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(c) 1994 Anita Susan Brenner
(c) 1996 Anita Susan Brenner (link revisions)
(c) 2000 Anita Susan Brenner (link revisions)
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The mass media have transformed
criminal trials into an avant-garde avant-garde
spectator sport but the Internet
with its inherent decentralization of information sources, will change all that. The World Wide Web has the potential to restore the sanctity of
the courtroom by disseminating legal
and scientific information. Society's reward would
be a sophisticated citizenry with a working knowledge of criminal law, and a reversion of
the law into a defensive weapon
for citizens.
The evolution of American criminal law into talk-show fodder has exacerbated the
traditionally vitriolic relationship between prosecution
and defense. Unlike the British legal system (for instance), in
which prosecution and defense switch sides, American
law is marked by cultural and professional division. Prosecutors like to joke that a
conservative is a liberal whose car has been stolen. Defense attorneys soon tire of the
Most-Asked Question -- How can you defend a guilty person? (Surprisingly, this is never
asked by the families of those charged with crimes!)
Those who have the misfortune
to be accused in a criminal proceeding soon learn that despite constitutional guarantees,
the system is not invariably fair. True, defense attorneys often tell the jury about the
Scottish Verdict. "In ancient
Scotland, there were three types of verdicts--`guilty,' `not guilty', and `not proven.'
In our present system, the verdicts of `not guilty' and `not proven' have merged into one
verdict--because our system of criminal justice was designed to never convict an innocent
person." These noble intentions are no compensation for months of pretrial detention
or an erroneous conviction.
The backbone of our adversary system is an independent judiciary to assure
that cases are decided on their merits, isolated from the noise and violence of public
opinion. Similar considerations apply when cases are tried to a jury, for the jury must
act as independent judges of the facts.
When an Ontario judge issued a press ban on information relating to a sensational murder
case, curious Canadians used the infosphere to break the ban. The Homolka
case demonstrates that sensitive information cannot be kept out of the infosphere and that gag
orders have become impossible to enforce.
Ultimate responsibility for the transfer of files and information was at issue in the
conspiracy trial of David
Lamacchia, the MIT student who allegedly allowed his Internet-accessible BBS to be
used for the transmission of copyrighted commercial software. The case attracted
additional online interest because Lamacchia's defense counsel issued press releases via
the Internet. The Lamacchia case was a highly visible prosecution under unique
circumstances; the Electronic Frontier Foundation followed
the case because of the impact of online legal standards on the right to privacy, free speech, the validity of
Los Angeles judges, prosecutors, and
defense attorneys have little time for the shenanigans surrounding the O.J. Simpson trials There is always a
high-profile case in the L.A. Criminal Courts Building -- it takes the political heat off
the rest of the criminal law
business. Those who try their cases in the courts of law -- as opposed to the courts
of public or Net opinion -- have a more serious concern: the anticipated logjams from Three Strikes
sentencing. People accused of crime often have no choice but to go to trial on charges
that would have been plea-bargained under the old law. Public opinion is said to favor tougher laws, the death penalty and Singapore-style punishment.
More is at stake than ratings. In their trivialization of criminal procedure, the
traditional media have failed us all -- but we can change this. James Madison once said,
"A people who mean to be their own governors must arm
themselves with the power which knowledge
gives." The Web is a library
potentially greater than that of Alexandria; it can hold case law, consitutional law, statutes and other
materials in the public domain, and distribute them worldwide at minimal cost. We
could all be students of justice.
Armed with the same knowledge that guided Jefferson and Lincoln, we can use the Web to take back
the law.
When Cyber Rights and Criminal Justice was written in 1994, there were a few dozen
legal sites on the Internet. Now, there are hundreds of thousands of good legal resource
sites. Findlaw is a good starting point, along with
Dennis Kahane's The Indiana University School of Law's
Virtual Law Library
Other starting points include: All Law CataLaw: Meta Index of Law and Government CounselQuest Derecho.Org
- Buscador de Derecho Hieros Gamos Internet Legal Resource Guide
For criminal law, see: American
Criminal Law Review American
Journal of Criminal Law California Criminal Law
Review Journal of Criminal Law and
Criminology New England Journal on
Civil and Criminal Confinement Western Criminology
Review Western Society of Criminology.
See you in 2001 with a new revision!