Notes

2 : admittedly this is an idealized version of the software, in practice likely impossible to implement to any reasonable degree of fidelity

Sequestration Mode

I think this is a forceful demonstration that "digital sequestration" is not a conceptual substitute for physical sequestration. This is not a trivial conclusion, worthy of the work of getting to it, but I think the best route to improvement is to adjust the vantage. I think the real question has to do with cases involving so much trial publicity as to raise questions about how jurors can manage their connection to the Net. What might courts try so as to preserve their jurors' insulation from intrusive non-evidence while allowing them as much normal digital life as possible? This is not necessarily about the period of deliberations only. Ordering jurors not to read coverage of the trial in newspapers and to turn off the television if the trial was mentioned was surely reasonable in the 20th century. What is now?

Digital Sequestration

-- By SethGlickman - 16 Apr 2021

Introduction

Juries are intended to function as impartial fact-finders, deliberating on the nuances of the trial in front of them but restricted in their deliberation to just the arguments and evidence presented during the course of that trial. In rare cases(4), the jury may be sequestered: that is, prohibited from returning home during the evenings and weekends, and instead housed elsewhere and barred from accessing common sources of news, such as newspapers, TV, or the internet. This practice has declined in popularity as trials have lengthened, and particularly as sequestration costs have ballooned.

One potentially attractive substitute could be termed digital sequestration. This would involve, in some form, jurors relinquishing use of their personal smartphones, laptops, or other computers during the course of the trial in lieu of physical sequestration. This essay considers the reasons behind physical jury sequestration and applies them to digital sequestration to evaluate some pros and cons.

Jury Sequestration

Purposes

As originally envisioned, jury sequestration served at least four purposes(5).

Extrajudicial Publicity

A non-trivial number of cases are newsworthy, and there is a concern that jurors may be exposed to non-judicial publicity which could inappropriately affect their deliberation and decisionmaking. The rules of evidence are rightly far more restrictive than an editor’s decision for what is and is not allowed in a news story, and there is a legitimate concern that jurors could be unduly swayed by something they see outside of the courtroom.

External Pressure

As opposed to the publicity concern, which involves the juror as protagonist, absorbing impermissible information (either deliberately or passively), here the issue is with another person as actor, seeking to exert pressure on the juror specifically. This third party can be a friend or family member of the juror, or in an extreme case, it could be one of the litigants themselves, attempting to pressure the juror in a manner unencumbered by rebuttal, rules of evidence, or other guardrails of our adversarial legal system. Note that this does not require the juror’s identity to be known by the third party - in the previous example, a defendant may publish an op-ed defending themselves in the local paper in the hopes that one or more of their jurors read it.

Juror Safety

This can be considered an extreme example of the previous category, but a concern for juror safety extends beyond the individual case at hand. Any chance that a juror will be injured or killed dramatically reduces the pool of potential willing jurors for future cases as well. Sequestration adds at least a little extra security.

"Impartiality Theater"

Even if you find none of the other rationales particularly persuasive, there is significant value in enhancing the perception of fairness. If cost and juror inconvenience did not factor in at all, you would expect all juries to be sequestered for this purpose alone.

Accelerated Conclusion

The final justification given for sequestration is that the very inconvenience of the ordeal would cause jurors, in an attempt to minimize their time in sequestration, to come to a conclusion more quickly than they otherwise would have.

Historical Use

Although jury sequestration is relatively rare these days, this was not always the case. “At common law, such confinement of the jury was undertaken in all cases as a matter of course (6 Crim. Proc. § 24.9(a) (4th ed.)). This practice has declined in popularity as trials have lengthened, and particularly as sequestration costs have ballooned, and is now only ordered when required by state statute (primarily for capital cases(6)) or when other measures will not suffice to insulate the jury from outside influence.

Digital Sequestration

In trials where the jury’s safety is not a concern, and where the primary issue is exposure to extrajudicial publicity, it may seem attractive to implement a policy of digital sequestration, a halfway measure between full (physical and digital) sequestration and nothing. This would typically involve jurors relinquishing their phones and other devices capable of accessing the internet, but it is not difficult to imagine an alternative where the court would require the installation of monitoring or blocking software on a juror’s primary device. As the most common source of external information by far is a juror’s smartphone, perhaps it makes sense to look to these devices in an attempt to minimize cost and impact to juror’s lives.

Evaluating Whether Digital Sequestration Serves Its Purpose

For many people, smartphones have become an indispensable appendage to their nervous system, and relinquishing the device entirely may impose an undue burden. For the purposes of this analysis, we will assume a digital sequestration consisting of invasive Examplify-like software which prevents access to certain news sources while allowing all other use of the phone(7); otherwise any analysis would be overwhelmingly negative due to this reliance.

Digital sequestration can only address three of the five goals listed above, and even those only in part. It has no bearing on a juror’s physical safety, and also does not guard particularly well against external pressure. Assuming the juror also has no exposure or access to newspapers, television, or another device, a well-implemented block on certain news sources may meet the goal of preventing exposure to extrajudicial information (which speaks to “impartiality theater”), and the discomfort of having a handicapped device may lead jurors to come to a conclusion earlier than they may otherwise have done so.

Conclusion

Digital sequestration, while perhaps attractive on first approximation, is unlikely to achieve the goals of sequestration to any meaningful degree, and the resulting invasions of privacy make this, on balance, not worth pursuing.

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Notes

5 : Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63, 77 (1996)

6 : e.g. Florida: Fla. R. Crim. P. Rule 3.370; Georgia: Ga. Code Ann., § 15-12-142; Louisiana: LSA-C.Cr.P. Art. 791