Episode 5 – The Jury

Transcript

EPISODE 5 – THE JURY

Stephen Parker

Juries make for great books and movies. We’ll found out what their role really is in our adversarial system in this episode, devoted to the jury.

Stephen Bottomley

Let’s start with the word “jury”.  What does it mean? 

Stephen Parker

The word derives from the latin verb iurare, meaning “to swear”.  Today’s wording generally involves a juror swearing to faithfully and impartially try the issues and deliver a true verdict according to the evidence.

Stephen Bottomley

How did juries come about?

Stephen Parker

Juries developed in England during the middle ages. In fact the magna carter in 1215 proclaimed the right to be tried by one’s peers. They are a hallmark of common law jurisdictions but are not generally used in other types of legal system, such as the inquisitorial ones in Europe, or Islamic sharia law.

Stephen Bottomley

We are used to thinking that juries have twelve members – perhaps because we have seen films like “twelve angry men” – but is it always 12?

Stephen Parker

Yes normally. Trial juries are “petit juries“, meaning small juries, and do usually consist of twelve people in criminal cases. Historically, a larger jury known as a grand jury was used to investigate potential crimes and bring indictments against suspects, whilst smaller juries were part of the process of actually trying them.

All common law jurisdictions have phased out grand juries, except about half the states in the USA, but the petit jury is a standard feature everywhere in the more serious types of offences. 

Stephen Bottomley

Section 80 of the Australian constitution provides that the trial on indictment of any offence against any law of the commonwealth shall be by jury. 

All other jurisdictions in Australia give defendants the right to a jury trial for serious offences, although they can agree to be tried by a judge alone.

Stephen Parker

We have emphasised criminal matters here, but jury trials, using smaller juries of between 4 and 8, are still possible in civil matters.  This is relatively rare, but you do see them in defamation and personal injuries cases.

Stephen Bottomley

Juries decide questions of fact, including the fact of whether the case has been made out to the required standard of proof.  However it is up to the judge to decide questions of law. 

Stephen Parker

And once the verdict is delivered it is the judge who decides the sentence, not the jury.

Stephen Bottomley

We said earlier that juries are a feature of common law systems and that by and large other legal systems don’t have them.  Why is this?

Stephen Parker

It stems from the particular fear in common law countries of the state misusing its power to prosecute and judges having too large a role in deciding people’s fate.  When i went to law school in England the first essay i had to write was on the jury as a “bulwark against tyranny”.  I’m not sure any of us 18 year-olds really knew what a bulwark was but if it was prevented tyranny it had to be a good thing.

Stephen Bottomley

Juries bring a common sense element into trials, as well as local knowledge. It’s possible they are also a safety valve against prosecutions that were strictly correct but really should not have been brought.

Stephen Parker

There is a joke, possibly fictional, of a jury in a country area where everyone knew each other delivering a verdict of “not guilty, but don’t do it again”. 

Stephen Bottomley

That’s as feeble as most of your jokes.

Stephen Parker

As you can imagine, there are numerous rules about juries and their deliberations, which we can’t cover in full.  But there are some key facts that, if our listeners are still awake, may be of interest.

Stephen Bottomley

Juries are randomly selected from those over the age of 18 on the electoral role. They must serve unless exempt, excused or successfully challenged.  Jury service is one of two kinds of mandatory civic participation in Australia, along with compulsory voting in elections.

Stephen Parker

The defence can challenge up to 3 jurors without cause, based on what the defence thinks by looking at them (the so-called peremptory challenge), and unlimited challenges “for cause”.

Stephen Bottomley

It is an offence for a juror to make their own inquiries. In a high profile case of a so-called “detective juror” in Canberra recently, a prosecution was abandoned because the juror conducted his own research into an issue and shared it with the others.  This was after the judge had given at least 17 warnings against doing this.

The prohibition on separate inquiry means no web-searching, consulting other people, conducting experiments or inspecting a place or object. 

Stephen Parker

Once the jury has retired to deliberate, they must not have access to their mobile phones. Nor, usually, should they separate, but if they are allowed to do so by the judge they swear an oath not to discuss the case with anyone.

Stephen Bottomley

The judge can allow a majority verdict if the jury has deliberated for a period of time the judge thinks reasonable.  In the normal case of 12 jurors, then 11 must agree to the verdict.  Majority verdicts are not available with some offences, such as murder, nor offences under commonwealth law.

Stephen Parker

Once delivered, the judge has to accept the verdict but in extremely rare cases may direct the jury to reconsider.

Stephen Bottomley

There are some surprising grey areas, surprising because the institution of the jury itself is so old.

Stephen Parker

Jurors can take notes but some judges don’t like it and warn them that the demeanour of witnesses is important so they should not be distracted by note-taking.  I’m not sure how many jurors will take notes knowing that the judge disapproves.

Stephen Bottomley

Jurors have the right to question witnesses, but bizarrely they should not be told of this right.  However, if somehow they make their wish known they can ask questions to clarify evidence or seek an explanation where there is confusion.

Stephen Parker

In the same way that grand juries have almost disappeared, it’s reasonable to ask whether the smaller jury of 12 people has also had its day.

Stephen Bottomley

Trials can go for many weeks.  Is it reasonable to ask people to give up that much time?  And if some jurors are excused because of the predicted length of the trial, we are left only with jurors who presumably do have time on their hands.

Stephen Parker

Trials can also be incredibly complex – such as in corporate fraud.  Does any ordinary juror really understand what is going on?

Stephen Bottomley

Also the population today is different.  We have more diversity of language and background. We have a generation used to screens and social media, and perhaps not used to sitting still for several days just listening to words.

Stephen Parker

Also the population today is different.  We have more diversity of language and background. We have a generation used to screens and social media, and perhaps not used to sitting still for several days just listening to words.

Stephen Bottomley

The real nub of the issue is whether juries make the right decision.  For what it is worth, in limited experiments juries usually make the same decision that the judge would have done.

Stephen Parker

However, we cannot know what their reasoning process really was.  Because deliberations are confidential for all time, at least in this country, it is difficult to know the typical dynamics of a jury room, including whether some people suppress their reservations because of more dominant characters present.

Stephen Bottomley

Nor can we know whether jurors are influenced by widespread unregulated social media commentary.

In an era of populism, greater inequality and identity politics can we really be sure that jurors will faithfully and impartially try the issues and give a true verdict according to the evidence?

Stephen Parker

At a practical level, jury trials take longer than judge-only trials, and there is a backlog in many court systems, leading to delays that are unfair on defendants. Recently in the uk, the chief justice has raised the possibility of limiting the right to jury trial, precisely because of the backlog there.

Stephen Bottomley

Like many issues in the legal system, one question always has to be, what is the alternative? If you can’t find a better one, you stick with what you’ve got.

Stephen Parker

Maybe jurors are biased, but there are 12 biases present with a chance of being detected and cancelled out, compared with a single judge deciding on the facts according to their possible biases.

Stephen Bottomley

We keep coming back to liberty.  It is inconceivable that a dictator would allow a jury system, which may be a very good argument for keeping it.

Stephen Parker

Let’s leave the last word to the singer Paul Simon. “I would not be convicted by a jury of my peers: still crazy after all these years.”

FURTHER READING

Jacqui Horan, All about juries: why do we actually need them and can they get it ‘wrong’? (theconversation.com)

Keith Thompson, Should We Reform The Jury? An Australian Perspective (2024) 33 Washington International Law Journal, available under digital commons at https://digitalcommons.law.uw.edu/wilj/vol33/iss1/6

Rick Sarre, Can juries still deliver justice in high-profile cases in the age of social media? (theconversation.com)

Raymond Wacks, Law: A Very Short Introduction, Oxford University Press, chapter 4