Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct

By Rebecca Myhr Szajna*

 

I.  INTRODUCTION

“[S]o Johnathan, what did you do today?  Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

-Tweet sent by an Arkansas juror regarding his jury’s verdict in a 2009 civil lawsuit.[1]

 

Technology and juries just do not mix.  At least in the way that the current American legal system is structured.  The advent of new technologies that have created instant access to information and communication pose a serious threat to the current jury system.  One of the foundations of the American legal system is the right to a jury trial: “a jury composed of competent, fair, and impartial individuals, unbiased and free from outside influence.”[2]

A fundamental tenet of this system is that the evidence presented by the parties at trial is the only evidence allowed to be considered by the jury.  As Justice Oliver Wendell Holmes stated at the turn of the last century: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”[3]  Before modern technologies, this rule was relatively easy to follow; however, with the invention of smartphones, iPads, and Facebook, this rule is facing serious challenges from today’s jurors.  Jurors can now access information about litigants, case facts, legal terms, and solicit feedback from “friends” with the touch of a button.

II.  HOW NEW TECHNOLOGIES THREATEN JUROR IMPARTIALITY

Over half of all Americans own a smartphone.[4]  As of 2010, seventy-four percent of American adults used the Internet.[5]  The number of Facebook users is over 1.1 billion per month.[6]  Apple sold three million iPads in the first eighty days of release, the fastest-selling electronic in history.[7]  Cities across the country provide free wireless Internet access to their communities.[8]  Everywhere we turn, people are talking, texting, or reading from a smartphone or tablet.  This proliferation of new technology has changed the fundamental ways by which we communicate and access information.

Our current adversary system is structured to provide two opposing sides the opportunity to argue that its side should win the case based on the evidence presented at trial; jurors are expected to decide a case based on: (1) what they learn from the two opposing arguments and (2) the deliberations of the group of jurors.  With the advent of new technologies, however, jurors can now do their own research, find their own evidence, and solicit feedback from others outside of the jury box.  Before these technologies, there were instances of misconduct where jurors visited crime scenes or went home and looked up the definition of a legal term in the dictionary.[9]  However, new technologies have made it easier than ever to access information that undermines what happens inside the courtroom with information from outside the courtroom.

Moreover, in conjunction with the rise of new technologies, which has created greater access to information and communication, is our reliance on the instant access they provide.  When we want to know the answer to something, we google it.  We expect to be able to find the answer to a question or post a Facebook status update at our whim.  For many, leaving home without their phone is unimaginable.  Internet addiction has even become a treated psychological disorder.[10]  Therefore, it is not surprising that the instances of jurors going beyond the courtroom to engage in Internet-related misconduct are on the rise.

Since 1999, at least ninety verdicts have been challenged because of alleged Internet-related juror misconduct, and more than half of them were between 2008 and 2010.[11]  Since this information was published in late 2010, one can only imagine how the numbers have grown in the last three years.

III.  EXAMPLES OF INTERNET-RELATED JUROR MISCONDUCT

There are many examples of Internet-related juror misconduct, where jurors have conducted factual and legal Internet research, blogged or tweeted about the juror experience, or engaged in improper contact with people involved in the case.

A.  Factual Research

As just one of many examples, jurors have attempted to look up a defendant’s prior criminal history.[12]  Whether such evidence is presented at trial is typically determined after the parties have filed motions in limine, argued over the merits, and the judge has decided the issue based on the law.  If jurors choose to look up a defendant’s prior convictions, then this important legal process has been subverted by the independent research conducted by the juror, which is outside of the controls established by the system.

B.  Legal Research

When jurors choose to conduct their own research into the legal issues disputed in a case, there can be severe consequences when the jurors either misunderstand the legal research, find erroneous information, or use the information in an improper way.  A particularly problematic example is when  jurors look up sentencing ranges, where the knowledge of the sentence then impacts the jury’s decision on guilt.[13]

C.  Sharing the Juror Experience

At first blush, sharing one’s experience as a juror seems the least harmful Internet-related juror behavior.  However, the fact that jury deliberations take place in secret is one of the fundamental aspects of the jury system.  If juror deliberations were made public, then they could be subject to undue external influence.  The secrecy of the jury room protects the sanctity of the decision-making process.  By blogging or tweeting about one’s experience, it opens up the jury room to outside influences and makes the decision-making vulnerable to public pressure.[14]

D.  Improper Contact with Case-Related Individuals

People v. Rios is a recent and prime example of how a simple Facebook “friend request” can possibly influence the outcome of a trial and, at the very least, call into question the validity of a criminal jury verdict.[15]  In that case, a juror “friend requested” through Facebook one of the witnesses who appeared in a wrongful death criminal case.  When the witness realized that it may be improper, he alerted the court to the friend request.  The court was then forced to engage in an investigation as to whether the actions of the juror caused unfairness to the defendant and whether a mistrial should be declared.  The time, effort, and cost associated with such an investigation harms not only the litigants in that case, but also the system as a whole.

IV.  WHY JURORS ENGAGE IN MISCONDUCT

In many instances of internet-related “misconduct,” the jurors are actually well-intentioned.  Most jurors who conduct factual or legal research do so because they feel that they need better or more information than was provided to them at trial.  Additionally, the drive and, some may argue, compulsion to be connected to others through social media has become natural.  When people update their Facebook status more than once a day, it is hardly surprising that they would want to share a rather atypical experience in their life, like jury duty.  The desire to engage in this kind of behavior, which has the impact of undermining the entire trial process, is not ill-intentioned, but rather misplaced.  Therefore, it is imperative that the proposed solutions to technology-related behavior by jurors take into account the “why” of Internet juror misconduct as much as the “how.”

V.  PROPOSED SOLUTIONS

So how do modern-day courts handle the problem of modern-day juror misconduct?  There have been many proposed solutions to the rise of Internet-related juror misconduct; one thing is clear, however: a holistic, multi-faceted approach is required in order to combat the potential of juror misconduct in this modern technological era.  A one-step approach will not suffice, where each proposed solution will not fix the problem alone.  Only a variety of solutions used in conjunction with one another will combat the effects of technology on juror behavior.  Because investigating juror misconduct after the verdict is so difficult, the focus needs to be on preventing the harm before it occurs.[16]

A.  Voir Dire

Many attorneys have begun to question potential jurors about their Internet activity before they become jurors.[17]  While this makes sense and seems to be good lawyering, it begs the questions: Is digging into a potential juror’s online presence a violation of privacy rights, and, moreover, once it has been established that a potential juror is someone who has a high online presence, what do the litigants do with that information?  Given the unease and uncertainty of conducting extensive voir dire on jurors’ Internet presence and usage, this may be a somewhat helpful, but rather limited solution to the problem.

B.  Jury Instructions

Jury instructions need to be better-written, easier to understand, more explicit, and provide explanation for the prohibition against case-related Internet usage.  Instructions alone will never be able to quench jurors’ curiousity or eliminate the desire of some jurors to disregard them, but they are certainly another piece of the puzzle.[18]  The key is that the instructions must not only explain in layperson terms what is prohibited, but also must educate the jurors and explain why the prohibition is necessary.  Providing an explanation as to how external research or improper Internet use can damage the entire trial process will be more effective in combatting the misconduct.

C.  Penalties for Violating Jury Instructions (As Well as Alerting Jurors to the Penalties)

Many argue that a stronger approach is necessary to combat the serious threat of improper Internet usage by jurors in the form of stronger enforcement processes, such as penalties or fines for jurors who violate their oaths by improperly using new technology while serving as jurors.  Holding jurors in contempt and punishing them or fining them for misconduct can act as a deterrent to jurors and decrease the likelihood that jurors may risk such punishments by engaging in misconduct.  One scholar suggests using sequestration as a stick, threatening jurors with the possibility of sequestration if they cannot be trusted on their own to abide by the rules.[19]  While providing stiff penalties and enforcement tools to combat Internet-related misconduct is important, it is most useful to make those punishments known and understood in the context of explaining why Internet misconduct can be so harmful.  Jury instructions should make clear both the reasons why Internet usage is prohibited and then the subsquent punishments if those rules are violated.

D.  Limit Internet Access of Jurors

Many courts have begun prohibiting use or possession of cell phones in the courtroom or even the courthouse.[20]  While sequestration, where jurors are monitored 24/7, would be the best way to prohibit improper Internet use, the cost and burden of sequestration makes this a viable option in only the most extreme of cases, such as the trials of O. J. Simpson, George Zimmerman, and Casey Anthony.  Taking away the use of smartphones, iPads, and laptops while jurors are in the courthouse makes sense and can eliminate the temptation to use technology inappropriately during proceedings.  However, it will not work alone, as jurors can certainly look up anything on the Internet after they leave the courthouse.  Additionally, the anxiety created by such a measure could leave many technology-addicted jurors in shambles and have negative consequences on the juror decision-making process.[21]

E.  Implement Jury Reforms

Many of the reasons jurors engage in misconduct can be reduced or eliminated by implementing some of the reforms that have long been suggested to improve the jury system.[22]  While these reforms were not recommended as a solution to technology-related juror misconduct, new technologies may be the impetus to push forward some of the jury reforms that have long been suggested.  These reforms include: allowing jurors to ask questions, take notes, and deliberate with each other throughout trial.[23]  New technologies have created more active jurors; thus, allowing jurors to become more involved in the trial process can address the juror activity that has emerged through Internet misconduct.[24]  If jurors have other options to fill the needs that they are currently using the Internet to fill (i.e. to educate themselves about the case and connect with others), then these reforms could decrease the desire of jurors to go outside of the jury box.

F.  Better Lawyering

As with many problems related to juries and the work they do in deciding cases, many of these problems can be addressed through better lawyering.  Yes, improved jury instructions and court-implemented juror reforms are necessary, but rather than leaving it up to the court to fix the problem, lawyers should take it upon themselves to make it less tempting for jurors to go beyond the walls of the courtroom to engage in improper behavior.  If lawyers do their job in anticipating and answering juror questions, then jurors may not feel as compelled to seek outside information or input.[25]

G.  An Additional Consideration: Juror Stress

The stressful impact of jury service on jurors is an emerging area of concern for the legal system.[26]  One unanticipated effect of new technologies on jurors can be seen in the form of juror stress.  Even if the previously discussed reforms are implemented, none of the proposed solutions address the negative impact of restricting juror access to the Internet.  Even if jurors are better instructed and educated about the need to refrain from engaging in improper Internet-related behavior, it does not necessarily make it easier to obey.  The need to be plugged-in and connected 24/7 can be an overpowering need for many.[27]  How will restricting Internet behavior affect jurors’ psyches and abilities to focus on the case at hand?[28]  In fashioning a response to the increase in juror misconduct resulting from new technologies, the response will be incomplete without addressing the anxiety caused by reducing technology use in jurors, if even for a day.  The system cannot ignore the notion of juror stress and how the restriction of Internet activities can impact juror well-being and, ultimately, their decision-making abilities.

VI.  CONCLUSION

A few things are clear when it comes to Internet-related juror misconduct.  One is that this is a multi-faceted problem that requires a multi-faceted solution.  And, two, the impact of restricting the natural, normal, and compelling Internet behavior of jurors may threaten not only the impartiality of jurors, but also their well-being and decision-making capabilities.  Given the ever-increasing use of new technology, this is an area that is in desperate need of empirical study.[29] And, with newer technologies on the horizon, the only way for the American legal system to continue to function as intended is by confronting these challenges head-on and by adapting the jury system to meet these technologies as they develop.

 


* Adjunct Professor, University of Illinois College of Law. Stanford Law School, J.D. 2002; The Illinois School of Professional Psychology, M.A. 2008; Arizona State University, B.S. 1999. Much thanks to Angelica Nizio and the rest of the editors of the the Journal of Law, Technology & Policy.

[1] Amanda McGee, Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301, 308 (2010).

[2] Kate L. Dysart & Camalia M. Kimbrough, #Justice? Social Media’s Impact on the Jury System, A.B.A. (Aug. 22, 2013), http://apps.americanbar.org/litigation/committees/trialevidence/articles/summer2013-0813-justice-social-media-impact-us-jury-system.html.

[3] Patterson v. Colorado, 205 U.S. 454, 462 (1907).

[4] Dara Kerr, Over Half of American Adults Own Smartphones, CNET (June 6, 2013, 1:01 PM), http://www.cbsnews.com/8301-205_162-57588043/.

[5] Lee Rainie, Pew Research Ctr., Internet, Broadband, and Cell Phone Statistics 1 (2010), available at http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_December09_update.pdf.

[6] Associated Press, Number of Active Users at Facebook over the Years, Yahoo News (May 1, 2013, 7:27 PM), http://news.yahoo.com/number-active-users-facebook-over-230449748.html.

[7] John Paczkowski, Who’s Your Daddy? IPad Rewriting Adoption Records, All Things Digital (Oct. 5, 2010, 4:50 AM), http://allthingsd.com/20101005/whos-your-daddy-ipad-rewriting-adoption-records/.

[8] Michael Springer, 57 Cities Now Have Free Wi-Fi, but They’re Not Thinking Big Enough, PolicyMic (Oct. 9, 2013), http://www.policymic.com/articles/66891/57-cities-now-have-free-wi-fi-but-they-re-not-thinking-big-enough.

[9] Caren Myers Morrison, Can the Jury Trial Survive Google?, Crim. Just., Winter 2011, at 5.

[10] McGee, supra note 1, at 309.

[11] Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, Reuters (Dec. 8, 2010, 3:23 PM), http://www.reuters.com/article/2010/12/08/us-internet-jurors-idUSTRE6B74Z820101208.

[12] People v. Garcia, No. C049205, 2007 WL 29949, at *5 (Cal. Ct. App. Jan. 5, 2007); see also Nick Madigan, Juror’s Misconduct Leads to New Trial in Gang Killing, Balt. Sun (Sept. 12, 2010), http://articles.baltimoresun.com/2010-09-12/news/bs-md-marshall-newtrial-20100911_1_rival-gang-member-pasadena-denver-lanes-three-jurors (vacating a Baltimore gang member’s conviction after juror performed an Internet search on the defendant’s prior criminal record).

[13] Morrison, supra note 9, at 7.

[14] Timothy J. Fallon, Mistrial in 140 Characters or Less? How the Internet and Social Networking Are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstra L. Rev. 935, 938–39 (2010); J. Paul Zimmerman, A Practical Guide to the Development of Jury Charges Regarding Social Media, 36 Am. J. Trial Advoc. 641, 645–49 (2013).

[15] People v. Rios, No. 1200/06, 2010 WL 625221, at *2 (N.Y. Sup. Ct. Feb. 23, 2010).  The case arose out of the deaths of two New York firefighters.

[16] Fallon, supra note 14, at 945–53.

[17] McGee, supra note 1, at 317–18.

[18] Fallon, supra note 14, at 954–67.

[19] Id. at 965–67.

[20] Ralph Artigliere, Sequestration for the Twenty-First Century: Disconnecting Jurors from the Internet During Trial, 59 Drake L. Rev. 621, 638 (2011).

[21] Id. at 639–40; see also Matt Richtel, Attached to Technology and Paying the Price, N.Y. Times (June 6, 2010), http://www.nytimes.com/2010/06/07/technology/07brain.html?pagewanted=all&_r=0.

[22] See, e.g., Akil Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169 (1995) (providing various suggestions for jury reform).

[23] Artigliere, supra note 20, at 632; Morrison, supra note 9, at 13.

[24] Nicole L. Waters & Paula Hannaford-Agor, Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System 2–3 (2012), available at http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Jurors_%2024-7_REV011512.ashx.

[25] Artigliere, supra note 20, at 633–634.

[26] See, e.g., J. Chris Nordgren & Matthew W. Thelen, Helping Jurors Manage Stress: A Multilevel Approach, 82 Judicature 256, 259–62 (1999) (explaining ways for jurors to manage stress during the trial).

[27] See Richtel, supra note 21; Henry Wallop, People ‘Anxious’ When Cut Off from Internet, Telegraph (Oct. 13, 2009, 7:00 AM) http://www.telegraph.co.uk/technology/news/6307460/People-anxious-when-cut-off-from-internet.html (detailing the anxiety many people feel when cut off from technology).

[28] See Artigliere, supra note 20, at 627 (stating that taking away technology from people evokes unexpected reactions and concerns).

[29] Id. at 624–25.

An Android in the Jury Room

By Matthew J. Donigian*

I. Introduction

The foreperson is considered an essential component of the American jury.[1]  After being selected foreperson, a juror is delegated the responsibility of harnessing the fact-finding power of the jury to reach an efficient and just verdict.  Although jurisdictions employ different methods when selecting a foreperson, the foreperson almost always functions as the jury’s leader and exercises her power by organizing discussion as she sees fit.  In recent years various jurisdictional foreperson selection processes have been scrutinized by empirical studies that aim to discover if the foreperson’s role gives her unequal influence in a jury’s verdict.  These studies indicate that the foreperson does possess considerable power and that certain methods of selecting a foreperson may be injecting inequity into the system.

Recently, amazing progress has been made in the fields of computing and artificial intelligence (AI), which may allow for an artificial intelligence to take over many of the administrative tasks that are currently taken care of by the foreperson.  Since the advent of the first digital computer—ENIAC—in 1947, the ratio of cost to processing power in computers has increased exponentially.  This reality has produced stunning advances in computing power over the last half century.  In 1986, the Cray X-MP supercomputer was capable of .220 gigaflops of processing power at the cost of about $15 million.[2]  Compare this to the HPU4Science cluster, which has 6,000 gigaflops (6 teraflops) of processing power and cost about $30,000 to build in 2011 using commercially-available gaming computer hardware.[3]  In addition, groundbreaking advancements in machine audio-visual recognition capabilities, natural language processing, and general increases in the sophistication of artificial intelligence are making technological feats once relegated to science fiction novels not only possible, but affordable; two stunning examples of this technology are the Forum and Blog Threaded Content Analysis project that is capable of analyzing “large volumes [of] social media content” and providing summaries useful to intelligence operations[4] and Google’s self-driving car.[5]

Exponential increases in computing power will inevitably allow an artificial intelligence to perform the responsibilities of a jury foreperson.  Handing over the responsibility of controlling the logistical affairs of the jury to an artificial intelligence may prevent the inequities created by unequal delegation of power to the jury foreperson.

II. Problems with the Human Foreperson

As expected, jury forepersons have more influence than other jurors during

deliberations.[6]  Forepersons also participate much more than other jurors, and “account for about 25%-31% of speaking during deliberations . . . .”  In addition, the foreperson makes “twice as many novel statements of facts or opinions” when compared to other jurors.

Jury forepersons are selected differently depending on the jurisdiction.  In most states the jurors themselves are free to choose the foreperson at the beginning of the trial, while in some states the judge selects the foreperson before deliberations begin.  Depending on the selection method employed, different sources of bias may have an effect on which juror is ultimately selected.  For example, when a judge selects a foreperson they may give preference to a juror “who nods at the right times and seems to interpret the case in the same way that judge does.”[7]  In states where jurors select their own foreperson there is evidence that education, occupation, and expertise influence the jurors’ choices.

Does the bias injected by the selection of a foreperson detract from the ideal the jury is meant to live up to?  This question largely depends on what ideal we have in mind.  In the not-so-distant past juries were almost exclusively composed of the wealthier elements of society, and the Supreme Court’s recently adopted ideal of the cross-sectional jury is in stark contrast to the composition of juries at the founding.  In Thiel v. Southern Pacific Co., the Court explains why the cross-sectional jury upholds democratic ideals: “[j]ury competence is an individual rather than group or class matter.  That fact lies at the very heart of the jury system.  To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.”[8]

III. Technology Required to Create an AI Foreperson

A foreperson requires three major abilities in order to perform her function.  First, a foreperson must be able to hear jury deliberations.  Second, a foreperson must be able to think about what is said by other jurors and process that information.  Third, (ideally) a foreperson should be able to use this information to direct the jury’s discussion.  If a computer is to play the role of foreperson then it must be able to perform all of these functions as well as a human.

A. Speech Recognition

Jury deliberations present several challenges that voice recognition software must overcome if an artificial intelligence is to take over the role of foreperson.  The three most puzzling obstacles are the format of jury deliberations, which may often involve speakers talking over one another in varying volumes and voice types, the speed at which deliberations may take place, and the constant turnover of new jurors each time a trial takes place.

These are major challenges for modern speech recognition software because in order to increase accuracy, current software must be sensitive to a user’s voice while remaining extremely insensitive to outside noise.  This makes the best speech recognition software on the market very good at recognizing the speech of a long-time user with a noise-cancelling microphone but inept at accurately recognizing speech in a multi-party conversation.

The most popular speech recognition software on the market today is Dragon NaturallySpeaking (Dragon).  Although it is amazingly accurate, Dragon is inadequate for application in the jury room for two reasons: first, Dragon owes much of its accuracy to its ability to be “trained” by a user by analyzing the user’s voice when reading preset written materials;[9] and second, Dragon recommends completing training exercises in a location with similar ambient noise to the location where a user will be dictating so that Dragon can better isolate the user’s speech from other noises.

Recent developments in speech recognition algorithms have led to the creation of speech recognition software that—while less accurately than trained software like Dragon—can analyze speech without being trained by a user and can be used in everyday life.  The most popular of this new wave of software are Apple’s Siri and Google Voice Search.  And while these technologies have much of the speech recognition capabilities that would be needed by an AI foreperson, they have been criticized as inaccurate, with one review claiming that Siri processes speech accurately in noisy conditions only eighty-three percent of the time.[10]  Since many queries that are processed by Google Voice Search and Siri are short and to the point, these numbers would likely be far lower when presented with the unique challenges of the jury room.

B. Critical “Thinking” and Natural Language Processing

In order for an artificial intelligence to perform the duties of foreperson, recognizing the speech of jurors is not enough.  The artificial intelligence must also be able to accomplish the more complex task of understanding the context and nuances of natural language.  Without this ability, the machine is simply replacing the court reporter instead of becoming an element of the deliberating body.  While this capability is still outside the reach of current technology, there are several projects that show promise that this accomplishment will become feasible in the near future.

IBM stunned the world on February 14, 2011, when “Watson,” a supercomputer, beat Jeopardy! Champion Ken Jennings in the first and second rounds of a three-round tournament.[11]  Accomplishing this feat required Watson to hear and answer a broad array of questions, many of which included slang terms or cultural references.  Watson was able to win at Jeopardy! largely because of IBM’s natural language processing technology that allowed the supercomputer to “understand” the context of the question being asked and  provided a degree of representation and reasoning based on the processing of the information.

Natural language processing capability is essential to any artificial intelligence foreperson.  A skilled foreperson should also be able to sense consensus and call for straw-poll votes when the debate has coalesced.  Although Watson’s capabilities suggest that this technology will be available in the future, it is not yet adequate for this application.  Watson’s current capabilities are focused on answering specific and structured questions like those in Jeopardy!, and although jStart (Watson’s commercialized version) has been used in more practical applications like processing patient discharge reports in plain-text and generating follow-up alerts for healthcare providers, it is not built to process the massive amount of data and ambiguity present in live-action juror deliberations.[12]

C. Interaction

Perhaps the most important part of an artificial intelligence is its ability to communicate useful information to humans.  If all Watson did was “think” about Jeopardy! questions it may produce interesting academic data, but its astounding capabilities would be lost on much of the population.  What makes Watson truly amazing is its ability to synthesize the previous two capabilities—speech recognition and natural language processing—and then render the correct answer.  IBM allowed Watson to “think” by giving it a plethora of academic resources, the entirety of Wikipedia, and other reference materials.

However, having access to a world of knowledge is not enough.  Watson also needed to be able to sift through this information to identify the knowledge that was pertinent to each question.  IBM’s DeepQA technology gave Watson this ability by allowing Watson to consider the different ways that a question could be interpreted and then use probabilities and a complex search algorithm to hone in on the most likely answers.

Technology like Watson is currently inaccessible to state and federal courts due to the extremely large investment required for Watson to perform at the level it did during Jeopardy!.  This investment is computing power, and Watson had an unbelievable amount at its disposal: 90 clustered IBM Power 750 servers (each retailing at over $85,000) churning out over 80 teraflops of computing power.  Even if Watson-like technology was more cheaply available, it still would not be able to perform the functions of a competent jury foreperson.

IV. Future Feasibility as Evidenced by Exponential Increases in Computing Power

Although computer hardware and artificial intelligence software are currently incapable of performing the functions of the jury foreperson, this capability may not be as far off as many think.  According to Ray Kurzweil, the Engineering Director of Google, computer speed is not only increasing at an exponential rate, but the rate at which computer speed is increasing is also increasing exponentially.[13]  At this rate, supercomputer power will increase to around 500 times faster than the world’s fastest supercomputer, the Titan CrayXK47, by the year 2020.[14]

Kurzweil not only predicts exponential increases in computing power, but also exponential increases in computing price-performance.[15]  According to Kurzweil, this means that “later in this century . . . a thousand dollars of computation will be trillions of times more powerful than the human brain.”  This amount of computing power would be more than capable of performing the functions required of a jury foreperson, and affordable computers capable of performing this feat will most likely be available far before the type of system mentioned by Kurzweil.

IV. Conclusion

The constitution guarantees a criminal defendant the right to a trial by a jury of her peers.  This right places limitations on the role that an artificial intelligence can and should play in the jury room.  However, by relinquishing the leadership functions of the foreperson to an artificial intelligence, the jury can avoid any corruption associated with the foreperson’s selection and the power afforded her.

Eventually, artificial intelligence will be able to perform managerial and organizational tasks far better than any human foreperson.  An artificial intelligence could provide jurors with an accurate breakdown of how much each juror has contributed, a catalog of those contributions, and could ensure that jurors regard jury instructions when delivering a verdict.

In the near future, increases in technology will allow for an artificial intelligence to enter the jury room as a powerful tool.  In order to prepare for this reality, ethical concerns regarding the extent to which an artificial intelligence should participate in deliberations must be considered, and any implementation must carefully balance the defendant’s constitutional right to a trial by a jury of her peers and the interests of fairness and efficiency.

 


* J.D., University of Illinois College of Law. B.A., Political Science, University of Massachusetts at Amherst.

[1] The foreperson is usually elected at the beginning of deliberation and is charged with leading the jury’s discussion.  The foreperson will often call for straw-poll votes to check the jury’s progress toward a verdict.

[2] CRAY X-MP/48: 1986–1990, SCD Supercomputer Gallery, http://www.cisl.ucar.edu/computers/gallery/cray/xmp.jsp (last visited May 8, 2013).

[3] Adam Stevensen, High Performance Computing on Gamer PCs, Part 1: Hardware, Ars Technica (Mar. 30 2011, 11:30 PM), http://arstechnica.com/science/2011/03/high-performance-computing-on-gamer-pcs-part-1-hardware/2/.

[4] Noah Shactman, Air Force’s Top Brain Wants a ‘Social Radar’ to ‘See Into Hearts and Minds, Wired (Jan. 19, 2012, 6:30 AM), http://www.wired.com/dangerroom/2012/01/social-radar-sees-minds/.

[5] See Ashlee Vance, Google’s Self-Driving Robot Cars Are Ruining My Commute, Bloomberg Businessweek (Mar. 28, 2013), http://www.businessweek.com/articles/2013-03-28/googles-self-driving-robot-cars-are-ruining-my-commute (explaining the effects of Google’s self-driving cars on driving).

[6] Traci Feller, What the Literature Tells us About the Jury Foreperson, 22 Jury Expert 42, 42 (2010), available at http://www.thejuryexpert.com/wp-content/uploads/FellerNov2010Vol22Num6.pdf.

[7] Id. at 45.

[8] Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946).

[9] See Learn Some Quick and Easy Tricks to Using Dragon NaturallySpeaking, Nuance, http://www.nuance.com/naturallyspeaking/customer-portal/tips-tricks.asp (last visited May 8, 2013) (explaining how to “train” Dragon to recognize your speech).

[10] Philip Elmer-DeWitt, Minneapolis Street Test: Google Gets a B+, Apple’s Siri Gets a D, CNNMoney (Jun. 29, 2012, 6:42 AM), http://tech.fortune.cnn.com/2012/06/29/minneapolis-street-test-google-gets-a-b-apples-siri-gets-a-d/.

[11] David R. Martin & Jim Fitzgerald, IBM’s Watson Beats ‘Jeopardy!’ Champs Ken Jennings and Brad Rutter in First Public Test, Mass Live (Jan. 13, 2011, 10:04 PM), http://www.masslive.com/news/index.ssf/2011/01/ibm_watson_beats_jeopardy_champs_ken_jennings_brad_rutter.html.

[12] UNC Healthcare: How Big Data Was Leveraged to Reduce Medicaid Re-Admissions, IBM Software: jStart Portfolio, http://www-01.ibm.com/software/ebusiness/jstart/portfolio/uncMedicaid.html (last visited May 8, 2013).

[13] Ray Kurzweil, How My Predictions Are Faring 135–36 (2011), available at http://www.kurzweilai.net/images/How-My-Predictions-Are-Faring.pdf.

[14] See Introducing Titan, http://www.olcf.ornl.gov/titan (last visited May 8, 2013) (describing Titan’s theoretical peak performance as 20 petaflops, or 2×1016 flops, compared to Kurzweil’s projection of around 1×1019 flops in 2020).

[15] Ray Kurzweil, Kurzweil Responds: Don’t Underestimate the Singularity, MIT Tech. Rev. (Oct. 19, 2011), http://www.technologyreview.com/view/425818/kurzweil-responds-dont-underestimate-the-singularity/.