Social media a threat to the judicial system

The explosion of blogging, tweeting and other online diversions has been spreading to the law courts, raising serious questions about juror impartiality and the ability of judges to control their courtrooms in a number of cases. Jurors’ forays on the internet have resulted in dozens of mistrials, appeals and overturned verdicts in the last two years alone, mainly in the US. But, increasingly, other countries are also beginning to get affected.

For decades, courts have instructed jurors not to seek information about cases outside of evidence introduced at a trial, and have warned them not to communicate about a case with anyone before a verdict is reached. But these days jurors can, with a few clicks, look up definitions of legal terms on Wikipedia, view crime scenes via Google Earth, or update their Facebook pages and blogs with their comments about the proceedings.

It was hardly a surprise therefore – even if it happened to be a British legal first – that the London High Court last Thursday felt compelled to jail a juror for eight months for contempt of court. Her offence? She had contacted a defendant via Facebook, causing a £6m drugs trial to collapse.

The punishment handed down to Joanne Fraill, a 40-year-old mother of three, might appear excessive but no doubt the judge wanted his sentence to act as a deterrent to jurors inclined to disobey judges and unwittingly undermine the judicial system with their internet dalliance. The judge also wanted to make an unequivocal statement about the need to protect the integrity of the justice system and the jury system, stressing the need to shield those connected with an ongoing case from outside influences. The idea in itself is laudable but in today’s always-wired age, how far is it practical?

Courts are still trying to figure out how to keep jurors unplugged. Some judges in the US now confiscate all phones and computers from jurors when they enter the courtroom. California updated its civil jury instructions in 2009 to bar jurors from ‘all forms of electronic communication’. Courts in Florida and six other US states have added a stricter instruction, stating that jurors using the internet ‘must not disclose your thoughts about your jury service or ask for advice on how to decide a case’. Early last year, the Judicial Conference of the US, which oversees administration of the federal court system, recommended that federal judges use instructions stating that jurors cannot ‘search the internet, websites, blogs, or use any other electronic tools’.

But with so many people accustomed to an always-online lifestyle, isn’t it unrealistic to expect they’ll leave that impulse behind at the courtroom door? In pre-internet days, jurors might have gone home and talked about trials, but few came to know. Now they can publish their views online, leaving an electronic trail that increasingly is providing grist for lawyers to challenge verdicts. Some experts now argue that rather than try to stifle jurors from pursuing information on the web, courts need to figure out how to help them do so in a responsible way. It can be frustrating for jurors when information presented at trial is confusing, especially when they know they can easily access more data online.

Perhaps, the jury’s role for the 21st century needs a rethink, given that in the recent case, the drugs trial in the northern English town of Manchester collapsed not because Fraill had set out to deliberately undermine the trial or because she stood to benefit from the waste of tax-payers’ money it caused. As it turned out, all it took was some incredibly naïve actions by Fraill, who otherwise had an unblemished record, to derail the case which had already been halted twice.

The initial contact came after Fraill went on Facebook and tracked down Jamie Sewart, 34, who had already been cleared in the drugs case, because she could ‘see a lot of myself in her’. Fraill was said by her lawyer to have felt ‘considerable empathy’ for Sewart as the trial ‘gathered in momentum and intensity’. In her first contact, Fraill told Sewart: ‘You should know me – I’ve cried with you enough.’ A transcript released by the court has her saying in another conversation: ‘Can’t believe they had u (sic) on remand.’

Joanne Fraill: eight months in jail for contacting a defendant via Facebook

Fraill added that she thought she recognised one of the other defendants and when asked by Sewart how the jury was dealing with one of the outstanding charges said: ‘Cant get anywaone (sic) to go either no one budging... don’t say anything cause jamie they could cause miss trial (sic).’

The two continued to talk about the case and used expressions such as ‘lol’ and other internet slang, as well as variants of spelling commonly used in such messages.

Frail also said: ‘At least then yer all home n dry.’

And Sewart responded: ‘Ha ha, ur mad. I really appreciate everythin. If I cud of kissed u all I would of done ha ha.’

She went on to say: ‘Keep in touch and I’ll get u a nice pressie...’

The pair agreed to become Facebook friends after the trial.

Damningly, Fraill also described her role on the jury in their conversations. ‘All that note-taking was just killing time. lol. drew more than I wrote lol,’ she said. The mother-of-three even conducted an internet search on Sewart’s boyfriend, Gary Knox, a co-defendant, while the jury was still deliberating.

At the High Court hearing, Fraill admitted she had made online contact with Sewart and discussed the case with her while the jury’s deliberations were on. She also admitted revealing details of the jury’s deliberations during their online conversations and conducting internet research on a defendant. That was despite the judge reminding all the jurors that they must decide the case solely on the evidence given in court.

Frail’s lawyer said at the hearing: ‘Her conduct, though reprehensible, was not calculated or designed by her to subvert the trial process, although it is conceded that that was an inevitable consequence of it.’ Sadly, in the court’s view, contact and discussion were in direct breach of the judge’s repeated directions to the jury – and constituted a contempt of court. Hence the eight-month prison term.

Given the technological advances that have been made and the manner in which social media has taken over our lives, Fraill’s case is likely to be the first of many worldwide rather than an isolated instance. Social networking nowadays seems to act as some sort of proxy for real relationships and some people seem to consider Facebook and Twitter as a kind of ‘safe space’ where normal social rules don’t exist.Like everyone else, jurors too must be using social media most of the time. It is extremely difficult to police and it was only because Fraill’s was such an extreme case that it came to notice at all. Under the current rules, there is little more that any court or judge can do other than stress how important it is to keep jury deliberations within the jury room and to useonlythe evidence presented to the juror. Having said that, it is very difficult for people not to research on the internet – or even avoid media in today’s society, particularly on a high-profile case. People nowadays get onto the internet to research the most obscure of things and jurors are drawn from the same society as the rest of us.

Jamie Sewart: Cleared in the drugs case, she agreed to become Facebook friends

Any intelligent, inquisitive person will have questions in their mind that can’t all be answered in court. It must be very difficult not to do extra research. Obviously, Fraill went too far in this case but it is fair to say that there must be hundreds of other instances that don’t come to light; just because they remain hidden from view doesn’t mean they are not occurring. There is little that courts can do about social media research. They can segregate the jury from the outside world during the course of a trial but the financial and social costs of putting people up for months at a hotel, cut off from electronic devices and other people, would be massive.

Over a three-week period in November and December last year, the Reuters Legal news service decided to monitor Twitter, reading tweets that were returned when ‘jury duty’ was typed into the site’s search engine. Tweets from people describing themselves as prospective or sitting jurors popped up at the astounding rate of one nearly every three minutes. Many appeared to be simple complaints about being called for jury duty in the first place, or about the boredom of sitting through a trial. But a significant number included blunt statements about defendants’ guilt or innocence. ‘Looking forward to a not guilty verdict regardless of evidence,’ one recent message stated. Another read: ‘Jury duty is a blow. I’ve already made up my mind. He’s guilty. LOL.’

Search engines have indeed created significant new dangers for the judicial system and it has reached the point that the entire system has to evolve to find a way to take technology in its stride and harness its power since clearly, ignoring it or clamping down on its use doesn’t seem to be working. If last week’s sentence fails to stop jurors researching cases and communicating about them online, then it may be time to look again at contempt of court laws besides the judicial system at large. It may be that the cherished principle of the sanctity of the jury room can no longer be maintained in the face of modern communications, the internet and social networking. Allowing internet-surfing jurors to access information on the web, but in a responsible way, may be one way out. Other alternatives need to emerge soon to avoid wasting tax-payers’ money on trials that collapse simply because technology has permeated every aspect of our lives.