Dalhousie law professor offers insight, perspective on Amber Kirwan murder trial

Published on January 9, 2014

As the Amber Kirwan murder trial unfolds, many in the field of law are watching. One of those is Professor Rob Currie of the Schulich School of Law at Dalhousie University and Director of the law faculty's Law & Technology Institute. He responded to a few questions via email about the ongoing trial in Pictou.

John Brannen: What is the role of the jury in a trial like this where it's a small town?

Prof. Rob Currie: The role of the jury in this case is the same as it is in any other trial. The jury is the "trier of fact," which means that it listens to all of the witnesses, looks at all of the documents, photos and other evidence, and at the end of the trial it decides what the facts are, what actually happened. Once the judge instructs them on the applicable law, then on the basis of the facts they have found the jury decides whether the accused is guilty of any of the offences with which the Crown has charged him. For example, if the jury finds that the accused intentionally killed the victim after planning to do so ("premeditation"), then they will convict him of first-degree murder.

JB: What is the impact of social media on a police investigation and trial?

RC: Social media can impact the police investigation in a number of ways. Most importantly, social media can generate evidence that the police can gather and use in assessing whether or not to charge an individual. For example, people sometimes make statements or post photos on Facebook, Twitter or other social media platforms that either a) implicate them in a crime, or b) show that they are a witness to a crime. In the case of a), the police could use this kind of statement against the accused as an admission of guilt; in the case of b), when the police found that statement they would probably want to interview the witness, and perhaps the Crown would call them as a witness at trial. Social media can also create a bit of "smoke," however, in that where the case is prominent or interesting, a lot of people may be talking/commenting about it on social media, and this could create false leads and dead ends that the police would nonetheless have to run down. So it cuts both ways, to some extent.

In terms of the impact on the trial, social media can have a number of effects. Jurors have to be impartial, and it can be difficult to find impartial jurors in smaller communities where a great deal is known about the case among the people who live there; based on the reporting I've seen, that caused the jury empanelling in this case to take a while. That's not all that different from how things always were, but social media can create more and/or different kinds of problems in this regard. For example, in a trial in Moncton a couple of years ago, after the jury was empanelled it was discovered that one of the jurors had, a year or so before the trial, joined a Facebook group that expressed grief over the victim's death and took the view that the accused person was the killer. There was a mistrial as a result.

Another angle is that jurors are required to base their factual decisions only on the evidence they hear/see in the courtroom and not on any external source. Again, this is not new; jurors could always have gone home and read the newspaper stories about the case, even though the judge would tell them not to. Social media, however, again creates more opportunities for jurors to get information they're not supposed to get, either on purpose or by accident. This is compounded when jurors have mobile devices with them like cell phones, particularly if they have them in the courtroom (they're typically not allowed to these days). For example, imagine that a juror's friend reads something about the case on the Internet, and then texts or tweets the juror about it. Depending on how the juror's phone is set up, she might see that text or tweet without even unlocking the phone. There have also been problems with jurors researching the case while in the jury room, talking to someone on their cell phone when they're sequestered, etc. 

JB: The judge has allowed the use of Twitter in the courtroom. What does this mean for the trial?

RC: In one sense it's not that different, as courtrooms are open to the public and reporters have always written stories about what's going in trials. The real difference, of course, is the immediacy with which the information is circulated when it's being live tweeted. People who are going to be called as witnesses are usually excluded from the courtroom so that they are not influenced by the testimony of other jurors. What if they read the tweets about the case on their phones while they're waiting to testify? Perhaps those witnesses would have to give up their phones as a precaution, but what if the trial is delayed and they don't end up testifying that day, and can go and read a blow-by-blow description of what other witnesses have said? It's worth emphasizing that the legal impact of these questions is really unknown right now; courts all over Canada are trying various means of maintaining the open court principle in the face of social media, including rules about the use of social media. But there are no hard and fast rules right now, so it's a fascinating thing to watch.

JB: Will this trial be watched/used in the classroom by law professors?

RC: That's difficult to say and depends to some extent on what happens during the trial, but any professor interested in the impact of social media on the trial process may very well want to follow what's happening with this trial. Allowing the use of Twitter from a trial court (as opposed to a court of appeal or the Supreme Court of Canada, where it's all legal argument and usually no witnesses/evidence) is still fairly new ground. I will certainly be mentioning it to my students.