People tend to enjoy the benefits of technology. Advances in computing and the internet have transformed our access to information and our ability to communicate and collaborate. But it seems people also tend to have concerns about how technology transforms the ways we think, behave and interact. What’s more, these concerns feed predictions that some of our long-standing societal institutions are in grave danger. But could these predictions sometimes serve to mask the underlying flaws in those institutions?
Take, for example, a recent lecture delivered by the Lord Chief Justice of England and Wales, Lord Judge (yes, really). Lord Judge warned that "if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop." His warning was triggered by cases in which it has been discovered that jurors used the internet to gather information about a case.
Lord Judge also raised concerns that jurors’ ability to listen attentively during a trial may be compromised because children now learn by "absorbing information from machines", and that the unregulated nature of social media such as Twitter might prejudice jurors — either through inaccurate information being tweeted from within the courtroom, or from advocates sending messages from without. But are these sorts of existential threat to the jury system really so unprecedented?
Yes, jurors might use the internet to do their own research about a case, leading them to make a decision on information that hasn’t been admitted as valid evidence. Yet this happens without the internet — take the case of Bilal and Mohammed Skaf, in which the NSW Supreme Court ordered a retrial because jurors visited a crime scene.
Yes, jurors’ attention might wander and they may be distracted when testimony is being heard. But this happens without the internet — take the 2008 trial that had to be abandoned when it was confirmed that jurors had been completing Sudoku puzzles in the jury box. And yes, jurors might use Facebook to tell their friends what they think of the case so far or ask their friends what decision they would make — but are we supposed to believe that a conversation topic on Facebook might not also become a conversation topic around a dinner table?
This isn’t to say that we should dismiss the challenges the internet poses for the integrity and fairness of jury trials — there are serious issues that need to be addressed. But the dangers of the internet tend to be framed, in Lord Judge’s speech and elsewhere, as being qualitatively different from what we have seen before, when the difference is often a matter of degree. Just as the internet makes it easier for everyone to find and share news, knowledge and funny cat videos, it can make it easier for jurors to find information and engage in communication that violates the principles of our jury system. Without doubt, this makes the risk of contamination of the trial process a growing problem.
The empirical evidence backs this up — a recent jury research project conducted by Professor Cheryl Thomas in the United Kingdom found that 5 per cent of jurors in ordinary trials sought out information on the Internet, with this figure rising to 12 per cent of jurors for high profile trials. And, as Lord Judge noted, the consequences of a contaminated trial can be enormous — if a retrial is required then not only is there a great cost in time and money, but witnesses and victims of crimes must go through the ordeal of testifying all over again.
But when we focus on the transformative nature of technology as the source of these problems, we risk obscuring the human factors that are at the heart of the issue. Although the internet enables people to act in ways that compromise the trial process, we mustn’t lose sight of the fact that people are choosing to act in those ways. The internet doesn’t make jurors seek out information about a case — they are deciding to seek it out, and are using the Internet as a handy tool for doing so.
Recognising the source of the problem is important in its implications for how to address it. The most common reform proposed to deal with jurors’ use of the internet has been to change the judicial instructions about researching and discussing the case. This makes sense, but how should those instructions be changed?
To answer this question, we need to understand why jurors are doing what they are doing. Is it because they don’t understand they are violating the rules of the system? If so, the instructions would need to spell this out more clearly. Or is it because, even though they realise it is against the rules, they believe the information could help and can’t hurt in their effort to make the "right" decision? If so, they might need more detailed explanation and clear illustrations of how drawing on information that isn’t admitted as evidence might lead to serious miscarriages of justice. It’s difficult to target a policy reform at eliminating human error without solid evidence about why the error occurs.
The jury system, being based on principles that have stood for centuries, has rested on some assumptions that seem unreasonable in light of modern evidence about how people think and act. The courts have traditionally assumed that jurors can listen to lengthy oral testimony and instructions, suspend their judgment about the meaning of the testimony until it has all been heard, entirely disregard testimony they have heard if instructed to do so; and recall everything they have heard once the time comes to deliberate and reach a decision.
In recent years the courts have been increasingly open to evidence demonstrating the flaws in such assumptions and some jurisdictions in Australia and abroad have been progressive in considering reforms. Policy changes that have been evaluated, and in some cases implemented, include allowing jurors to take notes, providing opportunities for the jury to submit questions, ensuring the judge’s instructions to jurors are more comprehensible through simpler language and visual aids such as flowcharts, and allowing jury discussion during the trial.
These reforms have tended to be slow and incremental, but reflect a developing awareness that in public policy about the trial process should be consistent our knowledge about how jurors think and make decisions. This awareness shouldn’t be lost when we deal with the impact of new technologies. Human behaviour on the Internet is still human behaviour. If we can’t assume that jurors are passive vessels who simply absorb all of the information while they sit silently in the courtroom, we also can’t assume that they become so when they are outside the jury box – including when they sit down at their computer.
But appreciating the flaws in those assumptions opens the way to reforms. Reforms can seek to modify and control juror behaviour to the extent that this can be achieved. In the end, however, it also seems important to accommodate what we know about the juror behaviours that can’t be controlled, and to appreciate that an institution changed is not an institution destroyed.
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