Guilty beyond a reasonable tweet – role of social media in the Australian courtroom
on decisions made in the Australian courtroom.
07 March 2013
The impact of social media can significantly impact decisions made in a courtroom, sometimes preventing an accused from receiving a fair trial, according to research conducted by an academic in the School of Law at The University of Notre Dame Australia's Fremantle Campus.
Civil Procedure lecturer and lawyer, Marilyn Krawitz, is currently completing her PhD on the use and role of social media in the Australian courtroom.
She was drawn to the topic having read a newspaper article about a juror who was jailed in the United Kingdom for eight months after contacting the accused in a trial via social media.
Despite a body of literature on the issue in the United Kingdom and the United States, Ms Krawitz's preliminary research found there was little information about the effects, both positive and negative, of social media in the Australian judicial system.
"Australian courts are based on the English court system – some of the traditions go back thousands of years. Social media, on the other hand, is new and its use has exploded over the past decade," Ms Krawitz said.
"Whilst we should not expect Australian courts to make changes overnight because of social media, we should expect that court officials should give this issue careful thought when possible, particularly when an accused's right to a fair trial may be affected."
In her 2012 research paper that forms part of her PhD titled; Guilty as Tweeted: Jurors using social media inappropriately during the trial process, Ms Krawitz referred to a study which found that prospective and active jurors in the study's sample Tweeted at a rate of once almost every three minutes.
While some of the Tweets were complaints or statements about being called for jury duty, a "significant number" wrote about the guilt or innocence of the accused. She said this could lead to juror bias and an inaccurate view of the case by friends, other followers and the media.
Ms Krawitz believes that one of the reasons jurors use social media is because, simply, some people are addicted to it. Her research states that despite a court's instructions against using social media during a trial, jurors feel "empowered" and "emotionally satisfied" using social media to deliberate on the future or the final outcome of a case.
"Social media can be tendered as evidence in a trial. For example, in many personal injury cases, a plaintiff could tell the court that they suffered great pain and were unable to live a normal life. But social media posts tendered could inform the court that this is not the case," Ms Krawitz said.
"Conversely, if jurors use social media to learn information about an accused or a witness in a trial, the jurors could become biased and deliver a judgment that they would not have delivered otherwise.
"Journalists who use social media in the courtroom can also be problematic as they may inform the public or potential jurors about information that a judge later decides to suppress, which can also significantly affect a trial."
In Australia, the courts' approach to the use of mobile phones differs across jurisdictions. In Western Australia, a jury officer takes jurors' mobile phones from them only whilst they consider their verdict. Other states have a total ban on all electronic devices in the courtroom.
While there are several measures taken by courts, such as banning electronic devices in the courtroom, juror sequestration (isolating jurors from the public) and verbal warnings, to curb the use of social media by jurors, Ms Krawitz says more research needs to be conducted on the issue in Australia.
"Through my research, I hope to inform Australian court officials about how social media may be impacting on the courts, and how other common law jurisdictions are dealing with the impact of social media. In particular, I hope to make recommendations to the courts which are practical and helpful," Ms Krawitz said.
"Social media may negatively impact the courts, but it can also be positive. In some Australian courts, court officials send information to the public via social media which results in people becoming more engaged with the court's work.
"It is crucial that Australian courts actively address these issues because of the importance of what is at stake: an accused's right to a fair trial."
Ms Krawitz is undertaking her PhD at Murdoch University.
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