Criminal Law
16.02.17
Twitter reckons you’re guilty: Juries and social media #CourtisLit #GuiltyAF
Recently, a murder trial in Sydney was put in jeopardy when a witness sent a Facebook friend request to a female juror during the closing stages of the trial. This is not the first, nor the last, trial that has been adversely affected by a juror’s use of social media.
Over the past five years or so, it has become more frequent for information about trials to be shared or leaked via social media, carrying implications for the right to a fair trial which can not only effect the accused, but the victim and other players.
In cases where courts detect instances of inappropriate social media use by jurors, they may elect to dismiss the juror or jury panel, or find the juror guilty of an offence.
The main ways social media is used inappropriately include:
- contacting jurors, parties, witnesses, lawyers or others in the trial;
- publishing or distributing information about the trial;
- discussing the case or seeking opinions from other people not connected with the trial; and/or
- seeking information about the case from a source outside of the court.
The main issue that arises when jurors use social media during a trial is:
- a juror may discover further information about the trial other than the evidence presented, which can lead them forming an opinion about the facts which is not based on the evidence presented in court or has been ruled inadmissible for a variety of reasons.
A jury must be impartial and form opinions based solely on evidence presented in the trial, if they are exposed to inappropriate information or communications during the trial, the rights granted in our criminal justice system, such as the right to a fair trial, are endangered.
As the Lord Chief Justice of England observed in R v Karakaya:
If a juror speaks to anyone about the case, even to someone precious and dear to him, indeed the more so if it is an individual whose thoughts and comments are valued, that person may say something which could influence the judgment of the juror and the outcome of the case. It will have happened in the absence of the prosecution and the defence and the trial judge and remaining members of the jury. None of them will know. Neither side will be able to call evidence to deal with the point or direct arguments to demonstrate that the point may be wrong.
What can be done about social media use during trials?
It has been suggested that social media devices are banned during trials, however this solution has been criticised on the basis that it will make the courts seem “out of touch” with today’s society and will cause people to be less willing to serve on juries. There is also no guarantee that a juror will not access social media once they get home.
There is currently no single answer to this question, but the simplest cause of action seems to be to ensure that jurors are made aware of what they can and can’t do online through explicit and explanatory jury instructions which address improper social media use.