Jury legitimacy and digital misconduct: A fracture in the democratic ideal?

Jurors represent the democratic ideal of lay participation in the criminal justice system. The normative theory of the criminal trial is that of a communicative process in which the defendant is called to account for his conduct (Duff et al). In criminal trials, the lay jury acts as a democratic check on the power of the State, protecting the trial process and verdict against potential tyranny of judicial power.

The role of the jury is restricted by normative responsibilities to try the case only on the evidence adduced in court and not to discuss the case with anyone outside their number. However, this democratic ideal is threatened by a progressively technologically enabled world in which jurors have access to the internet and social media in their pockets. Our increasing and inherent daily reliance on the internet and Gen AI presents tantalising opportunities for jurors to engage in digital misconduct and subvert normative juror responsibilities. This threatens the legitimacy of the jury’s role within a democratic ideal and its constitutional merit is arguably undermined when the public lose confidence in the institution.

This paper explores jury misconduct in a digital age. Drawing on case law from England and Wales and other jurisdictions, this paper considers the conflict between the democratic ideal of the jury and the reality of jurors who conduct their own research and jurors who use social media to disclose deliberations or contact defendants.