The Internet taunts jurors. Promising them answers. Beckoning them to Google the parties, the law, the lawyers. And after-all, how bad could one search be? If only those lawyers weren’t so boring. If only the evidence was presented clearly. If only the judge’s instructions weren’t steeped in legalese, then we could decide it without the Internet. Whatever the justification may be, whether curiosity got the best of them or it was something else, jurors are Googling. And they are compromising the appearance of justice and maybe justice itself by going beyond the evidence in the courtroom.
Last year, the Ontario Court of Appeal wrote about two cases where jurors performed forbidden searches. In R v. Farinacci, 2015 ONCA 392 and R v. Pannu, 2015 ONCA 677, the court recognized the dangers of Internet searches. One of the them being the reliability of the search results.
Given the ubiquity of the Internet and the ingrained habit of Googling just about anything, we must develop a realistic approach to dealing with the ever-present need to Google things. Either we need to prevent forbidden Internet searches or we need to develop a system for enforcing preventative measures. Alternatively, we need to evolve the rules of evidence to take into account Internet searches.
However, incorporating Google into trials would be a major departure from the current law. It would undermine hundreds of years of tradition, and it would change the roles of lawyers in the courtroom, possibly for the worst.
But simply telling jurors not to Google and then turning a blind eye to it is an unrealistic and insufficient approach. The Court recognized in R. v. Farinacci at paragraph 42 that:
in most cases, unless a juror talks about his or her online activity, it is likely to go undetected. While the information gathered here was relatively benign, and did not undermine the verdict or the fairness of the trial, that might not always be the case.
Similarly Justice Watt recognized at paragraph 110 in R v. Pannu that instructions not to “bring computers, tablets, cellphones, smartwatches or any devices with research capacities to the jury room at any stage of the trial… not to access legal databases, earlier decisions, pre-trial publicity or any other material … relating to any subject or person connected with the trial” … “is imperfect, of course, because it does not stop the curious from doing research elsewhere when the jury is not in the courtroom.”
It’s time we faced reality and came up with a comprehensive and practical system for dealing with the temptations of the Internet. I am interested in hearing your solutions.