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New Zealand Law Students' Journal |
Last Updated: 24 September 2015
#JURYDUTY - JURORS USING SOCIAL MEDIA
RACHEL
DUNNING
Introduction
In New Zealand, it is a fundamental principle of law that an accused has
the right to a fair trial. The role of the jury is essential
to this principle,
and forms the base of the administration of justice and Criminal Law. The jury
must be impartial and form opinions
based solely on evidence presented in the
trial, but if exposed to inappropriate information or communications during the
trial,
the rights granted in our criminal justice system are
endangered.
The introduction and growth of the internet has had a
profound impact on a juror’s ability and opportunity to receive or
disseminate
information related to their
trial.[1] However, the problem is not
the internet but the activities of jurors who disregard the principles
underpinning our criminal justice
system.[2] inappropriate social media
use by jurors is having an increasing impact within courts. This impact includes
increasing trial delays,
financial burdens and loss of public confidence in
verdicts.
Social media is “a group of Internet-based applications
that build on the ideological and technological foundations of [the
worldwide
web] which allows the creation and exchange of user-generated
content”.[3] There are four main
elements that characterise social media; the creator relinquishes control of the
message, there is a participatory
culture, it is easily accessible, and
interactive and two-way.[4]
Internationally, the most commonly used social media platforms are Facebook,
Twitter, WordPress, LinkedIn, Pinterest, Google+, Tumblr
and Myspace. These
forms of social media are accessed equally from personal computers and mobile
devices across most cultures and
age
groups.[5]
Several methods of
detection and prevention of inappropriate social media use by jurors have been
identified in other jurisdictions.
Studies have been conducted in Australia, the
United Kingdom and the United States of America, and these sources formed the
basis
of my research. This paper primarily focuses on the potential impact of
jurors’ use of social media during a trial and the
deliberation process,
as opposed to pre-trial social media.
The paper will introduce the
prevalence of this issue and examine why jurors use social media. The risks this
misconduct presents
to the role of the jury and the principles underlying the
administration of justice and rights and freedoms are considered.
The
paper discusses the potential impacts of the use of social media and the
consequences for a trial and individual jurors. The paper
presents examples of
such misconduct from Australia, the United States and the United
Kingdom.
Finally, this paper considers procedural options to assist the
court in detecting this juror misconduct and examines potential preventative
methods. Those best suited for implementation in New Zealand are
recommended.
II.
Jurors and Social Media
A. Is Social Media an Issue for the Court?
As acknowledgement of the use of social media by jurors has grown,
international research has been conducted to begin identifying
the extent and
impact of this issue. To identify if social media is, or will become, an issue
for New Zealand Courts, we can look
to the findings of this research to
recognise any potential implications.
A Reuters Legal Study aptly
demonstrated that jurors are among the millions of people that use social
media.[6] Reuters Legal staff
regularly visited Twitter over three weeks during
November and December
2010, and typed the words “jury duty” into Twitter’s search
engine.
This produced tweets from people who wrote that they were
prospective or actual jurors at the rate of one almost every three minutes.
While some tweets were innocuous, complaints by people summoned for jury duty,
or jury duty being boring, a significant number wrote
statements about the
innocence or guilt of the accused. For example, one wrote, “looking
forward to a not guilty verdict regardless
of evidence”.
A notable
drawback of the Reuters Legal study is the unknown reliability of the authors of
the tweets who wrote about jury duty, and
whether these tweeters were actual
jurors and if their tweets were factual or fictitious. Nevertheless, assuming
that the majority
of tweets found were from actual jurors, the frequency of
tweets about jury duty appears
high.[7]
The United Kingdom
Ministry of Justice has recently completed a large study of jurors’
internet usage in England and Wales,
which showed in standard cases five per
cent of jurors sought information about the case while it was ongoing, but
almost three times
as many on high-profile cases (12 per cent) admitted to doing
so.[8] This empirical study is limited
as it relied heavily on jurors self-reporting such behaviour, which
suggests the actual number
may be greater. Also in the United Kingdom, the Law
Commission identified at least 18 appeals
in the United Kingdom since 2005
involving juror misconduct from internet access or social media
use.[9]
So far no relevant
research has been conducted in New Zealand regarding this issue. Nonetheless
from these findings it can be inferred
that if this issue is not currently a
problem for New Zealand courts it will be in the future.
B. Why Do Jurors Use Social Media?
Statistics demonstrate the extent to which social media platforms, such
as Facebook, are intrinsic in the daily lives of many
people.[10] In 2009 a juror tweeted
“Wow. Jury duty. First time ever. Can I be excused because I can’t
be offline for that long?”[11]
While this tweet is a humorous example it exemplifies one of the fundamental
reasons why a juror may use social media, being that
social media is
addictive.[12] This may lead to a
juror being unwilling to comply with a court’s instructions. Furthermore,
jurors may not be aware of, or
comprehend, the consequences of using social
media while undertaking jury duty, or may not take their responsibilities
sufficiently
seriously.[13]
For some
jurors activities involving social media are so habitual that they are “an
extension of thinking, rather than a form
of written
communication”.[14] Social
media can be used in an effort to relieve boredom or as an emotional
outlet.[15] A juror may be curious
about aspects of the case, and with a good intentioned sense of responsibility
to ensure that they deliver
the right verdict may look online, even if the
activity has been
forbidden.[16]
These reasons
are only a few of the many possible and demonstrate that jurors do not appear to
use social media inappropriately to
intentionally jeopardise a trial or break
instructions. Understanding the reasons for inappropriate social media use can
assist in
recommending methods of prevention.
C. Principles Underlying the Need to Address this Problem
1. Role of the jury
The jury system is fundamental to the administration of criminal law in
New Zealand. Its foundation is the value of a collective decision
made by a
group of ordinary New Zealanders in accordance with their unanimous opinion on
the prosecution brought on behalf of the
community.[17] Our justice system
depends on the public being confident of the jury’s
verdict,[18] and the heart of this
is the jury’s impartiality and freedom from any outside
constraint.[19] The concept of trial
by jury has always been vulnerable to attack, so if it is to be maintained as an
essential element of the criminal
justice system, it must be vigilantly
protected.[20] The protection of the
jury system covers many aspects, not least the candour and full participation of
jurors in jury deliberations,
privacy of jurors and the finality of jury
verdicts.[21]
If a juror
writes about a trial on social media, this can affect the confidentiality
required of jurors.[22] It
challenges “the confidential nature of jury deliberations, may inhibit
robust and free-flowing discussion and may have an
adverse effect upon the
deliberative process.”[23]
Thus jurors may feel stifled or not participate as they normally would in the
deliberation process if made to feel that their arguments
and thoughts may be
published to the world. The participation of jurors should be in the certain
knowledge that they can express
their own views without fear of subsequent
exposure.[24] The finality of the
verdict and the privacy of jurors are equally important considerations and may
be at risk if inappropriate social
media use leads to appeals or identification
on public
platforms.[25]
New
Zealand Courts have found that conduct that might undermine the jury system, or
public confidence in it, was capable of constituting
contempt.[26] Judge Boshier, who is
leading the current New Zealand Law Commission “Review of Contempt of
Court”, has noted that the
purpose of the law of contempt is to protect
the integrity of the justice system and a defendant’s right to a fair
trial.[27]
2. Principles of open justice, freedom of expression and fair trial
Social media use by jurors can damage the capacity of courts to maintain
an appropriate balance between a number of potentially conflicting
rights and
principles, many granted by the New Zealand Bill of Rights Act
1990.[28] Foremost of those, which
also bear on the proper approach to the jurisdiction to punish for contempt,
include open justice, right
to a fair trial, and the freedom of
expression.
A fundamental aspect of the proper administration of justice
is the principle of open justice. Open justice, as relevant to this
paper’s
discussion, is the concept that all involved in a trial are
entitled to know what evidential material is being considered by the
decision
making body.[29] Whilst this
includes both parties and those responsible for the outcome of the trial, the
public is also entitled. Inappropriate
use of social media may affect a
juror’s conscious or subconscious mind, and if counsels at trial are
unaware of this misconduct,
they cannot discuss how the juror was affected at
court[30] or cross-examine the juror
about it.[31]
A principle
responsibility of the courts is protection of the right to a fair trial. This
right is affirmed by section 25 of the New
Zealand Bill of Rights Act in
fulfilment of the obligation under Article 14 of the International Covenant on
Civil and Political
Rights. The
requirement to ensure trials are fair may be
met in a multitude of ways. This includes the use of statutory powers, but may
also require
the court to use its inherent powers to control its procedures and
secure the proper administration of
justice.[32] These inherent powers
can extend to orders against non-parties where such orders are
necessary.[33]
Section 14 of
the New Zealand Bill of Rights Act encapsulates the right of
“[e]veryone” to freedom of expression, “including
the freedom
to seek, receive, and impart information and opinions of any kind in any
form”, which relevantly includes the right
to impart information about
court proceedings.
Freedom of expression is a right that is qualified
under the International Covenant on Civil and Political
Rights.[34] The Covenant identifies
multiple justifications for restrictions on free speech including measures to
protect the rights or reputations
of other and protection of national security,
public order, public health or morals. Thus, as the judiciary must observe the
New
Zealand Bill of Rights Act, a court could only look to restrict a
juror’s freedom of expression where there was a real risk
that the course
of justice would be prejudiced.[35]
On the other hand, the right to fair trial is not qualified in the International
Covenant on Civil and Political Rights. It is an
absolute right, not a relative
right which must be balanced against other rights and interests recognised by
law.[36]
The human rights to
a minimum standard of criminal procedure, freedom of expression, and natural
justice may be subject to “such
reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society” under s 5 of
the New
Zealand Bill of
Rights Act. Thus Judges in exercising judicial
authority are bound to observe the rights and freedoms contained in the New
Zealand
Bill of Rights Act.[37]
However, our Courts have noted that if a conflict should arise between the
concepts of freedom of expression and the requirements
of a fair trial, all
things being equal, the right to a fair trial should
prevail.[38]
When considering
what methods to implement to prevent inappropriate social media use by jurors,
this conclusion should be regarded
as an issue of priority.
III.
The Use of Social Media and its
Potential Impact
A. Potential Impact
There are four main ways jurors may use social media
inappropriately:
• seeking information about the case from a source outside of the court.[39]
A
juror may engage in more than one of these behaviours; for example publishing
information about the trial may also involve or invite
others’ opinions on
the trial.[40]
Behaviours of
this nature could prevent a juror from returning an impartial verdict in a
variety of ways, and all can potentially
affect the principles discussed
previously.
Further discussions below on these points include examples of
jurors using social media in international trials, in an attempt to
demonstrate
the aforementioned impacts. It is an attempt to classify these types of cases,
but is in no way an exhaustive list of
the publicised incidents. It is of note
that there has been no reported case of this kind in New Zealand so far.
1. Contacting parties, witness, lawyers or others in the trial
Pre-trial jury members are instructed not to communicate with other
people about the trial, as discussions and interactions with parties
may result
in the juror becoming biased.[41]
However, jurors may not realise that using social media to contact other parties
is as incorrect as communicating with them
face-to-face.[42]
The most
famous example of misuse of social media during a trial was the case of
Attorney-General v
Fraill.[43] In 2011
London’s High Court sentenced Joanne Fraill to eight months in
prison for contempt of court for exchanging Facebook messages with the
accused in a drug trial while she was serving on the jury.
Fraill also searched
online for information about another defendant while she and the other jurors
were still deliberating. All this
activity went against clear instructions to
avoid using the internet during the trial. The financial burden of the case for
the British
government was approximately six million
pounds.[44] Hence, while use of
social media by jurors to communicate with parties to a case appears to be rare,
it is not unheard
of.[45]
Another eventuality
to be considered are jurors ‘friending’ or following each other on
various social media platforms
during a trial and discussing the case both
privately and publicly outside of the proper deliberation
process.[46] Given it is common
behaviour for people to connect with those whom they interact with in many
situations on social media, the challenge
for the courts is to distinguish the
often close relationships formed during an intense jury trial from other social
contexts if
they wish to establish juror duty as an exception to this common
practice.
2. Publishing or distributing information about the trial
Social media allows jurors to “broadcast their deliberations and
interact with the general public”, instantly communicating
about cases and
disclosing information with hundreds or thousands of friends or
followers.[47] Further, once the
information is on the internet, it may be impossible to remove it due to the
potentially unlimited sharing process
and the fact that information can be
stored online indefinitely. This notion is demonstrated most clearly with the
knowledge that
the United States Library of Congress retains a publicly
accessible copy of all tweets since Twitter’s
inception.[48]
This activity
appears to be more common. A juror in the Los Angeles Superior Court tweeted
“Guilty! He’s guilty! I can
tell!” during a criminal trial in
that court. The accused in the case was convicted and the court took no action
against the
juror.[49] A Detroit
juror was caught posting on her Facebook page, “Actually excited for duty
tomorrow. It’s gonna be fun to tell
the defendant they’re
GUILTY”. The juror was found guilty of contempt of court and
fined.[50]
3. Discussions with others
Jurors who seek the opinion of people who are not present at court, do
not understand the case, and have not heard the relevant evidence,
may seriously
undermine proper legal
processes.[51] However, even if
jurors do not actively seek the opinions of others, they may be influenced by
time spent on social media networks
and have their views about the merits of a
case altered. This may be unfair to the accused, as they no longer have an
unbiased trial
based on the relevant admissible
evidence.[52]
A UK juror was
dismissed from a child abduction and sexual assault trial after she asked
her
Facebook ‘friends’ to help her decide on the verdict.
“I don’t know which way to go, so I’m holding
a poll,”
she wrote. This was discovered prior to the jury starting its deliberations, and
the trial continued in her
absence.[53]
4. Seeking information
This paper is principally concerned with jurors’ use of social
media to communicate about a trial in which they are serving,
and therefore does
not explore in depth the issue of jurors intentionally conducting their own
independent research. Nevertheless
it is important to note that it is possible
for jurors to accidentally come across information publicised about the case
through
activities, discussions and general browsing on social media websites,
alongside active
research.[54]
The
Attorney-General of the United Kingdom used the expression “Trial by
Google” in a recent speech to describe jurors’
use of internet
search tools and social media to conduct their independent investigations into a
case.[55] He conveyed a dim view of
the practice and referred to a number of cases where jurors were convicted of
contempt, including Attorney-General v
Dallas.[56]
Jurors who
seek information from outside the courtroom about the case that they are trying
may act for a variety of motives. However,
the additional information can result
in jurors who are biased and who may fail to judge and form opinions based
purely on the evidence
presented before them in court.
B. The Potential Consequence for a Trial
If a juror is found to have used social media inappropriately it can
increase the length of a trail or delay it, or potentially become
a reason for a
mistrial or the granting of an
appeal.[57]
This may
inconvenience many of those involved in the first trial by the obligation of
appearance at another trial, and may be of particular
hardship to
victims.[58] Therefore it is in the
best interests of all to avoid increasing the length of a trial or delaying
it.[59] Ultimately juror misconduct
wastes court resources.
Judges greatly differ in their decisions about
the consequences for the trial and appear to make decisions on this subject by
looking
at each case
individually.[60] If a court learns
that a juror used social media inappropriately and the trial has not concluded,
it can declare a mistrial or continue
the trial. If the trial has already
concluded when a court learns that a juror used social media inappropriately,
the court can permit
an appeal or let the verdict
stand.[61]
In 2010, Reuters
Legal using data from the Westlaw online research service compiled a tally of
reported US decisions where judges
granted a new trial, denied a request for a
new trial, or overturned a verdict, in whole or in part, because of juror
actions related
to the internet. They identified at least 90 verdicts between
1999 and 2010 that were challenged due to juror internet misconduct.
They also
counted 21 retrials or overturned verdicts in the 2009 – 2010
period.[62] Although this survey
relates to United States cases, it can be extrapolated that disruptions due to
internet-related behaviour is
increasing, and that the costs associated with
this would be significant.
1. Mistrial or continue the trial
A judge has the power to declare a mistrial if a juror has been
identified as using social media
inappropriately.[63] A mistrial
occurs when the court stops a trial before it is finished and the trial is
continued at a later date, normally with a
different
jury.[64] However it is possible for
the court to continue the trial, with any consequences resting solely on the
individual juror concerned.
As previously mentioned mistrials have already
occurred in the United
States.[65]
However this
paper would recommend that a mistrial be declared in New Zealand only as a last
resort due to the significant resources
wasted.
2. Permit an appeal or let the verdict stand
If a court learns of the juror misconduct after the conclusion of a
trial, it is possible for the court to grant an appeal or let
the verdict
stand.[66] The juror’s
behaviour may not always amount to a miscarriage of justice sufficient to quash
a conviction, but it is determined
according to how much influence the
inadmissible information had on the jury’s
decision.[67]
The influence
on a juror is likely to be greater if the case is discussed with a third party,
than when jurors talk among themselves
inappropriately.[68]
Broadly
speaking, the courts in common law countries will allow an appeal from a jury
verdict when a juror or jurors have accessed
extraneous information and it would
be unsafe to allow the verdict to stand. There are two decisions, R v
Karakaya and Benbrika v The Queen, that illustrate the considerations
involved; a strict approach whereby a juror must not be allowed to introduce
entirely new evidence,[69] or a more
relaxed approach where the focus is placed more on any endangerment of a fair
trial.[70]
C. The Potential Consequence for an Individual Juror
The courts have a range of options available to them in cases where they
detect instances of jurors’ inappropriate social media
use.[71] Specifically they may elect
to dismiss the juror and/or jury panel. They may also have the power to find the
juror guilty of an
offence.[72]
Prejudicial
material that appears on the internet may be more amenable to prosecution than
material published in traditional media.
The weight of authority suggests that
material that continues to be accessible on the internet is in a continuous
state of publication.[73] If so,
prejudicial material that was blogged, posted, or tweeted prior to the
commencement of a case, but which remains accessible
after it has commenced, may
be held in contempt of court.
1. Dismiss the juror
Section 22 of the Juries Act 1981 provides for the discharging of a juror
or jury, and the court has the power to dismiss. This paper
recommends that this
consequence for jurors who inappropriately use social media is the most
accessible for New Zealand Courts. Other
misconduct already can lead to
dismissal and this option potentially wastes the least court
resources.
Admittedly, this consequence only applies if the trial is
ongoing, as opposed to if the court learns about the juror misconduct following
the delivery of a
verdict.[74]
2. Compel the juror to write an essay
A court may punish jurors who use social media inappropriately by
compelling them to write an essay on topics related to the right
of a fair trial
for the accused. The juror is far more likely to understand the court’s
reasoning in forbidding the behaviour
than if the juror received other types of
minor punishment.[75] This
consequence may be highly useful in cases where the juror does not think their
use of social media during a trial was inappropriate.
However, while this type
of punishment appears unique and novel, this paper would not recommend it as the
best option.
3. Find the juror guilty of an offence
In New Zealand, there is currently no specific statutory offence of
breach of jury confidentiality. Nor is there any statutory offence
for jurors
undertaking their own research. However it has been suggested that given Judges
invariably direct juries not to carry
out any of this behaviour, offending
jurors could be prosecuted for failing to comply with judicial
directions.[76] There is further
discussion of this possible consequence for a juror under discussion of
potential preventative methods below.
IV.
Proposed Solutions
A Detecting the Problem Behaviour
A study conducted in the United Kingdom found that “when asked
about whether they would know what to do if something improper
occurred during
jury deliberations, almost half of the jurors (48%) said they either would not
know what to do or were
uncertain”.[77] This belies
the requirements in the Consolidated Criminal Practice Direction that judges
emphasise the jury’s collective responsibility
for trying the case. The
direction must make the jurors aware that it is their duty “to bring to
the judge’s attention,
promptly, any behaviour among the jurors or by
others affecting the jurors, that causes
concern.”[78] The Jury
Instructions in New Zealand contain a similar provision informing jurors they
are to tell court staff immediately if another
juror has inappropriate or
outside knowledge of the
trial.[79]
This duty thrust
upon jurors’ causes concern about the manner in which jurors deliberate
and the inefficacy of the process if
members of the jury are not relaxed. Thus
this paper will recommend two options that remove any undue pressure upon jurors
whilst
still providing channels for the court to detect misconduct.
1. Whistleblower hotline or email
As an alternative to an offence provision, or in association with it,
courts might create a hotline or email service that could be
used to report
cases of jurors accessing social media, or other prohibited
research.[80] The anonymous aspect
of the hotline may comfort jurors if they are worried that other people may find
out that they provided the
information.[81] A major potential
disadvantages with this approach is the risk that it might cause tension and
anxiety within the jury that could
inhibit frankness in deliberations. There
would also be administrative implications and costs involved, and a risk of
unnecessary
and malicious
reports.[82]
2. Review the jurors’ social media pages
Routine screening of the internet including social media is another
option to identify potentially prejudicial content and make an
application for
take down orders.[83] Given the
pervasiveness of the internet material, while understandably crucial to
undertake in high profile trials, it may be prudent
to undertake such monitoring
in all trials.[84]
This
screening could take place during both the trial and deliberation process.
However it raises issues of privacy, by effectively
compelling any juror to
provide information that would otherwise have remained private. It may also
dissuade members of the public
from undertaking jury service, which is not the
intention of these recommendations.
In addition the screening may fail to
detect material that may not obviously be prejudicial, but could still have the
potential to
influence jurors. For these reasons, screening on its own is
unlikely to be a full solution to the problem. Continuous monitoring
of social
media and the internet would be a time-consuming and expensive
exercise.[85]
B. Possible Preventative Methods
The following suggested methods to prevent jurors from inappropriately
using social media during the trial and deliberation process
can be categorised
in two generalised types: high interference or low
interference.[86] High interference
refers to those methods that would interfere greatly with a juror’s daily
life, contrasted with barely or
not interfering as seen with low interference
methods.[87] The preventative
methods discussed below attempt to spare the court wasted resources and decrease
the potential impacts discussed
above. Additionally, the paper’s focus in
this section is to recommend preventative measures most appropriate for the New
Zealand
Justice System.
1. Jury instructions
The current information written by the Ministry of Justice provided to
those serving as a juror contains three important
rules.[88] These state that the
juror must not talk about the trial to anyone not on the jury, or to anyone
connected to the trial other than
court staff. Nor are jurors to make their own
enquiries about the case. These rules are repeated throughout the document.
Mobile
phones and other communication devices are banned from the courtroom and
jury room.[89]
Removing juror
access to mobile phones and other communication devices in the courtroom is
unlikely to prevent juror research or dissemination
of material. Unless the jury
is sequestered for the length of the trial, or the trial is less than a day, it
will not prevent them
using such devices out of court sitting hours. Such
restrictions may also deter people from undertaking jury
service.[90]
In Australia,
the States and Territories have developed model directions. In New South Wales,
the Guide for Jurors includes a warning
to jurors not to use the internet to
research any matter related to the
trial.[91] The Victorian model
directions contain a warning against Internet usage, although like the NSW
directions, they do not specifically
require the judge to address the issue of
social media usage.[92] By way of
comparison, many of the United States directions contain explicit instructions
about social media. The Federal Judicial
Conference of the United States
Committee on Court Administration and Case Management released model jury
instructions.[93] The guidelines
provide detailed explanations of the consequences of social media use during a
trial, along with recommendations for
repeated reminders of the ban on social
media usage.
Studies conducted that have examined the efficacy of
judicial directions indicate that, in general, judicial directions have limited
effectiveness. This conclusion is consistent with the findings of the New
Zealand Law Commission’s 1999 study of
juries[94] and research conducted
for the United Kingdom Ministry of Justice in
2010.[95] The study in the United
Kingdom by Professor Cheryl Thomas, found that jurors admitted checking the
internet even when instructed
not to do so. Thomas found that written guidelines
were twice as effective as oral directions. These findings have been replicated
in
Australia.[96]
Irrespective
of a judicial direction to the contrary, research has demonstrated that jurors
are often unwilling, or even unable, to
set aside information that they regard
to be relevant. This has been termed “reactance” by researchers,
referring to
a reaction to rules that eliminates the freedom of jurors to decide
matters on their own common-sense view of
justice.[97] Similarly, increasing
incidents of reports of ‘online detective juror’ show that juries
will defy these instructions
if they consider they are lacking the necessary
information.[98]
One scholar
has suggested taking steps to facilitate a view of the court procedures as
‘less arbitrary and more reasonable’
to reduce feelings of
resentment and reactance, which this paper
endorses.[99] There are various
options to achieve this goal. A judge may provide an explanation behind the
reasoning why the decision of the jury
is to be based on evidence presented in
court and not extraneous information. Directions that place a strong emphasis on
procedural
fairness and the presumption of innocence may also be useful for
controlling the effects of
reactance.[100]
Placing
posters and other visual aids that state that jurors should not use social media
to be placed in the jurors’ deliberation
rooms may be a useful
reminder.[101] Additionally it
could be of particular use to jurors who learn visually or who did not pay
attention to a judge’s oral
instructions. This paper recommends that
this preventative method is implemented because it is of low interference and
low cost.
In addition, this paper recommends research be undertaken in
New Zealand to determine what form of written guidelines and judicial
directions
are most comprehensible to jurors and are most likely to be taken
seriously.[102]
2. Legislation
Another potential preventative method that could act as both a deterrence
and punishment would be for New Zealand to introduce legislation
similar to that
of the United Kingdom and Australia. Various statutes could be amended to
specifically deal with instances of internet
related juror misconduct,
potentially being held activity in contempt of court.
In the United
Kingdom, a variety of offences exist in statute and common law dealing with
misbehaviour arising out of participation
in jury service. Misuse of the
internet by a juror, or contravention of the contempt of court provisions in
section 8(1) of the Contempt
of Court Act 1981, is always a most serious
irregularity and contempt.[103] In
the context of a two year maximum custodial period, a custodial sentence is
virtually inevitable. The objective of such a sentence
is to ensure the
continuing integrity of trial by
jury.[104]
In Australia,
contempt of court as it affects superior courts exists in common law in much the
same form as it did in England and
Wales before the Contempt of Court Act, and
does not vary significantly among the
states.[105] In some states (New
South Wales and Victoria), there has been partial codification of the criminal
law, but both statutory and common
law offences, including contempt of court,
continue to exist outside the framework of those
Acts.[106] The remaining states,
led by Queensland in 1899, have adopted comprehensive criminal
codes.[107] To date no Australian
State has amended its respective jury act to state that if a juror writes on
social media about a trial prior
to delivering the verdict it is in contempt of
court.[108]
However it has
been argued that imposing punishment is contrary to the notion that jury duty is
a civic responsibility. Instead focus
should be given to encouraging and
supporting jurors to complete the process to the best of their ability. It has
also been suggested
that punishment may be counterproductive, in that other
jurors may be less likely to report juror misconduct if they know that this
might result in the jury member going to jail.
3. Sequestration
Sequestering a jury for the duration of the trial would provide another
method of restricting access to prejudicial material and preventing
jurors
disseminating material about the trial on social
media.[109] Section 29A(2) of the
Juries Act allows for a court or Judge to sequester a jury if it is considered
required in the interests of
justice.
However, this is not a commonly
used discretion and if used would be a significant change to how courts
currently operate. It is an
expensive and time-consuming option that is of high
interference and likely unpopular, given the restrictions it imposes on the
liberty
of jurors.[110]
Its
efficacy, for the purposes of deterring social media use by jurors, would also
depend on the court’s ability to arrange
so jurors were unable to access
electronic communication devices for the duration of their
confinement.[111]
Sequestering
jurors is likely the solution that would prove most effective in preventing
jurors inappropriately using social media
during a
trial.[112] However it is also the
solution likely to be the greatest interference to their lives, and one that
would greatly dissuade members
of the public from willingly undertaking jury
service. Jurors may resent being sequestered, and sequestration “has shown
a
tendency to reduce juror motivation, [and] yield
hasty
verdicts”.[113] For
these reasons sequestering jurors is not a recommended solution for New Zealand
courts.
4. Virtual sequestration
A similar preventative method is virtual
sequestration.[114] This would
allow jurors to return home, but permit the court to observe or block their
internet access.[115] This paper
does not recommend this preventative method. It would constitute a significant
violation of jurors’ privacy and
be of high
interference.[116] Additionally,
although potentially less costly than physical sequestration to the courts, it
would likely remain considerably costly
as the court would require information
technology professionals to implement
it.[117] Further, if information
technology professionals were required, these professionals would gain access to
jurors’ extremely
sensitive and personal information, putting considerable
pressure on the courts and the professionals to be highly
trustworthy.
Moreover, a juror may easily overcome this preventative
method by creating alternative social media accounts. Virtual sequestration
may
also affect those who share the same computer as the juror if internet access is
blocked, and hold no constraint over others
allowing the jurors to use their
personal devices.[118]
5. Scrutiny in the screening process of juror selection
Modifying the screening process of jurors to include questions of the
jury on their access to, and use of social media, could identify
any jurors
whose use of social media may cause problems before final
empanelment.[119] At the same
time, this affords the judge the opportunity to introduce to the jury the
problems that may arise from access to social
media during the course of the
trial, to be subsequently reinforced by judicial
instructions.[120]
Australian
research has considered and largely rejected greater scrutiny of jurors in the
selection process.[121] Judges,
academics and legislators in Australia and the United Kingdom, have been
critical of the use of the jury selection process
to detect juror bias largely
because of cost, delay and perceived
ineffectiveness.[122]
Unfortunately
dismissing potential jurors based upon judgements such as extensive use of
social media may result in juries that are
unrepresentative of the general
population.[123]
They may
be older and less capable of using
technology.[124] As it is
important to have juries that are representative of the general population, this
preventative method is not recommended
without further detailed
consideration.[125]
6. Expanded juror training
The introduction of a simple training session for jurors (individually or
as a group) would create an opportunity to reinforce prohibitions
on social
media use.[126] Appropriately
used, expanded training would facilitate understanding of, and reasons for,
these directions. This would ensure jurors
fully comprehend the scope of the
restriction of participation on social media use, allowing them to acknowledge
and agree to follow
the
restrictions.[127]
This is
highly recommended, as it is of low interference and acknowledges the need to
address jurors’ concerns as to comprehending
the judicial process. There
are currently various ways in which training could be introduced before
empanelment, or by expanding
the orientation process for empanelled jurors to
include training specific to social media use.
7. Judge-alone trial
Increasingly using judge-alone trials would have two great impacts on
this issue. It would defeat the risk of juror bias resulting
from exposure to
material on social media (either prior
to or during a trial) and by removing
jurors would offer a solution to the problem of dissemination of relevant
information to the
trial by
jurors.[128]
However the
concept of the jury trial has been part of the common law justice system since
the 14th century.[129] Its
foundation rests on the view that jurors serve an important function by enabling
community participation in the criminal justice
process to ensure that outcomes
reflect social values, and is still relevant
today.[130] Thus an increase in
judge-alone trials would diminish this role. There has also been judicial
criticism of judge alone trials particularly
for serious
crimes.[131] For these reasons
this is not a highly recommended preventative method.
8. Changing the jury model
A radical answer may lie in the concept of the ‘mixed jury’,
that is the “form of jury involves lay assessors sitting
alongside
professional arbitrators and reaching a verdict together. The professional
arbitrators may be trained jurors, assessors,
facilitators or
judges.”[132] Civil Law
countries have a long history of using mixed juries, with Japan recently
adopting this concept.[133] In
this model, the professional jury members would police the lay jury members
ensuring no inappropriate material was brought in
to deliberation gleaned from
own research or outside
exposure.[134] The professional
could also provide procedural guidance, potentially decreasing the risk and need
for jurors to turn to forbidden
sources of
information.[135]
There are
concerns about the use of mixed juries. Firstly the professional member or
members of the jury may exert, intentionally
or otherwise, undue influence on
the lay members.[136] Other
concerns relate to increasing costs remunerating professional jury members, and
to a risk that “professionalising”
the jury may undermine community
confidence in the jury system as a
whole.[137] This would also prove
a major change to trial by jury. As such it is not recommended as a viable
short-term solution, but may be
worthy of longer-term
investigation.[138]
9. Written warning or written oath
Another possible preventative method is to ensure that an additional
warning is given to jurors concerning social media in writing
and
orally.[139] Additionally jurors
could undertake an oath to acknowledge the instructions that the court provided
them.[140] This would act to
increase jurors’ knowledge about the instructions existence, and to
increase the potential seriousness of
how a court perceived a juror’s
actions if they subsequently used social media
inappropriately.[141]
This
is a relatively easy, low interference method to compel jurors to consider
sincerely the court’s instructions. The warning
or oath may cause the
jurors to take the instructions more seriously and be more likely to remember
them if they see them in writing
and swear to uphold
them.[142] However, it may not be
sufficient to prevent the problem entirely and would only be recommended if
combined with other methods.
The purpose of this paper was to recommend methods to prevent
inappropriate social media use in our courts best suited for implementation
in
New Zealand. The courts need to find the appropriate balance, in order to
protect the administration of justice, while not invading
jurors’ privacy,
personal rights and freedom of information. Approaches to the issue should
prevent social media use in the
courtroom, deliberation room and impact on
jurors’ behaviour outside of court. The limitations should also not
dissuade members
of the public from jury
participation.[143]
The
preventative methods recommended are improved jury instruction and the expansion
of juror training. These options are the least
invasive on jurors’ rights
while focusing on educating jurors about the importance and necessity of
appropriate behaviour during
a trial. In balance, the ease of implementation and
potential for immediate positive results are appealing for court
administration.
It is crucial that New Zealand Courts actively address
the issues mentioned in this paper. The New Zealand Law Commission is
undertaking
a wide-ranging review of New Zealand’s contempt
law.[144] This reassessment
includes consideration of the rules governing the conduct of jurors and the
circumstances in which contempt proceedings
could be brought against jurors and
the type of penalties that could be imposed. It would be advisable for the Law
Commission to
consider social media use by jurors as part of this
review.
Research should be undertaken to consider the practicalities and
implications of implementing the methods discussed in this paper,
and means of
keeping abreast of technological advances while maintaining the integrity of the
court.
[1] United Kingdom Law Commission Contempt of Court (Consultation Paper 209, 2012) at 63.
[2] Attorney-General v Fraill [2011] EWCA Crim 1570, [2011] 2 Cr App R 21 at [29].
[3] Andreas M Kaplan and Michael Haenlein “Users of the world, unite! The challenges and opportunities of Social Media” (2010) 53 Business Horizons 59 at 61.
[4] Jane Johnston and others Juries and Social Media: A report prepared for the Victorian Department of Justice (Standing Council on Law and Justice, April 2013) at 2.
[5] Neilson “State of the Media: The Social Media Report 2012” (4 December 2012) <www.nielson.com>,
[6] Brian Grow “As Jurors Go Online, U.S. Trials Go Off Track” (8 December 2010) Reuters
<www.reuters.com>.
[7] Marilyn Krawitz “Guilty As Tweeted: Jurors Using Social Media Inappropriately During the Trial Process”
(Faculty of Law Research Paper No 2012-02, University of Western Australia, 2012) at 3.
[8] Cheryl Thomas Are Juries Fair? (Ministry of Justice, Research Series 1/10, February 2010).
[9] United Kingdom Law Commission, above n 1, at 62.
[10] Facebook “Key Facts” (June 2013) <newsroom.fb.com>. For example, there were 699 million daily active users on average in June 2013.
[11] Laura Whitney Lee “Comment: Silencing the ‘Twittering Juror’: The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age” (2010) 60 DePaul L Rev 181 at 189.
[12] Jaclyn Cabral “Is Generation Y Addicted to Social Media” (2011) 2(1) The Elon Journal of Undergraduate Research In Communications 5 at 12.
[13] Leslie Ellis “Friend or Foe? Social Media, the Jury and You” (2011) 23(5) The Jury Expert 1 at 4.
[14] Paula Hannaford-Agor “Google Mistrials, Twittering Jurors, Juror Blogs, and Other Technological Hazards”
(2009) 24(2) The Court Manager 42 at 22.
[15] Miland F Simpler III “Student Article: The Unjust ‘Web’ We Weave: The Evolution of Social Media and its Psychological Impact on Juror Impartiality and Fair Trials” (2012) 36 Law & Psychology Review 275 at 286.
[16] Roxanne Burd and Jacqueline Horan “Protecting the right to a fair trial – has trial by jury been caught in the world wide web?” (2012) 36 Crim L J 103 at 113.
[17] Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC) at 51.
[18] United States v Siegelman 640 F 3d 1159 (11th Cir 2011) at 1186.
[19] Solicitor-General v Radio New Zealand Ltd, above n 17, at 51.
[20] At 51.
[21] At 53.
[22] Attorney-General v Fraill, above n 2, at 62.
[23] David Harvey “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” (paper presented at
13th International Criminal Law Congress, Queenstown, 13 September 2012).
[24] Caren Myers Morrison “Jury 2.0” (2011) 62 Hastings L J 1579 at 1600.
[25] Solicitor-General v Radio New Zealand Ltd, above n 17, at 53.
[26] Solicitor-General v Radio New Zealand Ltd, above n 17, at 55.
[27] Law Commission “Law Commission Comments on Juror Contempt” (Press Release, 12 July 2013).
[28] Johnston and others, above n 4, at 3.
[29] R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5 at [24]- [25].
[30] The Rt Hon The Lord Judge, Lord Chief Justice of England and Wales “Jury Trials” (Judicial Studies Board
Lecture, Belfast, 16 November 2010) at 7.
[31] Thaddeus Hoffmeister “Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age” (2012) 83 U Colo
L Rev 409 at 417.
[32] Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [18].
[33] At [23].
[34] Article 19(3).
[35] New Zealand Bill of Rights Act 1990, s 3(a).
[36] R v Forbes [2000] UKHL 66; [2001] 1 AC 473 (HL) at [24].
[37] Siemer v Solicitor-General, above n 32, at [22].
[38] Solicitor-General v Wellington Newspapers Ltd [1994] NZHC 1740; [1995] 1 NZLR 45 (CA).
[39] Ken Strutin “Jury Deliberations in the Digital Age” (20 May 2009) New York Law Journal.
[40] Pat Collins “Prospective Juror Tweets Self Out of Levy Murder Trial” NBC Washington (online ed, Washington, 22 October 2010).
[41] Ministry of Justice “Jury Service” (Courts 099, September 2010) <www.justice.govt.nz> at 6.
[42] Ned Potter “Facebook Mistake: Texas Juror Tried to ‘Friend’ Defendant” ABC News (online ed, 30 August 2011).
[43] Attorney-General v Fraill [2011] EWCA Crim 1570, [2011] 2 Cr App R 21.
[44] Paul Lambert Courting Publicity: Twitter and television cameras in court (Bloomsbury Professional, West Sussex, 2011) at 38.
[45] Grow, above n 6. See now Courts and Other Legislation Further Amendment Act 2013 (NSW).
[46] Johnston and others, above n 4, at 11.
[47] Brian Fitzgerald, Cheryl Foong and Megan Tucker “Web 2.0 social networking and the courts” (2012) 35
Aust Bar Rev 281 at 290.
[48] Kathryn K Van Namen “Comment: Facebook Facts and Twitter Tips – Prosecutor and Social Media: An Analysis of the Implications Associated with the Use of Social Media in the Prosecution Function” (2012) 81(3) Miss L J 549.
[49] Grow, above n 6.
[50] Anne Susskind “Technology undermines jury system, as does complexity” (2011) 49(9) LSJ 20.
[51] Marcy Zora “Note: The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affect a
Defendant’s Sixth Amendment Rights” (2012) 2 U Ill L Rev 577 at 596.
[52] At 579.
[53] Urmee Khan “Juror dismissed from a trial after using Facebook to help make a decision” The Telegraph
(online ed, London, 24 November 2008).
[54] Lorana Bartels and Jessica Lee “Jurors using social media in our courts: Challenges and responses” (2013) 23
JJA 35 at 43.
[55] Dominic Grieve, Attorney General United Kingdom “Trial by Google? Juries, social media and the internet”
(speech to University of Kent, University of Kingdom, 6 February 2013). See also Harvey, above n 23.
[56] Attorney-General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991. In that case, a 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.
[57] Grant Amey “Student Commentary: Social Media and the Legal System: Analysing Various Responses to Using Technology from the Jury Box” (2010) 35 J Legal Prof 111 at 119.
[58] Attorney-General v Fraill, above n 2, at 54.
[59] Uli Orth “Secondary Victimization of Crime Victims by Criminal Proceedings” (2002) 15(4) Social Justice
Research 313 at 314.
[60] Emily M Janoski-Haehlen “The Courts are All a ‘Twitter’: The Implication of Social Media Use in the Courts” (2011) 46 Val U L Rev 43 at 49.
[61] Krawitz, above n 7, at 50.
[62] Grow, above n 6.
[63] Daniel William Bell “Note: Juror Misconduct and the Internet” (2010) 38 Am J Crim L 81 at 86.
[64] Meghan Dunn Jurors Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management (Federal Judicial Center, November 2011) at 35.
[65] Krawitz, above n 7, at 50.
[66] Krawitz, above n 7, at 51.
[67] Folbigg v R [2007] NSWCCA 371.
[68] State of Maryland v Dixon (Circuit Court, Baltimore City, Maryland, 109210015, 21 December 2009).
[69] R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5.
[70] Benbrika v The Queen [201] VSCA 281.
[71] Krawitz, above n 7, at 39.
[72] Bartels and Lee, above n 54, at 46.
[73] Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, (2012) 293 ALR 384; News Digital Media Pty Ltd v Mokbel [2010] VSCA 51, (2010) 30 VR 248.
[74] Krawitz, above n 7, at 41.
[75] Krawitz, above n 7, at 42.
[76] Criminal Procedure Act 2011. See ATH Smith “Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper” (2011).
[77] Thomas, above n 8, at 40.
[78] United Kingdom Ministry of Justice The Consolidated Criminal Practice Direction (28 March 2006). See also R v Lambeth [2011] EWCA Crim 157 at [7].
[79] Ministry of Justice, above n 41, at 7.
[80] Krawitz, above n 7, at 38.
[81] At 38.
[82] Janoski-Haehlen, above n 60, at 49.
[83] Jacqueline Horan Juries in the 21st Century (Federation Press, Annandale (NSW), 2012) at 165.
[84] At 165.
[85] Burd and Horan, above n 16, at 165 – 166.
[86] Krawitz, above n 7, at 12.
[87] At 12.
[88] Ministry of Justice, above n 41, at 6.
[89] At 9.
[90] Bartels and Lee, above n 54. Members of the public may require access to a communication device at all times for reasons including family circumstances or work requirements. Although arrangements could be made with the court, it is unlikely to be wholly satisfactory.
[91] Judicial Commission of New South Wales Criminal Trial Courts Bench Book (Judicial Commission of New South Wales, Sydney, 2012) at [1-520].
[92] Judicial College of Victoria Criminal Charge Book (Judicial College of Victoria, Melbourne, 2010) at 1.5.2.
[93] Judicial Conference Committee on Court Administration and Case Management Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research On or Communicate About a Case (June 2012).
[94] Young, Cameron & Tinsley Juries in Criminal Trials: Part Two (NZLC PP37, 1999).
[95] Thomas, above n 8.
[96] Jill Hunter, Dorne Boniface and Donald Thomson “What Jurors Search For and What They Don’t Get”
(UNSW Pilot Jury Study, Law & Justice Foundation, Sydney, 2010).
[97] Jack W Brehm A Theory of Psychological Reactance (Academic Press, New York, 1966) at 378.
[98] Horan, above n 83, at 167.
[99] Lisa Eichhorn “Social Science Findings and the Jury’s Ability to Disregard Evidence under the Federal Rules of Evidence” (1989) 52 LCP 341 at 353.
[100] At 353. “Such an explanation would eliminate some of the conflict experienced by jurors... and [they would be] less likely to view their options as limited” and as a result they would view the court procedures as “less arbitrary and more reasonable”.
[101] Krawitz, above n 7, at 35.
[102] Thomas, above n 8, at ix.
[103] Attorney-General v Dallas, above n 56.
[104] Attorney-General v Fraill, above n 2, at [53]; Attorney-General v Dallas, above n 56, at [43].
[105] Under the Australian Courts Act 1828 (UK).
[106] Crimes Act 1900 (NSW); Crimes Act 1958 (Vic).
[107] Criminal Code Act 1913 (WA); Criminal Code Act 1924 (Tas); Criminal Law Consolidation Act 1935 (SA); Criminal Code Act (NT); Criminal Code Act 2002 (Act).
[108] Krawitz, above n 7, at 43.
[109] Johnston and others, above n 4, at 22.
[110] Ralph Artigliere, Jim Barton and Bill Hahn “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Journal 8.
[111] Johnston and others, above n 4, at 22.
[112] Hoffmeister, above n 31, at 441.
[113] Simpler III, above n 15, at 288
[114] Hoffmeister, above n 31, at 442.
[115] At 442.
[116] At 442.
[117] At 442.
[118] Krawitz, above n 7, at 16.
[119] Amey, above n 57, at 127.
[120] Johnston and others, above n 4, at 23.
[121] At 23.
[122] At 23.
[123] Zora, above n 51, at 596.
[124] At 596.
[125] At 597.
[126] Johnston and others, above n 4, at 23.
[127] Sarah Tanford and Steven Penrod “Social Inference Processes in Juror Judgements of Multiple-offense Trials” (1984) 47 Journal of Personality and Social Psychology 749.
[128] John Fairfax v District Court [2004] NSWCA 324 [65] per Spigelman CJ.
[129] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541.
[130] The Rt Hon The Lord Judge, Lord Chief Justice of England and Wales “Jury Trials” (Judicial Studies Board
Lecture, Belfast, 16 November 2010) at 1.
[131] R v Marshall (1986) 43 SASR 448 (SC) at 497.
[132] Burd and Horan, above n 16, at 122.
[133] At 122.
[134] At 120.
[135] At 120.
[136] At 119.
[137] At 120.
[138] At 120.
[139] Krawitz, above n 7, at 33.
[140] Hoffmeister, above n 31, at 457.
[141] At 457.
[142] Krawitz, above n 7, at 33.
[143] Justin Whealing and Stephanie Quine “Trial and Error: AIJA Spotlights Holes in Criminal Justice System”
Lawyers Weekly (Online ed, Australia, 14 Sept 2011).
[144] Law Commission “Law Commission Commences Review of Contempt of Court” (Press Release, 10 April
2013).
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