RR Phantom
Location : Wasted Space
Job/hobbies : Cayman Islands Actuary
 |  Subject: Making trial research a crime will not stop OZschwitz jurors from playing detective  Thu Jan 10, 2013 9:40 pm | |
| Yet another Victorian juror caused a mistrial last month because he looked up the definition of ''beyond reasonable doubt'' on the internet. Looking up definitions on the internet is common sense and to some people instinctive and yet, if a juror does this they can be charged with a criminal offence and fined in excess of $16,000 for playing detective.
An increasing number of trials are aborted because of jurors playing detective. In the US, 21 trials were overturned in 2010 because of such (mis)behaviour. In a New Zealand survey, jurors admitted to doing their own research in more than 10 per cent of the trials.
The researchers observed that the jurors ''did not seem to appreciate the importance, or did not understand the logic, of restricting themselves to the information presented by the parties and the judge''.
The innocent behaviour of a West Australian juror who asked the jury keeper to copy internet maps for his colleagues, highlights how logical such behaviour is to jurors. This juror did not regard obtaining maps from the internet as forbidden research. The maps were relevant because there was conflicting evidence about where the victim had been assaulted. The maps showed the alternative crime scene, which the map provided by the prosecution did not.
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In a knee-jerk response to the rise of the detective juror, the Victorian government made it a criminal offence for jurors to do research. No study of the issue was conducted before this law was made.
There are three reasons why this law is wrong. First, the law has not stopped detective jurors. In the largest Victorian terrorism trial the jurors were warned five times not to do their own research. Wikipedia-type internet printouts were found in the jury room.
Later in that trial, the jurors were explicitly told that doing their own research was a crime. Despite this, a dictionary was found in the jury room. Even though the jury had blatantly defied the law, none of those jurors have been charged. And nor should they be. The average juror of the 21st century is well educated and capable of using a dictionary appropriately.
Secondly, this law is likely to undermine the most powerful weapon we have to rein in jury sleuthing. Errors made by one juror are frequently corrected by other jurors. If a detective juror attempts to share illicit information with fellow jurors, another juror is likely to stop it and may even report it to the judge.
However, fellow jurors are discouraged from reporting detective jurors if they think that the juror will be charged with a crime. In a New South Wales trial, two independent witnesses reported that a juror had contacted a journalist and some jurors were planning to privately visit the crime scene. When questioned by the judge under oath, not one of the 12 jurors ''dobbed'' on their own.
Thirdly, by punishing detective jurors the law acts against the spirit of encouraging citizens to do their civic duty to the best of their ability.
As one juror who conducted a private view explained: ''I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right.''
Rather than punishing jurors, we should be considering why it is that jurors are doing their own research and respond to their needs. While jurors generally follow judicial instructions, the fact that they are defying ''don't search'' instructions suggests that the trial process is letting them down.
In a study of ''don't research'' instructions, the researchers analysed judicial instructions in 10 NSW trials. They concluded that ''no trial judge provided a completely comprehensive explanation of the personal and procedural consequences should a juror disregard their direction against investigation''.
Given that jurors can be imprisoned for doing their own research, they deserve a thorough explanation of why they should resist their instinct to use the internet.
Questions in the minds of the jurors should be channelled away from Google and back into the courtroom. It is far less intimidating for jurors to go home and ask a question on Google than it is to submit it to the court.
Some jurors wrongly perceive that they have no right to ask questions in the trial. Few judges actively encourage juror questions. Juror questions, via the judge, should be better facilitated.
Digital technology has turbocharged the detective juror, so the jury system needs to change to accommodate contemporary conditions. Providing thorough explanations and allowing jurors to ask questions are two small ways in which we can begin to rethink the jury system so that it continues to thrive.
Jurors should never be threatened with criminal sanction, solely because the legal system has failed to move with the times.
Read more: http://www.smh.com.au/opinion/society-and-culture/jury-sleuths-should-not-face-court-20130110-2cix7.html#ixzz2HdAlbeIQ
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