Posted on Sep 5, 2022
Nearly 80% of Australians use social media and spend on average over 100 minutes per day on social media platforms. Unsurprisingly, the near-ubiquity of social media has also led to increasing numbers of jurors using social media during trials - despite specific warnings against doing this. Juror social media use has the power to affect trial outcomes and potentially lead to mistrials. Let's take a look at how social media misuse by jurors has impacted trials - and what steps can be taken to address this problem.
How does social media affect a jury: 3 concerning examples
Jurors do use social media and other internet resources during trials - but this type of misconduct is underreported, mainly because it is so difficult to detect.
There are many ways jurors can misuse social media and the internet during trials. Three common scenarios are:
Researching trial details on social media
Jurors might be tempted to use social media or the internet to find out further information about the trial other than the evidence presented in court. This can lead them to forming an opinion about the facts which is not based on the admissible evidence.
There have been a number of cases in Australia where inappropriate social media or internet searches by jurors have led to aborted trials, and in some cases, penalties for the jurors involved.
- In 2014, a Queensland murder trial was aborted on its tenth day due to a juror conducting research on Facebook to learn more about the accused and his alleged victim. The judge referred the case to the Attorney-General to consider prosecution - which could have meant the juror facing up to two years in jail.
- In 2016, a jury for a criminal trial was discharged after two jurors Googled the names and background of the accused. The jurors in question were prosecuted for contempt of court and were each fined $3,000.
- In 2021, a Queensland perjury trial of a former police officer was aborted due to a juror using their phone to look up the definition of “intention”, which was a key consideration in the trial.
- In 2022, the High Court of Australia unanimously quashed the convictions of a tutor accused of sexual offences against children and ordered a new trial because one of the jurors had done online research relating to the case before the final verdicts were handed down.
Commenting about the trial on social media
Jurors must be seen as independent and unbiased, otherwise, the accused’s right to a fair trial can be undermined. It is particularly problematic when they “post” or “tweet” about a trial, especially if they express an opinion about their case. Yet, jurors still regularly get caught out sharing their views on social media. A female juror sitting in a murder trial in Western Australia was dismissed after she posted on Facebook right before the trial was scheduled to start: “At Perth District Court, guilty!”
A similar incident occurred a few years earlier in Victoria after a juror posted “everyone’s guilty” on Facebook right before a trial was due to start. Thankfully, the posts were spotted early and the jurors in each case were dismissed before the trial started. But if these posts had not been spotted, it may have led to the wasted time, cost and heartache of an aborted trial.
More recently, in 2019, a juror in a sexual assault trial in NSW, posted a provocative post 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?”. The text was accompanied by a photograph of an electric chair. After an investigation and appeal, the NSW Court of Appeal quashed the conviction and ordered a retrial, partly based on this juror’s lack of impartiality.
Contacting parties to the case via social media
Although there are rules designed to prevent jurors from communicating with other parties to the case, the ease of forming private connections via social media has made it much harder to enforce these rules. But the consequences of breaching these rules can be steep - in one case a juror in Florida was accused of “friending” the defendant in a trial. He was then dismissed from the trial and sent to jail for 3 days.
In Australia, a long-running fraud trial involving an alleged $4.7 million kickback scheme by Woolworths employees had to be paused when it became clear that several juror members had become friends on Facebook - and posted comments about the case. Even though it was later found that the information communicated over Facebook was not prejudicial enough to discharge the jury, it did initially raise the threat that the jury would have to be discharged and the case restarted.
Juror misconduct online can have significant consequences - but is often hard to pick up during the trial process.
What can be done to prevent juror social media misconduct during trials?
In most cases, properly educating jurors about the impact inappropriate social media use has on trials, as well as the consequences if they get caught, can go a long way to reducing the likelihood of future incidents similar to the ones described above. Holding pre-trial education sessions for jurors, as well as reminding them of the risks throughout the trial process, is one strategy to mitigate the risk of social media misuse by jurors during trials.
Following a two-year research project, the Tasmanian Law Reform Institute (TLRI) published a report with a list of recommendations to improve the right of a fair trial in a social media world. The report concluded that more must be done in ”the training and information that prospective jurors receive at the courthouse before they are chosen as jurors; and the directions that jurors are given by the judge once they are chosen to sit on a trial”. TLRI also published additional resources such as this explainer video “Juries, the internet & social media; how can courts manage the risks?”
Other suggestions for tackling these issues include sequestering jurors or even confiscating smartphones and other internet-connected devices during trials to avoid issues arising from social media misuse. However, suggestions such as these have been criticised heavily as they may make the courts seem out of touch with today’s society. Loranda Bartels, Assistant Professor in Law and Justice at the University of Canberra, also notes that such measures may discourage people from serving on juries and advocates for a more nuanced, education-based approach. The ongoing challenge for courts will be to find a balance between protecting the integrity of the jury system, whilst also respecting jurors' personal freedoms.
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