Is Technology Changing Our Brains? Jurors Go Cold Turkey on Cell Phones

Hon. Mark A. Drummond (Ret.)

“The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211 ^th , 212 ^th , and 213 ^th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.”

And so begins Kurt Vonnegut’s short story, Harrison Bergeron . The story opens with George and Hazel (husband and wife) watching a ballet on television. However, the ballerinas wear weights (so they are not too graceful) and masks (so they are not too beautiful).

Vonnegut then describes the couple: “Hazel had a perfectly average intelligence, which meant she couldn’t think about anything except in short bursts. And George, while his intelligence was way above normal, had a little mental handicap radio in his ear. He was required by law to wear it at all times. It was tuned to a government transmitter. Every twenty seconds or so, the transmitter would send out some sharp noise to keep people like George from taking unfair advantage of their brains.”

After reading Harrison Bergeron , I have three questions:

1. In 2015, have we reached Vonnegut’s vision of the year 2081—but 66 years early?
2. Have we self-inflicted Vonnegut’s vision of repeated interruptions by our own addiction to technology?
3. If so, what difference does this make to us as advocates and judges?

Research shows that, on average, people check their cell phones 150 times per day. That average goes up dramatically the younger you are. The average cell phone owner uses their phone 3 hours and 16 minutes every day. These statistics are just for cell phone use alone. They do not include those people who sit at a computer all day receiving emails and instant messaging.

So, what happens when we take people out of the real world and put them in a courtroom without access to their phones? In the real world they would, on average, be checking their phone every 6 ½ minutes. What happens when a person is forced to go cold turkey from using technology?

Let’s look at some studies. Many studies have been conducted on depriving college students of their cell phones. These are our next generation of jurors. The students reported symptoms similar to those of addicts trying to quit smoking or drugs. The condition now has a name: information deprivation disorder.

Ask yourself some questions. Is it easier or harder for you to concentrate on reading a brief or a case than it was 10 years ago? Have you ever gotten into a car to go to a movie and told your companion that you needed to go back inside to grab your cell phone. Why? You’re going to a movie!

Moreover, even if we take cell phones away from jurors, the mere thought of those text messages piling up in the jury room or in their car outside the courthouse can be just as distracting.

A researcher wrote, “The problem is that just because a student’s technology is ‘out of sight’ it is not ‘out of mind.’ For example, [one study] found no neurological differences between externally driven task switching (e.g., responding to a text message beep) and internally driven switches (e.g., thinking about a text message).”

Brain scientists have known for years that our brains are constantly changing. The brain adapts and finds new pathways when the brain is damaged or when the person learns a new skill, such as a new language or playing the piano. Our brains also change based on whether the information received is primarily verbal or visual and how many times the information being received is interrupted.

Studies have shown that when a person is interrupted from doing a task, the time it takes to get back on task ranges from 15 to 25 minutes. People are constantly being distracted by information technology. Moreover, the distraction is usually preceded by an auditory “bing!” from their device.

In the real world, information is usually chopped into bits (texts and tweets); is given at random, unpredictable intervals; and is visual. In the courtroom, the information is more linear. It is continuous and flowing, and it is mostly verbal. This is a big shift for the brain.

That’s the bad news. Now, here’s the good news. When people are told about the phenomenon of being interrupted and the effect those interruptions have on concentration, they are able to adapt and improve their performance. So, how do we tell them? How do we address this issue to counteract information deprivation disorder in the courtroom? I offer three suggestions: First, address it head-on. Second, see if the judge will let the juror ask questions. Third, do what great trial lawyers have done for years—that is, both show and tell the jury about your case and, if you have to rely totally on verbal information, become a master at delivering that information by chunking it.

Let’s say you have a three-week trial looming involving forensic accounting or gene sequencing or thermodynamics. There are three experts on each side. As you know, under the local rule, no cell phones are allowed in the courthouse. Address the elephant in the room head-on.

This piece previously appeared in our August newsletter.