Crowdsourcing is a fairly new buzzword in the media these days, with thousands of citizens forming online communities to get involved in prominent investigations such as the recent Boston bombings, the 2011 Vancouver hockey riots and the tragic cyberbullying cases of Amanda Todd and Rehtaeh Parsons. In the criminal justice system, however, the crowdsourcing concept is not as new as some may think.
Crowdsourcing and the criminal justice system have obvious but usually overlooked links. To a degree that is because crowdsourcing has been seamlessly integrated into police investigation for so long that it is invisible. But for the practising lawyer, modern crowdsourcing techniques allow for insights and legal precedents rapidly and inexpensively; the wisdom of crowds can have great value.
First, however, we need to define what is meant by crowdsourcing. Jeff Howe and Mark Robinson, of Wired Magazine, coined the term in 2006. Says Howe:
"Simply defined, crowdsourcing represents the act of a company or institution taking a function once performed by employees and outsourcing it to an undefined (and generally large) network of people in the form of an open call. This can take the form of peer-production (when the job is performed collaboratively), but is also often undertaken by sole individuals. The crucial prerequisite is the use of the open call format and the large network of potential laborers."
The term is new but the concept is not. In 1881 Percy Lefroy Mapleton, wanted for the murder of a coin dealer on a train from London, was captured after police posted a composite picture of him in a wanted poster reproduced in newspapers across the United Kingdom. The case generated enormous public interest, and many false leads, but ultimately Mr. Mapleton was arrested. In North America, the wanted poster became a staple of Victorian-era law enforcement.
Since the 19th century, police customarily have relied upon the public to locate suspects as an ordinary part of policing. When the photographs of the recent Boston bombing suspects were released - leading rapidly to their apprehension - the police were using both crowdsourcing and traditional police work.
The release of the Boston bombing suspects’ photographs on the Internet does not change the traditional nature of the police work.
Crowdsourcing is related to the wisdom of crowds. Conceptually the wisdom of crowds assumes that a group of people, acting collectively, will have knowledge and expertise that are superior to that of a single person, no matter how expert. The most obvious modern example of the wisdom of crowds is Wikipedia - a surprisingly accurate source of information written by no one in particular.
In the justice system, trial by jury is an example of the wisdom of the crowds, especially when compared to the alternative, trial by a judge, a single expert. While the crowd - 12 people in a criminal case - is small, the concept of truth through multiple viewpoints is the very essence of the wisdom of crowds.
Of course, the value of crowdsourcing and wisdom of crowds depends on the crowds itself. Social influence can cause the crowd to be less than accurate. Technical legal issues are unlikely to be answered by a crowd of non-experts. A crowd of middle-aged white males is unlikely to have helpful knowledge of the challenges faced by Aboriginal women (which is one reason why jury selection matters). As James Surowiecki commented in The Wisdom of Crowds, “Diversity and independence are important because the best collective decisions are the product of disagreement and contest, not consensus or compromise.”
The need to have a crowd with the right background and knowledge leads to the great value of listserves. A listserve is a computer based list where posts made by one person go to hundreds or thousands of others, each of whom can reply. The members of the listserve are generally specially qualified - say lawyers practising criminal law. As a result the dangers of the ignorant answer tend to be limited.
The main criminal law list serve in Canada links hundreds of criminal defence lawyers across Canada. Questions posted to the listserve get answered rapidly by two, three or ten fellow practitioners. Sometimes the answers are wrong but the global sense is often very helpful. Of course, any use of a listserve must be made with care not to breach privilege.
Typical questions put to a listserve would be "I have a sexual assault trial tomorrow in front of Justice May Ying; what do people know about her?" or "the Crown has filed a notice for enhanced penalty based on 13-year-old offences that were pardoned; is the notice valid?".
The answers need to be fact-checked. Maybe the reply is from Justice May Ying's old boyfriend or perhaps there are two judges with that name. Similarly, lawyers may make legal mistakes, so statutory or case law references need to be reviewed before they are relied upon. That said, as a resource listserve information is tremendously helpful.
Reddit.com is a social news and entertainment website where users submit content for other users to rank by popularity. The website has a very diverse user base and a strong culture of free speech with few rules or censorship. Following the 2013 Boston bombings, thousands of users in the Reddit community banded together to virtually hunt for suspects, resulting in false accusations of several individuals.
4chan is a large image-based board where users are able to post anonymously. According to the Washington Post, "the site's users have managed to pull off some of the highest-profile collective actions in the history of the Internet.” 4chan users have successfully identified several offenders of child pornography, animal abuse and threats of public violence, turning evidence over to authorities. 4chan also has a dark side, with alleged involvement in several online attacks, public defamation and links to the infamous vigilante group, Anonymous.
Websleuths.com is a heavily moderated online crime sleuthing community of approximately 61,000 users. Sleuthers use the Internet to dig into current and cold cases, primarily those of missing persons and homicide victims.
About the Author
James Morton practises litigation law in Ontario and Nunavut. He is a past president of the OBA. He is presently counsel on four murder cases and is an avid user of listserves.