Publications

Juries and Social Media: Problems Arising from Jurors’ Social Media Use

Greg Barns[1] Jamie Yew[2] and Ryan Lloyd[3]

Paper delivered to Carroll and O’Dea Sydney

20 August 2019

In February 2013, 62 Australian judges, magistrates, court administrators and other stakeholders identified the potential for juries to misuse social media during trials as, by far, the single most significant challenge that this 21^st century form of media poses to the courts.

But it is not only in Australia that social media poses a serious issue for the rule of the law in jury trials.

In 2010, Reuters Legal, using data from the Westlaw online research service, compiled a tally of reported US decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the internet. They identified at least 90 verdicts between 1999 and 2010 that were challenged due to juror internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period.

The Law Commission identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved internet access or social media use.[4]

As the UK Court of Appeal put it in 2005, the idea that jurors resort to social media is anathema to the rule of law:

‘If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial’.[5]

An increasingly prevalent issue

As we know, the rapid growth and use of technology within society has been accompanied by an increased dependency on social media. As of January this year, there were 21.74 million internet users in Australia, constituting 87% of the Australian population. According to a recent analysis, 93% of these use the internet every day.[6] This almost saturation level usage in the community highlights an urgent need to develop solutions to internet-related misconduct—widely believed to be on the rise—if a defendant’s right to a fair and impartial jury trial is to be safeguarded.[7]

Justice Peek in the Supreme Court of South Australia has put the problem which arises from social media, and particularly Facebook, in the context of criminal proceedings this way:

‘Facebook has spawned a new generation of private investigators. Through the use of the facilities referred to above, Facebook becomes an investigative tool allowing users to search profiles (a process often referred to colloquially as ‘Facebook  stalking’).

It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves. But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law’.[8]

We set out below some of the seriously problematic misconduct which has arisen from jurors’ use of social media during a criminal trial.

Communication between jurors and parties

A notorious example of misuse of social media during a trial was seen in the case of A-G v Fraill[9]. Joanne Fraill was sentenced to eight months’ prison for contempt of court by London’s High Court in 2011 for exchanging Facebook messages with the accused in a drug trial while she was serving on the jury. Fraill also searched online for information about another defendant while she and the other jurors were still deliberating. These activities were undertaken in contravention of a judicial instruction to avoid using the internet during the trial.[10]

Jurors establishing social media connections with one another during trial

Retired Circuit Court Judge Dennis M Sweeney told the Maryland State Bar Association of an episode during the political corruption trial of Baltimore Mayor Sheila Dixon, over which he presided in 2009. Five jurors had ‘friended’ each other on Facebook and had mentioned the case in their postings, despite his explicit direction not to use Facebook. After he admonished the rogue jurors, a young male juror posted the remark ‘F*** the Judge’ on his Facebook page Judge Sweeney asked the juror about the offensive comment and was told: “Hey Judge, that’s just Facebook stuff”.[11]

The notion that discussions between friends on Facebook might be considered less seriously than other publications was reinforced in a 2012 Western Australian Supreme Court case—Boyd v The State of Western Australia[12]—which saw Hall J refuse to relocate a trial due to prejudicial and threatening statements posted to Facebook. He stated:

‘The nature of the internet is that it now records indefinitely what might once have been transient and ill-considered statements said in the heat of the moment. Such statements should not necessarily be seen as any expression of real intent. The postings were made on personal Facebook pages and were clearly intended for a group of friends and not as public statements. Foolish, exaggerated or emotional comments made between friends should not be taken out of context’.[13]

This rather sanguine view might be said to be understating the adverse impact of social media use by jurors. Social networking by jurors during trial—whether at the courthouse or at home—carries with it a dangerous potential to undermine the fairness of trial proceedings. The impartiality of a jury relies on the principle that ‘conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print’.[14]

Jurors seeking assistance in reaching their verdict

A UK juror was dismissed from a child abduction and sexual assault trial after she asked her Facebook ‘friends’ to help her decide on the verdict. “I don’t know which way to go, so I’m holding a poll”, she wrote. This was discovered prior to the jury starting its deliberations. The trial continued in her absence.^[15]

There is a greater risk that a communication may become prejudicial when a juror comments on a blog or social media website than when they discuss the case in person, as in the former case the audience that may interact with, comment on, and further disseminate the communication is much greater. As such, the risk that the juror’s opinion will be improperly influenced is increased accordingly.^[16]

Sexual assault and abuse case challenges

In a 2013 UK case, a person selected as juror in a sex case wrote on their Facebook page: “Woooow I wasn’t expecting to be in a jury Deciding (sic) a paedophile’s fate, I’ve always wanted to F*** up a paedophile & now I’m within the law!”^[17] The simple fact is that we have no idea if one or more jurors—sitting on a case of, say, historic sexual abuse, or sexual assault—was themselves abused. Similarly, jurors may have expressed hatred of paedophiles on their Facebook profile, or that they have a particular loathing of the person who is on trial if that person has a highly visible public presence. All of these factors would limit the juror’s capacity to perform their function impartially.

Given the life changing consequences, via the medium of community protection registers and particularly acute public opprobrium if one is convicted of a sex offence, and the fact that we are digital natives living in an era of saturation media about sexual assault and historic sexual abuse, is it good enough that we continue to have complete faith in a process designed at the time of the Magna Carta, 800 years ago?

A need for reform?

Is it not time to think about reforming the jury process so that trial by judge alone should be available to every accused person—particularly in the case of sexual assault trials—and not just if you are ‘lucky’ enough to be charged in New South Wales, South Australia, the ACT, Queensland and Western Australia where such a right is available?  Given the footprint most of us have now in the social media sphere—whether it be on Facebook, Twitter or in news site comment sections—perhaps we ought to look at the US system, in which background checks on potential jurors are permitted so as to better ensure that those who serve on a jury do not come to the courtroom having prejudged the case.

Why shouldn’t an accused person be entitled to know that a potential juror has ‘liked’ on his or her Facebook page an article that is hostile to the person accused of horrific sexual assaults on children?  Or that a potential juror has a close family member who is a victim of sexual abuse?  And what about high profile cases where there is a constant barrage of media?  The cases of George Pell in this country and US entertainment figure Bill Cosby spring to mind.  In the case of the latter, questions asked of 100 potential jurors revealed that ‘one-third said they’d already formed opinions about Cosby’s innocence or guilt, [and] more than a third said they or someone close to them had been the victim of sexual assault’.^[18]

Potential solutions and strategies

While some scholars believe that all internet-ready handheld devices should be completely banned from courtrooms, others feel that such a change is simply too extreme.^[19] In addition to limiting the use of cellular phones and other handheld devices in the courtroom, courts continuing to tailor their jury instructions to make jurors aware that researching, blogging, tweeting, or posting messages about their case on the prohibition of certain communication—as well as the diligence of trial counsel in searching for improper communications—may reduce the instances and impact of misconduct. Further, jurors might be encouraged to take responsibility not only for their own actions, but for the actions of the remaining jury members as well.^[20]

Findings—based on informal survey data from approx 140 actual jurors—strongly suggests that specific social media instructions effectively mitigate the risks of juror misconduct associated with social media. The overwhelming majority of the jurors—each of whom heard numerous social media instructions—reported no temptation to communicate about the case through social media.^[21]

Scrutiny of jurors in the US system

Jurors in the US system—as compared to those in Australia—are subject to a far greater degree of scrutiny for bias via that system’s ‘voir dire’ procedure. This procedure permits counsel to cross-examine potential jurors, and allots a certain number that may be excused from service if sufficient bias is established—‘challenges for cause’—as well as a number that may be excused without cross-examination—‘peremptory challenges’.^[22]

Voir dire has become so integral to the US trial system that pre-trial investigation of jurors is now a prevalent accompanying practice. This in turn has resulted in the emergence since the 1970s of specialist jury consultants—often with backgrounds in sociology, psychology, communication, or marketing^[23]—as well as the increased use of social media as an essential investigative tool.^[24]

There is some skepticism about the ‘science’ used by trial consultants however, who have been criticized for ‘making crude presumptions about the influence that juror characteristics have on the decisions made in a case, while little scientific evidence actually underpins such a relationship’.[25]

Benefits of the US approach

The rigorous cross-examination that occurs during voir dire has been argued to serve the object of empanelling an unbiased jury.^[26]  Further, the increasing centrality of the internet as a tool for gathering information relevant to cross-examination has lowered the costs associated with effective voir dire research, thereby levelling the playing field between litigants of unequal means.^[27]

The phenomena of professional jury consultancy and jury experts may help attenuate for attorneys’ personal biases and optimise a jury’s impartiality by bringing detached, scientifically informed approaches to bear on the selection process.    Indeed, in Corenevsky v Superior Court, California’s Supreme Court held that the court appointment of a jury expert may be appropriate and necessary where a case has been adversely affected by pretrial publicity.^[28]

Disbenefits of the US approach

While the voir dire process may be premised on the weeding out of improperly biased jurors, it has been noted that unfettered, strategic use of peremptory challenges—those which counsel may make to a juror’s suitability without the need to establish bias through cross-examination—on the basis of race, sex, or ethnic membership may in fact undermine the ultimate impartiality of the resultant jury.^[29] Further, voir dire procedure is highly susceptible to abuse by attorneys, who may take the opportunity to form rapport with jurors, to allude to evidence yet to be introduced and to its significance, and to seek to introduce favourable bias.^[30] Research has suggested that these practices are in fact highly prevalent.^[31]

As far back as 1929 in Sinclair v United States^[32], the US Supreme Court criticised the excessive investigation of jurors, warning that it risked affecting the psychology of jurors and so their capacity to fulfill their function.^[33]  Further, it has been noted that the intense scrutiny of jurors by investigators may lead to diminished responses to jury summonses and an increased distrust of the justice system as a whole.^[34]

Historically, investigation of jurors has been a fraught practice, as it can lead to the striking of a jury even if only accidental or indirect contact is made with the jurors being investigated, though this has become less of an issue in the age of social media, in which contact with jurors arising from investigations is a less likely occurrence.^[35]

Conclusion

The right to trial by jury is an article of faith in the Australian legal system.  As a community, we place great store in the capacity of 12 citizens selected randomly, to judge whether a person is guilty or not of a serious criminal offence.  We assume that jury members will leave their prejudices and beliefs outside the court, and that they will understand the instructions of law they are given by a judge and that they will not be influenced by what they, as ordinary members of the community, might have gleaned from media about the accused.  But how robust is this system when it comes to dealing with the extraordinarily large volume of high profile, highly prevalent and often deeply emotive sexual assault, historic and current, cases which are making their way through our courts? 

The jury selection process is based on a hunch.  As one unnamed Victorian lawyer, quoted in a 2010 article on jury selection processes rightly put it: “I’ve always found the system to be somewhat curious and a bit quirky in that we get given a very tiny, but sort of vaguely significant piece of information about the jurors before you pick them, and there’s a whole mythology that seems to be wrapped around who you pick and who you don’t.”[36] At the start of a case—when the judge asks the newly selected jury members if there is any reason they cannot perform their duties—there is a great deal of reliance placed on the 12 jurors’ answering with honesty and integrity.

It is highly unlikely that trial by jury will be abolished in Australia but we must ensure that we do not allow blind faith and mythology do not prevent greater fairness and transparency.

We ought to be open to examining the idea that there is some benefit in examining the United States’ system of voir dire of jurors.  We should also think carefully about high profile cases, particularly in the realm of sex offending and historic sexual abuse, and undertake research in real time of potential and sworn jurors so we can better determine if the barrage of media in all its forms is likely to influence the average person.

Recent work from Lee Curley and colleagues from Edinburgh Napier University[37] tells us just how problematic the jury system in criminal trials, and particularly in relation to ‘topical’ offences such as sexual assault and historic sexual abuse where most individuals hold strong views, is today.

Curley writes:

Our research has shown that the mere process of making a decision can produce a bias. Over a series of experiments, we showed that sometimes jurors do not use all the information available to make a decision. We showed that verdicts favoured before all the information has been shown can lead to confirmation bias and pre-decisional distortion.

Confirmation bias is when decision makers see evidence that chimes with their beliefs in a positive manner, and ignore evidence that does not; pre-decisional distortion is when the decision maker twists how they view a piece of evidence so that it aligns with their preconceived beliefs and expectations.\

Our research has shown that jurors initially integrate information, encompassing both prosecution and defence evidence within their decision making. However, through integrating information, some jurors seem to reach a point (or a threshold) that allows them to have a pre-decisional preference in relation to the verdicts (that is, a leading verdict). This leading verdict can be dangerous, as it is the first time that the juror is able to develop a belief regarding the guilt of the suspect.

In the course of a trial, the formation of this belief is then challenged by competing beliefs. So, for example, a juror may initially favour the guilty verdict, then hear evidence from the defence that may make them reconsider their position. To make it easier for jurors to decide on which verdict to choose, our research suggest that some jurors disregard and distort evidence that does not confirm their own beliefs, thus allowing the leading verdict to be favoured.[38]

Therein lies the problem and the challenge.

Published by Greg Barns[1] Jamie Yew[2] and Ryan Lloyd[3]