There’s Always a Bigger Fish: The Big Data Approach for Jury Selection

Just as when subbing through a perilous terrain worried that one issue is about to overtake and consume you, but then an odd solution pops up temporarily, when thinking about jury selection reform, “there is always a bigger fish.”  There is always going to be something that is worse, something more imminent, and something that presents itself as a possible solution but is really waiting to consume the relaxed and unaware prey. The lesson: be on guard for issues that will try to destroy and consume the jury system.
 So, when acting (and thinking) as a lawyer in an attempt to find a one-size-fits-all jury selection solution to sniff out biases, create the ideal jury, and manufacture the exact jury you need (or would want for your case), Big Data is NOT the answer.    First, What is Big Data?Big Data is an interesting and seductive concept for jury selection: “Big Data” refers to personal information gathered by companies and “enterprises that collect, analyze, package, and sell data…to reveal tastes, habits, personality, and market behavior.”  So, when you are weeding out potential jurors with Big Data, rather than knowing potential juror #9 is “is a twenty-three-year-old, white woman who works as a nurse,” you now know (thanks to Big Data) “that the juror also reads parenting magazines, but not news magazines, recently went bankrupt, votes Republican, owns a licensed gun, and gives to religious charities.”
 Sure, there are various privacy concerns, constitutional issues, and frightening awareness of how little mystery we have in our daily lives, but the biggest problem with Big Data that can never be overcome is the likelihood of weaponization, usurpation of judicial process and violating a constitutional right.
 Problems With Big Data That Can Never be OvercomeBig Data is similar to the infamous literacy test with voting.  While someone could have possibly thought that it was a good idea at one time (in naivety) and was just trying to improve society, the ability of human nature to corrupt and weaponize solutions to exclude groups of people is not a risk we should be willing to take. While Big Data might show us how to speak and connect with the jurors, we are undermining the jurors’ ability to assess, judge, and act as a societal voice.
 More importantly (and frighteningly), we are opening the door to possible exclusion of people from their constitutional right at the hand of the attorney. Rather than let the attorney search for displayed bias, if we use Big Data, we condemn the jurors before assessing their innocence (or lack of bias) and allow distinct groups of people to be excluded from their constitutional right of serving on a jury based on the lawyer’s desire for the case, or worse, the biases and prejudices of the lawyer herself. Due to the risk of human nature, no attorney should be able to possess the intimate knowledge Big Data provides for individual jurors.
 What Must We Do?  

• Treat Big Data as the same as an internet search during trial: can’t do it.

• Restrict the power and reach of attorneys to striking jurors based on bias and prejudice with a combination of preemptory strikes for any reason (as the system currently has in place). 

• Find a better solution to obtaining a fair and impartial jury than giving the ultimate power of excluding people from their constitutional service to attorneys with an immutable and undeniable conflict of interest. 

• And lastly, perhaps attorneys can be trained in how to spot MBTI profiles rather than be allowed to exclude people through constitutional violations.