Twitt(er)ing open justice?

12 Angry Men would be different in today’s world of Twitter and Facebook (Image: Flickr)

This paper takes as its focus some current threats posed to the administration of justice in both the United Kingdom and the United States. Both jurisdictions are experiencing similar problems which concern the flow of electronically-held information into and out of the jury room. It will be seen that the strong protection afforded to such speech under the First Amendment means that even where it is highly prejudicial, no action can be taken against media organisations or providers of electronic social media. Instead, emphasis is placed on insulating jury members from material that is not part of the criminal trial proceedings. By contrast, jury members who undertake private research into aspects of the trial are not in the same position as media organisations and risk being found in contempt in much the same way as jurors in England and Wales.

The questions which this brief paper sets out to explore are as follows:  i) what sorts of threat does technology and the electronically-equipped juror pose to the fairness of criminal jury trials and ii) what possible responses might the criminal trial system make to counter any adverse impact on trial fairness/integrity.  To start with however, the constitutional context in which recent developments in the United States have occurred is set out.

US First Amendment
‘Congress shall make no law… abridging… freedom of speech or of the press…’

Most of us are familiar with this famous constitutional command. For present purposes, it is the application of the First Amendment to the reporting of court proceedings and, more broadly, to speech about matters pending before the courts that is of relevance. The underlying rationale for broad protection in the case of speech about courts and legal proceedings is to be found in the ideal of republican self-government. As Brennan J observed in the context of a successful challenge to an order closing a criminal trial to media and members of the public alike:

[T]he First Amendment  …has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is … (the) assumption that valuable public debate – as well as other civic behavior – must be informed.

Courts are entrusted with the exercise public power in the process of trying defendants in criminal cases and it follows that the public or community on whose behalf this power is exercised has an interest in learning about court proceedings. Knowledge of court proceedings and surrounding issues is vital therefore to the informed participation by citizens in public affairs.  That is not to say that restrictions on court-related speech could never be justified, it is rather that there is an extremely heavy constitutional burden on the state to show why the media should be prevented from commentating on pending/actual proceedings. This burden is expressed in the ‘clear and present danger’ standard. Essentially, this requires the state to show that the speech in question poses a clear and present danger of immediate and substantial harm (to say the administration of justice or a defendant’s fair trial rights) and that the restriction imposed on speech advances the governmental interest by minimally impairing the exercise of First Amendment freedoms. In effect, the standard means that sub judice contempt rules are wholly unconstitutional. In the case of prior restraints (or gag orders), these become extremely  hard to obtain, though not impossible.

As the American Bar Association puts it in ABA Standard 8-3.1:

Absent a clear and present danger to the fairness of a trial or other compelling interest, no rule of court or judicial order should be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.

Even in cases where the publicity does cause a trial to be delayed and transferred to a different venue, the ABA guidance goes on to state that:

No legal penalty or obligation may be imposed on reporters to avoid publicity about a case. No legal penalty may be imposed for even the most intense, exaggerated, biased or ‘hyped’ coverage of any criminal case (except the remedies provided by successful libel suits).

Safeguarding criminal trials – the First Amendment way
The obvious question to arise from the presumptive unconstitutionality of restraints on prejudicial pre-trial and during trial publicity is how does the US system uphold the defendant’s Sixth Amendment right to a fair trial. Consider the murder trial of OJ Simpson. Apart from the saturation television and news media coverage during the trial itself, which many considered to be hostile to the defence (it turned a serious criminal trial into an entertainment in which the lawyers and witnesses were competing for the ten second soundbite to kick off TV networks’ evening news programmes), there was also the prejudicial material aired by media organisations. This material was broadcast after Simpson was formally brought before the court for the first time to be told the charges he would be facing and famously included audio recordings of the 911 calls made by the victim on two previous occasions, including the time when Simpson broke a door to gain forcible entry. Nicole Brown Simpson is clearly heard to tell the emergency switchboard in a sobbing voice, ‘He’s back’, ‘I think you know his record’, ‘He is crazy’; at the time of these broadcasts, the admissibility of the 911 calls had yet to be determined.

Accepting the serious potential for such material to cause prejudice to the fairness of particular trials, the criminal trial process in the US lays emphasis upon the range of curative measures that can deployed to safeguard Sixth Amendment fair trial rights. These include the voir dire, changing the venue or start date of trials or, in extreme cases, such as Simpson’s, sequestering the jury.

An electronic threat to fair trials
The OJ Simpson case brought together a combination of elements (celebrity black defendant and role model in an ethnic community; violent crime against his white wife, a racist police officer, flamboyant lawyers happy to play to the cameras) elements that do not usually present themselves in the one criminal case before a jury of twelve men and women.

In 2012, a pressing threat to the fairness of jury trials would seem to come from within the trial process itself – namely the juror. Compared to previous generations, jurors today are much more likely to be electronically equipped and adept at tweeting, blogging, sending and receiving instant messages and Facebook updates. The modern juror is also accustomed to acquiring knowledge about events and individuals via Wikipedia and Google.

In the celebrated 1957 film directed by Sidney Lumet, Twelve Angry Men Juror No 8 (whose character is played by Henry Fonda) is the one juror in a murder trial who initially stands alone in expressing doubt about the defendant’s guilt. At one point in the deliberations, he produces a knife that is identical to weapon said by the prosecution to have killed the victim. This action is central to the undermining of the prosecution’s case and helps persuade the other jurors to doubt their original conclusions of guilt. For present purposes, what is of interest here is that Juror No 8  has done his own research and brought the product of this research into the jury room – something that is wholly contrary to the adversarial nature of criminal trials. The prosecution has no chance to rebut the pro-defendant inference which is suggested by the juror’s private inquiries.

Today, the twittering/electronic juror might be thought to pose a different kind of threat to that created by Juror No 8 in Twelve Angry Men. At one level though the same challenge is posed to the criminal jury trial in which extraneous material (i.e. material not admitted in evidence to the court, and thus not tested through the adversarial clash between prosecution and defence) finds its way into the jury room.

As is well known, Twitter offers a micro-blogging text service – each time in 140 characters whereby users of the service can post tweets for others to read and respond directly to. Internet links can also be posted and accessed. It is a powerful way of discovering what is happening just now and also participating in discussion of those events.

Problematic information flows in the electronic era
We can think of electronic media as posing two distinct sorts of challenge to criminal court proceedings. In the first type of challenge, untested information/material flows into the jury room, for example when a juror does private internet research away from the courtroom and later discloses the results to fellow jurors during their deliberations. Secondly, there may a problematic flow of information/opinion away from the jury room. This could arise via tweet updates on jury room experiences – including deliberations or simply ‘blogging’ about the experience of jury service.

Why might disclosure of a juror’s private research to fellow jurors be troublesome?

Two main reasons can be advanced here; first as was seen above, it introduces untested and possibly prejudicial material into deliberations. This undermines rules of evidence as there is no opportunity for prosecution/defence to challenge the products of private research. It is also costly where, as a result of the outside interference, a retrial is ordered. Not only is there a financial cost in a retrial, there is also a risk of additional trauma for victims and witnesses caught up in the proceedings when they have to return to court at a later date.

What threats are posed when information/opinion leaves the jury room?

The obvious concern here is that the finality of jury verdicts will be undermined, a feature of English criminal trials that is underpinned by s.8 of the Contempt of Court Act 1981. Separately, it may be thought that juror to juror exchanges would be inhibited and therefore quality of jury deliberations adversely affected.

What is happening in practice?

It is becoming clearer that for a new generation of jurors, the temptation to go online during trial proceedings is difficult to resist.  Research by Cheryl Thomas for the Ministry of Justice in 2010 disclosed that between 5% and 12% of 668 jurors admitted to researching case details on the internet.

In January 2012, juror and university lecturer Theadora Dallas was jailed for breaching the trial judge’s direction not to search internet for trial related materials. She had told fellow jurors what she had found about defendant (including a previous rape allegation). Her actions caused the trial to be halted.

Seven months previously in separate proceedings, another juror Joanna Fraill discussed the progress of jury deliberations on Facebook with a defendant who had been earlier been acquitted in the same proceedings and whose co-defendant (and boyfriend) was waiting to learn his fate. Fraill admitted revealing details of jury deliberations and also doing a Google search on the co-defendant. She was jailed in June 2011 for 8 months.

For some devoted (and possibly addicted) users of social media, the prospect of a lengthy spell of jury service is less than welcome. In Oct 2009 one person summoned for jury service tweeted ‘Wow. Jury Duty. First Time ever. Can I be excused because I can’t be offline for that amount of time?’.

In the next section, technology-induced mistrials and near mistrials in the United States are briefly discussed. These may point up some difficulties that may lie ahead in our own courts. This is followed by discussion of a range of official responses that have been employed to combat threats to the integrity and fairness of jury trials

The US Experience
A snapshot of the first six months of 2009 reveals a flavour of technology-induced mistrials or near mistrials.

1. March 2009: collapse of a federal drugs trial in Florida after 8 out of 12 jurors admitted private online research into defendants’ names and definitions of medical terminology. The trial was in its seventh week when the judge halted the trial.
2. July 2009: political corruption trial against a former state senator – juror tweeted during trial and made posts to his Facebook page – defence motion for a mistrial rejected on the basis that the juror had not read any of the tweets posted to him in response of his original tweet. There had been no flow of information into the jury’s deliberations and therefore no prejudice had been caused to the trial.

Why do jurors engage in private research?
An informed policy response to jurors’ use of social media and electronically available materials ought to be based upon the reasons why jurors engage in such practices. Several such reasons suggest themselves viz:

1. A curiosity to gain background information on key participants in trials.
2. A belief that justice will be better served if more not less ‘information’ is before the jury.
3. Cultural reasons; the younger (and not so young!) juror is accustomed to finding information online and has the technological means (Iphones, Blackberry etc.) and expertise to reach online material. More generally perhaps a dependence on instant communication to friends/access to information.

Possible responses
One fairly drastic solution might be to ban iPhones, Blackberries etc. from the courtroom. An obvious difficulty here is that such a move doesn’t stop out of court communications/information flow. An alternative approach may be for the trial judge to make explicit both the type of technology that jurors are prohibited from using and importantly the reasons why these technologies are being restricted. An example might be, ‘Google Earth may not be used to check location details in the present case’ or, ‘Twitter updates on progress of trial to followers are strictly prohibited’. Jurors would then be told that unless they are each able to abide by the instruction, then it may become necessary to sequester jurors until a verdict is delivered. This type of instruction has been used in US courts.

One possible downside to this approach is that a technology-specific rule is likely to be under-inclusive as technology progresses, so any rules will need regular updating. One US juror is thus reported to have blogged as follows:  ‘Hey guys! I know that jurors aren’t supposed to talk about their trial, but nobody said that they couldn’t live blog it, right? Am I right or am I right?!?!’

By contrast, more generalised instructions for example ‘do not use the internet to research the case’ ‘do not talk about the trial to others’ may cause confusion among jurors about what precisely is covered.

Perhaps more need to be done by way of educating jurors about the reasons why the use of electronic devices is prohibited and spelling out clearly which devices are prohibited and when the prohibition ceases. Judges may also want to spell out clearly the serious consequences of breaching any instruction and remind jurors of the Fraill and Dallas cases, both of which resulted in custodial sentences. Other avenues worth considering include offering encouragement to fellow jurors to inform promptly on jurors who fail to adhere to the instruction prohibition; requiring jurors to make a declaration of non-use of specified devices at the start and conclusion of trial.

At a deeper level however, some instances of juror misconduct may reflect an inappropriately casual attitude towards the important and solemn function of determining the guilt or innocence of fellow citizens. Yet at other times, it might be argued that the inquisitive juror who engages in private research to further their understanding of the case and its background is an entirely different individual to the casual juror – one who takes his/her civic responsibilities entirely seriously and wants to deliver the right verdict. This person is avid for more information and is not content for the legal experts to have the stage solely to themselves.   To meet the concerns of this type of juror, thought may need to be given to the idea of moving away from wholly adversarial trials thereby allowing jurors a more active role within proceedings than they currently enjoy. This would perhaps offer a means of satisfying the curious (and conscientious) juror who has his/her own questions about the events at issue in the trial and remove a principal reason for online activity. One problem with this approach is that jurors may well want to ask of the judge is: ‘Does the defendant have previous convictions?’ and they may not be receptive to the judge’s response as to why that information cannot be given. There is however research in the United States which suggests that some judges (in trials in New York and Pennsylvania) view as a positive experience the practice of allowing jurors to submit written questions during the course of the trial. Perhaps this is something that the English and Welsh criminal court system should be open to exploring.