Bruce Lehrmann trial outcome of mistrial exposes jury system flaws

The trial was aborted when it was found a juror had done some internet searching and brought the results back into the jury room.

Nothing could be more prejudicial or unfair to a defendant (or, indeed, the prosecution) in a criminal trial than a juror going on a frolic of their own digging stuff up on the internet and distributing it among other jurors.

It was especially egregious in this case because the jury had been deliberating for nearly a week without a result.

We can only speculate because the law has put the goings on in the jury room beyond public scrutiny, but it seems possible that one or more jurors were holding out and needed some "convincing".

That convincing should be done with reference only to the evidence given in court and arguments by the lawyers and instructions to the jury by the judge.

That evidence is presented according to the rules of evidence which have been developed to protect the accused against unfairness and prejudice.

And as we all know the internet is laced with prejudice and unfairness.

Among other things, those rules require the evidence to be admissible, and a critical test for admissibility is relevance. Once evidence is admitted, the accused must be given the right to test it through cross-examination.

As a general rule evidence must be direct. If I say Smith told me he saw XYZ, that is not admissible evidence of the fact of XYZ. It is hearsay.

You have to bring Smith to court to say he saw XYZ to have evidence of XYZ.

You cannot bring evidence of past convictions or past charges (with some very narrow exceptions).

Again, the internet is laced with hearsay and reports of prior convictions. I hasten to say there is no suggestion of prior convictions in the Lehrmann case.

I am just illustrating the general point about the menace the internet poses to jury trials.

However, we do know that material from the internet was brought into the jury room. It obviously was not subject to challenge for either its admissibility or credibility.

As the judge, Chief Justice Lucy McCallum, said, the danger of prejudice could not be overcome with warnings from the judge. You simply cannot unsee this stuff, at least not without significant legal training and experience.

Short of locking juries up away from internet access, it is difficult to stop jurors doing their own internet "research".

Warnings from the judge are obviously a help but they are not a guarantee.

However, there is a kind of self-policing. Lone-wolf internet searches remain just that and can only influence one juror who is probably already beyond reasonable persuasion anyway, until the lone-wolf communicates it to other jurors. And when that happens it is almost inevitable that one or more of the other jurors will tell the judge. By then, of course, the damage is done.

The judge can hold the juror in contempt and impose a jail term or fine, and probably should do so.

This rogue juror has caused a lot of costly damage, not least to the complainant who will have to give her evidence again and to the accused who will have the case unresolved for longer than necessary.

This case adds to the argument that at the very least anonymised research should be allowed into the jury process so we can at least see whether it is working satisfactorily.

Even without that research, there is a good case for abolishing jury trials. The most damning thing about jury trials is that they do not have to give reasons.

How can that be fair to any accused? Moreover, the mystical reverence for jury verdicts makes appeals against them extremely difficult.

Just because something has been around a long time does not make it correct. The earth is not flat.

Modern psychology tells us that the evolved human need and desire to belong results in group think and that a strong if flawed character can lead people to all sorts of irrational ideas and actions.

Trump and January 6 is a good example.

Would you ever get a unanimous jury verdict if each juror heard and decided the case alone? I doubt it.

The rules of evidence are so strict in criminal cases to guard against unfairness and prejudice.

The guard has to be there because most of the people plucked off the street to do jury duty are so susceptible to drawing prejudiced and unfair conclusions.

On the other hand, when criminal cases are heard by one or three judges, the possibility of prejudice is reduced and in any event is easily exposed because they have to give reasons.

And in such trials, there are no mistrials because of exposure to prejudicial material and, obviously, there are no hung juries.

MORE COVERAGE OF THE TRIAL: