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Jurors and social media: is there a solution?

By johnboy - 31 July 2013 10

jury

By Lorana Bartels, University of Canberra

actually excited for jury duty tomorrow…it’s gonna be fun to tell the defendant they’re GUILTY 😛 – Facebook post, 2010

Guilty guilty…I will not be swayed. Practicing [sic] for jury duty. – Twitter post, 2010

These are just two examples from the United States of jurors apparently prejudging the outcome of a criminal trial and communicating that fact on social media.

In 2010, a juror in Victoria posted on Facebook that “everyone’s guilty”. The conduct was discovered early on in the trial and the jury was discharged, with the juror referred to Victoria Police for breaching the Juries Act (2000).

But is social media use by jurors really that much of a problem? And what provisions can be put in place to ensure the continued fairness of the justice system?

Current data

There is no clear data on the use of social media by Australian jurors during trial and deliberations, although it has been described as “the elephant in the room”.

There are over 12 million active Facebook accounts in Australia, and over two million Twitter and four million LinkedIn users.

With so many social media users in Australia and the availability of mobile internet, it is easy for people to instantly access their social media accounts anytime or anywhere. Over 45,000 Australians are estimated to perform jury service each year, and as such it is highly likely that many jurors are social networkers.

What are the impacts?

There are four main ways jurors may use social media inappropriately. They can publish or distribute information about the trial; they can learn information about the case from a source outside of the court – which could increase applications to stay permanently the prosecution of criminal charges, and applications to terminate trials already underway.

In addition, jurors can contact parties, witnesses, lawyers or the judge in the trial; and discuss the merits of the case or seek opinions from other people.

At stake is the defendant’s right to a fair trial and confidence in the administration of justice. The cost implications are also significant: it is estimated that there were in excess of 4300 jury trials in Australia in 2011-12, and based on costs in NSW, the national cost of jury trials would be over A$240 million.

What can be done about it?

In cases where courts detect instances of inappropriate social media use by jurors, they may elect to dismiss the juror or jury panel, or find the juror guilty of an offence. However, a recent report commissioned by the Standing Council on Law and Justice found that:

…the apparent reluctance of courts to refer cases of juror research for prosecution is perhaps indicative of a view that jurors should not be punished where they are genuinely trying to do their best.

In this context, prevention is certainly better than the cure. The report recommended that there should exist “don’t research” directions for jurors, and that these directions should specifically refer to social media, explaining why jurors should refrain from doing their own research and the consequences of doing so.

The report also recommended research be undertaken with jurors as to the form of guidelines “most likely to be taken seriously”. Finally, they recommended that jurors receive training when they are empanelled.

In addition, our research advocates exploring options to make it easier for jurors to notify the courts about their fellow jurors’ social media activity, ensuring ongoing judicial education about the issue and possible responses to it, and requiring jurors to sign a document promising not to use social media to discuss the trial or deliberations. On the last recommendation, it is noted that:

…jurors may take the instructions more seriously and they may be more likely to remember them if they see them in writing and promise to uphold them.

We do not support removing electronic devices from jurors as already occurs in some jurisdictions. This measure may cause people to be less willing to serve on juries. A more nuanced approach is required, which recognises that jurors may use social media for some things but not others.

Overall, social networking by jurors provides a novel challenge to the administration of justice and can have a significant impact on a defendant’s right to a fair trial. As technology changes and social media sites grow in popularity, courts will continue to face the challenge of adopting new rules to address the problems created by such technology.

The courts need to find the appropriate balance between protecting the administration of justice and respecting jurors’ privacy, personal rights and freedom of information, as well as ensuring that members of the public are not dissuaded from participating in a vital part of the justice system.


This article was co-authored with Jessica Lee, BCom LLB(Hons), of Legal Aid ACT.

Lorana Bartels receives funding from the Australian Research Council.

The Conversation

This article was originally published at The Conversation.
Read the original article.

[Photo by Crunchy Footsteps CC BY 2.0]

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10 Responses to
Jurors and social media: is there a solution?
Henry82 1:08 am 01 Aug 13

Lookout Smithers said :

You get a rewarding opportunity to partake in something that keeps the standard of living high so that those who like to earn lots of money and tell people about it can continue to do so.

“opportunity” is an interest word choice for something that is compulsory and doesn’t provide any personal benefit. In fact, i’d consider it a punishment.

How exactly does participating in Jury Duty keep the “standard of living high” and allow me to continue earning “lots of money”. Forced to leave work to “earn” less than half my daily wage isn’t helping either cause.

Aeek 10:06 pm 31 Jul 13

As people increasingly research their personal choices online, to ask jurors to make decisions in an increasingly alien manner is interesting.
Does being unable to problem solve in your normal manner ==> beyond reasonable doubt?

Lookout Smithers 9:46 pm 31 Jul 13

Henry82 said :

Lookout Smithers said :

Everyone is intended to benefit.

How does one benefit when they are forced to leave their job to be paid significantly less than what they would normally earn?

You get a rewarding opportunity to partake in something that keeps the standard of living high so that those who like to earn lots of money and tell people about it can continue to do so. I served in NSW in 2003 and was paid exactly what I was earning at my job at the time. Money won’t keep you safe pal, but the law will.

Henry82 9:02 pm 31 Jul 13

Lookout Smithers said :

Everyone is intended to benefit.

How does one benefit when they are forced to leave their job to be paid significantly less than what they would normally earn?

Lookout Smithers 7:38 pm 31 Jul 13

Bundah you now really have just shown that you don’t understand even the basic principals of law. Its already a selective process you idiot. More over little guy, the law is designed to serve all people. Get it? Its designed by the people, for the people. All people. Even half wits like you and hardened crims inside. Everyone is intended to benefit. Isn’t it a nice feeling to have cohesiveness in the community. Nice warm feeling. xx

Pork Hunt 6:01 pm 31 Jul 13

One assumes that jurors are told what the rules are within nano seconds of being selected. How hard can it be ffs?

harvyk1 4:29 pm 31 Jul 13

Personally I don’t see why it can’t become an actual job, one that anyone can become. Since there is already no pre-reqs to become a juror, I don’t see why a “professional juror” would require any special training (apart from the obvious which they already give direction on).

I know that there is an argument that it could leave judges with too much power and not enough oversight, but those who feel that way can be the first to sign on.

bundah 4:04 pm 31 Jul 13

The time has come to be selective as to whom is called up for jury duty.Perhaps we could have a pool of professional jurors who would be interested in making themselves available for casual jury duty.

IrishPete 3:44 pm 31 Jul 13

I think I recall reading somewhere of a juror becoming facebook friends with the defendant, during the trial. http://www.abc.net.au/news/2011-06-15/juror-admits-contacting-defendant-via-facebook/2758694

Professional juries have some merit, but don’t tick the box of being judged by a jury of your peers. Unless you are a Peer perhaps. Mind you, Magistrates conduct most trials, and they are professionals (except in jurisdictions that still use one or a panel of lay magistrates (i.e. JPs). And many defendants opt to judge-only trials, especially in the ACT where they perceive judges to be a pushover.

IP

harvyk1 1:08 pm 31 Jul 13

Really what do the expect? They get a bunch of people with no real training often against their will despite themselves having committed no crime, and then tell them to sit through something which they may or may not take an interest in whilst putting the rest of their lives on hold.

Personally I think the idea of Jury Duty without it been either an opt in or at least an opt out system to be a system which is prone to error, and that social media is only the tip of this iceberg.

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