Erica S. Cheng

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

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 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.

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 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.

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 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

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 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.

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. 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 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.

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 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.

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 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 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.

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.

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

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 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.

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 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

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.

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.

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 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.

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.

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.

Arguments for and against videotaped testimony.

Videotaped depositions (even well-executed ones are never quite as good as real depositions).

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

FOOTNOTES