The Internet and the Potential for Rogue Jurors

Thursday 1 June 2017 @ 12.22 p.m. | Crime | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research

Rogue jurors are an increasing problem to the legal system in Australia and abroad, which still in general adheres to the view that ". . . a jury trial based on the judgment of ones peers" is the best way to dispense justice. The key problem however, remains, as it probably has always been, keeping jurors in a position where their judgment will be balanced and fair and not influenced by extraneous and tainting factors, like the Internet and Social Media.

A recent ABC News article opens with the statement:

"Jurors running their own criminal investigations using the internet and social media [are] increasingly risking Australians' right to a fair trial, . . ."

The article then goes on to discuss the views of two of the ACT's senior legal minds, namely, top defence barristers James Lawton and Associate Professor of Law at the Australian National University, Mark Nolan on the question of  how juries and jury trials can be affected by social media and rogue jurors.

In the past it was somewhat easier to quarantine jurors, keep them away from influences like newspapers and TV, to judicially admonish them and make them aware of the consequences of breaching such warnings. Now the lines are more blurred and difficult to define, the commission of the breach is faster and harder to police and prevent.

Identified Ways Juror Behaviour on Social Media can Affect a Case 

In an article "When jurors go ‘rogue’ on the Internet and social media . . ." the writer Mark Pearson sets out a working list of identified ways in which jurors have gone rogue on a case. A list that includes jurors:

  • using social media to communicate with parties to the case;
  • commenting on social media during the trial;
  • commenting on blogs or social media after a trial has concluded;
  • using social media to seek responses or advice about the case;
  • "friending" each other on Facebook during a trial;
  • searching the Internet for information on the accused (“Trial by Google”);
  • searching the Internet to better inform their role; and
  • as citizens engaging in their routine social media behaviour during a trial.

Australian Case Examples Include

Two examples cited in the ABC article are, the Queensland murder trial that was aborted in 2014 after a juror researched the case on Facebook and admitted it to another juror, and the 2016 Western Australia case where a juror was dismissed after posting on Facebook about the case, known as the "body in the boot case".

An Australian example of  "jurors as citizens engaging in their routine social media behaviour during a trial and getting into trouble" is the matter of Jacobsen in 2011, reported in the Pearson article (see above), where a visitor to the District Court in Sydney used a cellphone to take a photo of a family friend who was sitting in a jury panel – something in most eyes that would be seen as "common social behaviour" in most public places. However, in this case the visitor was charged with contempt and was fingerprinted, their phone was taken away and they were granted bail with the charge being later dropped and signs being erected in the courthouse warning that photography was not permitted.

Another Australian example, is Benbrika v The Queen [2010] VSCA 281 where the Victorian Court of Appeal affirmed trial judge Bongiorno's handling of a situation where jurors had used Internet sites including Wikipedia and Reference.com to find definitions of terms related to a terrorism trial - definitions the judge said were not substantially different from those stated in court.

Overseas Examples

An interesting overseas example give by Pearson, is that of retired Circuit Court judge Dennis M. Sweeney who Pearson reports: 

"told the Maryland State Bar Association of an episode during the political corruption trial of Baltimore Mayor Sheila Dixon, over which he presided in 2009. Five jurors had ‘friended’ each other on Facebook and had mentioned the case in their postings, despite his explicit direction not to use Facebook". 

An example of "Trial by Google" is Attorney General v Dallas [2012] EWHC 156 which resulted in contempt convictions, in that case, a female juror was sentenced to six months’ jail for contempt of court for conducting research on the Internet, including definitions of the word "grievous" and a newspaper report of an earlier rape allegation against the accused, and had shared this with fellow jurors.

Resolving the Problems

The ABC article make the point that:

"Mandatory jury trials are thought to better meet community standards and save time by avoiding the need for judges to produce lengthy written reasons justifying their decision."

However, Mr Lawton is reported by the ABC article as saying ". . .sometimes it was important to see how a decision was reached, particularly in difficult cases".

Ultimately, as suggested in the article, a better model might be similar to that now in place in NSW, where offenders can elect to have a judge alone trial, under particular conditions. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

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