This avoidance, while rooted in what a judge might consider an ethical precaution, is meaningless in an age of so much reliance on social media. What good are courts as judicial arbitrators if judges cannot properly understand and contextualize the evidence before them?
Last few years, Advocacy groups are increasingly lobbying for “trauma-informed” practices in the legal system. “A full understanding of trauma and its effects requires a coherent and comprehensive framework that takes into account the nature of the traumatic experience and helps legal professionals, community members, and service providers better understand, accept, and communicate with those who have experienced severe psychological harm. Connecting,” write Melanie Randall and Lori Haskell in Dalhousie Law Journal. Well, understanding social media can be seen as part of understanding trauma courtroom.
Attorney and family relations mediator Ayanna D. Neal said attorneys have a responsibility to educate judges. “Lawyers often assume the judge knows everything … You can never assume at trial that the fact-finder knows what you’re talking about,” she said. According to Dordulian, many lawyers do spend a lot of time in court explaining how social media works. But as he puts it, “it’s hard to explain something new to a judge.”
In many cases, lawyers bring in experts to demystify the underlying principles of the platform, even though “experts” are loosely defined and their knowledge is subjective. A police detective was the appointed social media expert in the Canadian Twitter harassment trial where the accused was acquitted. Even with the officer’s expertise, the judge noted “holes in the evidence about Twitter” in his judgment and limited his understanding to that evidence.
“I did what everyone told you, and when you tried everything and it didn’t work, I went to our friendly community police,” the complainant recently told BuzzFeed. “I don’t understand people who let the courts decide. Look around you. It doesn’t work.”
Currently, the qualities that need to be demonstrated for a successful application for the position of judge include education, training, legal experience, ethics and skills. Prospective judges should be required to demonstrate social media knowledge in their application packets, including understanding basic features like direct messaging or message deletion on platforms like Instagram, some say.
It also seems reasonable to require judges to take annual social media training to keep up with new platforms and updated ways of working. If judges think Instagram is still just for photos, how do they understand its potential for harassment?
There are some nuances to consider when educating judges. Greenstein of the American Bar Association’s Department of Justice noted that judges should not independently research elements of a case, such as social media, because it could lead to bias. Judges are best served with general knowledge and guidance from experts brought in by lawyers, she said. “There are ethical boundaries in any judicial education and training,” she said. “How much can you train on addiction and how it affects the brain without affecting the judge?”
Still, too many sexual assault cases are fumbled and misjudged due to a lack of social media awareness among judges. Ensuring that judges understand how platforms work is a must for fair scrutiny. Their confusion is a loophole that feeds injustice — and abusers know it. Without mandatory training to iron out differences in judges’ awareness of social media, sexual assault cases will continue to be screwed.
“In some ways, judges don’t even run their own courts. Defendants do,” Sinclair said. “They know how to manipulate and bypass the system, and that undermines the authority of the judges. When will it take education to bring them up to that level?”