Are “Googling” Jurors Juggling Justice?

Adam McCabe LL. B (Hons) Dip. LP
November 14, 2013

The writer is a trainee solicitor with a commercial law firm in Scotland but that this article is not affiliated with the firm in any way, does not constitute legal advice and any opinions expressed or errors made are his alone.

Are “Googling” Jurors Juggling Justice?

Adam McCabe LL. B (Hons) Dip. LP

The recent phenomenon of the so-called “Google Mistrial” is a particularly 21^st century threat, or perceived threat, to the integrity of the trial by jury system. In today’s “wi-fi” society even the less computer literate of us are capable of punching a name into a search engine. We have and now expect immense amounts of information at our fingertips. The fundamental principle of any trial by jury, however, is that they must decide the case solely based on the evidence brought before them. The reliability and indeed admissibility of evidence must be tested in court. If juries decide cases by what they find on Wikipedia (on which see R v McDonnell [2010] EWCA Crim 2352), or from internet forums where innuendo, rumour and outright falsity are often presented as fact, then the risk of unfairness and injustice is real. A court might not even know if external material has infiltrated a jury, or if a “rogue” juror has contaminated the minds of his fellow jurors with ill-gotten information, because analysing how juries actually come to their verdicts is forbidden in the UK under the Contempt of Court Act 1981. The reasons for this are sound, at least in theory. As Justice Cardozo pronounced in 1933, “(f)reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.” (Clark v United States 289 U.S. 1, 13 (1933))

In the digital age is it realistic, or even possible, to envisage a law which positively ensures that a juror does not conduct their own online investigation into the circumstances of the case or the background of the accused party – and in so doing potentially commit contempt – on their own computer in their own home? The traditional methods of insulating a jury from the outside world, like sequestering them in a hotel out of town for every minute they are not in the courtroom (a la a John Grisham legal thriller) is hardly a practical or proportionate means of blocking out the internet, not to mention it being a clear indication that a judge has no trust in his or her jury. There is also the fact of human nature that a determined individual will find a way of getting what they want somehow, perhaps more so if they are suspicious that information is being kept from them. Tracking a juror’s every move online, another way of monitoring what they see, would surely also be massively disproportionate, obscenely invasive of privacy and inordinately impractical.

The way of dealing with the risk has often been by judges electing formally to direct their juries neither to seek further information nor to contact any involved parties over social media. Formal written instructions to this effect should arguably be par for the course by now, given the popularity of portable devices with internet access, and not left to the discretion of a particular judge in a particular case. If judges were to present their juries with written warnings that, even if innocently pursued, embarking on online forays was potentially in contempt of court and that they should not be using social media throughout a trial (and, more importantly, why they should not) then the risk might be minimised.

Various preventative and punitive measures have been taken by courts in the United States in light of a spate of incidents of juror misconduct. On the scale of perceived unfairness to an accused party, incidents have ranged from foolhardy “tweets of habit” by jurors during trials through to regularly blogging about the happenings of a particular trial. Remarkably, some defendants and witnesses have even been “friended” on Facebook by jury members. Trials have been abandoned, jurors have been removed or prosecuted and court guidelines have been strengthened. The American College of Trial Lawyers has argued for jurors to sign a Statement of Compliance in advance of hearing their trial, in which they pledge not to conduct independent research on any of the issues of or parties involved in the trial and not to communicate with anyone or let anyone communicate with them about the trial. A courtroom ban on iPhones and the like might stop the instances of jurors tweeting during trials or when considering a verdict but, as some have argued (see Lisa Gillespie, “The jury and the internet”, 2012 Scots Law Times 127) it could seriously inconvenience those jurors who need to contact family or friends, say, to arrange child care. In any case, prohibiting access to communication devices would be ineffective against jurors once they return home.

Illustrative cases in the UK have also been legion. There was the juror removed from a trial in 2008 after publicising case details online and running a poll on her Facebook account to ask friends whether or not they thought the defendant was guilty, “as I don’t know which way to go”. More recently a juror was jailed under the Contempt of Court Act 1981 for interfering with the administration of justice after posting on a social network a strongly-worded message about the accused. Another was jailed in 2011 for causing a trial to collapse by contacting a defendant on Facebook.

It is easy to overlook the point that not every juror looking for more information on their trial has a hidden agenda. Moreover, not every juror is incapable of discerning fact from fiction, or credible evidence from untested and unreliable information. Would it be better to admit all external information and expose it to rigorous examination in court rather than risk a curious jury member hunting for it in his or her own time? We ultimately need trust in our system; the trust at present is that jurors only take account of what evidence is put before them. No preconceived suspicions, biases or personal investigations into the case facts or participants should colour that, and certainly not information unearthed online – often irrelevant, inaccurate or even false. Removing all access to technology for anyone involved in a trial, however, would be impractical and doesn’t account for the incidences of courtroom tweeting which have turned out to be lacking in any risk of substantial prejudice. Giving robust directions to jury members as to their responsibilities and conduct regarding the internet as a matter of course would seem a logical step forward. Five hundred million Tweets are posted daily on Twitter, and Facebook now has over 1 billion users. Social media is firmly entrenched as part of our daily lives. This is the information age. Are all “googling” jurors actually obstructing justice? Will this issue only get worse as technology develops further? At present it would seem that the jury, if you’ll forgive the analogy, is still out on this one.

Image credit: Louis K on Flickr