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Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Should Juries be allowed to Google ?

Are the Judiciary more concerned with the truth coming into the public domain ?

Are SCCRC concerned with no control of the internet ?

The internet highlighting more injustices is more like it in my view, and the judiciary are running scared.

http://news.scotsman.com/legaliss...es-in-the-dock.5097240.jp#3874488

Internet goes in the dock

Published Date: 23 March 2009

By John Forsyth
THE collapse of a trial in Florida last week has acted as a lightning conductor, attracting further tales of the intrusion of the internet and its Twittering, blogging derivatives into the jury room.

The absolute principle that a jury should reach its verdict only on the basis of evidence played out in the courtroom with defence and prosecution lawyers having the opportunity to cross-examine each other's witnesses appears to be under serious threat.

In Scotland, Paul McBride, QC, regards the internet as the elephant in the jury room. He said: "The judiciary and politicians have tried not to notice juries are using Google to second-guess evidence. They know that, as soon as they acknowledge it, they will either have to do something about it or abandon the pretence that we have a Contempt of Court Act that means anything in the age of the internet.

"It is quite absurd that a newspaper editor could be sent to jail for publishing prejudicial material during a trial but any juror can Google for information that would be inadmissible or prejudicial or is plain wrong and no-one turns a hair."

The Florida case involved someone charged with illegally selling prescription medicines through the internet. Defence and prosecution had made their closing speeches after an eight-week trial and the judge, William Z Zloch, had sent the 12-person jury off to consider their verdict.

One juror contacted the judge to say another member had admitted carrying out his own research on the case over the internet at home – including evidence specifically excluded by the judge.

It might have been expected that the juror in question would simply have been discharged and the verdict left to the remaining 11. However, when the judge conducted his inquiries, he discovered nine of the 12 had been at it. The retrial is due to begin today, so the judge declined to comment.

The defence attorney, Peter Raben, is similarly constrained from discussing the detail of the first trial. However, he is in no doubt that legal academics will swarm around the issue. It is less clear that they will alight on a simple solution.

"Some courts confiscate phones and iPods and other electrical equipment on arrival. But there is no way to monitor what jurors do at home," Mr Raben said.

"The reality is that this has probably been going on for years and it would be an unusual juror who doesn't know how to ask Google for the answer to any question about the case unfolding in front of them. Modern technology is intruding into an antiquated system and we don't know what to do. Judges have always warned juries they should reach a decision purely on the evidence led in the course of the trial. Previously we sort of expected jurors would pretty well do what they were told. We can't assume that any more."

As news of the Florida case spread, others came to light – not only jurors checking evidence but also publishing blogs in the course of a trial and promiscuously Twittering. In the US state of Arkansas, a building products company asked a court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

Defence lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J Fumo, demanded the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers a "big announcement" was coming. The judge decided to let the trial continue. The jury found Fumo guilty but his lawyers plan to use the internet postings as grounds for appeal.

The internet is causing concern in Scotland. Donald Findlay, QC, says it is "the most serious issue affecting our criminal justice system. It is obvious that jurors Google the name of the accused when they get home. Not only will they find out previous convictions and other prejudicial material, but they will also be able to access information that is at entirely false."

In serious cases, where there isn't an immediate arrest, there may be weeks or months of commentary on the investigation and speculation on evidence that turns out to be incorrect. But no-one weeds the internet to remove errors.

Mr McBride says: "We all know there's an issue, especially in the most serious cases. I tried to raise it in the Nat Fraser case. There were sites on the internet that purported to give details of the murder of his wife. The judge thought it sufficient to instruct the jury to disregard everything they might read and consider only the evidence presented in court."

Solicitor John Keenan recalls a High Court trial involving a charge of death by dangerous driving, in which copies of extracts from the Highway Code had been printed off from the internet and left in the jury room. "We agreed that as far as the issues to be resolved in the trial were concerned, the fact that someone had taken it on themselves, probably in good faith, to discover some evidence of his or her own was unlikely to affect the outcome. The trial continued with a warning by the judge to the jury to stick to the evidence.

"But what if the information had been incorrect or the action hadn't been in good faith but because the juror was partial and seeking to influence the others? It's a bit of a mess right now," he said.

It is believed there is a case under consideration by the Scottish Criminal Case Review Commission after a juror alleged that a fellow member had admitted conducting internet research on the case.

Advocate Keith Stewart said: "The problem is really an updating of one which has existed ever since it became the norm for trials to run over more than one day, and it ceased to be the norm for juries to be sequestered in hotels during the course of the evidence. In such circumstances, there was no guarantee that jurors could not speak to people outwith the jury, or make unauthorised locus inspections. The only safeguard is the admonition of the judge against such conduct."

But is that enough? Paul McBride said: "If we can't control the internet, we may have to consider in the most serious cases bringing back sequestration of juries. First, we have to stop pretending this isn't an issue worth worrying about."

Lydia · Joined: 06 Nov 2008 Posts: 82

The biggest problem with a juror looking for the answer online is that it may not be true or it may not be relevant. This may also be considered true of the evidence presented to a juror but if it has been openly used in a court then at least the person would have the right of appeal.

Something put into the head of someone who decides to google for information is not the way to decide a case. They may base their decision on this information. Maybe the answer is to put juries into jury accommodation no phones no access to Internet.
The cost would rise but it is possibly the only way to ensure a fair trial. This would also stop jury tampering.
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We are the parents in Scotland denied justice for our children who had illegal post mortem's or had organs removed illegally at post mortem.

scotkaz · Joined: 28 Aug 2008 Posts: 526

Much of the problem is that the media is allowed to print all sorts of details of cases without being watched over. They interview witnesses and the victim many times and sometimes photographs of injuries of victims are printed. The accused is many times villified by media and then by the public prior to the trial. See Luke Mitchell and Nat Fraser cases for examples of trial by media.

We have to remember that there are people who still believe everything they read in the media.

Many people including myself have googled names of cases and found out all sorts of information via media stories. Then we discover that much of the information is wrong and simply media sensationalism.

So people can google a high profile case, see it on the news and in the papers prior to any trial taking place.

Perhaps if the Crown was more open with cases then these errors that are made consistently can be corrected.

However, how many judges and prosecutors use this means of getting information on the accused or to help their case?

It works both ways and I do not see how it can be monitered unless juries are sequestered, which would probably be impractical for long trials.

I know that in the Kenny Richey case that when his case was in the Federal court of appeal, it became clear that the Judge ruling on the appeal had googled arson investigators to try to back up the prosecution case. This became clear once I recieved the appeal denial when she had quoted two experts, one of whom I knew who supported Kenny's case and she quoted him and the other man in the appeal as reasons to deny the appeal without their permission, from articles they wrote about arson.

What she was doing and it would maybe have gone unoticed had she not used someone I knew, was to bring in general expert opinion on what she thought proved arson. She brought in two experts who were not part of the court record. This of course backfired on her big time and allowed us to use the expert back at her.

The fact is that a judge is not an expert in arson or anything else other than what his/her own job is and should not be doing this either.

Lydia · Joined: 06 Nov 2008 Posts: 82

Scotkaz

I agree with everything you say on this issue and strangely I was looking back at the Nat Frazer case today and coming slowly to the opinion that so much of this case is based on he said she said and the evidence of someone it seems was set Free to give the evidence. No real evidence, but then I was reading media reports so am I right. I have not read the court transcripts and so I cannot truly come to a decision which is what this argument is all about. The media has a lot to answer for. Surely a case exists for no reporting until after the trial to ensure a clean jury.
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We are the parents in Scotland denied justice for our children who had illegal post mortem's or had organs removed illegally at post mortem.

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Lydia

Lydia · Joined: 06 Nov 2008 Posts: 82

In many cases where the law is broken, a few well publicised cases and the person sent to prison can do the trick. For instance just the suggestion of a mother sent to prison for breaking a contact order improved the situation dramatically for a while.

This is different. It would take jurors to report jurors who were not using the evidence presented in court to come to their decision. That will never happen so the only real alternative is to keep juries until the trial is over.

I can see no other alternative but even this would take the judiciary taking note of the problem and I doubt that will happen because they do not want to and the expense would be enormous. What price justice?
_________________
We are the parents in Scotland denied justice for our children who had illegal post mortem's or had organs removed illegally at post mortem.

kevin donald · Joined: 29 Oct 2007 Posts: 196

Fraser appeal for leave to appeal to the Privy council..

http://www.scotcourts.gov.uk/opinions/2009HCJAC27.html

david · Joined: 01 Mar 2009 Posts: 52 Location: edinburgh

Any juror impropriety, whether it being internet use, going on a frolic of their own or bringing evidence into court outwith the trial, should constitute a clear Miscarriage of Justice.

It seems to me from looking at recent appeal decisons and from personal experience that judges in the Appeal Court simply don't take jury impropriety seriously enough. These 15 people are convicting people and any impropriety should be treated very seriously. What is the point in judges directing jurors etc for them to simply disregard these directions and do the opposite.

A jury breach of oath should guarantee an Apellant atleast a re-trial. Instead judges in the appeal court are looking behind and beyond these grounds and concluding that if it did'nt prejudice the trial then it is ok. What is the point in giving jury members directions then. A judge tells them to decide the trial on the evidence heard in court. An appellant finds out a juror breached that direction and takes the ground to the appeal Court. Appeal judges then decide its ok to breach that dirtection because they feel there was no prejudice. WHAT IS THE POINT IN DIRECTIONS BY TRIAL JUDGES.

Judges at trial are intimating that no breaches of the jury oath will be tolerated and yet their friends in the appeal Court are stating it is OK to breach the jury oath.

Complete shambles

David

Angeline · Joined: 02 Oct 2008 Posts: 146

The judge in the Sion Jenkins case was absolutely certain on this one.

He demanded that a website supporting Sion's case be closed down before Sion was granted bail pending the second trial (even though Sion himself had nothing to do with the site) in case jurors accessed it.

Funny old world, isn't it? They dither and dally over allowing jurors internet access to information that will, most probably, be detrimental to the accused, but come down like a ton of bricks on information which may dispose the jury favourably towards the accused.

Sheer hypocrisy and, in truth, an absolute farce.

Just to give a little flavour here of the damage that can be done (I'm breaking no confidences here - I have permission to post this) - in the Luke Mitchell case, it became "common knowledge" that his brother had spent some time in a mental hospital. Common, perhaps, but completely wrong - his brother has never, ever been anywhere near a mental hospital, although Jodi's brother had.

A psychologist/social worker who was asked to do a report on Luke's psychological/social background started on the basis that his brother had spent time in a mental hospital, and wrote her report accordingly.

Fortunately, this came to the family's attention before it reached the court. When asked why she had included such completely false information, she admitted that she had "read it" - presumably whilst doing some background research of her own.

If the experts can get it so horribly wrong by using "information" in the public domain, then I think we have to conclude jurors will do the same.
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As long as one heart still holds on, then hope will never really be gone

scotkaz · Joined: 28 Aug 2008 Posts: 526

I have been studying Nat Frasers case online for the past three days. And I have still not finished reading the articles and info online. There is so much dating back to as far as when Arlene went missing in 1998 till present day of course.

There cannot be a person in Scotland who did not know something about his case. So how on earth can they get an impartial jury in a situation like this?

Do juries here in Scotland get asked if they have read or heard anything about the case prior to being selected?

There was so much wrong information in many of these news articles, like Angeline said happened in the Luke Mitchell case. I do remember the media hype surrounding his case too prior to him even being arrested, just like in Fraser's case.