2. Jury research

Updates and background for this project (Digest)

• Nature and limitations of jury research
• Australian studies
• Overseas research
• Conclusion

NATURE AND LIMITATIONS OF JURY RESEARCH

2.1 This chapter provides an overview of the state of research into jury directions, with particular attention to whether jurors comprehend them. While this growing body of research provides a useful background to various issues examined in this project, its limitations need to be borne in mind.

2.2 In most Australian jurisdictions, there are restrictions on communicating with jurors from actual trials, particularly in relation to what transpires during deliberations. Consequently, the bulk of the jury research consists of jury simulations (sometimes referred to as mock jury experiments). The most important advantage of simulations is what social scientists call “internal validity”, which is validity in making causal inferences. The random assignment of participants to different treatments allows researchers to conclude that the only difference between the experimental and the control group is the experimental manipulation.¹ For example, if experimenters give one group of mock jurors both oral and written directions and this group performs better on a comprehension test than the group given only oral directions, the experimenters may conclude that written directions assist comprehension.

2.3 Jury simulations, however, have limitations. Some use students or paid volunteers and, therefore, may not be truly representative in all respects of actual jurors in terms of age, economic, and educational backgrounds, or in the way that the former are expected to fit what may be lengthy jury duty into their lives.²

2.4 More significantly, these experiments do not expose the participants to the environment of an actual trial. The directions and case facts are delivered not in live trials but through mock trials, audiotapes or videotapes. Some experiments do not give the participants case facts, which in actual trials give much-needed context to the directions. The stakes in jury simulations are different because, unlike an actual trial, there are no victims and no one’s fate is actually in the balance. Finally, these experiments do not always replicate the dynamics of jury deliberations, where some of the jurors’ confusions and misunderstandings might be rectified through discussions with other jurors or requests for further directions.

2.5 To the extent that jury simulations do not replicate the conditions that jurors experience in actual trials, their “external validity” – the degree to which results in the experimental setting can be generalised as being reflective of what does or would happen in actual trials – is weak.³

2.6 A second category of jury research consists of surveys which involve questions in writing or interviews with jurors. Jury surveys offer the closest account of whether and how jurors, both individually and as a collegial body, comprehend and use their instructions in their deliberations. However, self-reporting by jurors may produce distorted or incomplete reports. Jurors may not accurately recall events during the trial and deliberations. Further, they may believe they understood the instructions when in fact, based on objective measures, such as tests using true or false and/or multiple-choice questions, they did not.

2.7 As for surveys of judges, the answers on whether jurors understand legal directions are based purely on judges’ impressions.

AUSTRALIAN STUDIES

A jury simulation

2.8 A jury simulation was conducted in 1984 to determine whether standard jury instructions developed by the NSW Jury Committee could be regarded as reasonably and substantially intelligible to ordinary people.⁴

2.9 The mock jurors consisted of one group of school students with an average age of 18 years from Stirling College in the ACT. The other group comprised college students ranging in age from 20 to 45 years from the Canberra College of Advanced Education (“the CCAE students”). A script was prepared of a summing-up in a hypothetical case of murder and armed robbery, in which nine instructions on aspects of the law were given, including self-defence, provocation, good character, common purpose (joint criminal enterprise), identification, alibi and collective verdict. These instructions, along with the facts, were given to both groups. There was a control group which received the facts, but not the instructions on the law. After the script was read, the mock jurors were asked to complete a questionnaire, which required the students to: (1) complete a multiple-choice questionnaire testing their understanding of the instructions; and (2) give an individual verdict. Thereafter, they were broken up into groups of 12 and instructed to elect a foreperson and come up with a group verdict.

2.10 The results of the study showed that participants understood some instructions “much better” than others. The alibi instruction was found to be best understood, while the instructions on common purpose (joint criminal enterprise) and self-defence⁵ were the least well-understood. Participants’ understanding varied according to the “perceived complexity and effectiveness” of the instructions.⁶

2.11 The CCAE students were better at understanding than the Stirling College students. While all the CCAE students understood the instructions moderately to very well, only about half of the Stirling students understood the instructions equally well. The authors surmised that age (more life experience) and educational status (greater intellectual skills) seemed to be associated with the ability to understand and apply jury instructions, although the study did not specifically measure the correlation of these factors with comprehension.⁷

2.12 The study found that the ability to comprehend and the ability to apply the instructions were strongly associated. The participants who were able to comprehend the instructions were also able to apply them to specific situations and vice-versa.⁸

2.13 Unexpectedly, the control group that did not receive the instructions scored just as well as the others. The authors identified possible reasons for this, including that: most people have some common sense or intuitive knowledge of many legal concepts; the legal concepts may be attuned to ordinary notions of fairness and morality; perhaps the case study was not sufficiently sophisticated to reveal a difference; or the study was too complex and created information overload, with the result that each group responded to the questions intuitively.⁹

2.14 The authors of the study acknowledged that the results must be interpreted with care due to a number of limiting factors. The sample of students was not representative of people who serve on juries. The students, particularly from Stirling College, were younger and possibly better-educated than the pool of jurors. Women were also over-represented in the study. Further, the testing environment was not comparable with conditions in an actual trial. The participants did not have the usual cues from the observation of witnesses nor did they receive reinforcement of submissions on the points of law from the prosecutor and defence counsel that may contribute to the learning and communication of legal concepts.¹⁰

A survey by this Commission

2.15 This Commission carried out a survey in 1985 on juries in criminal trials as part of its project to review criminal procedure.¹¹ A total of 1,834 jurors from 181 juries, 30 District Court judges and 12 Supreme Court judges participated in the survey.

2.16 Of the 42 judges, 71% said that some of the instructions on matters of law are too difficult for jurors to understand. Self-defence stood out as the area considered difficult for jurors to understand. Fifty-two percent considered it conceptually difficult and 26% said it is only made difficult by the required formulation of words.¹²

2.17 Next in order of difficulty was intoxication: 38% of the judges considered it difficult for jurors to understand, with almost all of them saying that the reason for the difficulty was the required formulation of words.¹³

2.18 The instructions on mental illness, conspiracy, diminished responsibility and provocation were assessed in a similar way by all the judges surveyed. In each case, about one-third of judges considered the area difficult to understand. In each case, a substantial number of judges considered that comprehension is made difficult by the required formulation of words.

2.19 Alibi is the single area in which only one judge considered it difficult for jurors to understand and no judge considered the words required to be given made it difficult for jurors to understand.¹⁴

2.20 Jurors were asked if the judge’s summing-up at the end of trial helped them to understand the case. Of the 1,697 jurors who answered the question, 95% said the summing-up did help them to understand the case.¹⁵

2.21 There were 65 jurors in the NSW survey who said that the summing-up was not helpful. The reasons and comments they gave were:

• the summing-up was unnecessary because they already understood the law;
• certain points of law were still not understood;
• the summing-up was confusing;
• the summing-up was too long or boring;
• the case was too confusing; and
• the judge was not a clear speaker.¹⁶

2.22 A more recent NSW jury survey was conducted between 1997 and 2000.¹⁷ The aim of the survey was to understand how prejudicial media publicity associated with criminal trials may affect the perceptions of jurors and the verdicts they reach. While the survey was not primarily designed to examine comprehension of jury directions, some jurors made comments about problems they had about the directions they received from the trial judge. The comments may be summarised as follows:

• In relation to opening judicial remarks, some jurors indicated that there was an inadequate explanation of their role and what constitutes evidence for the purpose of deciding issues of fact.¹⁸
• Some jurors were confused about the directions in the judge’s opening remarks about note-taking during the trial and about requesting transcripts of proceedings for use in their deliberations.¹⁹
• Some jurors had difficulty with the elements of manslaughter and the meaning of “beyond reasonable doubt”.²⁰
• There were jurors who, in interpreting directions on unanimity of verdicts, may have “put undue weight on those parts of the direction which exhort the jury to reach a unanimous verdict and insufficient weight on those parts which stress the need for each juror to be sure in his or her own mind that the verdict is the right one”.²¹

2.23 The Bureau of Crime Statistics and Research (BOCSAR) recently conducted a survey of jurors who sat in 112 criminal trials in NSW between July 2007 and February 2008. Of the 112 trials, 103 (92%) were District Court matters, while nine (8%) were Supreme Court matters. A total of 1,225 out of 1,344 jurors (91.2%) from the 112 trials participated in the survey.²²

2.24 The survey made the following findings, among others:

• In relation to the judge’s instructions on the law, most of the jurors (94.9%) said that they understood them completely or “understood most things the judge said”.²³ This result is consistent with surveys conducted in WA²⁴ and the United Kingdom.²⁵
• As to the judge’s discussion of the evidence in the summing-up, about 85% said that they understood either “everything” or “nearly everything”.²⁶
• About 67% said that the judge’s summing-up of the evidence helped either “quite a bit” or “a lot”.²⁷
• Almost all (97.1%) of the jurors said that the judge generally used words in the summing-up that are easy to understand. A few jurors identified specific words with which they had difficulty, such as: “malicious”, “intent”, “beyond reasonable doubt”, “wrongful”, “indictable offence”, “circumstantial evidence”, “word against word”, and “supply of prohibited drug”, as well as sentences with double negatives.²⁸

Australian Institute of Judicial Administration survey of judges

2.26 A recent Australian Institute of Judicial Administration (“AIJA”) survey provides insights into judges’ perceptions of juror comprehension.³⁰ The study surveyed 185 judges who preside over criminal trials in Australia and New Zealand for the purpose of understanding judges’ practices relating to opening remarks, directions during the trial, and summing-up, as well as any other practices they used to communicate with the jury.³¹

2.27 On the issue of jurors’ comprehension of the summing-up, the survey found that:

• About 57% of the judges believed that jurors had some or a great deal of difficulty understanding the legal directions in the summing-up.
• 72% believed that jurors had little or no difficulty understanding the summary of counsel’s addresses.
• Almost 70% said jurors had little or no difficulty comprehending the summary of the evidence.³²

UNSW pilot jury study

2.29 This pilot study, sponsored by the Law and Justice Foundation, examined various aspects of 10 criminal jury trials conducted in the District and Supreme Courts in Sydney from late 2004 to mid-2006.³⁴ It focused on juror comprehension of and compliance with two specific judicial directions - directions about the limited use of evidence of the defendant’s criminal past (either prior convictions or uncharged criminal acts)³⁵ and judicial directions that jurors refrain from private research and investigations.³⁶

2.30 The study’s preliminary findings included that the “investigation” directions given in the 10 trials tended to omit one or more of the particularly serious consequences of juror non-compliance. In particular, no judge indicated to the jury that a juror who engaged in extra-curial investigations would commit a very serious crime.³⁷ Other omissions related to specific ways in which such investigations would compromise the fairness of the trial process and/or create a basis for the trial to miscarry. In addition, the study revealed that juror assessments of the adequacy or otherwise of a judge’s “investigation” direction did not necessarily correlate with a juror’s belief that the direction should be obeyed. Four jurors who, like the vast majority of juror respondents in the 10 trials, were in agreement that the judge had given clear directions, disagreed that a juror should obey the direction if he or she was frustrated with the adequacy of evidence in a trial. A sixth juror described the judge’s direction as unsatisfactory, but her comments indicated that she appeared to disagree with its message, not that it was unclear.³⁸

2.31 The study’s incidental findings support other studies’ findings regarding jurors’ express desire and indications of their apparent need for greater guidance of the task at hand and on aspects pivotal to deliberation, including the application of the notion beyond reasonable doubt to the case before them. In this context, the study also revealed that a significant number of jurors appeared to see their task as one of determining guilt independently of the evidence in the trial. A number of jurors expressed views in conflict with what can be compendiously described as the accusatorial character of the common law trial.³⁹

OVERSEAS RESEARCH

2.32 The bulk of research on jury directions has been conducted overseas. This paper is not intended to be a comprehensive literature review and will canvass only some of the more interesting and well-known studies. The literature is classified according to the country where the research was undertaken.

New Zealand

2.33 The New Zealand Law Commission carried out a jury survey in 1998 as part of its review of criminal procedure.⁴⁰

2.34 Two-thirds of the 312 jurors who participated in the survey described the judge’s opening remarks as very helpful; a quarter said that they were somewhat helpful; 8% could not remember them; and only 2% expressed any negative comment.⁴¹ A number of jurors wanted the judge to give more information about the case and also to give them a legal framework during the opening remarks that could help them to organise the evidence as it emerged.⁴²

2.35 The survey found that jurors were overwhelmingly positive about the helpfulness and clarity of the judge’s summing-up: 80% found it helpful and 85% believed it was clear.⁴³ Nevertheless, a few of those jurors who had found the judge’s instructions helpful or clear also expressed some criticisms. Some found the instructions too detailed or too technical. A few said the judge’s summing-up did not have a good structure. Some criticised the presentation of the summing-up, saying that it was boring, delivered in a monotonous voice, and conducive to sleep. Many wanted directions from the judge on the appropriate verdict.⁴⁴

2.36 Despite the large majority of jurors saying that the summing-up was helpful and clear, the study found evidence of widespread misunderstandings about particular aspects of the law. Fundamental misunderstandings of the law emerged at the deliberation stage in 35 out of the 48 trials.⁴⁵ Some of the misunderstandings discovered by the researchers included:

• Ingredients of the offence. In 19 trials, one or more jurors misunderstood significant aspects of the ingredients of the offence and, in two of these, errors in the judge’s summing-up contributed to the problem. Some problems included inadequate understanding of: the distinction between murder and manslaughter; the meaning of “wounding” and “supply”; what was sufficient to amount to “lawful excuse” or “lawful, sufficient and proper purpose”; the difference between “fraud” and “forgery”; and the meaning of “failing to account”.⁴⁶
• The meaning of “intent”. In five trials, juries struggled with the meaning of “intent” (they were unsure about the distinction between purpose and intent). Typically, the judge’s summing-up failed to address this issue, as a result of which the jurors debated it and misunderstood what the law required them to decide.⁴⁷
• The meaning of “beyond reasonable doubt”. Many jurors said that the jury was uncertain what “beyond reasonable doubt” meant. They generally debated in terms of the percentage of certainty required, variously interpreting it as 100%, 95%, or 50%.⁴⁸
• The meaning of “on the balance of probabilities”. In four cases where the accused was charged with possession of cannabis, some jurors did not fully understand the implications of the fact that, when the amount of cannabis involved reached the threshold at which sale or supply was presumed, the burden of proof shifted to the accused to prove that the cannabis was not possessed for that purpose.⁴⁹ One juror did not know what the balance of probabilities meant; one thought that the standard of proof in relation to the accused was “beyond reasonable doubt”; and one indicated that the jury as a whole was confused about the standard of proof. Another said that several members of the jury did not understand why the onus was reversed and thought it might be because the accused chose to testify.⁵⁰

2.37 In England and Wales, a survey known as the Crown Court Study⁵¹ was conducted in 1992 as part of the Royal Commission on Criminal Justice. The researchers sent questionnaires to judges, lawyers, the police and jurors.

2.38 On the question of whether the jurors found it difficult to follow the judge’s directions on the law, 94% said they found it not at all difficult or not very difficult to follow the judge’s directions on the law.⁵² Only 6% found it fairly difficult to do so. However, one-third reported that one or more of their fellow jurors had wanted to ask the judge for further directions.⁵³

2.39 A contemporaneous but smaller survey was undertaken at the Belfast Crown Court. Like the Crown Court Study, an overwhelming majority (97%) of the jurors reported that they understood the summing-up. However, the author acknowledged the need for caution in respect of jurors’ self-assessment of their comprehension of instructions.⁵⁴

2.40 More recent research in England was carried out in 2001-2002 pursuant to a research grant from the Home Office.⁵⁵ This survey covered 361 jurors who recently completed jury service at several English courts. The survey found that only 7 out of 110 responses indicated that the summing-up was difficult to understand. The survey made other instructive findings with respect to juror comprehension of court proceedings:

• The main impediment to understanding proceedings was the use of legal terminology.
• Some jurors were confused about the requirement for the jury to leave the courtroom while “points of law” were discussed.
• Some felt that evidence was not always presented in the clearest ways, and that maps, diagrams, photographs and other visual aids were under-used in courts.
• Some were confused about whether or not they should be taking notes.
• There was confusion regarding whether it was appropriate to ask questions during the trial.

2.41 There have been numerous studies on jury directions in the United States. This paper mentions only a few studies to illustrate the consistent findings, particularly in jury simulation experiments, that show low levels of juror comprehension of judicial directions. It cannot, however, be assumed that the results of these American studies are directly applicable in the Australian context because of the differences in the way criminal jury trials are conducted in the two jurisdictions. For example, unlike in Australia, US jurisdictions generally limit or prohibit judicial comment on the application of the law to the evidence.⁵⁶

Jury simulations

2.42 In a famous jury simulation,⁵⁷ the participants obtained a comprehension rate of 70% based on a multiple choice and true/false test of a number of legal directions. The authors of the study described this result as disappointing and worrisome and said that “should 30 per cent of all jurors fail to comprehend important legal requirements, then hung juries may become in part startlingly explainable”.⁵⁸

2.43 Some of the other findings of this study include the following:

• After being freshly instructed through a carefully prepared videotape, only 57% correctly believed that a crime could be proved on circumstantial evidence, while the remaining 43% refused to accept circumstantial evidence, would view it with extreme suspicion, would not consider it seriously, or were uncertain about it.
• Only 50% of the instructed jurors understood that the defendant did not have to present any evidence of his innocence and that the prosecution had to establish his guilt beyond reasonable doubt. Ten percent were uncertain as to what “presumption of innocence” meant and 2% maintained the belief that the burden of proof rested with the defendant.
• Despite instructions to the contrary, 26% believed out-of-court statements made by the defendant must always be completely disregarded.
• Jurors were instructed that they were the sole judges of the credibility of the witnesses, and that they could consider, in judging credibility, reputation for truthfulness, prior conviction, and inconsistencies within the testimony of witnesses. Notwithstanding this instruction, 39% incorrectly believed that evidence of prior conviction of a witness would have no effect on weakening the weight of the testimony. Fifty percent incorrectly believed the inconsistency of a witness’s statement, when contrasted with the testimony of other witnesses, could not be used to discredit the testimony of the witness. Thirty-three percent erroneously believed that a jury must ignore any attempt to discredit a witness by showing a bad reputation for truth, honesty or integrity.

2.45 One study used jurors who had already sat in trials.⁶² The jurors, who were asked to answer true or false questions about selected pattern instructions, obtained low comprehension scores, averaging less than 5% on the questions involving jurors’ duties and procedural rules, and 41% on instructions on substantive law. Further, it would appear that the jurors were not aware or would not admit their lack of understanding since they very rarely chose the “I don’t know” option in the questionnaire.

2.46 Another study also conducted a comprehension experiment on jurors who had already sat in trials.⁶³ It confirmed the results of other studies showing a generally low level of juror comprehension of legal rules used in trials. For example, the participants of this study were confused about reasonable doubt and any doubt, with the majority believing that any doubt was equivalent to a reasonable doubt.⁶⁴ Moreover, on the question of whether reasonable doubt must be based only on the evidence that was presented in the courtroom and not on any conclusion jurors may draw from the evidence, only 32% gave the correct answer (false).⁶⁵

2.47 The authors of the study cited a number of factors that affect comprehension, based on the data they gathered. First, jurors who were exposed to more instructions generally answered more items correctly, confirming that juror comprehension increased as a function of exposure to instructions. Secondly, the jurors with higher education levels had better comprehension results than those with lower education levels. Finally, the provision of written instructions affected comprehension levels significantly, with those who received written instructions scoring higher than those who did not.⁶⁶

Self-reporting coupled with an objective assessment

2.48 Unlike most of the studies discussed so far, one jury survey⁶⁷ used both self-assessment by jurors and an objective test. Immediately after the completion of the trial, jurors were given a questionnaire with questions eliciting subjective responses (for example “How well did you feel you understood the jury instructions that the judge gave you?”). The questionnaire also contained true or false and multiple choice questions designed to test objectively the jurors’ comprehension of the instructions they received during the trial.⁶⁸

2.49 Based on jurors’ self-assessed answers, the study found that almost all jurors (97% in criminal trials and over 98% in civil trials) felt that they understood the judicial instructions either “completely” or “pretty well”.⁶⁹ However, their overall mean score on the objective test was only 75%, which led the authors of the study to conclude that the jurors had not understood the directions as well as they thought they had.⁷⁰

CONCLUSION

2.50 The results of a body of jury simulation research raise questions about jurors’ level of comprehension of judicial directions. Some of the directions that appear to be problematic include those that are vital to the ability of juries to render correct verdicts, such as the directions on proof beyond reasonable doubt, presumption of innocence, onus of proof, use of circumstantial evidence, and self-defence.⁷¹

2.51 The jury surveys which relied on self-assessment by jurors consistently showed that most jurors believed that they understood the judge’s directions⁷² and/or found the judge’s summing-up very useful.⁷³ However, the surveys that have gone beyond asking jurors general questions about whether they understood the judge’s directions (and/or whether they believed the summing-up was useful) have found that jurors do not have the high level of comprehension they thought they had,⁷⁴ or that they did, in reality, misunderstand or have problems with specific directions.⁷⁵

2.52 The research currently available does seem to point to a need to make jury directions more comprehensible in order to assist juries to render verdicts that are in accordance with the law.

1. For a general discussion on the different jury research methods, see R Hastie, S Penrod and N Pennington, Inside the Jury (Harvard University Press, 1983) 37.

2. See, however, B H Bornstein, “The Ecological Validity of Jury Simulations: Is the Jury Still Out?” (1999) 23 Law and Human Behavior 75, a review of 26 studies comparing students and jurors which determined that there were few differences between the decision-making of students and jurors or members of the community.

3. R Hastie, S Penrod and N Pennington, Inside the Jury (Harvard University Press, 1983) 37-45. See also M J Saks, “What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?” (1997) 6 Southern California Interdisciplinary Law Journal 1, 2-9. But see S S Diamond, “Beyond Fantasy and Nightmare: A Portrait of the Jury” (2006) 54 Buffalo Law Review 717 who noted (at 730) that there is “much evidence [to suggest a] substantial correspondence between results from simulations and from other research approaches”.

4. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984).

5. Self-defence was then governed by the High Court decision in Viro v The Queen (1978) 141 CLR 88, which was extremely technical and complicated, and which was overruled by Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

6. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984) 52.

7. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984) 52, 56.

8. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984) 52.

9. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984) 52-54.

10. I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984) 53.

11. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986).

12. At the time the study was conducted, the law relating to self-defence was extremely complicated: see Viro v The Queen (1978) 141 CLR 88 (overruled in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645).

13. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.47].

14. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.48].

15. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.49].

16. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.50].

17. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001). The researchers selected 41 criminal trials in NSW. In total, 175 jurors, 21 judges, 30 defence counsel, and 24 Crown Prosecutors participated in the study.

18. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [474]-[475].

19. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [462]-[471].

20. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [445]-[454].

21. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [426].

22. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008).

23. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 9.

24. I Vodanovich, The Criminal Jury in Western Australia (PhD Thesis, University of Western Australia, 1989), 299 (almost 90% of the jurors in this study said that they had no real difficulty understanding the law as explained by the trial judge).

25. See para 2.38.

26. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 6.

27. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 7.

28. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 7.

29. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 11.

30. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006).

31. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 9-10.

32. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 33-34.

33. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 34.

34. J Hunter and D Boniface, with J Chan, M Chesterman and D Thomson, funded by the Law and Justice Foundation of NSW, awaiting publication, but see J Hunter and D Boniface, “Secret Jury Business: What Jurors Search For and What They Don’t Get” (Conference Paper, British Society of Criminology, Huddersfield, England, July 2008).

35. The data on this element is unavailable to the Commission at present.

36. The “investigation” direction. See also para 5.22-5.36.

37. Carrying the possible sentence of two years imprisonment. Three judges indicated that it was a crime, but made no mention that it is a serious crime.

38. She observed that “a juror should be allowed to find out more about the accused if the evidence is inadequate”. Another juror reported inadmissible and not admitted evidence being used in deliberations.

39. See Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45.

40. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2. The Faculty of Law at Victoria University, Wellington conducted the study.

The study was carried out over a period of nine months from a sample of 48 jury trials from both urban and provincial courts (18 High Court trials and 30 District Court trials). The researchers gave written questionnaires to all potential jurors on their arrival in court at the beginning of a week in which a selected trial was scheduled to commence. The researchers attended the trial and, after the jury retired to consider its verdict, the researchers interviewed the judge. Subject to their consent, jurors were interviewed as soon as possible on the conclusion of the trial on a wide range of issues, such as: the adequacy and clarity of pre-trial information, jurors’ reactions to the trial process, their understanding of the law, their decision-making process, and the nature and basis of their verdict.

41. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [2.23].

42. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [2.25].

43. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.3].

44. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.4].

45. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.25].

46. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.13].

47. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.14].

48. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.16].

49. See para 4.23 and para 9.52.

50. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.18].

51. M Zander and P Henderson, Crown Court Study (1993). The study surveyed cases during the last two weeks of February 1992 in every Crown Court in England and Wales.

52. M Zander and P Henderson, Crown Court Study (1993) [8.6.2].

53. M Zander and P Henderson, Crown Court Study (1993) [8.5.4].

54. J Jackson, “Juror Decision-making and the Trial Process” in G Davis and S Lloyd-Bostock (ed) Psychology, Law, and the Criminal Justice: International Developments in Research and Practice (1992) 329-330.

55. R Matthews, L Hancock and D Briggs, Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (United Kingdom Home Office, 2005).

56. See G Taylor, “Judicial Reflections on the Defence Case in the Summing Up” (2005) 26 Australian Bar Review 70, 74-76; N Madge, “Summing Up – A Judge’s Perspective” [2006] Criminal Law Review 817, 823-824; D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 784-786. England and Wales, The Royal Commission on Criminal Justice, Cm 2263 (1993) 123. For US historical background, see: K A Krasity, “The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913” (1985) 62 University of Detroit Law Review 595.

57. D U Strawn and R W Buchanan, “Jury Confusion: A Threat to Justice” (1976) 59 Judicature 478. This study examined pattern jury instructions used in criminal cases in Florida. The study participants had been summoned for jury duty but had not yet been selected to sit in trials.

58. D U Strawn and R W Buchanan, “Jury Confusion: A Threat to Justice” (1976) 59 Judicature 478, 482.

59. W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1988) 67 North Carolina Law Review 77, 88-95. The study used Texas pattern instructions on: new and independent cause; accomplice testimony; proximate cause; presumption of innocence; and negligence.

60. “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable about. The fact that the defendant has been arrested, confined or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. In case you have a reasonable doubt as to defendant’s guilt after considering all of the evidence before you, and these instructions, you will acquit him. You are the exclusive judges of the facts proved, and of the credibility of witnesses and the weight to be given their testimony, but the law you shall receive in these written instructions, and you must be governed thereby”; W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1988) 67 North Carolina Law Review 77, 92.

61. The researchers rewrote the pattern instructions and the subjects understood the rewritten instructions better. 24.59% of the paraphrases of the rewritten instructions were legally correct: W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1988) 67 North Carolina Law Review 77, 90.

62. A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539.

63. G P Kramer and D M Koenig, “Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Mighigan Juror Comprehension Project” (1989) 23 University of Michigan Journal of Law Reform 401.

64 G P Kramer and D M Koenig, “Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Mighigan Juror Comprehension Project” (1989) 23 University of Michigan Journal of Law Reform 401, 414.

65. This study administered the same comprehension test to people who had not yet sat on trials and who therefore had not been exposed to legal direction from a judge. This group performed better (48% answered correctly) than the jurors (that is, those who had received legal instructions from a judge). This led the authors of the study to conclude that jury instructions are ineffective in assisting jurors understand the law. They offered one possible explanation for the ineffectiveness of instructions, which is that jurors go to court with pre-exiting beliefs about legal issues that are resistant to change. Such beliefs are so entrenched that they act as rules in directing jurors’ decisions, in spite of any instructions they receive at the trial that might be contrary or different to their pre-conceived beliefs.

66. G P Kramer and D M Koenig, “Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project” (1989) 23 University of Michigan Journal of Law Reform 401, 425-429.

67. B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59.

68. B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59, 79-81.

69. B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59, 85.

70. B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59, 86, 88.

71. See I Potas and D Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984); D U Strawn and R W Buchanan, “Jury Confusion: A Threat to Justice” (1976) 59 Judicature 478; W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1988) 67 North Carolina Law Review 77; A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539; G P Kramer and D M Koenig, “Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project” (1989) 23 University of Michigan Journal of Law Reform 401; B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59.

72. I Vodanovich, The Criminal Jury in Western Australia (PhD Thesis, University of Western Australia, 1989), 299; M Zander and P Henderson, Crown Court Study (1993), [8.6.2]; J Jackson, “Juror Decision-making and the Trial Process” in G Davis and S Lloyd-Bostock (ed) Psychology, Law, and the Criminal Justice: International Developments in Research and Practice (1992) 329-330; R Matthews, L Hancock and D Briggs, Jurors’ Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (United Kingdom, Home Office, 2005); L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 6.

73. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.49]; W Young, N Cameron, Y Tinsley, Juries in Criminal Trials: Part Two: A Summary of Research Findings, New Zealand Law Commission Preliminary Paper 37 (1999) vol 2, [7.3]; J Horan, The Civil Jury System (PhD Thesis, University of Melbourne, 2004) 203; L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 7.

74. B Saxton, “How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming” (1998) 33 Land and Water Review 59, discussed in para 2.48-2.49.

75. See discussion of the New Zealand Law Commission jury study: para 2.33-2.36.