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Google warnings

As Dr Theodora Dallas begins her six month sentence for contempt of court, you may be wondering whether the principles of jury duty can survive in a world where information is freely available to everyone about almost everything.

In her case, ‘contempt of court’ meant deliberately disobeying an order by the judge at the start of the case. As a matter of routine in every case, judges tell jurors not to search on the internet for information about the case they are due to try. They call it the ‘Google warning’, and will remind the jury of it at regular intervals. Prominent notices in the jurors’ section of the court building and the introductory film they are shown on their first day, both stress the point.

The reason for the prohibition is clear: it is for the parties to decide what evidence they wish to rely on in support of their respective cases, and only evidence which is probative and relevant to an issue can be admitted. An ‘issue’ means an important matter in dispute – one that the jury needs to resolve as part of its task in deciding whether the prosecution have proved their case. One side or the other will often object to the evidence by arguing that it is not relevant. If the Judge agrees, the jury will not hear it. If a piece of evidence is not probative it will be excluded, particularly if it also prejudicial– it will bias the jury without helping to clarify the real issues in the case. Disputes about whether evidence should be admitted or not can be complicated, but the two key considerations are relevance to an issue and ‘probative value’ – meaning simply that can help the party which uses it to prove its case.

Questions about what evidence should be admitted or excluded are not an arcane procedure designed to give employment and pleasure to lawyers. It is an essential component of the ‘golden thread’ of our criminal law, by which the prosecution have the burden of proving guilt, and proof means the jury must be sure of the defendant’s guilt. Dodgy evidence will not achieve a safe and reliable verdict. The prosecution have the responsibility of not putting in evidence that may look probative, but is not, and are subject to the judge’s ruling in a disputed case (as of course are the defence). Picture this: a prosecutor applies to put in evidence of a defendant’s previous convictions (often admissible now, since the Criminal Justice Act 2003); the Judge decides that in the particular circumstances of the case, they are not admissible – because they are not relevant to any of the matters in dispute in the trial. But then the prosecutor tells the jury about them anyway. Obviously the trial would have to stop, the jury would be discharged, and the prosecutor would be in serious trouble. No one could say a trial like that was fair.

Of course, that is a highly implausible scenario. But follow it up to the point at which the judge rules that the jury can’t hear the evidence. The discussion and decision take place in their absence (no point telling them what they can’t hear). The prosecutor abides by the ruling. But then a juror independently decides to search online for the defendant’s name and discovers a news report from many years ago which discloses his previous convictions; or he uncovers some malevolent gossip on Facebook. He tells the other jurors. They use the information when deciding the case by convicting the defendant. This is something like what Dr Dallas did.

You can see how easily this subverts the basic principles of a jury trial. The court decides, in public, whether a piece of evidence is relevant and admissible. The judge hears arguments from each side, and gives a reasoned decision. In many cases, a higher Court can review that decision on appeal. The process is open, transparent, governed by law, and accountable – the minimum requirements for a fair trial. What Dr Dallas did was secretive, immune from proper legal consideration, and thus lacked all safeguards against unfairness. Justice must be open justice. That is why dictators favour secret trials – they can get away with whatever they want, and nobody knows what evidence has been used or how the decisions are made. We already put a lot of trust in jurors, and let them make their decisions in private. But the evidence and the arguments are heard in public. Most of the time they repay our trust and act conscientiously, within the rules.

A mouse click away
But how do you stop jurors taking the evidence into their own hands when misleading or totally false information about a case may be only a mouse click away? They have to be trusted to obey the rules, and the rules and the reasons for them have to be explained clearly – as they surely are in the Crown Court. There must be firm sanctions for breaching that trust. The High Court thought that the only sanction for Dr Dallas was a term of imprisonment. That reflects not only the damage that her action was capable of doing in the trial, but it shows how much value is placed on the integrity of the system of trial by jury. That system has many powerful enemies, and this latest abuse may given them more ammunition.

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  • http://livingwithmomscancer.blogspot.com/ Lesley Beeton

    I completely understand why this undermines the system, and I would hope I am never tempted in this way whilst on jury duty. But, and not being a legal person, isn’t it possible that this happens anyway? With my scientist hat on, if all evidence (fake, misleading or otherwise) is presented, would that lessen the impact of jurors looking for their own evidence?

  • http://twitter.com/Dusty_Cobweb Dusty Cobweb

    Brilliant post- I really enjoyed reading it. I am coincidently studying bad character evidence at the moment, and this post sums up beautifully the debate we had in a seminar today. I shall be printing this off to show people at uni tomorrow!

  • http://twitter.com/CrimeLineLaw CrimeLine.info

    The reality is that we cannot simply ‘trust’ jurors not to conduct research; the temptation is apparently too great. Many will now grow wise as far as revealing such to their fellow jurors might be concerned. Ignoring this reality is simply naive and desperate.

    Curiosity is said to have killed the cat. It will surely kill jury trial. The clock is ticking. Regrettably.

  • Dave Gilbert

    All that is written in the post is true – but Dr Dallas said that she did not deliberately research the case. She is a Greek lady. Greeks take their democratic duties somewhat more seriously than we do in this country. Dr Dallas wanted to do her job properly and simply wanted to know what ‘greivous bodily harm’ meant, exactly in her own language (she could nto ask the judge – he did not speak Greek). She stumbled accross the info about the defendant as she then cross referenced ‘Luton’ (where she lived), so see the prevalance of that crime there. She only told the other jury members when they asked her, someone else having said he had seen the previous charge first. If all of that is true, then it’s hard to see how Dr dallas was in contempt. The High Cour Judges decided that they did not believe a word of it. Surely, that decision should have been up to jury – especially where the issue is to preserve the fairness of the jury system.

    The conviction seems, thus, hypocritical to me, and the sentence the stuff likely to bring the whole justice system into an area beeath contempt in many people’s minds.

    I write this as a man on a Clapham Omnibus and not as a trained lawyer.

    • http://profile.yahoo.com/UCEXPUOCSPJ2ILFW5KFOFPO5HU Leandra

      I could not possibly agree with you more! The sentence is outrageous for someone who merely made a mistake! It is obvious that she had nothing to gain from her actions and is being used as an example to other jurors.
      If you want to support her and disagree with her conviction, please consider to sign the petition at
      http://www.change.org/petitions/minister-of-justice-justice-for-theodora-dallas
      and pass on the word to everyone who feels the same way you do!

  • http://profile.yahoo.com/UCEXPUOCSPJ2ILFW5KFOFPO5HU Leandra

    Her sentence is too harsh and does not match the “crime”. In fact, how could it, since she is being used as a scapegoat rather than being disciplined for a mistake!
    http://www.change.org/petitions/minister-of-justice-justice-for-theodora-dallas

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