Nancy S. Marder

Cyberjuries: The Next New Thing?

There is a new and radical development in the institution of the jury—the emergence of ‘cyberjuries’. Cyberjuries have sprung up on websites, allowing parties to present disputes to anyone in cyberspace who wants to serve as a ‘juror’. One site started by two trial attorneys (Collins, 2000) is iCourthouse, which describes itself as ‘the courthouse of the Internet’. Cyberjuries are new, and one question is: Are they the next new thing? This debate is already underway in areas that have traditionally provided services in person and are now also offering them on the Web, such as therapy (see, e.g., Anderson, 2001, p. 13; Segall, 2000, p. 3) and education (see, e.g., Banchero, 2000, p. 1; Green, 2000, p. D6; Guernsey, 2000, p. D7). Therapists and educators, though providing different services, now face similar concerns. They wonder about the efficacy of trying to provide their services online when they have traditionally been provided in-person. They ask what is lost and what is gained when they use the Web to counsel (see Segall, 2000, p.3) or to educate (see Green, 2000, p.D6). They question whether online therapy and courses signal the death knell of traditional therapy sessions and classroom teaching, or whether they simply extend the reach of these services, albeit in an altered form, to those who would otherwise not have access to them. With the advent of cyberjuries, it is time for the jury to become part of this debate. Of course, this is a difficult debate to enter into for several reasons. First, it is always difficult to predict how a new technology will change existing practices. With the advent of the automobile, there were those who believed it would coexist with the horse-and-buggy, and with the introduction of the videotape, there were those who believed it would lead to the demise of the movie theater. Second, the technology is ever-changing. Although cyberjuries currently exist in a rudimentary form, the new technologies that are making trials and depositions by Internet possible will soon change the form that cyberjuries take. Although I use cyberjuries in their current nascent form as the starting-point for this Article, I recognize that the technology is changing so rapidly that some of the limitations of cyberjuries today will not be limitations tomorrow. Although the predictive question is intriguing, my central purposes in focusing on cyberjuries, in spite of their rudimentary form, are twofold. First, I believe that cyberjuries can lead to new insights about the traditional jury, an enduring institution that has been part of the United States’ traditions since its founding. Information & Communications Technology Law, Vol. 14, No. 2, June 2005

Jury Nullification: Don’t Ask, Don’t Tell?

Juries have the power to nullify, but not the right. As a result, judges do not instruct jurors on nullification. If jurors learn about this power, they can exercise it. However, if they indicate t...

Expanding the Jury: A Provocative Proposal

In her book Defending the Jury: Crime, Community, and the Constitution, Laura I. Appleman offers a comprehensive view of our criminal justice system and its most serious flaws. At every stage of the criminal justice process—from pretrial detention to guilty plea to post-prison ancillary sentencing—defendants and their communities are being shortchanged. In particular, according to Appleman, criminal defendants are being denied community input in determining the facts required for bail, pleas, and sentencing, and communities are being denied the right to participate, on Appleman’s reading of the Sixth Amendment. Appleman’s solution is to require citizens to serve on “bail juries,” “plea juries,” and “sentencing juries,” in addition to the traditional criminal and civil juries. Appleman’s critique of the criminal justice system is comprehensive, and her call for multiple types of juries is novel and provocative. Although criminal procedure scholars are likely to agree with the problems that Appleman identifies in the criminal justice system, jury scholars, as well as prospective jurors, are likely to resist her proposed solutions.