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Computers, Privacy & the Constitution
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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 collectionThe 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 juryOne 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 DataIn 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.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:
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