Editor’s Note: The author of this post is a clinical psychologist and trial and jury consultant.
By Roy Futterman, Director, DOAR
Judges throughout the country are struggling with jurors’ rampant use of the internet to research their ongoing trials. The internet, as a relatively new and easy way for jurors to open themselves up to potentially persuasive outside material, has brought to the fore concerns people have had for centuries about how much people can be negatively influenced by others. Is our concern about prejudicing jurors, however, actually driving them to using the internet as a decision-making tool?
Is Persuasion Misused?
In Ancient Greece in the 5th century BC, Plato and Socrates were firmly against the Sophists, because they believed that the Sophists were misusing philosophy to teach others to use rhetoric to persuade people of anything, particularly in court. Plato and Socrates believed that these empty persuasion tactics were being used to unduly influence others rather than using philosophical inquiry to find knowledge and underlying truths.
So how did this argument end? Ironically, Socrates’ efforts to find truth led to him getting put on trial in 399 BC for corrupting the youth of Athens. He testified in court, and he lost. In the long term, however, Plato and Socrates won the philosophical argument to such an extent that, in a sick burn centuries in the making, despite being Socrates’ contemporaries, the Sophists are now referred to as Pre-Socratics. This concern about unduly influencing others, however, remains a primary concern in the courtroom to this day. Judges strain to keep a tight control on the presentation of evidence, so that the jurors can make their decisions on the facts of the case rather than on attorneys’ rhetoric, rumors or subjective ideas.
An American Concern
This concern about undue influence was baked into many American institutions, partly due to the Founding Fathers using Ancient Greek and Roman ideas and institutions as models. There were considerable concerns that pure Democratic practices would allow or encourage the formation of mobs. There has continued to be a fear that a talented demagogue could yield too much influence over the populace. Concerns about swells of temporary public opinion leading the people to make bad group decisions led to such safeguard institutions as the Senate and the electoral college, both created in the Constitutional Convention of 1787. As James Madison put it, “The use of the Senate is to consist in proceeding with more coolness, with more system, and with more wisdom, than the popular branch.”
This concern about the misuse of influence has continued for centuries amid arguments about whether we have free will, and thus the ability to be influenced, and through more recent thinkers showing that any ability to influence others is severely limited. For instance, Sigmund Freud argued in his 1900 book “The Interpretation of Dreams” that with or without others’ influence, we are relentlessly unconsciously influenced from within ourselves beyond our knowledge of it happening. Similarly, Benjamin Libet’s research beginning in the 1980s suggests that whether or not others believe they have sway over us, our behaviors are in fact responding to neurological impulses before we even cognitively make decisions about these behaviors. Can we really be influenced by others blathering with all of this pulsing going on?
The problem is that this leads to tight rules of evidence that make jurors confused by how information is presented in court and also leads jurors to knowing that they are only getting part of the story.
Despite this, the concern about undue influence remains a primary concern in the modern courtroom. Strict rules of evidence have been used since the beginning of the country to ensure that evidence in trials is based on objective facts rather than persuasive rumors or innuendo. Judges fight relentlessly against having attorney rhetoric in arguments and against having persuasive outside facts come in that would prejudice jurors. The judge makes scores of rulings before and during trial on what information must be kept away from the jury, so that the jury can decide only on the evidence. The problem is that this leads to tight rules of evidence that make jurors confused by how information is presented in court and also leads jurors to knowing that they are only getting part of the story.
Jurors Know That They Do Not Know Enough
Jurors get case information in a very strange and confusing fashion. First they see opening arguments in which attorneys strain to insert as much rhetoric as they can without being admonished. Jurors then see days or weeks of witnesses testifying within highly constraining rules. The witnesses behave differently when they are on direct or cross examination, and speak in clipped chunks, so that they often appear to be exhibiting behaviors that are ordinarily associated with lying. The information is presented to the jury out of order and amid confusing objections, sudden whispered sidebar discussions, and the judge telling them to disregard bits of testimony. None of this conforms to anything psychologists know from decades of research on cognition and learning or what educators know are best practices for teaching complex issues. Closing arguments tend to help jurors understand what they have been hearing about, but they are followed by the judge, late in the trial, finally giving them lengthy and confusing instructions on how to apply the law to the case. Jurors are then instructed to deliberate and make decisions from a verdict form.
Jurors are often aware that information is being kept from them, but they do not know why, and they are often concerned that they are being asked to make grave decisions while knowing that they are not fully informed.
Jurors are purposely kept in the dark about many aspects of the disputes, such as information about other parties in the case that may have settled or made plea deals, and are thus not present in court. Jurors are often left to wonder about the implications of their verdict decisions, such as whether there are verdict thresholds that lead to mandatory damage amounts outside of the amounts the jury designate on the verdict forms or about mandatory sentencing triggers. In addition, jurors also know that attorneys for both sides are attempting to influence their decision-making. All of this makes it difficult for juries to make reasonable decisions. Jurors are often aware that information is being kept from them, but they do not know why, and they are often concerned that they are being asked to make grave decisions while knowing that they are not fully informed.
Jurors’ Reasonable Reaction
Jurors want to do their best, and this has led to a rampant new problem for judges. With the rise of the internet, jurors finally have their own way to learn more about case issues, scientific evidence and the law with a few simple searches. Jurors who want to do their best to make serious, life-changing decisions are understandably using the internet to assist them in becoming knowledgeable enough to do so.
This has become a pervasive problem for judges all over the country, leading to scores of mistrials, because jurors are bringing in outside persuasive information. To address this problem of juror internet use, judges have experimented with giving more instruction and admonishment to jurors to not research the case on the internet, with making the jurors make pledges to not do research, and even with warning jurors that they will be fined or charged with contempt of court for doing research.
There is bound to be a quiet, non-confrontational reaction. Is it realistic to think otherwise?
Imagine your reaction to being told that there is extremely relevant information available at your fingertips, but you really should not look. Imagine the reaction of people who have grown up in with the internet. It is not 399 BC or 1787 anymore, but our most old-timey institution, the only American one left in which the people are still instructed to stand when the authority figure enters the room, is giving instructions.
There is bound to be a quiet, non-confrontational reaction. Is it realistic to think otherwise? Attorneys assume that some amount of members of each jury will research the cases anyway, and attempt to adjust their trial strategy accordingly. Modern jurors are used to free-flowing information and find it difficult to adjust to restrictions when lives are on the line. The assumption is that judges’ warnings are only making this internet usage surreptitious rather than stopping it. Persuasive information is flowing unencumbered by attorney argument.
Did We Cause This Problem?
Given this pervasive new problem running throughout our court system, it is worth considering whether our longstanding concerns about the undue influence of rhetoric and persuasive outside information on jurors is actually causing a loss of control of the information flowing to jurors. Jurors are bringing in persuasive information without judges’ and attorneys’ awareness. Should judges embrace the good intents of modern jurors who are anxious about being uninformed at the time of their most consequential decisions about others’ lives? If we were to somewhat loosen the strictures on what can come into court arguments and evidence, could jurors be trusted to use the full range of their experiences, emotions and reasoning to the task?
In the face of these suggestions, one would be reasonable to worry that this would lead to bad verdicts based on attorneys using rhetoric, personal charm and trickery. We, in fact, know that political demagogues can be quite successful in leading people astray. On the other hand, any loosening of information would happen within the adversarial system of our courts in which rival attorneys rebut each other’s arguments. This adversarial system under the watchful eyes of judges would serve to bring in extreme arguments.
The internet’s collision with the modern courtroom may signal that it is time to give the Sophists their due in order to put more faith into jurors’ full use of information mediated by both their hearts and minds.