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June 21, 2011

Juror Jailed In Britain For Contacting Defendant Through FaceBook, During Trial

An interesting example of the New Age we're in.

Here's the thing: The ideas of self-publishing, one-man media organs, and Open Source Journalism are now not even "ideas" so much as they're just overlooked as background facts. Almost like few people notice their own breathing (unless it stops or is strained).

Add into that the consequent idea that our institutions have no idea what they're doing and the average citizen can probably their jobs half-decently, and you have this.

Someone sitting in a jury box wondering, "Why doesn't the defendant just get up on the stand and say if he's guilty or not? Why doesn't someone ask these relevant questions?"

In the days before instant searches of every name that's ever been typed into a computer, you wouldn't even think to do this, as it was strictly impossible.

Now you can run a one-second search and 75% of the time you'll get a hit. So strict impossibility is no longer a moat surrounding the castle. Now you have to actually explain to people why the defendant is not taking the stand (it's his right not to do so, and, sidenote, there's probably a good reason he doesn't want to be interrogated by the DA) and why the rules of evidence were created.

Given that this stuff probably wasn't explained to this woman very well -- institutions have not adapted to the new reality of instant worldwide searches and instant communication yet -- they should probably not treat her very harshly as an "example." Make the point that the charge of contempt of court exists, and someone flouting the judge's rules can wind up in jail, and put people on notice.

But also understand that the internet has made people impatient with process and rules without explanation. It's an understandable failing. This woman did not want to wait for the answers to be given to her (probably incompletely, as that's how these things tend to go) by the prosecutor and witnesses and got impatient and decided to ask the man himself.

Contempt of court? Absolutely. Something that needs to be discouraged and penalized? Absolutely.

But I also think an understandable thing when you consider two eras are crashing against each other like icebergs.

This is a tough situation because a court really can't spend the time explaining Why for every evidentiary ruling or objection to a question. The why gets explained in two years of law school. (Not three; the third year is a waste of time pushed by law schools not for any strong pedagogical reason but simply because 3 x $20,000 is better than 2 x $20,000.)

But in broad terms, courts will probably have to explain better, at the beginning of a trial, the basic underlying theories above evidence and proper questions and a defendant's right to refuse to testify.

And also the penalties for one-woman FaceBook investigations.

Thanks to LauraW.

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posted by Ace at 12:55 PM

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