Report released on social media & juries – By Jemma Holt

Updated and improved juror education recommended to address jurors’ use of social media and the internet

JEMMA HOLT, RESEARCH FELLOW & ACTING EXECUTIVE OFFICER (RESEARCH), TASMANIA LAW REFORM INSTITUTE

This year, the South Australian Law Reform Institutes will conduct research into the influence of social media on jury trials. Jemma Holt reports on the findings of the Tasmania Law Reform Institute’s recent report on the issue, as she plans to return to SA after a stint in Hobart to work for the Director of Public Prosecutions and assist SALRI with it project - The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders

On 22 January , the Tasmania Law Reform Institute released a Final Report entitled Jurors, Social Media and the Right of an Accused to a Fair Trial. The Report is the culmination of extensive research and community consultation between 2018 to present about jurors’ use of social media and the internet during criminal trials. it is one which must be addressed. That is particularly the case given the general perception within the legal community and public at large is that juror misconduct of this kind is prevalent. If measures are not put in place to respond to misuse – real or perceived – public confi dence in the criminal process will be undermined.

JURORS & SOCIAL MEDIA: UNKNOWN, UNKNOWABLE AND UNAVOIDABLE.

There has been one documented case in Tasmania in 2015 of juror/s accessing online information in the course of deliberations. However, the actual prevalence of the practice is likely to be much higher, something evidenced by documented misuse of internet devices by jurors in other jurisdictions within and outside Australia. Indeed, all indications are that the reported cases represent the bare minimum of cases of misconduct of this kind, and there is no way of properly assessing or measuring its actual prevalence.

What does present itself as a constant, known quantity is the gravity of the risk: the risk that an accused’s fundamental right to a fair trial before an impartial jury is adversely affected. Every juror or prospective juror carries this risk and the act of only one of those persons can undermine the trial process. This makes identifying and managing the risk in the immediate sense challenging, but given its impacts on the administration of justice

JURORS’ NET USE - A MULTI-FACTORED AND MULTI-DIRECTIONAL PROBLEM Historically, the legal profession has been concerned with the so called ‘Googling juror’. That is, someone who intentionally and defi antly uses the internet to search for trial related information while sitting as a juror in a criminal trial. The Institute’s report demonstrates that the issue is much broader.

Juror misconduct may involve both ”information in” and “information out” uses of social media and/or the internet. It may also involve wilful disobedience to directions but also unintentional acts by jurors who believe they are doing the right thing. For instance, jurors accessing the news, entertainment or social media sites via their internet connected devices during the trial may inadvertently or passively be infl uenced by information, online sentiment and/or unsolicited communications relevant to the matter. That, in turn, may impact upon their ability to perform their role.

Jurors’ habitual use of social media and/or other internet platforms may cause jurors to fall into misconduct by way of “information out”. That is, the desire to continuously share and to be constantly connected causing jurors to publish material online, without fully appreciating the consequences of such behaviour in the context of their role and obligations as a juror.

The reasons why a juror may intentionally go online are not always straightforward either. It may be the product of confusion about and/or frustration with the trial process and/or a genuine belief that their actions are in the pursuit of ‘fairness’ or discovering the truth.

ENSURING A FAIR TRIAL - EDUCATION, NOT PUNISHMENT

In its report the Institute concludes that jurors themselves must understand the wide range of possible juror misconduct involving social media and the internet. It subsequently identifi es juror education as key to addressing jurors’ use of social media and the internet during criminal trials. This requires changing court procedure rather than making substantive changes to legislation.

Prospective jurors receive introductory training/information at the courthouse before they are chosen as jurors for a particular trial and, once they have been chosen to sit on a trial, they receive instructions – directions - thereafter from the trial judge. The Institute recognises these as two areas in which signifi cant work can be done.

The report recommends that the introductory training/information for jurors is improved and updated and that standardised directions are introduced, like the model directions on this topic that are used by judicial offi cers in Victoria and New South Wales.

The Institute notes that, should properly educated jurors ignore such training and directions, and breach their duties, then punishment may be appropriate. However,

it concludes that current Tasmanian laws available are adequate for the small role that punitive measures ought to play in addressing this issue.

The Institute’s recommendations and the full text of the report is available under the ‘Juries & Social Media’ tab at: https:// www.utas.edu.au/law-reform/publications/ completed-law-reform-projects

The project was funded by a grant from the Law Foundation of Tasmania. It

benefi ted from valuable collaboration with the South Australia Law Reform Institute. In 2020, the South Australian Law Reform Institute will conduct research and community consultation in South Australia on a similar project - The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders. Jemma Holt has been living and working in Hobart, Tasmania, in 2019. During that time, she worked part time at the Tasmania Law

Reform Institute and part time as Crown Counsel for the DPP in Hobart. In 2020 she returns to practice in Adelaide at the DPP. She will continue her ties with the University of Tasmania, recently appointed as a Clinical Lecturer with the Faculty of Law at the University of Tasmania until 2022. In 2020 she will also assist the South Australian Law Reform Institute as a Project Offi cer/ Researcher with their related project - The Modern Right to a Fair Trial: Juries, Social Media and Suppression Orders. B