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The Googling Juror

The Googling Juror

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Published by djhdcj
This paper considers the problem of the tension between the information expectations of modern jurors and the processes of the jury trial, suggesting some means by which juror engagement may be increased without resort to external information and suggesting a nuanced approach to juror misconduct
This paper considers the problem of the tension between the information expectations of modern jurors and the processes of the jury trial, suggesting some means by which juror engagement may be increased without resort to external information and suggesting a nuanced approach to juror misconduct

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Published by: djhdcj on Sep 09, 2012
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The Googling Juror: The Fate of the Jury Trial in the Digital ParadigmByJudge David Harvey
1
 Abstract
This paper considers the challenges posed by the information communicative technologies of the Digital Paradigm to existing concepts of the fair trial by an impartial jury. It will arguethat it is necessary to recognise the existence of the new technologies and that they will beused by jurors. It will suggest steps that may be taken and solutions that may be adopted toaddress such activity which maintain the integrity of the criminal jury trial and its continued  place, unchanged, within the legal spectrum.The paper addresses the nature of the problem and the issues that arise from the wideavailability of information on the Internet and will address two major ways in whichinformation use may potentially cause difficulties for the juror. These may be described as“information in” – juror research which may result in information coming into the juryroom, and which may be disclosed or made available to other jurors – and “information out” – communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice.The paper examines some possible reasons why it is that jurors wish to ignore judicialinstruction and carry out their own researches. This will be viewed in light of the effect that new technologies may have on our wider expectation of information availability and the wayin which those technologies enable behaviours.The paper refers to recent research which may challenge the assumption that juror researchmay automatically result in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The paper concludes that while so challenged, the jury system can survive the encounter with newinformation technologies.
1
LLB. (Auckland) MJur (Waikato) PhD (Auckland). A Judge of the District Court; Part-time Lecturer in Lawand Information Technology, Faculty of Law University of Auckland.The term “Googling Juror” is widely used within the literature of the phenomenon. A Google search of thespecific term reveals 995 hits but as far as this author is concerned the term was first observed in New Zealandwhen it was used by media law blogger Steven Price. See S. Price, “Googling Jurors Again” (Media LawJournal 25 March 2009) http://www.medialawjournal.co.nz/?p=237 (last accessed 4 April 2012) although the phenomenon was described if not precisely in those terms by William Young P in
 R v B
CA459/06
 
at para [78]– [79] and in my decision in
Police v PIK 
[2008] DCR 853 para [54] et seq.
 
2
Introduction
The concept of a fair trial permeates every level of the criminal justice system
2
and manifestsitself in every aspect of our practice and procedure, including the laws of evidence.
3
Indeed,the principle of fairness is an overriding one. Baragwanath J stated that “a fair trial trumpsall”
4
and Deane J observed“…it is desirable that the requirement of fairness be separately identified since ittranscends the content of more particularized legal rules and principles and providesthe ultimate rationale and touchstone of the rules and practices which the commonlaw requires to be observed in the administration of the substantive criminal law.”
5
 The jury fulfils an essential function in the trial process that permeates Anglo-American jurisprudence, especially in the area of establishing criminal liability. In 1998 the NewZealand Law Commission identified the main functions of the jury in the criminal trial as:“to act as
 
a fact-finder;
 
the conscience of the community;
 
a safeguard against arbitrary or oppressive government;
 
an institution which legitimises the criminal justice system; and
 
an educative institution”
6
 Within the context of this paper, the fact-finding role of the jury is probably of the greatestsignificance.
7
The jury is assumed to be a competent fact-finder, able to sift through theevidence, understand it, weigh it up, assess the credibility of witnesses, and apply the law tothe facts.
8
 Juries are also assumed to have the advantages of diversity of life experiences and viewpoints(a collective “common sense”), the collective recall of 12 individuals, and a democratic
2
Although this discussion will focus upon the criminal trial the issue of a fair trial is no less important to thecivil trial.
3
J.J. Spigelman “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29.
4
 
 R v B
CA 459/06.
5
Dietrich v R
(1992) 177 CLR 292 at 326 – for similar statements see also p.330 . See also
 McKinney v R
 (1991) 171 CLR 468, 478;
 Jago v District Court of New South Wales
(1989) 168 CLR 23.
6
 
 Juries in Criminal Trials – Part One”
(Law Commission, Wellington 1998) p. 12. See also R v Sherratt(1991) 63 CCC (3d) 193, 203 per L’Heureux-Dube J for the majority: “These rationales or functions of the jurycontinue to inform the development of the jury and our interpretation of legislation governing the selection of individual jurors”. See also, for example, Devlin,
Trial by Jury
(Methuen, London, 1966),148–165; Parliamentof Victoria Law Reform Committee,
 Jury Service in Victoria
(Issues Paper 2, November 1995), paras 1.1–1.3,1.19–1.20; Findlay and Duff (eds),
The Jury Under Attack 
(Butterworths, London, 1988) for critical analyses of these functions by various authors; and
Taylor v Louisiana
419 US 522,530 (1975): “The purpose of the jury isto guard against the exercise of arbitrary power – to make available the commonsense judgment of thecommunity as a hedge against the overzealous or mistaken prosecutor and in preference to the professional orperhaps over-conditioned or biased response of a judge. . . . Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to publicconfidence in the fairness of the criminal justice system.”
7
Ibid.
 Juries in Criminal Trials – Part One
p. 13.
8
Mark Findlay
 Jury Management in New South Wales
(Australian Institute of Judicial Administration CarltonSouth, Vic. 1994) p. 13.
 
3
deliberative process in which each detail is explored and subjected to the scrutiny of thegroup. At the same time, notwithstanding that they bring their life experience and commonsense into the jury room, as far as the instant case is concerned, their collective mind must bea blank, informed only by the evidence that has been presented to them in the Court. Theevidence that they do receive is filtered by means of the law of evidence which sets theframework within which the jury exercises its decision making power. The reception of extraneous material that may be relevant to the matter upon which the jury is to decide, orexternal factors that may be brought to bear to influence the decision of the jury have posedchallenges to the perceived impartiality of the jury and thereby threaten an important aspectof the fair trial.These important aspects of the fairness of the jury trial and its process are challenged by newinformation technologies which make information available to jurors by means, primarily, of the Internet. This paper will consider the challenges posed to existing concepts of the fair trialby an impartial jury. It will argue that it is necessary to recognise the existence of the newtechnologies and that they will be used by jurors. It will suggest steps that may be taken andsolutions that may be adopted to address such activity which maintain the integrity of thecriminal jury trial and its continued place, unchanged, within the legal spectrum.Part 1 of the paper addresses the nature of the problem and the issues that arise from the wideavailability of information on the Internet and will address two major ways in whichinformation use may potentially cause difficulties for the juror. These may be described as“information in” – juror research which may result in information coming into the jury room,and which may be disclosed or made available to other jurors – and “information out” –communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice. Examples will be given of incidences of both categories.
9
Part 2 of the paper will advance some possible reasons why it is that jurors wish to ignore judicialinstruction and carry out their own researches. This will be viewed in the light of the effectthat new technologies may have on our wider expectation of information availability and theway in which those technologies enable behaviours. Part 3 will consider how informationseeking by jurors may challenge our concepts of fairness and some of the assumptions thatwe have about the effect of “out-of-court” information. Recent research reveals that some of our assumptions may be contestable or at best should be more nuanced. Part 4 will offer somepossible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a graduated response
9
The “information flows” approach was developed by Professor Ian Cram. See Ian Cram “Twitt(er)ing OpenJustice? or threats to fair trials in 140 characters) – A Comparative Perspective and A Common Problem”(Unpublished paper delivered at Justice Wide Open Conference, City University London, 29 February 2012) seehttp://www.city.ac.uk/centre-for-law-justice-and-journalism/projects/open-justice-in-the-digital-era (lastaccessed 4 April 2012). I am indebted to Professor Cram for providing me with his paper that he presented at theCity of London Conference and for his analysis of information flows. The full paper may be found athttp://www.scribd.com/doc/97591724/Justice-Wide-Open-Ian-Cram-Twitt-er-ing-Open-Justice (last accessed 23August 2012).

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