27 July 2013

Jurors and Social Media

'Jurors Using Social Media in Our Courts: Challenges and Responses' by Lorana Bartels and Jessica Lee in (2013) 23 Journal of Judicial Administration 35-57 considers the use of social media by jurors during the trial and deliberation processes.
The article presents examples of such conduct from Australia, the United States and the United Kingdom. The article considers research on why jurors use social media, and discusses the likely prevalence of the issue. The article then discusses the risks this conduct presents to the defendant’s right to a fair trial and the administration of justice generally. Possible solutions are examined, including banning telecommunication devices, requiring jurors to take an oath and developing specific jury instructions. Research on the effectiveness of jury instructions is reviewed, and future directions for research, policy and practice noted.
The article is cited in the recent Juries and Social Media [PDF] report for the Standing Council on Law and Justice by Jane Johnston, Patrick Keyzer, Geoffry Holland, Mark Pearson, Sharon Rodrick and Anne Wallace. 

The report comments that
It is a fundamental principle of law that an accused has a right to a fair trial. An incident of this right is that information relating to prior convictions of an accused should not be made available to the jury as it may bias their verdict. In our legal system, this principle has traditionally been underpinned by the common law offence of sub judice contempt of court. It is also reinforced by legislation, in each State and Territory, which makes it an offence for a juror to enquire about a person who is a party to a trial or any matter relevant to a trial. The traditional or ‘legacy’ media are aware of the law of sub judice contempt and as a result do not comment on the criminal history of an accused (although there are exceptions, as Hinch v Attorney-General (Vic) demonstrates). In recent times it has become clear that information about trials can be shared via social media, carrying implications for the right to a fair trial. 
In response to a request from the Victorian Department of Justice made on behalf of the Standing Council on Law and Justice, we were invited to:
1. Conduct a literature review of existing research and studies that discuss the use of social media by empanelled jurors and in particular the purpose and effect of such use and describe this research and these studies. 
2. Review any policy implemented in interstate or overseas (Commonwealth) jurisdictions that aims to address potential prejudice caused by a juror’s access to and use of social media, and provide details regarding whether any policy has been successful.
The 29 page report covers -
1. What is social media? 
2. Limitations on the effectiveness of sub judice and suppression orders in the digital era 
3. Problems cause by juries using social media during trials 
4. The current menu of options 
5. Recommendations 
6. Appendix One: social media platforms 
7. Appendix Two: jury directions in the United States