The jury system in criminal trials is based on the principle that the determination of guilt or innocence of an accused should be undertaken by members of the community in order to guarantee a fair trial. The criminal jury, as a fundamental part of the English criminal justice system, was first adopted by the Australian colonies and subsequently integrated into state and territory criminal justice systems. The Australian Constitution enunciates that a trial on indictment for a Commonwealth offence shall be by jury. An essential aspect of the Australian jury system, comparable to other jury systems around the world, is that jurors in criminal trials decide on questions of fact solely based on the evidence placed in front of them during the trial. They are not allowed to conduct their own research and retrieve outside information on which they base their verdict. While it is certainly no new phenomenon that some jurors disobey these instructions and conduct their own research, the risk has increased over the past two decades with the start of the digital age where information is readily and easily available. Relatedly, academic interest in the topic of jurors conducting their own internet research has increased over the past years and the catchphrase of the ‘Googling juror’ or ‘trial by Google’ has been introduced to partially capture this phenomenon. Researchers have long highlighted jurors’ internet research on legal terms or other trial-related information as an area of concern.
Another problematic development is jurors’ use of social media, including Facebook, Instagram and Twitter, during the trial and deliberation process. Jurors are not allowed to disclose any protected information about trial or deliberations, they are not to discuss the case with non-jurors, and must remain unbiased. However, a number of cases have reportedly arisen in Australia and abroad where jurors have breached these duties by using social media. In addition, by simply accessing social network profiles jurors are at risk of being exposed to potentially prejudicial news posted by other users. In this case jurors receive extraneous information incidentally rather than by purposefully conducting trial related internet research. Jurors’ social media use can therefore have severe consequences ranging from the dismissal of the individual juror over the dismissal of the jury panel to the abandonment of the trial and the appeal of the original verdict leading to its reversal. In addition, an individual juror can face jail time for contempt of court due to their actions. Each comes with its own cost implications.
With growing interest and concern, a number of strategies have been put forward on how to best curtail this phenomenon in common law jurisdictions. The approaches range from jury directions on social media over penalties for misconduct and (virtual) sequestration of the jury, to the introduction of the uncontested right for judge alone trials or abolishing the jury system altogether. This article contemplates whether jurors’ use of social media during trial and deliberations is a frequent occurrence endangering the fair trial principle and whether viable avenues exist to sufficiently address this potential challenge in the Australian context. This article does not consider jurors’ intentional attempts at obtaining extrajudicial information through the use of web-based search engines, including those on social media, or the effects of internet pre-trial publicity on jurors as this has been discussed extensively elsewhere. When assessing the likelihood of jurors’ social media misconduct in practice, existing research studies, as well as incidents reported in the media in the United States (‘US’), the United Kingdom (‘UK’) and Australia are examined. Cases reported prior to 2011, as well as incidents relating to juror misconduct in civil trials, do not form part of the analysis in this article in order to provide a current assessment of the issue in criminal trials.
After a brief introduction, Part II of this article lays out what jurors’ social media misconduct entails. It subsequently examines whether this behaviour likely constitutes a risk for the criminal justice system in practice by evaluating existing research and incidents reported in the media since 2011. Part III explores the effectiveness and viability of implemented and suggested approaches aimed at curtailing jurors’ social media use in the Australian context. The article concludes, in Part IV, that the effectiveness of many of the suggested approaches remains questionable and that their implementation is politically unrealistic due to cost and time implications for the Australian criminal justice system. It appears that in order for legal solutions to adequately reflect the problem, a more holistic understanding of the underlying motivations of jurors’ social media use during trial and deliberation is necessary.