The document discusses the issue of jurors using the internet and social media during trials. It notes that while juror internet use remains relatively infrequent, high-profile cases show jurors researching details about defendants online, tweeting about ongoing trials, and becoming online friends with defendants on social media. The author argues this "digital paradigm" has changed how people access and process information in ways that can influence juror behavior. However, banning internet use may not be the best solution and a more nuanced approach is needed to address this problem while preserving the jury trial system.

1. The Googling Juror:
The Fate of the Jury Trial in the Digital
Paradigm
Judge David Harvey
Criminal Bar Association Conference
16 August 2014

2. The Nature of the Problem

3. ‘If the jury system is to
survive…the misuse
of the internet by
jurors must stop,’
Lord Judge LCJ
Social networking
websites such as
Facebook could
threaten the existence
of jury trials in the UK
UK AG Dominic Grieve

4. Joanne Fraill and Jamie Sewart
• Juror and an acquitted accused – Facebook
friends

6. Theodora Dallas
• Dallas told fellow jurors that the accused on
trial for sexual assault had previously been
accused of rape after finding a newspaper
article about him on the internet.

7. U.S. Examples
• Juror searched Wikipedia for
various terms relevant to trial
and brought printouts to jury
room – explanation “to me that
wasn’t research, it was
definition”
• Michigan juror posted on her
Facebook page “gonna be fun
to tell the defendant they’re
guilty”
•
• "Guilty! He's guilty! I can tell!“
tweeted a California juror

8. Australia
• Australian AGs have formed task force to
consider social media regulation
• Following high profile murder arrest social
media revealed identity and posted photos
• Fear of compromise of fair trial
• 2011 – juror fined $1200 after seeking
information on-line during a murder trial
which ended in deadlock.

9. Twitter

11. But is it THAT Bad?
• The Federal Judicial Center has published survey results indicating
that social media use by jurors remains a relatively “infrequent
occurrence.”
• Of 494 judges responding to the survey, the majority of judges
explained to jurors in plain language why social media is banned.
• This strategy must be effective; only 33 of the 494 judges reported
any detectable instances of jurors using social media

12. On the other hand
• Lawyers have used social media to look at
prospective jurors' Facebook pages, to
run names through search engines, or to
look at online profiles, blogs or websites.

13. Why Do Jurors Go Online?

14. The Qualities of the Digital
Paradigm
– Technical
– Information Persistence
– Dynamic Information
– Continuing disruptive
change
– Permissionless innovation
– Volume and Capacity
– The “non-coherence” of
data
– Format obsolescence
– Exponential dissemination
– Behavioral
– Permanent connectedness
– Dissociative enablement or
the online disinhibition effect
– Delinearisation of
Information
– Participatory information
creation and sharing
– Searchability
– Availability and remote
access
– Retrievability

15. These qualities subconsciously impact
upon expectations of information (instantly
available) and they way that users deal
with it and process it.

16. the juror is enabled to readily locate
information that may have a bearing on a
case,

17. not because that juror is willingly flying in
the face of a judicial directive to the
contrary,

18. but because
the Internet is
the way in
which
information is
obtained, rather
than through
the archaic
processes of a
trial

19. 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.

20. A New Way of Thinking?

21. Our cognitive and thinking abilities were
developed in the print paradigm

22. The linear side-to-side verticality of reading
and processing information is replaced
with a

23. hypertexted system of
information
that is not
only

24. dynamic

25. but encourages dynamic behaviour on the
part of the users,

26. as they switch

27. from a webpage

28. to instant messaging

31. Then There’s Social Media
• Social media recognise that man is a
social animal
• The Internet allows for socialization on a
scale far wider than in clubs, bars or
workplaces.

36. Blawgs

39. Don’t
underestimate
this stuff

40. Addressing the Problem

41. Defining the Communication
• Information In
– Information obtained pre-trial or during trial
from outside the courtroom
• Information Out
– Information communicated from the jury to
the public arena during trial

42. Not every case of access to the internet
by a juror is going to prejudice a fair trial

43. Studies have shown otherwise

44. Many show that when jurors receive
evidence and proper directions, they are
capable of putting to one side potentially
biased information received before trial.

45. 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.

46. Proposition
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.

47. Reason 1
It is not inevitable is that jurors are going to
ignore the evidence in court and use
“outside information” in their deliberations.

48. Reason 2
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.

49. Reason 3
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.

50. Reason 4
“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
The research does seem to bear out the
suggestion that more attention is paid to
admissible evidence and information obtained
“in court” than otherwise.

51. The problem is a nuanced one and
requires a nuanced solution that will
accommodate the information
expectations of the digital native

52. Possible Solutions

53. Greater deployment of technology for
information communication in Court

54. • Use new communication technologies
• Projected photos and a laser pointer
• 3D modelling
• Use Google Maps and Google Earth on a
screen to establish location

55. A proper educative process for jurors.

56. • Wider juror education
• Explain WHY internet research is unfair
• Frequent explanation and reinforcement

57. Lawyers, Judges and the Court can take
steps during the trial process to enhance
juror engagement within the Courtroom

58. Anticipate What Jurors Want
Counsel should prepare their cases to
answer obvious questions that will arise and
to do so as early in the case as possible.

59. Focus on the Court Process
• 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.
• Jurors can write their notes in the book and highlight
exhibits.
• Research shows that where juror notebooks have
been used, jurors are more engaged and universally
feel that it made the trial more interesting.

60. Head off information in
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

61. Manage the Information
Process
Pre-trial discovery conferences would allow
the parties to discuss what information
about the case might be readily available
on-line and searchable by prospective
jurors.

62. Dealing with Juror Misconduct

63. Present Approach
• Preventative - educative approaches of
continued reasoned and informative jury
instruction explaining why jurors should desist
from trial related queries or communications on
the Internet.
• Remedial - focusses upon the preservation of the
right to a fair trial – includes 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.
• Deterrent - involving the utilisation of sanctions

64. There should be 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.

65. A New Way
• Recognises the changing nature of
society’s expectations of information
technology use, yet preserves the
utilisation of the jury trial.
• Has aspects of the remedial, as well as
the deterrent and preventative elements,
• Focusses upon the circumstances and
context of technology use by jurors.

66. A three stage inquiry that will allow the
judge to gauge what the judicial response
should be to the use of the particular
technology.

67. The Inquiry
• 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 outin”
scenario – is probably less harmful unless it is to
disclose the jury verdict before it is given or invite
input into the deliberation process.

68. Second Stage
• An evaluation of the nature of the
communication.
• Differing Internet protocols 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.

69. Third Stage
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

70. What to do
• 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.

71. A Matter for Sanctions?
• 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.

72. To conclude.......

73. By recognising the problem and challenges
posed by new technologies
and
adapting to them,
the jury trial will survive

74. For the detail
• David Harvey “The Googling Juror: The
Fate of the Jury Trial in the Digital
Paradigm” (2014) NZ Law Review Issue 2
p.203

75. Questions