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Column: Technology in the courtroom? Take care where you click

Solicitor and NUIG lecturer Paul Lambert has been researching the role the internet and broadcast media might have in Irish courts in the future – and why caution is needed.

Paul Lambert

WANT TO TAKE a picture in court? Think again. You could end up in prison. A UK teenager found this out to his cost recently. He took a photograph in court on a mobile phone. However, he was convicted in Luton Crown Court and sentenced to two month in prison. The UK Contempt of Court Act 1981 prohibits sound recordings and pictures in court.  Contempt issues could also arise here, also resulting in imprisonment. This is just one of a number of recent developments in the UK which are being watched with interest here.

As the use of technology and communications becomes an everyday matter it demands a thorough review of processes and regulations. This applies to courts as it does to businesses, schools and individuals. Technology and new communications are bringing may changes to court cases and to the regulation of the courts’ systems. This includes Twitter in court, juries and social networking and the possibility of television cameras in certain courts. These topical issues are referred to in my new book, Courting Publicity: Twitter and Television Cameras in Court.

It is understood that the issue of social networking may receive some consideration in an official court review here in Ireland. However, the details of the proposed review or consultation are still awaited. There does not appear to be a definite timeframe as yet either.

The above photograph case comes hot on the heels of an official pronouncement in relation to the possible television courtroom broadcasting of UK sentencing decisions. The full details of the proposals are also awaited. Previously, the UK Constitutional Reform Act 2005 permitted cameras into the new UK Supreme Court.

Text and Twitter communications are currently under consideration in the UK. A judicial Consultation on the Use of Live, Text-Based Communications from Court for the Purposes of Fair and Accurate Reporting was announced in the UK earlier this year to investigate the issues.   In the interim, new rules in the UK Supreme Court provide that it is possible to use text communication in the Supreme Court.

The advent of social networking sites pose new issues for impartiality and fairness in jurors

It is well recognised that jurors play a very important role in the justice system. In carrying out their role they must abide by rules and ethical guidelines. Rules seek to ensure that jurors are impartial and undertake their deliberations only on the evidence presented before them in court.

The legal and constitutional rights of defendants to a fair and impartial trial are at stake. However, the advent of social networking websites  pose new issues. There are increasing examples of jurors breaching rules. Jurors using social networking can, for example, breach their obligations of impartiality and fairness. Sometimes re-trials have to be ordered. One consequence is significant additional costs for a new hearing.

There are a number of jury problems which can arise. Examples include undertaking internet research and Tweeting from court while on the jury. This can be juror misconduct. Jurors cannot disclose details about the case nor pass improper information to other jurors. The errant juror, in undertaking their own research, may find out information that they are not permitted to know, such as past criminal convictions.

Due to the increasing amount of Internet-related misconduct involving jurors, there have been calls to have additional rules, Internet-specific rules, explaining to jurors what the mischiefs are and the reasons for the rules, increased education, staggered warnings, and even penalties for errant jurors. It has been argued that ‘the traditional rules meant to prevent juror misconduct are no longer sufficient in the [i]nternet age.’ The ‘advent of the [i]nternet and its ability to provide an incredible amount of information quickly and easily, has ended the days of simply instructing a jury to avoid reading news stories.’

There is already examples of juror misconduct in the UK. A jury member posted confidential details of the case on their Facebook account page. The case related to a child abduction and sex assault case. The juror in question requested people to post on her page as to how she should vote in the jury poll in the case. The trial ultimately continued without her, and while potentially she had committed a contempt of court, this avenue was not pursued.

A UK study found that juries often fail to understand jury instruction, it was also found that jurors often carry out internet research of the case, amounting to contempt of court. There is also a recent UK decision where a juror was convicted of contempt and sentenced to 8 months’ in prison. The errant juror had sent a number of Facebook messages to one of the defendants in the case she was a jury member on.

There are also increasing examples of juror misconduct being discovered in the US. In one US case nine jury members were separately using the Internet to research aspects of the case, including issues excluded by court direction. A mistrial was granted. One juror who hoped to move deliberations along looked up definitions of manslaughter, murder and self-defence. If this was not bad enough, the search results were for the laws of another state.

A case in 2009 revealed that jurors became Facebook friends and discussed the case online

A 2007 case reversed a burglary conviction on appeal, after the jury foreman discussed the case in his blog online, including details about the defendant, other jurors and the jury discussions. In 2009, a juror researched details of a psychological illness referred to by one of the expert witnesses, and discussed the results of the research with other jurors. Another case in 2009, revealed that jurors became Facebook friends and discussed the case online. One was advised by a third party online on how they should vote. A murder conviction was overturned in 2009 by the Maryland Court of Special Appeals after jurors were consulting definitions on Wikipedia in relation to blood science and time of death forensics. A manslaughter conviction was also overturned in 2009 after online juror misconduct.

One court tried to remedy the situation by removing a juror who carried out research on the parties and the possible sentences. The juror gave this information to the other jurors. The appeal court disagreed, saying that the whole jury was therefore tainted.

Senator Fumo in 2009 also appealed a conviction on the grounds that one of the jurors was posting statements about the case on Facebook. In a separate case, a juror posted on Twitter, advising readers not to buy the shares of the defendant as there was an adverse decision pending.

Jurors have been known to research crime scene issues. Jurors (and witnesses) in live (or pending cases) can now use Google Maps and Google Streetview to look at case locations. One potential juror in the US posted pictures of other potential jurors to his Twitter page. Frank Wilson in another instance also blogged about a case he was a juror in, including criticisms of the judge and defendant. In another instance a juror contacted a witness by friend request on Facebook.

A trial juror in the criminal case of Fumo was posting contact updates of the case on Facebook and Twitter. A mistrial was granted in a case where jurors were variously researching the case, legal definitions, lawyer and party histories and excluded evidence online in one case. A retrial was granted where a juror found out through Internet research that the defendant had a previous conviction for sex crimes, and announced this to other jurors.

The extent of any similar problems in the Irish legal system have yet to be fully gauged. However, this is certainly an issue which will require greater attention, if not specific rules, in Ireland in future.

Paul Lambert, lecturer (NUIG), solicitor (Merrion Legal) and author of Courting Publicity: Twitter and Television Cameras in Court which has just been published by Bloomsbury.

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Paul Lambert

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