Having reviewed the difficulties in effectively tackling social media use by jurors and courts, reformers are now examining how we can adapt to the existence of social media and still protect the principles of a fair trial.
Aside from monitoring the internet so that take-down orders can be issued to problematic material (if, of course, it is located) and confiscating devices from juries in the court room (though this won’t stop anyone googling when they get home), a range of solutions have been developed or are under consideration.
One approach is for courts and judges to be more stringent in their judicial directions. These are existing practices, aimed at ensuring juries understand that they must suppress any information acquired prior to the trial. The Juries and Social Media report compiled for the Victorian Department of Justice notes:
Reliance on this form of direction assumes that jurors are conscious of how that information has or may influence them and are motivated to disregard that influence.
Juries should also be clear that only evidence that is presented in court may be used in their deliberations – and that they must not do their own research on the trial or related matters.
This type of direction assumes that jurors will be motivated to actively refrain from accessing information that may be readily available.
The High Court, in Dupas v The Queen, certainly considered this sufficient. In light of this conclusion, the NSW Judicial Commission’s Criminal Trial Courts Bench Book was updated to include a warning to jurors to not use the internet for trial-related research and reminding the jury that they had sworn an oath or affirmation to deliberate only on the presented evidence and any legal directions given by the judge. The book suggested a more detailed warning, if necessary:
That includes Googling for information or using sites such as Facebook, Twitter, blogs, MySpace, LinkedIn, You Tube and other similar sites.
Victorian courts use a similar warning. In the US, the courts explicitly warn against the use of social media.
Nevertheless, serious questions have been raised about the adequacy of using judicial directions. For a start, research reveals that people find it hard to disregard information they think is relevant, whatever a judge might direct. Adding to the complexity of this problem is the notion that jurors are bringing the sum of their experience and knowledge to their deliberations, and thus might consider this information as part of the ‘common sense’ they bring to the table. As one commentator has observed:
These common-sense notions are at once legal, moral, and psychological. They provide the citizen on the street and the juror in the jury box with a theory of why people think, feel, and behave as they do, and why the law should find some defendants guilty and punishable and others not.
There’s another difficulty in relying on judicial directions: just because a direction is given, it doesn’t mean that it will be followed. Research shows that trial jurors, when confronted with complex and confusing information, will seek relevant and useful information anyway. An Australian study by Chesterman, Chan and Hampton – Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales – found that juries often ignored directions. A UK study by Professor Cheryl Thomas reached similar conclusions, although Professor Thomas suggested that putting the directions in writing might help.
Thomas found that written guidelines were twice as effective as oral directions, and recommended that research “should be carried out to determine what form of written guidelines and judicial directions are most comprehensible to jurors and are most likely to be taken seriously”.
Other suggestions include providing more detail to juries about why these directions exist to ensure fair trials, and explaining the significance of the tenets of presumption of innocence and procedural fairness.
Another tack is to ensure that jurors who disobey judicial directions are penalised through contempt charges. The Juries and Social Media report notes:
As a result of increased concerns about jurors conducting their own research on the Internet, several jurisdictions have gone a step further by making independent jury research a punishable offence (a form of statutory contempt) and it has been suggested that others should follow their lead. Whether this is likely to be effective is another matter.
As discussed in the previous post, however, prosecution of people for committing sub judice contempt is problematic and can be of limited effectiveness. It may be impossible to make people give up their compulsive attachment to social media. The threat of prosecution alone may not curb misuse, even after a stern warning.
Delaying trial dates to distance them from material that may be in the media won’t necessarily work when so much data remains online indefinitely, and the same problem affects the other traditional device for skirting prejudicial publicity – changing the trial venue.
Jury members could have a hotline for dobbing each other in, but that’s hardly conducive to developing an atmosphere of cooperation in juries, and could even lead to misuse.
More radical proposals could be considered. The jury could be staffed by a mix of law professionals and lay jurors. It’s a method with a history and was recently adopted in Japan.
In this model, the professional jury member would play a role in policing the jury, by ensuring that other jury members did not bring into the jury’s deliberations material they had gleaned from their own research, or from exposure to publicity about the case. The professional jury member could also provide procedural guidance to jury members, making it less likely that they would turn to forbidden sources of information.
Again, it’s not a perfect solution, with concerns that the professional juror may exert undue influence, that having a ‘professional’ will increase costs and that any move towards ‘professionalising’ juries will lead to a loss of community confidence in the system.
Sequestering juries may restrict jury access to data, but would likely be very expensive, as well as deeply unpopular – and if a hotel has wi-fi access, it may all be moot anyway.
More radically, some people have proposed shifting to judge-alone trials. Some Australian jurisdictions allow for trials of this nature in some circumstances, and generally with the consent of the accused. It’s an idea with merit as well as flaws, the key flaw being the risk in diminishing the significance of trial by jury, which, since the 14th century, has been a cornerstone of the common law justice system.
Perhaps the answer lies in a combination of approaches. The Juries and Social Media report recommends providing jury directions in plain English that explicitly address the use of social media and the reason for the restrictions. Jury members should be reminded daily of the rules and keep the directions with them at all times.
The report also recommends that jury members undertake pre-trial training, either in person or perhaps online, under court supervision.
Content would not be trial-specific, but would cover the role of the juror, the tasks each juror must perform, their statutory obligations, fundamental legal principles like ‘beyond reasonable doubt’ and strong guidelines on access to mainstream and social media as well as the Internet both during the trial and after the trial.
Certainly, there is no single answer, let alone an easy one – but then justice has always been a system of checks and balances. A little Tweeting and a Facebook ‘Like’ won’t change that, at least.
Author: Narrelle Harris
Academic Advisor: Professor Patrick Keyzer
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This post is part three of three examining the impact of social media on juries and the law.
- Read the Juries and Social Media report
Image: Social Media Apps by Jason Howle (CC BY-NC-ND 2.0)