‘Does the Internet pose an unmanageable threat to the jury system?’ – Lola Okuyiga

The following essay was the winning entry in the 2014 Red Lion Chambers Essay Competition. The author, Lola Okuyiga, was the winner of the competition, receiving £125 and a mini-pupillage at Red Lion Chambers.
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DOES THE INTERNET POSE AN UNMANAGEABLE THREAT TO THE JURY SYSTEM?

I. Introduction

During a lecture in 2010 Lord Judge, former Lord Chief Justice of England and Wales, carefully scrutinised the magnitude of the threat the Internet posed to the jury system. He warned against turning a ‘Nelsonian blind eye’ to juries improperly influenced by vitriolic rhetoric discovered online, or information pertaining to a prior conviction of the accused.[1] In language reminiscent of a Hobbesian return to primal chaos and anarchy, Attorney-General Dominic Grieve described the nature of the prejudice faced by the defendant thus: ‘the jury will no longer be able to deliver a verdict based solely on the evidence adduced before them; the role of the judge has been usurped, the defendant’s right to a fair trial is prejudiced.’[2] In assessing the question posed at the outset, this paper shall determine the extent to which this threat to the jury system may be regarded as an unmanageable phenomenon. With a special focus on the United Kingdom, the dimensions of the term ‘unmanageable’ will be explored through a consideration of the nature of the risk presented by the Internet and the basis for online research despite judicial admonition to the contrary, before concluding with some recommendations on how courts might address the issue.

II. The Importance of Trial by Jury

The birth of an independent jury in possession of a conscience-based jurisdiction to determine the guilt or innocence of the accused can be traced back to the seventeenth century in Bushell’s Case.[3] It is perhaps the last bastion of direct democracy, reflecting the sentiment of the community and granting ordinary men the power to ‘extend unarticulated mercy’[4] to citizens who have acted in clear violation of the law. However, the institution has not escaped criticism: Mark Twain described it as ‘the most ingenious and infallible agency for defeating justice that human wisdom could have devised.’[5] Furthermore, trial by jury does not automatically square with developments in human rights law, such as Article 6 of the European Convention on Human Rights, which provides for the right to a fair trial before an impartial tribunal.[6] The Convention was incorporated into UK domestic law through the Human Rights Act 1998 and the fair trial provision is reflected in Section 6(1) of that Act.[7] It would seem that this section precludes perverse decision-making. Therefore, that jurors are not required to give reasons raises concerns about the rationale underlying their decisions. The rise of the Internet has refocused attention on this issue, as it highlights the ease with which extraneous, prejudicial information can improperly influence juries during the fact-finding process.

III. The Nature of the Risk

Online media coverage of cases can lead to ‘trial by media’, whereby information leaks, hearsay and individual biases lead to judgment being cast in public, prior to its delivery through established legal procedures. The Oscar Pistorius trial in South Africa is a case in point, with many online news sources failing to publish news on the case objectively and their readership given free reign to speculate as to the guilt or innocence of the defendant. One gets the impression that the overwhelming majority believe he is guilty, and online comment sections are replete with forcefully opinionated arguments thereto. Admittedly, South Africa does not have a jury system – this was abolished in 1968.[8] However, much empirical evidence indicates that, in countries such as the UK, where trial by jury does feature in the legal system, any juror who encounters such information is at risk of being influenced by the rhetoric of a skilled and opinionated writer, the musings of an individual who possesses greater knowledge of the subject matter, or even friends.[9] A particularly ominous example of the dangers of trial by jury in the modern era can be seen in a sex abuse case, where a juror posted the factual matrix of the trial and conducted a poll to determine her verdict.[10]

IV. The Impetus for Research

A key question in regards to intra-trial Internet searches is, what motivates jurors to supplement the directions they receive in the courtroom with information – or misinformation, as the case may be – online? Could this point to a deficiency in the guidance provided by judges or perhaps, a mistrust of the legal system? Professor Morrison of Georgia State University College of Law attributes online factual research by juries to a frustration with ‘the fact that they are barred from considering all available evidence.’[11] Furthermore, jurors are ‘not always satisfied with the legal explanations they receive from the court.’[12] Grieve aptly employs the needle-in-haystack analogy to express the nature of the risk posed by the Internet. With the needle representing the prejudicial content available and the haystack signifying the Internet, search engines such as Google are instrumental in enabling a juror to ‘locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise.’[13] In light of the information I have considered, I advance a number of proposals, which may go some way towards meeting the threat posed by the Internet to the jury system in its present incarnation.

V. Recommendations for Meeting the Challenge

1. First, I believe defendants in high profile cases should be granted the right to be tried by a judge rather than a jury. It is assumed that, where a defendant’s reputation has been tainted in the press, they will select the avenue most likely to guarantee a procedurally fair result, that is, trial by an independent and impartial judge.

2. Second, I would recommend that jurors give reasons for their decision. Arguably, giving reasons reduces the suitability of trial by jury as a soundboard for dissatisfaction with the law. However, transparency in the administration of justice is key to ensuring equality in the application of the law. Far from undermining the system, an obligation to give reasons will enhance the utility of jurors in the justice system, as any flaws in their reasoning can be identified upon review, thus enabling bias to be weeded out more efficiently. The lack of accountability associated with ‘palm tree justice’ – in that trial by jury lacks reasoned judgment – simply cannot be reconciled with the notion of fairness and the interpretation of legislation in accordance with human rights law. Defendants should have a right to know what evidence is being used against them, so that they can defend their case. This traditional trajectory has imbued a great measure of stability and certainty into the administration of justice, and desirably so. Therefore, frustration with individual laws ought to be evinced through civic actions such as protest and the ballot box; reason in the legal process must prevail so laws are not applied arbitrarily.

3. Third, to the extent that Internet research by juries reflects a lack of comprehension, written directions may be required in addition to oral directions, in order to ensure jurors can adequately process the directions not to peruse sources such as the Internet. It may be necessary to introduce professionals who assist jurors requiring further clarification on highly technical or specialised legal terminology and concepts necessary to conduct the task expected of them.

4. Fourth, it is imperative that judges explain the importance of jurors not accessing information online carrying a substantial risk of bias and notifying the judiciary the moment they encounter such information. If judges ensure that in their directions they express the reason why fairness demands that only admissible evidence is considered in the fact-finding process, jurors may be less inclined to disobey the procedural rules. In addition to this, in light of a study conducted by Tanford in 1990, it is also recommended that jurors be required to make public pledges that they will disregard extraneous information.[14]

5. Fifth, I would argue for the introduction of criminal penalties for violating judicial admonitions. I believe that criminalising the breach of such a pledge may effectively dissuade jurors from using the Internet. In Australia, for example, Internet inquiries about the accused by jurors could potentially lead to a maximum of two years imprisonment, under s 69A of the Jury Act 1995.[15] This is a considerable disincentive, particularly if combined with the right of advocates to research participating jurors. The criminalisation of this conduct should explicitly reference Internet research and should be accompanied by a duty to inform the court immediately of any indication that a fellow juror may have come across prejudicial information whether intentionally or otherwise.

6. Sixth, in the future it may be necessary for judges to ban technological devices, particularly in high publicity trials, where there is a great likelihood that jurors having encountered prejudicial information.

VI. Concluding Thoughts

The conundrum faced by courts is that inadmissible evidence undermines the integrity of the jury system. The ease of access the Internet provides to a wealth of prejudicial information may ultimately lead to the erosion of trial by jury, as public confidence is diminished in the legitimacy of juries as independent, impartial arbiters of fact. In future, the rise of the Internet may point to the move towards a system of trial by jury whereby jurors are given a questionnaire, which breaks down questions of fact, ultimately providing a conclusion independently of the juror’s own considerations. At present however, we ought to make every attempt to preserve trial by jury in the form in which it has been revered.

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[1] Lord Judge, ‘Jury Trials’ (Judicial Studies Board Lecture, Belfast, 16 November 2010) 5 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/speech-lcj-jury-trials-jsb-lecture- belfast.pdf accessed 15 February 2014.
[2] Dominic Grieve, ‘Trial by Google? Juries, Social Media and the Internet’ (6 February 2013) https://www.gov.uk/government/speeches/trial-by-google-juries-social-media-and-the-internet accessed 18 February 2014.
[3] (1670) 124 ER 1006.
[4] William L Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy (St Martin’s Griffin 2002).
[5] Simon Jenkins, ‘Juries? It’s time they went the way of the ducking stool’ (The Guardian, 21 February 2013) http://www.theguardian.com/commentisfree/2013/feb/21/juries-time-ducking-stool accessed 21 February 2014.
[6] European Convention on Human Rights, art 6.
[7] Human Rights Act 1998, s 6(1).
[8] Abolition of Juries Act 34 1969.
[9] Duncan Stark, ‘Juror Investigation: Is In-Courtroom Internet Research Going too far?’ (2011) 7 Wash J L Tech & Arts 93; Caren Myers Morrison, ‘Can the Jury Trial Survive Google?’ (2011) 25 Crim Just 4; Neil Vidmar, ‘Case Studies of Pre- and Mid-trial Prejudice in Criminal and Civil Litigation’ (2002) 26 Law & Hum Behav 73; Christina A Studebaker and Steven D Penrod, ‘Pretrial Publicity: The Media, the Law, and Common Sense’ (1997) 3 Pscyhol Pub Pol’y & L 428.
[10] Guy Patrick, ‘Juror Axed for Verdict Poll On Net’ (The Sun, 24 November 2008) http://www.thesun.co.uk./sol/homepage/news/article1963544.ece accessed 18 February 2014.
[11] Caren Myers Morrison, ‘Can the Jury Trial Survive Google?’ (2011) 25(4) Crim Just 2.
[12] ibid 3.
[13] Grieve (n 2).
[14] JA Tanford, ‘The Law and Psychology of Jury Instructions’ (1990) 69 Nebraska Law Review 71, 69.
[15] Jury Act 1995, 69A.

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Lola Okuyiga
University of Warwick
LLB Law, 3rd Year

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