JuryVox

We are Borg. Resistance is futile. Welcome to the Wired Collective.

Twitter, IM’s, Facebook, YouTube, Google, BlackBerry, iPhone…. burn like a wildfire raging through the culture and the cultural template and social mores are being dragged along behind. What’s next?

“What are you doing right now?” First of all isn’t it amazing that anyone really gives a damn? Tweets bloom from the mundana of life. Followers are graced with descriptions of dinner menus, travel plans, and the other minutae of private lives, but in the public forum.  What has become of a felt need for modest privacy? Facebook and YouTube display private flotsam and jetsam for millions of eyes. You don’t have to wait for your 15 minutes of fame anymore.

Let’s face it. If you were schooled and raised (like I was) during the time of the Princess Phone (dial not digital), what happened in the privacy of your life was your business and no one elses. Gossip was the raison d’etre of neighborhood and church busybodies, but it was hearsay, at least. Parents discouraged overt disclosures of family business. Art Linkletter made us all laugh uncomfortably when “Kids Say The Darndest Things”.  Now that was another time. 

Today the gossip comes with streaming video and sound tracks. Uggh. Middle school kids take pictures of their “junk” with their cell phones and share them (sexting) with the entire school. What are you doing now? I’m squirming. Have we as a people lost touch with shame? Probably not, but now we have more access to opportunities to display shameful behavior.

The notion of privacy, modesty and appropriate public self disclosure has taken a hit with the onset of a technology and capacity that the society adopted before it was fully aware of what that adoption meant. Of course, Alexander Graham Bell’s mother in law was aghast when the telephone hit the streets and for the same reason.

Gen Y and the Wireless Generation know no other reality. Gen X is dealing with their sons and daughters umbilical connection with their cyborg appliances… We are the Social Networking Collective. Resistance is futile. These future and present new voters and jurors cannot even conceive of a social network limited to physical proximity and propinquity.

Wikipedia tells us that a cyborg is a cybernetic organism (i.e., an organism that has both artificial and natural systems). It’s no longer a point of conjecture of whether we as a species will commence cybernetic enhancements to improve upon our meager wetwear. Attached to our belts, ears and poking fingers are extentions of our cerebral cortex, eyes, ears, and voices that reach nearly immediately out into the world that is only limited by the cybernetic attachments of our fellow beings. I Cyborg.

When the furor arises over the use of iPhones, BlackBerries, laptops, cellphones or desktops, it sounds like the reactionary rattle of the Emporer Penquin Elders of  “Happy Feet”  to comtemporary jurors.  As Cybernauts, contemporary jurors simply perceive their enhancements as ego syntonic cortical extentions and their cyber community as their confreres and neighbors. Not using IM’s and Twitter to communicate is as alien as taking a vow of silence. There is an innocence to the use and to the meaning of enhanced cybernetic being. It’s natural. It’s accustomed. It’s me. Welcome to the Collective. Everybody is doing it.

Resistance is futile. As the paradigm changes so do social mores. Normative behavior “out in the world” requires no particular mindfulness as it is so ingrained as to be automatic, mostly. Even with the admonitions of the court, the Cybernaut juror activates the artificial enhancements as easily and readily as she switches hands to accomplish a manual task. 

Our system of justice is normed upon the right of the parties to present evidence and testimony that passes the rules of evidence. Only that which passes the test should be considered by the jurors and the rest relies upon juror common sense in the application of the instructions of law.

What if  “common sense” means the application of the senses as is common? What if the senses have now been enhanced by artificial cybernetic means? If the cybersphere has become an extention of “wetwear” memory, isn’t it “common sense” for a juror to Google? It just comes naturally to the growing swell of Wireless Gen (and older!) jurors. When the features and system of Google transmogrified to a verb denoting “accessing data” it illustrated our cybernetic enhancement and adoption of articifial systems as self.

Jurors hate being confused. They struggle with holes in narratives and evidence and create counterfactuals to fill those holes. They know that they can relieve their unease by moving the cursor to “search” and they just want to do a good job. How could it hurt to simply answer one or more of their burning questions?

What is the remedy? We could start by educating the judges to the realities of Cybernetic Jurors. Clearly blanket admonitions are inadequate to sever the cybernetic cortex from the Corpus Juror. Forming a more specific instruction with a rationale might be the way to go.

Voir dire examination on the familiarity and use of personal computing and communication devices is critical and not simply limited to finding out who has Facebook, MySpace, Twitter or Blog accounts. Carrying out a dialogue in voir dire that identifies jurors who would be prone to feel using their cybernetic enhancements is acceptable is a must… it also serves as a protracted civics course for the remaining jurors on why using the enhancements isn’t fair, appropriate or kosher.

Recognize that the coherence of your case story and the pillars of key evidence and testimony must be congruent, consistent and readily graspable by the jurors. Holes and incongruencies provokes juror discomfort, curiosity and a tendency to fill in the blanks. Counterfactual in-filling errors exist even without Google, but leaving a gap in the story or gap in evidence can provoke a juror to turn for answers to an extra-evidenciary source with “face validity” and which is unencumbered by vetting  or cross examination. We’d hope they turn to their fellow jurors, but why look stupid when you can sound smart and get the answers from Google?

During final arguments, it is essential that each adversary arm their potential juror advocates with words, phrases and rationales to use should they become aware that a fellow juror is searching for answers on line or posting tweets or blogging. Give the jurors a way to address the issue within the jury to create a group sanction of the “no search; no post” norms. Finally, make the jurors aware of how to address concerns directly with the judge should this issue emerge during deliberations.

Imagine a jury instruction that states: It is also your duty to determine the facts. You must determine the facts only from the evidence produced in court. You must not use any cybernetic enhancements to aid you in determining the facts. You should not speculate or guess about any fact or search for more information in Google. You must not be influenced by sympathy or prejudice, your FaceBook Friends, Twitter Followers, or YouTube Audience. You must not be concerned with any opinion you may feel the Wall Street Journal Law Blog has about the facts. You must not be concerned about any opinions your Blog commenters have about the facts. You are the sole judges of the facts. “You” means the biological and physical reality that exists when you are stark naked and have nothing in your hands. Step away from that iPhone and check your BlackBerry with the bailiff.

The evidence is mounting that the admonitions of the judge are insufficient to address and quell the use of cybernetic enhancements during jury duty. If indeed “Resistance is Futile” what becomes of our tenants of trial by jury? Do we change the rules or do we start dancing to a different drummer? You can’t stop the beat.

Picture by Kitetoa: http://www.flickr.com/photos/kitetoa/826007103/sizes/m/