“We are leaving our fate in the hands of twelve random people, what if they hate us?” – Khloe Kardashian
In season two of The Kardashians, Khloe Kardashian, sitting around a table with her sisters summed up the fear of many navigating the legal system – what happens if the jurors hate me? The concept of juries is for the outcome of a case to be effectively determined by ones peers. Applying in either criminal or civil matters, a jury should theoretically provide for a fair, just and unbiased outcome.
Khloe and Kim Kardashian, as well as Kris and Kylie Jenner of the Kardashian clan found themselves facing a jury for the latter. The mother of Rob Kardashian’s daughter, Blac Chyna, was seeking civil damages to the amount of $100 million dollars – on the basis that the clan had defamed her and improperly interfered with her business dealings. Rob Kardashian and Blac Chyna had their own spin-off series, Rob and Chyna, which had one season and was scrapped before the second season was aired.
Rob Kardashian and Blac Chyna’s relationship was “notoriously tumultuous” as Vice reported, following their breakup which came soon after their daughter, Dream, was born. In July 2017, Rob posted a nude photo of Chyna online and accused her of cheating on him during their engagement. Following this act of image-based abuse, Blac Chyna sought a restraining order against Rob. Chyna commenced proceedings against the Kardashian clan, including Rob, in October 2017. The hearing against Rob Kardashian, concerning the image-based abuse, was split from the rest of his family.
On the 18 April 2022, the Kardashians sat in an Los Angeles courtroom as the process of jury selection for the case commenced. Many jurors did not hold back their thoughts towards the reality tv stars, with one claiming the Kardashians were not ‘the best role models’ and another saying that their ‘negative perception’ towards the Kardashians would prevent them from being unbiased. Judge Gregory W. Alarcon had to tell the pool of potential jurors that while he ‘appreciate[d] their honesty… everybody is entitled to a fair trial’ before citing a jury direction that the wealth of a party should not be considered. On the other end of the spectrum, many potential jurors expressed how they were ‘big fans’ of the Kardashians which would also affect their ability to deliver an unbiased verdict.
The jury began deliberations after nine days. The case against Kim Kardashian was dropped mid-trial however, the rest of the Kardashian Jenner’s were successful as it was found that none of the defendants had defamed Chyna or interfered with her contract. Rather, the show had ended because the relationship between Rob and Chyna was irreconcilable, not because of the Kardashians’ actions. The jurors did find that the Kardashians had “acted in bad faith” by telling the executive producers of an instance where Chyna had allegedly abused Rob Kardashian, however, this did not have a substantial effect on their contract.
The Kardashian’s trial, as a recent example, illustrates some of the most prominent concerns that can arise in jury trials for high-profile cases.
In Australia, the role of juries in high profile fell under examination in the High Court Appeal of Pell v Queen [2020] HCA 12. The High Court unanimously quashed the charges against Cardinal George Pell arising from allegations of historical child abuse. Pell succeed on the ground of unreasonableness, which required a finding that that on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of Pell’s guilt.
The outcome of Pell largely depended on the evidence of the case – that being, there were 23 “opportunity witnesses” who were able to give evidence of the routine involved in Sunday Mass at the time of the alleged offending. This evidence was considered highly persuasive against the sole complainant or victim of the sexual abuse, who nevertheless, was considered by the High Court to be a “compellingly truthful witness.” This means that its not to say that the High Court did not believe the Complainant, but rather, there was so much evidence of routine that it made it difficult to find that Pell was guilty beyond reasonable doubt.
Courts are generally reluctant to intervene in jury trials, because of the vital role that juries play in the justice system. They are meant to be the decider of facts and representatives of the community, while bringing their own lived experiences and values. The right to be tried by ones peers is in fact one of the few rights enshrined in our constitution. However, the pervasiveness of social media can bring into question the extent to which jurors can remain impartial in high profile and polarising cases.
In April 2020, Victoria introduced Judge only trials as a way to deal with coronavirus so long as the defendant agrees, and prosecution is consulted. This power was extended for a further 12 months in March 2022 in response to the backlog caused by the pandemic. As highlighted by Lawyers Weekly, this amendment was supported so long as there were sufficient safeguards in place, including that the defendant had received legal advice as to whether to consent to a judge only trial, and that it is in the interest of justice to make the order.
Felicity Gerry in The Conversation proffered the following concern with the use of Judge only trials:
Even with the ostensible consent of an individual to a judge-only trial, there is a real risk we lose a sense of public accountability for decisions at the state level and the methods used to accuse people of serious crime.
Gerry also expressed concerns that the Australian judiciary may lack diversity and thus create a risk of bias against minority groups. It could also, she suggested, create a risk of judges crafting decisions in a way which makes them difficult to appeal.
Similarly, John Eldridge’s 2018 article in The Conversation considered the challenges of high-profile defendants and prejudicial publicity in jury trials. Eldridge suggests the ‘modern conditions’ may cast doubt on the ‘traditional mechanisms,’ including changing venues, on reducing the risk of prejudice. Like Gerry, Eldridge suggested there is little empirical evidence to support that ‘judges are significantly more capable than jurors of putting prejudicial information to one side in decision-making.’
Most recently, Rick Sarre in The Conversation considered the role of juries and social media in the Brittany Higgins Trial in his November 2022 article. The jury’s service had been dismissed after it was revealed that material downloaded from the internet was found in the jury room. While jurors are asked to only look at evidence adduced in trial, it could be argued even if jurors try to abide by this that they may be exposed through their incidental, daily use of social media.
Sarre suggested while jurors have withstood the test of time, there are compelling arguments against juries. For example, he suggested that up to 92% of criminal matters in Australia are heard without a jury in the Magistrates Court. Sarre also considers that whilst jurors are given directions, they often do not use the decisions in coming to a decision, or may overstate the role of DNA evidence in spite of the jury direction. They may also ignore or simply misunderstand the nature of the directions given to them.
Sarre proposes some compelling options, including either following suit with European countries by having a panel of judges or combination of judges and lay people. Alternatively, he considers whether jurors should be allowed to ask the Judge questions during breaks, including anything they may have “accidentally” come across on social media.
In an age where the news and social media is becoming increasingly intrusive, it raises questions as to whether any proposal can adequately balance the principles that underpin the justice system.
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