“Hey Judge, that’s just Facebook stuff!” – Social Media, Jurors and the Right of an Accused to a Fair Trial

‘Checking-In’: What is the Problem?
The right to a fair trial is a central pillar of our criminal justice system. An accused is entitled to a trial before an impartial jury that makes its determination in accordance with evidence that has been properly admitted and tested during the course of the trial.

A current concern in Tasmania and elsewhere is how to preserve an accused’s right to a fair trial at a time when social media and other internet platforms are omnipresent in our everyday lives.

‘Trending’ – Use of Social Media and other Internet Platforms
The majority of Australians are continuously online and engaged; at home, at work and in-between on our smartphones.

If individuals continue this behaviour when they are jurors sitting in a criminal trial they thereby risk adversely affecting the accused’s right to a fair trial.

Getting a ‘handle’ on the Problem
Commentators have coined many terms which refer to the phenomena of jurors inappropriately using social media and/or internet platforms during a criminal trial and the consequences for the accused’s right to a fair trial: googling jurors; internet-surfing jurors; trial by google; google mistrials; E-jurors; do-it-yourself or DIY jurors; the twitter effect; internet-tainted jurors; digital injustice; wired jurors; and rogue jurors. There is no single expression that encapsulates the full range of possible juror misconduct of this kind.

Essentially, the relevant conduct falls within two main categories that may be described simply as: ‘information in’ and ‘information out’2. ‘Information in’ denotes jurors using the internet and/or social media platforms and accessing information relevant to the trial, either intentionally or inadvertently. ‘Information out’ denotes jurors using the internet and/or social media platforms to publish information about the trial.

There have been documented cases of:

• Jurors using the internet to research legal terms or concepts or other information relevant to the trial (‘information in’);
• Jurors using the internet and social media to search the accused, witnesses, victims, lawyers or the judge (‘information in’);
• Jurors using the internet and social media to communicate with individuals involved in the trial (‘information in’ and ‘information out’);
• Jurors publishing material about the trial on the internet or social media, which may disclose impermissible bias, prejudice, predetermination or other irregularity in the deliberation process (‘information out’); and
• Jurors publishing material about the trial on the internet or social media, which may elicit impermissible information by way of a response (‘information out’ and ‘information in’).

Of course, it is not always as simple as the misconduct being either ‘information in’ or ‘information out’. Apposite are the observations of the Chief Justice of New South Wales, the Hon Tom Bathurst: ‘with social media, content is not merely consumed by users, it is also created, organised and distributed by them’.3

In 2013, a juror in New South Wales Googled ‘murder’ and ‘manslaughter’,4 admitting to her fellow jurors, whilst reading material from her iPhone: ‘I’m having trouble determining the difference between murder and manslaughter’. It is solely for the trial judge to direct jurors on matters of law. When jurors go online to conduct enquiries on legal terms and concepts, the reliability and accuracy of the source is unknown. There is also the risk of obtaining information from another jurisdiction on a jurisdiction-specific matter. Further, it relies on the juror correctly identifying the legal term/concept in the first place and, thereafter, not straying once online.

Jurors have also been found to conduct internet searches on ‘expert’ topics, regardless of whether an expert witness had given evidence in the trial: eg on retention of body heat in an infant (New South Wales, 2007),5 and methylamphetamine production (Western Australia, 2016)6. Obvious issues arise as to the accuracy and reliability of such technical information that is sourced by jurors from unknown online sources. Moreover, the use that an unskilled and unassisted juror makes of such information in the context of the trial is completely unknown, including whether the juror disseminates the information to fellow jurors as an in-house jury room ‘expert’.

Jurors have also, on occasion, conducted online investigations into defendants and witnesses. In South Australia in 2016, two jurors sitting in a blackmail trial against multiple defendants were discovered to have conducted online searches on the accused which disclosed past outlaw motorcycle gang affiliations.7 Such information was legally irrelevant, inadmissible and highly prejudicial to the case being tried. Similarly, jurors have also obtained information via the internet on an accused’s prior convictions and previous allegations against an accused, including those for which the accused was acquitted. For example, in New South Wales in 2002, multiple jurors in a murder trial, alleging the accused had murdered his first wife, were discovered to have conducted internet searches to obtain information about previous allegations that the same accused had murdered his second wife (for which he was previously tried and acquitted).8 This information could significantly prejudice the accused in the eyes of the jurors so that they could not decide guilt or innocence in a dispassionate manner.

Jurors’ online searches have also located information about the history of the particular prosecution, including the fact that the present trial is a retrial and the reasons behind this, such as a hung jury or a successful appeal against conviction. For example, in a 2014 murder trial in Western Australia, a juror’s girlfriend conducted online searches in relation to the accused and located information about the history of two previous trials, which she then passed onto her partner, who, in turn, shared the information with his fellow jurors.9 Such information can mislead jurors and affect their ability to decide the case on a proper basis.

Online communications between sitting jurors is potentially problematic for many reasons, including simply because such online ‘banter’ is capable of distracting jurors from the trial itself. For example, in New South Wales in 2013, multiple jurors on a long-running fraud trial became Facebook friends. Their online communications included posts such as a digitally altered photo of one of the jurors wearing a judge’s wig.10

Jurors have also been found to publish material on the internet and social media platforms which suggests that they may have already made their mind up about the guilt of the accused, including in circumstances where they are yet to be empanelled on a particular trial. In 2010, a potential juror in Victoria posted on his Facebook page, ‘everyone’s guilty’,11 and in 2016 a juror who had been empanelled in a West Australian murder trial posted on Facebook the day the trial was due to commence, ‘At Perth District Court, guilty!’12

Jurors have also published material that discloses prejudice in relation to certain types of offending. For example, in 2016, a juror sitting in a sexual offending trial in Broken Hill, posted on Facebook the day before the guilty verdict was returned: ‘When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?’ This post was accompanied with a photograph that showed images of rooms and implements by which lawful executions are carried out.13 The same concerns apply to jurors with apparent sympathetic biases. In 2014, a juror in a murder trial in New South Wales conducted online research to locate a photograph of the victim. The juror viewed a media photograph depicting the victim’s parents holding a photograph of the victim. The juror explained: ‘I just wanted to see his [the deceased’s] face … that poor boy and I just wanted to see his face without any injuries, anything, just see him … put a face to the name.’14

Posts like these potentially bring the justice system into disrepute because they suggest that justice is not being done and similarly it is not seen to be being done. Whether or not a juror’s use of the internet/social media is representative of genuine bias, prejudice, and/or predetermination is not the entirety of the matter. The requirement of impartiality on the part of jurors may be adversely affected by both actual and perceived irregularities

Significantly, when jurors publish material about jury service on the internet or social media, they have no control over what material they may receive by way of a response. Even apparently innocuous material posted by jurors, or the simple act of a juror ‘tagging’ their location as the courthouse, may elicit unsolicited and inordinate replies capable of interfering with the juror’s impartiality (or being perceived as capable of doing so).

Going ‘viral’?
There has been some limited research conducted in this area in Australia and overseas, however, the prevalence of juror misconduct of this kind remains largely unknown and unknowable.

Whilst the detection of juror misconduct of this kind may be rare, this does not necessarily mean that such misconduct is, in fact, rare. Rather, all indications are that juror misconduct of this kind is under-reported, at least to some extent, and that the reported cases represent the bare minimum of cases of misconduct of this kind.

‘Dropping the Pin’
Juror misconduct of this kind is not a phenomenon that is peculiar to the larger jurisdictions and high-profile criminal trials on The Mainland.

In 2015, following a Supreme Court trial in Launceston (which resulted in the conviction of two defendants of aggravated assault and wounding), court staff who were cleaning the jury room discovered three pages of computer-printed material. The material contained the results of searches on the meaning of ‘beyond reasonable doubt’ and ‘circumstantial evidence’ from a US online legal dictionary.15

Indeed, this case may very well represent the tip of the iceberg when it comes to juror misconduct of this kind in Tasmania.

‘Status Update’ – Where to from here?
The Tasmania Law Reform Institute is currently researching jurors’ use of social media and other internet platforms during criminal trials. The Institute released an Issues Paper on 21 August 2019, which seeks to:

• assess, as far as is possible, the nature and gravity of this phenomenon;
• explore how and why juror misconduct of this kind occurs and the causes and/or motivations that underlie juror misconduct of this kind;
• canvas the laws and practices which currently exist to safeguard against juror misconduct of this kind as well as those that exist to remedy and/or otherwise deal with such misconduct after it occurs; and
• examine the operation and efficacy of these measures as well as the possible alternatives.

The Institute invites submissions on this topic until 4 October 2019.

All submissions will inform the Institute’s final report which will ultimately consider whether reform of the current laws and practices is justified and, if so, what form that should take.

The Issues Paper is available at:
https://www.utas.edu.au/law-reform/publications/ongoing-law-reform-projects2

Jemma Holt
Research Fellow
Tasmania Law Reform Institute

Jemma Holt is a Research Fellow at the Tasmania Law Reform Institute. She also works part time as a Prosecutor at the Office of the Director of Public Prosecutions in Hobart. She has previously worked as a Prosecutor at the Office of the Director of Public Prosecutions in Adelaide and the Crown Solicitor’s Office in Adelaide.

This research project was funded by a grant from the Law Foundation of Tasmania.

1. In 2009 in Maryland (US) five jurors became Facebook ‘friends’ and were discussing the trial on Facebook to the exclusion of other jurors. After the presiding judge made enquiries into the matter, one of the jurors posted on his Facebook page, ‘F— the Judge’. When the judge asked the juror about this post, the juror simply replied: ‘Hey Judge, that’s just Facebook stuff’.
2. Kerstin Braun, ‘Yesterday is History, Tomorrow is a Mystery – The Fate of the Australian Jury System in the Age of Social Media Dependency’ (2017) 40(4) University of New South Wales Law Journal 1634; David Harvey, ‘The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm’ [2014] New Zealand Law Review 203; J C Lundberg, ‘Googling Jurors to Conduct Voir Dire’ (2012) 8 Washington Journal of Law, Technology and Arts 123.
3. Jane Johnston et al, ‘Juries and Social Media’, 1–29 <https://www.ncsc.org/~/media/Files/PDF/Information%20and%20Resources/juries%20and%20social%20media_Australia_A%20Wallace.ashx>.
4. The juror later told fellow jurors that, based on her research, the difference between the two involved ‘malice’: R v JP (No 1) [2013] NSWSC 1678; R v JP (No 2) [2013] NSWSC 1679. The juror was discharged, and the trial proceeded to verdict.
5. R v Folbigg [2007] NSWCCA 371. The misconduct was discovered after the jury had been discharged. On appeal, it was held that irregularities had occurred, but the appeal was dismissed.
6. In Western Australia in 2016, a juror in a drug-related trial researched methylamphetamine production online. See Heather McNeill, ‘Calls to Overhaul WA Jury System After Juror Dismissed for Facebook Post’. WA Today (online, 13 October 2016) <https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html>.
7. Registrar of the Supreme Court of South Australia v S; Registrar of the Supreme Court of South Australia v C [2016] SASC 93. Both jurors were dismissed and the balance of then jury discharged. Both jurors were subsequently convicted of contempt, had convictions recorded and were fined $3000 each.
8. R v K (2003) 59 NSWLR 431.
9. See Joanne Menagh, ‘Judge “almost speechless with rage” after third Ronald Pennington trial for 1992 murder aborted’, ABC News (online, 31 July 2014) <https://www.abc.net.au/news/2014-07-30/judge-27speechless-with-rage27-after-third-trial-for-1992-mur/5636388>. See also R v K (2003) 59 NSWLR 431.
10. Brenden Hills, ‘Jury Getting off Their Facebooks’, The Daily Telegraph (online, 12 May 2013) <https://www.dailytelegraph.com.au/jury-getting-off-their-facebooks/news-story/26e2549a7d9063ae9dae0e2a27683dce>. The judge became aware of this conduct two months into the trial after being alerted by the trial prosecutor. The judge ordered a court officer to examine the material to see if it included any prejudicial material. It was ultimately concluded that the material was not such so as to warrant the jury being discharged.
11. Andrea Petrie, ‘No-show juror in hot water over “stupid” action’, The Sydney Morning Herald (online, 17 April 2010) <https://www.smh.com.au/national/noshow-juror-in-hot-water-over-stupid-actions-20100416-skli.html>. The juror was referred for potential prosecution.
12. See Heather McNeill, ‘Calls to Overhaul WA Jury System After Juror Dismissed for Facebook Post’. WA Today (online, 13 October 2016) <https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html>.
13. Michaela Whitcourne, ‘Social media post sparks probe into jury conduct in sex crime trial’ The Sydney Morning Herald (online, 15 April 2019) <https://www.smh.com.au/national/nsw/facebook-post-sparks-probe-into-jury-conduct-in-sex-crime-trial-20190414-p51dz4.html>. See also Agelakis v R [2019] NSWCCA 71: On 29 March 2019, the NSW Court of Criminal Appeal ordered an investigation into the alleged juror misconduct, pursuant to s 73A of the Jury Act 1977 (NSW).
14. R v JH (No 3) 2014 NSWSC 1966, [8]. Juror dismissed, trial proceeded to verdict.
15. Marshall and Richardson v Tasmania (2016) 264 A Crim R 448. On appeal, the court confirmed that a procedural irregularity had occurred, but the appeal was ultimately dismissed.