There's a Problem In the Silk Road Trial: the Jury Doesn't Get the Internet

sarahnaomi (3948215) writes "The trial began this week for Ross Ulbricht, the 30-year-old Texas man accused of being the mastermind behind the dark net drug market, Silk Road. But as the jury began hearing testimony in the case, it was clear the technological knowledge gap would impede the proceedings. Judge Katherine Forrest said right off the bat when the case began that "highly technical" issues must be made clear to the jury. "If I believe things are not understandable to the average juror, we will talk about what might be a reasonable way to proceed at that time," she said. After the first day of proceedings, Forrest told the prosecution to be more clear with explanations of concepts central to the case, noting she was unhappy with its "mumbo-jumbo" explanation of the anonymizing service Tor. She also requested all readings of chat transcripts include emoticons."

Comments

Jury of your peers

[mbone]

Maybe, in cases like this, the notion of a "jury of your peers" should be extended to include technical competence. In other words, instead of asking the prospective jurors about their views on the death penalty, they could ask about their knowledge of DNS or BGP.

Re:Jury of your peers

[ledow]

Don't think of the easy solution, think of the worst-case scenario.

For instance, now you have gun-cases juried only by people knowledgeable about - and presumably pro - weapons. Or finance cases juried only by people who work in finance. Or cases against the judiciary juried by the judiciary themselves.

The idea of a jury is to be "the man on the street". If you can't explain the crime committed to the man on the street, when he's forced to do nothing BUT listen to you for weeks on end, then maybe that law is too complex to enforce anyway.

Juries are, and always have been, required to understand things way out of their normal scopes. Any half-decent defence/prosecution will get them to the level of knowledge they need quickly. Imagine juries on complex financial fraud cases, or in cases steeped in the interpretation of thousands of separate by-laws. It has to be done, it can be done, and if you can't do it then you won't find much of a career as a lawyer.

If you can't explain the crime committed in simple enough terms for average people to get their head around within a matter of weeks, how do you expect average people to stay on the right side of the law in their daily lives?

Tor can be explained quite quickly. I could get a bunch of schoolkids to understand it in an hour, with zero computing knowledge at all. To get that into the heads of a bunch of non-computing 60-year-olds will take longer but not THAT much longer.

And, at the end of the day, even the judge has to understand what case they are trying. If they don't, they can't possibly guide the jury if they are ever required to.

If you or your opposition can't explain why what you did was, or was not, illegal in a matter of weeks to the majority of a bunch of average people, then the case is so grey-area that it's likely to collapse anyway.

Re:Jury of your peers

[Anonymous Coward]

where its near to impossible to explain to a lay person

If there is a law that the majority of people do not understand - either because it is too complex to understand (unlikely) or because nobody is good at explaining it (more likely) - then there is a problem with the law. I'd go further an argue that if a person of reasonable intelligence cannot defend themselves, i.e. if a person has a better chance of winning a case depending on the lawyer they pay for, then the law cannot deliver justice.

The exceptions to jury trial that have existed in the UK are usually for the sorts of cases where either the prosecutor (e.g. "national security") or the defendant (rich banker) has an especial interest in keeping the general public out. They use the excuse that Mere Mortals Cannot Understand, but the excuse is bullshit, and is more about Mere Mortals Must Be Shielded From Reality (Because Otherwise They'd Get Pretty Fucking Pissed).

Emoticons make sense

[Enry]

They help go toward intent and mood of the conversation. There's a difference between "I'll kill you" and "I'll kill you :)" as part of a conversation.

Re:Jurors

[bluefoxlucid]

It's not that hard to explain this shit to people. I explain asymmetric encryption and routing to accountants all the time; it just takes some 20-30 minutes. Knowledge transfers surprisingly quickly.

Re:A lot of circumstance and some suspicious exper

[houghi]

I know a lot about Linux, but I do not work with Linux. However if there would be an issue at the department where I work and it would need some knowledge of Linux, I would be the go-to guy.

For all I know he used to work as an IT person and used TOR against the will of his employer and the only job he could get was as a border control person.
Or he hinks doing IT as a job sucks. Or ...

I know a LOT of people who have knowledge of other things outside their field of work. That does not mean anything by itself.

Re:Jurors

[TWX]

Ambiguity is safer for the defense, not the prosecution. The prosecution has to demonstrate that a crime occurred and how that crime was carried out, beyond a reasonable doubt. If the prosecutor cannot describe, beyond a reasonable doubt, how the crime was conducted then the prosecutor will probably fail to get a conviction.

Lots of recent trials that required expert witnesses or forensic investigtators to ask the jury to believe them simply because of their credentials fell flat. The Casey Anthony trial is an example- the pathologist described the unique smell of death in the defendant's trunk, but obviously as she was acquitted they did not find his testimony compelling enough.

By contrast there's no real-world analog in this case; they can't have an investigator describe their gut feelings at smelling death. They have to demonstrate how, despite a service meant to help anonymize people, they found him, and the processes through which they were able to do so.

Re:Jurors

[ShanghaiBill]

But it doesn't help when the other side benefits from obfuscation and ambiguity and essentially trying to screw up your understanding.

If the prosecution tries to obfuscate, the judge can sanction them, and the jury can see they are being treated like fools. The basics of this case are not even technical:
1. Some people set up a marketplace where consenting adults could exchange goods and services.
2. The government thinks that should be a crime.

Re:Peers?

[bws111]

Everyone in the US is a peer of everyone else. It has NOTHING to do with your 'profressional' status or any other such bullshit. Or do you think a banker accused of stealing from his customers should only be judged by other bankers? An accused rapist should only be judged by men?

Re:The Only Concept Juries Need To Understand

[Richard_at_work]

... Jury nullification seems to be massively overstated here on Slashdot - another meme that just wont die?

Re:The Only Concept Juries Need To Understand

[Anonymous Coward]

No, we're just more logical. I'm not a libertarian, per se, but I understand that jury nullification is a check on abuse of power. It has downsides (see the history of the South), but it also is an escape hatch for an draconian government. Our constitution guarantees you a trial by your peers (i.e. you are supposed to be judged by the community, not the government) and if that community finds you innocent then away you go. We swept jury nullification away because trials by "peers" weren't working so well with race issues and because the government was unhappy when the community decided their overzealous laws weren't happy.

The right to nullify still exists, but juries are not allowed to be informed of it. Instead, they are told they must follow the law regardless of their feelings. The net result, sadly, is that bad laws passed by an ignorant legislature, corporate interests, jailhouse employers, etc. have no check or balance other than repeal or a court striking them down. If you've ever been to a federal courthouse, you would understand why that's funny. Federal prosecutors get a 98% conviction rate for a reason -- and it's not because they're just that good. I can promise you that.