Computers, Privacy & the Constitution

Digital Sequestration

-- By SethGlickman - 16 Apr 2021

Introduction

Juries should function as impartial fact-finders, deliberating on 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, the jury may be sequestered: prohibited from returning home during evenings and weekends, 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 involves, in some form, jurors relinquishing some use of their personal devices during the course of the trial in lieu of physical sequestration. This essay considers the reasons behind physical jury sequestration, applies them to digital sequestration and proposes a lightweight implementation.

Jury Sequestration

Purposes

As originally envisioned, jury sequestration served at least four purposes(1).

Extrajudicial Publicity

A non-trivial number of cases are newsworthy, and 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

Rather than juror-as-protagonist, absorbing impermissible information (either deliberately or passively), here the issue involves another person as actor, seeking to exert pressure on the juror specifically. This can be the juror’s friend or family member, or in extreme cases, 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 value in enhancing the perception of fairness. If cost and juror inconvenience did not factor in at all, you might 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.

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(2)) 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 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. For our purposes, this 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 are indispensable appendages to their nervous system, and relinquishing the device entirely may impose an undue burden. We will assume a digital sequestration consisting of invasive Examplify-like software preventing access to certain news sources while allowing other phone use(3); otherwise any analysis would be overwhelmingly negative due to this reliance.

Digital sequestration only partially addresses three of the five goals listed above. It does not impact a juror’s physical safety, and does not guard 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 rapidly come to a conclusion.

Sequestration Mode

Court Examplify is not a workable solution for myriad reasons, but a lightweight implementation may be possible. In this proposal, Apple and Google would add an OS “digital sequestration” mode, where users enter their docket number upon jury selection, mapping to the named entities involved in the case. If a device notification comes in containing one of these names, it is hidden from the user and stored for later viewing once their jury is discharged.

Although imperfect, this proposal is entirely client-side, involves no additional monitoring software, and addresses the primary concern of exposure to inappropriate publicity. False positives will exist, particularly if the juror has friends or family with a flagged name, but they should be minimal and these jurors can be excluded in voir dire. It requires buy-in from OS manufacturers but tech currently has strong incentives to act more civic, so this is not unthinkable.


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Notes

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

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

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


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r4 - 29 May 2021 - 15:24:58 - SethGlickman
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