Internet Misuse by Jurors. The Debate Circling The Jury and the Internet


Academic Paper, 2012

12 Pages, Grade: 2.1


Excerpt

Index

Task

The Debate Circling the Jury and the Internet

Discovery of Misconduct by Accident or Declaration

Increase

Advances in Global Technology

The position outside the UK

The impact of Internet misuse

Different approaches to overcoming the misuse

The amendment of Legislation

Judicial directions

The appointment of an independent J M

Recommendations

Bibliography
Textbook
Articles
Internet Articles
Other Sources
Cases

Task

‘Public confidence in the jury system is waning whilst miscarriages of justice, as a result of misuse of the internet by jurors, is increasing.’ (Catriona Murdoch, The Oath and the internet, 176, Criminal Law & Justice Weekly, 10 March 2012, p. 149.)

Recent case law has identified a variety of different types of jury impropriety and has confirmed the limitations imposed by the protection of the confidentiality of jury deliberations.

Explain how serious you consider the problem of misuse of the internet by jurors to be and present the arguments for and/or against different approaches to overcoming the problem. The approaches you consider should include: improved training of jurors; the appointment of a court official to monitor the deliberations of the jury in the jury room; and changes to the selection procedures for juries; you may, in additon, wish to consider and evaluate other approaches.

Your answer should conclude with recommendations designed to improve the current situation.

The Debate Circling the Jury and the Internet

The use of the internet has increased over the recent decade and it is to be expected that many people who are summoned for jury service will have some type of experience in its usage and may attempt to make reference to it. According to Catriona Murdoch the true extent of Internet misuse is unknown and it is in fact the accidental discovery of jury misconduct, which is becoming more recognised.1 This is plausible given that the judiciary cannot seem to identify the exact number of people who are committing misconduct. One of the difficulties is the rule laid down in section 8 of the Contempt of Court Act 1981, which precludes the court from inquiring into deliberations. The rule against any investigation or inquiry into jury deliberations is a rule of admissibility R v Mirza R v Connor 2004 UKHL 2 1 ALL ER 923 2004 1 AC 1118.2 Lord Hope explained that after the verdict had been returned evidence of things said by jurors during their deliberations in private are inadmissible.3 This rule is accepted by the European Court of Human Rights (ECHR), Gregory v UK (application No 22299/3 (1997) 25 EHRR 577 and Sander v UK (application No 34129/96) (2000) 31 EHRR 1003.4 Clearly one can understand the potential issue this presents.

Discovery of Misconduct by Accident or Declaration

Acknowledging Murdoch’s point about the wider recognition of the accidental discovery of misconduct is important. Indeed, this is demonstrated in R v Thompson and Others 2010 EWCA Crim 1623 5 due to the fact the misuse only became apparent because the jurors decided to declare their concerns that they followed up in a letter. It shows that the judge was unaware at the time the misuse was taking place. It is similar to Attorney General v Dallas 2012 6 given that the juror brought the information she discovered to the attention of the other jurors. Again, if that did not happen the court would not have known of such events. This emerging declaration theme is followed in Her Majesty’s Attorney General v Fraill and Another 2011 EWHC 1629 7 , due to the juror’s research only becoming apparent because the acquitted defendant decided to declare the irregularities. Moreover, R v Thakrar 2008 EWCA Crim 2359 8 shows that the search for false information on the internet only came to the fore because the jurors asked a question of the judge. R v Karakaya [2005] EWCA Crim 346, [2005] 2 App R 77 9 is fundamental given that the Internet printouts were found in the jury room thereby demonstrating an accidental discovery. This shows that internet misuse is clearly going on undetected so one can affirm Murdoch’s point at this early outset.

Increase

Professor Cheryl Thomas in her 2010 research study found that 5 – 12% of jurors called for jury service actively looked for information about their trials online.10 Her research confirms that for high profile trials one in four jurors said they had seen information on the Internet. 12% said they actually looked for information and in more standard cases between 13 – 26% of people said they saw the information while 5% admitted to looking.11 According to the Rt Hon Lord Judge CJ Thomas’s research suggests that jurors are developing a habit of looking on the internet for information about the case they are trying.12 Firstly this would seem to suggest that internet usage has increased. Moreover, just as Lord Judge is of this view one does question the number of times a juror can accidentally stumble across information about the trial they are observing while using the internet for other purposes. Secondly given that this concern appears to be unanswered and in light of Lord Judges’s interpretation of the habit, which is developing, it is reasonable to think that we are slowly seeing an increase in internet misuse.

Advances in Global Technology

We are seeing an increase in global technology and more people are using the internet in their daily lives. For instance, there are many different reasons why huge numbers of people around the country visit the internet. It may just be for general research from personal interest, it could be to place an order or to make a booking. People use internet banking to access their bank records to see if they have received any income or incurred any expenditure. This of course extends to consulting online resources for many other things such as checking the news to find out about a range of different factors. For instance, this could range from anything between the conducting of an investigation into a family tree to the viewing of a bill that is about to become an act, as the possibilities are endless. The point here is if a person has a habit of accessing their financial records they may well be tempted to consult the internet to achieve the task of doing justice in the current trial they are participating in. So although it is correct to make an assertion as to a potential increase in internet misuse an emphasis also needs to be placed on the accidental stumbling of information which is truly non intentional and it is from this fact that the gates are truly opened.

This leads on to an analogy that the state may be facing a much larger problem than first envisaged. Given the increase in global technology as well as national development we live in a computer age. When jury trials began there was no electricity, no typewriters and people had to travel to court by foot. In the 21st century the modern western world now use technology for many purposes. We turn on lights and convey heating into our properties and lands, we have an ever-increasing camera to prevent criminal activity such as an assault out in the street, a robbery in a shop or speeding while driving. However, while this increase in technology is intended to place a protection blanket over the public can it really be said we are all in fact protected? For instance, do we feel safe knowing that our personal details can be accessed and placed in the wrong hands? Unlike a prosecution under the Fraud Act 2006 for a forged passport or loan account, what about where the loss was in fact so serious that a Government official or Lord Chancellor would become accountable? What if it was to involve a national emergency? What about the 18th October 2007 when the government lost a package containing two disks, that was sent from Her Majesty’s Revenue and Customs (HMRC) to the National Audit Office (NAO), that held data on 25 million parents all in receipt of child benefit?13 What about the increase in science technology for the purposes of warfare resulting in thousands of deaths over the last decade? What about the government’s latest announcement to see clear details of who we call, text, email and which websites we visit without any kind of warrant or reason? What about their idea to legislate to make phone and internet companies install special devices to provide all this data on each and every one of us? Can it really be said that technology is being used as it should or are we all being monitored and if so are our futures being written for us?

Given these facts one cannot ignore that such advancement in technology in this context presents an increased risk of stumbling across information, which is truly accidental. We have computers, television, radio and media coverage. To elaborate lets imagine for one moment that there is someone you had no desire to hear from. While loading up your PC to conduct an internet search an email alert signal notifies you that mail has arrived on your desktop. In anticipation or even anxiousness you open the file to see what it is about, and you see that persons written message, which brings a sad ending to what was a pleasurable week. The point here is that we all have to live in what is sometimes a small surrounding and one, which is becoming ever more confined given the advances in technology. The idea here is that it is true to say that we cannot always avoid it. Indeed, this is an attempt to illustrate the point that even if a true honest juror did not intend to engage in internet misuse it has no baring. It does not necessarily mean they will not come across information they are not supposed to be seeing. Thomas’s findings seem to suggest there is an increase. For all those jurors who are deliberately looking up information this technology also seems to provide a way for them to hide behind their misconduct. This would seem to tie in with Thomas’s research given that 26% said they saw information. Indeed one can firmly uphold that this is reason enough to illustrate how the usage may have increased but also helps to explain why the true extent of misuse is unknown. Murdoch is quite right to be of the view that things are unknown.

The position outside the UK

In venturing outside the UK in the past decade the explosion of technology in the United States has changed American life. An estimated 74% of North American’s now use the internet (a 150% usage growth rate from 2000-2008) it has changed the way her citizens communicate, learn translate businesses and run their lives. To illustrate what they refer to as an intrusion Doctors Ellen Brickman, Julie Blackman and Roy Futterman refer to David Lemus who was convicted in 1992 of killing a nightclub bouncer and sentenced to 25 years imprisonment.14 After serving 15 years new evidence resulted in him being granted a new trial. The judge instructed the panel not to discuss the case but did not instruct them not to read about it.15 One juror used his cellular phone web browser to learn more. Two others also reported conducting internet searches but said they had not read any of the search results.16 Later this incident re played itself in the case involving officials of the Carpenters Union, who were being tried on bribery charges.17 The beginning of the trial received some media attention and two of the sixteen jurors said that they had conducted internet searches.18 The judge instructed the panel to refrain from any further research but left it up to the attorneys to make cause challenges if they saw fit19

It is the contention of Brickman, Blackman and Futterman that these authorities illustrate how the use of the internet has insinuated itself into the Federal courtroom.20 Research shows that juror’s exposure to media coverage and other extrinsic information about a case can be highly influential to their decision-making. They refer to Psychologist Edith Green who is of the view that media exposure can contribute to the formation of particular cognitive schemata or frameworks for organising information.21 This then influences the way in which case information is heard and processed.22 Similarly in support of this they also refer to Neil Vidmar and Valerie P. Hans who are of the view that pre-trial publicity shapes the way in which jurors later hear evidence.23 So the position in America is that one of the reasons why internet misuse is taking place is because jurors are somewhat influenced by the publicity at the start of the trial. This is a plausible argument given that it once again shows the impact of the ever-increasing technology and that we may not always be able to avoid it. Therefore Brickman, Blackman and Futterman are also correct. Another fundamental point being illustrated here is that jurors like many of us are generally unable to disregard information that they know and that they consider being relevant. Once heard the information cannot be ignored so one can see the problem that this is presenting when discovering information by accident. At the same time the increases in technology is certainly not helping the matter.

The impact of Internet misuse

The obvious effects of the discovery of internet research is that the jury may be discharged and Fraill is a good example of this along with a new jury being empanelled. Discharging a jury impacts upon us all and it affects both witnesses and defendants. The prospect of having to be put through the whole process a second time could be damaging especially to victims of serious crime such as rape. The re calling of vulnerable witnesses in a sensitive matter to give evidence may become traumatic and burdensome in some instances. It does not help the judiciary given it is at times already overstretched with a backlog of cases waiting to be heard. It is going to delay the process and therefore delay the hearings of other cases. A second trial means that a witness may not be confident as they may not be able to remember exactly what they said the first-time round. Sometimes no matter how hard a person may attempt to remember exactly what they said it is true that one cannot always explain the same thing twice in the same way. Moreover, let’s say the co defendant’s are in a case that is falling apart and a retrial was ordered upon discovery of an irregularity. Provided they are not attacking each other through a cut throat defence under ss 104, 103 (1) (b) and 101 (1) (e) of the Criminal Justice Act 2003 they could use this as an opportunity to try and get their stories straight. The delay would provide them with time to prepare for the second trial. It damages public confidence and faith within the system, which is damaging to the judiciary as an independent branch within the unwritten constitution. Given we are in times of legal aid austerity the state does not want to endure any more financial losses as the implications are huge and will eventually have an impact on taxpayers.

In light of the reality we are facing it would appear that a number of irregularities, which do take place, are only being discovered by accident or declaration. We cannot be sure of the true extent of the misuse, but the evidence would appear to suggest that it is nevertheless increasing. In light of the other considerations it may also be the case that the problem is far larger than people are actually envisaging it to be in which case the underlining factors are not being explored. Overall, it is true to say that this issue is slowly on the increase but the true extent of this is clearly unknown. Murdoch is correct as the situation is a serious one and is in need of addressing.

Different approaches to overcoming the misuse

In light of the several approaches, which may be taken, to deal with the problem of internet misuse one cannot ignore the suggestion that no reform should take place. Clearly this idea of judges backing down and giving up in attempting to stop juries using online resources to access information which may be false is concerning. According to Sir Ken Macdonald this idea seems to be very real and in his own view goes on to state, “I don’t think juries should be allowed to do online research he added. But I do think we need to assume this will occasionally happen and that it should not invalidate a trial”.24 This view is an incorrect assertion because if the judiciary start resigning itself to the fact that it cannot prevent what is going on this begins to show signs of defeat. Moreover, conceding the battle may even exacerbate it given that this sends out a message that it is ok for jurors to do what they are doing. The system is now in need of some kind of reform therefore this side of Macdonald’s argument should not stand.

The amendment of Legislation

As things stand there seems to be no prohibition on the use of text based remote transmission of material from a courtroom. At present section 9 of the Contempt of Court Act 1981 prohibits the use of a tape recorder but does not extend to twitter or other social types. The Lord Judge questions how open justice can still be compatible with the idea of preventing live text based dialog to the outside world.25 This is plausible and one sympathises with this concern given that a reporter or journalist are allowed to write notes to themselves while being present in court. One may ask what is the difference if they are allowed to do this when sitting in court by sending emails?

On the other hand, Lord Judge equally recognises that to allow for this would promote prejudicial material to be accessible and out of control.26 Again this is a plausible counter argument and one, which seems to have more weight attached. For instance, one must understand the damage this is leaving. The thought of a flawed juror being able to access information from an earlier trial when a retrial is underway is troubling. The idea that a person’s previous conviction, which may have been ruled inadmissible, can be accessible through publication shows the potential danger. Despite that we need an open setting the current threat which lies to the fairness of the trial cannot go on ignored because fairness is a central line to a democratic state. Indeed, Lord Judges latter acknowledgment prevails and it is clear that legislation does need to be put in place so as to prevent potential damaging publications.

Judicial directions

It is true that sometimes jurors are curious to learn more, but it is also the case that they may simply be trying to understand something that confuses them. The more they understand what they hear in court the less motivated they may be to do internet research for clarification. Advocates should be working harder to ensure that they are more persuasive and effective. Plain English instructions should go far towards reducing jurors needs or desires to research legal concepts on the internet. In expanding on this in an American trial Brickman, Blackman and Futterman suggest that the admonition delivered by judges is already clear and to the point “avoid all media coverage and any other information relating to the case”.27 However they take the view that this could be improved. Their idea is the conveyance of an understanding that seeking outside information is tempting and the delivery of an explanation to jurors as to why it is important to resist.28 This view is a strong one because if it is explained why their cooperation in refraining from research is important to the fairness of the judicial system this may better their understanding that it is not ok to engage in such conduct. Their second idea is somewhat more tasteful. This is the instruction that if any juror sees another juror seeking extrinsic information or has reason to believe another has done so he or she is obligated by law to notify the federal court which they call the watchdog effect.29 This is clearly sound given that if this were legislated for in the UK jurors would be more likely to resist seeking information if they fear that a fellow juror will notify the court. This is an idea that places control over them so as to prevent abuse but at the same time still places trust in them, which is important therefore this is a plausible argument.

In discussing the UK position on directions and instructions Lord Judge seems to be of the view that there is a lack of ability upon jurors to be able to sit still and listen to a case.30 He is clear that the judicial process is mainly an oral one and that information should not really be in written form.31 Indeed a case on paper may look sound against a defendant but when the case progresses through testimony and cross-examination it shows that the whole prosecution case was structured on paper. It is no stronger than that so one can sympathise with this view. However, one also begins to believe that the reason he is taking this approach is so it ties in with his direction amendment. If it is correct that Lord Judge CJ seems to be saying that jurors lack an ability to be able to listen is it right to infer that he thinks this is in need of reform? One begins to believe that maybe he is taking this stance so that a more significant change he desires to see would take effect. For instance, judges give clear directions to the jury that they should not consult the internet, and this is for the principle that the trial must be fair. However he is now of the view that upon direction the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial.32 Here one can understand his thinking in that such a direction may indeed be more effective if those members with whom it is addressed were made to listen carefully. However, this would appear to give course for challenge.

[...]


1 C. Murdoch, ‘The Oath and the Internet’, Criminal Law and Justice Weekly, Issue 11, 2012, p. 3

2 R v Mirza R v Connor 2004 UKHL 2 1 ALL ER 923 2004 1 AC 1118

3 Regina v Mirza; Regina v Connor and Rollock [2004] UKHL

4 Gregory v UK (1997) 25 EHRR 577, Sander v UK (2000) 31 EHRR 1003.

5 R v Thompson and Others [2010] EWCA Crim 1623

6 Attorney General v Dallas [2012]

7 Her Majesty’s Attorney General v Fraill and Another [2011] EWHC 1629

8 R v Thakrar [2008] EWCA Crim 2359

9 R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 77

10 C. Murdoch, op. cit., p. 2

11 Lord Judge CJ, Jury Trials, Judicial Studies Board Lecture, Belfast 2010 p.4

12 ibid.

13 A. Darling, Back From the Brink, Atlantic Books, London, 2011, p. 49

14 E. Brickman, J Blackman, R Futterman, J Dinnerstein, ‘How Juror Internet Use Has Changed the American Jury Trial’, Journal of Court Innovation, Vol. 1, No.2, 2008, p. 288

15 ibid.

16 ibid.

17 ibid p. 289

18 ibid.

19 ibid.

20 ibid.

21 ibid p.290

22 ibid.

23 ibid.

24 A. Hill, Judges are Resigned to Jurors Researching their Trials Online, The Guardian, 2012, retrieved 30 March 2012, P. 2

25 Lord Judge CJ, op. cit., p. 6

26 ibid.

27 E. Brickman, J Blackman, R Futterman, J Dinnerstein, op. cit., p.297

28 ibid.

29 ibid p.298

30 Lord Judge CJ, op. cit., p. 3

31 ibid.

32 ibid p. 7

Excerpt out of 12 pages

Details

Title
Internet Misuse by Jurors. The Debate Circling The Jury and the Internet
College
City University London  (The City Law School)
Course
LLM Criminal Litigation
Grade
2.1
Author
Year
2012
Pages
12
Catalog Number
V924886
ISBN (eBook)
9783346256324
Language
English
Tags
internet, misuse, jurors, debate, circling, jury
Quote paper
James Michael Corbett (Author), 2012, Internet Misuse by Jurors. The Debate Circling The Jury and the Internet, Munich, GRIN Verlag, https://www.grin.com/document/924886

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