By Dr. Ken Broda-Bahm:
Have you ever had the same advertisement chase you around the internet? So you looked at that new suitcase once, and now it is popping up on every page you view. That effect is one part of our current world, where marketers and other persuaders seem to know more and more about our individual traits and preferences. Just had a life change? Graduation, new job, marriage, baby, or separation? That information is available and for sale, allowing salespeople to tailor their appeals to an unprecedented degree. It's a part of "big data,” which refers to the complex, growing, and interlocking systems of recording consumer and citizen data for the purposes of assessing credit, targeting purchases, and persuading voters. While the person trying to sell you a suitcase knows the uses of big data, chances are your jury commissioner doesn't. Jury pools are still assembled using lists that are often old, incomplete, and inaccurate. And juries are still generally assessed using the attorney's perceptions and, to the extent it's allowed, oral voir dire. University of the District of Columbia Law Professor Andrew Guthrie Ferguson suggests that it might be time for that to change. The article appears in the current Notre Dame Law Review, and is covered in a recent piece in The ABA Journal, and can be downloaded (for free) from SSRN.
Ferguson notes that despite its commercial ubiquity, big data has not meaningfully found its way into the courtroom yet, and “this institutional ignorance is purposeful, puzzling, and soon to be challenged by ever-expanding 'big data' technologies which are currently collecting billions of bits of personal data on American citizens.” After a thorough discussion of the opportunities and risks of incorporating big data into jury selection, professor Ferguson concludes that courts will have to take a balanced approach. The discussion, however, is more favorable than critical, with Ferguson believing that many of the threats (for example, privacy, court system legitimacy, real and perceived separation between government and corporations, and equal protection) can be addressed through careful implementation. He also shares the opinion that the more targeted information made possible by big data leads to less discriminatory selection: “A large-scale Batson workaround.”