Sunday, November 21, 2010

Does the Internet threaten the justice system?

I was surprised to read remarks by a British judge, as reported by the BBC.

In a lecture published on Friday the Lord Chief Justice, Lord Judge, raised major concerns about the use of the internet by jurors.

He said: "If the jury system is to survive as the system for a fair trial... the misuse of the internet by jurors must stop."

Lord Judge said some jurors had used the internet to research a rape case.

Earlier this year a judge in Manchester had to dismiss a jury and restart a trial, The Sun reported, after a juror went onto her Facebook page, gave details of a trial and asked friends: "Did he do it?"

Lord Judge, who is the most senior judge in England and Wales, said it was too easy for campaigners to bombard Twitter with messages in a bid to put pressure on jurors who might be looking at it.

He said: "We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged."

Lord Judge added: "We cannot accept that the use of the internet, or rather its misuse, should be acknowledged and treated as an ineradicable fact of life, or that a Nelsonian blind eye should be turned to it or the possibility that it is happening.

"If it is not addressed, the misuse of the internet represents a threat to the jury system which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge."

He said judges need to warn jurors in the strongest terms not to use the internet to research cases or to give details of cases they are deliberating on.

He wants the notice in jury rooms to be amended to include a warning that such research could amount to a contempt of court. He raised the prospect of sentencing jurors who use the internet for research.

Lord Judge even suggested sending text messages from court buildings should be banned.

There's more at the link.

Thinking about it, the good judge may have a point. I can see that indisciplined jurors might look for facts that were not presented in evidence in order to make up their minds; and, according to the letter of the law, that's not right. However, to my mind, the current practice whereby juries are often not informed about a defendant's criminal record is equally wrong. After all, if the accused has a string of convictions as long as your arm, you may never know that. Instead, he's presenting himself (or his lawyer is presenting him) as a poor, misunderstood, naive, hapless victim of circumstances who's really as pure as the driven slush. Isn't that misrepresentation as great a threat to justice as a juror doing his or her own research?

Technology offers other advantages besides private research. If jurors are to keep in touch with their families, or continue with certain occupations, it's often essential. There's also the threat to jurors' rights if they're deprived of it. Take me, for example. If I'm called up for jury duty, am I to be forbidden the right to blog for the duration of the trial? Isn't that an unwarrantable intrusion on my life? Sure, I expect to be forbidden to write about the trial on my blog (at least while it's in progress), but there are plenty of other things I can write about. Why should I be restricted from talking about them?

What say you, readers? Does the judge have a point? Or is this 'a bridge too far' for a legal Big Brother?



Wayne Conrad said...

Jurors misusing technology is not half the injustice that judges have done us all by denying the right of jury nullification. I'm not sympathetic to their honors.

Wayne Conrad said...

Oh, there goes my reading comprehension again. British judges. Never mind.

Moshe Ben-David said...

Wayne Conrad is absolutely right. British law notwithstanding. U.S. law was designed for the people, the PEOPLE to rule on the facts and the law in any given case. For the lawyers and judges to have sole discretion over what facts are relevant or might sway a jury is elitism that should not be tolerated.

But what really chaps my a$$ is that the internet is seen as the problem and not the person who violated the rules. This smacks of the same so-called thinking behind gun control and current methods of the TSA. The only point the Lord Judge has is on top of his head.

Anonymous said...

I fail to see why researching the background of one or all parties is wrong, since the original jury trial in the British colonies in North America needed people who did know the defendant and could decide if he or she was likely to have committed the deed, based on their knowledge of that individual. That said, the social-network stuff IS out of bounds and should be blocked. No Face-page or whatever, no Twitter, no texting until after the verdict is reached.

Auntie J said...

To be honest, I'm quite torn. It's hard to argue either way with one opinion being more compelling than the other.

However, I will say this. I've always held to the belief that my personal rights end where another's begin. My right to hate the schmuck down the street ends where his right to not die begins.

That being said...the cornerstone of American justice is an impartial trial in front of a jury of one's peers. Thus, there are certain rules as to what can be presented as evidence in a criminal trial. Information that is not deemed to have evidentiary value thus is not presented, and the case is judged by the merits of its evidence. (Case in point: the O.J. Simpson trial. Much evidence was entered into the civil wrongful-death suit that did not meet the criteria as evidence in the criminal case. Hence, the different verdicts.)

To deliberately attempt to find information online about a case upon which one is sitting as a juror is an end-run, then, around what is legal evidence to be considered in a criminal case. Search engine results will not and cannot be restricted to only finding factual links; news articles, blogs, and even family rants about the accused will all be returned. And not even news articles can be 100% impartial or factual at time of trial. They reflect what was known of the case at the time, and may present alternate theories or evidence that has been ruled out or deemed inadmissible, or even be skewed by the reporter's own opinions. To access such information and use it to sway the jury's decision-making violates the accused's right to a fair trial based on the evidence presented. Just because it's online and available doesn't mean that it should have bearing on a juror's opinions or decisions, and to go searching for other such "evidence" that's not presented in court, in order to prove a juror's own theories, also violates the sanctity of court. What if a juror finds speculation that confirms his suspicions about the defendant, and sways the jury to convict on the basis of opinion found on the Internet, as opposed to the facts of evidence presented in court...and the defendant is, in reality, not guilty?

Auntie J said...

What it boils down to is the same thing criminal justice (and, to a certain extent, civil justice) has always boiled down to: the honor and integrity of the jurors. Making more rules or more laws or forbidding Internet access or violating a whole bunch of rights by sequestering every jury is not going to make the failure to obey the rules of law any less illegal. We have contempt of court charges for these types of offenses for a reason.

Thus, I think it's perfectly acceptable (albeit frustrating) for a judge to void a trial because a juror or jurors made some unauthorized research online to "help" them reach a decision. Jurors are allowed to request transcripts or portions to be read of the transcript, in order to help clarify points of contention. To access online information as opposed to the legal facts is to nullify the whole point of the sanctity of trial. And the judge, in such a situation, would be perfectly within his rights to level contempt of court charges with applicable punishments.

As always, it is the integrity of the jurors. If they have none, or choose to let their integrity take a temporary backseat, then the trial will suffer. And that's been happening long before we had such a wide array of publicly available information, right at our fingertips. If you're under orders not to discuss the case, then blogging about it is still discussing it, and you shouldn't. Blog about what silly thing your kids did while you were sweating in court all day? Knock yourself out.

For what it's worth, though, I agree with you, Peter. A defendant's past criminal history that's as long as several appendages, even if it's not considered "relevant" to the accused crime, should still be made known to the jurors. It goes to the defendant's credibility as a "sympathetic" witness on his own behalf, in my opinion.

Anonymous said...

The one criminal trial I set as a juror for, we were told the criminal history of the defendant. Maybe they have different rules in Texas or we had a better judge.

IMO, the honor and integrity of the judge and lawyers is just as important as that of the jurors. Maybe they need to think about not holding so much information back from the jury.


Anonymous said...

If a juror is unable to separate what he or she "learns" via the internet from what they discover during trial, then the question is irrelevant, because that juror will not be able to grant a fair and impartial decision in any case.

Don't they say "the facts of the case"? How then, can they refuse to provide a juror with all the facts?