Around Australia, much attention has been given to the furore surrounding the aborted trial of Bruce Lehrmann for the alleged rape of Brittany Higgins.

This article looks at the situation which could happen to anyone who is a defendant in such a case. For those in property and construction, this might include construction company directors on trial for industrial manslaughter or property developers, engineers or others on trial for serious criminal charges where such a trial involves a jury.

In most serious criminal case, the accused has no say as to whether the trial goes before a judge alone or a jury.

Consequences of trials needing to be aborted on account of juror misconduct are serious. Imagine that you are an industry professional who now has to wait further months (sometimes many) for another trial in cases where the trial needs to be cancelled as a result of juror malpractice. Whilst the Lehrmann case has been dropped, this may not happen in other cases and the accused may need to wait for a second trial. The new trial would generally have to start over again with the same evidence needing to be presented a second time. For those wishing to get back to their ordinary business and life, this is frustrating.

In the Lehrmann trial, a juror allegedly brought outside research material into the juror room (media reports suggest that the research related to the prevalence in juror trials of false reports of rape). This breached a fundamental responsibility of jurors to base their decision entirely on the evidence given in the trial. This is important as outside material that has not been admitted as evidence in court has not been verified or assessed for accuracy, reliability or credibility. Such material has also not been subject to rebuttal, cross-examination or counter arguments from the party whose case may be disadvantaged by the material being considered.

After the material was discovered (by accident), the trial judge reluctantly felt that she had no alternative but to abort the trial. This was the case notwithstanding that it was not certain whether or not any harm had been done. Jurors are clearly told by the court (often multiples times during the course of a trial) that conducting outside research is prohibited. In some states, such conduct is a criminal offence which can see the relevant juror prosecuted and even jailed.

That, however, may be of little comfort to the defendant, who most likely would like to return to their regular businesses and lives. It can be equally frustrating for fellow directors, colleagues/employees and others who depend on the individual for their skills, knowledge and experience.

Other Possible Sources of Juror Misconduct

Brining in outside material is not the only potential source of juror misconduct. Other potential examples include public disclosure of juror deliberation conduct, failing to report being offered bribes or inducements or failing to reveal personal biases or prejudices that could impact decision making.

Some cases are bizarre. In one trial held in the United Kingdom in 1994, four jurors in a murder trial conducted a séance to determine whether the ‘spirit world’ knew of the guilt or innocence of an accused. In one trial in Manchester, a juror was found to be ‘tweeting’ throughout a rape trial and asking her friends in a poll whether they thought the accused was guilty or innocent.

One gets a sense of incredulity that jurors who have presumably had the rules explained to them multiple times by the judge in the trial would go ahead anyway and commit such acts. One would certainly love to ask these people about their reasons for doing what they did. This, however, often remains unknown as neither deliberation within a jury room or the juror’s state of mind when they initiated the conduct are able to be revealed.

One reason why individual jurors might act in this way is a belief that their misconduct would not be found out. Another may be that they simply didn’t feel they did anything wrong at all.

Where the misconduct is revealed, the accused may need to wait months or even years to go through the ordeal again  (not to mention the strain on victims, families and friends). All the while, their reputation is impacted and their lives are put on hold.

Like them or otherwise, juries are an integral part of the criminal justice system in many countries. Acts of misconduct can strike at the heart of that system. Some jurors who conduct their own research may not fully appreciate is that their role as a juror does not involve per se pronouncing on whether or not the accused did the acts for they are charged. Instead, they are determining whether or not the prosecution has satisfied the legal burden of proving beyond a reasonable doubt that the accused is in fact guilty.

Conclusion

There is nothing inherently wrong with debating the merits or otherwise of juror decisions in general. (That said, there is a lot to be said for having an accused’s fate determined by twelve members of the community. Indeed, much of our democratic system is underpinned by citizen participation.)

For the foreseeable future, however, the system is here to stay. As such, juror misconduct erodes the strength of the system.

Let’s hope there are no more instances of it.

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