The widespread use of social media is having an impact on the legal process. More specifically, everyday use of channels like Twitter and Facebook are presenting challenges to the ideal of the fair trial, with some jury members using the channels to do more than simply announce (or complain) that they’ve been picked to do jury duty.

But what’s the problem with jury members using social media during a case? What impact can a few stray tweets have on our justice system?

The report, Juries and Social Media, summarises the fundamental principles at stake:

Traditionally, courts have sought to balance a number of potentially conflicting rights and principles when governing trials. Social media use by jurors can damage the capacity of courts to maintain an appropriate balance between these rights and principles.

The challenge was summarised by Lord Chief Justice Judge in the United Kingdom case of R v Karakaya. The terms set out in this case note that any material privately obtained or used by a juror, whether before or after the jury retires to reach a verdict, contravene two basic tenets of the rule of law.

The first is the concept of ‘open justice’, in which not only the defendant but the public, and indeed anyone with responsibility for the trial outcome, is entitled to know exactly what evidence is being considered in the case. That includes the counsel, the judge and any future court of appeal. By obtaining and considering material that hasn’t been presented in the courtroom, the juror risks putting every representative in the trial at a disadvantage.

The second tenet is that the prosecution and the defence are both entitled to a fair opportunity to address all the material considered by the jury when reaching its verdict. That opportunity is central to the concept of a fair trial in both UK and Australian law. As the Lord Chief Justice of England observed:

Again, the reason is simple. The case is to be decided on the evidence produced before the jury in court after they have heard counsel’s arguments and the judge’s directions. If a juror speaks to anyone about the case, even to someone precious and dear to him, indeed the more so if it is an individual whose thoughts and comments are valued, that person may say something which could influence the judgment of the juror and the outcome of the case. It will have happened in the absence of the prosecution and the defence and the trial judge and remaining members of the jury. None of them will know. Neither side will be able to call evidence to deal with the point or direct arguments to demonstrate that the point may be wrong.

The verdict is then reached not only on the evidence produced in court, but on the observations and comments of the individual to whom the juror has spoken. That will not be a true verdict according to the evidence. It will be a verdict according to the evidence, as supplemented by the views and comments of outsiders without responsibility for the verdict.

You might think that jurors have very sensibly heeded this advice and not discussed their cases, either in person or through social media. You would, however, be wrong.

Compounding the issue is the fact that once posted, things never really ‘disappear’ from the internet. You may delete a tweet, but the offending text may still be archived in a cache or been image-captured at first sight (as many incautious Tweeters have discovered to their horror). Essentially, removing offending material doesn’t mean it can’t be found again.

Thus research shows that:

In 2010, Reuters Legal […] identified at least 90 verdicts between 1999 and 2010 were challenged due to juror Internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period. The Law Commission identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved Internet access or social media use.

Some specific examples came to light, too.

Perhaps the most notorious example of misuse of social media during a trial was the case of A-G v Fraill. Joanne Fraill was sentenced to eight months prison for contempt of court by London’s High Court in 2011 for exchanging Facebook messages with the accused in a drug trial while she was serving on the jury. Fraill also searched online for information about another defendant while she and the other jurors were still deliberating. These activities were undertaken in contravention of a judicial instruction to avoid using the Internet during the trial. While use of social media by jurors to communicate with parties to a case appears to be rare, it is not unheard of.

More commonly, jurors have used social media to divulge details of an ongoing trial, or to comment on a trial after its conclusion (which may affect any appeals that are lodged). A Californian lawyer who failed to disclose his profession blogged about a burglary trial while serving on the jury and was suspended from practice for 45 days. A juror in Los Angeles tweeted “Guilty! He’s guilty! I can tell!” during a criminal trial.

(For the record, comedian Steve Martin’s 2010 series of satirical tweets about his jury duty were posted while he was awaiting selection for a jury and didn’t apply to any actual cases – a fact that his PR department were very quick to point out.)

In other instances, jurors have friended each other on Facebook and then posted comments about their jury service, or even blogged about the case. In other reported cases, jurors have researched the accused on the Internet, spawning the term ‘Trial by Google’ and resulting in Contempt of Court charges.

In one instance:

A UK juror was dismissed from a child abduction and sexual assault trial after she asked her Facebook ‘friends’ to help her decide on the verdict. “I don’t know which way to go, so I’m holding a poll,” she wrote. This was discovered prior to the jury starting its deliberations. The trial continued in her absence.

Social media is a way of modern life, but its impact on the ideal of a fair trial is still being measured, and approaches mitigating its impact on trials still being considered.

Two approaches have been taken by the courts.

First is a strict approach, in which a juror “must not be allowed to introduce entirely new evidence when neither party had been provided with an opportunity to examine it.” Convictions have been overturned and mistrials declared when it was discovered that juries had accessed information on the Internet that had not been presented in court (in the UK’s R v Karakaya as well as a US murder trial and a US child sex case).

Some consider a more relaxed approach more appropriate, “where there has been use of extraneous information, even contrary to a judicial direction, but not such as to endanger a fair trial”. Defining the level of endangerment might be down to the judge.

In Benbrika v The Queen, the Victorian Court of Appeal dismissed an appeal in which it had been argued that Internet searching by jurors had tainted the trial. Justice Bongiorno warned jurors who had used Internet sites including Wikipedia and Reference.com seeking definitions of terms related to the terrorism trial. The judge noted that these definitions were not substantially different from those stated in court. The Court of Appeal court said the trial judge had found that “it was distinctly possible that they had interpreted his directions as meaning that they should not seek information about the case, rather than using the Internet for more general purposes”. They noted the important difference between this kind of search and searching for “information that is both inadmissible at trial, and prejudicial to the accused”, which might prompt the discharge of a jury.

There is even precedent that comments on Facebook may not necessarily be considered a breach of the principle of a fair trial.

The notion that discussions between friends on Facebook might be considered less seriously than other publications was reinforced in a 2012 Western Australian Supreme Court case where Hall J refused to relocate a trial because prejudicial and threatening statements about the accused had been posted to Facebook. He stated: “The nature of the Internet is that it now records indefinitely what might once have been transient and ill-considered statements said in the heat of the moment. Such statements should not necessarily be seen as any expression of real intent. The postings were made on personal Facebook pages and were clearly intended for a group of friends and not as public statements. Foolish, exaggerated or emotional comments made between friends should not be taken out of context.”

One thing is clear: the wide use of social media in the community, prevalent attitudes that discussions on social media are less ‘official’ than traditional press and the ready access of online information to jurors presents unique challenges to the justice system in the 21^st century.

 

Author: Narrelle Harris
Academic Advisor: Professor Patrick Keyzer

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What are your experiences with social media, juries and the law? Share your thoughts with us.

This post is part one of three examining the impact of social media on juries and the law. Coming soon:

• Social Media and Contempt of Court
• Social Media and Juries: Proposed solutions

More reading:

• Read the Juries and Social Media report

Image: Close up person using Smartphone by Japanexperternase (CC BY-NC-ND 2.0)