Juries in the Digital Age: Managing Juror Online and Social Media Use During Trial

Abstract

Questions about the contemporary relevance of juries, their ability to make impartial decisions and their ability to respond to emerging challenges have long been a focus of debate. This chapter considers these questions and explores the extent to which juries continue to ensure that an accused person receives a fair trial. Whilst jury processes remained largely unchanged throughout the twentieth century, jurors have evolved in the twenty-first century—becoming more highly educated and with access to information through technology in the palm of the hand. Access to digital information can both enhance and pollute a criminal trial. This chapter advocates reforms to ensure jurors are kept engaged and active, are well informed through written collaborative jury directions, and deliberate more thoroughly without being tempted to seek their own digital advice.

Appendices

Practitioner Perspective: A View from the Bench—Juries in the Digital Age

• W. Graham Turnbull SC 

1. District Court of New South Wales, NSW, Australia

   Judge W. Graham Turnbull SC

The evolution of the parameters of justice is everywhere in the digital age. Things considered sacrosanct before the computer was invented have been changed, and in some instances, discarded. Before becoming a judge, I was a jury trial privateer for decades. Now, all around, books have disappeared into iPads, trolleys are parked up and turning to rust in clerks’ mailrooms, and pens have gone the way of paper. The computer has become an educational, fundamental, core skill—and the internet a freely available resource. Recourse to digital resources is going on right under a jury's nose.

The Temptation of Jurors

Pretrial publicity has a potential bearing on jury attitudes and therefore jury outcomes. Think of images of gutter sittings by the cuffed and detained; parading of arrestees escorted handcuffed into or out of police cars or more disconcertingly, guiltily paraded along supposedly discreet secure police station ramps to their custodial endpoint. Pretrial material can prime people to expect that most people charged are guilty. However, each case is different. Each individual case, and count, is required to be viewed in accordance with the evidence referable to that specific case.

The criminal trial has as its starting point the presumption of innocence. The subtlety of its potential erosion is an aspect of the digital age. There are blogs and talkback outrage, the intemperate criticism of judicial decisions, even at a political level; there is an obscuring of the difference between arrest and conviction; and the ongoing lionising of authority. This has moved many sanctions previously imposed by a court to being imposed on the street. One example is on-the-spot fines or bail laws which can operate to impose a jail sentence before the case is fully heard. The notion that the accused would face their accuser is now—in many instances, and increasingly so—one where the confrontation occurs over a video-link. The jury sees a two-dimensional distant image, not a three-dimensional person coming and going from the courtroom.

In the digital age, there is an evident drive to make complete the incomplete within the moment—TikTok’s 60 seconds; Twitter’s 280 characters. There may be a perception in the community, constituted as a trial jury, that the trial is frustratingly long, the directions confusingly detailed, and the standard of proof impossibly high. Frustration that, the studies suggest, does provoke outside the courtroom enquiries. These may be via digital sources but, they may also be by asking others, or they may include discreet visits to the crime scene.

Procedural Fairness

In a magistrate’s court, and in a judge-alone trial, where evidence is found to be unfairly prejudicial or where it is found to have been improperly or illegally obtained, judicial officers are presumed to be capable of setting aside the excluded evidence in their fact-finding task. It is accepted that they are capable of resisting irrational thinking, identifying and discarding tainting emotional responses and rendering a just decision. No prohibition on internet searches has been suggested for judicial officers. Indeed, in many contexts it is expected. So, there is always the potential for a look at the legislation or the bench book, a review of some case law, the conduct of further study of sentencing statistics, or to find other points of reference.

Like jurors, judicial officers are not immune to the temptation of internet research; and that internet research may occur during the course of a hearing or trial. I once sat at a bar table where the prosecutor took a magistrate to task for referring to his own research about a recreational drug in an interim judgement—concluded views, absent tested expert evidence, not presented by witnesses exposed to the rigours of cross examination. A rational structured analysis leading to a developed adversarial argument is what was required in a court. The Crown submitted that it was not a proper judgement but merely private musings publicly aired as a “judgement”. They argued that justice was not done, nor, absent exposure and testing, seen to be done. It was a stern admonition, courageous even, from counsel. Of course, the magistrate was courageous too; he could have kept it to himself as many likely do.

The Crown had made an important point. In the ongoing contest of a criminal trial, the learned magistrate’s now identified musings could only be a preliminary judgement at most. Digital research, aligned with book searches and likely colleague consultation, needs to be openly argued, tested and rationally aligned with the expectations of due process and fairness. Procedural fairness reflects the community’s expectations and a community understanding. Not every individual in the jury may have the same level of insight into its operation at the legalese level, but there can be no doubt that a ‘fair go’ is a community standard.

A True Verdict According to the Evidence

The jury trial system necessarily accepts exposure to the risk of prejudice and ignorance from the outset. Aside from a few limited peremptory challenges, there is no jury selection process in the Commonwealth, beyond the calling out of a number to a group gathered by jury summons. This is distinct from the process in many parts of the United States, where selection proceeds by way of surveys, and even questioning, to flush out inter alia, digital influences.

Biasing information can be case or topic specific. The former is the relevant concern to a trial underway. The reality is that flouting a prohibition is too simple a trigger to despondency about the efficacy of directions. It is not the point that directions in the form of prohibitions on internet use, or independent research are likely to be, or are actually, disregarded by some jurors. The point is what is done with the fruits of those breaches. It is the intrusion of prejudice, the erosion of impartiality, the squandering of rationality; the rogue ignorance of the requirements the law sets out, and ultimately, the rejection of the judge’s role in providing the framework within which the found facts are to fit, which is the problem.

No one is suggesting that everything done extra-curially by a judicial officer, including digital searches and the like, should be prohibited where it has a bearing on the trial. They are trusted to expose their thinking, and respond to fairly tested and received evidence. No more should be expected of jurors, who themselves are subject to an oath and are expected to act fairly and rationally and indeed, as if it’s needed to be done, are directed to do so.

True it is that the verdict of a jury requires no reasons. What a verdict does require is a trial, evidence, the testing of that evidence and the application of the law as directed. Deliberation, often over days, confirms that people are reasoning towards a conclusion. All of that precedes a verdict.

Managing the Risk

‘Verdict’ is a combination of the French and Latin saying “to speak the truth, to say the truth”. The jurors swear or affirm, to “give a true verdict according to the evidence”. That’s the evidence in the trial concerning the accused, who the jury have in their charge. In reaching their true verdict, the jury apply the directions of the trial judge.

There had been a usual practice of sequestering the jury during a trial. There can be no suggestion of the digital age provoking a return to that practice. People can listen to others’ opinions and views, and not adopt them. People can abide by directions, even if they do not agree with them or are frustrated by them. That is the touchstone. That is why there is not a blanket ban on any pretrial reporting or discussion, and people go home every night. They are told not to discuss the case with their confidants, or anyone, apart from their fellow jurors, when all 12 are gathered together.

The jury trial system is based on community, on trust in each other in a multifaceted process that is experienced by a dozen different people. They do not have to reach the verdict by the same route but must agree nonetheless upon it. In the end they are judges too. There is a solemn promise given, in formal circumstances at the outset of the trial, in a courtroom architecturally calibrated to emphasise the solemnity of the tasks undertaken within.

The acuity of jurors to digital pre-publicity, extending typically far beyond any particulars of the trial they come to hear, has to be accepted. It cannot be that the politics of the day, the preferences of individuals, their education, their life experience, their prejudices, their occupations, their relationships and their life events, can ever be adequately vetted in a system that relies upon that very mix. Daily, the jury trial courts address these issues. The totality of the trial process, its forensic issues, its participants, the political and social context, the accused and what they are accused of, the pretrial publicity and familiarities, are all taken as given.

Prohibiting internet or other digital conduct must reflect an understanding of the need for the rules and thus the prohibitions. This is the actual context. Directions, so often isolated and thereafter impugned as insufficient and impotent, often forget the reality. It is not too bold to suggest that there is, abroad, a focus on discrete issues in exceptional cases, which can typically devolve to the use of a single sentence. It is evident in much academic analysis, and equally so in many appeal court judgements.

What has developed, as a usual trial judge practice in recent years, is an invitation to the jurors in waiting, those about to be empanelled, to identify, in their minds, prejudice. An accused is entitled, as anyone in our community is entitled, to an impartial jury. The three simple rules of a criminal trial—presumption, onus and standard of proof—are set out. The panel are told that those are directions of law that must be applied. If a person cannot be impartial and apply the law, then they can identify that to the judge and seek to be excused.

At the point prior to empanelling, the panel in waiting are given a thumbnail of the case the Crown seeks to prove. The panel has already heard the indictment put, and accordingly knows broadly, the type of case that it is. The names of witnesses, others to be referred to, places, times, surrounding circumstances, usually in consultation with the defence, are read out. The detail of the subject matter, well beyond the mere particulars of the indictment, becomes clearer. Pretrial publicity is specifically mentioned, if it can be identified. Any controversy, and any broad canvassing of events in the community in advance, is typically mentioned so as to alert the panel in waiting.

Then, the members of the jury panel are asked if they can bring an open and unprejudiced mind, after knowing what they now know? If it might even look like they are partial because of a witness relationship, or prior knowledge of the events, they are invited to stand aside, or at the very least discuss the matters confidentially with the judge, albeit in open court, being seen but not necessarily heard.

Many take advantage of the invitation because people are there to do, unquestionably, the right thing by the administration of justice. Judges now commonly go a step further. If the subject matter creates strong emotions, might excite outrage or anger, or might cloud rationality, then potential jurors are asked to be honest with themselves, to look inside themselves, to identify their prejudice and to seek excusal. This is particularly, but not exclusively so, in the case of allegations of sexual assault, and it is usual to hear from more than a handful of people. These may be people who are triggered, angry at events before or now, who have, or who have family or friends who have, suffered at the hands of perpetrators; or they are people who cannot, in all honesty, simply start with a presumption of innocence.

To look at the faces of 70 strangers, waiting for their number to be drawn from a box to serve, is salutary. The diversity, the courtesy, the forbearance, the respect for and compliance with the process of a jury trial from the very start is an everyday occurrence in our courts. Twelve people are then chosen, at random, from the community. By joining a jury, jurors are expected to remain people whose independence, common sense, world experience and capacity for rational discussion allow them to sit in judgement on another member of the community.

The reasons why in-trial juror research is unacceptable are explained by the judge before a direction is given. The proven applied simplicity of a jury’s duty, in achieving and being seen to achieve just outcomes, has ensured its inter-subjective acceptance as a legal institution. It reflects the way our democracy does its business.

The simple rules for the jury, even in the digital age remain. Accept directions, and ask if in doubt about directions. As for the facts, the jury is directed that they are what is presented in court, tested in court and accepted as relevant by the parties in the particular trial. The Crown can either prove it, or they cannot. If the jury has a doubt, they are directed the benefit of that doubt goes to the accused, and that it can’t be an unreasonable doubt.

Conclusion

Trials in front of juries are linear and specific; each accused is an individual, each narrative of events unique. Experience of modern jurors reflects their concern for the task at hand. It is understood that fairness requires an open mind without pre-judgement, and that it is part of the process from the start.

The digital age is not inimical to the survival of the jury system. Indeed, the use of digital devices in a trial is now inherent to the process. It is a facet of community life that should be recognised as a facet of the jury system. Serving on a jury is a facet of community life.

It is not that the traditional paradigm is not working reliably. It is just, as for most things involving people and processes, concepts and compromise, that it may not work perfectly every time. That’s why there are appeals, and even then, perfection is elusive. It was said by another judge, that the conscience of the jury gives the judge their power (Devlin 1956). The digital age hasn’t changed that.

Reference

Devlin, P. (1956). Trial by jury. Stevens & Son.