It remains to be seen whether this disconnect will help or hinder the defense. On one hand, it's easy enough to bamboozle a jury with tech mumbo jumbo and build a case without a technical foundation. On the other, it's also easy to overload them with so much nonsense that they throw up their hands and decide they simply can't come to any conclusion. In other words, a hung jury or an acquittal based on reasonable doubt.
But what if the jury was comprised of network professionals? The trial would be shorter without all that time needed to educate (or miseducate) the jury. And the outcome would be more just, simply because the jury would truly understand the nature of the case rather than grappling with deeply technical issues using bad analogies and watered-down explanations.
There's certainly precedent for this. Special juries, also called blue ribbon juries, have been called before. From jrank.org:
A blue ribbon jury is also known as a special jury. From the earliest period of COMMON LAW, such juries were used to try cases beyond the understanding of the average person so that justice could be administered as fairly as possible.
Basically special juries are nearly as old as the law itself, with references dating back many hundreds of years. But the constitutionality of special juries has been called into question several times in the modern era, and not all states have this provision. Try as I might, I couldn't find any definitive source on whether or not California has a special jury statute on the books. If one exists, it probably should have been used in this case. If one doesn't, maybe it's time that we revisited the concept.
The world isn't getting any simpler and the Childs case won't be the last high-tech criminal case we will see. The joke in IT is that we can read everyone's e-mail and see what everyone does on their computers (at least in the office). We are omnipresent, but hardly omnipotent. The one remaining charge against Childs was written to address external threats, and was never intended to be used against the admins running the network. Thus, at least some of what we in IT do every day could conceivably be construed as illegal under some law or another if there is no distinction between the two.
That simple fact should worry all of us.
This story, "Changing the way the law deals with high-tech cases," was originally published at InfoWorld.com. Follow the latest developments in security and networking at InfoWorld.com.