Last month, yet another Australian juror caused a mistrial because he looked up the definition of ''beyond reasonable doubt'' on the internet. This juror now faces being charged with a criminal offence. It is commonsense and instinctive to some people to refer to the internet to find an answer to any question. If NSW jurors do this, they can be jailed for up to two years.
An increasing number of trials are aborted because of jurors playing detective. In the US, 21 trials were overturned in 2010 because of such (mis)behaviour. In a New Zealand survey, there were jurors who admitted to doing their own research in more than 10 per cent of the trials. The researchers observed the jurors ''did not seem to appreciate the importance, or did not understand the logic, of restricting themselves to the information presented by the parties and the judge''. The innocent behaviour of the West Australian juror who asked the jury keeper to copy internet maps for his fellow jurors, highlights how logical such behaviour is to jurors. This juror did not regard obtaining maps from the internet as forbidden research. The maps were relevant because there was conflicting evidence about where the victim had been assaulted. The maps showed the alternate crime scene which the map provided by the prosecution did not.
In a knee-jerk response to the rise of the detective juror, the NSW government made it a criminal offence for jurors to do research. No research into the issue was conducted before this law was made. There are three reasons this law is wrong. First, the law has not stopped detective jurors. In the largest Victorian terrorism trial, the jurors were warned five times not to do research. Wikipedia-type internet printouts were found in the jury room. Later in that trial, a dictionary was found in the jury room. Even though the jury had blatantly defied the law, none of those jurors have been charged. And nor should they be. The average juror of the 21st century is well educated and capable of using a dictionary appropriately.
Secondly, this law is likely to undermine the most powerful weapon we have to rein in jury sleuthing. Errors made by one juror are frequently corrected by others. If a detective juror attempts to share illicit information with fellow jurors, another juror is likely to stop it and may even report it to the judge. However, fellow jurors are discouraged from reporting detective jurors if they think that the juror will go to jail. In a NSW trial, two independent witnesses reported that a juror had contacted a journalist and some jurors were planning to visit the crime scene. When questioned under oath, not one of the 12 jurors ''dobbed'' on their own.
Thirdly, by punishing detective jurors the law operates against the spirit of encouraging citizens to do their civic duty to the best of their ability. As one juror who conducted a private view explained: ''I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right.'' Rather than punishing jurors, we should be considering why jurors are doing their own research and respond to their needs. While jurors generally follow judicial instructions, the fact they are defying ''don't search'' instructions suggests the trial process is letting them down.
In a study of ''don't research'' instructions, the researchers analysed judicial instructions in 10 NSW trials. They concluded that ''no trial judge provided a completely comprehensive explanation of the personal and procedural consequences should a juror disregard their direction against investigation''. Given that jurors can be imprisoned for doing their own research, jurors deserve a thorough explanation of why they should resist their instincts to use the internet.
Questions in the minds of the jurors should be channelled away from Google and back into the courtroom. It is far less intimidating for jurors to ask a question on Google than it is to submit it to the court. Some jurors wrongly perceive that they have no right to ask questions in the trial. Few judges encourage juror questions. The jury should also be given a bigger voice in the courtroom. Juror questions, via the judge, should be better facilitated.
Digital technology has turbo- charged the detective juror so the jury system needs to change to accommodate contemporary conditions. Providing explanations and allowing jurors to ask questions are two small ways in which we can begin to re-think the jury system so it continues to thrive. Jurors should never be threatened with jail solely because the legal system has failed to move with the times.
Jacqueline Horan is an academic at the Melbourne Law School.