FEATURE ARTICLE
Imagining a Role for Artificially Intelligent Juries by Judge Kenneth C. Mennemeier, Jr. and Kelly A. Mennemeier
C
ould artificial intelligence (“AI”) be applied to the fact-finding responsibility traditionally given to juries? The possibility invites reflection on what would be lost, and what could be gained, if our justice system moved away from using juries comprised of human beings and instead used computerized “juries” applying artificial intelligence. This essay shares some reflections. Our jury system is subject to a number of criticisms, which may give rise to temptation – and perhaps even demands – to use this new technology to achieve better results and greater efficiency. Indeed, critics ascribe several flaws to jurors, jury performance, and the jury trial system that AI may be able to correct. For instance, some critics argue that jurors bring implicit biases into their service and that those biases infect their analysis. Bias in favor of law enforcement might make it difficult for jurors to fairly judge officers accused of brutality and excessive force. Bias against a person of color or a person with uncertain immigration status might impair a juror’s capacity to view evidence impartially. Other critics insist that juries, comprised of people selected from voter and/ or DMV rolls, lack the capacity to understand complex matters, such as complicated financial instruments (e.g., interest-rate swap futures contracts) or sophisticated technological issues (e.g., patent law disputes). Others complain that, even in
18
straightforward matters within the comprehension of all, the jury-specific parts of the process (such as voir dire, jury selection, jury instructions, and jury deliberations) add untold hours to a trial and, with it, substantial and perhaps avoidable expense. Similarly, some observe that lengthy trials may result in fatigue, leading to lapses in jurors’ attention. Still others complain that jurors are vulnera-
Our jury system is subject to a number of criticisms, which may give rise to temptation – and perhaps even demands – to use this new technology to achieve better results and greater efficiency
ble to having their passions enflamed by the skillful telling of a sympathetic story, thus yielding runaway verdicts and unjust awards. And then, for better or worse, there is the possibility of jury nullification – i.e., a jury refusing to adhere to a law with which the jurors disagree. It is not hard to imagine computer programs obviating most, if not all, of these concerns. Use of a computerized “jury” programmed with AI, including a compilation of all statutes and case law,
SACRAMENTO LAWYER | July/August 2017 | www.sacbar.org
Kenneth C. Mennemeier, Jr. is a judge on the Sacramento County Superior Court. He can be contacted at mennemk@saccourt.ca.gov. Kelly A. Mennemeier is a 2016 graduate of Northwestern University Law School. She currently serves as a law clerk for Justice Peter J. Maassen of the Alaska Supreme Court. She can be contacted at kmenneme@gmail.com.
would surely shorten the trial process by eliminating the time spent in voir dire, jury instructions, and jury deliberations. This could generate huge efficiencies and corresponding economic savings. Using a programmed AI “jury” would also address the defense lawyer’s concern about a jury becoming impassioned or enraged by the effective telling of a plaintiff’s story, and an AI “jury” would never fail to absorb and assess any evidence due to fatigue or boredom. Using an AI “jury” would similarly address the concern about implicit human biases, as a computerized fact-finder could be programmed to be color-blind and otherwise oblivious to the varied facts and circumstances that give rise to bias. And, a computerized fact-finder would always remain faithful to the law, eliminating the risk of (or, for some