The internet and the right to a fair trial
25
THE INTERNET AND THE RIGHT TO A FAIR TRIAL
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE 6TH WORLD WIDE COMMON LAW JUDICIARY CONFERENCE
WASHINGTON DC, 1 JUNE 2005
Improved accessibility of legal information on line is the most dramatic technical improvement in my legal lifetime. It has transformed the scope and efficiency of legal research for all of us toilers in the vineyard. It has rendered achievable one of the fundamental requirements of the rule of law: that all citizens should be able to ascertain what the law requires of them, albeit in many contexts with the assistance of a lawyer.
Perhaps there are still some who resist the revolutionary implications of ready accessibility to information. It was always thus. There were those who resisted the previous such revolution, the invention of printing. Before the upstart entrepreneur and goldsmith turned printer, Johan Guttenberg, transformed publishing, it had been conducted for millennia by scribes who, in Europe, were controlled by the Church. A limited form of mass production was able to be achieved in large scriptoria contained in monasteries. Printing was a major threat to this business.
Filippo di Strata, a Dominican friar from the convent of San Cipriano on Murano, an island of Venice, proclaimed in the late 15th century:
“The world has got along perfectly well for 6,000 years without printing and has no need to change now.”[1]
Fra Filippo regarded persons involved in printing as crude and untutored. Indeed, they were frequently German interlopers taking work from Italian scribes. Fra Filippo called them “ignorant oafs”. Printing, he said, allowed “uneducated fools to give themselves the airs of learned doctors”. They “vulgarised intellectual life”. He said that printers, unlike scribes, did not really understand what they were doing and made numerous spelling mistakes and typographical errors. He was concerned that the editorial expertise and writing skills of the scribes would be lost, as would be the great educational value of having to write things out in longhand, at a pace which enabled a monk to absorb and contemplate the text: “As he is copying the approved text, he is gradually initiated into the divine mysteries and miraculously enlightened”.
There was also a serious threat of intellectual freedom, I emphasise of, not to, intellectual freedom. Lascivious Roman love poetry, such as the works of Ovid, were widely circulated for the titillation of the young and impressionable. This and other such publications constituted a threat to the authority of religion. Cheap printed versions of the Bible, sometimes distorting what Fra Filippo saw to be the subtlety of the Latin text, were now becoming available to individuals without the intermediation of a priest. The same process is underway today. There is a recent study of the hundreds of crypto-Catholic websites devoted to the Virgin Mary, which operate without any supervision by the Church and consist of a range of cults proclaiming miracles and wonders. They overlap imperceptibly into New Age sites [2].
For Fra Filippo, another problem was that printers produced enormous quantities of books that anyone could get. He complained that it was hardly possible to walk down the streets of Venice without having armfuls of books thrust at you, “like cats in a bag” for two or three coppers. This was an early form of information overload. We now are of course overwhelmed by information affluence. Indeed, if you search the words “information overload” on Google, as I did recently, you get the self-satirical answer of 869,000 hits, in 0.23 of a second. This problem has been called “data asphyxiation”.
Information is now so generally accessible that it cannot be effectively controlled. For almost all purposes this is a wonderful phenomenon. There is one area of particular difficulty for those of us who come from a common law legal tradition. We have developed over many centuries a series of elaborate procedures and rules for channelling, and in some respects restricting, the flow of information that is made available to jurors.
In many jurisdictions, such as Australia and in England, the civil jury has all but disappeared. That is not the case in the United States. In all common law jurisdictions, however, despite the steady expansion of the significance of matters heard in the summary jurisdiction, the more important criminal trials continue to be conducted before juries and, as far as I am aware, save perhaps with respect to complex corporate or fraud cases, there are no serious proposals that this situation should change.
It is an essential characteristic of a fair trial that the jurors decide the case upon the evidence that is allowed to be adduced in the trial and which has been tested in accordance with the common law mechanism of trial, particularly by the legal representatives of the accused. Whether it is called due process or the principle of natural justice, there is no more fundamental rule in our procedure, especially our criminal procedure. I do not think any common lawyer would believe that a fair trial could be said to have occurred unless this rule was observed.
It is not possible to list exhaustively the attributes of a fair trial. Issues have arisen in a seemingly infinite variety of actual situations in the course of determining whether something that was done or said, either before or at the trial, deprived a trial of the quality of fairness to a degree where a miscarriage of justice had occurred[3].
“Nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accused.”[4]
Over the course of centuries certain identifiable issues have arisen on many occasions and led to similar judgments being made with respect to the effect of events on the fairness of the proceedings. Many of our rules of procedure and of evidence have been developed on the basis that trial by jury is the norm. Although they may be of attenuated significance where a judge is the tribunal of fact, they are still applicable where a jury is involved. One of the most important manifestations of the principle of a fair trial is the withholding of evidence from the jury.
An issue that frequently arises is what is to be done if a juror either has or acquires information about the judge, a party or a witness in the case, or about the events in issue. This can arise by reason of a prior relationship or by reason of access to information before or during the trial. What the internet does is completely transform the possibilities of the latter [5].
The internet poses a challenge to the ability to ensure that a fair trial has occurred and renders less efficacious some of the mechanisms hitherto adopted to insulate the tribunal of fact from available information about the accused and witnesses or about the events. The internet opens up the prospects of new forms of misbehaviour by jurors during the course of the trial, by directly accessing the internet to acquire information about the events, about an accused or a witness, or for the purpose of checking expert evidence.
There is a distinct category of matters which impinge upon a fair trial which it is appropriate to consider under the general heading of jury misconduct [6]. Identification of misbehaviour is not an easy matter, by reason of the exclusionary rule that courts will refuse to receive evidence about deliberations in the jury room. This rule is based upon important considerations of public policy: the need to promote full and frank disclosure amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisal, and to maintain public confidence in juries[7].
Many cases of alleged juror misconduct have involved consideration by jurors of material not admitted into evidence, particularly media reports about parties or witnesses. The internet has transformed the ability to do this.
A good example of this challenge occurred recently in New South Wales in a case in which a person had been convicted of murder, but the Court of Criminal Appeal had ordered a new trial. In this case the man was on trial for the murder of his first wife. He had also been tried but acquitted of the murder of his second wife. A relevant fact was that both wives were from the Philippines and there was prejudicial material on a website maintained by a group called The Solidarity Philippines Australia Network. An appeal from the conviction in the second trial was allowed because of internet searches by the jury. The searches revealed that, not only had the person been previously tried and convicted of the charge of the murder of his first wife at his first trial, but that he had been charged and acquitted of the murder of his second wife[8].
The decision to set aside the verdict in the second trial for murder of his first wife and order a third trial for that offence was not based on the knowledge of the retrial. That fact was known to the jury, albeit not in terms that there had been a conviction. It was the natural inference, that that had occurred and the trial judge had directed the jury in strong terms to ignore the circumstances of the prior trial. On appeal that direction was held to be sufficient. What was found to be a miscarriage of justice was the revelation of the charge of murder of the second wife. (I interpolate that third trial proceeded by judge alone, as can be done by consent in New South Wales. He was convicted again.)
The categories of jury misconduct by accessing information are multifarious. In a case earlier this year in England, a rape conviction was overturned after a juror had downloaded documents including The Feminist Position on Rape and Rape and the Criminal Justice System. The documents had been found in the jury room with handwritten notes on them. It was not known if the documents had been discussed, but the Court held the conviction was unsafe because members of the jury may have been influenced by them.
The Court of Appeal said:
“Just as a juror should not speak about a case to anyone other than another juror and for precisely the same reason of principle, he or she should not conduct private research for information which may have a bearing on the trial. The internet has many benefits, and we do not mean to diminish its value. Of course, not every site is always right. Some sites seek to persuade. The contents of some are inconsistent with the assertions made in another. The internet cannot discuss the case. It can however provide material which may influence a juror’s views. If used for research purposes during the trial it can just as easily influence the jurors mind as a discussion with a friend or neighbour. And the verdict is no more a true verdict according to the evidence than a verdict in which one or more members of the jury have taken account of something said to them out of court.”
The Court went on to consider the content of directions that may be given in this respect to jurors. Most common law systems now have standard form directions about inquiries by jurors. They are gradually being amended to include express reference to the internet.
The problem of jurors conducting their own research is not new, nor limited to internet searches. In New South Wales recently, in a highly charged gang rape trial, two jurors conducted their own view, for the purpose, it appears, of assessing the victim’s identification evidence. Such examples have occurred in many other jurisdictions[9].
Similarly, independent investigations, tests and even experiments are featured in many of the cases on jury misconduct[10]. Issues have arisen, for example, about whether the use of law books and dictionaries caused prejudice of the requisite degree. In some cases the answer was yes and in other cases no.
The internet opens up a new range of opportunities for jurors to conduct their own legal research, rather than accepting instructions on law from the trial judge as assisted by counsel. Similarly, and quite likely to be of growing significance, is the ability to investigate technical matters for the purpose of better understanding expert evidence given at the trial. This is a phenomenon likely to be of significance for judge alone trials as well.
In a Colorado criminal prosecution for child abuse resulting in death, the prosecution had presented testimony to the effect that the defendant was taking daily medication for stress and depression. An issue arose as to how significant the underlying condition was and whether the particular medication was only prescribed for persons with severe mental ailments. A juror downloaded information about the drug which purported to outline the seriousness of the conditions for which the drug was prescribed. A new trial was ordered[11].
In other United States cases jurors have checked medical terms used in medical evidence[12], looked up information on the telemarketing industry in the context of criminal charges of fraud in relation to the operations of a telemarketing company[13], investigated the financial position of the defendant company in a breach of contract case, being information that may have been relevant to the determination of punitive damages by the jury[14], checked the chemical composition of cocaine in a trafficking prosecution[15]
and researched medical issues arising in a criminal trial[16].
All of this conduct, of course, occurred despite instructions to the jury to make their decision only on the evidence adduced in the trial and, usually, despite instructions not to conduct their own investigations, including references to the internet.
Model instructions for the jury have long contained references to the jury not to conduct their own research. Many of them now contain express references to searching the internet as well as refraining from using other reference material such as dictionaries[17]. In two Australian States a juror who makes inquiries, including on the internet, commits an offence[18].
These issues first arose in Australia in the context of a website called CrimeNet which promoted itself as a source about criminal conduct by individuals and a place to discover the criminal background, if any, of particular individuals. Questions were raised as to whether or not jurors had had access to entries with respect to a particular accused on this site[19]. Today this particular site requires a person to open an account and provide credit card details. The subscriber must agree not to search for details whilst serving as a juror in a trial “in a jurisdiction that prohibits such information”. Similar websites exist elsewhere including one American site which describes itself as “Google on steroids”[20].
These issues first appear to have arisen in the United Kingdom in an unsuccessful proceeding for contempt of court on the basis of publication on a website of information about an accused in a criminal trial. The judge ruled that there was no basis for believing that the jury would not obey his direction to have regard only to the evidence. His Lordship’s ruling in 2001, that as the material was in an archive rather than in a current publication, access was less likely, already appears archaic post Google [21].
The right to a fair trial is protected by numerous specific practices and rules that have developed over the course of centuries of practical experience involving adaptation to changing circumstances in accordance with the classic common law process. The internet is only the most recent technological challenge requiring a new course of pragmatic adaptation of our procedures.
This issue arises with particular acuteness in the context of a case which has received a considerable amount of pre-trial publicity. This is a matter on which different jurisdictions have quite distinct approaches. It requires the balancing of the principle of open justice, on the one hand and the principle of a fair trial on the other hand. United States practice, as I understand it, is heavily influenced by First Amendment jurisprudence in favour of the former, perhaps more than other common law jurisdictions. Proceedings for contempt by publication, although perhaps less aggressively pursued than in the past, remains a real option in most of the common law world[22].
One of the particular challenges the internet poses for us in terms of pre-trial publicity is that the old mechanisms for diminishing the risk to a fair trial, where there has been considerable pre-trial publicity, may no longer work. I am thinking particularly of the practice of ordering a change of venue away from a locality in which persons are likely to remember the publicity and the common practice of delaying a criminal trial until the effect of publicity has worn off[23].
One of the few positive aspects of media exuberance is that it is transitory. The collective memory of the journalistic profession has a short attention span, often no longer than that of a gnat. It was, of course, always possible for someone to go to a public library and look up a newspaper index. It did not happen. Now such research can be done with a few clicks of a mouse and all is revealed. The former practical obscurity has disappeared[24].
I have made the suggestion, in the Australian debate, that a prosecutor, prior to a trial, should conduct an internet search and then approach websites with a view to the removal, on a temporary basis, of prejudicial material[25]. Needless to say the media did not embrace this proposal with enthusiasm. However, in one case prejudicial material was removed from a website pending a high profile trial, at the request of the Court’s Information Officer[26].
One area within the control of the Court is its own website. These contain a considerable body of readily accessible information about particular offenders. Recidivism is as prevalent amongst the Australian criminal classes as it appears to be everywhere else. We have to adapt our practices to the loss of practical obscurity. We should develop means to control the intrusions of what one author has called “electronic peeping toms”[27]. Accessibility of court information, including judgments, raises important privacy concerns which are beyond the scope of this paper[28]. The privacy considerations raise issues of public policy well beyond those which are appropriate to be decided by judges.
I have, however, suggested[29] that the kind of detailed personal information about parties and witnesses which judges have become used to including in reasons for judgment are not all necessary to fully explicate the reasons for a decision. Identification of persons by name, in a way which permits the compilation of information about those individuals, is not always necessary. Perhaps we should make greater use of abbreviations and pseudonyms.
One Australian judge has proposed the following guidelines:
“When editing sentencing remarks that are intended for electronic publication:
(a) Consider whether a victim’s name or any witness’ name needs to be disclosed in full or at all.
(b) Avoid identifying the residential address of any person involved in the sentencing.
(c) Avoid disclosing family relationships when that information is unnecessary for the sentence.
In preparing reasons for judgment, the following list may be of assistance:
(a) Consider whether it is necessary to disclose a person’s complete date of birth. Is the month and year of birth sufficient or is the year of birth sufficient for the purposes of the judgment?
(b) Consider the extent to which the personal information about a witness or party is essential to support the decision.” [30]
Care may need to be taken when deciding to place judgments on a court website. Interlocutory judgments before a criminal trial can prejudice a jury[31]. The New South Wales Supreme Court no longer publishes such judgments before the trial and often delays posting a criminal appeal court judgment on our website, pending a new trial. Where it is posted, the trial judge in a retrial will sometimes request its removal.
We have also adopted a mechanism, which is perhaps excessively protective, but it has been implemented since we first created our website. This is the use of the Robots Exclusion Protocol. Robots, which are sometimes called wanders, crawlers, or spiders, are programs that search the World Wide Web. Guidelines have been developed for Robot authors and it appears that they have been widely adopted. The guidelines include standards for Robot exclusion when material is regarded as sensitive. Search engines look in the root domain of websites for a specially formatted file which tells the Robot which files it may not download. This is a voluntary code with no official status and there is no guarantee that current and future Robots will use it. However, the majority of Robot authors at this stage do use it giving information providers protection against unwanted access.
Only two Australian States, and our national site AUSTLII, adopt the Exclusion Protocol. It is not foolproof, as sometimes court judgments are passed on to the other sites which do not adopt the protocol.
The Robot Exclusion Protocol does suggest that there may be a possibility of developing technical fixes which at least have some potential to partially ameliorate the adverse effects of accessibility of information upon the fairness of a trial. It highlights, however, the tension between freedom of information and the principle of a fair trial.
A traditional technique for controlling misbehaviour by juries is sequestration. As I understand the position, that is still widely practised in criminal trials in the United States. Our own practice with respect to locking up juries has changed over the last decade or two. It used to be common, particularly after the jury retired to consider its verdict. It now hardly ever happens. It may very well be that accessibility of information on the internet will lead to the return of this practice, although it has not happened yet.
Sequestration orders may not be entirely effective because of the ability to access the internet by satellite with small devices, even if attempts are made to ensure that they do not enter the jury room. In State of Nevada v Tabish the court had to determine whether to discharge a juror who had used a Palm Pilot. It decided that, although the internet could have been accessed, only the calculator and calendar functions had actually been used and discharge was not warranted[32].
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There are a number of areas of current regulation which may need to be reviewed in the light of the accessibility of information. The reluctance of rape victims to come forward, by reason of the publicity that attends rape trials, particularly when complainants were named, led to legislative restriction in some jurisdictions on the ability to identify victims. These restrictions may become less effective. Similarly, the particular need for the rehabilitation of young criminal offenders has led to legislation in many jurisdictions prohibiting the naming of juveniles who are accused of criminal offences. These policies may need reinforcement.
The objects of the criminal justice system are also affected by the retention of information in an accessible form for long periods of time. The need for rehabilitation has led to the creation in some jurisdictions of a regime for spent convictions. In Australia it generally takes the form of removing, after ten years, the ability to identify a person who was sentenced to a short period of imprisonment. Accordingly, prior criminal convictions are no longer able to be taken into account in the wide range of matters that involve issues of character, such as job applications or credit assessments. It would be desirable, if possible, to develop some kind of electronic equivalent for a spent convictions regime. This depends on where the convictions are recorded. The kinds of cases that are covered by this regime are not usually the cases that attract media attention. Nevertheless, there is an electronic record in various forms in government departments. Such records are increasingly accessible and need to be regulated if a spent conviction statute is to have its desired effect.
A particular concern is the ability to discover information about the character of an accused, particularly about prior criminal conduct, whether alleged or proven. I am aware that different jurisdictions take different attitudes to the admissibility of prior convictions and that, accordingly, the significance of ready accessibility to such records will vary.
In Australia the law with respect to similar fact evidence, or as we call it now tendency or propensity evidence, remains reasonably strict. Recent developments in the United Kingdom manifest a different approach. The Criminal Justice Act 2003 abolishes the common law rules governing the admissibility of evidence of bad character and establish a new statutory regime clearly designed to make such evidence more generally available[33]. Nevertheless, the Court retains a discretion to exclude such evidence on fairness grounds. Accessibility issues will still arise.
The right to a fair trial is protected by many different techniques:
· Determining whether a trial should proceed at that time or geographical location or before a particular judge or, in an extreme case, at all.
· The multiplicity of requirements of a fair hearing including notice, disclosure, cross-examination, legal representation, etc.
· The exclusionary rules of evidence.
· Warnings and direction to a jury.
The internet heightens the significance of the last technique. The importance of strong directions is highlighted in the most recent House of Lords judgment[34]
Even a few years ago judges were apprehensive about giving jurors a direction not to look up the internet, because they were fearful that the very direction may serve as a suggestion to engage in conduct which really cannot be checked. As the use of the internet has exploded, however, this inhibition has disappeared.
As I have said the standard form direction, generally given to all jurors requiring them not to make any inquiries, now often specifically refers to searches on the internet. Furthermore, in two Australian States the Jury Acts have been amended so that a juror who engages in such conduct now commits an offence.
The issues that are raised by the accessibility of information on the internet highlight the conflict between two important principles: the principle of open justice and the principle of a fair trial. This is a conflict that arises in many different ways in many different contexts. When issues arise in the courts about jury access to extraneous information it is necessary to balance the conflicting public interests involved in these two principles against each other. Different jurisdictions have different tests about the weight to be given to the principle of a fair trial.
The cases that have arisen over the years, when juries had access to some information of a character that was not formally adduced in evidence, have never been decided one way. Some test of the significance of the impact of the information upon the deliberations of the jury has always been applied, albeit expressed in different ways, in different jurisdictions and over time.
The degree of emphasis, indeed the absoluteness as an overriding value, of the right of a fair trial will clearly differ from one judicial mind to another. The assessment of how significant access to information has been, or could have been, requires the balancing of conflicting interests that are, in their essential nature, incommensurable. As Justice Scalia once put it, this is like asking “whether a particular line is longer than a particular rock is heavy”[35]. Nevertheless, it is the kind of judgment that judges have long been called upon to make.
Some have criticised the appropriateness of any kind of balancing process between the quest for truth and the right to a fair trial[36]. However, such balancing has often been done. Nevertheless, it has long been the case that the absoluteness of the quest for truth, as an overriding value, has been modified by other values, particularly the right to a fair trial.
In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgments of one of the ablest judges who ever sat in this court”[37], Vice-Chancellor Knight Bruce said:
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical efficacy of torture is not, I suppose, the most weighty objection to that mode of examination … Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much.”[38].
So it is with access to information on the internet by jurors with respect to the trial. Save particularly with respect of the vast array of dubious websites relevant to expert evidence, there is no doubt that the internet can reveal “the truth”. Nevertheless, such access to the truth may cost too much in terms of infringement of the right to a fair trial.
Internet Address - Annexure 1
NORTH AMERICAN MODEL DIRECTIONS
Most US model or pattern jury instructions do not yet directly caution jurors not to use the Internet. This is especially true of civil jury instructions. Some criminal pattern jury instructions have been modified to include a reference to the Internet but not all. (Redgrave, Unplugging Jurors From the Internet, 48 JUL Fed. Law. 19, at 19 and 20).
The 9th Circuit Model Jury Instructions for criminal trials and civil trials both specifically refer to internet research:
“1.9 Conduct of the Jury
I will now say a few words about your conduct as jurors.
First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately;
Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it;
Third, do not do any research, such as conducting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own;
Fourth, if you need to communicate with me simply give a signed not to the [bailiff] [clerk] [law clerk] [matron] to give to me; and
Fifth, do not make up your mind about what the verdict should be until after you have discussed the evidence. Keep an open mind until then.”
So do the General Instructions for Federal Criminal Cases, Federal Jury Practice and Instructions (West Publishing Co, 2004):
Section 10.01, Opening Instructions
“…do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopaedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case form the evidence you receive here at the trial and apply it to the law as I give it to you.”
See also Section 11.01, Admonitions At Court Recesses:
“…do not read about the case in the newspapers or on the Internet or listen to radio or watch television broadcasts about the trial. If a newspaper headline or news broadcast about the case catches your eye or ear, do not examine the article or watch or listen to the broadcast any further. The person who wrote or is reporting the story may not have listened to all of the testimony, may be getting information from people who you will not see here in court under oath and subject to cross-examination, may emphasize an unimportant point, or may simply be wrong. You must base your verdict solely and exclusively on the evidence received in court during the trial.”
The New York Criminal Jury Instructions, similarly state:
Jury Admonitions in Preliminary Instructions:
“…
6. Do not attempt to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source.”
Some model instructions include a specific reference to the Internet but only require jurors to avoid articles found on the Internet and do not specifically admonish jurors not to conduct research on the internet.
For example, Watt’s Model Jury Instructions, written by the Ontario Criminal Lawyers’ Association, provide:
Preliminary instructions 16.7 “Radio, television, newspaper and Internet reports or anything that you may have heard from anyone else about this case, or the persons or places involved in it, are not evidence. You should ignore them completely. You should avoid all media and other coverage of this case and not discuss this with anyone else.”
Final instructions 3.1 “You must disregard completely any radio, television, newspaper accounts or Internet information you have heard, seen or read about this case, or about any of the person or places involved or mention in it. Those report, and any other information about the case from outside the court room, are not evidence.”
Washington Civil Pattern Jury Instructions (but strangely not their criminal pattern jury instructions, which do not mention the internet at all) provide:
“Until you are dismissed at the end of this trail, you must avoid outside sources such as newspapers, magazines, the Internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case”.
By contrast, model jury instructions from the 11th circuit and 7th circuit make no reference to the internet at all.
It is always within the trial judge’s discretion to tailor pattern jury instructions so as to warn specifically against internet use. For example, in Apostolou v The American Tobacco Company et al., No. 34734/00 (Kings County Sup. Ct, Jan. 2000), which was a civil lawsuit in New York state court, the trial judge gave the following instruction:
“Now, there’s another thing you can’t do. You can’t do any private investigation. Now, that means you can’t get on the Internet and see what the Internet is saying about anything touching this case. You can’t talk to somebody who you may consider authoritative on an issue that you are going to hear about. You cannot do any of that.”
4 Internet Address - Annexure 2
EXTRACT FROM NEW SOUTH WALES MODEL DIRECTIONS
[ [in a case where there has been prior media publicity in relation to the accused]
It is of fundamental importance that you put any such publicity right out of your minds. You must, to be true to your oath or affirmation, decide this case solely by reference to the evidence presented in open court and, of course, the directions of law which I shall give you at the conclusion of the evidence. If you were to do otherwise you would not be true to the oath you took or the affirmation which you made.
You must also put out of your mind completely any reference you may have heard or read in any context whatsoever in relation to the accused. So it is not only publicity concerning this trial that you must put out of your mind.]
Importantly, you must not, during the course of the trial, use any material or research tool, such as the Internet, or otherwise, to access legal databases, earlier decisions of this or other courts, and/or any other material of any kind relating to any matter arising in the trial.
It is my duty to draw your attention to the following provisions in the Jury Act 1977 (NSW) which creates a number of offences which are relevant to the conduct of all criminal trials.
Soliciting information from or harassing jurors or former jurors
A person must not solicit information from, or harass, a juror or former juror for the purposes of obtaining information about:
(a) the deliberations of a jury; or
(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue in a trial (s 68A(1)).
There is however no prohibition against a juror soliciting information from another member of the jury during a trial (s 68A(4A)).
Disclosure of information by jurors etc
A juror must not, except with the consent of or at the request of the judge, wilfully disclose to any person during the trial information about:
(a) deliberations of the jury; or
(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial (s 68B(1)).
There is however no prohibition against a juror disclosing information to another member of the jury during a trial (s 68B(4)).
A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about:
(a) the deliberations of a jury; or
(b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial (s 68B(2)).
Inquiries by juror about trial matters prohibited
A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror (s 68C(1)).
This prohibition applies in respect of a juror from the time the juror is sworn in as a juror until the juror, or the jury in which the juror is a member, is discharged by the judge (s 68C(2)).
However, the above provision does not prohibit a juror:
(a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror; or
(b) from making an inquiry authorised by the court (s 68C(3)).
That phrase making an inquiry includes the following:
(a) asking a question of any person;
(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet);
(c) viewing or inspecting any place or object;
(d) conducting an experiment;
(e) causing someone else to make an inquiry (s 68C(5)).
The reason you must not undertake any such inquiries is that you must be true to your oath or affirmation. To be true to your oath or affirmation you must decide this case solely by reference to the evidence presented in open court and, of course, the directions of law which I shall give you at the conclusion of the evidence. [See R v K (2003) 59 NSWLR 431 at [89]–[90]].
The reason that you are not permitted to make such inquiries is that to do so would change your role from that of impartial jurors to investigators, and lead you to take into account material that was not properly placed before you as evidence, of which those representing the Crown and the accused would be unaware and unable to test. Such material might require expertise in order to ensure that the inspection or experiment was properly conducted.
The only circumstances in which views or experiments are permitted, and are available by way of evidence, are those which occur in the presence of all jurors, the legal representatives of the parties, and myself. Those circumstances involve safeguards being taken to replicate the conditions, which were in existence at the time of the relevant events, and if there are any relevant differences in the alleged crime scene or in the circumstances of the experiment, they can be pointed out to you in the course of the evidence.
The restriction concerning jurors making their own inquiries about any aspect of the case, inspecting the site, or carrying out experiments, extends not only to individual jurors but also requires that none of you causes or requests anyone else to do any of those things.
The law provides that anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror (s 68C(4)).
You are not permitted to have computers with you in the jury room, and you are requested not to take mobile phones into the jury room. If you have brought a mobile phone with you, you are requested to leave it with the Sheriff’s officer. If it is necessary, as a matter of urgency, for any of you to have access to your phone during the course of the trial, then arrangements can be made with the Sheriff’s officer.
You should, even at the expense of appearing to be rude, avoid speaking to any person in the precincts of the court. This is because you may inadvertently speak to a person waiting to give evidence in the trial, a legal representative of one of the parties, or some person otherwise associated with the conduct of the trial. If this were to occur, it may mean that you would not be able to continue as a juror in this trial. It could even mean that it would be necessary for me to discharge the whole jury. This would, of course, be a most undesirable outcome.
Further, if anyone attempts to speak to you about the case, at any stage of the trial, it is your duty to report that fact to me as soon as possible, and refrain from mentioning the fact to any other member of the jury panel.
In the event of it becoming apparent to any of you, in the course of the trial, that another of your number has made any independent enquiry in relation to any aspect of the case, then it should be brought immediately to my attention. This includes making an enquiry about the accused or the background of the offence; making a private inspection or conducting a private experiment; causing anyone else to do any of those things; or discussing the case with anyone other than the remaining members of the jury.
In the event of it becoming apparent to any of you in the course of the trial, that any matter which is not in evidence has found its way into the jury room, then that should similarly be brought to my attention.
The reason it is necessary for any such matter to be brought to my immediate attention, is that, unless it is known before the end of the trial, it may not be possible to put matters right. In this case an injustice may possibly have occurred, requiring me to discharge the jury and direct a retrial.
If you have any query about the evidence or the procedure during the trial, you should direct such a query to me, and to me alone. The Sheriff’s officers, who will attend to your general needs, are not there to answer questions about the trial itself. Should you have any questions about the evidence or the procedure, please make a note and give it to the Sheriff’s officer. The note will be forwarded to me and, after I have discussed the matter with counsel, I shall deal with the matter.
End Notes
[1]. This and the following quotations are from Martin Lowry The World of Aldus Manutius: Business and Scholarship in Renaissance Venice Basil Blackwell, Oxford, 1979 at pp26-35 and generally repeated in Vernon J Hippetts “Yesterday Once More: Sceptics, Scribes and the Demise of Law Reviews”, 1996, Akron L Rev 267 at 268-271.
[2]. See Paolo Apolito “The Internet and the Madonna” University of Chicago Press, Chicago, 2005.
[3]. I have discussed the range of issues that arise in Spigelman “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29.
[4]. Connelly v DPP (1964) AC 1254 at 1347.
[5]. See also J J Spigelman “Open Justice and the Internet” (2004) Judicial Officers Bulletin 1; Justice Virginia Bell “How to Preserve the Integrity of Jury Trials in a Mass Media Age”. Paper to the Supreme and Federal Court Judges Conference, January 2005. These two speeches are accessible at www.lawlink.nsw.gov.au/sc.
[6]. See Jimmie E Tinsley “Jury Misconduct Warranting New Trial” 24 American Jurisprudence Proof of Facts 2d 633. For the most recent treatment of this matter in the House of Lords see R v Smith (2005) 1 WLR 704.
[7]. This is the way the relevant authorities were recently summarised in R v Skaf (2004) NSWCCA 37; 60 NSWLR 86 at [211] based on a long line of the authority from Vaise v Delaval (1785) 1 Term Rep 11; 99 ER 944 to R v Mirza (2004) 2 WLR 201 and R v Pan (2001) 2 SCR 344. (New South Wales cases are accessible at www.lawlink.nsw.gov.au/sc.)
[8]. See R v K (2003) NSWCCA 406; 59 NSWLR 431.
[9]. See the cases referred by Tinsley supra at fn 31-45.
[10]. See Tinsley supra at fn 46-55.
[11]. People v Wadle 77 P. 3d 764 (2003).
[12]. Buford v Group Health Co-Operative v Pujet Sound (2000) WL 44123 (Wah.App.Div.).
[13] . United States v Showa 133 F. 3d 930 (1997).
[14]. CGB Occupational Therapy Inc v RAH Health Services, United States Court of Appeal for the Third Circuit No 02-4372, January 28 2004.
[15]. Commonwealth v McCaster 46 Mass.App.Ct. 752, 710 N.E. 2d 605 (1999).
[16]. State v McKnight 352 S.C. 635, 576 Se.e. 2d 168 (2003).
[17]. See generally Redgrave “Unplugging Jurors from the Internet” 48 JUL Fed Law 19; I annex extracts from the direction used in New South Wales. For the full context see the Judicial Commission of New South Wales Criminal Trial Bench Book available at www.judcom.nsw.gov.au. I also annex some United States model directions.
[18]. The Jury Act 1977 (NSW) now provides in s68C:
[19]. See R v McLachlan (2000) VSC 215; R v Cogley (2000) VSCA 231. See also R v Long (2003) QCA 77, 138 A Crim R 103.
[20]. The website is www.crimenet.com.au. A similar site in the United States is www.webdetective.com. Furthermore there is www.zabasearch.com which describes itself as “Google on steroids”, but criminal record checks require a fee.
[21]. See H.M. Advocate v Beggs (No 2) (2002) SLT 139 at 140.
[22]. See J A Brandwood “You Say ‘Fair Trial’ and I Say ‘Free Press’: British and American Approaches to Protecting Defendants’ Rights in High Profile Trials” (2000) 75 NYUL 1412; J E Nowack “Jury Trials and First Amendment Values in ‘Cyber World’” (2001) 34 U Rich L R 1213; M Chesterman “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” (1997) 45 Am J Comp L 109; N N Minow and F H Cate “Who is an Impartial Juror in an Age of Mass Media?” (1990–1991) 40 Am U L Rev 631; E A Minnefor “Looking for Fair Trials in the Information Age: the Need for More Stringent Gag Orders Against Trial Participants” (1995–1996) 30 USF L Rev 95; E Patrick “Protecting the Defendant’s Right to a Fair Trial in the Information Age” (2002) 15 Cap Def J 71; A Riehle “Canada’s ‘Barbie and Ken’ Murder Case: The Death Knell of Publication Bans?” (1996– 1997) 7 Ind Int’l & Comp L Rev 193; J M Redgrave “Unplugging Jurors from the Internet” (2001) 48-JUL Fed Law 19; C Walker “Fundamental Rights, Fair Trials and the New Audio Visual Sector” (1996) 59 Mod L Rev 517; C Walker “Cyber-contempt: Fair Trials and the Internet” (1997–98) 3 Oxford Yearbook of Media and Entertainment Law 3.
[23]. See my observations in John Fairfax v District Court of New South Wales [2004] NSWCCA 324 at [6] to be published in 61 NSWLR.
[24]. On practical obscurity see United States Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989) esp at 762-764.
[25]. See R v Burrell [2004] NSWCCA 185 at [39]. See also Bell supra esp at p10.
[26]. John Fairfax v District Court of NSW supra at [11].
[27]. Winn P.A. “Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information” (2004) 79 Wash L Rev 307 at 318.
[28]. See on the Australian debate, Puplick “Justice: Now Open to Whom?” (2002) 6 The Judicial Review 95.
[29]. See fn 5 above.
[30]. Justice Debra Mullins “Judicial Writing in an Electronic Age”, 21 December 2004 (Unpublished paper, Supreme Court of Queensland).
[31]. See, e.g. R v Weiss [2002] VSC 153.
[32]. See www.courttv.com/trials/binion/documents/newtrial_decision.
[33]. See Professor J R Spencer QC “Part 11 Chapter 1 of the Criminal Justice Act 2003: Evidence of Bad Character”. http://www.jsboard.co.uk/downloads/text_of_instruction_manual_revised1april05.doc
[34]. See R v Smith supra at fn 6.
[35]. Bendix Autolite Corp v Midwesco Enterprises Inc 486 US 888 (1988).
[36]. See, for example, the discussion in my paper “The Truth Can Cost Too Much” supra at pp44-46.
[37]. Minet v Morgan (1873) 8 LR Ch App 361 at 368.
[38]. Pearse v Pearse (1846) 1 De C & Sm 12 at 28-29; 65 ER 950 at 957.
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