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

Peers?

[Anonymous Coward]

If we're to believe that Ross Ulbricht is really a internet and tor mastermind surely a Jury of his peers would require some sort of technical experience. While this might not require someone to be a professional, it should require some level of subject matter experience. It does make me wonder, what other "for cause" jury selection criteria was also avoided?

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?

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

[Richard_at_work]

There is currently a big debate within legal circles in the UK as to what to do about juries in complex fraud cases, where its near to impossible to explain to a lay person actually was, and how it was conducted, because they have no understanding of major international financial markets.

One proposal is to have a board of judges which are well versed in the financial profession sit in such cases without a jury, which understandably makes some people uneasy.

Jury-less cases have been heard in the UK as far back as the 1970s when related to terrorism offences, where the offence was of a complex type (eg, financial in nature - funding and money laundering for terrorist groups in Northern Ireland) or where there has been a history of proven jury tampering.

A proposal gathering speed is to include level of education and area of employment in jury selection, so rather than a completely random jury you do indeed get a jury which has a greater understanding of the specifics involved.

Re:Jury of your peers

[Chris Mattern]

In fact, "jury of your peers" is British, not American. It means commoners get tried by a jury of commoners, whereas a lord is tried by jury of lords--usually the entire House of Lords convened as a jury, in fact. That happened very rarely; one can see a fictional account of how such a trial would be conducted in Dorothy Sayer's Clouds of Witnesses. Even in Britain, this is now obsolete, as the old legal distinctions of subject, commoner and lord are largely abolished; one is simply a British citizen, now.

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

[DarkOx]

Nobody outside of IT is going to have a clue how tor works.

Plenty of people have hobbies and interests outside of work. Lots of tor knowledge would be hard but you probably don't really need that you just need someone who knows about ip and routing, and tunneling which are common. The litigators should be able to explain the necessary elements of tor to someone with at least that much background. If they can't I'd say they don't understand themselves and therefor haven't got a case.

Should you limit the jury selection to IT professionals?

Limit to IT professionals no but I think a "jury of your peers" really ought to mean people with some knowledge about the tools used in the crime at least as much knowledge as the defendant is supposed to possess. Rather than what most voir dire process seem to do to day which is select for people who know nothing about the issue involved.

If you ran a construction firm and we being prosecuted for fraud or something after a bridge collapse don't you think the jury should have members that know somethings about materials science and masonry? I think that would be fair.

Asked That All Chat Transcripts Include Emoticons

[Greyfox]

And the DA was like :-\

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.

not just the jury

[cellocgw]

It's always seemed to me that it is critical that the judge be, if not expert, at least well-educated in areas of science, philosophy, religion, etc. which are pertinent to the case. How can a judge properly rule on admissibility of evidence (e.g. all those cases involving data sent through an open home router) or validity of objections if he doesn't comprehend the technological or cultural situation?

The Only Concept Juries Need To Understand

[Tokolosh]

Jury Nullification

http://www.vocativ.com/underwo...

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:Jurors

[Geoffrey.landis]

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.

No, that's not true-- formally, they have only to show that a crime occurred. (That's called corpus delicti-- which, despite popular misconception, does not require a corpse.)

However, what they do have to show is how they know that the defendant is the one who did the crime. If understanding how they know this means they need to explain an internet investigation unmasking Tor anonymization, they may very well need some technical explanations.

Re:Jurors

[FacePlant]

Probably at Monoproce.

Re:Jurors

[locofungus]

It's very hard to explain "this shit" to people when there's someone else equally knowledgeable as you determined to explain why your explanation is wrong.

Asymmetric encryption. Do you explain P vs NP, why NP-Complete is almost certainly not in P but the problems that asymmetric encryption are built on aren't known to be either NP-Complete or P.

NP is a decision problem - but encryption isn't a yes/no problem. How can problems that only have yes/no answers be used to encrypt?

Muddy the water some more - PRIMES is in P. Do you really want to have to explain the difference between constructive and existential proofs while someone is interrupting every time you say anything that isn't 100% accurate.

You've only got to look at the climate change "debate" to see this effect in force. Climate scientists are playing a game of whack-a-mole and the general public cannot tell which side to believe. There are always questions and doubts that can be raised - the mark of a good scientist is asking the questions for which the answer is interesting. The mark of a good defense attorney is raising questions for which cast doubt on the reliability of the witness. The role of the judge is to make sure that the questions that the lawyer asks is relevant to the case - and that's where it gets hard when you've got two experts in their field debating something and one (or both) has an agenda.