Juries in an age of trial by media

By Greg Barns

Can juries really be impartial on high profile cases when they are saturated by the media with information, opinion and propaganda about the people they are judging?

Trial by media is the catch cry of high-profile defendants in those countries that have inherited the system of trial by jury from England, such as Australia, the US and the UK itself. And rightly so because the saturation of negative media in the lead up to an accused person entering the dock as a defendant is a dangerous reality.

Cases such as that of former Catholic Archbishop of Melbourne George Pell, who was the subject of an extraordinary level of unrelenting media attacks before he stood trial in Melbourne’s County Court in 2018-19 is one particularly notable example. And if the United States is successful in extraditing WikiLeaks founder Julian Assange from the UK to face a court in eastern Virginia, he too will face the possibility that a jury will come to the case with preconceived ideas.   

The right to a fair trial is fundamental. It is expressed in Article 14 of the International Covenant on Civil and Political Rights. But the question we need to ask in countries like Australia and other jurisdictions that use juries in criminal cases is whether or not there are some cases which should not be left to that process. In high profile cases, 24/7 media and the rise of social media make it dangerous to assume that a trial is fair.

Trial by media is not confined to negative portrayal of an accused person, which potential jurors read, watch and hear about before they sit in judgment on that person. It also includes the practice of jurors resorting to the media during a trial.

Back in February 2013, a survey of Australian judges, magistrates, court administrators and other stakeholders identified the potential for juries to misuse social media during trials as, by far, the single most significant challenge that this new media poses to the courts. In 2010, Reuters Legal, using data from the Westlaw online research service, compiled a tally of reported US decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the internet. They identified at least 90 verdicts between 1999 and 2010 that were challenged due to juror internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period. The Law Commission identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved internet access or social media use.

As the UK Court of Appeal put it in 2005, when jurors resort to social media they contravene two principles of the rule of law:

“The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; … [and] the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial.”

Let’s return to the Pell case because it exemplifies the concern about trial by media.

Pell became for media the personification of the arrogance of the Catholic Church in its dealing with chronic institutional sexual abuse. He had given evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse. It is fair to say there would be few in the community who had not read, heard, watched or even discussed Pell and his role in the church’s responses.

One will never know whether the jurors in the Pell case were influenced by the negative media. This does not mean they did not undertake their task to the best of their ability and with good conscience. But is it good enough to work on the hunch that a person’s liberty and reputation should be in the hands of 12 individuals about whom nothing is known, and in circumstances where no reasons have to be provided as to why they find a person guilty or not guilty? This is a point made often by Malcolm McCusker QC, a leading West Australian barrister and former governor of that state. As McCusker has noted: 

“In this day and age there is a demand for what is popularly called ‘transparency.’ Yet the deliberations of juries, and their reasons for a verdict, are shrouded in total secrecy. Not only do juries not give reasons, but they are not permitted to do so. Hence, to appeal against a jury’s verdict is extremely difficult.” 

A similar point can be made about the Assange case. Is it in any way realistic to accept that jurors in eastern Virginia where Assange would be tried, could put out of their minds the extreme loathing and propaganda that the United States and its media allies have pumped out for a decade about the WikiLeaks founder? Only a deluded optimist could think it likely he would get a fair trial.

As we know, the rapid growth and use of technology within society has been accompanied by an increased dependency on social media. There are around 22 million internet users in Australia, constituting almost 90% of the Australian population and over 9 in 10 Australians use the internet daily. This almost-saturation level usage in the community highlights an urgent need to develop solutions to internet-related misconduct — widely believed to be on the rise — if a defendant’s right to a fair and impartial jury trial is to be safeguarded. The most obvious solution would be for every Australian, irrespective of where they live, to be entitled to the choice of a trial by judge alone or trial by jury.  

A move to allow all Australians the right to trial by judge alone will require a constitutional amendment for Commonwealth offences. This is because the High Court has said that there is no capacity for judge alone trials given the Constitution declares, at section 80, that “[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury.” In other words, if a person is charged with a Commonwealth offence they must be tried by a judge and jury even if they live in a jurisdiction where trial by judge alone is allowed.

Given the increasing recognition of the problematic nature of juries in the 21st century, this is one referendum question that is likely to garner the support of at least four states and 50 percent plus one of the national vote.

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