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 impartiality of jury

One of the most important improvements in jury selection may be the introduction of the Jury Selection and Service Act. Before that act, many regions adopted the "blue ribbon juries," meaning that the juries were usually constituted with celebrities or other recognized intelligence or good reputation man. These small group of "noblemen," may have their own values, which may contradict mainstream values. Under the act, all US citizen has the same chance to be select to serve their jury duty.

As a way to ensure impartiality of the jury, the jury needs to be selected from the place that the crime has been committed, and the jury must represent a fair cross-section of the community. The Supreme Court continually emphasizes the importance of a representative cross-section of the community. In Taylor v. Louisiana, the Sixth Amendment was violated because women, who constituted 53% of eligible jurors in that district, were systematically excluded from the jury selection.

Another way to ensure impartiality is that each juror should be unbiased in the case or the defendant. To check whether a juror is unbiased, judge and lawyers are entitled to question the prospective jurors about their backgrounds and potential biases in voir dire. And this brings out our aforesaid question.

The Court 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. Governments usually use registered voter or driving license lists to create their jury pool; however, those records have their limitation. they cannot provide the latest and more detailed information. This sometimes causes the jury cannot successfully reflect the composition of the community. The big data then shows its function. By using the location information and shopping record, the court does not need to spend its precious resource on those who it cannot call, but can easily target those people who actually live in its district. Moreover, 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.

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.

What's next?

It seems that using big data in jury selection has many benefits, so should we apply it? I do not think so and conclude for two reasons:

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.

This is a good first draft. It gets the issues out where we can think about them. The route to improvement, in my view, begins with some corrections to the inferences you draw from the facts you have, which should be supplemented.

It would help to consider the number of juries empanelled in the US, or even in one large city, in a normal year, which this last one hasn't been. Across tens of thousands of juries and millions of jurors called for duty every year, issues of representation are not substantially affected by whether driver's license lists are slightly out of date. I am called for jury duty every ten years in both state and federal courts, precisely because they know I will show up, because I have showed up. The system's own information about potential jurors is sufficient for that. What the government will know about prospective jurors is what comes from its public records; government will not seek commercial records about potential jurors in any but the most exceptional circumstances, both because it is expensive and because the negative consequences of being publicly involved in such behavior will alienate potential jurors. The issue, as you point out with respect to Weinstein, is not what the government will do with non-public data, but what wealthy defendants will do.

There's no place in the US where there are enough jurors to call only "noblemen." Jurors are indeed a cross-section of their communities; you haven't had any personal experience with the US jury system, so that's not a fact you can know on your own.

But, corrected for the factual context as it is, your questions are still valid and important. A little research will help make the next draft stronger.

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