Newer Media, Republican Moments and the Constitution
Chapter 5: Google and the ‘unvirtuous’ juror? A comparative constitutional analysis of some digital challenges to fair trials
An emerging threat to the fairness of adversarial criminal jury trials today comes from within the trial itself – namely the modern juror – the modern, electronically adept/dependent online juror who lives in a world of instant messaging, tweets, blogs and Facebook updates. This threat may be characterised as comprising flows of information both in and out of the jury room. While there are clearly troubling issues raised by the outward flow of information about jurors’ deliberations, this chapter focuses upon the problem where extraneous material is discovered via private research and brought into the jury room. Research by Thomas in 2010 for the Ministry of Justice revealed that 12 per cent of jurors in ‘high-profile’ cases and 5 per cent of jurors in standard (non-high profile) cases admitted doing private research. These figures are likely if anything to understate the true extent of illicit research activity and in the intervening years, the scale of the problem is unlikely to have diminished. Indeed, in England and Wales there have been several high profile convictions of jurors for bringing material about previous allegations against the defendant into the jury room. In the US, instances of juror misconduct have emerged in both civil and criminal trials. Jurors have for example researched defendant insurance companies’ profit records in order to reach a view about the ‘appropriate’ level of damages to be awarded.
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