- The Washington Times - Friday, April 27, 2007

From time to time one reads of a jury, or a judge, who has just handed down a decision involving technology.

A recent example was Verizon’s victory over Vonage, the voice-over-Internet telephone company, in a suit over infringement of patents. Perhaps the most famous was the government’s antitrust suit against Microsoft. Corporations frequently sue each other over technical matters. Criminal cases now often involve DNA.

These trials often differ from nontechnical trials in fundamental ways that are not talked about. The problem is that neither the judge nor the jury is likely to have much idea what the trial is about.

This isn’t always true: The issues in patent infringement can be pretty clear. But: The jury system worked fine for simple cases. Bob’s donkey broke into Bill’s garden and ate the vegetables. Who owed how much to whom? The issue was simple, the law was simple, and what was needed was common sense from the jury.

Then laws got complex and trials got long. I have watched trials lasting a month or more and could not keep the testimony in my head. Probably the jury couldn’t either. It seemed to me that the idea of an informed rational decision, as distinct from a well-intentioned guess, was a dead letter.

Now throw in technology. If the verdict turns on understanding the technical issues, the likelihood of a thought-out decision sinks very low.

A problem is that technology is nearly infinite in scope, but the human mind isn’t. Biochemistry for example is a sprawling broad field that breaks into dozens of complex subspecialties and has nothing in common with radar engineering, which is a small part of electronics yet is phenomenally difficult.

In the world of 1750, with blacksmiths and waterwheels and sailing ships, the reasonably intelligent could have a reasonable grasp of most things around them.

Not now. All sorts of people know something of some aspects of technology — doctors, dentists, mechanical engineers, computer hobbyists, photography buffs. But the number of people on a jury who will know any particular field is small.

I remember the trial of O.J. Simpson, which involved DNA evidence. How many people on a normal jury will be able to understand DNA? The prosecution in such cases typically said that DNA analysis revealed that there was one chance in, say 50,000, that someone other than the accused had done it. This sounds damning. Actually it isn’t always, but it takes a bit of probability theory to see why. Most of us have forgotten algebra.

Then the defense talks about contamination of the DNA samples through amplification by polymerase chain reaction (PCR), which again is black magic to most people. Why shouldn’t it be? There are hundreds of thousands of techie tidbits like PCR and few have the slightest reason for wrestling with them.

Now, if I were a lawyer arguing a case involving, say, authorship of computer code in an operating system, and I thought my side was in the right, I would want a jury of high-end system programmers. If I thought my case was weak, I’d want a normal jury. Then I would try to look sincere and trustworthy and appeal to emotion.

The problem is that it is difficult to empanel juries of such people. Further, they would then know vastly more about the issues than would the lawyers, who would look foolish. Attorneys do not relish jurors who are smarter and better informed than they are.

Someone said that trials don’t provide justice, but resolution. Maybe. I don’t see how courts can reach sound decisions on very difficult technical matters.

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