By Mathew Drogemuller and Ugur Nedim
Juries don’t always follow the rules.
In fact, jury nullification – where a jury goes against the evidence and acquits a defendant – has been a contentious issue among legal scholars for centuries.
There are certain laws of evidence which apply to criminal trials. These rules aim to ensure that information before the fact-finder (eg the jury) is relevant and admissible, and that irrelevant or unfairly prejudicial material is excluded.
The danger of jurors “Googling” information about defendants is that they may come across information that is irrelevant or just plain inaccurate. That information may nevertheless influence a juror’s view– when they should only be considering information that has been subjected to the checks and balances of evidence law.
For that reason, jurors are directed not to make independent inquiries about the case they are deciding.
In a recent South Australian case, a male and female juror ignored this important rule and took to Google for information about three defendants on trial before them for charges of blackmail.
Through their searches, they discovered the defendants had previously been suspected of “bikie related offences”.
The judge was informed of the searches part-way through the trial, and the proceedings were declared a mistrial as a result.
Both jurors were prosecuted and brought before the Supreme Court, where they were handed fines of $3,000 each. The sentencing judge described their conduct as “serious” in light of the “express direction” that they refrain from conducting outside searches.
It was the third time a mistrial had been declared in the case, prompting the defendants to be allowed a judge-alone trial. All three were subsequently acquitted of the charges.
Jury of One’s Peers
An important principle of the Australian criminal justice system is that every accused person before the higher courts has the right to be tried by a “jury of his or her peers”.
However, as discussed in a previous blog, the fact that jury panels are selected from the electoral role, and that both the prosecution and defence can “challenge” (remove) three jurors each often means that defendants from minority groups are left to face juries which are entirely or overwhelmingly “Caucasian” citizens.
Indeed, unscrupulous prosecutors will often challenge jurors who are from the same (or similar) minority groups as defendants, leaving them to be tried by anything but a jury of their own peers.
Another important legal principle is that a person’s past crimes should not ordinarily be used to suggest guilt in the present. This is why information about past crimes is not ordinarily put before juries, and a reason for the rule against making independent inquiries outside the courtroom.
However, there are exceptions to the rule against the admissibility of past crimes – including where they are so similar to the present allegations that they are highly relevant.
This exception is contained in the “tendency rule”.
There is one stage where a person’s past crimes are often highly relevant.
That stage is “sentencing” – when a person who has pleaded guilty or been found guilty comes before a judge or magistrate to receive their penalty.
Past crimes (or a lack thereof) and a whole host of other factors are taken into account when determining the penalty that a person ultimately receives.
In that way, evidence of past convictions can play an important role in criminal cases.