Earlier this week the Independent reported that a High Court judge warned about the risks of jurors googling background on a trial they were involved in or even an accused. It’s an issue that goes right to the core of the Irish justice system. We have a system here where an accused person is given the absolute presumption of innocence. As a journalist covering the courts it’s something that I have to take into account every working day.
It’s this presumption that means those accused of a crime are on bail before they are sentenced (unless they are considered too much of a flight risk or are serving time for another crime). If they are on remand it’s that reason that photographers must crop their shots so that prison guards and handcuffs are not shown. When we write colour on a trial we have to avoid using inflammatory adjectives to describe the accused, they can’t watch something slyly or have a hooded brow for example. It doesn’t matter if the only reason we’re there to cover a trial is because of whatever crime the accused has previously committed, as far as reporting it concerned he or she is as innocent as the driven snow until the twelve in the jury box decide otherwise.
This is where the Internet posses a problem. Once something is written in cyber space it’s frozen in time. It’s possible to take down content that would be prejudicial in a fresh trial but it’s almost impossible to police the on line chatter that accompanies almost any high profile trial. A bit of judicious googling can unearth all sorts of dirt on almost anyone these days. If you’ve broken the law in a sufficiently interesting manner to make the papers then the record of your crime will hang around for all to see. It’s where journalists find a lot of background but we’re not the only ones with the pass to the net. Anyone can do it and there isn’t really any way of stopping someone of doing it if they’re serving on a jury.
Now judges might not have to warn juries about the perils of the Internet but I can think of at least two trials off hand where the jury was told each night not to Google at the same time they were told not to read the newspaper or broadcast coverage of the trial. That’s really all a judge can practically do but it begs to be seen whether that will remain to be enough. The jury trial is a funny thing. I can’t think of a fairer alternative than having your fate decided by twelve of your peers but it’s never just that simple. Juries come back with bizarre decisions sometimes, or they’ve obviously not misunderstood some aspect of the trial or the charge but in the end what alternative is there?
We put an awful lot of responsibilities on juries. For so many people it’s just time away from work and an intrusion into the smooth routine of life but it’s vital. Civilian juries are used precisely because they don’t have all the baggage and assumptions that a jury of legal bods would have. If you watch too many trials the cynicism starts to eat away at you and that presumption of innocence is a far harder thing to accept. Of course judges every day rule objectively on all kinds of things but criminal justice in particular isn’t a matter of academic point scoring. We have juries partly to bring their humanity to proceedings. But that means we also have to trust them to play by the rules and observe the rules of their job.
This is one of those issues that exists in the hinterland between the man of the street juror and the legal tomes of the barrister. It’s human nature to peek where you’re not supposed to and I’m would be more surprised if jurors didn’t have a quick look on line. The tendency to gossip is assumed by the law. It’s the reason why the judge who swears in the juries on a Monday asks the jury panel if they have any connection with any of the places connected to a case. We assume they fess up if they do just as we assume they will be honour bound not to go online as soon as they get back from a day in court.
And that’s the thing. When you talk to people who’ve served on juries the one thing they all say is that they felt the need to do the right thing. They took their responsibility seriously. Now maybe I just have a particularly dutiful bunch of friends but it would seem to be fairly safe to assume that every jury will have at least someone who’s taking it seriously. You only have to watch the jury during a judge’s charge, when they realise that the ball is very nearly in their court and they will have to make a decision that will affect another human being’s life, to see that the majority do take it very seriously indeed. Juries are frequently discharged because someone admits talking to someone they shouldn’t or reading something they shouldn’t or even playing hurling with one of the gardai involved in the case. These things happen a lot. Surely that proves that jurors have enough sense to know what they should do and to put their hands up when it’s not done?
There will always be dodgy stuff on the net and it’s not necessarily the stuff blurted out on message boards. When a guilty verdict has been passed the media are fully within their rights to carry all the details they’ve been sitting on during the trial. All the sly looks and handcuffs and previous convictions. And once this stuff is out there, it’s out there. With regards to juries there seem to be only two choices. Either trust that they will do what they are supposed to and avoid googling the names of the accused or perhaps the victim, or sequester them for the course of the trial to make sure they restrain themselves.
The law has changed several times regarding sequestering. Juries are no longer required to stay together from the moment they have been sworn and for more than a year they are not even required to stay together once they have started their deliberations. The law changed recently to allow jurors to go home to their families each night. The court is trusting them not to discuss with husbands and wives and mothers and fathers and children and siblings and friends the often disturbing things they have heard during the day. We expect them not to unburden themselves to those they love because it’s the right thing to do. Surely that’s a harder prohibition than simply avoiding checking something? Surely if they can be trusted not to do one thing they can be trusted not to do the other?
The law is going to have to look at all the technological changes that have come into our lives in recent years. This is only one area that will require a cool, clinical eye turned over it to make a decision that’s not a knee jerk reaction from people who don’t really understand the modern ever connected world we live in but that’s an informed response to issues and problems that simply haven’t existed before now. It’ll be interesting to watch.