Faculty Blog, Singer

Reckless Tweeters Could Learn From Jury Duty

Reality is a complicated thing, but don’t tell that to the politicians and pundits on Twitter. Consider statements made within hours of the alleged attack on actor Jussie Smollett on January 29. U.S. Senators Cory Booker and Kamala Harris both characterized the incident as “an attempted modern-day lynching,” and several Hollywood actors quickly blamed the attack on President Trump and his supporters. These impulsive reactions have not aged well. After weeks of careful investigation, the Chicago police now believe that the attack was a hoax orchestrated by Mr. Smollett himself.

The Smollett affair marks the third time in the past month that the blue checkmark class has rushed to judgment on breaking news. In mid-January, journalists took to social media to promote a Buzzfeed story suggesting that the President had instructed his lawyer to lie to Congress, even as they acknowledged that they could not confirm whether the story was true. It was not, according to the office of Special Counsel Robert Mueller, which took the extraordinary step of publicly denying the report. Soon thereafter, the cyberspace judiciary struck again, brashly condemning students from Covington Catholic High School based on a short, viral clip showing an altercation at the Lincoln Memorial. Within days, much fuller video of the event surfaced, clearly revealing that the boys had not started the incident, and had indeed shown remarkable composure when confronted with troubling behavior from those around them. Some of their online assailants eventually deleted their tweets and apologized to the Covington students, but the damage to the boys’ reputations, families, and community was already done.

These days, waiting at least 48 hours to pass judgment on breaking news is both sensible and humane. But sensibility and substance in our civic culture have taken a back seat to speed, noise, and outrage. Social media—and increasingly, traditional media—rewards whoever has the first, loudest, or most egregious take on the news of the day. In public life, we have become skilled at shouting, mocking, and casting blame. But we have forgotten how to listen.

There is still one place in our society where narratives unfold fully and on their own terms: the nation’s trial courts. The constitutional requirement of due process and a proud tradition of zealous advocacy insist that all parties have a chance to tell their stories, present their evidence, and be subjected to careful examination to help determine what really happened.

This is not always easy, and getting to the truth can be tedious. The methodical presentation of evidence, careful building (or tearing down) of a narrative, and relentless application of procedural rules can challenge even the most attentive members of a jury.

But that is precisely the point. The deliberateness of trial puts a brake on the impulsive nature of human judgment. It is easy to reach a conclusion based on intuition, emotion, and limited information, especially when that information confirms our preexisting beliefs about how the world works. Jurors, however, do not have the luxury of going off intuition and emotion. Following closing arguments, in a room with others—usually complete strangers—who stand on equal footing, jurors must treat their fellows with equal dignity, and articulate their positions with all the logic, charisma, and common sense they can muster. No wonder that jury trials have been described as the greatest exercise in direct democracy that humanity has ever developed.

Yet jury trials today are virtually endangered. In federal court, only two percent of criminal defendants and less than one percent of civil cases will see a jury. In state courts, the numbers are roughly half that: only one percent of criminal cases, and one-half of one percent of civil cases. The disappearance of jury trials is a loss for litigants and jurors alike. Parties lose their chance to tell their stories in full, uninterrupted and sincere. Jurors lose their chance to participate directly and honestly in the governance of their communities. The decline in jury trials may not be the cause of our current national tantrum, but their conspicuous absence has made the tantrum that much more palpable.

If we can’t restore the jury trial itself, at least we should make use of its best features. Jurors are reminded to keep an open mind, present their views politely, and wait until all the evidence is in to reach their verdicts. Both pundits and the public would do well to embrace those same behaviors in daily life.

Jordan Singer is Professor of Law at New England Law | Boston. He blogs about the judiciary at The Interdependent Third Branch.