Our justice system has made jurors a major part of trials, but their relevance and usefulness is being drawn into question. It is more difficult than ever to get a fair trial, with social media causing major hurdles to jurors being left alone without extra information that could taint their judgement. That could include social media posts by other people about the case or the people involved, posts by jurors about the case that spread like wildfire (and are illegal), and other influences.

The ability for a juror to have an unbiased view is, some believe, is now impossible.

Being judged by your peers is very old-fashioned, but has remained part of our justice system. All it takes is one of the 12 jurors to say no, and the case can’t proceed. This means if there is doubt in anyone’s mind, it must be considered. This is both a safeguard and unfair – jurors have been known to be influenced not only by outside persons, but by fatigue and boredom. It has been a good system, but it does have its failings. Human beings are still flawed and we make mistakes.

Example 1: A man from London was selected for jury duty in a paedophilia case. He expressed his surprise on Facebook – despite being explicitly told not to – saying, “Woooow I wasn’t expecting to be in a jury Deciding (sic) a paedophile’s fate, I’ve always wanted to F*** up a paedophile & now I’m within the law!”. The judge aborted the case, and the man was charged with contempt of court, and sentenced to two months in prison. The man accused of sex crimes against a child was eventually retried and convicted of sexual activity with a child.

 

Example 2: Lawrence Alfred Gaskell’s murder trial for killing his wife was aborted after a juror did a Facebook search in an attempt to learn more about the accused murderer. The juror then told a fellow juror, who then told the court. A retrial was ordered, and Gaskell was eventually found guilty.

 

Example 3: In Western Australia, a juror shared information about a previous trial to other jurors via mobile phone during the trial of Ronald Leslie Pennington. The judge was apparently left ‘speechless with rage’ after the juror’s girlfriend looked up the accused, then text him the results of two previous trials for the same crime. Pennington was eventually found guilty of manslaughter after a fourth trial.

 

Example 4: A Victorian juror on the panel of a criminal trial didn’t show up to court and wrote comments on Facebook – “everyone’s guilty” – about the trial. The judge discharged the jury, and a new one had to be sought.

So how to stop jurors from getting onto Google, or social media? It’s impossible not to, and has been described by some as ‘the elephant in the room’.

Former Western Australian Governor Malcolm McCusker QC thinks the jury system should be abolished in Australia, and he isn’t alone. Having 12 random people with no experience in judgement deciding the fate of their fellow human can be problematic. While most jurors take their roles very seriously, getting called up for jury duty is not always a walk in the park. It takes time – you must leave your job, sometimes for months for long trials. It’s exhausting and can be really boring.

From time to time, we do need judge-only trials due to intensive media coverage of a case, however that isn’t the norm, but it could be the solution to the increasingly problematic access we all have to the personal lives of others – and their friends and families. Victoria, Tasmania and Northern Territory courts do not allow judge-only trials.

There has been some suggestion that one solution might be to allow the choice of a judge-only trial, or a judge and jury trial. This has been implemented in some form in Western Australia. Another suggestion has been to introduce juror background checks to the selection process. Jurors do get the question already if there is any reason why they shouldn’t sit on this case, for example in a paedophilia case where the juror called up had been molested, and would not be able to be objective to the case. The idea we had in the past was that these 12 people were random strangers, and this added to their usefulness, but now, we can find out very easily what people believe, and how that might influence a case.

The point remains – it is hard, without significant training – to remove our emotions from our decisions, which is precisely what judges and lawyers are trained to do. The jury is out on whether the jury remains. No matter what, we all retain the right to a fair trial.

Write your own story. Call Vanessa Ash and Associates today.