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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 <strong>September</strong> <strong>2019</strong> 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
SOCIAL MEDIA jurors. 6 Such information can mislead jurors and affect their ability decide the case on a proper basis. Online communications between sitting jurors is potentially problematic for many reasons, including simply because such online ‘banter’ is capable of distracting jurors from the trial itself. For example, in New South Wales in 2013, multiple jurors on a long-running fraud trial became Facebook friends. Their online communications included posts such as a digitally altered photo of one of the jurors wearing a judge’s wig. 7 Jurors have also been found to publish material on the internet and social media platforms which suggests that they may have already made their mind up about the guilt of the accused, including in circumstances where they are yet to be empanelled on a particular trial. In 2010, a potential juror in Victoria posted on his Facebook page, ‘everyone’s guilty,’ 8 and in 2016 a juror who had been empanelled in a West Australian murder trial posted on Facebook the day the trial was due to commence, ‘At Perth District Court, guilty!’ 9 Jurors have also published material that discloses prejudice in relation to certain types of offending. For example, in 2016, a juror sitting in a sexual offending trial in Broken Hill, posted on Facebook the day before the guilty verdict was returned: ‘When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?’ This post was accompanied with a photograph that showed images of rooms and implements by which lawful executions are carried out. 10 The same concerns apply to jurors with apparent sympathetic biases. In 2014, a juror in a murder trial in New South Wales conducted online research to locate a photograph of the victim. The juror viewed a media photograph depicting the victim’s parents holding a photograph of the victim. The juror explained: ‘I just wanted to see his [the deceased’s] face … that poor boy and I just wanted to see his face without any injuries, anything, just see him … put a face to the name.’ 11 Senior School Tuesday 29 October, 9.30am Junior School and Ignatius Early Years Thursday 7 November, 9.30am Book online at ignatius.sa.edu.au CRICOS no: 00603F
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Page 9 and 10: EVENTS Glen Pearce (left) and Shery
Page 11 and 12: BUILDING & PROPERTY LAW BUILDING IN
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Page 15 and 16: PROMOTION Managing the Financial Se
Page 17 and 18: BUILDING & PROPERTY LAW Just as wit
Page 19 and 20: BUILDING & PROPERTY LAW Regulations
Page 21 and 22: CRIMINAL LAW 3. Inviting a jury to
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Page 25 and 26: YOUNG LAWYERS facebook.com/YLCSA re
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Page 37 and 38: IN HONOUR Vale Damon Ind: A passion
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Page 43 and 44: RISK WATCH Details, details, detail
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