of his saw, claiming that it was inherently defective because it lacked the SawStop technology. The saw maker had been in negotiations to license the technology, but the talks broke down, presumably due to the cost of licensing and implementing it.

The jury awarded him $1.5 million.

Now, to be clear, I am all for holding manufacturers liable for truly defective products – products which are unreasonably dangerous, even when they’re used as the manufacturer intended.

But this seems like a road we may not want to go down. One of the factors that courts usually consider when deciding if a product is defective is whether or not it could be made significantly safer, without seriously diminishing its usefulness, and at a reasonable cost. SawStop technology seems to meet the first 2 prongs of that test – it makes saws much safer, and they seem to be just as useful as they are without it. But it fails the final prong – it’s really expensive.

Furthermore, most saw makers declined to license this technology precisely because it would be too expensive for them, and for consumers, to implement. So if this verdict stands, it would mean that at least one court is saying that almost every table saw in America is inherently defective.

Over at TechDirt, a critic of the patent system (whose criticisms I don’t always agree with, but that’s for another post) notes that this verdict effectively punishes the saw manufacturer for not infringing upon SawStop’s patents. After all, they couldn’t afford to license the technology, so their only alternative would have been to use it without the owner’s permission – classic patent infringement. I don’t necessarily think that the parade of horribles that the author of the above post presents will actually come to pass. Still, the implications of this verdict are disturbing. If we follow some of the premises behind patent and products liability law to their logical conclusions, we could come to the bizarre result that SawStop effectively has a right to dictate who is allowed to make table saws.

Think about it – SawStop has an exclusive right to market its technology, under patent law. But now, under products liability law (according to at least one court) a saw not featuring the SawStop tech is inherently defective, so the manufacturer is subject to strict liability for every injury caused by the product, thereby making such products economically infeasible to sell. SawStop gets to decide who can use its technology, thereby deciding who can make table saws.

In reality, such a situation probably won’t come to pass. However, the mere fact that the law makes such a scenario at least technically possible is quite disturbing. Courts and legislatures are complex entities with a lot of moving parts, so they can’t always be aware of how the application of one law will affect the application of another, seemingly unrelated, law. But maybe a little more time should be spent considering the possible consequences of their actions.

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