The jury system must catch up with the realities of the 21st century and criminal sanctions won’t stop jurors conducting online research, according to an expert on the civil jury system.
Dr Jacqueline Horan, a barrister and senior lecturer at the University of Melbourne’s faculty of law, told Lawyers Weekly the jury system is out of step with the modern age.
“Jurors of the 21st century are highly educated people. The old-fashioned jury system was set up at a time when juries were illiterate,” she said.
“The system has to update itself to keep in touch with the average citizen of the 21st century.”
Horan’s comments come in the wake of yesterday’s (23 January) British High Court ruling that will see a former university lecturer spend six months behind bars for conducting online research during a trial in which she was a juror.
The Guardian reported that Theodora Dallas conducted online research at home while she was a juror in 2011. Dallas told other members of the jury what she had discovered about the defendant, Barry Medlock, who was being tried for causing grievous bodily harm.
The judge was forced to stop the case from proceeding after discovering Dallas’s conduct. Medlock was later retried and found guilty.
The Dallas case is one of a growing list of international and homegrown cases in which jurors have been caught using social media sites, such as Facebook and Twitter, or conducting their own research online, often resulting in aborted trials and, increasingly, criminal sanctions for jurors.
According to Horan, however, laws against such actions are ineffective and unlikely to prevent jurors from self-educating or interacting online.
“People are not going to stop doing research. That is the way we are taught these days,” said Horan. “Students are taught to look up Wikipedia if they don’t understand language.”
Horan highlighted the case of Abdul Nacer Benbrika, who was found guilty of leading a terrorist group in Sydney and Melbourne in 2008. In that matter, jurors were found with their own research in the jury room. It was discussed in court and they were told they couldn’t access information online but, as the case went on, more illicit research was conducted.
“You can’t stop people from doing it. They want to do a good job,” she said. “If they’ve got the choice between doing a good job and getting a criminal sanction, they’ll do a good job. It’s somebody’s life and liberty at stake. Giving them a criminal sanction doesn’t work.”
However, legal ethicist and consultant Neil Watt told Lawyers Weekly that when jurors disobey directions to refrain from conducting their own research, it has the potential to undermine the entire justice system.
“In principle, the ethical perspective is that jurors must be committed to forming their own conclusions based on the facts presented in court rather than the untested opinions in the media or elsewhere,” he said. “It has always been the case that this involves an avoidance of personal investigation. The ease of online news sources and social media doesn’t change this, and it would weaken our system of justice if accused people were denied trial by their peers because they might be tempted to fossick on the internet.”
Horan believes, however, that more needs to be done to ensure that jurors know exactly what they can and can’t do when it comes to accessing information, and said current methods of instruction – which are primarily oral and based on traditional legal language – are insufficient for the modern juror.
“Jurors don’t get anything [presented] to them in visual terms. They don’t get any written instruction to confirm things like, ‘Don’t go and tweet to your friends about this, because if you do it might influence you and that would be inappropriate,” said Horan.
“At the beginning of a trial, jurors are told all these instructions and they’re expected to remember it. They’re in a new environment, they’re quite intimidated, there’s lots going on, and I don’t think they appreciate the gravity of it.”
In recent years, some changes have been made to the jury system, and jurors are now allowed to take notes and review transcripts – something Horan describes as a “no-brainer”.
But this progress, she said, is not necessarily indicative of a wider push to initiate more change within the jury system.
“[That] is a great step forward … but it is the result of a monumental struggle over the last few years,” she said. “To me, the key is to change the legal culture, but I haven’t felt any major movement towards overhauling the system.”