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Jurors, Social Media and the Right of an Accused to a Fair Trial

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Jurors, Social Media and the Right of an Accused to a Fair Trial Jurors, Social Media and the Right of an Accused to a Fair Trial FINAL REPORT NO. 30 JANUARY 2020 CONTENTS Glossary and abbreviations ..................................................................................................................... v Information about the Tasmania Law Reform Institute – ‘bio’ ............................................................. ix Acknowledgments – ‘tag’ ...................................................................................................................... ix Executive summary – ‘In 140 characters or less’ ................................................................................. xi List of Recommendations - ‘@TEOTD’ (‘at the end of the day’) .......................................................xiii Background and Introduction to this Report – ‘ICYMI’ (‘in case you missed it’)…… ........................ xv Scope of the reference – ‘reach’ ......................................................................................................... xvii Part 1: ‘Checking-in’ – What is the Problem?.................................................................................... 1 1.1 Getting a ‘handle’ on the problem ............................................................................................. 1 1.2 Examples – ‘[facepalm]’............................................................................................................ 3 1.3 Prevalence – ‘click-through rate’ ............................................................................................. 16 1.4 ‘Q4U’ (‘question for you’) ....................................................................................................... 32 Part 2:‘Decoding’: How? Why? ......................................................................................................... 42 2.1 ‘AFAICT’ (‘as far as I can tell’) .............................................................................................. 42 2.2 The internet is not the (whole) problem ................................................................................... 42 2.3 The writing is on the ‘wall’ ...................................................................................................... 43 2.4 ‘Embedded’ behaviour ............................................................................................................. 47 2.5 ‘#motivation’ ............................................................................................................................ 50 2.6 Fairness ‘goals’ ........................................................................................................................ 57 Part 3: ‘Screenshot’: Current Laws and Practices........................................................................... 60 3.1 ‘HTH’ (‘hope this helps’) ......................................................................................................... 60 3.2 Pre-trial control of prejudicial material .................................................................................... 60 3.3 ‘TIL’ (‘today I learned’) – Pre-empanelment information/training for jurors…….. ............... 67 3.4 Juror oath/affirmation............................................................................................................... 74 3.5 Judicial directions .................................................................................................................... 80 3.6 ‘Virtual sequestration’/‘E-sequestration’ ................................................................................ 97 3.7 Faith in the jury system .......................................................................................................... 102 3.8 ‘Pop-up notification’ – Investigation/Inquiry ........................................................................ 115 3.9 Dismiss juror/s – ‘unfriend’ ................................................................................................... 118 3.10 Discharge jury (mistrial) – ‘:(’ ............................................................................................... 119 3.11 After the trial has completed – ‘EOT’ (‘end of thread’) ........................................................ 119 3.12 Punishment (deterrence)......................................................................................................... 120 3.13 Trial by Judge alone ............................................................................................................... 126 Part 4: ‘Status Update’: Reform? ..................................................................................................... 128 4.1 Trial by Jury - ‘timeline’ ........................................................................................................ 128 4.2 ‘Dropping the pin’: Where to from here? .............................................................................. 129 Appendix A ......................................................................................................................................... 130 iii Appendix B ......................................................................................................................................... 133 Appendix C ......................................................................................................................................... 135 Appendix D ......................................................................................................................................... 137 Appendix E ......................................................................................................................................... 138 Appendix F.......................................................................................................................................... 146 Appendix G ......................................................................................................................................... 155 Appendix H ......................................................................................................................................... 158 iv Glossary and abbreviations Term Definition @TEOTD Acronym for ‘At the end of the day’. # See ‘hashtag’. #nofilter A common handle on social media platforms such as Instagram to attach to photographs to indicate that no photographic editing filter has been applied to the image. #motivation A popular hashtag on social media platforms such as Instagram, Twitter and Facebook which is used to accompany positive, inspirational and uplifting content. AFAICT Acronym for ‘as far as I can tell’. AMA Acronym for ‘Ask me Anything’. A common post on social networking site ‘Reddit’, whereby the user encourages and then answers questions posed by the Reddit community at large. Back-up A copy of computer data (such as a file or the contents of a hard drive). Also, the act or instance of making a back-up. Bio A short text portion of any digital profile designed to explain who the user is. It is common to all social media platforms. Block Users of most social media networks can unrestrictedly block other users, typically by preventing them from sending messages or viewing the blocker’s information or profile. Blog A website that contains online personal reflections, comments, and often hyperlinks, videos, and photographs provided by the writer. Also refers to a feature appearing as part of an online publication that typically relates to a particular topic and consists of articles and personal commentary by one or more authors. Check-in In 2010, Facebook introduced a ‘Check-In’ feature on the social media platform that allowed users to use the GPS on their mobile phone to let their ‘friends’ know exactly where they are and to comment upon what they might be doing at that location. Clickbait Something designed to make readers want to click on a hyperlink, especially when the link leads to content of dubious value or interest. Click-through Common metric for reporting on the number of people who viewed a rate piece of content then took an action, such as clicking on an advertisement or link (used in ‘pay-per-click’ advertising). DAE Acronym for ‘does anyone else’. Commonly used as the beginning of a discussion thread on Reddit, inviting users to post responses in relation to the relevant topic/experience. v TLRI Final Report 30: Social Media, Jurors and the Right of an Accused to a Fair Trial Dropping the pin The act of letting other users know your particular location in Google Maps or any other application that shows your location on a map. EOT Acronym for ‘End of Thread’. A thread is an online discussion where a series of responses have been posted as replies to each other. ‘End of Thread’ refers to the end of such an online discussion. Embedded In the context of digital technology, the term embed refers to placing text, images, sound or computer code in a computer file, HTML document, software program or electronic device. Facepalm Used online in written form (including *facepalm*; and [facepalm]) and can also be visually represented by emojis, emoticons and in memes. It refers to the physical gesture of placing one’s hand across one’s face or lowering one’s face into one’s hand/s, covering or closing one’s eyes. The gesture is commonly understood as a display of frustration, disappointment, exasperation, shock, surprise or incredulous disbelief. Fake news Deliberate disinformation or hoaxes spread commonly online and via social media. Follow To subscribe to the feed of (someone
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