Guilt By Google
By Bernard LaganMay 10, 2012
When jurors can surreptitiously snoop online, what chance do courts have to control the rules of a fair trial?
The movie 12 Angry Men is the classic template for that noblest endeavour — a courageous juror's discovery of evidence that clears an innocent accused. As Juror 8 in that movie, Henry Fonda produces a knife identical to the murder weapon the prosecution said was unique; he'd bought it at a pawnshop near the murder scene. When Fonda triumphantly buries his blade into the jury room table, he triggers the doubts that lead jurors to a "not guilty" verdict.
Were that scene in the 1957 movie to be played out in a jury room today, Fonda's character, Davis, would likely find himself downstairs in the court's cell; Davis would have seriously offended the law governing juror behaviour — by conducting an unauthorised visit to the accused's neighborhood, giving unsworn evidence to the jury about the knife, and intimidating his fellow jurors by spearing it into the table, not to mention vandalising the court's chattels. (We might also expect the defence to move for the dismissal of the jury — on the grounds that its all-male makeup was unrepresentative.)
Indeed the US Supreme Court justice Sonia Sotomayor, who credits 12 Angry Men with steering her into law school, adds that she's warned jurors the movie shows them exactly how not to do their job. Jurors these days must swear an oath that requires them to faithfully and impartially decide a verdict according to the evidence. This means they must only rely on the evidence presented to the court. They are prohibited from seeking additional evidence themselves.
The movie was made, of course, well before the internet, that repository of our pasts and our personal details — be they unremarkable, unflattering or plain unsavoury. A curious juror, or a headstrong one, in want of illumination about an accused no longer needs to make a furtive visit to a crime scene (although that's still common enough); he or she can merely trot home and switch on a computer.
That's what 20-year-old Hadley Jons did back in August, 2010 amid her jury duty at the trial of a 40-year-old Detroit woman accused of resisting arrest. Jons went home one afternoon from jury duty, opened her Facebook page and typed: "Actually excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY." She was removed from the jury.
Nine months ago, a 40-year-old Manchester woman, Joanne Fraill, became the first British juror prosecuted for contempt of court involving the internet, after she admitted using Facebook for an online chat with the defendant in a drug trial, exchanging 50 messages in 36 minutes, including details on the latest position of the jury. The mother of three, with three other stepchildren, put her head in her hands and sobbed when she was sentenced to eight months in jail.
In Fresno, California, a Superior Court judge found himself sitting as a juror on a murder case. He was the foreman. Throughout the trial he sent emails to his 22 colleagues on the bench, including the judge presiding over the case, giving them periodic updates on the progress of the case. His first email announced: "Here I am, livin' the dream, jury duty with Mugridge [the defence lawyer] and Jenkins [the prosecutor]." After conviction, counsel for the defendant discovered the emails and moved for a new trial.
A Lancashire juror was removed in 2008 after she told her Facebook friends she needed help making up her mind about the guilt or innocence of two men involved in a sexual assault and abduction case. "I don't know which way to go so I am holding a poll," she posted.
By no means has Australia been immune from the internet's incursion into the courts. Nine months ago a Victorian juror was fined $1,200 and became the first person convicted under the state's toughened jury laws, following the discovery that he used the internet to research legal terminology and gain extra information after his jury — considering a murder case — deadlocked.
In May 2008 the Victorian Government introduced new penalties for jurors caught doing online sleuthing. Fines of up to $13,000 were announced. The then Victorian Attorney General Rob Hulls said the increased penalties were being introduced as result of a NSW case in which a woman convicted of murder had appealed after a juror was found to have conducted online sleuthing during her trial.
That was the infamous case concerning Kathleen Folbigg, the northern NSW mother who was sent to jail almost a decade ago for the murders of her four children. A juror at her trial discovered on the internet that when Folbigg was herself a young child, her mother had been murdered by her father. This fact was kept from the courtroom but ended up being disclosed to other jurors by the one who made the discovery. The rogue juror's activity prompted an appeal by Folbigg; it was rejected by the NSW Court of Criminal Appeal, which said that although the disclosure should not have been made, it did not affect the verdict. Folbigg's appeal had argued that some jurors, once aware that Folbigg's father had murdered her mother, might have seen a greater tendency to murder also within Folbigg.
Many more instances of jurors' online quests for information (about defendants or witnesses) presumably go undiscovered. British Ministry of Justice research in 2010 uncovered a huge propensity for furtive online backgrounding: more than a quarter of all jurors serving on high-profile trials admitted trawling online for extra information about cases they were deciding.
In Australia, the University of New South Wales law faculty in 2010 conducted a study into the attitudes of jurors in 10 jury trials. In four of the ten juries examined, there were jurors who had rejected the judge's instruction not to do their own investigations.
Judith Fordham, who oversees the University of Western Australia's Jury Research Group, has probably had more access to jurors than any other Australian researcher, having questioned nearly 1,000 for a revealing 2009 study on the inner workings of Australian juries.
A scientist, author and barrister who has recently opened a law and investigatory firm with a former top Western Australian police officer — "Partners in Crime" is her firm's motto — Fordham also has been privy to juror confessions of unauthorised investigations.
One juror admitted to Fordham that she'd telephoned a police station and claimed to be a crime writer, in an effort to discover more about how police prepared their statements of facts for a court. The juror had become concerned that statements tendered by police officers in a case she was deciding were remarkably similar and even had the same grammatical errors.
"Internet access is just one of the places that jurors can obtain information," says Fordham. "Speaking generally, I think it happens often — much more frequently than most lawyers get to hear about — that jurors instigate their own inquiries, one way or the other."
The Victorian Government's action last year to increase penalties for jurors who undertake online investigations is one response to Googling jurors. But will it have much effect on their online sleuthing? Fordham says many jurors are simply frustrated by gaps in the information put before them.
She believes if courts were more open with jurors about why information was being withheld, or why sharper conclusions should not be drawn from evidence, then jurors would be less tempted to seek information independently — after-hours, online.
"I do think it's a furphy to say [as a judge might], 'Members of the Jury, you must not speculate; the evidence is not there, you must not speculate,'" says Fordham.
"It's human nature. Jurors will wonder why there are gaps, how could they have been filled, why don't we have this information, what's going on, why aren't we being told?"
Most vexing for courts, prosecutors and defence lawyers, is how often a defendant's criminal past is readily available online. An accused's criminal history is generally not disclosed to a jury because of the fear that jurors, knowing an accused's propensity to break the law, would be more likely to convict. It is not an unfounded fear; studies have shown that jurors are less likely to be troubled by a wrongful conviction if the accused had a past criminal record.
"I think you have to assume, at the very least, that an individual juror might do some digging. I mean it's human nature, particularly in the sorts of trials where a person looks like they might have a criminal record or they present themselves as if they do. It is very tempting," says Fordham.
That begs the question of what the future holds for defendants with past criminal records. Is it still possible for the rules of evidence to allow a defendant to stand before a jury unencumbered by his past?
In future, defendants with a criminal past might be more inclined to take the stand, according to an intriguing paper by the US legal academic Caren Myers Morrison. She argues that more defence lawyers will want to present the defendant's side of the story of their past, given that jurors are likely to make themselve aware anyway. Likewise, she says, more defendants — especially those with a long rap sheet — may chose not to contest charges at all before a jury they suspect will know about their criminal past.
Given the increasing likelihood that jurors will discover a defendant's criminal past online — despite the judge's instructions to rely only on what's presented at trial — some Australian jurisdictions are revising laws of evidence governing what a jury may be told about a defendant's past.
Western Australia already has moved to allow jurors to learn of a defendant's prior record in some circumstances where a person has multiple convictions for similar offences. South Australia, under the former Premier, Mike Rann, also controversially moved to allow the disclosure of the criminal past of some defendants to juries.
Ironically, juries once would have been congratulated for conducting their own research into a defendant's past and the circumstances of the allegations.
As the Sydney criminal barrister Peter Lowe wrote in a lengthy paper on the future of the jury in an online world, 12th century jurors were expected to gather the facts of the case before them.
The system of self-informing juries persisted for centuries. Lowe's paper, relying on the work of the British legal scholar James Oldham, recounts how one such jury worked:
In 1380, the coroner and sheriffs of London summoned a jury from Langbourne ward and its three adjacent wards and, after having them view the body of the victim, inquired of the jurors "how in what way he came to his death". The jurors said they were "at the moment completely ignorant" of who the malefactors were or how the slaying had been committed. The case was put over to the following week to give the jurors time to inquire more fully, but by the following Monday, the jurors had discovered nothing more, so they were ordered to come again approximately a month later. When they returned, as ordered, they recounted the details of a quarrel and identified the accused murderers.
At that time, juries were comprised of people with status, of property, of a certain age — and of men only. Much is on display in John Morgan's famous 1861 painting, Gentlemen of The Jury, showing the restrictive nature of juries past — all were prominent, wealthy and respected local professionals (the painting's plaque names them) and Morgan captures both their amusement and boredom in their task.
Only slowly and over time did the juries evolve into today's independent model, made up of a group of people more representative of society and one that is not charged with gathering any facts or exposed to prejudicial material.
Now, we are again at a crossroads on preserving a jury's impartiality amid the instantaneous world of discovery that is Google, Wikipedia, YouTube, Facebook, Twitter and Tumblr. The first generation to grow up with the internet is already is in the jury rooms.
This generation's propensity for online sleuthing has Peter Lowe concerned it could derail the very basis upon which justice is administered.
"[Members of a jury] understand the principle of fairness," Lowe says. "The presumption of innocence, I think they also understand. So I think that when a judge tells them there is good reason not to look at the internet, not Google or look up Facebook, I think they also understand that. But as the case unfolds, they want to know more information. Then it's counter-intuitive to ask them not to do that. Some people believe it's better to know as much as they can.
"I think it poses incredible challenges, and the challenges get worse each year because there is so much more information on the internet," Lowe says.
Lowe now believes the time has come for serious consideration of taping jury room conversations — even though this would amount to an invasion of the long-defended sanctity of the place.
Taping these conversations, he says, would allow access to a jury's deliberations and reasoning process. He says the tapes would be made available for review only when it appeared a jury had become aware of information they should not have had and used the information in its deliberations.
Lowe concedes he's found little support for the idea. Aside from breaching the sanctity of the jury room, some lawyers fear that jury recordings would be exploited by defence lawyers as the basis for a flood of appeals.
He does have some backing, however, for an alternative way to monitor jury deliberations: a court-appointed facilitator inside the jury room to monitor deliberations.
Judith Fordham agrees: "My solution is to intervene a bit, to have much more satisfactory jury deliberations generally by bringing in a facilitator."
In eight years — September 2020 — we will reach the 350th anniversary of the case regarded as the forerunner of the modern jury: the Bushel case. An Old Bailey jury was fined for refusing the Judge's orders that they find two Quakers guilty of unlawful assembly. One of those jurors, Edward Bushel, was jailed for refusing to pay the fine.
Bushel's stand was to become the totem for the modern jury after Sir John Vaughan, Chief Justice of the Court of Common Pleas, reviewed his imprisonment and swiftly released Bushel on the basis that his jailing had compromised the independence of the jury system.
But — ironically, in light of today's judicial anguish about jurors conducting their own online investigations — when he ordered Bushel's release, Chief Justice Vaughan placed a great deal of weight on the ability of jurors to know more than judges.
Vaughan said: "They [the jurors] may have evidence from their own personal knowledge by which they may be assured, and sometimes are, that what is deposed in court is absolutely false; but to this the judge is a stranger and he know no more of the fact than he hath learned in Court, and perhaps by false depositions, and consequently knows nothing."
The independence of today's juries, it seems, is thanks to a chief justice who centuries ago warmed to the idea of a self-informing jury.