Jurors Access to Information and the Internet
Does limiting Jurors access to information and the internet provide for a fair and open trial?
Since writing about the realities of trial by Jury I have been thinking more about the utility of a Jury in context of today's society. I was recently watching a documentary where a criminal trial had resulted in a mistrial because one of the Jurors complained to the Judge that other Jurors had been researching a key issue in the trial online.
When Jurors are provided with instruction they are given clear instructions that they must only consider the evidence that they directly hear. They are directed to not be influenced by things external to the court room such as media coverage about the case. They are however routinely and regularly encouraged to apply their "common sense" when they listen to the evidence and interpret the evidence.
These types of instructions ignore the reality that the internet is the reference point for the development of individual common sense. On a daily basis individuals habitually google everything they hear about to gain more information. And yet when they become Jurors they are effectively asked to shut the internet, their primary source of all information about life, OFF or they could cause a mistrial.
Three questions pop to mind: Why are Jurors asked not to access the internet? Does the Court have the right to ask Jurors not to access the internet because they are sitting on a Jury? And is it really in the interests of Justice that Jurors be prohibited from accessing the internet while they are sitting on a Jury?
1. Why are Jurors asked not to access the internet?
Presumably the reason is to ensure due process by ensuring transparency and the appearance of fairness. If no Jurors can access the internet there is a control over the information received by the Jurors i.e. each of the Jurors is individually hearing the same evidence. In my view this idea provides a false sense of fairness because while the Court can try to control access to outside information by Jurors the court has no control over the actual Jury deliberations. Jury deliberations essentially involve the jurors talking among themselves on a completely uncensored basis so the fact of the matter is that there is very little control about what is discussed in the Jury room during deliberations. It is interesting to note that it is a criminal offence for Jurors to reveal any information about Jury deliberations post trial. One wonders if it would be scary to find out why Juries make a particular decision. Decisions could be grounded in facts or ideas that are completely inaccurate or wrong, for all anyone knows. Further the constellation of 6 random people in a room trying to reach a decision could be influenced by the power dynamics in the room. The structure of a Jury could arguably be said to promote a mob mentality.
2. The next issue is whether persons sitting on Jury should be asked not to access the internet while they are on the Jury. Is this limitation too intrusive taking into consideration we are all used to being connected all the time? There is talk about access to the internet being treated as a right similar to access to public utilities. Further, there is no way to reduce the impact that the internet has already had on Jurors in terms of affecting their personal development of common sense prior to being Jurors on the court case.
3. How can it be in the interests of Jurors to limit their reference to the internet when trying to develop a framework to interpret the competing opinions of expert witnesses. Certainly the experts do not face any limits in terms of the information they rely upon to form their professional opinion so how does it make sense to impose those limits on Jurors. The more troubling issue is posed by the complexity of evidence at trial which in my opinion limits the usefulness of Jurors in today's society.
In the context of a personal injury case Jurors are routinely asked to make decisions in cases where the evidence is medically complex. It is difficult to understand how this is fair to claimants. Not only does it significantly increase legal costs to all parties it also makes outcome very uncertain. Obviously, this is more of a concern to a Plaintiff who only has one chance to be compensated as opposed to insurers who have to respond to large volumes of claims. In my opinion the inclusion of the Jury serves to accentuate the difference in bargaining power between insurance companies and claimants.
Lisa Morell Kelly - Lisa@morellkelly.com