Jury vetting in the digital age

by Stephen Iorns

Trial by jury has come a very long way in the past 200 years.

In 1798, the British Crown tried Father James O’Coigly for treason. Following a finding of guilt, the Roman Catholic Priest was sentenced to be hung, but while still alive to be taken down still breathing to have his bowels removed and burnt before his face. This was to be followed by decapitation, and the splitting of his body in to four parts to be disposed of at the King’s direction.

Thankfully, following hanging the King commuted the more gruesome aspect of the sentence. Father O’Coigly was hung until dead, then buried below the gallows in Kent.

Putting the sentence to one side, viewing the proceedings through the lens of counsel who participates in modern-day jury trials, the process was extraordinary.

Thirty four potential jurors were challenged without cause on behalf of the prisoners. Twenty five potential jurors were challenged without cause by the Crown.

One potential juror, Thomas Raikes, was successfully challenged for cause by counsel for Father O’Coigly. Mr Raikes had been heard to loudly exclaim “damned rascals” when he first laid eyes on the accused. This was heard by counsel, who raised the matter when the potential jurors’ name was called. The bench, instead of hearing the case for challenge, appointed two jurors to hear the matter. They ultimately decided that Mr Raikes had better be excused.

A similar process remains in place in Canada to this day. If counsel raises a challenge for cause, two potential jurors are sworn to hear the matter and make a determination. In New Zealand, the matter falls to the judge.

Jury selection laws

Over the past 217 years or so, the laws relating to jury selection have changed significantly. In the United Kingdom, while there had previously been an apparently unfettered ability to challenge without cause, that ability was removed completely in 1988. Now, in the UK, defence counsel can only challenge for cause. The Crown has the additional option of asking the judge to stand the juror down.

Jury selection in the United States has evolved in a significantly different manner. Jurors are questioned, sometimes at length, to establish whether or not they can be impartial when sitting as triers of fact. This voir dire process in large trials can take weeks, or even months, where prospective jurors are researched, interviewed and routinely challenged.

In New Zealand, counsel for both the prosecution and defence have only four challenges without cause, and an unlimited number of challenges for cause (this changes slightly in trials with multiple defendants, where the Crown gets four peremptory challenges per accused).

The Juries Act 1981 provides for the jury pool list to be provided to counsel one week before the trial. This list contains all of the names of potential jurors, along with their date of birth, address, and occupation as listed on the electoral roll.

There are limited grounds for challenging for cause; the primary ground being that the potential juror cannot be impartial as between the parties. Justice Tipping, delivering the majority decision for the Supreme Court in Gordon-Smith v R [2009] NZSC 20, observed that:

“Both the Crown and the defence have statutory rights on the empanelling of a jury to challenge prospective jurors on a peremptory basis (as well as for cause). They are supplied in advance by the Court with a list of prospective jurors. Both Crown and defence are able to make such inquiries as they think fit, and as are consistent with law, to obtain information upon which challenges may be exercised.”

Jury vetting

Jury vetting in New Zealand has, in practice, been almost exclusively the domain of the Crown. In most jury trials, the Police vet the list of potential jurors in advance as a part of their duty to assist the Crown.

This information can include non-relevant criminal convictions, associations with known criminals, family ties, and other information contained in the Police’s vast intelligence database. While the Crown routinely has access to very private, closely guarded information, it does not appear that they look closely at publicly available information.

The fact that neither prosecutor nor defence counsel looks at publicly available information regarding potential jurors astounds many.

Counsel obligation

While there are mixed views within the criminal bar, my view is that in serious trials, counsel is obliged to look.

In a recent jury pool, there was an individual who had published material on the subject of domestic violence, with a strong focus on the perspective of the victim. This could be established in under a minute by simply entering their name in to Google. It is reasonably foreseeable that this potential juror would find themselves sitting on a jury hearing a case relating to domestic violence.

This cannot be an isolated event.

If we as defence counsel do not look at even the most basic information available regarding potential jurors, can we not be accused of failing our duties? What if our foreman turns out to be a vocal advocate for the Sensible Sentencing Trust? Or Father’s Rights? Or a staunch supporter of Women’s Refuge? What if this information is easily accessible and establishes to a very high level an inability to remain impartial as between the parties?

Authority

The Supreme Court of Missouri, on hearing an appeal in a medical malpractice claim, criticised counsel who at appellant stage identified a juror who had previously been involved in litigation as a defendant in a personal injury lawsuit.

The Court was minded that counsel should have looked much, much earlier. Johnson v McCullough306 SW 3d 551 (2010) is routinely cited as authority in support of the proposition that counsel has a duty to investigate jurors before they are empanelled.

The practice of passively viewing jurors’ social media accounts has been endorsed by the American Bar Association, and is becoming widely accepted as an integral part of the jury selection process in the United States.

NZ research

Around the turn of this century, both the Department of Justice and the Law Commission directed significant resources at researching jury trials in New Zealand.

Trial by Peers?: The Composition of New Zealand Juries (Department of Justice, 1995) touched on the practice of jury vetting, recording [at 9.2] that “Most Judges were aware that the police provided the prosecution with information on the potential jurors’ previous convictions, using the Wanganui computer. The extent of jury vetting by the defence was largely unknown.”

Juries in Criminal Trials [2001] NZLC R69 briefly explored the small trial consulting industry in New Zealand, at that time consisting of one or two psychologists who would assist with jury selection by providing their views on particular jurors, occasionally with the assistance of public records such as credit checks.

The Law Commission concluded that without the voir dire system of the United States, there was very little chance of trial consultants practising routinely in New Zealand, as “the ability to find out about jurors is much more limited”. The Law Commission concluded that trial consultants need not be regulated further than the existing rules of contempt.

Searches and social media

I am confident that the authors of both Trial by Peers and the Law Commission Report could not have predicted the impact of the creation of Google in 1998, and Facebook in 2004.

In the case of Father James O’Coigly, the only successful challenge for cause arose because the potential juror had been heard expressing a strong negative view about the accused.

Fast-forward 217 years, and we do not have to be present in the same room to hear potential jurors expressing strongly held views. 75% of the population engage with social media. In the digital age, even those who do not engage with social media have a raft of publicly available information concerning their affairs.

There are company records, property records, information on charities and incorporated societies, political affiliations, familial ties, professional ties, academic information, litigation history and, occasionally, evidence of strongly held views.

While some see looking for this as an invasion of privacy, the intrusion is significantly less than the Police vetting practice.

Cogent information is now publicly available for those who know how to look and have the inclination. In many instances, it has been placed in the public domain by the individual with the full knowledge that it is available to be found. All that is required is a modicum of computer literacy and time.

Stephen Iorns is a barrister practising in criminal and civil litigation. In addition to his legal practice, Stephen recently established Jury Selection Services Limited, a trial consultancy firm co-founded with an Auckland Private Investigator.

This article was also published in LawTalk 867, 19 June 2015, page 40.