Regional senior justices must immediately issue a practice direction to keep jurors from conducting their own research using new communications tools and avoid havoc recently seen in U.S. courts, says a Toronto criminal defence lawyer.
"What's at stake here is the integrity of the jury trial system, and the foundational notion that an accused has a right to a trial based on the evidence presented in a courtroom before 12 independent, impartial arbiters of the facts," says Toronto criminal defence lawyer Adam Boni.
Lawyers last week reacted to U.S. news reports of what have been dubbed "Google mistrials" - cases in which jurors have been compiling and disseminating information on cases via BlackBerrys and iPhones, contrary to their legal obligations.
Recent incidents include a federal drug trial in Florida in which nine jurors went against a judge's orders and did their own Internet research, an Arkansas civil trial involving a $12.6-million judgment in which a juror was accused of using Twitter to send updates, and a Pennsylvania political corruption trial in which a juror is accused of posting newsflashes on Facebook and Twitter.
The Florida case was the only incident to lead to a mistrial, but it's clear that ubiquitous new communications tools may be throwing a wrench into established jury rules. However, many of the lawyers Law Times spoke with suggest it would be impossible to police and enforce stricter rules, and that it's best to trust that jurors are following court orders.
But Boni says members of Canada's legal community cannot simply shrug off the issue.
"The apparent problem in the U.S. should be ringing alarm bells in Canadian courtrooms," says Boni, who is a regional director for Toronto with the Criminal Lawyers' Association. "I think this is a classic example of how technological advances can outpace developments in the administration of justice."
Boni says the reports have "taken everybody by surprise," and that lawyers simply assume jurors will follow instructions.
"I think we tend to downplay the impact of this technology on non-lawyers," he says.
"What it demonstrates is that human curiosity and our modern-day addiction to instantaneous information needs to be acknowledged in a very serious way."
If jurors are searching the Internet for news reports that might include excluded evidence, a fundamental right has been jeopardized, says Boni. He says the possible trend could become "corrosive to the right to a fair trial."
Boni says trial judges and lawyers must tackle the issue before it grabs hold in courts here. He suggests the following measures:
• judges and lawyers should discuss specific instructions for jurors during pre-charge conferences, and make clear the prohibition on Internet searches;
• judges must explain to jurors the reasons for the prohibition, including the fact that evidence in a trial is vetted by counsel and the court to ensure credibility, reliability, and fairness; and
• an immediate practice direction should be issued by regional senior justices on how trial judges ought to deal with this issue in the charge to the jury.
Boni says the latter recommendation should lead to the adoption of a uniform code of practice "without delay."
"What we don't want is a patchwork of different approaches to the issue," he says.
Boni says that in exceptional cases, jurors' Internet-capable cellphones should be confiscated, and that jurors should be sequestered in some instances.
"It would be a shame if it had to get to that point," he says. "A lot of people would find those steps to be draconian, however, this behaviour has to be curbed, because it is truly threatening to the credibility of a jury verdict."
Criminal lawyer Andras Schreck of Schreck & Greene Barristers in Toronto says he has never encountered a "Google mistrial" in his practice. He notes that while jurors in the U.S. are permitted to and often make a point of discussing their deliberations following a decision, doing so is illegal in Canada.
There is a strong presumption in Canadian courts, says Schreck, that jurors will follow their instructions. But he concedes that it's impossible to know whether that presumption holds water, as jury secrecy rules prevent any "meaningful research" into how juries operate.
He says while judges may provide specific instructions that jurors not search the Internet, it is "really hard to discover" such abuses unless a juror admits to it.
"If the jury doesn't want to obey [instructions] there's not a whole lot you can do about it," says Schreck. "I mean, you can take away their BlackBerrys, but the juror can go home and get his wife's BlackBerry, go on his computer at home and do his Google search."
He suggests that sequestering jurors is "just not practical, I don't think. It would be costly and it would also cause a real hardship to the jurors, especially in long trials."
Adds Schreck: "I'm not sure what anyone can do about it, other than for the trial judge to really drive home to the jury that they shouldn't do this, and explain the reason why they shouldn't do it."
Criminal lawyer Peter Zaduk says he often assumes during jury trials that jurors are conducting Internet research. He suggests that publication bans are ineffective because many web sites that include relevant information originate from other countries and can't be monitored.
He concedes that the only protection against such activity is a judge's order that jurors not look at newspapers and web sites.
"Curiosity being curiosity, you wonder how effective that would be," says Zaduk.
Boni says the issue highlights the need for proper jury monitoring by court officials.
"Otherwise what we're going to end up with is a degree of uncertainty surrounding jury verdicts that will totally undermine the validity and integrity of verdicts, and we can't afford that," he says.
"From a pure cost perspective, we cannot afford for this to become the next flavour of the month in our Court of Appeal."