Will the impartiality of the jury be protected or destroyed by big data?

-- By ChengyuTan - 13 Apr 2021

An interesting report "Harvey Weinstein jury selection: bias, big data and 'likes'" caught my eye. According to the article, the lawyers in the Harvey Weinstein rape trial may already know the potential jurors' online activities and be benefited from it when they question potential jurors during voir dire. Some advocates said that using big data in jury selection can not only benefit the lawyers but also can help the court to eliminate bias and protect the impartiality of the judicial system. Is that true?

The Big Data and information collection

The easiest description for Big data is a way to collect, organize, analyze and use a large volume of information. Thus, the first step is to collect people's information. What kind of information will be collected? Basically everything. Your online shopping list, location information, browsing record, posts, tags as well as "like" record are all in the scope of the collection.

The Court, the Lawyer and Big Data

In jury selection, the goal of the court is very clear: to create an impartial jury with a fair cross-section of the community. Big data allows the court to create a jury with a "real" fair cross-section. By analyzing all collected information, race, age and gender are no longer the only available information for the court. It can now create the jury by sexual orientation, education, political affiliations, wealth and all other factors that it thinks relevant.

However, what big data can do is far more than that. With enough information, people can use big data to analyze our thought, model our personality and even predict our behavior. For the lawyers whose premier goal is to build a jury that will support their clients, big data provide an opportunity for them to achieve that. By using big data, the lawyers may identify what race, age and gender are more possible to support their clients and then gain the benefits in jury selection. This is more accurate than the poll or other traditional ways to predict the potential opinion of certain classes.

Another important function of big data is that the court can use the information to determine whether the juror is truly unbiased. once a person reveals some of his information online, it is nearly impossible for him to erase that information. By reviewing the prospective juror's social media record, post, tags and browsing history, the court can ensure that the prospective juror truly has no personal interest in the case, did not previously suffer the same damage, or has a strong opinion in certain offenses. Even after a jury is already established, big data and information collection can allow the court to surveillance that whether the juror is contaminated by outside influences. By reviewing jurors' browsing history, the court can easily find that whether a juror has received information from other places.

On the other hand, lawyers are also benefited from this function of big data. Even if lawyers may have no way to review the prospective juror's social media or other records promptly during voir dire, they can still do the search on jurors by using big data during the trial. Once lawyers successfully identify the voting trend of the jurors, they can evaluate the chance of win of their case.

What's next?

It seems that using big data has many benefits for courts and lawyers, so should we apply it? I do not think so:

1. privacy: since serving as a juror is a duty for all citizens, the court may need to collect all citizens' information. And in voir dire, in order to determine whether prospective jurors are unbiased, the court unavoidably would use that information to question prospective jurors in public. The questions may harsh, embarrassed and offensive. more important, because it is a trial, all questions and answers would become part of the government record and be preserved for a long time. Except for the imminent invasion of people's privacy, using big data may potentially damage the jury system. Harsh questions may raise conflict between prospective jurors and courts, and to avoid being questioned in public, people may try to escape from their jury duty.

2. Freedoms under the First Amendment: if people know the court, a government agency, has the power to collect all their behavior information and may reveal that information in public, people's behavior would definitely be affected. People may avoid sharing their opinions online and prevent participating in political or civil rights groups. The people's freedom of association and freedom of speech, which are the basis of our democracy, are damaged.

3. An imbalance between wealthy party and poor party: in fact, collecting information and maintaining a database is quite expensive, so the wealthy party may be the only people who can enjoy the benefit of big data. If the big data is successfully used in jury selection or on trial, this is will definitely increase the chance that the wealthy party wins the case. Moreover, in some extreme situations, if lawyers find that there is no chance for them to win the case, they may intentionally let the case become a mistrial, so that they can have a new jury for their case. Therefore, using big data has a potential risk of damage the impartiality of justice and lower people's confidence in justice.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, ChengyuTan
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.