Abolish juries?

An article by David Mallard at New Matilda reflects on some observations (canards?) by the Lord Chief Justice of England and Wales, Lord Judge (!!) about the allegedly malign influence of the Internet generally and social media in particular on the integrity of jury deliberations in the criminal justice system.

Deficiencies in the jury system have been discussed before here at Troppo.  The very future of the jury system has also come under discussion recently within the legal profession itself following a report by academic Judith Fordham on juror intimidation in Western Australia.  Malcolm McCusker QC responded in an article in Brief (not free online) which canvassed the possibility of abolition of juries.  An extract is over the fold along with further discussion.

Although perhaps unintended, Dr Fordham’s reports lend support to the argument for the abolition of the jury system, the major defects of which are well known:

  • No reasons are given for a verdict – in an age which values “transparency” !
  • Inconvenience and economic loss for those compelled to serve, making some jurors resentful or distracted.
  • Few jurors have any experience in object ive evaluation of evidence, or understanding and applying often complex legal principles. The quip that an accused “puts his fate in the hands of 12 people not smart enough to get out of jury duty” may have less force with proposals to “widen the jury net”, but the problem remains. A 2006 NSW survey found that in 40% of trials surveyed, at least one juror, and as many as four, thought (wrongly) they had been told to acquit by the judge. A 2010 UK report said that two-thirds of jurors surveyed had not fully understood the judge’s directions.
  • Dr Fordham reported last year that a number of jurors interviewed had felt “unprepared to deliberate, pressured to vote sooner than they would have liked, or into voting in a certain way” .  Her recent (edited) report says that “intimidation” felt by jurors surveyed mainly came from other jurors. Often, one or two individuals pressure others to reach a verdict in a hurry, or to vote a particular way. Comments on Dr Fordham’s report , on PerthNow website, bear this out – as well as a general disillusionment with jury trial.
  • The internet has radically changed the way people now take in information – and make it almost pointless to direct juries not to “look up” pre-trial publicity or an accused’s history.

Comments to me from former jurors have been, almost invariably, critical of the system. In an article Scales have fallen on the Jury System, a journalist last year described her experience on a jury as a “travesty of the justice system” . She is not alone. Many ex-jurors, including author Richard Dawkins, have said that if they were innocent, they would hate to place their future in the hands of a jury; but if guilty, they would “take their chances” with one. A retired judge from the Tasmanian Supreme Court urged replacement of the jury system as “inefficient and costly” and said he believed that in about 25% of jury trials he had presided on, the jury had “got it wrong”.

It is surely time to have a critical and unemotive look at this “system” of trial, instead of treating it like a “sacred cow” .

What do you think?  I don’t have a concluded view.  My tentative opinion is that the obvious shortcomings of the jury system are mostly capable of being mitigated by a range of sensible safeguards.  It’s probably not unlike Winston Churchill’s famous quote about democracy:

Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

I do, however, think there’s quite a strong case for having complex questions of expert evidence, which most lay jurors have Buckley’s Chance of even understanding, determined by a judge sitting with appropriate independent expert lay assessors.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Alan
Alan
10 years ago

There is probably a case for asking the jury specific questions, not ‘Is Colonel Mustard guilty?’ but ‘Was it Colonel Mustard in the conservatory with the candlestick?’

.
.
10 years ago

The first thing we can do is repeal the majority verdict system and make it unanimous again.

Secondly, like South Australia, adopt conscientious objection nationwide.

Alternatively, electing judges strikes a balance between community values and professionalism. I suggest approval voting for each separate bench/branch. On the rare chance that a non lawyer gets up, they can get their own counsel.

FDB
FDB
10 years ago

I was on a jury for a murder trial, and if I hadn’t been there, I’m certain a guilty verdict would have been returned. The defendant was Aboringinal, and more than half the ‘deliberations’ were spent relating anecdotes about how much metho Aboriginals drink, and how a friend of a friend was mugged by a group of Abos once, &c &c

Thank God I’d put my hand up as foreman – that gave me the ‘authority’ to repeatedly reel things back in to discussing the case and its evidence, and reminding people again and again and again of our actual duties, and of the judge’s directions.

A successful appeal down to manslaughter would almost certainly have been the eventual result, at great expense to the taxpayer, if I’d weaseled out of my jury duty. If the judge had just handed down a verdict, then the same result, but without opening it up to racist morons for review, and without taking anyone out of their daily jobs.

Gavin R. Putland
Gavin R. Putland
10 years ago

Now that Ted Baillieu is Premier of Victoria, with Robert Clark as Attorney-General, it might be pertinent to quote the submitted text (not much different from the published text) of my letter in the AFR for Sep.22:

VICTIMS’ FREEDOM IN DOUBLE JEOPARDY

Victorian shadow attorney-general Robert Clark (Letters, September 20) conveniently fails to mention that most murder victims knew their killers – often intimately. Hence, when someone is murdered, those closest to the victim automatically become persons of interest. If there are no better leads, they remain the only suspects. Thus the people most likely to be wrongly convicted of murder are secondary victims of murder.

Double jeopardy will mean more chances to convict secondary victims. It will mean that secondary victims who are acquitted once will not be able to move on, but will continue to live in fear of becoming victims of the law as well as victims of crime.

Moreover, when victims of theft or arson report the crime, they are automatically suspected of insurance fraud. These are primary victims, not secondary victims.

It’s a safe bet that Mr Clark’s “victims groups” who are “at the forefront of the call for reform” don’t include any victims who are also former suspects!

Mr Clark further fails to note that victims can already start civil proceedings against persons acquitted under the criminal process. This approach is more likely to bear fruit than a criminal retrial because the standard of proof is lower. Therefore, if Mr Clark were serious about helping victims, he would be promising legal aid for victims who want to take civil action.

As for the offenders who confessed after acquittal, double jeopardy will simply mean no more post-acquittal confessions!

While Mr Clark’s press release promises an inquiry which would “also look at implementing similar reforms to enable convictions to be reconsidered when new and compelling evidence indicates a person has been wrongly convicted,” the precedents in New South Wales and Queensland suggest that any right to examination of new evidence of wrongful convictions will be narrower than the corresponding right concerning wrongful acquittals. In Queensland, the wrongly convicted got no new hope whatsoever.

Thus, when the likes of Mr Clark have had their way, judicial finality will be reduced to the doctrine that those who are wrongly convicted stay wrongly convicted.

If Clark’s abomination becomes law and someone is retried on a charge on which he/she has previously been acquitted, a JURY will have the power to thumb its nose at the new law and uphold the acquittal regardless of the purported new evidence. But a judge, or a panel of judges, or a panel of expert assessors who are obliged to give reasons for their decision, will not be able to do the same.

Other situations in which a jury might reasonably acquit in the teeth of both the law and the evidence include the following (with some overlap between them):

* Public opinion holds that the alleged conduct of the accused should not be a crime, but the law has not caught up;

* The accused has a defence that the law should recognize, but does not (e.g. public interest, in whistleblower cases);

* The accused could not reasonably have been expected to know that his/her conduct was illegal;

* The prosecution does not have clean hands;

* The law purports to reverse the onus of proof (as with possession of drugs).

If the jury has shortcomings as a tribunal of fact, the appropriate response is to allow another form of trial at the option of the accused. But the option of a trial by a jury of one’s peers must remain as the citizen’s last line of defence against bad laws.

FDB
FDB
10 years ago

“the option of a trial by a jury of one’s peers must remain as the citizen’s last line of defence against bad laws”

You seem to have fundamentally misconstrued the purpose of a jury. It is to guard against corrupt or inept judges, not ‘bad laws’.

A jury decision (acquittal or indictment) without a basis in law (‘good’ or ‘bad’) is subject to appeal, and that appeal WILL be successful.

Gavin R. Putland
Gavin R. Putland
10 years ago

FDB: In the trial to which you referred above, it seems that the defendant had more to fear from racist jurors than from the judge, whose directions you apparently found helpful. In any case, if a “corrupt or inept” judge stops vital information from reaching the jury, how are the jurors to know what is being filtered out, or even that any such filtering is being done? But a jury of non-lawyers can readily discern “bad laws”.

Re: “A jury decision (acquittal or indictment) without a basis in law (`good’ or `bad’) is subject to appeal…”

I wasn’t aware that juries “indict” in Australia. But they can certainly acquit or convict. And in Victoria, as I write, there is still no appeal from a jury acquittal.

Moreover, as juries don’t give reasons for their decisions, who’s to know whether any such decision is “without a basis in law”?

I am unrepentant.

FDB
FDB
10 years ago

“But they can certainly acquit or convict”

Heh. I was really really drunk when I wrote that comment, and sat there for ages trying to think of the opposite of ‘acquit’ (and looking back, I’m pretty surprised that was my only fluff!)

“Moreover, as juries don’t give reasons for their decisions, who’s to know whether any such decision is “without a basis in law”?”

You’re okay with this? That a jury could simply decide they don’t like a law, regardless of obvious guilt on the evidence presented, and acquit without even having to explain why? Or in my case, decide to convict (yay!) on utterly spurious racist grounds, and necessitate an appeal which would just hear all the same evidence, all over again, and expensively come to the correct verdict?

Be under no illusions about this – I personally saved the WA courts tens of thousands of dollars, with a couple of hours of gentle browbeating and a single well-timed table-thump. That sort of situation should NEVER have to arise.

The above principle is very apt – if I were guilty of the crime I’d been charged with, I’d want a jury trial. If innocent, no freaking way. That’s a bad, bad sign, right?

Gavin R. Putland
Gavin R. Putland
10 years ago

FDB asks: “You’re okay with this? That a jury could simply decide they don’t like a law, regardless of obvious guilt on the evidence presented, and acquit without even having to explain why?”

When I consider what sort of law a jury would be inclined to treat that way, yep, I’m okay with it. I consider it entirely reasonable and democratic that a law purporting to classify certain behaviour as criminal – hence punishable by deprivation of freedom – should have to be ratified not only by the legislature and the executive, but also by whichever 12 citizens make up the jury. That’s why the accused should be able to choose a jury trial.

“Or in my case, decide to convict (yay!) on utterly spurious racist grounds, and necessitate an appeal which would just hear all the same evidence, all over again, and expensively come to the correct verdict?”

The situation is worse than you assume. The appeal court won’t simply second-guess the jury. And as the jury doesn’t give reasons, who’s to know whether the grounds are spurious or racist? But that’s why the accused should be able to choose some other form of trial. Horses for courses.

FDB
FDB
10 years ago

Well Gavin, you’re the only person I’ve ever heard advocate for legislatively activist juries.

I for one am totally horrified by the idea. I don’t necessarily think that the ordinary citizen’s democratic input should begin and end with voting in elections, but this is a bridge too far.

Gavin R. Putland
Gavin R. Putland
10 years ago

FDB: July nullification (yes, it has a name) has been around at least since 1554, and has enjoyed some measure of protection at least since 1670; see http://en.wikipedia.org/wiki/Jury_nullification and http://en.wikipedia.org/wiki/John_Peter_Zenger .

Of course a jury might be immovably biased against the accused or against the victim. The former problem can be avoided by allowing the accused to choose another form of trial. The latter problem cannot. But in either case the jurors, having decided to do the wrong thing simply because they can, will not be influenced by any philosophical arguments on the proper purpose (if any) of jury nullification.

So if the accused could choose between a jury trial (with the possibility of nullification) and another form of trial (in which the tribunal of fact gives reasons), some cases would be handled better than at present, and none would be handled worse.

You “don’t necessarily think that the ordinary citizen’s democratic input should begin and end with voting in elections…”

Neither do I. I think citizens should be able to disallow some types of laws. At present, their only opportunity to do that is through jury service. Even if there were other opportunities, citizens might not find out about a bad law – or might not understand why it is bad – until they find themselves either in the dock or in the jury box. So the power of the jury to acquit in the teeth of the law and the evidence will still be needed.

Jacques Chester
Jacques Chester
10 years ago

I used to think that professional jurors would be a potential compromise. Each laywer still has to agree to the jurors. I’d still require unanimity.

Still, while I can see lots of upsides to do with training and professionalism, I am also anxious that it would sever the link between the criminal justice system and society at large. Maybe that’s a step too far, especially since some bright spark will eventually suggest merging juror and judge.

On the other hand, most magistrates do an OKish job for less crimes (though see Wicking’s comic about Magistrate Park), so maybe I’m worried over naught.

Alan
Alan
10 years ago

I am happy to advocate for legislative juries. Parliaments are exceedingly good at creating new offences and exceedingly bad at abolishing them.

Patrick
Patrick
10 years ago

FDB, Gavin is definitely right on Jury nullification and the lack of appeal, however I wouldn’t get too carried away with it.

I agree with KP albeit with not much more conviction than he expresses that complex expert evidence should not be decided by a jury.

With that caveat I like juries.

Finally, you should all watch 12 Angry Men, especially FDB from the sounds of it!

Fred Ward
10 years ago

Apologies about coming in late on this old thread. I was surfing the net on jury duty and thought I would come in on the arguments above. I think juries are valid as long as they hear all the facts. They are misled, and left in the dark. It is all a big game, and it appears the wealthier you are, the better your lawyer and the better your result. This youtube clip pretty well sums it up.

http://www.youtube.com/watch?v=iHFa30pD3N8

Rather than abolishing juries, I think we should fix the courts first.