The Big Data Jury

d. Bright Data and Distributional Justice Courts promote the concept of equal justice under law. (208) Inequality in financial resources, however, has made that promise a hollow one for many litigants. The fact that some litigants can hire jury consultants to obtain a tactical advantage over others has always been an example of a distributional inequity of the system. (209) Bright data can change that by providing court approved bright data profiles (again appropriately moderated) to all litigants. If the information is already being collected for purposes of the jury venire, then court systems can make it available for the parties in trial. As will be discussed in the next Section, this personal information about potential jurors will be incredibly helpful for litigants trying to pick a favorable jury. 2. Litigants and Bright Data Bright data offers great advantage to litigants for the simple reason that most lawyers would like as much information about potential jurors as possible. (210) As a tactical matter, lawyers seek any available advantage, and, some times, knowledge is power when it comes to voir dire. (211) Whether or not more data equates to better juror selection, more information about interests, inclinations, and past acts will result in more informed jury selection. As set out above, the information held by big data companies can expose attributes about ourselves that we may not even acknowledge. While imperfect in many ways, the clues about our interests and past do hold some value in deciding how we might view a particular legal case. The data available may well be superior to traditional oral questioning in voir dire, or formal questionnaires, because it avoids embarrassing admissions or self-censorship. (212) Implicit biases and explicit biases might be revealed without having to ask a direct question. (213) Further, litigants can use the information to ask follow up questions, test veracity of answers, and sort jurors in a more efficient manner. D. The Availability of Bright Data Big data information systems exist and are collecting and analyzing personal data which could be made available to courts. Big data companies already possess all the information that courts use for jury summons, as these public databases (DMV lists, voter lists) form the core of the information generated about individuals. (214) In addition, these companies already contact the same individuals for other reasons. Adding the specific task of coordinating jury summons with existing information is well within existing capabilities. Big data companies thus may see a financial incentive in partnering with court systems that could hire them to select jurors. (215) While the cost of contracting with big data companies is unknown, courts may find the arrangement actually results in a cost saving for them. Currently, courts must hire, support, and fund entire juror offices to coordinate the thousands of citizens arriving for jury duty. Outsourcing the selection to big data firms might save both personnel costs and technology costs. Further, a more targeted system will avoid waste in terms of over-summonsing jurors because of high juror no-show rates. Courts may thus have an incentive to outsource this service to a cheaper, more efficient, and arguably more effective mechanism for summoning jurors. If courts do adopt such a big data inspired system, they would need to answer a few practical questions. First, do courts want to address the traditional fair cross-section problem? If jury venires do not represent the existing population in terms of race or ethnicity, should courts attempt to summon a perfectly representative jury? Would doing so require altering algorithms to correct for expected juror no-shows? Would this targeting necessarily overburden members of minority groups who might be summoned at a disproportionate frequency? (216) Courts would also need to decide whether they wish to go beyond traditional diversity. …