Fair Trial by Jury: Is it in danger in a world of Social Media?

In today's news the Sydney Morning Herald is reporting on the case of the British juror who could not reach a verdict in a child abduction sexual assault trial and who as the Herald says: "turned naturally to Facebook" and posted ''I don't know which way to go, so I'm holding a poll . . ."

So it would seem that the days of trial by media may well have arrived but that it was not the print media we feared that stole trial. Instead it was the social media we didn't see coming.

But wait there is more! Another instance reported by the Herald is of the juror sitting on a drugs trial who befriended the accused and traded messages with him on Facebook, while a Californian juror needed no such help tweeting: ''Guilty! He's guilty! I can tell!''

With instances like this becoming a flood of annecdotal evidence that trial by jury is under threat it is not surprising that in Australia, as the Alternative Law Journal noted in a recent post: "New national laws are being considered to address the risk that social media will jeopardise criminal trials..." and then quotes the example where social media was flooded with messages following the disappearance of Melbourne woman Jill Meagher, which turned to vitriolic abuse when a 41-year-old man was charged with her murder, prompting the need via Ms Meaghers husband to remind the public that "negative comments on social media may hurt legal proceedings, so please be mindful of that".

In fact some have argued that the age of social media has over reached the jury system and that perhaps the only way to guarantee that jurors are not exposed to prejudicial material about their trials would be to abolish juries altogether. A view that was apparently put forward in a report prepared for the Victorian Department of Justice . The report by the Centre for Law, Governance and Public Policy (at Bond University) instead recommends "sending jurors on training courses before trials and constantly warning them against external influences, with written directions, daily reminders and signs in the jury rooms". In effect it takes the view that ordinary jurors need to be made aware of the same procedure and laws under which lawyers, officers of the court and the traditional media have always worked.

The increased use of trials in which only judges deliver verdicts is not favoured but the lead author of the report is quoted as saying a risk will always be present that jurors will "have regard to information gleaned from outside the court ... No system that can be developed to account for this will be fail-safe...'' Research done as part of the report indicates that "jurors have neither the willingness nor ability to disregard material that they regard as relevant, even if they are told to do so".

Currently the Herald reports, the standing committee on law and justice (made up of state and territory attorneys general) is investigating how to mitigate the impact of social media on the right to a fair trial. It is more than certain much more will be written about this as the legal position develops.

Sources:

• Trial via social media a problem for courts

• Social Media and the law

• Juries and Social Media: A report prepared for the Victorian Department of Justice

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