Internet Judge, Jury, and Executioner

I have never served on a jury.

But as a lawyer, I’ve been privy to jury trials. They’re long and tedious. Things that you think should minutes take hours. And things that you’d think would take an hour can take days.

Our legal system–flawed though it may be–is usually very careful and deliberate. The course of people’s lives hinge on what we do there, and so lawyers and judges scrutinize the process very carefully.

I.

In an actual trial, people are accused of specific crimes. Typically, there are sub-elements of each crime: an action that includes a few different steps and usually a component of intent.

If someone is accused of killing someone, they can be specifically accused of manslaughter or murder. The latter requires that the killer acted with “malice aforethought.” If the prosecutor wants to convict a person of murder, they must submit evidence that convinces the jury not only that the person did the killing, but that they did so with the requisite intent. Some states have different gradations of first-degree and second-degree murder, or felony murder, each with different specific sub-elements.

The accused might introduce evidence of a reasonable defense. Perhaps the killing was in self-defense, or the accused was coerced.

Accusing someone of a crime is easy. Convicting a person of a crime requires precise argumentation.

II.

In criminal justice, there is proportionality to the punishment depending on the severity of a crime. A person convicted of negligent homicide will spend less time in jail than the person convicted of manslaughter and less still than a person convicted of first-degree murder.

III.

In trials, the jury hears long arguments from both sides about their version of the events. Each side is entitled by law to have a certified professional, bound by ethical and professional duties of competence and zealous advocacy, tell their story.

IV.

In trials, lawyers vet the jury to exclude those who have pre-existing biases and prejudices that would make it difficult for them to consider either side’s arguments with fairness.

V.

Lawyers argue about what evidence should be considered in reaching a verdict, and judges make decisions about what is appropriate for juries to hear. The subject of what constitutes proper evidence is one of the most nuanced and complex areas of the law. Information that is unduly prejudicial or might inflame a jury is kept from them to avoid biasing their decisions. Most often, prior bad acts are inadmissible to prove a subsequent crime, unless the prior acts show a pattern of conduct.

VI.

For alleged crimes where the allegation is not the perpetration of a crime, but rather complicit behavior in someone else’s perpetration of a crime, the standard for criminal prosecution is much higher. A criminal conviction usually requires not just awareness of someone’s else’s crime or a mistake in preventing the crime, but an affirmative act to aid and abet the commission of the crime.

VII.

As passive readers of news and media, we rarely have the information we need to make an informed judgment of another human being.

The accused in the news is rarely accused of a specific crime (at least by the news media itself), and so we can almost never determine whether or not the elements of the crime have been satisfied; we don’t know the facts from the perspective of the victim and the accused; we only have access to biasing and prejudicial news reports; most frequently, the people making the most noises about the allegations are people with pre-exiting biases and prejudices that make them the least reliable sources of information.

When it comes time to pass judgment, we have no ability to mete out justice with proportionality. When it comes to internet justice, there are really on two settings; shame and ostracism or not guilty. And the latter verdict is in short supply.

In sum, judging someone based on headlines violates all the principles our society has established for due process under the law. It’s the quintessence of prejudice.

VIII.

I was in my last year of law school at Duke when the Duke lacrosse scandal blew up. A couple of times, I had television reporters interrupt my daily runs to try to get me to talk on camera about what had happened.

Both times my response (to the reporters, not on camera) was the same.

“I have no idea. I wasn’t there, and I don’t know anybody who was.”

IX.

The problem with trying to make an informed judgment of another human being is that to do it right requires a lot of work. You can’t read just one article. To have any hope of completeness, you’d need to read multiple sources from multiple perspectives. You have to carefully consider their potential biases.

Which leaves you with two bad options: spend tons of time online researching the potential impropriety of someone’s actions you probably don’t know and will likely never meet, or make an uninformed judgment based on incomplete information. The former is almost certainly a waste of time and energy and the latter is horribly unfair.

X.

The weird thing to me is the instinct I feel I have to opine on every matter of public discourse—and think that I’m providing a social good by doing so. As if I’m helping society by spreading misinformation. And I think many people, like me, feel a little guilty when we don’t do this. As if we’re not pulling our weight.

I recently argued that it’s much better not to have a strong opinion about most things most of the time. Holding strong opinions with insufficient information shows an unhealthy lack of epistemological humility. There’s too much news and information out there for any one person to process. It’s ok to just leave most of it unattended and unprocessed. But it occurs to me that this doesn’t come naturally.

XI.

Perhaps an evolutionary explanation for the instinct to judge always and everywhere is our ancient history in much smaller bands. It’s well documented that until about 10,000 years ago, which is to say through most of human history, people lived in small bands of about 150 or less. In communities that small, you’d definitely want to seek out and eliminate all suspect behavior, because it could impact your survival and the survival of your family if you didn’t.

But in online communities of millions and billions, where, because of the law of large numbers, lots of people are always going to be doing bad things, obsessing over everyone else’s perceived misconduct is almost never a good use of time. You could easily spend your whole life studying the details of violent crimes and never scratch the surface of all that’s out there, with little or no benefit to you or your community.

The instinct that was critical in bands of 150 is wasteful and unhealthy in the online communities we have today.

XII.

If I am ever on a jury, I plan to take that responsibility seriously. But until such time as I am summoned and bound by law to participate in the formal judgment of another human being, I will do my best to recognize that I almost never have enough information to judge another person, and that I’m better off refraining from expressing an opinion as to their guilt or innocence.[1]

It’s important to notice that we have this instinct to constantly judge, but that it’s probably not in our best interests if we do.

[1] Here, I think it’s important to distinguish “judging” in the sense that a certain person should be shamed, banished from public discourse, or lose his or her employment from instances where we make snap judgments like, “do I want to spend time with this person?” or “that guy seems like a jerk.” The latter is inevitable and necessary to function. The former is not, unless you’re formally charged with that responsibility.