Ever Heard of Bill Cosby?
By ANDREW GUTHRIE FERGUSON
The New York Times
The comedian Bill Cosby needs a jury. Under the Constitution, he is entitled to an impartial and local jury trial. The problem is that after decades in public life everyone knows him, and from months of news coverage almost everyone knows he has been accused of sexual assault by many women. How can a court find fair jurors in an age of media overload?
Faced with this question, the judge overseeing Mr. Cosby’s case in Montgomery County in Pennsylvania decided to “import” jurors from a neighboring county. The hope was to find impartial jurors, but also to keep the trial close to where prosecutors say he assaulted Andrea Constand, a former Temple University employee, in 2004. As understandable as this compromise may seem, the solution makes little legal or practical sense and raises bigger questions about how courts should address the impact of new media on criminal cases.
Consider the issue of impartiality. The goal of importing jurors from one jurisdiction to another is to find a jury pool not tainted by pretrial publicity. But the idea that citizens in Montgomery County receive different news from neighboring counties ignores how the media works today. National television, newspapers and magazines covered the Cosby case. Social media streams shared global opinion and news. Even a local political battle, the election of the prosecuting attorney, received national attention. While perhaps there are citizens who missed this media onslaught, they are just as likely to be living near the courthouse as in the next county over.
Local juries, of course, matter. Juries represent the community conscience, giving legitimacy to verdicts. But their value involves the jurors’ personal connection to the community, not the courthouse’s geographical location. It is the jurors, not the judge, who must be local. Importing jurors to the courthouse does not make the verdict any more local or legitimate.
The challenge facing the Cosby trial — and many other cases in this media-saturated age — requires a new approach to jury selection. The solution is not a broader pool, but a deeper dive into the jurors themselves.
As a former trial lawyer, I can tell you that lawyers know very little about individual jurors. Beyond basic demographics or employment and responses to specific voir dire questions, trial lawyers — even those supported by expensive jury consultants — are making blind guesses. Many courts choose to keep lawyers in the dark about any personal information about jurors. The reason for this information gap involves a combination of tradition, efficiency, privacy and the egalitarian principle that any qualified citizen could be a fair juror. And, as justifiable as those reasons may be, better data exists to select local jurors.
New big data technologies can provide deeper insights into citizens coming before the court. Vast stores of personal data are held by private data brokers that would be transformative for jury selection. Instead of the rough proxy of observable characteristics, lawyers using big data could pick jurors based on their actual interests and inclinations. In the narrow context of pretrial publicity, much of that data centers on media consumption. Media companies know what you are watching. Technology companies know what you are seeing. Social media companies know what you are saying. And it is all tracked.
Courts could — as jury consultants regularly do — uncover which particular media sources specific jurors follow and thus evaluate their actual exposure to negative pretrial publicity. Less technological approaches like expanding voir dire questions, written questionnaires and lawyer-directed questioning could reveal biases based on media or social media influences. Combined, such a granular big data analysis as well as human questioning could reveal the scope, type and source of media influence for the particular, local juror.
This practice certainly raises privacy concerns, but these types of personal inquiries about media habits regularly occur in serious criminal cases. And, whether we like it or not, the information is being collected about us as part of our interaction with digital media. Judges will need to establish privacy rules and data controls, but courts regularly deal with extraordinarily sensitive personal information without great difficulty.
The larger point that the Cosby trial makes clear is that new data-driven innovations may work better than traditional legal solutions such as changing venue or importing juries. News has become too fluid and social media too quick. Courts will, thus, need to find new ways, using better data sources, to identify and prevent media influence from undermining the fairness of criminal trials.
Andrew Guthrie Ferguson, a professor of law at the University of the District of Columbia’s David A. Clarke School of Law, is the author of “Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action.”