LSB September 2019_Web

SOCIAL MEDIA
Social Media, Jurors and the
Right of an Accused to a Fair Trial
JEMMA HOLT, RESEARCH FELLOW, TASMANIAN LAW REFORM INSTITUTE
The right to a fair trial is a central
pillar of our criminal justice system.
An accused is entitled to a trial before an
impartial jury that makes its determination
in accordance with evidence that has been
properly admitted and tested during the
course of the trial.
A current concern is how to preserve an
accused’s right to a fair trial at a time when
social media and other internet platforms
are omnipresent in our everyday lives.
USE OF SOCIAL MEDIA AND OTHER
INTERNET PLATFORMS
The majority of Australians are
continuously online and engaged; at
home, at work and in-between on our
smartphones.
If individuals continue this behaviour
when they are jurors sitting in a criminal
trial they thereby risk adversely affecting
the accused’s right to a fair trial.
GETTING A ‘HANDLE’ ON THE PROBLEM
Commentators have coined many
terms which refer to the phenomena of
jurors inappropriately using social media
or internet platforms during a criminal trial
and the consequences for the accused’s
right to a fair trial: googling jurors; internetsurfing
jurors; trial by google; google mistrials;
E-jurors; do-it-yourself or DIY jurors; the twitter
effect; internet-tainted jurors; digital injustice; wired
jurors; and rogue jurors. There is no single
expression that encapsulates the full range
of possible juror misconduct of this kind.
In 2013, a juror in New South Wales
Googled “murder” and “manslaughter”,
admitting to her fellow jurors, whilst
reading material from her iPhone: “I’m
having trouble determining the difference
between murder and manslaughter”. 1 It
is solely for the trial judge to direct jurors
on matters of law. When jurors go online
to conduct enquiries on legal terms and
concepts, the reliability and accuracy of
the source is unknown. There is also
the risk of obtaining information from
another jurisdiction on a jurisdictionspecific
matter. Further, it relies on the
34 THE BULLETIN September 2019
juror correctly identifying the legal term/
concept in the first place and, thereafter,
not straying once online.
Jurors have also been found to
conduct internet searches on “expert”
topics, regardless of whether an expert
witness had given evidence in the trial:
e.g. on retention of body heat in an infant
(NSW, 2007) 2 , and methylamphetamine
production (WA, 2016) 3 . Obvious issues
arise as to the accuracy and reliability of
such technical information that is sourced
by jurors from unknown online sources.
Moreover, the use that an unskilled and
unassisted juror makes of such information
in the context of the trial is completely
unknown, including whether the juror
disseminates the information to fellow
jurors as an in-house jury room “expert”.
Jurors have also, on occasion,
conducted online investigations into
defendants and witnesses. In South
Australia in 2016, two jurors sitting in a
blackmail trial against multiple defendants
were discovered to have conducted online
searches on the accused which disclosed
past outlaw motorcycle gang affiliations. 4
Such information was legally irrelevant,
inadmissible and highly prejudicial to the
case being tried. Similarly, jurors have
also obtained information via the internet
on an accused’s prior convictions and
previous allegations against an accused,
including those for which the accused was
acquitted. For example, in New South
Wales in 2002, multiple jurors in a murder
trial, alleging the accused had murdered
his first wife, were discovered to have
conducted internet searches to obtain
information about previous allegations
that the same accused had murdered his
second wife (for which he was previously
tried and acquitted). 5 This information
could significantly prejudice the accused
in the eyes of the jurors so that they
could not decide guilt or innocence in a
dispassionate manner.
Jurors’ online searches have also
located information about the history of
the particular prosecution, including the
fact that the present trial is a retrial and the
reasons behind this, such as a hung jury or
a successful appeal against conviction. For
example, in a 2014 murder trial in Western
Australia, a juror’s girlfriend conducted
online searches in relation to the accused
and located information about the history
of two previous trials, which she then
passed onto her partner, who, in turn,
shared the information with his fellow