I am not surprised that there was a mistrial in a recent New Brunswick case where a juror was found to be demonstrably partial in favour of a guilty verdict. Read CBC Story
Posting on a website described as an “anti-Prosser” (the accused) site is a clear indication that this juror was not objective and not honest with the court. In every jury trial, the court vets out potential jurors by asking them if there is anything they feel would prevent them from being fair. Clearly, this juror did not inform the court of her participation in an “anti-Prosser” website.
The fact that this was discovered by looking into social media is both fantastic, in this particular case, but troubling overall as it speaks to the Americanization of our jury process.
In the United States, private investigators often do background checks on jurors and the media is allowed to interview them. In Canada, we have resisted opening the door to jury scrutiny at all stages of the process. Even after a verdict is reached, jurors are forbidden from talking about their deliberations.
This case speaks to the need to review the backgrounds of jurors, which is a disturbing development. If I can have access to a juror’s social media history, I must now research and review the background of jurors in order to prevent a biased juror from slipping into the jury and perverting the process.
In many ways, it can be said that this development was bound to happen. At our firm, we have had two applications for a mistrial in jury trials this year where it was discovered that jurors were researching aspects of the case on the internet. Jurors are now being admonished not to do any research on their own and decide only from the evidence presented at trial.
The problem with any admonishment from the bench, however, is the belief that by telling someone not to do something only makes them do it. It, in effect, highlights the issue and encourages people to do exactly that because the court is hiding something.
Nonetheless, if it means protecting the trial process by doing background checks on jurors, it is a necessity in order to ensure your client gets a fair trial.
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