Personal Injury

Jurors' internet research disruptive to entire process: Orlando

By Kirsten McMahon, Associate Editor

It is unrealistic in this day and age to think that jurors won’t conduct their own internet research during a trial, Toronto critical injury lawyer Dale Orlando tells AdvocateDaily.com.

“As much as you hope that jurors will abide by a judge’s instructions to only consider the facts presented at trial, I don’t see this as a problem that is going away any time soon,” says Orlando, referring to reports that several recent trials in Ontario have been shaken up by juror misconduct.

In one instance, the Toronto Star reports that after eight weeks of evidence, jurors in an Ottawa motor vehicle personal injury trial “sent a note to the judge asking about a regulation under the Insurance Act, which wasn’t introduced during the trial.”

When questioned, the jury foreman admitted he had researched on the internet. While the plaintiff argued the only remedy should be a mistrial, the judge felt his “correcting charge” was sufficient.

“To my observation this was a very engaged and diligent jury on the whole and the verdict rendered at the conclusion of this lengthy trial is well supported by the evidence,” the judge wrote.

Orlando, a founding partner with McLeish Orlando LLP, says unless jurors are sequestered from day one, it’s difficult to protect the integrity of the jury trial in the digital age.

“Sequestering a jury from the outset would be the only solution, and it’s not a particularly practical one — being a juror is already onerous enough. Absent somehow taking away a jury’s internet access, I don’t think we are going to get away from this problem,” he says.

The standard instruction from a judge to a jury that they make their decision on the evidence presented in the courtroom has been around for decades, Orlando says.

“Prior to the internet, I don't think many jurors were all that keen to do their own research. These days, it is so easy for someone to go online and research a medical diagnosis or the background of expert witnesses and lawyers involved in a trial.”

The Toronto Star reports that in the United Kingdom, the Juries Act was amended a few years ago to make it an offence for a juror to intentionally seek information relevant to a case.

“In 2012, a psychology professor who served on a jury in England was found guilty of contempt of court and jailed after conducting research about an accused person,” the article states. “In Australia, some states have enacted legislation prohibiting juror research. But it’s not something the Ontario government is considering.”

Orlando says it’s a tough balance — serving on a civil jury is part of the public’s civic duty but there’s sacrifice that goes along with that.

“How onerous do you want to make it on people? But by the same token, if a judge gives you a directive and you ignore it, you’re in contempt. Without having some form of penalty, where’s the deterrent?”

He says if the problem of Google-happy jurors continues, it opens the door to mistrials or grounds for appeal.

“It’s very disruptive to the entire process,” Orlando says. “Which begs the question: why do we even have civil juries?”

There’s a large section of the insurance bar — plaintiff and defence — who feel that jury trials are lengthy, expensive and place a burden on members of the public, he says.

“In the past, the many members of the profession were advocates of civil juries because they bring good old-fashioned common sense to cases and they act as the conscience of the community,” he says.

“There’s certainly a benefit to that but you have to wonder if having juries involved in civil cases is going to be a viable option in the future,” Orlando adds.

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