When ju­rors over­step

Northern Pen - - Front page -

First, it was the “CSI ef­fect.” That’s the nick­name lawyers gave to the idea that jury mem­bers in tri­als were con­vinced that all sorts of foren­sic tests — as seen on the tele­vi­sion pro­gram “CSI: Crime Scene In­ves­ti­ga­tion” — were not only crit­i­cal to cases, but also nearly in­fal­li­ble.

Jury mem­bers ex­pected cases to have broad foren­sic ev­i­dence, and felt prose­cu­tors had fallen down on the job if a wide range of such ev­i­dence wasn’t pre­sented.

Now, there’s some­thing that could be called the “Google ef­fect.”

Jury mem­bers are told to avoid read­ing me­dia stories about the case they are hear­ing, and not to search for in­for­ma­tion out­side of the court process.

But cases are pop­ping up where ju­rors play in­ves­ti­ga­tor, track­ing down in­for­ma­tion that’s im­proper and even in­ac­cu­rate, and then shar­ing it with other jury mem­bers.

As the Toronto Star re­ported last week, at least three On­tario tri­als have been af­fected by rogue ju­rors — one of whom went so far as to re­search the judge in the case and one de­fence lawyer, be­fore build­ing his own com­puter-de­signed crime scene map and giv­ing it to other ju­rors.

Two of the cases had mis­tri­als de­clared, one of which was a man­slaugh­ter and as­sault case in Bar­rie that had al­ready in­volved six weeks of court time.

In an Ot­tawa civil case, a ju­ror searched the prov­ince’s In­sur­ance Act reg­u­la­tions and told other ju­rors about a reg­u­la­tion that didn’t even ap­ply to the case at hand. In that case, the Star re­ported, a lawyer for the plain­tiff also asked for a mis­trial, say­ing in court doc­u­ments,

“How can jus­tice be done be­tween the par­ties when Google is the judge and the jury?”

Why do ju­rors head out on the Google trail, when they are specif­i­cally told not to look for in­for­ma­tion on the in­ter­net?

Per­haps be­cause we’re ad­dicted to the elec­tronic en­cy­clo­pe­dias we carry — even though the ma­te­rial we gather from them might not be ac­cu­rate or com­plete.

As On­tario’s Court of Ap­peal put it in 2015, “the grow­ing avail­abil­ity of and ap­par­ently in­sa­tiable ap­petite for in­for­ma­tion poses a for­mi­da­ble chal­lenge to the right to a fair trial in the 21st cen­tury. Tra­di­tional forms of me­dia have ex­panded onto the world­wide web. New forms of me­dia have emerged as the web makes ev­ery­one a pub­lisher, and so­cial me­dia help dis­sem­i­nate pub­li­ca­tions, both tra­di­tional and un­tra­di­tional. It has be­come in­creas­ingly dif­fi­cult to con­trol the dis­sem­i­na­tion of in­for­ma­tion, with ju­rors able to use not only com­put­ers and tablets but also smart­phones and even watches to ac­cess on­line ma­te­rial, and to curb the ap­petite of ju­rors for it. And with lit­tle qual­ity con­trol over con­tent. The sen­sa­tional trumps the ac­cu­rate; fevered imag­in­ings, truth.”

It’s un­fair — how can any­one ad­dress an is­sue that hasn’t even been pre­sented in court?

It’s best to leave the in­ves­ti­ga­tion to the in­ves­ti­ga­tors.

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