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Cure worse than disease: Virtual jury deliberations during COVID Part Two | Nik Khakhar

Wednesday, December 02, 2020 @ 9:23 AM | By Nik Khakhar


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Nik Khakhar
As we discussed in the first article in this series, central to the institution of the jury is the expectation that they form their verdict exclusively based on evidence that has been admitted at trial. While the Supreme Court of Canada in R v. Pan; R v. Sawyer 2001 SCC 42 affirmed the principle of jury secrecy — which protects the content of jury deliberations from being used as evidence to overturn a verdict — the majority also maintained that information that is extrinsic to the trial is admissible on appeal.

According to Kristin A. Liska’s Experts in the Jury Room: When Personal Experience Is Extraneous Information, since such evidence has not been evaluated through procedural safeguards — such as the voir dire or cross-examinations — its inclusion in jury deliberations poses a great risk to the accused’s fair trial. Particularly in high-profile cases or when the crime is unpopular, this risk is not a small one, since an exposure to media portrayals of the case or incorrect interpretations of law could skew one’s initial opinion, leading to a wrongful verdict.

In their jury instructions, judges are required to warn jurors against the use of evidence outside the trial, including the news, Internet sources and social media. Whether remotely or in person, the task jurors are faced with is no easy one since it poses a direct impact on the life of the accused. As a result of this pressure, jurors who are not confident in their knowledge of case matters may decide to conduct their own online research to clarify misunderstandings. Unlike in-person proceedings, where a juror can testify that another was relying on extrinsic information during the deliberations, the remote nature of virtual jury trials makes it easier for anyone to search and convey such information without others knowing. In order to ensure that the accused’s right to a fair trial continues to be safeguarded in virtual proceedings, it is necessary to explore the extent to which courts can control for this risk in remote jury deliberations.

Difficulties of controlling for extrinsic information in virtual trials

In virtual deliberations, courts will face additional barriers to preventing jurors from relying on sources outside trial evidence, such as Internet information. While courts can require jurors to install software that records their screens and turns off their Internet access during the trial, or ask them to pan their cameras across their rooms to ensure confidentiality, the increased ability of a juror to find extrinsic information during a virtual trial is one that can never be truly eliminated. Furthermore, it is unlikely that courts will choose to record contents of the deliberations — whether it is the discussion or the individual’s screen — due to a long-standing reluctance to interfere with the substance of jury verdicts.  

In 2001, the Supreme Court in Pan; Sawyer cited this case in its recognition of jury secrecy as an essential feature of its “independence and effectiveness”, rejecting the British Columbia Court of Appeal’s approach in R v. Zacharias [1987] B.C.J. No. 2333, which allowed for the disclosure of jury deliberations on the grounds of exceptional circumstances. Although Justice Louise Arbour in Pan; Sawyer acknowledged that the Zacharias decision ensured a “thorough review of the integrity of the verdict,” she maintained that this approach, if adopted, undermines the confidentiality of deliberations. The court’s rejection of a case-by-case approach makes it unlikely that the unique circumstances of virtual trials would provide sufficient grounds for additional scrutiny of deliberations, even with the heightened risks of extrinsic evidence permeating the trial.

In Ontario, the Court of Appeal similarly employed a strict application of jury secrecy in R v. Lewis 2017 ONCA 216, refusing to investigate a verdict even when a juror had submitted an affidavit indicating that extrinsic information may have influenced jury deliberations. Agreeing with the trial judge’s refusal to conduct an extensive inquiry, Justice Gladys Pardu maintained that an inquiry should only be conducted when “there is a credible basis to conclude that a jury may have been exposed to extrinsic evidence.” Without deliberations being recorded, this restrictive approach renders it difficult for courts to find a credible basis to overturn a jury verdict. If virtual jury trials are eventually considered by Canadian courts, it will be up to judges to decide whether this change in circumstances warrants a departure from precedent.

Conclusion

Although the adoption of trial by jury on a virtual platform can ensure that defendants who elect this option can have a timely trial amid the COVID-19 pandemic, several unresolved issues stand in the way of its implementation by Canadian courts. Judges and lawyers would need to implement more strategies to maximize jury comprehension, and courts would have to bear the responsibility of ensuring that the application of jury secrecy rules is consistent with the increased risk of exposure to extrinsic information. It is hoped that future research will explore the ways that these countervailing considerations can be balanced, and whether the jury trial — an essential feature to our administration of justice — can ever be incorporated into our digital revolution.

This is the second of a two-part series. Read the first article: Cure worse than disease: Virtual jury deliberations during COVID Part One.

Nik Khakhar is a first-year law student at the University of Windsor. His research has focused on the relationships between jury eligibility requirements, legal comprehension and common law secrecy rules and their impacts on the accuracy and legitimacy of criminal verdicts.

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