Jurors, Twitter, Facebook, Oh my!

One British juror who could not reach a verdict on a child abduction and sexual assault trial turned naturally to Facebook.

”I don’t know which way to go, so I’m holding a poll,” she announced.

Another sitting on a drugs trial befriended the accused and traded messages with him on Facebook.

But a Californian juror needed no such help. ”Guilty! He’s guilty! I can tell!” he tweeted.

In the age of social media, the only way to guarantee that jurors are not exposed to prejudicial material about their trials would be to abolish juries altogether, according to a report commissioned by the Australian attorneys-general.

The report by the Centre for Law, Governance and Public Policy recommends sending jurors on training courses before trials and constantly warning them against external influences, with written directions, daily reminders and signs in the jury rooms.

It does not advocate the increased use of trials in which only judges delivered verdicts.

Research quoted in the report indicates that jurors have neither the willingness nor ability to disregard material that they regard as relevant, even if they are told to do so.

Jurors admit to checking the internet even when a judge has told them not to, but they more likely to heed written directions than oral ones.

The standing committee on law and justice, which is made up of state and territory attorneys general, is investigating how to mitigate the impact of social media on the right to a fair trial.


Full  story in the SMH.

Conductor Brings Music to Gaol

CHICAGO (AP) — Strains of classical music echoed on Sunday — not inside an august concert hall — but in a bleak Chicago jail where the mostly teenage boys await trial on charges ranging from dope dealing to murder.

The concert was part of a unique outreach that’s the brainchild of the Chicago Symphony Orchestra’s musical director, the Italian-born Riccardo Muti, who attended the event at the Cook County Juvenile Temporary Detention Center on Chicago’s West Side.

The concert included half a dozen of the orchestra’s members. But the center-stage performers were some 10 inmates who participated in a weeklong musical workshop at the lockup. It culminated in the Sunday concert featuring compositions the inmates wrote in collaboration with the professionals.

When one of the organizers announced the inmates and their families will receive CD recordings of the concert, one mother buried her head in her hands.

“Oh my God, this is so special,” she said aloud.

The goal of the outreach, which has included other jail visits, is to impart a wider appreciation for music and to inspire at-risk youth. It seemed to work for at least some of the teens.

“I learned more about classical music,” a teen named Ricky told reporters after the concert. He was identified only by his first name because he is a juvenile charged with a crime. “I’d heard of Beethoven and Bach. I liked it.”

The center’s own 2012 annual report noted that, almost daily, someone either talks about killing himself or tries. The center holds around 250 inmates in total, a few of whom aren’t yet teens.

The Naples-born Muti has taken his act into prison before.

He once performed Robert Schumann’s “Warum?” — which means “why” in German — in a Milan prison. The work, he explained later, was his way of asking inmates what had brought them to such misfortune.

“We will meet again in the future,” he said. He quickly added, “Not here! But on the outside.”


Right to Silence is Gone. What Were You Doing When Your Rights Were Being Taken Away?

I wonder what you were doing while your rights were being taken away? This from a colleague:

The Evidence Amendment (Evidence of Silence) Act 2013 and the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 has been passed by NSW Parliament.

Both will come into force very shortly. It is now far too late to do anything about any of this. Except perhaps a challenge in the Court?

The Evidence Amendment (Evidence of Silence) Act 2013 will amend the Evidence Act 1986 to provide an exception to section 89 to allow an unfavourable inference to be drawn at trial against certain defendants in respect of their silence during official questioning. Under the new section 89A, an inference may be drawn where:

  • The accused failed to mention a fact during police questioning that they could reasonably have been expected to mention in the circumstances existing at the time.
  • A special caution explaining the nature and effect of a failure or refusal to mention a fact was given to the defendant before the failure or refusal.
  • The special caution was given in the presence of the Australian legal practitioner acting for the defendant at the time of questioning. 
  • The defendant was allowed a reasonable opportunity to consult with that legal practitioner about the general nature and effect of the special caution, in the absence of the investigating officer and before the failure or refusal to mention a fact.
  • The investigating officer who gave the special caution had reasonable cause to believe that the defendant had committed the serious indictable offence.
An unfavourable inference cannot be drawn where, at the time of questioning, the defendant was under 18 years of age or was incapable of understanding the general nature and effect of the special caution. Additionally, an unfavourable inference cannot be drawn where the failure or refusal to mention a fact is the only evidence that the defendant is guilty of the serious indictable offence. The giving of the special caution in accordance with the new section does not, of itself, render evidence obtained in response inadmissible in proceedings for any other offence (whether or not a serious indictable offence).

The Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Act 2013 will amend the case management provisions of the Criminal Procedure Act 1986. It will require the defence to set out in its mandatory response to the notice of the prosecution case:

  • The nature of the accused’s defence, including particular defences to be relied on.
  • The facts, matters or circumstances on which the prosecution intends to rely to prove guilt, with which the accused intends to take issue.
  • Points of law which the accused intends to raise.
The Act retains capacity for court-ordered defence disclosure of other material in accordance with the existing provisions of the Criminal Procedure Act. The timing of disclosure will be managed by court practice notes, as is currently the case, which will require notices to be served by a particular period before trial. If the accused fails to meet any of its disclosure requirements imposed under the Act, or serve a notice of alibi where required to do so, then:

  • The court, or any other party with the court’s leave, may make such comment at trial as appears proper.
  • The jury may then draw such unfavourable inferences as appear proper.
The accused cannot be found guilty of an offence solely on an unfavourable inference. An unfavourable inference cannot be drawn if the prosecution fails to comply with its pre-trial disclosure obligations under the Act. Should the prosecution serve material after the defence has served its response, the Act allows the defence to seek the court’s leave to amend its response if the late-served material affects the contents of the response. The Act amends the existing waiver provisions to provide that the court may waive any of the Act’s pre-trial disclosure requirements if it is in the interests of the administration of justice to do so. In reaching its decision, the court will now be required to take into account whether the accused is legally represented, and must also give reasons for making such an order.

The Bills can be found here:

http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/d2117e6bba4ab3ebca256e68000a0ae2/8d7f969c28b98e79ca257b2d00137b1d/$FILE/b2012-059-d32-HOUSE.pdf

http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/131a07fa4b8a041cca256e610012de17/d3fc6b580fec142cca257b2d001615da/$FILE/b2013-004-d11-HOUSE.pdf