In determining the best way of dealing with the vexing issues relating to social media and juries, our team canvassed the options that have been available to courts in dealing with traditional media’s impact on juries. ....
First of all, let’s assume two things: one, social media cannot be silenced and, two, juries will continue to be used in criminal trials in Australia. These are most certainly issues worthy of further investigation in relation to this topic, however our research took a pragmatic approach to current trends by focusing on immediate and short-term strategies in dealing with current juries.
Given this framework, we need to acknowledge that there are inherent limitations to traditional approaches of managing the balance of publicity and fair trial – namely the capacity for courts to issue suppression (non-publication or “gag”) orders, or by the threat of sub judice contempt charges against those who publish material which may impact on a fair trial.
The most “doable” option lies in dealing with jurors once in the court system - a type of reverse engineering of the problem - so that jurors know exactly what they can and cannot do with social media. Traditional approaches to dealing with media impact on juries have included judicial directions, changing the venue of the trial, judge-only trials, delaying the start of the trial, sequestering the jury, and recently and controversially, polling jurors, as used in the high profile manslaughter case of Jayant Patel in Brisbane earlier this year.
This does assume, of course, that the "Only take into account what you hear in court" rule for juries is in fact right, in the sense of contributing more to justice than the reverse. I'm not convinced that this has been proven.
If if ever was true, furthermore, it may not be true now. In an era where the average citizen demands to be able to check on anything on their tablet instantly, I'm not sure that it's a reasonable - or achievable - request to give up this godlike power for the period of a trial.
And as google is more and more baked into the brains of newer generations this gets harder and harder every year.
You might, as a possible alternative, ask jurors to share with the court the sites they had accessed, enabling each side's lawyers to introduce rebuttal evidence if necessary.
We should be hesitant to insist on imposing the social institutions of the 1400s in the modern era. At the very least, someone should be required to make the argument.