The Googling Juror:

The Fate of the Jury Trial in the Digital Paradigm

Judge David HarveyCriminal Bar Association Conference

16 August 2014

The Nature of the Problem

‘If the jury system is to survive…the misuse of the internet by jurors must stop,’

Lord Judge LCJ

Social networking websites such as Facebook could threaten the existence of jury trials in the UK

UK AG Dominic Grieve

Joanne Fraill and Jamie Sewart

• Juror and an acquitted accused – Facebookfriends

Theodora Dallas

• Dallas told fellow jurors that the accused on trial for sexual assault had previously been accused of rape after finding a newspaper article about him on the internet.

U.S. Examples• Juror searched Wikipedia for

various terms relevant to trial and brought printouts to jury room – explanation “to me that wasn’t research, it was definition”

• Michigan juror posted on her Facebook page “gonna be fun to tell the defendant they’re guilty”

•

• "Guilty! He's guilty! I can tell!“ tweeted a California juror

Australia

• Australian AGs have formed task force to consider social media regulation

• Following high profile murder arrest social media revealed identity and posted photos

• Fear of compromise of fair trial• 2011 – juror fined $1200 after seeking

information on-line during a murder trial which ended in deadlock.

Twitter

But is it THAT Bad?

• The Federal Judicial Center has published survey results indicating that social media use by jurors remains a relatively “infrequent occurrence.”

• Of 494 judges responding to the survey, the majority of judges explained to jurors in plain language why social media is banned.

• This strategy must be effective; only 33 of the 494 judges reported any detectable instances of jurors using social media

On the other hand

• Lawyers have used social media to look at prospective jurors' Facebook pages, to run names through search engines, or to look at online profiles, blogs or websites.

Why Do Jurors Go Online?

The Qualities of the Digital Paradigm

– Technical– Information Persistence– Dynamic Information– Continuing disruptive

change – Permissionless innovation– Volume and Capacity– The “non-coherence” of

data– Format obsolescence– Exponential dissemination

– Behavioral– Permanent connectedness– Dissociative enablement or

the online disinhibition effect– Delinearisation of

Information– Participatory information

creation and sharing– Searchability– Availability and remote

access– Retrievability

These qualities subconsciously impact upon expectations of information (instantly available) and they way that users deal with it and process it.

the juror is enabled to readily locate information that may have a bearing on a case,

not because that juror is willingly flying in the face of a judicial directive to the contrary,

but because the Internet is the way in which information is obtained, rather than through the archaic processes of a trial

That, together with the property of dissociative enablement – the ability to obtain information privately and undetected – allows a different mindset that sidesteps the morality of obtaining information outside the trial process.

A New Way of Thinking?

Our cognitive and thinking abilities were developed in the print paradigm

The linear side-to-side verticality of reading and processing information is replaced with a

hypertexted system of information

that is not only

dynamic

but encourages dynamic behaviour on the part of the users,

as they switch

from a webpage

to instant messaging

Then There’s Social Media

• Social media recognise that man is a social animal

• The Internet allows for socialization on a scale far wider than in clubs, bars or workplaces.

Blawgs

Don’t underestimate this stuff

Addressing the Problem

Defining the Communication

• Information In – Information obtained pre-trial or during trial

from outside the courtroom

• Information Out– Information communicated from the jury to

the public arena during trial

Not every case of access to the internet by a juror is going to prejudice a fair trial

Studies have shown otherwise

Many show that when jurors receive evidence and proper directions, they are capable of putting to one side potentially biased information received before trial.

Prior opinions or views of a case may be affected or modified as a result of new and relevant information and strong trial evidence may reduce the effect of irrelevant, inadmissible and potentially biasing information.

Proposition

The problem of juror use of “outside information” or the “information in” side of the equation is a much more nuanced one than simply a threat to the integrity of the jury trial system.

Reason 1

It is not inevitable is that jurors are going to ignore the evidence in court and use “outside information” in their deliberations.

Reason 2

A high level of potentially prejudicial publicity does not necessarily influence a jury in its deliberations.

Although the presence of that information is recognised, it does not seem to dominate or diminish the weight of admissible evidence.

Reason 3

Jurors are able to put their own preconceptions and potential biases to one side in the face of evidence, clear directions from the Judge and the deliberative process.

Reason 4“Outside information” does play a part and is difficult to expunge from the mind altogether.

There will be varying responses by jurors to this information

The research does seem to bear out the suggestion that more attention is paid to admissible evidence and information obtained “in court” than otherwise.

The problem is a nuanced one and requires a nuanced solution that will accommodate the information expectations of the digital native

Possible Solutions

Greater deployment of technology for information communication in Court

• Use new communication technologies

• Projected photos and a laser pointer

• 3D modelling

• Use Google Maps and Google Earth on a screen to establish location

A proper educative process for jurors.

• Wider juror education

• Explain WHY internet research is unfair

• Frequent explanation and reinforcement

Lawyers, Judges and the Court can take steps during the trial process to enhance juror engagement within the Courtroom

Anticipate What Jurors Want

Counsel should prepare their cases to answer obvious questions that will arise and to do so as early in the case as possible.

Focus on the Court Process• Supply jurors with trial notebooks prepared by

counsel and the court which may include such items as the courts instructions, selected exhibits, agreed facts by the parties and a glossary of terms used particularly if technical or scientific evidence is involved.

• Jurors can write their notes in the book and highlight exhibits.

• Research shows that where juror notebooks have been used, jurors are more engaged and universally feel that it made the trial more interesting.

Head off information in

Lawyers could conduct their own Internet research in advance to identify what information about the case is available on line, analyse that information and deal with it during the trial

Manage the Information Process

Pre-trial discovery conferences would allow the parties to discuss what information about the case might be readily available on-line and searchable by prospective jurors.

Dealing with Juror Misconduct

Present Approach• Preventative - educative approaches of

continued reasoned and informative jury instruction explaining why jurors should desist from trial related queries or communications on the Internet.

• Remedial - focusses upon the preservation of the right to a fair trial – includes juror’s removal or a retrial where it is found that juror(s) actions in researching or communicating with others about the trial may have compromised the verdict.

• Deterrent - involving the utilisation of sanctions

There should be a more nuanced approach to juror misconduct based upon the nature of the information sought and the impact that it may have had on the outcome of the trial.

A New Way• Recognises the changing nature of

society’s expectations of information technology use, yet preserves the utilisation of the jury trial.

• Has aspects of the remedial, as well as the deterrent and preventative elements,

• Focusses upon the circumstances and context of technology use by jurors.

A three stage inquiry that will allow the judge to gauge what the judicial response should be to the use of the particular technology.

The Inquiry• Identify the nature of the information flow.

– Is it “information in” or “information out.”

– “Information in” is likely to pose more risks, especially if it is shared with other jurors, but much will depend on the nature of the information.

– “Information out” – unless it solicits a response in which case there is a mixed “information out\in” scenario – is probably less harmful unless it is to disclose the jury verdict before it is given or invite input into the deliberation process.

Second Stage• An evaluation of the nature of the

communication.

• Differing Internet protocols will involve differing levels of communication, interaction and content.

•• Once that has been done a consideration

of the likely impact of the communication can be made.

Third Stage

whether or not the communication has been made to other members of the jury and the impact that this may or may not have had

What to do

• The judge will be in a position to consider whether there has been a mistrial or whether the trial may continue.

• A similar process could be embarked upon by an appeal court when entertaining an appeal against a verdict where there has been an allegation of juror misconduct involving the Internet.

A Matter for Sanctions?• Debateable whether a tweet about the fact

that the jury is about to consider its verdict should amount to a sentence of imprisonment.

• A sliding scale of culpability again depending upon the nature of the breach of the instructions is desirable with imprisonment reserved for the case where egregious misconduct has clearly prejudiced the fair trial.

To conclude.......

By recognising the problem and challenges posed by new technologies

and

adapting to them,

the jury trial will survive

For the detail

• David Harvey “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” (2014) NZ Law Review Issue 2 p.203

Questions