International Writing Competition 2018 overall runner-up article, for the category: Global Public Impact.
In modern society, mobile Internet access has overcome traditional hurdles to information. An expanse of information is literally now at one’s fingertips: you need only Google it. The Dewey Decimal system is a thing for the niche of book aficionados. Moreover, with 3G and 4G networks, users are no longer restricted by want of the Wi-Fi password. People are able to access the internet from almost anywhere. And the courtroom, or more properly the jury room, is no exception.
In 2013, juror Kasim Davey (21) was jailed for two months after he wrote what the BBC described as a “strongly-worded Facebook message during the trial of a man for sexual offences”1. In a separate case, juror Joseph Beard (29) was also jailed for two months after he had researched the case on Google and shared the information with fellow jurors. In both cases the jury was discharged and a retrial was needed.
Leaving the cost of a retrial to one side, juror online misconduct impinges on the defendant’s right to have a fair and expedient trial. The concept of a fair trial is fundamental in any criminal justice system. Fairness manifests itself in the basic principle that a criminal defendant’s innocence or guilt must be determined from the evidence in court; it is not for the jury to do its own research outside of the courtroom2.
The jury has a limited and clearly defined role at trial. Its primary role is that of a fact-finder. Throughout this role, the jury must remain impartial and independent, that is, uninfluenced by any person. Jurors also have an obligation to keep statements made in the jury room confidential. This is to facilitate robust discussions during jury deliberations.
Juror online misconduct can be summarised as follows: information being fed in and information leaking out. The first is like the case of Joseph Beard; it is about the jury doing its own research about the case online, that is, bringing information in. This undermines the defendant’s fundamental right to a fair trial, that is, being tried on the evidence presented in court. The second is like that of Kasim Davey; it is about the jury taking information out of the jury room. This latter category of misconduct undermines the confidential nature of jury deliberations, potentially inhibiting the free-flow of information. Moreover, in communicating with the “outside world” about the case, the juror exposes themselves to external advice and opinions. This undermines the juror’s independence.
So, what is being done about these misfit jurors? The current regime regarding juror online misconduct is threefold.
First, there is the prophylactic approach. The aim is to prevent the misconduct in the first place. On the first day of jury service, the Judge will instruct the jury as to pre-trial biases and the importance of deciding on the evidence put before the court. Here, the Judge will instruct the jury not to conduct its own research on the Internet or to discuss trial matters with nonjury members. Included in the instructions is a warning that should a juror engage in such misconduct, they may be punished for contempt of court.
This brings us to the second approach: the penal, or deterrent, approach. Unlike the prophylactic approach, this approach is reactive rather than proactive: it is a response to misconduct that has already occurred. Included in this category is punishment for contempt of court. This includes imprisonment, as was the case for Davey and Beard.
Finally, there is the remedial approach. Again, this is a responsive measure. The aim is to preserve the defendant’s right to a fair hearing. Possible actions are the removal of a juror or calling for a retrial where the juror’s misconduct has compromised a fair verdict.
Underlying the three-tier mechanism is the assumption “that access to Internet information that may have bearing on the trial is automatically going to prejudice the fair trial right [of] the accused”3.
However, the veracity of this assumption in modern society is questionable. Internet access is prevalent in our society, and mobile devices are so integral in human life that it is now almost a part of our anatomy. In an age where we share images of our meals with the world, it is perhaps unrealistic to expect jurors to leave their phones at the door so to speak. Consequently, the assumption of Googling jurors automatically prejudice a trial is archaic.
A more nuanced approach is needed. The approach of the Fourth Circuit Court of Appeals in United States v Lawson is instructive4. Here, a juror was found to have breached judicial instructions where they carried out a Wikipedia search to ascertain the definition of a term. The Court’s approach was as follows. First, there is a presumption of prejudice where juror conducts outside research5. Secondly, there is a multifactorial balancing test6. The relevant factors are7:
(a) The importance of the word or term that the juror sought clarification of.
(b) The extent to which the definition diverges from the judicial directions.
(c) The extent to which the jury has discussed the outside research and the emphasis placed on it.
(d) The strength of the evidence, including its significance on the jury’s verdict.
(e) Any other prejudicial factors.
Such a nuanced approach is desirable as it retains protections for the defendant’s right to a fair trial, but also recognises the reality of modern society and Internet-usage. Whilst the jury should be discouraged from conducting its own Internet research, the mere fact of research should not lead to a retrial.
By Jae Jun Kim, University of Auckland (New Zealand)
1 “Jurors jailed for contempt of court over internet use” BBC News (United Kingdom, 29 July 2013).
2 Attorney-General v Fraill  EWCA Crim 1570,  2 Cr App R 21 at .
3 David Harvey “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” (2014) NZ L Rev 203 at 216.
4 United States v Lawson 677 F 3d 629 (4th Cir 2012); and David Harvey, above n 3, at 230.
5 This presumption was articulated in Remmer v United States 347 US 227 (1954) at 229.
6 This test was articulated in Mayhue v St Francis Hospital of Wichita 969 F 2d 919 (10th Circuit 1992).
7 Lawson, above n 4, at 646.