A Brief Description Of The Conference on Judging In The Digital Age
For Judges Of The Second Circuit
Julie Blackman, Ph.D.
Senior Vice President of DOAR
I participated in a panel discussion on “Social Media’s Effects on Litigation” at this Conference held on June 8-9, 2017. Other panels dealt with the presence of judges on social media (e.g., should judges tweet?); the “justice” system under the Nazis and the role of German judges; the proper scope of government searches of technological devices; the impact of video evidence and the potential for computer-generated images to pass as real; and a final session at which Supreme Court Justice Ruth Bader Ginsburg spoke about current events at the Supreme Court, her view of past decisions and her remarkable exercise regimen (including 20 push-ups and a one minute-plank).
The conference was notable for its high-level, cutting edge attention to the technological changes that have transformed our society. How the courts react to these changes and how judges work to retain the integrity and the historical nature of the courtroom (i.e., before the Internet existed) was a powerful context for the topics at hand.
One of the stated goals of the Conference was to provide all participants with an “aha!” moment – when each one learned something he or she had not known before. I believe that happened, as participants reckoned with such things as the Internet’s ability to provide highly specific content to users, including the likelihood that, in the near future, visual recognition programs will be able to provide us with information about people as we look at them (through technologies similar to Google Glass).
Second Circuit judges, like all those over 45 years old or so, are not digital natives. Judges, however, even more than most, may avoid social media for ethical reasons that pertain to the importance of maintaining the appearance of impartiality. Even so, the Internet is entering the hallowed halls of justice and judges voiced the importance of taking a stand against the onrush of information that has historically been more easily excluded.
My suggestion that judges’ instructions might reckon with the possibility that some jurors will go online during the trial (e.g., jurors could be told to weight what they learn in the courtroom over what they may learn from the Internet) was met with concern despite most judges’ acknowledgement that some jurors are going online. Some judges are working to strengthen their instructions to jurors by including a deeper acknowledgement of the reasons why jurors may feel compelled to search (but must not), and by repeating these instructions more frequently throughout the trial.
More broadly, and especially with Justice Ginsburg’s clear and inspirational leadership in the direction of civil rights for all, this was a conference that reminded me of the power of the judiciary and the seriousness with which judges take their responsibility to be impartial and to try to ensure that jurors will be impartial, too.