"CourtBerry Syndrome" and Why Some Jurors Can't Resist Tweeting

Trial judges routinely warn jurors to avoid  using social media and the internet to research or comment on matters before the court during trials.  Nonetheless, news reports of jurors who disregard these instructions seem to be increasingly frequent.

Such juror misconduct has potentially disastrous consequences for the administration of justice.  A December 2011 Arkansas appeal provides a ready illustration - see Death row inmate gets second trial due to Twitter-obsessed juror:

In a tweet referencing the trial, Franco wrote ”Choices to be made. Hearts to be broken…We each define the great line.” He also posted updates when each day of the trial started and complained about the coffee. In addition, Franco posted “It’s over” less than an hour before the jury’s verdict was read in court. According to Associate Justice Donald Corbin, Franco was warned during the trial that posting updates to Twitter was forbidden. Corbin stated ”More troubling is the fact that after being questioned about whether he had tweeted during the trial, Juror 2 continued to tweet during the trial.” The Supreme Court justices of Arkansas recently asked a panel to look into restricting the use of smartphones during future trials.

Villanova law professor, Louis J. Sirico, Jr,. offers a generational analysis at Legal Skills Prof Blog as to why some jurors seem unable to resist tweeting and googling during trials:

In November 2008, the Lord Chief Justice of Great Britain, Sir Igor Judge, sounded a warning about the generational shift occurring as web-savvy citizens accustomed to getting their information online entered the jury box. Noting the consequences of this shift for the system of trial by jury, the Lord Chief Justice observed, “If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.

If our brains are, indeed being rewired by the internet, as early clinical research seems to suggest, is compulsive juror mistweeting simply the cutting edge of a genuine change in our physiology that is naturally finding its way into our courtrooms?

Is crackberry syndrome mutating into courtberry syndrome?

And how can our courts address this?  

- Garry J. Wise, Toronto

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Prutschi on Jurors and Facebook

Slaw's Edward Prutschi, on the increasing prevalence of Facebook abuse by jurors around the globe:

Now I’ve felt somewhat humbled by having to make life-altering submissions before a panel of twelve of my client’s peers, but pleading my case to the entire internet? That’s an audience that could overwhelm even the savviest advocate.

Nicely said.

Read the whole post: Will Facebook Be the Downfall of the Jury System?

- Garry J. Wise, Toronto

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The Pickton Appeal: The Importance of Properly Crafted Jury Instructions

Given the gravity of Robert William Pickton's crimes, it will be no surprise to most Canadians that his appeal to the Supreme Court of Canada was dismissed this past summer.

Mr. Pickton's second degree murder convictions for six grisly murders were upheld by the Supreme Court in a July 30, 2010 ruling. The Court rejected his argument that a new trial was warranted on the basis that the trial judge's jury instructions were so flawed as to occasion a miscarriage of justice.

The case is not only noteworthy for the horrendous crimes committed by Pickton and the difficulty of prosecuting in the numerous, related murders. It also serves an important reminder of the importance of properly-crafted jury instructions and the potential impact they can have on trial fairness.

As a general matter, jury instructions must accurately convey the relevant law, which is often easier said than done. There are boiler-plate instructions (sometimes referenced as pattern jury instructions) that can be used by trial judges in relation to some matters. They are not universally followed nor perhaps suited to every conceivable circumstance.

Do trial judges need to be perfect in their first recital of a given instruction to a jury?

The Pickton decision, echoing previous decisions of the Supreme Court, provides a qualified "no." Trial judges, at least in some circumstances, do have a bit of wiggle room. If a mistake is made that can be remedied through a subsequent instruction while still preserving trial fairness, the making of such an instruction is appropriate and should be made.

Similarly, if an omission is made that does not render the whole of the given instruction erroneous at law it may still stand.

On the broader question of whether an error in jury instructions has led to a miscarriage of justice necessitating a retrial, see Lebel J.'s opinion in the Pickton appeal (two other judges concurring):

[84] Having found an error on a question of law, I must now turn to the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code. As our Court has held on many occasions, not every error will lead to the quashing of a verdict of guilty by an appellate court (R. v. Van, 2009 SCC 22 (CanLII), 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34).

[85] Some errors may be so innocuous or so irrelevant to the questions at issue that there is little likelihood that they would have had any impact on the verdict. Other errors may be more serious, but the proviso will also apply because there is overwhelming evidence of the guilt of the accused and, on that evidence, a properly instructed jury would necessarily return a verdict of guilty (R. v. Trochym, 2007 SCC 6 (CanLII), 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82). In my view, this is the case in the instant appeal. As mentioned above, there were serious errors in relation to a key issue at trial, criminal participation in the offences, in both the instructions to the jury and in response to its question. Nevertheless, in order to assess the possible impact of these errors, the context of the trial as a whole must be kept in mind.

[86] The trial was all about the participation of Mr. Pickton in the murders of the six victims. I will not attempt to review here all of the evidence offered by the Crown during what was a very long trial. However, on a review of the record, in my opinion, the Crown presented compelling, overwhelming evidence of the participation of Mr. Pickton in the murders. From whichever perspective we consider the participation of Mr. Pickton, on the evidence, he was necessarily either a principal or an aider or abettor. It would surpass belief that a properly instructed jury would not have found him guilty of murder in the presence of such cogent evidence of his involvement. Indeed, this properly instructed jury would likely have convicted Mr. Pickton of first degree rather than second degree murder.

See the Court's full ruling: R. v. Pickton, 2010 SCC 32 (CanLII).

- Robert Tanha, Toronto

Update

(A special welcome to Precedent's 'Law and Syle' readers)

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The Case for Pattern Jury Instructions in Canada

In the aftermath of the Supreme Court of Canada's decision yesterday, upholding the B.C. murder convictions of Robert Pikton, Peter McKnight, adjunct professor in the School of Criminology at Simon Fraser University, addresses the "inevitability" of judicial error in criminal jury charges and explores the case for pattern jury instructions in Canada:

Most American jurisdictions now use pattern instructions, and when they do, they make trial judges' jobs significantly more manageable. Judges often request prosecution and defence counsel to provide them with draft instructions based on the pattern instructions, and even if they don't, if the defence finds errors in the instructions the trial judge has composed, counsel is expected to object at that time, rather than remain silent and then use the errors as a ground of appeal.

...Pattern instructions have also benefited juries in the U.S., since they rarely take more than one hour to deliver (Williams spent four days charging the Pickton jury, and no juror, no matter how smart and attentive, could remember all of the charge). Finally, pattern instructions benefit the justice system as a whole, as only one to three per cent of appeals based on judicial errors are successful in the U.S., compared to Canada's 30-to 50-per-cent success rate.

....While pattern instructions solve some problems, they leave untouched what is perhaps the most serious problem of all: Studies have repeatedly demonstrated that juror understanding of judges' instructions, including pattern instructions, is poor.

See: Why judges' errors are inevitable from the Vancouver Sun. More on Peter McKnight is here.

- Garry J. Wise, Toronto

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