20 November 2012


The 62 page 'Guilty as Tweeted: Jurors Using Social Media Inappropriately During the Trial Process' (UWA Faculty of Law Research Paper No. 2, 2012) by Marilyn Kravitz comments that
Social media is ubiquitous, millions of people use it worldwide. However, some of these people (albeit a small proportion) are jurors. If jurors use social media during a trial inappropriately, it can have devastating repercussions to an accused’s right to a fair trial. For example, the juror’s impartiality may be affected. This article examines why jurors use social media inappropriately. It also provides recommendations tailored to the Australian courts about how to prevent jurors from using social media inappropriately and how to contend with the relevant juror. Given the high number of Australians that use social media, the courts should seriously consider this issue.
She begins with the statement -
Picture this: you are a criminal lawyer. You worked night and day for several months to represent your client, who was charged with conspiracy to supply heroin and conspiracy to supply amphetamines. Eight co-accuseds were also charged with similar offences. At the beginning of the trial, the judge instructed the jury not to use the internet to read about anything connected with the trial. He also instructed them to base their verdict on the information that they hear in court and nothing else. The judge repeated these instructions consistently during the trial.
The jury subsequently deliver verdicts for some of your client’s co-accuseds: some are found guilty and some are found innocent. A verdict has not yet been delivered for your client. You then receive some startling news: one of the jurors in the trial chatted with a co-accused who was found innocent yesterday. Their conversation occurred entirely on Facebook messenger and they discussed the trial.
You are outraged on behalf of your client about what the juror did. You are left wondering about what you should do as a result of the juror’s actions. You also wonder what the Court will do when it finds out.
The above scenario is based on a real trial in the United Kingdom: Attorney-General v Fraill. In this case, the court sentenced the juror to eight months imprisonment as a result of her using social media inappropriately. ....
Juror misconduct due to inappropriate use of social media is an old problem in a new form. Historically, if a judge told jurors not to discuss their case, then there was little chance that a juror would be caught talking to others about it. However, social media is different. Many people, including jurors that use social media, treat social media as if it were their own personal and confidential conversation with another person or people. However, in reality, their social media use can be broadcast to a very large audience. According to Niehoff, ‘the faux intimacy of social media seduces users into believing that their communications are like hushed confessionals when they are actually more like full-throated shouts.’
There are over a dozen cases of jurors using social media inappropriately in the United States, two in the United Kingdom and one in Australia, as of the date of this article. It is possible that many jurors are inappropriately using social media in Australia, but the courts do not know about it because no one is reporting it. Alternatively, if they are not, it is highly likely that jurors will use social media inappropriately in the future due to the high number of Australians that use social media. For example, eleven million Australians use Facebook. Nine million Australians visit the site weekly and over 7 million visit it daily. The most popular Australian on Twitter is former Prime Minister and former Foreign Minister Kevin Rudd: over a million people follow him. Further, various Australians recently announced that they intend to research the area of social media and the courts. Researchers from three Australian universities, Bond University, Monash University and the University of Canberra, seek funding from the Australian Research Council to research social media and the courts. The Victorian Attorney General, Robert Clark, announced that he will create a working group to find solutions to the availability of information prejudicial to an accused on social media. The group will include people working in social media, the police and judicial officers.
The purpose of this article is to explore the current knowledge surrounding jurors using social media inappropriately. After a short description of the history of the jury and the principles underlying it, this article will explore the problems associated with jurors using social media inappropriately. It will then explore why jurors engage in this form of misconduct, along with recommendations about how to prevent this form of misconduct from occurring. The article will also examine how the courts should contend with the juror and the trial itself when it discovers that a juror used social media inappropriately.