The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm By Judge David Harvey1

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 argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address 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 wide availability of information on the Internet and will address two major ways in which information 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. The paper examines some possible reasons why it is that jurors wish to ignore judicial instruction 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 way in which those technologies enable behaviours. The paper refers to recent research which may challenge the assumption that juror research may 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 new information technologies.


LLB. (Auckland) MJur (Waikato) PhD (Auckland). A Judge of the District Court; Part-time Lecturer in Law and 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 the specific term reveals 995 hits but as far as this author is concerned the term was first observed in New Zealand when it was used by media law blogger Steven Price. See S. Price, “Googling Jurors Again” (Media Law Journal 25 March 2009) (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. 1

Introduction The concept of a fair trial permeates every level of the criminal justice system2 and manifests itself 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 trumps all”4 and Deane J observed “…it is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law 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 New Zealand 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 greatest significance.7 The jury is assumed to be a competent fact-finder, able to sift through the evidence, understand it, weigh it up, assess the credibility of witnesses, and apply the law to the 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

Although this discussion will focus upon the criminal trial the issue of a fair trial is no less important to the civil 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 jury continue 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; Parliament of 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 is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps 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 public confidence 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 Carlton South, Vic. 1994) p. 13. 2

deliberative process in which each detail is explored and subjected to the scrutiny of the group. At the same time, notwithstanding that they bring their life experience and common sense into the jury room, as far as the instant case is concerned, their collective mind must be a blank, informed only by the evidence that has been presented to them in the Court. The evidence that they do receive is filtered by means of the law of evidence which sets the framework 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, or external factors that may be brought to bear to influence the decision of the jury have posed challenges to the perceived impartiality of the jury and thereby threaten an important aspect of the fair trial. These important aspects of the fairness of the jury trial and its process are challenged by new information 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 trial by an impartial jury. It will argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal 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 wide availability of information on the Internet and will address two major ways in which information 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 judicial instruction and carry out their own researches. This will be viewed in the light of the effect that new technologies may have on our wider expectation of information availability and the way in which those technologies enable behaviours. Part 3 will consider how information seeking by jurors may challenge our concepts of fairness and some of the assumptions that we 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 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 graduated response


The “information flows” approach was developed by Professor Ian Cram. See Ian Cram “Twitt(er)ing Open Justice? 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) see (last accessed 4 April 2012). I am indebted to Professor Cram for providing me with his paper that he presented at the City of London Conference and for his analysis of information flows. The full paper may be found at (last accessed 23 August 2012). 3

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 new information technologies.10 Part 1 – The Nature of the Problem Parties are entitled to have a trial based on evidence they know about. They are entitled to confront the evidence, cross-examine witnesses and only have legally relevant evidence put before the jury. This is a fundamental aspect of the rule of law. Rules of admissibility and exclusion place restrictions on what material a fact-finder may use in coming to a conclusion. The Lord Chief Justice of England and Wales stated it this way: “The jury system depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false. Sight of such material will create conscious, or perhaps more pernicious, unconscious prejudice. In any event it is fundamental that the defendant should be able to address it.”11 In the United States, Justice Holmes stated in 1907 in justifying the proposition that outside information should be curbed at trial “the theory of our system is that the 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.”12 The modern juror has at his or her fingertips a vast array of updated and archival information available via the Internet. This material may contain general information about the criminal justice process, the criminal law, the rules of evidence, definitions of terms and the like. Information may also be available about an accused or a witness in the case. There may be information about the police investigation and how that proceeded. In addition, the juror has a range of devices available which allow him or her to communicate with others during the trial or while deliberations are proceeding.13


It is not within the scope of this paper to consider the steps that may be taken to prevent material being available on the Internet and the vexed question of media non-publication orders. Although part of a wider picture of information availability that may impact upon the jury trial, this paper is more focussed upon juror activity. For a discussion of prejudicial pre-trial publicity and associated issues see Roxanne Burd & Jacqueline Horan “Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web” (2012) 36 Crim LJ 103. 11 Rt Hon The Lord Judge “Jury Trials” (Judicial Studies Board Lecture, Belfast 16 November 2010) (last accessed 4 April 2012). 12 Patterson v The State of Colorado. 205 US 454, 462 (1907). 13 In New Zealand jurors surrender their mobile phones prior to entering the jury room for their deliberations. However, they have access to these devices along with others during overnight adjournments of their deliberations. 4

Such electronic media pose challenges to the criminal jury trial and may be characterised as information flows. The first is “information in” where untested information may flow into the jury room, for example when a juror does private Internet research away from courtroom and later discloses the results to fellow jurors during their deliberations. The second is “information out”, where a juror may provide updates on jury room experiences – including deliberations - or simply ‘blog’ about the experience of jury service.14 The problems that “information in” may pose include the possible disclosure to the jury of untested information, opinion, incorrect definitions of law and the like. The consequences of “information in” may be that a retrial will be necessary, not to mention potential contempt consequences for the offending juror. “Information out” may challenge the confidential nature of jury deliberations, may inhibit robust and free-flowing discussion and may have an adverse effect upon the deliberative process. In England, New Zealand and Australia there are strict prohibitions against jurors revealing the nature of jury room discussions post trial.15 The extent of the problem may be seen from the following examples, some of which have been well publicised. In June 2011 Joanne Fraill, a juror in a long-running trial was sentenced to 8 months imprisonment for contempt of court for communicating with a defendant, Jamie Sewart who had already been acquitted in a multimillion pound drug trial in Manchester. After Stewart had been acquitted on all counts affecting her, contact was made by Fraill who sent an email to Sewart’s Facebook account. The two continued contact by means of Facebook and some of the communications related to jury deliberations. It appears that Fraill had actively conducted Internet searches for defendants and others who had been of importance during the trial. The court accepted that “throughout she was acting on her own initiative, without any oblique motive, and there is no evidence to suggest that she used her researches on the Internet in order to exert improper influence on the verdicts of the jury. It is relevant that when the concerns of the Judge were raised with each of the individual jurors none hinted at any concerns. Without in any way condoning her actions in contacting Sewart after Sewart’s acquittal we carried out an examination of psychiatric evidence to understand how her own background may have led her to wish to commiserate with Sewart’s personal problems arising from the fact that a 14 month period in custody had separated her from her baby. That said, the text of the communications between them went much further than the expression of a compassionate concern.”16

14 15

Cram, above n. 9. The restrictions are not so strict in the United States as a result of constitutional free speech considerations. 16 Attorney General v Fraill & Sewart [2011] 2Cr App R 21 paragraph [55]. 5

The Court identified the nature of the problems that behaviours enabled by new technologies posed to the integrity of the jury system. “[29] Judges, no less than any else, are well aware of and use modern technology in the course of their work. The Internet is a modern means of communication. Modern technology, and means of communication, are advancing at an ever increasing speed. We are aware that reference to the Internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will grow. We must however be entirely unequivocal. We emphasise, even if we do so by way of repetition, that if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury's (sic) deliberations, and ultimately their verdict, must be based – and exclusively based – on the evidence given in court, a principle which applies as much to communication with the Internet as it does to discussions by members of the jury with individuals in and around, and sometimes outside the precincts of the court. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the Internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial. [30] Information provided by the Internet (or any other modern method of communication) is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him to the risk of being influenced, even unconsciously, by whatever emerges from the Internet. This offends our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.”17 In January of 2012 a juror, Theodora Dallas, told fellow jurors that a man on an assault charge who was in their charge had previously been accused of rape. She was sentenced to 6 months imprisonment for contempt of court. Despite the fact that she was a University of Bedfordshire academic and originally from Greece she claimed that her grasp of English was “perhaps sometimes not that good”. Dallas had conducted her research at home and had clearly deliberately disobeyed the trial Judge’s instructions not to search the Internet. Lord Chief Justice Lord Judge in sentencing Dallas stated “misuse of the Internet by a juror is always the most serious irregularity and ineffective custodial sentences virtually inevitable.”18

17 18

Ibid. Paras [29] – [30]. AG v Dallas [2012] EWHC 156 (Admin) para [43]. 6

Other jurors alerted the Judge to Dallas’s actions and it is clear that, unlike the assertion by Dallas that she didn’t understand the instruction, were well aware of the Judges prohibition and repeated warnings regarding Internet research.19 In another case from England in November 2008 a juror was dismissed from a child abduction and sexual assault trial after she posted details of the case on her Facebook page, including her reactions to the testimony. At one point, she solicited the views of her Facebook friends telling them “I don’t know which way to go, so I am holding a poll”. Her actions were discovered before deliberations began and unsurprisingly she was dismissed as a juror.20 Our understanding of the extent of juror use of the Internet is assisted by a 2010 study of juries in England.21 “The study was conducted in three different locations (Nottingham, Winchester and London) and included 62 cases and 668 jurors. The sample included both long, high profile cases and standard cases lasting less than two weeks with little media coverage….. • • All jurors who looked for information about their case during the trial looked on the Internet. More jurors said they saw information on the Internet than admitted looking for it on the Internet. In high profile cases 26% said they saw information on the Internet compared to 12% who said they looked. In standard cases 13% said they saw information compared to 5% who said they looked.


See The Guardian 23 January 2012 “Juror Jailed over on-line research”; see also Joshua Rozenberg “Theodora Dallas: Inside the Jury Room” the Guardian 24 January 2012; see also The Huffington Post UK 23 January 2012. 20 (last accessed 23 February 2012). 21 Cheryl Thomas “Are Juries Fair” (Ministry of Justice Research Series 1/10, February 2010. Professor Thaddeus Hoffmeister carried out a survey which informed his article “Google Gadgets and Guilt: Judicial Misconduct in the Digital Age” (2012) 83 U Colo L Rev 409. At 414 – 415 he states “ In an attempt to resolve this question, the author conducted one of the first surveys on jury service in the Digital Age. This “Jury Survey” was sent to federal judges, prosecutors, and public defenders to learn how they viewed the impact of the Digital Age on jurors. The questions in the Jury Survey focused primarily on juror research but briefly touched upon juror communications. Although conducted anonymously, the Jury Surveys were written to distinguish responses from judges and practitioners. Of the responses received, approximately half were from federal judges, and the other half were from either federal public defenders or prosecutors. The Jury Survey served two purposes. First, it was used to determine the extent of the Digital Age's negative impact on jury service. According to the Jury Survey results, this effect is statistically significant. Approximately ten percent of the respondents reported personal knowledge of a juror conducting Internet research. In light of the difficulty of detecting this type of juror misconduct, this percentage probably underrepresents the actual number of jurors who use the Internet to research cases. The second purpose of the Jury Survey was to receive feedback from those who regularly interact with jurors in criminal trials. For the most part, the Jury Survey respondents agreed with the proposed reforms discussed in this Article. The one noticeable exception was the topic of allowing jurors to ask questions of witnesses, which was met with disapproval by most Jury Survey respondents.” (footnotes ommitted). Professor Hoffmeister’s article, although focussing upon American practice, contains an interesting and informative discussion of the problem and poses a number of solutions which are common to most American writers on this subject.


In the study jurors were admitting to doing something they should have been told by the judge not to do. This may explain why more jurors said they saw reports on the Internet than said they looked on the Internet. Among all jurors who said they looked for information on the Internet, most (68%) were over 30 years old. Among jurors on high profile cases, an even higher percentage (81%) of those who looked for information on the Internet were over 30.

The findings raise a number of questions that should be examined further: do jurors realise they are not supposed to use the Internet? How do they use the Internet: do they just look for information or do they also discuss the case on social networking sites? What type of judicial instruction would be most effective in preventing jurors from looking for information about their case on the Internet?”22 In Australia in June 2011, after a lengthy investigation by Victorian Police, a juror who went on-line and sought information during a high profile trial which ended in deadlock pleaded guilty and was fined $1200. He was the first person to be prosecuted under laws introduced to crack down on “do it yourself” jurors who could imperial trials.23 In 2009 the Baltimore City Mayor Sheila Dixon was indicted on political corruption charges by the State of Maryland. This was a high profile trial which proceeded to conclusion. Once the verdicts had been rendered the identities of the jurors, which had been kept confidential, were released. A reporter began checking Facebook accounts for the names of the jurors and discovered that 5 of the jurors had in fact become Facebook friends during the course of the trial and had communicated with one another over a weekend whilst the jury was considering its verdict. The 5 jurors were all under the age of 35. The reporting that followed resulted in an application by Dixon for new trial on the basis of juror misconduct. The issue of consequences, however, did not need to be addressed because an agreement was reached to dispose of both criminal cases against the Mayor by a plea encompassing indictments and an agreed sentence. The trial was therefore concluded without having to confront the issue of alleged juror misconduct in using Facebook. The Facebook Five from the Dixon case represents a new type of juror – described as a digital native, and which I shall discuss in Part 2 of this paper.24

22 23

Thomas above n. 21 p.vii – viii. Sunday Herald Sun 9 May 2010 page 1 and page 4; Sunday Herald Sun 19 June 2011. 24 Judge Dennis M. Sweeney (Ret) “Worlds Collide: The Digital Native Enters the Jury Box” (2011) 1 Reynolds Courts and Media Law Jnl 121 at 128. The terms “digital native” and digital immigrants” were first used by Marc Prensky in an article which suggested that students who were born into the Internet Age were no longer the people the educational system was designed to teach Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1;,%20digital%20immigrants%20-%20part1.pdf (last accessed 23 February 2012). For a brief introduction the the development of Presnsky’s theory seeWikipedia “Digital Native” (last accessed 23 February 2012) – for further discussion see below 8

The United States demonstrates a large number of cases where Internet use has potentially prejudiced trials. These are referred to collectively as Google mistrials – a term that arose from a New York Times article on the phenomenon.25 The following are some examples of Google mistrials in the United States – a sample only and is offered as illustrations of many of the problems that may arise. In California a Superior Court Judge found himself sitting as a juror on a murder case. He was designated to be the foreman. Throughout the trial he sent emails to his 22 colleagues on the bench, including the Judge presiding on the case, giving them updates on the progress of the case. After conviction counsel for the defendant discovered the emails and moved for a new trial which was denied although an appeal is pending.26 An appeal court in Maryland overturned a murder conviction because a juror conducted a Wikipedia search of various terms relevant to the trial, printed out the pages and brought them into the juror room during deliberations. When asked about it the juror said “to me that wasn’t research. It was a definition.”27 In Pennsylvania a juror in a shaken baby murder case was facing contempt charges for conducting Internet research on the symptoms that the child had, including the term “retinal detachment.” She offered to share research with her fellow jurors. A mistrial was declared. She was indicted for contempt.28 In May 2010 a Judge in Michigan fined a juror $250 and ordered her to write a five page essay about the constitutional right to a fair trial after the juror, during a trial, posted on her Facebook page the following “gonna be fun to tell the defendant they’re guilty”.29
Part 2; see also Sylvia Hsieh “’Digital Natives’ Change Dynamic of Jury Trials” Mass Law Wkly 7 November 2010 (last accessed 24 April 2012). 25 John Schwartz “As Jurors Turn to Web, Mistrials Are Popping Up”New York Times March 17 2009 (last accessed 23 February 2012). 26 Debra Cassens Weiss “Lawyer May Cite Judge-Juror’s ‘Livin’ the Dream’ E-Mails in New Trial Bid” ABA Jnl News Now 16 April 2010 (last accessed 23 February 2012); “Fresno judge's jokey jury chatter ruled immaterial” AP 10 August 2010 (last accessed 23 February 2012); People v Ortiz Case No F060792 (Cal App 5th Dist Appeal filed 11 August 2010). 27 Steve Lash “Md. jury's Wikipedia search voids murder conviction” The Daily Record 7 December 2009 (last accessed 23 February 2012). The case was Allan Jake Clark v State of Maryland No 0953/08 (Md. Ct Special App Dec 3 2009 – Unreported). 28 Brian Grow “Juror could face charges for online research” Reuters Legal 19 January 2011 (last accessed 23 February 2012). 29 Martha Neil “Oops. Juror Calls Defendant Guilty on Facebook, Before Verdict” ABA Jnl Law News Now, 2 September 2010. _in (last accessed 23 February 2012) For further examples of American cases involving juror Internet research see Gareth S Lacy: Untangling the Web: How Court should Respond to Juries using the Internet for Research” 9

Twitter was the focus of attention in two American cases. In a civil case in Arkansas involving fraud it was found a juror tweeted eight messages about the case using his mobile phone. The judge had forbidden jurors from researching trial-related information on the Internet, but did allow cell phone use on breaks and it was during this time that the tweets were sent. The tweets in question read as follows: ‘So, Johnathan, what did you do today?’ Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else’s money!” and “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter.”30 It was argued that the messages demonstrated that the juror was not impartial, had conducted outside research and was predisposed to giving a verdict that would impress his audience. The law of Arkansas required a defendant to prove an inward flow of information to the jury room that had influenced the verdict rather than an outward one. The Court held that the juror’s actions did not demonstrate bias.31 The juror was unrepentant and remarked that “courts are just going to have to catch up with technology.”32 In March 2009 a jury found former state senator Vincent Fuomo guilty on 137 federal corruption charges. After the conviction Fuomo moved for acquittal or a new trial on the grounds that the Court had refused to remove a juror after it was revealed that the juror viewed a news report about the trial and made public postings on Facebook, Twitter, and his blog during trial.33

(2011) 1 Reynolds Court and Media Law Journal page 169 at 173 to 176. ode=magazine (last accessed 23 February 2012). 30 Ebony Nicolas “A Practical Framework for Preventing “Mistrial by Twitter” (2010) 28 Cardozo Arts & Ent LJ 735 at 381. Peter Mychalcewycz, “Man’s Improper Tweeting Could Cause Mistrial” (Mar. 18, 2009), The tweets at issue are still available as of this writing: “‘So, Johnathan, what did you do today?’ Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else's money!” Posting of Johnathan Powell (johnathan) to Twitter, (Feb. 26, 2009; 17:09 EST); “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter.” Posting of Johnathan Powell (johnathan) to Twitter, (Feb. 26, 2009; 17:43 EST). (Tweets lasts accessed 5 April 2012). See also “What a Twit! Twitter-using juror may cause $12.6 million mistrial” NY Daily News 13 March 2009 (last accessed 23 February 2012). 31 John G. Browning, In Chambers – Summer 2009, The Dangers of the Online Juror, (last accessed 5 April 2012). 32 Ibid. This remark evidences one of a number of juror attitudes that could possibly explain why the use of the Internet and its associated protocols is becoming frequent among jurors. This issue will be discussed in more detail below. 33 US v Fuomo 639 F. Supp. 2d 544, 55 (E.D. Pa. 2009). 10

The Twitter message, posted during jury deliberations stated, “This is it . . . no looking back now!”34 At the application to remove the juror, he said that he used Twitter as a brief stream of consciousness diary of his thoughts and stated while it is possible to respond to Twitter postings and to read other users’ responses to tweets, he did not use such functions during the trial. The Court concluded that the juror’s comment “could not serve as a source of outside influence because, even if another user had responded to Wuest’s Twitter postings (of which there was no evidence), his sole message suggested that the jury’s decision had been made and that it was too late to influence him.”35 The comment disclosed no discernible prejudice because it was vague and unclear. Nothing in the comment referred to the trial or indicated any predisposition toward any party in the proceedings, and there was no evidence of any discussion of such matters with fellow jurors. The two “Twitter” cases indicate that Twitter communications may be examined to ascertain real or potential bias. The Arkansas case suggests that outward flow communications were permissible, although it should be acknowledged that different jurisdictions have different rules about jury communication. Nicolas comments that “The litigants challenging verdicts from tweeting jurors seem to treat tweets as reliable indicia of jurors’ thoughts. However, the litigants themselves recognise that sometimes, people who post things for an audience may tailor the post for their audience, thus making tweets less reliable for their truth. Thus, it’s not clear (from the Stoam and Fumo cases, at least) that Twitter is truly a reliable means of testing juror bias, and it’s not clear how seriously courts should treat Twitter as a threat to the administration of justice”36 That there should be a large number of “Google mis-trials” in the United States may be explained by the fact that there is a much wider use of the jury particularly in civil arena than is the case in many other common law jurisdictions such as Australia, New Zealand, England and Canada. I shall now move on consider why it is that jurors seem to be prepared to ignore judicial instructions and engage in conduct which may be prejudicial to the trial and expose them to some form of disciplinary contempt proceedings. Part 2 – Why Do Jurors Go On-line? The Internet allows practically anyone anywhere to disseminate information just about everywhere. Enlightenment era insistence upon essentialist foundations – be it by way of Locke’s empiricism, Kant’s rational categories or other totalising epistemologies – is being challenged by the digital experience.37 Richard Rorty in his forward to Gianni Vattimo’s
34 35

United States v. Fumo, No. 06-319, 2009 WL 1896028, at *117 (E.D. Pa. June 17, 2009). Ibid. 36 Nicolas above n. 30 p. 386. 37 Richard K Sherwin, Neal Feigenson, Christina Spiesel “Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory and Teaching of Law” (2006) 12 Boston University Jnl of Science and Technology Law 227. 11

Nihilism and Emancipation: Ethics Politics and Law said “ the Internet provides a model for things in general – thinking about the worldwide web helps us to get away from platonic essentialism, the quest for underlying natures, by helping us to see everything as a constant new changing network of relations.”38 The digital paradigm has resulted in the development of a generation within society who have known nothing else but digital information systems - Marc Prensky’s “digital natives.”39 Prensky was writing about students and their use of technology but the University students of whom he wrote in 2001 are now adults and available for jury service. “They have spent their entire lives surrounded by and using computers, videogames, digital music players, video cams, cell phones, and all the other toys and tools of the digital age. Today’s average college grads have spent less than 5,000 hours of their lives reading, but over 10,000 hours playing video games (not to mention 20,000 hours watching TV). Computer games, email, the Internet, cell phones and instant messaging are integral parts of their lives It is now clear that as a result of this ubiquitous environment and the sheer volume of their interaction with it, today’s students think and process information fundamentally differently from their predecessors. These differences go far further and deeper than most educators suspect or realize.”40 Prensky’s “digital natives” are “native speakers” of the digital language of computers, video games and the Internet. Those who were not born into the digital world but have, at some later point in life, become fascinated by and adopted many or most aspects of the new technology are “digital immigrants.” Prensky suggests that the difference is important because, like it or not, digital immigrants speak with a different “accent” from digital natives. “As Digital Immigrants learn – like all immigrants, some better than others – to adapt to their environment, they always retain, to some degree, their "accent," that is, their foot in the past. The “digital immigrant accent” can be seen in such things as turning to the Internet for information second rather than first, or in reading the manual for a program rather than assuming that the program itself will teach us to use it. Today’s older folk were "socialized" differently from their kids, and are now in the process of learning a new language. And a language learned later in life, scientists tell us, goes into a different part of the brain.”41 There is a third category which was not referred to by Prensky, but if I can use his language they may be classed as “digital aliens” those who wish to have nothing to do with the digital

Richard Rorty “Foreword,” in Gianni Vattimo, Nihilism & Emancipation: Ethics, Politics, & Law (Columbia University Press, New York, 2004) p. xvii. 39 Prensky above n. 24 40 Ibid. 41 Ibid. 12

paradigm, who do not wish to engage with the new technology or will not do so, and who resist the changes that new technologies demand of them. This grouping is normal in the introduction of a new technology. It is part of the normal co-existence of technologies until a new technology has been universally received, and the digital natives become an overwhelming majority.42 The closed system of the jury trial, contained by strict rules which discourage initiative and activism by the jurors, is premised on the assumption that jurors will accept the authority of the court to guide them and are willing to base their decision only on what the lawyer present43 does not mesh with the experience and values of the digital native juror or perhaps even many digital immigrants. Jurors are: a) only presented with the evidence that they are allowed to consider. b) The evidence has been vetted, filtered, and mediated by the Judge and the lawyers. c) Jurors are forbidden from taking the initiative and finding out information on their own. d) They are told to be largely passive and are told (at least in the United States) that they cannot discuss the evidence or the case with one another until it is time for deliberation. e) In the United States they are discouraged from asking questions during trial and once they are told to deliberate they are unable to obtain or be supplied with any new information or evidence even where they find significant gaps in what they have been told. f) Finally they have to decide the case on the basis of legal rules articulated by the Judge and they cannot use their own values or moral sense. This runs up against what could be described as the values of the Internet and the digital age or at least a perception of the relationship between information provided by the Internet and Internet users. One of the early slogans of the Internet and the digital age was the cry that information wants to be free. This didn’t refer only to the cost of obtaining information but also the concept that information, and especially information on the Internet, should not be controlled by governmental or corporate sources nor should it be reserved for a privileged few.44 The ultimate user of the information should be capable of evaluating sources of varying quality and make his or her own decision about what to use, rely on it or what to discard. The

As Steve Jobs put it when the Apple computer was first came on the market “When Apple first started out, "People couldn’t type. We realized: Death would eventually take care of this." Wall St Journal “All Things Digital” Conference April 2003, San Francisco. The report of the comments is at The Mac Observer Website “Steve Jobs: No Tablet, No PDA, No Cell Phone, Lots Of iPods” 4th June 2003 (last accessed 5 April 2012) 43 Sweeney above n. 24 at 130. 44 The Internet therefore allows greater “democratisation” of information. 13

information available on the Internet is broad in nature. The individual must sort through the results and the user must decide what the value and explore and what to discount. Unlike information at trial where a juror may not be able to examine the exhibits until deliberations, the Internet user with electronic devices can access information immediately from virtually any location, save it or retain it or bookmark it and review it as often as desired and also link it to other information. The Internet allows the user to discuss any subject public or private, with other people at any time of the day or night in considerable detail or within the 140 character limitation of Twitter. It should not, therefore, be surprising for a digital native – one used to the world of the Internet and social media – that the methods and form of acquiring information in a trial may seem stifling, inefficient and unduly restrictive.45 Another reason why jurors may wish to have resort to the Internet has to do with their perceived role in the process. Morrison makes the observation that jurors are often trying to gain information about the defendant’s background, the circumstances of the case and the effects of the law in an effort to achieve the most accurate result. She argues that such attempts may not reflect misconduct so much as a misplaced sense of responsibility to render the right decision.46 Internet access may be giving juries a means, although unauthorised, of sending a signal that they are frustrated with the restrictions associated with their role. Morrison suggests that juries seem to have been relegated to players within the trial process whose information about what is going on is severally constrained by the Judges, the lawyers and the rules of evidence.47 The Internet’s “democratisation” of information has extended to the jury room and the emerging issue of Internet use by jurors may reflect in attempt to regain a measure of control over the proceedings that has since been given over to the legal profession. The trial process and the rules of evidence reflect a concern that the wrong kind of evidence will distract jurors or cause them to decide on emotional or irrational bases. The result is that jurors operate in a highly restrictive, formalistic environment that ensures that only some relevant information will be admitted. Some jurors may feel that the lawyers and the Judge form some sort of elite club from which they are excluded, as if the adversarial system is “based on the Judge and the Attorneys being in the know about everything and the jury being in the dark”. This may not be new. What has changed, however, is the jurors’ ability to do something about it,48 and jurors, like other people, are generally unable to disregard

45 46

Sweeney above n. 24 p. 131. Caren Myers Morrison “Jury 2.0” (2011) 62 Hastings LJ 1579 at 1581. 47 Ibid. Also see above n. 32 as an example of the attitude. 48 Ibid. p.1585-6. 14

information that they know and that they consider to be relevant, whether they ought to or not.49 Furthermore, juror “research” may amount to more than the perusal of on-line newspapers. a) on-line activity has become fully embedded in most people’s everyday lives. While a juror might refrain from reading the paper, it might be impossible to refrain from checking in RSS feed. Information may be available from websites that contain legal information, case law databases, legal blogs or targeted sites that contain details of previous convictions such as a site operated by the Sensible Sentencing Trust.50 In addition, there is almost limitless information available on the Internet even about facts or individuals which would not otherwise be deemed news worthy. because there is no system of fact checking on the web information may be incomplete erroneous or false.


c) d)

Part of the difficulty is that courts operate on the assumption that jurors will abide by legal instructions but the psychological literature and empirical studies show that jurors frequently misunderstand these.51 The Internet, with its virtual connections that seem almost – but not quite – real, confuses jurors further. It provides an opportunity to check and to ensure that the right result is being reached as a way of ensuring that decision making freedom is maintained. The conflict models of the adversarial system seem to be yielding to alternative truth-seeking strategies. Yet there is more to it than that, and to a large degree it has to do with the way in which we respond to new communication technologies. Morrison describes this as the “siren song” of the web.52 The Internet represents a different paradigm in communications technology – part of what may be referred to as the Digital Paradigm. It is quite different from other media that have gone before. As one psychologist put it “being highly interactive, computers are much more captivating than passive media such as television.”53 This takes McLuhan’s theory of “hot” and “cool” technologies a step further.54 The difference between reading, for example,

Shari S. Diamond, “Beyond Fantasy and Nightmare: A Portrait of the Jury” (2006)54 Buff. L. Rev. 717 75051. 50 (last accessed 11 April 2012). 51 Morrison above n. 46 p. 1608-9. 52 Ibid. p. 1612. 53 Michael G. Wessells Computer, Self and Society (Prentice Hall, Englewood Cliffs, NJ, 1990) p. 214 54 Marshall McLuhan Understanding Media: The Extensions of Man (McGraw Hill, NY 1964) In the first part of Understanding Media, McLuhan stated that different media invite different degrees of participation on the part of a person who chooses to consume a medium. Some media, like the movies, were "hot"—that is, they enhance one single sense, in this case vision, in such a manner that a person does not need to exert much effort in filling in the details of a movie image. McLuhan contrasted this with "cool" TV, which he claimed requires more effort on the part of the viewer to determine meaning, and comics, which due to their minimal presentation of visual detail require a high degree of effort to fill in details that the cartoonist may have intended to portray. A movie is thus said by McLuhan to be "hot", intensifying one single sense "high definition", demanding a viewer's attention, and a comic book to be "cool" and "low definition", requiring much more conscious participation by the reader to extract value. Hot media usually, but not always, provide complete involvement without considerable stimulus. For example, print occupies visual space, uses visual senses, but can immerse its reader. Hot media favour analytical precision, quantitative analysis and sequential ordering, as they are usually sequential, linear and logical. They 15

and television depended upon the level of engagement with the medium. The level of interactivity with the medium as far as the Internet is concerned is significantly higher than with a book or with a television programme. And it must be remembered that the Internet is more than just an information platform and has moved to the interactive and participatory world that is Web 2.0 enabling the launch of Wikipedia, YouTube, Facebook, Myspace and Twitter. The Internet has become a kind of universal companion that enables people to confide, exhibit themselves and vent their frustration in ever increasing numbers.55 Yet the Internet works in other ways. There is an illusion of anonymity. Immediacy encourages transgressions through the phenomenon of dis-inhibition which leads to impulsive behaviour.56 Psychologists have found that people are less inhibited and reveal more about themselves on-line because they feel invisible and protected by the Internet’s seeming anonymity. Some people prefer to interact on-line rather than face-to-face. According to one psychiatrist, deficits in insight and judgment maybe especially obvious in the context of Internet behaviour.57 Furthermore there is often an element of dissociation with reality which encourages a certain amount of unjustified self-confidence that a particular behaviour will go unnoticed, is not wrong or is being performed in a space – often in the private space of a room in a home or an apartment – which lends a certain justification to the behaviour.58 In the same way that the computer criminal is a greater threat to the community in terms of the nature of his criminality than the fraudster who presents a credit card across a counter – simply because the computer criminal does not have to interact with other people in the pursuit of his crime – the juror feels likewise alienated from the court room environment which occupies a different world in terms of culture – especially informational acquisition culture – from that to which he or she is accustomed. Morrison is of the view that various Internet protocols exercise their own particular fascination. “Blogging, posting status updates, and tweeting present their own compulsive
emphasize one sense (for example, of sight or sound) over the others. For this reason, hot media also include radio, as well as film, the lecture and photography. Cool media, on the other hand, are usually, but not always, those that provide little involvement with substantial stimulus. They require more active participation on the part of the user, including the perception of abstract patterning and simultaneous comprehension of all parts. Therefore, according to McLuhan cool media include television, as well as the seminar and cartoons. McLuhan describes the term "cool media" as emerging from jazz and popular music and, in this context, is used to mean "detached "Any hot medium allows of less participation than a cool one, as a lecture makes for less participation than a seminar, and a book for less than a dialogue." Understanding Media p. 25. The “hot-cool” dichotomy fell out of favour after McLuhan’s death in 1980 and today is described as having a “charming, almost antique patina.” Paul Levinson Digital McLuhan (Routledge, New York, 2001) p.9. It is offered in this context as an example of the analysis which may be extended into technologies that were only just beginning to appear at the time of McLuhan’s demise. 55 Morrison above n. 46 p. 1612. 56 Jayne Gackenbach & Heather von Stackelberg, “Self Online: Personality and Demographic Implications”, in Jayne Gackenbach ed.Psychology and the Internet: Intrapersonal, Interpersonal, and Transpersonal Implications (2d ed.) (Academic Press, Burlington MD 2007) p. 141, 160–61. 57 Patricia R. Recupero, “The Mental Status Examination in the Age of the Internet” (2010) 38 J. Am. Acad. Psychiatry L. 15, 19. 58 In my view this dissociative aspect of the behaviour of Internet fraudsters is an aggravating factor in their crime. Unlike the “real world” cheque utterer, the Internet fraudster does not have to confront the victim face to face, often leading to a complete absence of empathy with the victim. 16

appeal.”59 The externalisation of thoughts that may be read by others may lead to an assumption that all of one’s thinking should be externalised.60 For some, waiting around on jury duty with access to WiFi can be tedious, prompting posts to Twitter or to a blog. “I am stuck in jury duty today, but being that Multnomah County is the coolest of counties, of course the jury waiting room has Wi-Fi! So of course that means one thing: I’m live blogging jury duty. Is this legal? Am I in contempt of court? I don’t know, but I am sitting in a big, drab room with about 100 other people, waiting around to see if our number is called to go up stairs and serve on a trial, and it is obvious that this must be blogged about. I’ll have to run home during the lunch break and grab my camera so I can post some pictures of this afternoon’s action.”61 It could be said that a convenient summary of why jurors carry out their own research may be answered by the phrase “because we can” and this would probably be the justification advanced by the digital native. Yet I would suggest that there is more to the issue that that, and there are deeper currents that are associated with new information communications paradigms that may help to explain the way in which the Internet has taken hold. The Internet, Information Technology and Drivers for Change When we consider information technologies in the main we focus upon what is delivered (the content) rather than how it is delivered (the medium). The focus upon content obscures some of the deeper realities of the technology and how it alters or affects our attitudes to, uses and expectations of information. In considering the first information technology, Elizabeth Eisenstein suggested that the capacity of printing to preserve knowledge and to allow the accumulation of information fundamentally changed the mentality of early modern readers, with repercussions that transformed Western society.62 Ancient and Medieval scribes had faced difficulties in preserving the knowledge that they already possessed which, despite their best efforts, inevitably grew more corrupted and fragmented over time. The advent of printed material meant that it was no longer necessary for scholars to seek rare, scattered manuscripts to copy. The focus shifted to the text and the development of new ideas or the development of additional information. The printing press was paradigmatically different from the earlier scribal or manuscript culture in terms of making information available.

59 60

Morrison above n. 46 p. 1614. David Gibson “Complexity and Social Networks Blog” March 23, 2009. (last accessed 11 April 2012). 61 Matt McCormick “Live Blogging Jury Duty” Action Items by Matt McCormick 20 July 2006. (last accessed 11 April 2012) 62 Elizabeth Eisenstein The Printing Press as an Agent of Change – Communications and cultural transformations in Early Modern Europe (Cambridge University Press, Cambridge 1997) 1 Vol; Elizabeth Eisenstein The Printing Revolution in Early Modern Europe (Cambridge University Press – Canto Edition, Cambridge 2000). 17

In developing her theory, Eisenstein went below the content that print made available and examined certain characteristics, qualities or properties possessed by print that differentiated it from earlier forms of information communication. These qualities were: a) dissemination b) standardisation c) reorganization d) data collection e) fixity and preservation f) amplification and reinforcement. 63 In many respects these properties remain in digital technologies but in an enhanced form. In addition there are a number of other qualities that digital information systems possess that are paradigmatically different from those possessed by print. Some of these can be identified as follows: a. Persistence b. Dynamic Information c. Continuing change – the disruptive element d. Dissociative enablement e. Permissionless innovation f. Permanent connectedness g. Participatory information creation and sharing h. Searchability i. Availability and remote access j. Retrievability I shall refer to the quality of persistence shortly. Perhaps the last three qualities can be dealt with as a single unit for they are related. Searchability deals with the ability to locate information from the vast store of information that is located across the Internet. Complex search engines assist users to find the information that they seek. Availability means that the information can be readily obtained. No longer does the user have to go to the library, wait for the book to be returned to the library, or for interloan to send the book. Information becomes instant. Retrievability follows availability. Once the existence and location of the information is determined, it can be obtained. These qualities of themselves don’t mean much until we understand what they enable. The fact that Internet users may not understand the nature of these properties, but accept them as a given in the quest for content, means that these qualities subconsciously impact upon expectations of information (instantly available) and they way that users deal with it and process it. These qualities challenge the jury system and inform the title of this paper – the juror is enabled to readily locate information that may have a bearing on a case, not because that

Ibid. The Printing Press as an Agent of Change p. 71 et seq. 18

juror is willingly flying in the face of a judicial directive to the contrary, but because the Internet is the way in which information is obtained, rather than through the archaic processes of a trial. That, together with the property of dissociative enablement – the ability to obtain information privately and undetected – allows a different mindset that sidesteps the morality of obtaining information outside the trial process. The “permissionless innovation” and “permanent connectedness” of the Internet has allowed for a number of other applications and utilities which, along with the interactive nature of Web 2.0, present further challenges. These can broadly be referred to as social media tools. Social media recognise that man is a social animal and the Internet allows for socialization on a scale far wider than in clubs, bars or workplaces. Social Media In 2010 the committee of the Conference of Court Public Information Officers issued a report on the impact that the new media is having on the court system.64 The findings of that study were interesting. It observed • that there are emerging interactive social media technologies that are powerfully multimedia in nature; • that there are fundamental continuing changes in the economics, operation and vitality of the news industry that courts have relied upon to connect with the public; • and there are broader cultural changes in how the public receives and processes information and understands the world. These “new media” pose a number of challenges to Courts and their culture. • • New media are decentralised and multi directional whilst the courts are institutional and largely unidirectional. New media are personal and intimate whereas Courts are separate, sometimes cloistered and by definition independent.


New Media and the Courts: The Current Status and a Look at the Future. (Last accessed 27 February 2012) For continuing developments see (Last accessed 27 February 2012). The survey continues and the third survey carried out in 2012 is interesting. It revealed: • The participation of judges in the survey continued to climb, as did their use of the technologies surveyed • The percentage of judges who strongly agree that their own use of the technologies in the survey poses no threat to professional ethics has doubled since the first year of the survey. This applies whether the technologies are used in personal or professional lives. • The percentage of judges who strongly agree that courts as institutions can use the technology without compromising ethics has also doubled since 2010. • The percentage of judges who strongly agree that new media are necessary for public outreach has doubled since 2010. The 2012 report at page 3 pointed to developments that had occurred since the 2011 report indicating increased court social media use and further use of communications systems to inform the public in varying levels of detail and sophistication of court processes. See (last accessed 23 August 2012) For the full 2012 report see (last accessed 23 August 2012). 19

New media are multimedia incorporating video and still images, audio and text whilst Courts are highly textual.

Into this cloistered and highly textual environment come jurors whose perceptions have been formed by the media to which they have been exposed. The report identifies 7 categories of new media technology that impact upon the Courts. These are: 1) Social media profile sites (Facebook, Myspace, Linkedin, Ning) which allow users to join, create profiles, share information and view still and video images with a defined network of “friends”. 2) Microblogging (Twitter, Tumblr, Plurk). Microblogging is a form of multimedia blogging that allows users to send and follow brief text updates on micromedia such photos or audio clips and publish them on a website for viewing by everyone who visits the website or by a restricted group. Microbloggers can submit messages in a variety of ways, including text messaging, instant messaging, email or digital audio. 3) Smart phones, tablets and notebooks (iPhone, iPad, Droid and Blackberry). This category is defined by those mobile devices that can capture audio, as well as still and video images, and post them directly to the Internet. These devices also enable users to access the Internet, send and receive emails and instant messages, and otherwise connect with on-line networks and communities through broadband or Wifi access. 4) Monitoring and metrics (Addictomatic, Social Seek, Social Mention, Google Social Search, Quantcast) This category includes the large and increasing body of sites that aggregate information about Internet traffic patterns and what is posted on social media sites. They display analysis of how a particular entity is portrayed or understood by the public. 5) News categorising, sharing and syndication (Blogs, RSS, Dig, Reddit, Delicious) this is a broad category that includes websites and technology that enable the easy sharing of information, photos and video, and the categorisation and ranking of news stories, posts to blogs and other news items. 6) Visual media sharing (Youtube, Vimeo and Flikr) these sites allow users to upload still and video images that are stored in searchable data bases and easily shared and can be emailed, posted, or embedded into nearly any website. 7) Wikis. A Wiki is a website that allows for the easy creation and editing of multiple interlinked web pages via a web browser using a simplified mark-up language or a WYSIWYG (what you see is what you get) text editor. Among the uses for wikis are the creation of collaborative information resource websites, power community websites and corporate intranets. The most widely recognised and used wiki is the collaborative encyclopedia Wikipedia. In other much lesser known wiki that has an impact on the judicial system and is the subject of study in the new media project is Judgepedia.

All of these categories of new media involve the creation, assembly and dissemination of information. Many of these utilities have been adopted by mainstream media on the Internet to the extent that there is a significant element of media convergence.65 Not only may information about cases be disseminated in a multitude of ways by mainstream media but may be the subject of commentary discussions and opinion on blogs and twitter. In addition, modern technology means that the Internet is accessible virtually anywhere – the quality of permanent connectedness. Portable wireless devices mean that an individual may blog or tweet from anywhere, including inside a Court room. Miniaturised devices such as smart phones mean that such activity may be carried out discreetly. Once this information is on the Internet it is readily available and the “persistence” quality of the Internet means that, like the Internet itself, it is always available. Information posted on the Internet remains there – it is contained in the “document that does not die.” Although a website may have suffered from “link rot” and may not be immediately accessible, it may be located by means of a utility known as the “Wayback Machine” which indexes websites and makes them available as part of a project known as The Internet Archive.66 Some websites prevent the “harvesting” of their websites by use of anti-robot or webspider devices. The New Zealand Herald is one example. However, TVNZ websites are available as far back as 1997.67 Thus information about Court proceedings and what has gone before from the commencement of an investigation may be available pre-trial, during trial and post trial and is available to anyone who has an Internet connection. The wide variety of social media and new media tools which continue to develop as new ideas manifest themselves as the result of “permissionless innovation” means that to try and identify any one particular type of application or utility is an exercise in futility mainly because information may be available from a number of sources. Large scale search engines, such as Google, rank information on the basis of a number of factors. Internet users posting information may take advantage of ranking to ensure that a particular site may appear on the first page of a search result. News media are particularly adept at this by making sure that imbedded in their material are terms that will lift rankings in the search engines. The other side of this particular coin is that much information that is on the Internet is simply buried because it doesn’t rank as highly as others on search engines. Only the most devoted

NZ Law Commission The News Media Meets ‘New Media’ – Rights, Responsibilities and Regulation in the Digital Age (Law Commission , Wellington, December 2011 Issues Paper 27) pp. 20 – 29. 66 (last accessed 27 February 2012). 67*/ (last accessed 27 February 2012). Archives for the Sydney Morning Herald go back as far as 31 December 1996. The Guardian is indexed back to 5 November 1996 although indexing ceases in 2008. Whilst the Wayback Machine may not be absolutely comprehensive, it does add another layer to the concept of information persistence and its presence is as a result of the permissionless innovation that the Internet allows. 21

or dedicated researcher is going to go through the thousands of hits that a particular search may reveal. This means, for example, that many bloggers who may feel that they have something to say, in fact broadcast to a limited audience. The impact that these contributors make to the informational soup is very low. On the other hand a highly distributive utility such as Twitter means that a message sent to a small group of followers may well be retweeted to an infinitely larger audience. Because of the persistence, permanent connectedness, availability, searchability and retrievability of information, what has been described as “practical obscurity” of information means that information that once was difficult to find is readily available. For example to recover a newspaper report of the arrest of a high profile person in pre-Internet days may have necessitated a trip to a library newspaper room and a diligent search through back issues of a newspaper to locate the information. The Internet now makes that information instantly available and it is fresh as the day upon which it was published. The eroded memory – what could be called “partial obscurity” – can be quickly restored as the easily locatable reports or information appears on the screen. Thus the one of the many truly revolutionary qualities of the Internet is the challenge to the obscurity of information. Yet perhaps one of the most challenging aspects of the Internet is that it never sits still. This has to do with the way in which the Internet has been structured. For many the Internet is the World Wide Web, but it is not. In fact the Web is an application that “piggybacks” upon and utilises the infrastructure that the Internet provides. The quality of “permissionless innovation” allowed Tim Berners-Lee to put the concept of the Web on the backbone of connections and servers that comprise the Internet backbone – the “real” Internet. In its most basic form the Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (often called TCP/IP, although not all protocols use TCP) to serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of electronic, wireless and optical networking technologies. John Naughton uses the metaphor of the railway to describe the Internet. “Think of the Internet as the tracks and signalling technology of the system – the infrastructure on which everything runs. In a railway system different kinds of traffic run on the infrastructure: high-speed express trains, slow stopping trains, commuter trains, freight trains and (sometimes) specialist maintenance and repair trains”68 What this infrastructure enables is disruptive, permissionless innovation. Disruptive innovation is defined as “a process by which a product or service takes root, initially in simple applications at the bottom of a market and then relentlessly moves ‘up market’,


John Naughton From Gutenberg to Zuckerberg – What You Really Need to Know About the Internet (Quercus, London 2012) p.39-40. 22

eventually displacing established competitors.”69 The disruptiveness of the Internet is a feature that derives from the basic architectural principles of the network’s design. When Vinton Cerf and Robert Kahn developed the TCP\IP (packet addressing and transmission) protocol that allowed the various different networks and computer types to seamlessly link there were two principles that drove them, and that are the bedrock of the architecture of the Internet; There should be no central control The network should not be optimised for any particular application – the “end-to-end” principle.70

Thus, if one had an idea for a new application that could be achieved using the transmission of data packets, the network would allow it without any query about the nature of the application or what it transmitted. A number of phrases developed to describe this phenomenon such as “stupid network, smart applications” but ultimately it became known as the “end to end” principle and it was this, together with the lack of a central controlling or approval body that enabled entrepreneurs and developers to think up applications that could utilise the capabilities of the network. Examples abound but some of the more outstanding are the development of the World Wide Web by Tim Berners-Lee, the first killer file sharing application Napster71 by Shawn Fanning released in 1999, the introduction of by Jeff Bezos in 1995, the Wiki software developed by Ward Cuningham in 1994-5 which enabled the editing and updating of web pages on the fly in a browser and which was adopted by Wikipedia founders Jimmy Wales and Larry Sanger in 2001, the introduction of Google72 in 1998 by Larry Page and Sergey Brin, the development of the social networking site Facebook by Mark Zuckerberg in 200473 and Twitter developed by Jack Dorsey in 2006. The examples that I have given are just a small handful but they and others like them demonstrate an important fact about the Internet and it is this – the Internet will not allow for

Clayton Christensen, Curtis W. Johnson. Michael B Horn Disrupting Class: How Disruptive Innovation Will Change the Way the World Learns (McGraw Hill, New Yotk 2008). (last accessed 11 April 2012). 70 For a recent discussion of the architecture of the Internet see Barbara van Schewick Internet Architecture and Innovation (MIT Press Cambridge Mass 2010). Cerf and Kahn’s protocol was based on the transmission of packets of data. The system was indifferent as to the content of the packets. 71 A realisation of “The Celestial Jukebox” as envisaged by Paul Goldstein Copyright’s Highway: The Lore and Law of Copyright from Gutenberg to the Celestial Jukebox ( Stanford University Press, Stanford CA 1994) “A technology-packed satellite orbiting thousands of miles above the Earth awaiting a subscriber’s order – like a nickel in the old jukebox, and the punch of a button – to connect him to any number of selections from a vast storehouse via a home or office receiver that combines the power of a television set, radio, CD player, VCR, telephone, fax, and personal computer” p. 199. See also John Naughton “The Joys of the Celestial Jukebox” (The Observer, July 4 2004) (last accessed 12 April 2012). 72 Google’s mission is "to organize the world's information and make it universally accessible and useful" (last access 12 April 2012) . 73 Although Facebook was not the first social networking site – others include MySpace, Bebo, Friendster and LinkedIn. 23

a period of stability – a time for us to pause, reflect and regroup. There will continue to be new applications and new surprises which digital natives are going to adopt and adapt and which will continue to challenge institutions that developed in a different paradigm. Change, Communication and Juror Behaviour But what has all this to do with juror behaviour? I suggest that it is a part of a deeper issue about how we adapt to new technologies and to new communications technologies in particular. Communication is an essential part of man’s social nature. Without communication there would be isolation. For thousands of years our primary means of communication was oral. Writing and literacy are recent arrivals. Plato railed against writing as a challenge to the powers of memory.74 The arrival of the printing press followed upon centuries of the scribal culture which had developed into a static form of information communication.75 The printing press was the first information technology and provided the basis for a number of changes in the way in which people thought and behaved. It demonstrated McLuhan’s aphorism “We shape our tools and afterwards our tools shape us.”76 Within the pre-print culture, orality dominated as the principal form of social communication. The printed book gave rise to the muting of orality as the reader retired into his or her own mind.77 Reading made different demands on people – immobility, isolation, silence, concentration “the ability to immerse oneself in the thought processes of the writer and to remember and make links with the thoughts of writers as expressed in other texts.”78 Although reading had been a part of the human existence for thousands of years before printing, the advent of printed material made the written word available to a wider audience. However, humans are not genetically structured for reading in the way that we are for oral language. Maryanne Wolf in her book on the neuroscience of reading79 argues that reading changes the way that our brains are organised which has had an impact on the way in which the species evolved. It is based upon what neuroscientists refer to as the plasticity of the brain. As we acquire new skills, new connections are created in the brain and new neural pathways are developed. Wolf puts it this way:

“If men learn this, it will implant forgetfulness in their souls; they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves, but by means of external marks. What you have discovered is a recipe not for memory, but for reminder. And it is no true wisdom that you offer your disciples, but only its semblance, for by telling them of many things without teaching them you will make them seem to know much, while for the most part they know nothing, and as men filled, not with wisdom, but with the conceit of wisdom, they will be a burden to their fellows.” Plato Phaedrus 275 a-b. 75 Saint Bonaventura “A man might write the works of others, adding and changing nothing, in which case he is simply called a 'scribe' (scriptor). Another writes the work of others with additions which are not his own; and he is called a 'compiler' (compilator). Another writes both others' work and his own, but with others' work in principal place, adding his own for purposes of explanation; and he is called a 'commentator' (commentator) . . . Another writes both his own work and others' but with his own work in principal place adding others' for purposes of confirmation; and such a man should be called an 'author' (auctor).” 76 Marshall McLuhan Understanding Media above n. 54. 77 For a full discussion of the impact of the reading revolution see Neil Postman The Disappearance of Childhood (Vintage\Random House New York 1994). 78 Naughton From Gutenberg above n. 68 p. 24. 79 Maryanne Wolff Proust and the Squid: The Story and Science of the Reading Brain (Harper Collins, New York 2007). 24

“Thus the reading brain is part of highly successful two-way dynamics. Reading can be learned only because of the brain’s plastic design, and when reading takes place, that individual brain is forever changed, both physiologically and intellectually. For example, at the neuronal level, a person who learns to read in Chinese uses a very particular set of neuronal connections that differ in significant ways from the pathways used in reading English. When Chinese readers first try to read in English, their brains attempt to use Chinese-based neuronal pathways. The act of learning to read Chinese characters has literally shaped the Chinese reading brain. Similarly, much of how we think and what we think about is based on insights and associations generated from what we read.”80 Thus we can see how McLuhan’s aphorism begins to work. But the matter does not end there. According to Postman reading fosters rationality and the form of the printed book encourages what Walter Ong called “the analytic management of knowledge”.81 Postman suggests that the printed text engages powers of classification, inference making and reasoning. “It means to uncover lies, confusions, and over-generalizations, to detect abuses of logic and common sense. It also means to weigh ideas, to compare and contrast assertions, to connect one generalization to another. To accomplish this, one must achieve a certain distance from the words themselves, which is, in fact, encouraged by the isolated and impersonal text. That is why a good reader does not cheer an apt sentence or pause to applaud even an inspired paragraph. Analytic thought is too busy for that, and too detached.”82 Of course these forms of analysis and qualities existed in the scribal era which was predominated by an oral culture - and the modern jury is a creature, still, of oral culture – but Postman is suggesting that print enhanced and developed these qualities even further and resulted in the development of Typographical Man for whom the written and printed word achieved a dominance both consciously and, because of brain plasticity, subconsciously. Sven Birkerts puts it this way “The order of print is linear, and is bound to logic by the imperatives of syntax. Syntax is the substructure of discourse, a mapping of the ways that the mind makes sense through language. Print communication requires the active engagement of the reader’s attention, for reading is fundamentally an act of translation. Symbols are turned into their verbal referents and these are in turn interpreted. The print engagement is essentially private. While it does represent an act of communication, the contents pass from the privacy of the sender to the privacy of the receiver. Print also posits a time axis; the turning of pages, not to mention the vertical descent down the page, is a forward moving succession, with earlier contents at every point serving
80 81

Ibid. p.5. Cited in Postman The Disappearance of Childhood above n.77 at p. 51. See generally Walter Ong Orality and Literacy: The Technologising of the Word (Routledge, Oxford 2002). 82 Neil Postman Amusing Ourselves to Death: Public Discourse in the Age of Showbusiness (Penguin Books, New York 1986) p. 51. 25

as a ground for what follows. Moreover, the printed material is static – it is the reader, not the book, that moves forward. The physical arrangements of print are in accord with our traditional sense of history. Materials are layered; they lend themselves to rereading and sustained attention. The pace of reading is variable, with progress determined by the reader’s focus and comprehension.”83 Lest one consider that the advent of the e-book or the Kindle will allow reading to continue unabated as before, Birkerts responds in this way: “I’m not blind to the unwieldiness of the book, or to the cumbersome systems we must maintain to accommodate it—the vast libraries and complicated filing systems. But these structures evolved over centuries in ways that map our collective endeavor to understand and express our world. The book is part of a system. And that system stands for the labor and taxonomy of human understanding, and to touch a book is to touch that system, however lightly.... Literature—our great archive of human expression—is deeply contextual and historicized. We all know this—we learned it in school. This essential view of literature and the humanities has been—and continues to be—reinforced by our libraries and bookstores, by the obvious physical adjacency of certain texts, the fact of which telegraphs the cumulative time-bound nature of the enterprise. We get this reflexively. But reflexes are modified by use and need. As Marshall McLuhan argued decades ago, technology changes reflexes, replacing them with new ones. Our rapidly evolving digital interface is affecting us on many levels, not least those relating to text and information. We read and absorb as the age demands, and our devices set the pace. I was in a crowd at a poetry reading recently, eavesdropping on the conversation behind me. Somebody referenced a poem by Wallace Stevens but couldn’t think of the line. Her neighbor said “Wait—” and proceeded to Blackberry (yes, a verb) the needed words. It took only seconds. Everyone bobbed and nodded—it was the best of all worlds.”84 Thus are our thought processes dictated by the medium. The Internet is at least as revolutionary a technology as the printing press was and it is no accident that I referred to our present information era as “The Digital Paradigm” because the new information systems that are available to us are as paradigmatically different from print as print was to the scribal culture. The networked media is like an ecosystem – a community of organisations, publishers, authors, end users and audiences which, along with their environment, function as a unit.

Sven Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA, 1994) p. 122. 84 Sven Birkerts “Resisting the Kindle” (The Atlantic March 2009). (last accessed 12 April 2012). 26

Until the advent of the Internet our media ecosystem was dominated by monolithic “one-tomany” media85 that shaped discourse and dominated entertainment and sport. The established and largely centralised media had a significant impact upon public and private life and culture. The discourse was limited to what was approved for print or broadcast. The ecosystem has changed dramatically. The Internet now overshadows main stream media and the continuing use of computers and the computing power of the mobile phone will mean that the Internet will replace mainstream media as the “dominant species” within the media ecosystem. In the same way that Birkerts expressed concerns at the decline of reading, others have developed a dystopian view of the networked world that in some ways focuses attention upon the nature of the changes that are taking place – the way in which the tool of the Internet is beginning to shape us, as McLuhan would have it. The Internet seems to erode the capacity for contemplation and concentration. Nicholas Carr observed “Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages. I get fidgety, lose the thread, begin looking for something else to do. I feel as if I’m always dragging my wayward brain back to the text. The deep reading that used to come naturally has become a struggle.”86 Yet the Internet is largely a text based system and it may well be that we are reading more. The problem is that the nature of what we are reading and the way that we process the material is changing – once again Wolf’s brain plasticity theory. She worries that the style of reading promoted by the Net, a style that puts “efficiency” and “immediacy” above all else, may be weakening our capacity for the kind of deep reading that emerged when an earlier technology, the printing press, made long and complex works of prose commonplace.87 Could it be that, within the next few decades, our dependence upon digital information and

85 86

Print, radio, television all shared these qualities. Nicholas Carr Is Google Making Us Stupid ( The Atlantic July/August 2008) (last accessed 12 April 2012). See also generally Nicholas Carr The Shallows – How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010). The issue of the impact of new information systems upon cognition is referred to (citing Carr’s article) in Nicole L. Waters & Paula Hannaford-Agor “Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System and the American Criminal Justice System” (unpublished) I am grateful to Ms Hannaford-Agor for a copy of the article which is to be published in a forthcoming encyclopaedia on criminology and criminal justice. 87 Ibid. 27

Internet technologies will make us functionally incomptent to engage in reasoned decisionmaking unless we are plugged into or have immediate access to cyberspace? All of this is a long way from the jury room and the issue of the Googling Juror but it does help to explain a few things. The combination of the qualities that Internet information possesses with the way in which the use of a new communications technology affects our dynamic thought patterns and cognitive ability means that the Internet becomes an essential information resource to which we are adapting – have become adapted? – and which will be the principal information resource for the Digital Natives as Encyclopaedia Britannica was for those born in the mid-twentieth century. The sense of loss expressed by Birkerts and Carr can be explained in terms of cognitive and thinking abilities which were developed in the print paradigm and which mourn its passing. The linear side-to-side verticality of reading and processing information becomes replaced with a hypertexted system of information that is not only dynamic in itself but encourages dynamic behaviour on the part of the users, as they switch from a webpage to instant messaging to email to a Skype session. Lord Chief Justice Judge put this into the context of the jury trial when he wrote: “Let me now consider my grandchildren. Not perhaps the youngest two, but the teenagers. They are technologically proficient. Much of their school work is done by absorbing information from machines. They consult and refer to the Internet. When they do so they are not listening. They do not, as we did, sit in class for 40 minutes listening to the masters and mistresses providing us with information. They are provided with information in written form, which they assimilate into their own technology. Now, what this form of education lacks is training in the ability to sit still and listen, and I emphasise, listen and think, I repeat, listen and think simultaneously, for prolonged periods. Yet that is an essential requirement for every juror.”88 What is perhaps so dramatic about this passage is that His Lordship describes a trial system that depends upon orality as its focus, and perhaps what he fails to recognise is that the Digital Natives find such a means of absorbing information completely incompatible with the way in which their learning systems are becoming adapted as a result precisely of the technological proficiency to which His Lordship refers. The means of information gathering is radically different from that acquired from a book, as I suggest above and as Birkerts observes. “Information and contents do not simply move from one private space to another, but they travel along a network. Engagement is intrinsically public, taking place within a circuit of larger connectedness. The vast resources of the network are always there, potential, even if they do not impinge on the immediate communication. Electronic communication can be passive, as with television watching, or interactive, as with computers. Contents, unless they are printed out (at which point they become part of

Rt Hon The Lord Judge “Jury Trials” above n.11. 28

the static order of print) are felt to be evanescent. They can be changed or deleted with the stroke of a key. With visual media (television, projected graphs, highlighted “bullets”) impression and image take precedence over logic and concept and detail and linear sequentiality are sacrificed. The pace is rapid, driven by jump-cut increments, and the basic movement is laterally associative rather than vertically cumulative. The presentation structures the reception and, in time, the expectation about how information is organised. Further, the visual and non-visual technology in every way encourages in the user a heightened and ever-changing awareness of the present. It works against historical perception, which must depend on the inimical notions of logic and sequential succession. If the print medium exalts the word, fixing it into permanence, the electronic counterpart reduces it to a signal, a means to an end.”89 This is information ecosystem within which Digital Natives dwell and these are the factors that drive them to seek out new information horizons and to boldly go where Judges tell them not to. Part 3 – Addressing the Problem In this section I shall consider some of the ways in which the Googling Juror may pose problems for the jury trial and consider whether in fact some of the assumptions that underpin our understanding of the problem may be properly held, Jurors come to their task, many of them as digital natives or digital immigrants, used to accessing information from a wide variety of sources and furthermore examining it critically. They are asked to bring into the jury room their experience of the world and their commonsense. They are asked to exclude everything else that may be relevant to the case in hand and to concentrate solely upon the evidence that is presented to the Court. They are burdened with the task of determing the fate of the accused, and probably wonder why that decision should not be informed by all the available information. But decision making, information processing and understanding go far beyond that. People “go beyond the information given” as Jerome Brunner suggested.90 They interpret and draw inferences from new data in light of their habits of thinking and feeling, their largely intuitive concepts of how the world works and how things go.

Lord Chief Justice Judge articulated the threat that the Internet posed, while at the same time recognizing the paradox posed by societal trends regarding information were changing. He said: “….the misuse of the Internet represents a threat to the jury system, which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from
89 90

Birkerts The Gutenberg Elegies above n. 83 p. 122-3. J. Bruner, Going Beyond the Information Given, (Norton, New York 1973) 29

his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false. Sight of such material will create conscious, or perhaps more pernicious, unconscious prejudice. In any event it is fundamental that the defendant should be able to address it. And we must not assume that this prohibition against the misuse of the Internet is designed only for the protection of defendants. The victim of an alleged crime is equally entitled to a completely fair trial. All of us, and the community as a whole which is represented by the twelve members of the jury, has an interest in ensuring that juries return verdicts which are true to the evidence produced in court. If there is to be a system of open justice, and how can anyone brought up in our traditions envisage criminal proceedings behind closed doors? what has to be open is the evidence on which the verdict depends. So we cannot accept that the use of the Internet, or rather its misuse, should be acknowledged, and treated as an ineradicable fact of life, or that a Nelsonian blind eye should be turned to it or he possibility that it is happening. I have to be blunt about this, but in my view, if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the Internet by jurors must stop. And I think we must spell this out to them in yet more clearly. It must be provided in the information received by every potential juror. It must be reflected in the video which jurors see before they start a trial. Judges must continue to direct juries in unequivocal terms from the very outset of the trial. And I should like the notice in jury rooms which identifies potential contempt of court arising from discussions outside the jury room of their debates, to be extended to any form of reference to the Internet.”91

Increasingly, and as a challenge to Lord Judge’s concerns, prospective jurors may come into Court with the expectation not only that witnesses and lawyers will navigate multimedia presentations via pointing and clicking but that they too will also themselves be allowed to participate in the re-creation of legal reality. Lawyers are already beginning to cater to people’s expectations that, in the digital era, information is something with which they can and should be able to seek out and interact, rather than something that they passively receive.92 In essence our responses to information are dependent upon not only our previous experiences judgments and evaluation but, importantly as far as McLuhan is concerned, upon the way or the manner in which the information is transmitted or received. Thus for the digital native the experience of receiving information in a largely oral and vaguely textual

Rt. Hon Lord Judge “Jury Trials” above n. 11. Part of this passage is quoted at the beginning of Part 1 but bears repeating because it clearly identifies the problem and the threat. His Lordship also referred to the research carried out by Professor Thomas – see above n.21 - about jurors consulting the Internet and described it as “of particular concern that her research suggested that jurors are developing the habit of looking on the Internet for information about the case they are trying.” 92 Sherwin et al above n. 37 at p. 38 30

format may appear to be archaic. Indeed it is.93 In terms of the manner of presentation, the jury trial has remained static. Evidence is given orally. Submissions are given orally. The Judge’s summing up is given orally. This was the primary method of communication for an illiterate culture. Occasionally new technologies intrude. Jurors are given copies of the indictment, a question trail and a transcript of the evidence. These print based tools are all very well but come hedged with difficulties. Jurors are warned not to focus too much upon the text and engage in textual analysis yet textual analysis is a direct offshoot of the print technology.94 Evidence maybe presented in visual form by pre-recorded interviews, 3D graphics and the like but even so jurors are static, passive observers who have come from a world where interaction with and comment upon information is the norm. This is a reality of the Information Age, and as much as we may be critical of it, the change has happened and we cannot wind the clock back. The fundamental challenge to the integrity of the jury trial was expressed in the Court of Appeal of England and Wales (Criminal Division) in the case of AG v Fraill.95Although I have already quoted some of the paragraphs below at an earlier stage in this paper, they bear repeating:

“[27] When the jury is empanelled, each member individually and personally, either on oath or by affirmation, promises to "give true verdicts according to the evidence". It is elementary that a verdict which is not given by each juror conscientiously in accordance with his or her assessment of the evidence called at trial constitutes a breach of that promise. As the court observed in Thompson [2010] Crim 1623: "The verdict must be reached, according to the jury oath in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock-in-trade of the jury process, and the combination of the experience of a randomly selected group of 12 individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples…include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the Internet. "


Note the comments of William Young J in R v D CA 80/04, 8 December 2004 at [47] – [48] and especially “The entirely oral nature of the traditional criminal trial process is anachronistic given the range of communication aids which are now available and are deployed in virtually all other comparable fields of activity.” 94 See Postman Amusing Ourselves to Death above n.82. 95 [2011] 2 Cr App R 21; [2011] EWCH 1629 (Admin). 31

[28] As we said, this is familiar territory, reflective of long established common law principles, now universally understood, which underpin the jury system. In every case the defendant and for that matter we add, the prosecution, is entitled as a matter of elementary justice not to be subject to a verdict reached on the basis of material or information known to the jury but which was not in evidence at the trial. [29] Judges, no less than any else, are well aware of and use modern technology in the course of their work. The Internet is a modern means of communication. Modern technology, and means of communication, are advancing at an ever increasing speed. We are aware that reference to the Internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will grow. We must however be entirely unequivocal. We emphasise, even if we do so by way of repetition, that if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury's deliberations, and ultimately their verdict, must be based – and exclusively based – on the evidence given in court, a principle which applies as much to communication with the Internet as it does to discussions by members of the jury with individuals in and around, and sometimes outside the precincts of the court. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the Internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial. [30] Information provided by the Internet (or any other modern method of communication) is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him to the risk of being influenced, even unconsciously, by whatever emerges from the Internet. This offends our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.” The problem that we have is that jurors come to the Court: a) with experience and commonsense which we all rely upon; b) with preconceived expectations of information acquisition and evaluation; c) directions that they must participate in an archaic information sharing system; d) that they are prohibited from acquiring information other than through the archaic procedures of the court; e) yet inhabit an environment where information is freely available and accessible.


It is little wonder that jurors, notwithstanding judicial direction, may make their own enquires on the Internet. It is curious that some go so far as Ms Fraill or Ms Dallas in communicating with an accused or obtaining information about an accused and then communicating it to fellow jurors or even, as was the example in the United States, seeking advice from one’s Facebook friends as to how they should vote on the outcome of a hearing. These more egregious examples highlight the problem yet are so outrageous that they cannot be determinative of a proper generalised response to the problem. In many respects the real issues are: a) whether in the digital paradigm the concepts of a fair trial may be prejudiced by jurors accessing information; or b) whether there are circumstances where access to information by jurors is permissible; or c) whether the communications revolution has taken us so far ahead of the archaic system of information communication that is the jury trial that the entire process of assessing criminal liability must be reassessed. Paragraph 30 in the passage cited from AG v Fraill above contains a part of the problem. There is an assumption that underlies the statement: “if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury's deliberations, and ultimately their verdict, must be based – and exclusively based – on the evidence given in court” This is a very broad statement, and a powerful one too. One has only to look at the language. But the assumption upon which the rhetoric is based is that access to Internet information that may have a bearing on the trial is automatically going to prejudice the fair trial right that the accused and the prosecution (not to mention the community) may expect. One only has to look at some of the examples that I have given above to immediately recognise the flaw in the argument. The “friending” of the five jurors in the “Facebook Five” case, whilst in breach of a rule of United States practice that we in Commonwealth countries may find curious, involved Internet communication but could hardly fall within the sweeping prohibition contemplated in Fraill. Perhaps the case of Jonathan Powell in the Stoam case referred to above offers a solution in that the law of Arkansas required that it be proven that the incoming information influenced the verdict. The assumption that underlies the comment in Fraill is that prejudice will automatically follow. That assumption was carried through in the case of AG v Dallas96 where it was said:


[2012] EWHC 156 (Admin). 33

“Misuse of the Internet by a juror is always a most serious irregularity, and an effective custodial sentence is virtually inevitable. The objective of such a sentence is to ensure that the integrity of the process of trial by jury is sustained.”97 Whilst it is acknowledged that the sentencing addressed a behaviour that flouted judicial instruction and had the potential to corrupt the integrity of the trial, the subtext is based upon the assumption that Internet communication or research will automatically prejudice the trial and result in a mistrial. A similar position pertains in the United States within the context of the Sixth Amendment. The prohibition against outside research (although not from the Internet) was made clear in the case of Remmer v US 98 where it was stated “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.”99 Can these assumptions be challenged? Some research suggests that jurors might be influenced by pre-trial publicity or other negative outside information about criminal defendants. Other studies have reached an entirely opposite conclusion.100 An examination of the scientific data shows that the potentially harmful influence of outside information may not be as well defined as courts and commentators have assumed.101 The scientific literature may surprise members of the legal profession who have been trained to believe that pre-trial publicity and outside information always biases juries. It must also be remembered that when a pre-trial publicity or outside information actually biases jurors is not a legal question. It is an empirical one. A review of recent studies on the influence of outside information on jurors shows that courts and legal commentators may be overlooking some important scientific research when leaping to the conclusion that outside information is always harmful to jurors. However it should be noted that the majority of studies had been laboratory simulations rather than field research of jury behaviour. A recent English study has been been based on
97 98

Ibid. para [43]. 347 US 227 (1954). 99 Ibid. at 229. 100 John Bruschke & William E. Loges Free Press vs Fair Trials: Examining Publicity’s Role in Trial Outcomes (Lawrence Erlbaum & Assoc, Mahwah NJ 2005) p. 74-75. One factor that does not seem to have been addressed is that of the strength of the evidence or the arguments of counsel. One wonders what the outcome of a study might be that considers prejudicial pre-trial publicity in tyhe context of strong or weak evidence for a prosecution case. 101 Lacy above n.29 p.184. 34

field research.102 However while laboratory studies have found pre-trial publicity has an effect on jurors those results have not in fact been replicated in field research. The majority of studies on the effect of outside information on jurors have focused on pretrial information and have arrived at contradictory conclusions. It should be noted that little of the published research attempts to co-relate actual media coverage with the outcomes of actual trials. One study, which examined newspaper coverage of all federal murder trials over a 3 year period, found that “it does not appear that highly publicised defendants are treated much differently in terms of ultimate conviction rates than defendants who receive no publicity at all” and that in fact lower levels of publicity actually resulted in a greater probability of conviction.103 Several studies have examined the effect of pre-trial publicity in conjunction with other variables such as trial evidence, Judges’ instructions or jury deliberations.104 Other studies have investigated whether trial evidence and deliberation could eliminate the effect of pretrial publicity. In one study jurors read biased articles and then viewed a taped trial 7 days later: the publicity had no significant effect on the verdicts.105 Another study concluded that while pre-trial publicity affects verdicts, a 12 days’ adjournment in the experimental court proceeding, which allowed jurors to ruminate upon their verdicts, eliminated the effect that factually biased pre-trial information had upon jurors.106 Other studies have found that jury deliberations along with jury instructions can eliminate jurors’ pre-trial biases.107 A 1994 study on the effect of outside information on jurors in civil proceedings found the defendant liable more often even when there was a limiting jury instruction.108 Another study found that while pre-trial publicity and civil cases could create jury bias, the bias was significantly reduced by judicial admonition.109

102 103

Thomas above n. 21. John Bruschke & William E. Loges “Relationship Between Pretrial Publicity and Trial Outcomes” (1999) 49 J. Comm. 104 at 114 – 115. See also Amy L. Otto, S.D. Penrod & H.R. Dexter “The Biasing Impact of Pretrial Publicity on Juror Judgments” (1994 18 Law & Hum Behav 453. It should be noted that some of the research referred to was conducted in the early days of the Internet. 104 Ibid. Amy L Otto, S.D. Penrod & H R Dexter; J.L. Freedman & T.M. Burke “The Effect of Pretrial Publicity: The Bernardo Case” (1996) 38 Can J Criminology 253, 263. 105 J.L. Freedman, C.K. Martin & V.L. Mota “Pretrial Publicity: Effects of Admonition and Expressing Pretrial Opinions” (1998) 3 Legal and Criminological Psych 255. 106 G.P. Kramer, N.L. Kerr & J.S. Carroll “Pretrial Publicity, Judicial Remedies and Jury Bias” (1990) 14 Law and Hum Behav 409 esp at 424, 431-2. This study involved nearly 800 participants including students and subjects eligible for jury service. 107 K. London & N. Nunez “The Effect of Jury Deliberations on Jurors’ Propensity to Disregard Inadmissible Evidence (2000) 85 J Applied Psychol 932. See above Burd and Horan n. 10 at p. 106. 108 S. Landsman & R.E. Rakos “A Preliminary Inquiry Into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation” (1994) 12 Behav. Sci & L 113. The case in question involved product liability. 109 Brian H. Bornstein et al. “Pretrial Publicity and Civil Cases: A Two Way Street” (2002) 26 Law & Hum Behav 3. 35

Studies also show that that when jurors receive evidence and proper directions, they are capable of putting to one side potentially biased information received before trial.110 Thus prior opinions or views of a case may be affected or modified as a result of new and relevant information and strong trial evidence may reduce the effect of irrelevant, inadmissible and potentially biasing information.111 The study by Cheryl Thomas made the following observations: • “Jurors serving on high profile cases were almost seven times more likely to recall media coverage (70%) than jurors serving on standard cases (11%). Most jurors who recalled media reports of their case saw or heard reports only during the time their trial was going on. This provides the first empirical evidence in this country of the “fade factor” in jury trials (the further away media reports are from a trial the more likely they are to fade from jurors’ memories). But a third of jurors (35%) on high profile cases remembered pre-trial coverage. In high profile cases, jurors recalled media reports of their cases from a range of media outlets, with television (66%) and national newspapers (53%) the two main sources. This contrasts with jurors’ recall of media reports in standard cases, where local newspapers accounted for almost all (77%) coverage recalled. Most jurors (66%) in high profile cases who recalled media coverage either did not or could not remember it having any particular slant. Where jurors did recall any emphasis, almost all recalled it suggesting the defendant was guilty. In high profile cases, 20% of jurors who recalled media reports of their case said they found it difficult to put these reports out of their mind while serving as a juror.

The findings show that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case. It would be helpful to know how these jurors


Rita J Simon “Does the Courts Decision in Nebraska Press Association fit the Research Evidence on the Impact on Jurors of News Coverage” (1977) 29 Stan L Rev 515. However, see contra Geoffrey P Kramer “Pretrial Publicity, Judicial Remedies and Jury Bias” (1990)14 Law & Hum Behav 409 where its was concluded that judicial admonition had no effect and in fact enhanced the negative effects of factual or emotional information. 111 Martin F Kaplan & Lynn E Miller “Reducing the Effects of Juror Bias” (1978) 36 J. Personality & Soc Psycholo. 1443; Michael J Saks “What do Jury Experiments Tell Us About How Juries (Should) Make Decisions” (1997) 6 S. Cal Interdisc. L.J 28. 36

perceive this media coverage, what particular type of pre-trial coverage jurors’ recall and what type of coverage some jurors find difficult to put out of their minds.”112 These findings must be read alongside the fact that new technologies have allowed for media convergence and an availability of material and information via the Internet that challenges the “fade factor” or “practical obscurity.” I suggest that the research shows that the problem of juror use of “outside information” or the “information in” side of the equation is a much more nuanced one than simply a threat to the integrity of the jury trial system. The first thing that it is not inevitable is that jurors are going to ignore the evidence in court and use “outside information” in their deliberations. Secondly, a high level of potentially prejudicial publicity does not necessarily influence a jury in its deliberations. Although the presence of that information is recognised, it does not seem to dominate or diminish the weight of admissible evidence. Thirdly, jurors are able to put their own preconceptions and potential biases to one side in the face of evidence, clear directions from the Judge and the deliberative process. Fourthly, it must be acknowledged that “outside information” does play a part and is difficult to expunge from the mind altogether. There will be varying responses by jurors to this information, but the research does seem to bear out the suggestion that more attention is paid to admissible evidence and information obtained “in court” than otherwise. This nuanced problem, in my view, requires a considered and nuanced response – one that recognises the challenges posed by the Digital Native, that is flexible enough to accommodate such a juror armed with new information technologies but which maintains the integrity of the jury trial. It is to this final issue that I shall now turn.

Part 4 - Maintaining the Jury Trial Should the jury trial which is said to have only marginally changed in centuries – although I would dispute that assertion – be refashioned to recognise the new environment that surrounds it? Is there a way that the values of due process and fairness embodied in a trial can or should recognise or accommodate the new juror? Can the new juror, enmeshed in the Internet and social media sites, be trusted to accept and work under the constraints of a trial system which to some will seem archaic and inefficient and which seems to operate to keep potentially valuable and relevant information from the jury?113 The answers to the questions can be shortly stated. The jury trial does have a future in the digital paradigm. Despite the concerns of Lord Chief Justice Judge about the ability of modern jurors to maintain attention spans, and the ubiquity of digital communication devices,
112 113

Thomas above n . 21 p. vii and pp. 40 – 44. Sweeney above n. 24 p. 132. For an interesting albeit informal study of juror’s attitudes to social networking during trial and the benefits of proper social media instructions see Hon Amy St. Eve & Michael A Zuckerman “Ensuring and Impartial Jury in the Age of Social Media” (2012) 11 Duke Law & tech Review 1 at 20 et seq. 37

the orally based jury trial is still a highly effective way of allowing citizen participation in the judicial process – the use of the “little parliament.” The core values and basic rights inherent in our jury trials remain unchanged. The fundamental values of the concepts of a fair trial with an outcome judged upon a rational and empirical analysis of evidence must remain. The allocation of proof burdens and proof standards is a fundamental value of the Anglo-American trial experience which should not be held hostage by changing information technologies.114 But it may well be that the procedures or the trial process may merit some re-evaluation in terms of the way in which information is made available and the means by which it is processed. There are a number of steps the can be taken to address and deal with “The Googling Juror.” The first is the greater deployment of technology for information communication within the courtroom.115 The second is a proper educative process for jurors. The third addresses steps that lawyers, Judges and the Court can take during the trial process to enhance juror engagement within the Courtroom The fourth is a more nuanced approach to juror misconduct based upon the nature of the information sought and the impact that it may have had on the outcome of the trial. Greater Deployment of Information Technologies116 What of process and apparent archaisms and inefficiencies? It is my clear view, and has been for some time, that Courts underutilise technology in the trial process. Instead of a booklet of photographs why not have, in addition, a large screen with the photograph clearly displayed and where the witness – or counsel – can use a laser pointer to indicate items of interest. The recent development by Environmental Science and Research (ESR) in New Zealand of 3D modelling of crime scenes with evidential overlays can only be a positive step.117 Jury boxes should be equipped with screens so that jurors may be able to view DVD interviews.118 Counsel should be more creative in their use of technology. If Google Maps or Google Earth
114 115

Ibid. Sweeney. I have used the term “information communication” rather than evidence, because I believe first that the trial process is an exercise in information communication at all stages. Openings, evidence, closings, summings up all involve the communication and processing of information. In the wider context, the whole practice of law is about the communication, sharing and processing of information. Information technology may and should be used to assist or enhance in this communicative process. 116 For the use of information technologies in the court process see generally Judge David Harvey 3rd ed. (LexisNexis, Wellington, 2011) Ch 6 p. 493 et seq. 117 ESR Briefing June 2011. (last accessed 16 April 2012); “Scientists Reveal New Crime Scene Technology” TV3 News 13 April 2012) (last accessed 16 April 2012)p; “New Forensic Technology in Courtrooms” Radio New Zealand News 13 April 2012 (last accessed 16 April 2012). 118 Monitor screens for jurors are employed in document rich trials, especially prosecutions conducted by the Serious Fraud Office. 38

provide a reliable view of a location to put a matter of evidence in context those utilities should be used. Illustrative material using powerpoint or animations can assist in explaining difficult or technical concepts – for example an animated flowchart to trace the flow of money in a fraud case.119 The utilisation of technology in courtrooms and for trials has been researched and utilised in the United States particularly by the Center for Legal and Court Technology and William and Mary Law School in Williamsburg Virginia120 and the National Center for State Courts.121 The greater utilisation of technology for the communication of information within the trial process would meet Digital Native juror expectations that up-to-date systems are being employed. Rules of evidence emerged to limit the amount of information available to juries and control how that information was received.122 If courts are going to insist on controlling the flow of information during trial they will need to accept innovations to improve juror comprehension. Jurors need not and should not be merely passive listeners in trials but instead should be given the tools to become more active participants in the search for just results. To that end trial procedures and evidentiary rules should take greater advantage of modern methods of communication and recognise modern understanding of how people learn and make decisions.123 Educating the Jury Sadly in New Zealand a detailed education in civic responsibilities is sparse. Juror education should be part of a wider model. The court should take an approach that educates prospective jurors as early as possible about the responsibilities of the juror, the nature of the trial and the reasons for the court’s processes and rules.124 The message should be reinforced throughout the process of jury selection, trial and deliberation. The juror should affirmatively buy in to the rules that are required. It should also be explained to jurors why the system cannot provide more information than that which they have received by way of evidence.125 Courts should have programmes that educate the public including students of our jury trials, about their value and how they are conducted. These should include a section that explains

See also to illustrate the operation of a computer algorithm in Uniloc v Microsoft US District Court Rhode Island C.A. No. 03-440 S 29 September 2009, Judge William E. Smith; See also Judge William E. Smith “Judicial Opinions and the Digital Revolution” (2010) 49 ABA Judges Journal (no 4) p. 7 et seq. 120 (last accessed 16 April 2012). Center Director Professor Fred Lederer has pointed out that “Our courtroom tools are changing, and the people we work with are changing. Lawyers must adapt if we are to continue doing our jobs as well as we should.” Wisconsin Bar Association 16 November 2011 (last accessed 16 April 2012). 121 (last accessed 16 April 2012). 122 Lacy above n.29 p. 188. 123 Ibid. p. 189 – see also the suggestions by Sweeney above n. 24 p.134 - 141. 124 For juror responses to instructions see St Eve and Zuckerman above n. 113 p.24 et seq. 125 Sweeney above n. 24 p.134 et seq. ; see also Nicolas above n. 30 p. 395 – 401. 39

why the only evidence that can be considered at trial is the evidence presented in court that the parties have had an opportunity to examine, confront and contest. This should begin the process of explaining to jurors why the habits they use to acquire information in their daily lives will have to be suspended if they are picked for a jury. This process could well start before it comes times to summons perspective jurors and could be reinforced at the time that jury summons are sent out. During orientation on the first day of jury service, written and oral instructions should be given to jurors about not doing any Internet research and the reasons why should be emphasised. The importance of a fair trial for all the participants should be highlighted. Concepts such as bias and predetermination before all the evidence has been presented should be reinforced as part of this educative process. Jurors should be given information about the utilisation of cell phones, blackberries, smart phones, tablets, or computers or other devices that may be used to communicate with family, friends, co-workers or others. Jurors should be advised that although they may be involved in social media or networking sites such as Facebook, Myspace, LinkedIn, YouTube or Twitter they should not use them to communicate during the course of the trial. Those with difficulty in abiding those restraints could be invited to identify themselves and may well be excused. Once the jury is selected at the beginning of the trial the Judge has another opportunity to explain the rules and impress upon jurors what they have promised to do.126

Enhancing Juror Engagement – What Lawyers, Judges and Courts May Do. Judges and lawyers should be aware that placing information before jurors in an incomplete, confusing or haphazard fashion will understandably tempt even conscientious jurors to seek outside information to complete the picture. It is therefore prudent for counsel to prepare their cases to answer obvious questions that will arise and to do so as early in the case as possible. Judge Sweeney127 suggests that one device that could be helpful to engage the juror with the case is to supply jurors with trial notebooks prepared by counsel and the court which may include such items as the courts instructions, selected exhibits, agreed facts by the parties and a glossary of terms used particularly if technical or scientific evidence is involved. The notebook could be supplemented as the trial progresses. Jurors can write their notes in the


Some courts have jurors sign an undertaking that they will not engage in on-line research or communication about the trial. This enhances the importance of the focus upon evidence in the courtroom and provides something that the Court can point to in the event of juror misconduct. A copy of Proposed Model Jury Instructions prepared by the Judicial Conference Committee on Court Aministration and Case Management is annexed as an appendix to demostrate one porposed approach. It should be noted that the law in the United States prohibits juror discussion inter se until the evidence has concluded and the judge has summed up. 127 Sweeney above n. 24 p.138. 40

book and highlight exhibits. Judge Sweeney notes that where juror notebooks have been used, jurors are more engaged and universally feel that it made the trial more interesting.128 Although questions by jurors are not prohibited in New Zealand129 it may well be that a greater sense of engagement and participation may be achieved if jurors are given positive advice of the right to ask questions. Jurors have become better educated, more assertive and less willing to automatically and meekly accept absolute fiats about their role. The ability to engage in the Courtroom may make jurors less susceptible to the temptation to conduct Internet research at home in the evening, although nervousness or lack of confidence may discourage questions and encourage private research. The effect of the rules of evidence and the suspicion that jurors are “being kept in the dark” should be addressed. The Court should manage the flow of information rather than make unrealistic efforts to weed out all juror exposure to external information from sources such as the Internet. As Internet access becomes more pervasive than it already is the Court is going to need to make dramatic changes to remain viable. Without the power of the purse or of the sword the justice system relies upon public confidence to survive and if it is seen as failing to recognise and adapt to new communications technologies public confidence is going to fade and fall. Lacy suggests that lawyers could conduct their own Internet research in advance to identify what information about the case is available on line, analyse that information and deal with it during the trial.130 Although courts have not adopted this exact procedure there is significant experience in evaluating outside information before and during the trial. When required courts evaluate pre-trial publicity in considering applications for severance or change of venue. These practices provide a possible framework and a precedent for evaluating new online sources of information that courts and jurors might access before or during trials. Federal courts in the United States have adopted managerial judicial practices to sharpen issues and increase efficiency at trial. For example, pre-trial discovery conferences which are mandatory for all civil parties in federal court allow the parties to discuss what information about the case might be readily available on-line and searchable by prospective jurors. Although pre-trial publicity could be seen to violate the constitutional right to an impartial jury, the Supreme Court stated as long ago as 1961 that jurors should not be disqualified because they have been exposed to outside information on the case thus anticipating some of the research in this area. “in these days of swift widespread and diverse methods of communication, an important case can be expected to arose the interest of the public ....and scarcely any of those best qualified to serve as jurors will not of formed some impression or opinion as to the merits of the case.”131

128 129

Ibid. They are in the United States. 130 Lacy above n . 29 p.189. 131 Irvin v Dowd 366 US 717, 722-3 (1961). 41

Dealing With Juror Misconduct The measures that are currently utilised to deal with juror misconduct seem to fall into three main categories. The first is the deterrent category involving the utilisation of sanctions. These may vary from Court to Court whereas they should in fact be enforced consistently and vigorously to be effective. But at the same time they have a difficulty in that they fail to recognise changing societal attitudes to information technology use. The second category may be described as preventative and is the area upon which most commentary has focussed. Within this category are the educative approaches of continued reasoned and informative jury instruction explaining why jurors should desist from trial related queries or communications on the Internet and which I have already discussed. The third category is remedial and focusses upon the preservation of the right to a fair trial. It will be manifested by such actions as a juror’s removal or a retrial where it is found that juror(s) actions in researching or communicating with others about the trial may have compromised the verdict. I suggest a fourth more nuanced pathway to address the problem that recognises the changing nature of society’s expectations of information technology use, yet preserves the utilisation of the jury trial. It has aspects of the remedial about it, as well as the deterrent and preventative elements, but focusses upon the circumstances and context of technology use by jurors. I propose a three stage inquiry that will allow the judge to gauge what the judicial response should be to the use of the particular technology. The cases of Fraill and Dallas were particularly egregious examples of juror misconduct, but it is suggested that jail sentences for contempt of court are a somewhat blunt instrument and, as I have suggested already, do not recognise that the use of technology as a form of juror misconduct may be nuanced.. Nicolas suggests that the Judiciary must be trained to evaluate the possible harmful effects of social media and new consumer technologies in the Courtroom and the jury box.132 Nicolas points out that the judge has a very broad discretion to fashion an appropriate and responsible procedure to determine whether misconduct actually occurred and whether it was prejudicial.133 The solution for mitigating potential bad effects of consumer technology in the courtroom lies in effectively educating the judiciary and the jury pool as to the potential for
132 133

Nicolas above n.30 p. 393. Ultimately, Internet use (for research or by use of social media) as a mechanism for potential juror misconduct falls to the discretion of trial judges. The issue of whether a juror’s action constitutes misconduct involves an evaluation of circumstances (including the content of the research or communication, the time during trial when it was sent or received or otherwise alleged to have interfered with the trial, and the conduct’s effect on proceedings) that a trial judge is in the best position to assess. 42

“mistrial by Internet.” An informed judiciary will be better suited to evaluate threats and implement proper remedies, just as an informed jury will be less likely to engage in misconduct.134 Nicolas points out “sitting judges admit that “[m]any on the bench are ‘blissfully ignorant’ of what is going on in the media industry and the processes of getting information out in other means than newspapers”...... While judges may independently evaluate technological threats to the jury system and may implement their own rules, court systems should develop a uniform curriculum designed to acquaint judges with the ways jurors can access technology before, during, and after trial, and the ways such access could affect a trial. Judges may then incorporate such knowledge into existing jurisdictional doctrine regarding juror misconduct. Such a system would ensure that judges are aware of new potential threats to the administration of justice, while still respecting the discretion afforded to trial judges.”135 There may be circumstances where juror interest, research or activity is not fatal to the outcome of the trial. The United States experience provides a considerable number of different situations given the widespread use of the jury trial in civil proceedings. The first issue is that juror Internet research often a) raises the same legal issues as those traditional print information sources; but b) the Internet makes access to this information easier; c) the volume of information is greater; and d) the verification of its accuracy is sometimes more difficult. Thus the problem with the Internet lies in some of its inherent qualities rather than raising any especially novel issues. In the United States in civil cases Courts had tolerated such outside research if in fact jurors 1. do not rely on the information and 2. the particular party is not prejudiced. However the opinions that have evaluated Internet use by juries during civil trials have applied standards derived from cases involving outside research through traditional information sources such as print dictionaries and newspapers. In general the courts will start by considering whether the outside information prejudices one of the parties. The case of Russo v Takata Corp136 made it clear that not all Internet searches during trials require a declaration of a mistrial. It was suggested that the parties seeking to overturn a verdict must show the juror’s conduct was prejudicial.

134 135

Nicolas above n. 30 p. 394. Ibid. p. 394 – 5. 136 774 N.W. 2d 441, 454 (SD 2009), 43

“The test is whether the extra extraneous material had a tendency to influence the jury in arriving at is verdict in a manner inconsistence with the evidence and the instructions of the court”.137 In some cases jurors consulting the Internet for basic definitions of unfamiliar legal terms has not affected verdicts.138 But when the research directly affects an issue of fact at trial rather than an interpretation of law a reversal may be more likely.139 What about the situation where a juror may access outside information through the Internet about parties or lawyers during a trial? In general Courts will uphold verdicts where jurors conduct such a search, as long as the research is not shared with other jurors. In Wells v Levine140 a juror conducted Internet research regarding the defendant in a proceeding but the trial court found no evidence that any jurors altered their positions as a result of that information. However when jurors disclose the results of their research to other jurors, courts are more likely to grant a new trial.141 But if the Internet research does not cause a jury to vote any differently than it would otherwise have, there is no probable injury and a retrial is likely to be denied.142 When a juror looked up a driving record of a defendant truck driver the court refused to grant a mistrial because it held that the jury would have rendered the same verdict which was not required to be unanimous even with research. One of the main concerns about Internet research is that courts and commentators fear that access to the Internet could introduce bias into trial proceedings. While existing court rules and jury instructions are designed to ensure the jurors consider only the evidence submitted at trial courts have generally failed to make these underlying rationales clear to jurors who are therefore likely to feel – and rightly so – that important information is being hidden from them.143 The criminal position is different given the presumption of prejudice articulated in Remmer. The way in which the Fourth Circuit Court of Appeals in US v Lawson144 approached the rebuttable presumption of an unfair trial when confronted with Internet research is instructive.

137 138

Ibid. 451 Real v Wallmart Stores Inc No. B145819, 2002 WL 80664 (Cal. App. Dist. Jan 22, 2002) (unpublished); Stebner v Associated Materials Inc 234 P. 3d 94 (Mon 2010) 139 Thompson v Krantz 2005 OK 60 137 P. 3d (Mon 2010) 140 No. 2003-CA-001684-MR, 2004 WL 1700062 (Ky. Ct. App. 2004) (unpublished) 141 Sheffield v Goodyear Tyre & Rubber Co 151 Wash App 1052, 2009 WL 2586619 (Div. 1 2009) (unpublished) 142 Magee v Williams 17 So. 3d 687 (Ala. Civ. App. 2009) 143 Lacy above n. 29 p, 176 – this comment echoes a similar one by Judge Sweeney. 144 No. 10-4831 20 April 2012 (last accessed 24 April 2010) 44

Lawson was charged, among other things, with sponsoring or exhibiting and animal in an animal fighting venture. After deliberations and the jury verdict one of the jurors reported that another juror had carried out Wikipedia research to ascertain the definition of the term “sponsor.” The research took place the morning before the verdict was reached. The researching juror brought a printout into the jury room and attempted to show other jurors the material but was stopped when told it would be inappropriate to view the material. The actions of the researching juror were in breach of specific judicial instruction. After determining the applicability of the Remmer presumption the Court then went on to apply a five stage test articulated in Mayhue v St Francis Hospital of Wichita.145 The focus of earlier enquiries in the cases had been upon the effect of researching dictionaries for definitions, and it seems that Wikipedia was treated as falling within that category. The Mayhue criteria were applied as follows: a) the importance of the word or term. In Lawson the word “sponsor” was fundamental to the charge and a matter of direction and had a precise legal definition. b) the extent of the divergence of the definition from the judicial directions. In Lawson there was a difficulty because it was not possible to ascertain with any precision the definition that was used by juror, given the dynamic nature of Wikipedia. The Court considered that some of the government’s submissions were speculative and were mindful of the heavy burden required to displace the presumption of unfairness. It also observed: “we have no indication in the record regarding the actual content of the Wikipedia entry for the term "sponsor" that Juror 177 obtained. The government has not argued, nor has it provided evidence establishing, that the Wikipedia entry for the term "sponsor" can be retraced to its form when Juror 177 first researched the term. Moreover, even assuming that previous Wikipedia entries can be retrieved, we would be unable to consider this fact on appeal in the absence of a firm basis in the record for concluding that the Wikipedia archives themselves are accurate and trustworthy.”146 c) The extent of the discussion by the jury and the emphasis placed on it. The Court observed that even if one juror was influenced it could deprive the accused of a fair trial. The extent of the influence being uncertain. d) the strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition. It was difficult for the court to reach a firm conclusion on the evidence. The court stated: The jury began its deliberations on Thursday, May 6, 2010 at about 4:00 p.m. The jury was excused for the evening after 5:30 p.m. Juror 177 researched and printed the Wikipedia entry defining the term "sponsor" the next morning,
145 146

969 F. 2d 919 (10th Circuit 1992) US v Lawson above n. 143 p. 32 45

shortly before the jury resumed deliberations at about 9:00 a.m. The jury reached its verdict at about 4:30 p.m. that afternoon. Based on this timeline, we cannot say that the jury had difficulty reaching a verdict prior to Juror 177’s improper research. Accordingly, although we conclude that this inquiry is of limited import in this case, this aspect of the fourth Mayhue factor weighs in favor of the government. When balanced, however, with the "strength of the evidence" inquiry discussed above, the fourth Mayhue factor either is in equipoise or weighs in favor of Lawson.147 e) Any other prejudicial factors. Under this heading the Court made some critical remarks about the reliability of Wikipedia.148 The Court concluded: In balancing the Mayhue factors discussed above, we conclude as a matter of law that the government has failed to rebut the Remmer presumption of prejudice. The first factor, the importance of the term at issue, weighs strongly in favour of Lawson. The second, third, and fourth factors either present close questions or weigh in Lawson’s favor due to the evidentiary and analytical uncertainties present in this case. The fifth factor weighs in Lawson’s favor..... We do not set aside a jury’s verdict lightly. However, the Sixth Amendment "guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). We have held that "[n]o right touches more the heart of fairness in a trial." Stockton, 852 F.2d at 743. In this case, we are unable to say that Juror 177’s use of Wikipedia did not violate the fundamental protections afforded by the Sixth Amendment. Accordingly, we vacate the appellants’ convictions under the animal fighting statute, and we award them a new trial with respect to those charges”149 Lawson is helpful because it focuses upon the fairness of the trial and what the prosecution had to do to rebut the presumption. However, it should be remembered that the case was decided within the context of “reference work” use. The “pre-Internet” cases cited dealt with research using a dictionary or similar work.150 The applicability of a generalised Lawson approach as a form of graduated response to Internet research would very much depend upon the nature of the research done by the juror, and seems to lean more towards static information rather than the problems posed by juror use of dynamic social media.

147 148

Ibid. p.35. Ibid. p. 35 – 37. This notwithstanding that there is another side to the Wikipedia reliability issue and when it may or may not be proper to use this resource. For a discussion of Wikipedia use in the law see Judge David Harvey (LexisNexis Wellington 2011) 3rd ed p. 20 et seq. and the references contained there. See also Joseph L. Gerken “How Courts Use Wikipedia” (2010) 11 Jnl of Appellate Practice and Process 191. 149 Ibid. p.37 – 38. 150 It is difficult to imagine that the Court will be so critical of an accepted dictionary or a reputable encyclopaedia as it was of Wikipedia. 46

It might seem obvious to lawyers and Judges why outside information should not be consulted during trial but it may not be so to anyone else. A continued failure to carefully explain reasons for an Internet ban risks creating mistrust for the judicial system. A New York Times article151 provoked more than 250 comments within 9 hours some of which expressed belief that there could be a “systemic effort to keep jurors from learning the truth so that the jurors therefore need to dig deeper to uncover the truth”. The focus thus far has been on the possible prejudice that may be caused to a party and it seems clear that Internet research does not in and of itself warrant an automatic, irrebuttable finding of prejudice sufficient to justify a retrial, although in the American context Lawson imposes a heavy burden to rebut the presumption. There will be cases where such an outcome is justified but before embarking upon such a course of action the nature of the misconduct has to be analysed and evaluated. The case of Dallas, where clearly inadmissible information about the accused was communicated to the jury following the juror’s Internet research, could only have had one outcome. It is a matter of degree. Similarly the use of social media by jurors requires a balanced and nuanced response. In some of the examples cited earlier in this paper it is clear that although the instruction not to use social media was disobeyed the type of communication was innocuous. A more egregious form of communication such as a request for assistance in coming to a verdict would certainly result in the discharge of the juror, especially if it prompted responses.152 However, the actions of the Facebook Five could be viewed differently in New Zealand since there is no prohibition on jurors discussing the case among themselves before they retire to consider the verdict. Once again, the level of engagement with the technology could be relevant. The “friending” of fellow jurors and any communications between them about the trial per medium Facebook could well have implications if other non-juror “friends” are able to access the communications. This would involve an inquiry into the level of privacy settings used by the jurors. The example of the “tweet” in the Fuomo trial referred to above, an example of “information out”, whilst amounting to a breach of the directions clearly could not impact upon the trial. Brad Reid, Managing Director, Dean Institute for Corporate Governance and Integrity at Lipscomb University, offers another solution which recognises the pervasiveness of the new technologies and suggests circumstances where there may be a limited access to social media and tools during the course of trial. He suggests: “(1) Juror Facebook friending with parties to the litigation should not be allowed as there is a potential for bias.


John Schwartz “As Jurors turn to the Web, Mistrials are Popping Up” NY Times 17 March 2009 (last accessed 27 March 2012). 152 See for example (last accessed 23 February 2012). It could well be that the level of sanction for such misconduct would be higher if, by removal of the juror a new trial became necessary. 47

(2) Some neutral tweets or posts by a juror about jury service should not automatically result in a mistrial. (3) Jurors should be allowed to submit questions to witnesses and the judge while the trial is in progress. This could be done electronically. (4) Internet searches should be allowed but conducted in a manner that allows all parties to the litigation to respond to the information that is produced. (5) The trial should move from being chiefly oral to a more information collection and evaluation based approach. (6) Jurors should routinely be transported to the location of significant events especially when physical aspects of such location are at issue. (7) There should be broader incentives to encourage the parties to agree to submit to the jury "undisputed facts." (8) Juries should be allowed to request properly authenticated expert testimony. (9) Juries should be allowed some limited opportunity for mid-trial deliberation, perhaps at the close of the plaintiff's and defendant's cases, in order to determine what additional information they desire. (10) Jury deliberations should only in very limited circumstances be subjected to posttrial inquiry in order to overturn a verdict. (11) Most importantly, jury proceedings should not be conducted in a manner that creates an appearing of "hiding" information from the jury. Could these proposals be flawed? Absolutely. Could there be better proposals? Certainly. However, the conversation about jurors' access to information must begin.”153 The Nuanced Approach Perhaps, then, the first stage in looking at the way in which the nuanced approach should be considered is to identify the nature of the information flow. Is it “information in” or “information out.” “Information in” is likely to pose more risks, especially if it is shared with other jurors, but much will depend on the nature of the information. “Information out” – unless it solicits a response in which case there is a mixed “information out\in” scenario – is probably less harmful unless, of course, it is to disclose the jury verdict before it is given or invite input into the deliberation process. The ramifications in a case involving a business could be considerable if early information about as verdict were to have an impact upon a share price.


Brad Reid “It Is Time to Rethink Jurors' Access to Information” 18 January 2012 The Huffington Post (last accessed 8 June 2012) 48

The second stage requires an evaluation of the nature of the communication. Differing Internet protocols – Google, Facebook, Twitter and whatever else may be around the corner154 – will involve differing levels of communication, interaction and content. Once that has been done a consideration of the likely impact of the communication can be made. An enquiry similar to steps one and two of the Mayhue categories could be undertaken in this regard. The third stage of an inquiry may be whether or not the communication has been made to other members of the jury and the impact that this may or may not have had.155 Cases in the past suggest that some jurors are not averse to drawing the Court’s attention to misconduct on the part of their fellow jurors and indeed part of a jury instruction may be that jurors should not be afraid to be “whistleblowers” in the interests of the integrity of the trial process. The matters raised in categories four and five of the Mayhue criteria may well be taken into account at this stage of the enquiry. Once these stages of inquiry have been completed, the judge will be in a position to consider whether there has been a mistrial or whether the trial may continue. A similar process could be embarked upon by an appeal court when entertaining an appeal against a verdict where there has been an allegation of juror misconduct involving the Internet. In the same way that a nuanced consideration of the nature of the misconduct should be undertaken, so similarly should the judicial response be proportionate to the level of misconduct. While the rhetoric of the judges in Fraill and Dallas makes an important point, it is debateable whether a tweet about the fact that the jury is about to consider its verdict should amount to a sentence of imprisonment. A sliding scale of culpability, again depending upon the nature of the breach of the instructions, is desirable with imprisonment reserved for the case where egregious misconduct has clearly prejudiced the fair trial. The case of P (CA50/2012) v R156 demonstrates an analytical approach adopted by the Court to the discovery that a juror had communicated aspects of her jury duty on Facebook. The appellant had been convicted on six charges of doing an indecent act on a child. He appealed. One of the grounds of appeal was that his counsel had failed to follow instructions and challenge a particular juror. The behaviour of the juror came to light after the trial as a result of the appellant’s researches on the Internet. These enquiries established that the juror had a Facebook page and had, during the course of the trial had made the following comments: • That she wanted to be chosen for jury duty. • In the context of a report in the New Zealand Herald of a case in another country, that people who assault children, sexually or physically, should receive harsh punishments. • That it was usually parents who are the abusers.
154 155

Thanks to “permissionless innovation.” This is similar to category 3 of the Mayhue criteria. 156 [2012] NZCA 325 49

• • • • •

That she was the foreman of the jury (on 27 October 2011). That jury duty was over and “… It was hard” (on 28 October 2011). That the verdicts were guilty on all six counts (on 28 October 2011, stated to be at 16:22). Critical of a sentence of 10 months’ home detention for six counts of indecent acts on a minor (20 December 2011). Critical of a sentence for assault on a child in a different case reported in the New Zealand Herald.

These are clear examples of “information out” and they were communicated whilst the trial was in progress. Some concern was expressed about the entry stating the verdicts which the Court found could not have been made on 28 October at 16:22. The jury did not return its verdict until 16:40, having commenced deliberations at 10:06 on 28 October. Other than state that the entry could not have been made at the time recorded on the Facebook page, the Court offered no analysis of how that might have occurred other than that it was satisfied theat the communication was not made whilst the jury was deliberating. The Court was highly critical of the investigations that the appellant had made that uncovered the juror’s Facebook page. It referred to the authorities which supported the secrecy of jury deliberations, the consequences that may follow should the media (and others) contact jurors after a verdict, and the statutory provisions protecting jurors from disclosure of personal details.157 It described the “accessing by the appellant of the juror’s communications with friends to found and support an allegation of bias in the performance of the juror’s duties is entirely innappropriate and unacceptable.”158 What, then, of the juror’s communications? The Court made no observation at all about the fact that the communications had been made by an empannelled juror in the course of the trial. Although the communications were not with a former party to proceedings, as had been the case with Joanne Fraill, there can be no doubt that communications had been made. Rather the Court approached the matter within the narrow confines of the case, considering whether the juror’s Facebook communications were indicative of any bias. The Court approached the issue in this way: “The comments attributed to the juror on sentencing matters merely reflect the opinion of many people in the community at large and are not indicative of a perspective having relevance to this case. Juries are not concerned with sentencing. Their task is to determine whether, on the evidence given at trial, and applying the directions on the law given by the Judge, the charges against the defendant have been proved to the required standard, namely beyond reasonable doubt..... The objective indicators show that in this case the jury went about its task diligently and appropriately”159
157 158

Ibid. paras. [15] – [20]. Ibid. para. [21]. 159 Ibid. para. 23. 50

This case does not deal directly with the juror herself, but indirectly it examines juror behaviour as the basis for an appeal. Most of the judicial comment is directed towards a disapproval of the appellant’s actions in seeking out the information about the juror after trial. That raises some interesting questions about the extent of enquiries that may be undertaken to ascertain juror use of the Internet, especially in terms of “information out” which may demonstrate clear bias. In this case no adverse comment was made about the fact that the juror had ignored judicial instruction about comment on the Internet or to others about the trial. No doubt this may have to be addressed on another day. The Court put these issues aside and examined the actual messages that had been posted and found there was no indication of bias, and thus no basis to revisit the failure of counsel to challenge the jury. The findings of the Court were summarised as follows: “(a) Inquiries into the personal views of jurors of the type undertaken by the appellant are improper and are to be deprecated. (b) In any event, the juror’s views would not have provided trial counsel with any basis to challenge her for cause, as being “not indifferent between the parties”. (c) The objective indicia are that the members of the jury undertook their task in a conscientious, careful and thorough way.”160 The appeal was dismissed. Conclusion This paper concludes that whilst new information communications technologies challenge aspects of the jury trial, have an impact upon juror expectations of information and what they are able to obtain in addition to admissible evidence in Court, the jury trial is not in a state of crisis. Proactive steps on the part of Courts to utilise new technologies and juror aids and fully explain to jurors issues such as expectations of fair trial and how independent enquiries may prejudice the fairness of a trial and why that may be so will go a long way to addressing current concerns about the ”Googling Juror.” Furthermore, the educative process must start before the potential juror turns up at Court on the first day and should be a continuous process, the last stage of which should be the Judge’s opening remarks. Finally, the assumption that all juror communications using new technologies will be prejudicial to trial integrity cannot be sustained and a nuanced consideration of the misconduct and a proportionate response should be employed, based upon a clear judicial understanding of the technology and the way that it works. As Morrison states: “A bolder approach would be to try to locate a new source of legitimacy for jury verdicts, one that grows not out of inscrutability but understanding. One of the values lost in the dismissive popular attitude towards jurors ignorant and uneducated is an

Ibid. para. [28]. 51

appreciation of the difficulty of their task – we deny jurors many of the tools that we ourselves use in daily life. The jurors who take their roles seriously – and we can assume that they are in the majority – face a lonely and difficult task, which can cause them great anxiety.”161 Judge David Harvey April – June – August 2012


Morrison above n. 46 p. 1630 – 31. 52

Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case Prepared by the Judicial Conference Committee on Court Administration and Case Management June 2012 [Note: These instructions should be provided to jurors before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.] Before Trial: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions. I hope that for all of you this case is interesting and noteworthy.


At the Close of the Case: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as the telephone, a cell phone, smart phone, iPhone, Blackberry or computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions. You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the internet or available through social media might be wrong, incomplete, or inaccurate. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.


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