Judges, juries and modern technology - lighten up, judges!

I disagree with the idea that Internet technology, especially mobile versions, is a disaster for our trial by jury system.

Rather, it's a semi-disaster for judges who try to micromanage juries through narrow sets of instructions, who don't take modern technology into account, and other things.

The juror who used an online dictionary on his smartphone to look up "prudent"? Would the judge have denied him a hardcopy dictionary? Would the defendant, if significantly smarter, claimed this man was not his "peer"? (That's a whole nother can of worms.)

In general, though, I think the problem is with judges more than anything else.

Jurors? For conscientious yet inquisitive ones, it's empowering, enlightening and freeing. Deal with it, antiquated judicial system.

America judges experts differently

Judicial testimony experts, that is. In other Western nations, expert witnesses are judge-selected and theoretically non-partisan.

Here, though, as part of the “adversarial” legal system, in both civil and criminal trials, we get dueling, partisan experts, even when a man’s life is at stake.

Here’s the problem in a nutshell:

“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”

Melvin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”

Result? Often, even judges throw up their hands. Think of the poor jurors who, in another stupidity of American jurisprudence vs. that of Europe, aren’t able to ask their own questions of such witnesses. (Generally, in Europe, such questions are asked, to some degree, via the conduit of the presiding magistrate in major cases, who can also do his or her own cross-examination of anybody in the dock.)

Even England and Australia, with common-law legal systems similar to ours, are moving away from the dueling partisan experts system.

In Australia, for example, they still use partisan experts, but they must share information with each other, and testify together at trial.

Read the whole story for more on how the rest of the Western world can (contrary Nino Scalia) inform better jurisprudence here.