Jurors and contempt of court
Jurors accessing information
5.4Jurors do sometimes actively seek out information. Examples from cases illustrate that jurors have sometimes undertaken their own investigations or searched for information on the defendant or other parties. Jurors have, in the past, visited the scene of the crime and conducted experiments to determine how long a car engine takes to cool down or how much cocaine could be secreted in shoes. Jurors have also asked chemists questions about the availability and price of ephedrine. More recently in one reported case, printouts containing definitions of “burden of proof” and “beyond a reasonable doubt” were found in the jury room. The material was from the United States and so did not accurately reflect New Zealand law.
5.5The Internet unquestioningly exacerbates the potential for jurors to undertake their own research. People can find relevant information far more readily than ever before. A juror no longer needs to visit a crime scene physically but can instead do that virtually through Google Earth without leaving home. There is now no need for a juror to go to a pharmacy to check the price of a drug, as this can be done on the Internet. The breadth of information that is available, and the ease with which it can be accessed, provides jurors with a tantalising array of material at their fingertips.
5.6Even if jurors do not actively seek out news coverage or other information on the Internet, there is a reasonable likelihood that, in high-profile cases, some jurors will come to their task with some previous knowledge of the case gleaned by exposure either through mainstream media or social media.
5.7These problems are compounded when a juror who accesses extraneous material outside of the court then shares it with fellow jurors, contaminating them also.
Current law and approach
Pretrial publicity, jury selection and questioning
5.8The potential effect of pretrial exposure to information is addressed during the jury selection process, and jurors are given an opportunity to disqualify themselves where they have prior knowledge of the case that may influence them. Directions are given to the jury panel that emphasise the importance of impartiality where there has been a lot of publicity relating to the case.
5.9The trial judge will normally invite any person on the panel to seek to be excused if the person feels unable to discharge their obligation to try the case only on the evidence presented to them in the course of the trial. Jurors are normally asked to approach the judge if they know anyone connected with the case or feel unable to decide the case impartially between the parties.
5.10In New Zealand, jurors can be challenged for cause, although this is rarely done in practice. The courts only allow questioning of jurors to elicit information that may be used as a basis for a challenge for cause in exceptional cases. The Court of Appeal in Gisborne Herald Co Ltd v Solicitor-General stated that enhanced control over the jury selection process and the cross-examination of prospective jurors about their views and beliefs is generally undesirable.
5.11However, more recently, where there has been significant pretrial publicity, the courts have adopted a more interventionist approach to jury empanelling. There seems to be something of a move towards more actively questioning jurors during empanelling. For example, the empanelling process for the Rūātoki raid case, Iti v R, was described by the Court of Appeal:
Before the jury was empanelled, we understand they were told of the subject matter of the trial and directed to advise the Judge if as a result of what they had read or heard or opinions they had formed, they doubted their ability to try the case fairly on the evidence. We accept that not all potential jurors may have recognised what may well be unconscious prejudice. However, significant numbers did. We were told that about 60 persons sought to be, and were, excused. Even after the panel was selected and retired, we understand that at least one more came forward and withdrew.
Similar approaches have been taken in many other high-profile cases.
5.12These cases indicate an increasing willingness to use the jury empanelling process to screen jurors to help mitigate the risk of predetermination arising from pretrial publicity.
Jurors undertaking research
5.13If jurors search for information on the Internet or otherwise research or investigate the case they are trying, they are potentially in contempt of court. The position is not entirely clear, but it is likely that research by a juror in breach of directions of the trial judge amounts to contempt of court under the common law. The issue has not been tested in New Zealand.
United Kingdom – common law contempt
5.14In the United Kingdom, there have been a number of cases where jurors have been prosecuted for contempt of court for searching for information on the Internet. In Attorney-General v Dallas (Dallas), the Lord Chief Justice explained why research by a juror is a contempt of court:
[T]he defendant knew perfectly well: first, that the judge had directed her, and other members of the jury, in unequivocal terms, that they should not seek information about the case from the Internet; secondly, that the defendant appreciated that this was an order; and, thirdly, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice.
He then concluded that: “[m]isuse of the Internet by a juror is always a more serious irregularity, and an effective custodial sentence is virtually inevitable”. The juror was sentenced to six months’ imprisonment.
5.15There may be some doubt as to whether misuse of the Internet for research by a juror is a contempt by its own nature or only because it is a breach of the direction not to do it that is given by the judge at the beginning of the trial. The decision in Dallas suggests that the relevant conduct is treated as contempt because it is a breach of the order made by the judge at the start of the trial instructing jurors not to undertake research into the case that they are trying. However, a more recent United Kingdom decision in Attorney-General v Davey and Attorney-General v Beard arguably implies that such conduct is both a breach of the direction, and of itself common law contempt, because it is conduct that specifically interferes with the administration of justice.
Section 365 of the Criminal Procedure Act – statutory contempt
5.16In situations where a trial judge gives jurors an express direction that they must not undertake their own research or seek out information about the case, section 365(1)(c) of the Criminal Procedure Act 2011 applies. It is contempt of court under section 365(1)(c) where any person, including a juror, “wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings”. The maximum sentence under the provision is a fine of $1,000 or three months’ imprisonment.
5.17Juries are routinely directed that they must decide the case on the evidence presented to them in court. However, the content of such directions is a matter for the individual judge to determine. The Criminal Jury Trials Bench Book, which provides guidance to judges on such matters, refers to advising jurors that they are not to undertake their own inquiries or experiments. However, whether a trial judge expressly refers to researching or Googling on the Internet and how much emphasis he or she places on this issue is not prescribed. We understand that approaches vary somewhat between judges.
Juror preparation and instruction
5.18Jurors are given written information and other instructions by the Ministry of Justice before they are empanelled. Jury service information provided to potential jurors when summonsed states that jurors must not make their own enquiries about the case. It says that they may not use the Internet to search the names of people or locations involved in the case or visit the location where the offence occurred unless this is officially arranged by the court. It also advises that they avoid listening to or reading news reports and media comments about the trial when they leave court. A video presentation made to the jury panel prior to empanelling tells jurors that they must not make their own inquiries, such as researching information about the defendant or going to visit a crime scene.
What are the problems?Top
5.19The main problem is obviously the risk that jurors accessing and sharing extraneous material with other jurors pose to the defendant’s right to a fair trial. A person should not be convicted on the basis of secret evidence that he or she knows nothing about. Independent access to extraneous information also raises problems in relation to the laws of evidence. There are some pieces of evidence that a judge may determine are so unfairly prejudicial that they should not be placed before a jury. A classic example of this is a defendant’s prior convictions. The rules of evidence are undermined if jurors access information that a court has ruled inadmissible.
5.20Importantly, there is also a very real risk that jurors may make mistakes. It is not inconceivable that a juror looking up the name of a defendant, for example, “David Smith”, could find criminal history information for another “David Smith” and not realise their mistake. Also, whatever a juror reads or finds on the Internet may not be at all accurate. People are free to exercise their freedom of expression by publishing things that are “extreme, false, misleading and/or offensive” on the Internet.
5.21If jurors break the rules and look at extraneous material, the trial may also be put at risk, particularly where such material has been shared and has contaminated the entire jury. A judge may have no option but to discharge the jury and abort the trial. There are significant resourcing implications for the state whenever a jury is discharged and a trial abandoned part-way through. A retrial is costly and time consuming. It also impacts upon victims and other witnesses who will have to give evidence and endure the stress and inconvenience of a trial all over again.
5.22Where a verdict has been given and it subsequently becomes apparent that extraneous information was accessed by jurors, that may necessitate a retrial. Public confidence in the administration of justice and in the jury system and courts may be adversely affected in all such situations.
5.23In addition to these problems, there is also a degree of uncertainty over what conduct by jurors in this context amounts to contempt of court. Whether section 365(1)(c) of the Criminal Procedure Act applies or not depends on the clarity of the directions given by the judge at trial. There is not currently consistency in terms of the warning given to jurors at the start of the trial. If jurors are at risk of being held in contempt of court and potentially punished, that should be made clear to them at the outset, and they should be given clear instructions on what is not permitted.
How prevalent are the problems likely to become?Top
5.24The extent to which extraneous material is being considered and discussed covertly by jurors and the influence it may be having is unlikely to ever be fully known. For the important public policy reasons discussed later in the chapter, jury deliberations are kept secret.
5.25We do not have a very clear picture as to how prevalent the problem of jurors accessing extraneous material really is at present in New Zealand. Some empirical research has been undertaken in New Zealand in the past and in other common law jurisdictions. The most recent research from the United Kingdom indicates there is a growing problem. Currently, other common law jurisdictions are also grappling with the impact the Internet is having in this area.
5.26In 1998, research was undertaken by Warren Young, Neil Cameron and Yvette Tinsley from Victoria University for the Law Commission project Juries in Criminal Trials. The researchers interviewed 312 jurors from 48 trials and found that, in five of the trials, jurors had made external inquiries such as visiting the crime scene or bringing explanatory brochures into the jury room. In addition to this, the summary of research findings noted:
[J]urors not infrequently attempted to obtain additional information on the law, particularly during the trial itself – for example, by looking up definitions of key terminology in the dictionary or taking a legal textbook … into the jury room.
These 1998 findings probably under-represent the extent to which jurors in New Zealand now turn to the Internet to find information during a trial. The interviews are over 15 years old, and the use of the Internet is far more entrenched and prevalent today.
5.27In a 2010 United Kingdom study undertaken by Cheryl Thomas, 668 jurors were interviewed from 62 cases. Five per cent of the jurors said they looked for information on the Internet, and 13 per cent claimed to have seen reports on the Internet during the trial. When high-profile cases were isolated, the numbers rose to 12 per cent and 26 per cent respectively. Thomas noted that:
[I]t should be borne in mind that [the jurors] were being asked to admit to doing something they may have remembered being told not to do by the judge. As a result the figures may reflect the minimum numbers of jurors who looked for information on the Internet during cases.
In follow-up work in 2013, Thomas found that 23 per cent of jurors questioned were “confused about the rule on Internet use”. Seven per cent of jurors admitted looking for information about the legal teams involved in their trial, and six per cent admitted to looking for definitions of legal terms.
5.28The effect of pretrial publicity on jurors was considered by Young, Cameron and Tinsley in 1998. They found the following:
- Very few of the jurors who were aware of the pretrial publicity had more than a hazy recollection of the bare essentials of the incident.
- Very few jurors described what they knew of the case from pretrial publicity in terms that indicated an element of prejudgment.
- Even if an individual juror referred to pretrial, this did not necessarily impact on the eventual verdict. For instance, in one case, a juror referred to extraneous material but was “told by other jurors that they did not want to know about that”.
5.29Thomas, in the United Kingdom, also looked into the question of juries recalling media coverage. Generally, she concluded that, in high-profile cases, juries were more likely to recall media coverage and that most jurors encountered some coverage during the trial. Thomas suggests that pretrial publicity may well have more influence than was previously thought. The research found that, in cases that were categorised as high profile, 20 per cent of the jurors who recalled media reports of their cases “said they found it difficult to put these reports out of their mind while serving as a juror”. The report also notes, however, that less than half those jurors (43 per cent) could identify a particular emphasis in the media reports. Of those that did remember an emphasis, almost all (89 per cent) remembered the coverage as suggesting the defendant was guilty.
5.30Because there appeared to be little up-to-date information on possible use of the Internet by jurors and its consequences in New Zealand, we undertook a survey of jury warranted judges sitting in the District Court who regularly undertake jury trials. Of the 59 of the 94 judges with warrants who participated in this survey, 58 per cent said they had never had reason to believe that jurors had used the Internet for information sources, and just over 29 per cent thought that it had happened once or twice. Just over 10 per cent considered they had reason to believe or had suspected that a juror may have used the Internet in some cases. Only one respondent thought it happened in the majority of cases.
5.31In cases where use had been detected, the most prevalent reasons for that coming to notice were either from material left in the jury room or another juror notifying the court staff. Where such instances occurred, the judges who answered this question preferred to interview the juror involved to determine what had happened and why and then to discuss the matter with counsel before determining how to proceed. In those cases where Internet use was detected, judges often considered that the issue could be dealt with by a direction to the jury rather than by discharging the juror or abandoning the trial. However, sometimes a juror was dismissed by the judge or the trial was abandoned as a result of juror research.
5.32The survey indicates to us that the issue is not unduly problematic at this stage.
What are the options for addressing the problems?Top
5.33It is unrealistic to expect to hold back the tide of information and completely shield the jury from external information. Short of physically sequestering jurors in a technology-free bubble for the duration of a trial, this is simply not possible. The traditional conception of a “pure” jury, where jurors have heard nothing about the case except the evidence presented in the courtroom, is increasingly becoming a fiction in the digital age. However, there are a number of measures that might appropriately be adopted to reduce the risk that jurors will access and share external material.
More interactive approach to empanelling jurors
5.34To address the problem that potential jurors may have been exposed to pretrial publicity, the degree of enquiry when empanelling jurors could be enhanced. As discussed already, this has begun to occur in high-profile cases. In one of the Rūātoki raids cases, R v Bailey, Winkelmann J said that, for a fair trial, the judge would tell the jury panel the subject matter of the trial and direct them to advise him or her if they were unsure if they could try the case fairly on the evidence. The type of voir dire process involving cross-examination of jurors, such as is used in the United States and Canada when empanelling jurors, is unlikely to ever find favour in New Zealand. However, the option of expressly addressing pretrial exposure by the trial judge routinely asking potential jurors to individually confirm their ability to try the case fairly on the evidence may be appropriate.
Systematic approach to comprehensive judicial directions
5.35One option for proactively addressing the risk of jurors researching would be to ensure that clear, consistent and comprehensive “do not research” instructions are given in all jury trials. Juries are already routinely directed to decide the case on the evidence put before them in court and to not discuss the case outside of the courtroom or seek out information on the case. As discussed earlier, the Criminal Jury Trials Bench Book has guidelines for trial judges. The form that instructions may take, however, falls to the discretion of the trial judge, so there is not necessarily a consistent approach.
5.36There are differences of opinion on whether juries obey judicial directions. Reliance on directions assumes that jurors are prepared to accept what they are told and disregard extraneous material. It also assumes that jurors are conscious of how extraneous information has influenced them. Critics have labelled judiciaries’ reliance on instructions as “one of the great legal fictions”. Some have even suggested that jurors will almost certainly use any information they perceive to be relevant and useful. Some research indicates that jurors may be unwilling or even unable to set aside information that they regard to be relevant, irrespective of a judicial direction to the contrary, and that rules that eliminate the freedom of jurors to decide matters on their own common-sense view of justice may consequently be resisted.
5.37While some studies confirm that jurors do listen to the judge’s instructions, they also suggest that jurors will defy instructions and do their own research if they feel it will assist them in coming to the right verdict. It was observed in the research undertaken by Young, Cameron and Tinsley for the Law Commission in 1998 that the jurors in the study “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 study found no apparent link between “don’t research” instructions and those jurors who did their own research. Thomas’s recent United Kingdom study has also raised questions as to whether directions really address the impact of prejudicial publicity on jurors.
5.38Taking all of this into account, we think it is important not to place too much reliance on “do not research” directions. Judicial directions must be approached as one of a range of measures. Further, the effectiveness of judicial directions depends on their form, content and timing. Directions need to present the rules as reasonable logical restrictions and provide jurors with a clear explanation of why their decision must be based only on the evidence presented in court. Some trial judges we spoke to have developed their own tailored directions to jurors not to conduct their own research, explaining fully the reasons why they must not do this.
5.39It is also important to consider when and how directions should be conveyed to jurors. The majority of jury instructions are provided at the beginning of the trial, yet this is the time when jurors are most distracted and are settling in and adjusting to the fact they are on the jury and the disruption this may cause them. Jurors may be least likely to fully take on board important rules and information at this stage. While jurors do need to be given the information at the start, later reinforcement is also needed.
5.40Written instructions that jurors may keep and refer to may be more effective. One important point that must be covered is just what is meant by “research”. This must be thoroughly explained so that it is clear that it covers all experiments, investigations and Internet searches, expert evidence, Google Earth and maps. Jurors should also be told clearly that acting contrary to the judge’s direction could be punished as contempt of court. This would help alert jurors to the importance of the direction and perhaps ensure a higher degree of compliance.
Juror service educational information
5.41Another possible reform would be to provide more explicit and clear information about the issue of juror research in the material given to those called for jury service and that provided to the panel from which the jury is selected. Material must explain clearly why jurors should not do research and provide examples of what research covers. We suggest that the message should be given as early as possible.
Juror oath and express acknowledgement
5.42Jurors also take an oath or affirmation to give their verdict on the evidence. It may not be clear to them what that specifically entails. Implicit in that oath is a promise not to obtain or use extraneous material privately at any stage before or during the trial. Where a juror reaches a verdict that is not in accordance with his or her conscientious assessment of the evidence called at trial, the juror breaches his or her oath. Another option might be to amend the oath that jurors take so that it is very transparent that jurors must not read or research for any material not presented in the court. The Law Commission for England and Wales has recently recommended amending the wording of the juror oath to include a promise to base the verdict on the evidence presented in court and not to seek or disclose information on the case. They also recommend that jurors be asked to sign a written declaration on their first day of jury service acknowledging they have been warned not to research. We think these are useful options for New Zealand to also consider.
5.43Although not prohibited in New Zealand, jurors do not seem to be encouraged to ask questions at present. There may be more scope for jurors to be given clear advice about their ability to ask questions. More active engagement in the courtroom may make jurors less susceptible to conducting their own enquiries. Also, if jurors ask questions, this is likely to alert counsel and the judge to any issues that may be concerning or distracting the jurors. It is preferable that the jury raise their concerns with the judge as this could avoid the risk that they will do their own research to check points they do not understand. Making it easier for jurors to ask questions and have the judge explain legal and technical matters may help, although obviously a balance needs to be struck, as such questions can interrupt the presentation of evidence.
Presentation of evidence
5.44Greater deployment of information technology in the courtroom may also be of some assistance as it could meet some of the interactive need and address juror expectations. It has been suggested that, if the courts want to curb access to information outside the courtroom, a better information flow and more engagement within the courtroom is needed. One Australian trial judge made the telling comment that:
There is something faintly ridiculous about criticising lay people who go to a standard reference source for assistance on a question of fact such as the meaning of an ordinary English word when that is exactly what any reasonable person would expect them to do.
Judges and lawyers need to be aware that placing information before jurors in an incomplete, confusing or haphazard manner tempts even conscientious jurors to seek outside information to complete the picture.
Return to routine sequestering?
5.45Another option, which we do not support, would be to take a completely different type of approach to the problem and begin routinely sequestering juries to ensure that they are unable to access extraneous material. We do not favour this approach because it runs counter to the modern trend away from sequestering. Reforms introduced in 2008 ended routine sequestering. In the past, it was commonplace for juries to be sequestered for the entire trial until they had given their verdict. The Juries Act 1981 now precludes sequestering unless the judge considers that the interests of justice require the jury to be sequestered. Given the hardship caused to jurors by sequestration, this is a rarely used measure.
5.46Our preliminary view is that sequestering is not a viable option for a number of reasons. In addition to being prohibitively expensive, sequestering makes jury service, especially in a longer trial, an unacceptable civic burden for those selected. We think people would be more likely to need to defer or avoid jury service on a range of grounds relating to consequences of full sequestering. Sitting jurors might need to be excused more often during a trial also.
A statutory offence
5.47A further option that could be adopted in combination with some of the proactive upfront measures already outlined is to make it an offence for jurors to undertake their own research. It is probably contempt of court either at common law or under section 365 of the Criminal Procedure Act for a juror to undertake research. However, the position at common law is not completely clear. We generally favour replacing the common law of contempt with statutory offences, so it might therefore be appropriate to create an offence that covers jurors who deliberately conduct their own research even though they have been told clearly not to do this.
5.48Some other common law jurisdictions have already responded to the problem by making it an offence for jurors to conduct their own research. In Australia, it is now an offence in three states for jurors to conduct their own investigations. The Law Commission for England and Wales recommended last year that research by jurors be made a statutory criminal offence also. The Commission’s recommendation has been adopted and included, together with other new offences relating to juror conduct, in a Bill currently before the House of Commons. Once the Bill is enacted, any juror found guilty would face a maximum penalty of two years’ imprisonment.
5.49However, we need to be careful about creating new offences. Punishing a citizen when he or she is undertaking a civic duty would be harsh, particularly where the person has simply been overzealous about trying to do a good job. It is already a significant burden for a citizen to serve on a jury, and jury service should not be made more onerous than it already is. There would also likely be some reluctance by judges to refer cases for prosecution if a punitive approach were taken in New Zealand. Also, a heavy-handed approach to juror misbehaviour may simply push it underground and reduce the chance of it being detected and corrected.
5.50On balance, a statutory offence is probably necessary to bring more clarity to the law in this area. It would send a clearer message that research is simply not permitted. To strike the right balance here, we suggest that the maximum penalty should probably be no more than three months’ imprisonment, which is the current maximum for contempt in the face of the court. Importantly, we also consider that the threshold for the offence should be quite high so that only a juror who intentionally searches for information knowing or believing it will be relevant to the case would be caught. Whether or not the juror shared any information they found with other members of the jury could be a relevant factor when sentencing the juror.
Amending the criteria for a judge-alone trial
5.51A final option that should be put on the table for consideration is whether, where there is a significant risk that the prejudice of pretrial publicity cannot be overcome, there should be scope for having a judge-alone trial.
5.52Most jurisdictions allow a trial judge to order trial by judge alone in some circumstances. In a few jurisdictions, this includes where there may be concerns that pretrial publicity cannot be satisfactorily overcome. In Queensland, for example, the danger of pretrial publicity that may affect jury deliberations is adverted to as a specific risk factor for the judge to consider.
5.53In New Zealand, for the most serious offences (category 4), trial is by jury, and there is no alternative. The very limited grounds on which a trial judge may determine that there should be a trial before a judge alone currently do not include risks posed to a fair trial by extensive pretrial publicity. Under the Criminal Procedure Act, trial before a judge alone may only be ordered either where the case is long and complex or there has been intimidation of jurors. For category 3 offences, the defendant may elect to be tried by a judge alone. Pretrial publicity may be a factor a defendant or his or her counsel consider in determining whether or not to elect a jury trial.
5.54One option that might therefore be considered is some broadening of the grounds to also cover the risk of significant prejudicial pretrial publicity preventing a fair trial before a jury. However, a judge-alone trial would only be appropriate where that was the only effective way to overcome the problem.
Our suggested approachTop
5.55Having considered and discussed the range of possible options for reform, we now seek feedback from submitters on what type of approach they think might work. Our preliminary assessment is that an approach that proactively manages the risk that jurors will see or look for extraneous material is likely to be the best approach. We therefore suggest a combination of the preventative measures discussed in paragraphs [5.34] to [5.44] above. In summary we favour:
- an interactive approach to empanelling jurors covering prior exposure to the case [5.34];
- guidance for comprehensive judicial directions that deal with the risks of jurors searching out material and a systematic approach to presenting this (including in written form) [5.35] and [5.40];
- juror service educational information that includes the same or similar material [5.41];
- amendment to the wording of the oath taken by jurors so it includes agreeing to base the verdict only on the evidence presented in court [5.42];
- making it easier for jurors to ask questions, particularly about legal or technical matters [5.43]; and
- greater deployment of information technology in the courtroom [5.44].
5.56In addition, we consider that a statutory offence [5.50] to replace common law contempt as it applies to jurors is probably also desirable to better address situations where a juror, notwithstanding clear unequivocal instruction, intentionally searches for extraneous information knowing or believing it will be relevant to the case.