Tasmania Law Reform Institute research fellow Jemma Holt is conducting research on the topic of Social Media, Jurors and the Right of an Accused to a Fair Trial. Here is part of her issues paper released on Wednesday:
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'Checking-In': What is the Problem?
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 concern in Tasmania and elsewhere 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.
A concern in Tasmania and elsewhere 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.
'Trending' - 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 and/or internet platforms during a criminal trial and the consequences for the accused's right to a fair trial: googling jurors; internet-surfing 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.
There have been documented cases in Australia and elsewhere of:
- Jurors using the internet to research legal terms or concepts or other information relevant to the trial;
- Jurors using the internet and social media to search the accused, witnesses, victims, lawyers or the judge;
- Jurors using the internet and social media to communicate with individuals involved in the trial;
- Jurors publishing material about the trial on the internet or social media, which may disclose impermissible bias, prejudice, predetermination or other irregularity in the deliberation process; and
- Jurors publishing material about the trial on the internet or social media, which may elicit impermissible information by way of a response.
Going 'viral'?
There has been some limited research conducted in this area in Australia and overseas, however, the prevalence of juror misconduct of this kind remains largely unknown and unknowable.
Whilst the detection of juror misconduct of this kind may be rare, this does not necessarily mean that such misconduct is, in fact, rare. Rather, all indications are that juror misconduct of this kind is under reported, at least to some extent, and that the reported cases represent the bare minimum of cases of misconduct of this kind.
'Dropping the Pin'
Juror misconduct of this kind is not a phenomenon that is peculiar to the larger jurisdictions and high-profile criminal trials on The Mainland.
In 2015, following a Supreme Court trial in Launceston (which resulted in the conviction of two defendants of aggravated assault and wounding), court staff who were cleaning the jury room discovered three pages of computer-printed material.
The material contained the results of searches on the meaning of 'beyond reasonable doubt' and 'circumstantial evidence' from a US online legal dictionary.
Indeed, this case may very well represent the tip of the iceberg when it comes to juror misconduct of this kind in Tasmania.
'Status Update' - Where to from here?
The Tasmania Law Reform Institute is researching jurors' use of social media and other internet platforms during criminal trials. The Institute released an Issues Paper on August 21, which seeks to elicit open discussion on the effect of and how to prevent juror misconduct in this contemporary context. The Institute invites submissions on this topic until October 4. The Issues Paper is available at: https://www.utas.edu.au/law-reform/publications/ongoing-law-reform-projects2
- Jemma Holt also works part-time as a Prosecutor at the Office of the Director of Public Prosecutions in Hobart. She has previously worked as a Prosecutor at the Office of the Director of Public Prosecutions and the Crown Solicitor's Office in Adelaide.