In what is now safely described as the ‘age of information’, knowledge, news and gossip has never been more readily available; we are more informed than ever before. From mainstream media outlets, social media and professional periodicals, maintaining an immediate understanding of the world around us is simply a reality of modern life—not simply a happy advantage. While access to information has empowered societal change and has dramatically altered how we perceive the world, how has our ability to immediately access information altered our perception of justice, and, more importantly, how justice is served?
In a world where we are empowered and doubtless encouraged to profess an opinion on what’s happening around us, trial by public opinion has gleaned greater rule over how we relate to and judge: news, events, guilt and innocence. The rich and famous feel the bite of this phenomenon most keenly: one needn’t look to hard to find a ‘cancelled’ celebrity, a new phenomenon that sees the termination of a celeb’s relevance as a result of a mal formed opinion, action or public accusation. As the New York Times describes: it only takes one thing — and sometimes, nothing — for fans to dump a celebrity. When applying this mindset to a legal context, how are defendants expected to believe in the edict of neutrality when people are professing more opinions to more news stories than ever before? When people are determined to apportion guilt, innocence and blame in as much time as it took to read the headline.
In this article, we discuss the ramifications on an unbiased jury in 2019 and explore whether it really is possible for juries to remain a relevant and valuable component in criminal trials in a digital age. Discussing the growing appetite for immediate judgement, alongside the realities of our information culture, we examine the existing system of trial by jury and look at previous cases afflicted with jury bias.
Unlike other legal jurisdictions, the UK abolished the practice of Pre-emptory challenges in 1988. A practice which allowed the defence to challenge jurors without cause, pre-emptory challenges were primarily designed to enable both parties to contribute to the configuration of a jury, so that both sides find its verdict more acceptable. Described by some as an important safeguard, a pre-emptory challenge allows legal counsel to remove juries with potential biases that could obstruct justice. In a cynical op-ed released by Above The Law, a US publication, they discuss the myriad reasons a juror may be struck off, for instance:
“Striking a black juror is absolutely fine if the prosecutor can come up with a “race neutral” reason for doing it, and that can be pretty easy to do. The juror wouldn’t look me in the eye. He smiled at the defendant. He has a brother who was arrested. He’s sceptical of police because they’ve stopped him without reason in the past. [This last reason wipes out a lot of potential black jurors.]”
Despite due scepticism about the fairness of this practice, Above the Law hits on a key point:
“there are a lot of potential jurors out there who won’t admit to prejudice, or don’t even know they have it. What prejudice is to one person is just day-in-the-life for another. It’s a concept open to a lot of interpretation.”
While UK barristers do not have the option of pre-emptory challenges immediately at their fingertips, implicit bias remains a constant pressure on sitting juries and the advocates trying to redress the balance. The toll felt by the “age of information” is growing, as society plunges further into the rabbit hole of digital life. In a paper penned by Fred H. Kate and Newton N Minow in 1991, they ask who is an impartial juror in an age of mass media? 28 years later, we are still apt to consider the ramifications of this question, particularly in cases or ‘trials which involve issues, events, or people of public interest.’ In our modern world, it is possible for jurors to arrive with an extensive knowledge of the victim, through access to their social media or journalistic coverage and ‘judges are virtually powerless to stem to the flow of information’.
‘It is often impossible for a judge to control the publication of prejudicial information because, increasingly, the most dramatic revelations occur at the time of the crime itself, long before there is a trial, much less a judge selected to oversee the trial. Photographs of the victim or of the defendant being led away in handcuffs by police, details about the crime, and the outraged community's response are highly inflammatory, even though they first appear well in advance of any trial.’
As a result, in cases where there is media involvement or inflammatory social media, judges and legal counsel must focus its attention on identifying areas of potential bias and seeking to remedy them through skilled advocacy. The issue grows more complex however. It is possible that not only is the age of information shaping our perceptions of guilt, innocence and implicit bias but is also having profound sway over how advocates present evidence and utilise a jury.
This issue is particularly prescient in the case of Porter v. Magill, where defendant Dame Porter claimed that she suffered from tribunal bias thanks to historic negative press conferences and accusations of jerrymandering. While it was eventually discovered that Porter did not suffer from judicial bias, the accusation lingers. Would a fair minded and informed observer conclude there was a real possibility or danger that the tribunal was biased, based on the access they had to media reports of Porter? Are jurors capable of setting aside their own biases or relationship to the case- particularly when cases are supercharged with politics and corruption.
Is there an alternative?
There are already several pre-existing stipulations in UK law that may result in trial without a jury. The first is at the Crown Court, where a trial without a jury is permitted in cases of jury tampering, and a trial without a jury is in the interests of justice. There are also provisions under the Domestic Violence, Crime and Victims Act, to try defendants accused of domestic violence on sample counts and, on conviction, for the remainder of the counts to be tried by a judge alone. While this may certainly be useful, particularly for victims of domestic abuse, there is still a deficit in trials that may benefit from the absence of a jury.
In cases of sexual misconduct and rape, many women have reported that they were distressed to find that the jury had been given information into their personal histories: including any medication, mental illness or depression and sexual history. In an article written by Brie Lee for The Guardian, she laments the absence of support that enables juries to surpass existing subconscious biases. In the article she writes:
‘Getting rid of juries may be a shortcut to justice for complainants. It provides temporary relief, but really we need to get to a point where instead of just bypassing juries, we help these members of the public actually do justice. There are huge advantages to having members of the public coming into courts, interacting with our justice system, and then taking what they’ve learned and experienced back out into the community. If we updated our attitudes towards consent and sex offences – including our attitudes to “freeze” responses and childhood trauma – imagine what a powerful tool for understanding and education the courts could be.’
The role juries play in our society should not be underestimated. It is vital to provide an opportunity for citizens to participate in the process of governing, and in return cultivate a society equipped to go back to the community with the skills they have learnt in: due diligence, peaceful dispute resolution, and an ability to look through bias to find a just solution.
It is possible however, that our juries benefit from a chicken/egg paradox. While our juries are doubtless informed by societal opinion, society’s views are doubtless beginning to alter, and prejudices are diminishing. The Me Too movement highlights this phenomenon- shifting the zeitgeist on sexual abuse- which should in turn shift how juries approach these kinds of cases, and bias against female claimants may eventually moderate.
When one distils the purpose of a jury (to come to an agreed statement of fact, rather to aid a prosecution) it is inevitable that the personal opinions of those who serve on our juries will inform the statement of fact they bring to the judge, and; that those opinions will in part stem from what they imbibe from the media. While this is still undoubtedly a challenge for our courts, the value of a jury system should not be underestimated. When juries truly represent a cross section of our society, defendants should feel confident that they are being judged by someone like them, and that they will not to be browbeaten by bias.
Although there are certainly problems yet to be addressed in our jury system. Our imperfect system has the power to educate and enable judicial learnings to be translated to the general public. If nothing else, in an age of information, fake news, and alternative facts, it is more important that ever that people return to their communities equipped with a comprehensive education in fairness and justice.