DIERCKX & ASSOCIATES LTD

This post is updated on 8 October 2009.

More and more sites like Facebook, MySpace, Twitter, Linkedin, Bebo and other social networking sites are being praised by investigators ad intelligence workers working on cases such as missing person cases, skip traces, infidelity cases but also background research and intelligence workers as a tool to assess reputation, behavior, social networks, business networks. In other jurisdictions the practice of jury vetting is already well established and social networking sites and other social media are part of the standard repertoire.

Where a trial involves a jury, investigating the panel of selected jurors may be a favorable practice in both civil and criminal trials. The Juries Act 1981 makes it possible for the solicitor or barrister representing you in your case to obtain a copy of the list holding the selected panel of jurors.

It is noted that juries in civil trials have become a rarity, in fact it is a virtually non-existent practice. Civil jury trials have basically been done away with in New Zealand.
The last known case of trial by jury was Menzies v Attorney General (CIV2002 418 00005) in late 2004.

The shift away from juries did not require a law change; it just happened quietly by judicial fiat.  Judges seem to simply rule it is ‘inconvenient’ to have a jury trial or claim that civil cases are too complicated for juries, or that the law is inextricably linked to the factual issues long accepted in law as suitable for a jury. Section 19A of the Judicature Act allows for certain civil proceedings to be tried by jury. At the same time it is most commonly relied on by lawyers to seek denial of the right to jury trial.  In subsection (5) it states:

Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be tried before a jury, if it appears to a Judge before the trial-
(a)That the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or [underline added]
(b)That the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,-
the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury.

The Courts have generously interpreted subsection 5(a) to include virtually any discussion of law as justification of a judge alone trial.   As to 5(b), judicial reasoning in successful applications for judge alone trials could well create the impression that judges consider themselves to have more technical, business or scientific knowledge than twelve random citizens. As to the how this would work out I am not sure.

So the following paragraphs primarily applies to jury selection in criminal cases. In criminal and for now the defendant has the right to have his case tried by jury if it concerns an offence that is punishable by three months or more imprisonment. (This may change to three years or more if the current responsible Minister gets his way.)

This is not the place to discuss whether or not you should opt for a jury trial, which is a matter of careful consideration in itself. We’ll depart from the premise that a choice was made in favor of a jury trial. Around 5 working days before the trial a copy o the jury panel should be available for the parties. It is in this time frame that some background research is required as parties have the right to challenge certain jurors. Usually the information obtained through background research will be used for the purpose of challenges without cause.

The whole purpose of the option of peremptory challenges is to remove those jurors that are potentially not favorably disposed to a a client’s case or arguments. It is all a matter of trying to eliminate potential prejudices. Whilst the information provided about jurors is sparce, there is room for further background research. As a party you have a right to challenge certain jurors and in some instances there may be a reason to do so even when a juror him or herself thinks he may look at the case and evidence with the appropriate distance. It is noted that on the basis of R v Hamberly [1977] QB 924 there may be room to request discharge of a juror in cases of evident necessity, whilst a test was provided in Porter v Magill [2002] AC 357 as

“Would a fair minded and informed observer conclude that there was a real possibility, or real danger (the two being the same) that the tribunal was biased.”

Social media is especially of interest to parties where it comes to the selection of jurors or even in relation to the Porter v Magill test because they are usually rich in self generated content. People’s attitudes are most often (some would argue inevitably even) by their social background, education and experiences. This is where social media comes in as a tool to get a better picture of jurors as a vital background research tool next to more traditional sources.

Some of the information that may be obtained from these sites are:

• address
• occupation
• age
• gender
• ethnicity
• political and religious views;
• sexual orientation;
• what drugs do you use;
• where are you hanging out;
• personal interests that may be relevant to the case;
• personal opinions;
• personal situation;
• mental state of being;
• social network ( your friends and family);
• business network;
• criminal connections not necessarily reflected in a criminal rap sheet.

A more comprehensive overview can be found in the previous post on the subject.

The information may well be combined with other information that is readily available on the internet if you now where to look and within a very limited time a pretty complete profile that may be of great assistance in the jury vetting process. At the same time it is important to note that the process may cost you more time than you actually have and it is therefore recommended you have this done by an experienced member of your team or an investigator that knows what he/she is doing.In addition, many lawyers developed their own strategies where it comes to jury selection, which may lead to different requirements. Some of the time honored classic approaches include but are not limited to:

• Similarity to parties criterion, which departs from the presumption that jurors will give greater credibility to those that are of similar backgrounds;
• Ethnicity criterion, which departs from the presumption that some attitudes are associated with deeply rooted beliefs and attitudes that have been passed on from generation to generation;
• Occupation an class, which departs from the assumption that certain attitudes are related to someone’s occupation or class;
• Strong versus weak juries. Where there is a strong case for the prosecution you may want to consider having a jury with strong personalities which enhances the chances of a jury getting hung.

In all these circumstances, an taking into consideration the relatively short time span in which a profile of a juror needs to be obtained, social media, researched by someone that is well shot into the matter can assist you in obtaining the information you may require in a timely and cost effective manner.

Contact us for more information on how we may be able to assist you in your next jury case.

Filed under: LAW, LITIGATION, PRODUCTS/SERVICES, SOCIAL MEDIA