The feathers of the legal profession and judiciary have been ruffled in the past fortnight after the realisation that any juror can hop on to the CrimeNet site of the internet to see if the accused they are trying has a criminal record.
A Victorian Supreme Court judge aborted a murder trial because of the site. Defence counsel cited the fact that the site contained incorrect information on his client. The Victorian Attorney-General, Rob Hulls, threatened the site’s managing director, Ken Schultz, with prosecution for contempt of court and called for the site to be closed down.
Mr Schultz, who does not live in Victoria, told Mr Hulls to go jump. He pointed out that all in the information on his site was available to the public. And it is, but other than on Mr Schultz’s site it is difficult to get at because it is in paper version in libraries, or expensive because it is on subscription-based newspaper databases. Some of it is available on court records and other parts of the data are available on semi-official court internet sites.
The nub here, is not whether the information is publicly available, but the ease with which it can be obtained.
The response of the legal profession, judiciary and attorneys-general has been typical. “”How can we keep the system exactly the way is was before this new threat arrived. Let’s get rid of the threat by prosecuting it or legislating against it.”
The response should have been, “”Our system obviously does not cut the mustard in this new environment. Let’s change the system rather than the environment it operates in.”
When you think about it the CrimeNet site reveals how inconsistent legal thinking is about juries. Juries are praised for having good sense, for delivering good results, for delivering justice, for being a bulwark of our liberties and so on. Yet, in the same breath, these people argue that juries are so stupid and so easily led that they cannot be trusted with full information about the accused. And if that is the case, it opens the whole can of worms about whether the jury system is a satisfactory way of determining criminal guilt. It certainly runs against all the normal expectations of decision-making in society. It is at odds, for example, with the way we expect employers to make decisions on whether to hire, promote or fire. It is at odds with the way teachers mark exams, with the way university research grants and medals are awarded, with the way governments spend money. In fact, you can look at virtually any exercise of decision-making and it will reveal that no-one is stupid enough to do it the jury method.
There are four critical things we expect of good decision-making: those making the decision are qualified; that they look at all of the material that affects the decision; that they take a reasonable amount of time to make the decision; that they state reasons for the decision so it can be reviewed or at least engender confidence in the decision.
Contrast this with jurors. First, they are chosen out a hat from the electoral roll. No qualifications are needed. Indeed they are discouraged. Anyone with an ounce of brain or professional capacity can easily get off a jury and defence counsel welcome their departure. Secondly, defence counsel and the laws of evidence conspire to take lots of material away from juries (including past convictions) because it might prejudice the trial. Ironically, it is perhaps because jurors are so hopelessly unqualified for the task that they have to have this material shielded from them. If they were better qualified they could deal with these facts in a sensible way. Thirdly, juries are locked away after, often, very long trials and are expected to make a decision there and then. Judges are allowed to reserve their decisions for weeks or months. Fourthly, juries just state guilty or not guilty. There is no requirement to state reasons. Once again, it is perhaps because jurors are unqualified that they cannot be expected to state reasons and because they do not state reasons they can make snap decisions.
The CrimeNet saga has resulted in the wrong question. It should not be how can the system be protected from inevitable developments in information technology, but why is the system so defective that it cannot take them in their stride.
Australia could go the American way. In America, the jurors are locked up (in a good hotel) for the duration of the trial and they have no access to any media commentary about the trial, or the internet. That means the media can comment to their hearts content. It is a bit tough on jurors, though.
CrimeNet, is just the start. And developments like these are unstoppable. They can move offshore. Indeed, a lot of Australian newspaper databases are available on off-shore sites already. It would be better to ensure, at least, that CrimeNet is accurate and complete. You cannot do that if you drive it off-shore.
And CrimeNet is just one example of the information age challenging legal thinking. A lot of law — contempt, defamation, national security, copyright, privacy – is far too precious about publication. The legal system, and those who use it to prevent free flows of information, are going to have to adapt with a radically different environment. They would be able to control the environment to fit the existing system.