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Check Your Phone and Spoil the Jury

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can a judge call back a jury to start over, even after they’ve been dismissed? Ancient tradition said no, viewing the verdict as a kind of magical or divine pronouncement. Thursday, the Supreme Court broke the spell and said yes, it can happen -- but only if jurors haven’t checked their phones yet.

The dissenters said the old rule should be kept -- because phones are ubiquitous and a quick glance could easily distort a juror's judgment. Behold the modern enchantment of the smartphone, a technology that preoccupies our brains at least as much as magic once did.

The facts of the case were almost unimportant. After a civil trial, the jury returned an incoherent verdict, delivering judgment for the plaintiff and $0 in damages even though the parties had agreed that $10,136 was the minimum. The judge had already dismissed the jurors and thanked them for their service before he realized the error.

The judge sent his bailiff to bring back the jury, whose members hadn’t yet left the building. The judge checked to see whether any of them had discussed the case. Because they hadn’t, he re-empaneled them and explained their error, after which they corrected it.

In an opinion for the court, Justice Sonia Sotomayor upheld the judge’s decision to bring the jury back. She explained that a judge has discretion to recall the jury, cabined tightly by making sure the jury hasn’t been tainted.

Here’s where things got interesting. How might a modern jury be tainted in the moments after being dismissed? By their phones, that’s how.

So in addition to checking whether the jurors have discussed the case, Sotomayor wrote, a judge should also see if they’ve checked their phones: “It is a now-ingrained instinct to check our phones whenever possible,” she wrote.

Immediately after discharge, a juror could text something about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter. Prejudice can come through a whisper or a byte.

This rather lyrical account suggested how much smartphones have become central to our conscious lives. Sotomayor was acknowledging that one of the most striking experiential aspects of serving on a jury today is being deprived of your smartphone. The first thing most of us would do after being discharged is to check our devices.

The old-fashioned jury was sequestered during its deliberations, which were typically very brief. The modern equivalent is turning off your phone. Without it, you’re as good as sequestered.

Sotomayor’s opinion presented itself as pragmatic. She rejected what she called the “Humpty Dumpty theory of the jury,” according to which the jury can’t be put back together again once dismissed. But in its way, her opinion still clung to a bright line -- the smartphone line, to be exact.

In real life, most jurors will have checked their phones before being recalled. Once that happens, the jury realistically can’t be recalled, because the jurors will be tainted.

Justice Clarence Thomas dissented, joined by Justice Anthony Kennedy. You’d think Thomas of all people would be happy to say that the old rule must be followed no matter what.

But Thomas didn’t say that. Instead he began by quoting a famous line of Justice Oliver Wendell Holmes’s: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”

Holmes was not yet a judge, much less a justice, when he wrote that sentence in his reputation-making book, “The Common Law.”  His central claim in the book was that the “life of the law has not been logic,” but rather “experience.”

His point was that judges shape traditional doctrine to fit the needs of contemporary experience. That’s why it is “revolting” to have no better reason for a legal rule than that it’s very old. Judges need to update rationales.

Following this view, Holmes thought originalism was idiotic. Thomas disagrees, which makes you think that maybe he shouldn’t have quoted Holmes’s dictum.

But in any case, this time Thomas followed the Holmes lead by coming up with a modern rationale for the old rule. And the rationale was … phones. Thomas wrote: 

In today’s world of cellphones, wireless Internet, and 24/7 news coverage, the rationale that undergirds the bright-line rule supplied by the common law is even more relevant: Jurors may easily come across prejudicial information when, after trial, the court lifts their restrictions on outside information.

In other words, Thomas embraced the reality of phone-checking as a reason to keep the old rule that the jury can’t be put back together.

The upshot is that the smartphone today stands in for the magic the jury verdict represented to our ancestors: it’s a powerful, ubiquitous force that looms across the domain of our legal customs, dictating results. It’s fitting that the phone has now entered the law of the jury through the good offices of the Supreme Court -- which bans phones from its courtroom.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net