4. Reducing the incidence of hung juries

Updates and background for this project (Digest)

• Introduction
• Strategies for reducing hung juries
• RECOMMENDATION 2

INTRODUCTION

4.1 In the previous chapter, the Commission recommended that the system of unanimity should be retained rather than introduce verdicts in criminal trials based on the vote of a majority of jurors. We acknowledge that there are disadvantages associated with the requirement that jury verdicts be unanimous: the primary one being the higher incidence of hung juries. In this chapter, we discuss a range of strategies designed to reduce the rate of hung juries while keeping the requirement of unanimity.

4.2 The decision to retain unanimous verdicts for criminal jury trials in New South Wales is based not only on a consideration of the strengths and weaknesses of unanimity as opposed to majority verdicts, but also in recognition of the lack of local information on the reasons why juries hang. Consequently, the Commission recommends that further research should be conducted in NSW along the lines of the New Zealand study discussed throughout this Report.

STRATEGIES FOR REDUCING HUNG JURIES

Overview

4.3 Jurors in a criminal trial are expected to complete an enormously difficult task. They must listen to days, sometimes even weeks, of evidence and legal argument. They must attempt to rid their minds of any preconceived ideas that could lead to bias or prejudice and consider only the material presented to them in court. Then they must discuss and assess the evidence to reach full agreement on the most appropriate verdict. This task is particularly daunting considering that most jurors will not have served on a jury before or have received any legal training.

4.4 A number of studies have attempted to analyse how jurors comprehend evidence and judicial instructions. They suggest methods that may help jurors to improve their understanding and analysis of the information, hopefully leading to more productive deliberations and fewer disagreements. Some of those studies have been conducted regarding juror comprehension generally, while others have focused specifically on hung juries. The findings centre on three main areas, namely:

• the information needs of jurors during the trial to help them understand adequately the law and the facts in each case;
• how jurors structure their deliberations once the enter the jury room; and
• the instructions given to juries experiencing difficulty reaching a decision.

[I]t might be argued, of course, that the introduction of majority verdicts, at least, would help reduce the incidence of hung juries. The evidence we have reviewed provides few grounds for confidence in this conclusion. It is possible that improvements in the instructions to jurors or changes in the way the jury spokesperson is selected would be just as effective, if not more effective, than the introduction of majority verdicts in reducing the incidence of hung juries.²

4.7 Further, Australian and overseas research has found that the directions given by judges to juries who report having difficulty reaching a decision, may not be as effective as they could be. Research in New Zealand suggests that judges should encourage deadlocked juries to ask for help in relation to the particular issues on which they disagree.

4.8 It is worth noting that, even if all of these strategies were implemented, they would not be successful in completely eliminating hung juries. They may help where juries hang unnecessarily because of confusion or misunderstanding about the law or the evidence. However, juries will still hang where jurors deliberate enthusiastically, but cannot agree in good conscience on the interpretation of the facts. As we noted in Chapter 3, in these circumstances, it is preferable in the interests of justice that the trial concludes with a hung jury rather than an unsafe verdict. Nor will the strategies discussed in this chapter solve the problem of the “rogue” juror, to whom no amount of instruction or explanation will overcome his or her recalcitrance.

Current practice in NSW

4.9 The Criminal Trial Courts Bench Book (“the Bench Book”), prepared by the Judicial Commission of NSW, guides Supreme Court and District Court Judges as to appropriate trial procedure. It is not mandatory for judges to adhere exactly to the Bench Book. However, most judges more or less follow the suggested directions.⁵ The Bench Book states that judges usually give the jury general advice at the beginning of the trial.⁶ Once the jury has been empanelled, the judge will inform them that they need to choose a foreperson to act as a spokesperson during the trial should the jury need to speak to the judge, or should the judge wish to communicate with the jury.⁷

4.10 Judges will explain the charge or charges alleged against the accused, the fact that the accused has pleaded not guilty to the charge or charges, and, therefore, that the prosecutor must prove the accused’s guilt beyond a reasonable doubt. The judge will inform the jury of their general rights and responsibilities, stressing that they alone are to determine whether the facts support a verdict of guilty or not guilty. The Bench Book also provides that the judge may tell the jury that they are free to ask the judge questions, either orally or in writing, about the evidence, the trial procedure, or the interpretation of the law.⁸

4.11 The jury will be told that they must not make any inquiries regarding aspects of the case that would change their role from impartial observers to investigators. The judge may also advise the jury that they must not bring computers or mobile phones into the courtroom.⁹

4.12 Many of these directions will be repeated in more detail during the summing up, which occurs after all of the evidence for both sides has been presented. During the summing up, judges will explain the burden of proof, and any other legal elements which require clarification. They will also summarise the Crown case, and the defences argued by the counsel for the accused. If they choose, judges may express an opinion to the jury regarding the facts. However, they must make it clear that the jury are free to disregard that view if it does not accord with their own.¹⁰

4.13 The Jury Act 1977 (NSW) states that any “directions of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so”.¹¹ It has now become fairly common practice in NSW for judges to give written directions to juries briefly setting out the relevant law and evidence.¹² The Bench Book provides that any written directions must be shown to counsel for both sides, with an opportunity for them to comment on the content, before the directions can be given to the jury.¹³

4.14 The Jury Act 1977 (NSW) also provides that a “copy of all or any part of the transcript of evidence at a trial or inquest may, at the request of the jury, be supplied to the members of the jury if the judge or coroner considers that it is appropriate and practicable to do so”.¹⁴ Consequently, the provision of a transcript is discretionary and not supplied to the jury as a matter of course. Jurors may not necessarily be aware in advance that a copy of the transcript will not be provided at the close of evidence.

4.15 There is nothing in the Bench Book either to encourage or prevent judges giving further guidance to the jury on:

• the role of the foreperson and the type of skills he or she should possess; or
• the most effective way to structure deliberations, eg, suggesting that they adopt an evidence-driven approach.

Jurors’ general information needs during the trial

4.17 This section discusses the findings from research, in Australia and overseas, on how jurors comprehend the information presented to them during a trial, and the effectiveness of measures designed to assist that understanding.

Juror comprehension

4.18 One of the greatest difficulties faced by juries is the comprehension and assimilation of complex legal and factual information. It is one thing to understand the law, and another to understand the evidence, but to put both together in a coherent manner is a difficult task.

4.19 Studies have investigated the effect of trial complexity on juror comprehension and performance, including the impact of trial procedures, such as jurors taking notes and asking questions, access by jurors to transcripts, and the quality, format and timing of judicial instructions.¹⁶ The study noted the different types of trial complexity: namely, complexity of evidence, of information in large quantities, and of law. Jurors assessed their comprehension and performance differently depending on the type of complexity involved in a trial. Jurors surveyed reported greater difficulty reaching a verdict as the quantity of information increased, and less confidence that they had correctly interpreted the judge’s instructions.¹⁷ However, they also found the prosecuting attorney to be more helpful. Where the complexity of the evidence was an issue, jurors reported confidence that they had been well informed, but also experienced greater difficulty in deciding how to vote. Finally, where trials involved complex legal argument, jurors reported finding the defence attorney less helpful, and again felt less confident that their verdict was based on a complete understanding of the judge’s instructions.¹⁸

Juror note taking and question asking

4.20 Research has been conducted specifically into whether jurors who take notes and ask questions during a trial have a greater ability to recall and understand evidence. In the study discussed above, procedural innovations, such as juries asking questions of witnesses, were found not to affect the fairness or rationality of jury decisions in complex cases.¹⁹ In fact jurors reported that, of all trial procedures, asking questions was consistently beneficial in aiding their comprehension.²⁰

4.21 Another study by the same authors²¹ tested the hypothesis that jurors who took notes and asked questions during the trial would be more likely, particularly during longer trials, to remember and comprehend salient points of evidence than their counterparts who remained silent and passive. The study found that neither the supposed advantages nor the disadvantages of jury note taking were supported by the results. For example, jurors who took notes did not report superior recall of the evidence or greater satisfaction with the verdict than other jurors.²² On the other hand, note taking accurately reflected the evidence, and did not interfere with the jury’s ability to keep up with the trial. Nor did the notes distort the evidence by favouring the prosecution or the defence, distract or unduly influence other jurors, or become too time consuming.²³

4.22 In trials in which jurors were allowed to question witnesses, jurors directed their questions in writing initially to the judge following the direct and cross-examination of the witness. If the judge considered the questions appropriate, they could be put to the witness, subject to the agreement of counsel.²⁴ The study found an increased understanding of facts and issues among jurors in trials where jurors’ questions were put to witnesses.²⁵ However, other supposed advantages, such as the ability to get to the truth, alerting counsel to issues that need more explanation, and increasing overall satisfaction with the trial outcome, were not supported by the study.²⁶ As with note taking, none of the perceived disadvantages of juror questioning were found. That is, jurors did not ask inept or harmful questions (despite not knowing the rules of evidence), did not interfere with counsels’ strategy, did not begin to see their role as advocates rather than neutral observers, and the questions did not appear to have a prejudicial effect. Nor were counsel reluctant to object to questions from a juror being put to a witness, and jurors did not report being embarrassed when an objection was made to their questions.²⁷

4.23 Overall, the results “mildy support the proposition that juror questions aid jury decision making and provide a strong basis for rejecting a host of postulated disadvantages of both the note taking and question-asking procedures”.²⁸ However, questions from jurors will be most helpful if the judge instructs the jury of the best way to approach the task. The New Zealand study recommended that juries should routinely be reminded of their right to submit questions to the judge, which may be put to the witness, for the purpose of clarifying the evidence.²⁹

4.24 As noted earlier, judges in NSW may advise the jury that they may put any questions they wish to the judge, usually through the spokesperson. Juries may or may not be given guidance as to the procedure for asking questions, or the type of questions that might be appropriate.³⁰ So far as note taking is concerned, the practice differs from court to court. Some judges tell juries that they may take notes, while others prefer jurors to listen to the evidence without being distracted by taking notes.³¹ Some Australian ex-jurors have reported that they would have liked more information about how to make their notes relevant, having found it a strain to deal with the large volumes of conflicting information.³² The extent to which jurors wish to take notes may be related to the availability of a transcript of the trial proceedings.³³

Judicial instructions to juries

4.25 The clarity and nature of instructions given by judges to juries is a crucial factor in the extent to which, if at all, jurors comprehend the relevant law and evidence. While such understanding is essential in all jury trials if decisions are to be soundly based, it is particularly significant in preventing hung juries. It is fairly well agreed upon amongst commentators and researchers that, while jurors are competent fact-finders, on the whole they have a great deal of difficulty understanding the law or judge’s instructions.³⁴ Given the overwhelming responsibility placed on jurors, the unfamiliarity of their surroundings, and the air of intimidating ritual that often surrounds the law and its trappings, this is hardly surprising. Juror comprehension of judicial instructions is also affected by the judges’ concern to avoid appealable errors that could result in a retrial. While this is a well-founded concern, it is clear that “procedures which are optimal to avoid appealable error may not be the same as procedures which are optimal for the understanding and efficient performance of the jury”.³⁵

4.26 Common sense indicates that the instructions judges give to juries should be straightforward and in clear, simple English.³⁶ Research has also suggested that the timing and format in which the instructions are given can affect how well jurors understand them.³⁷ An interesting finding occurred in the New Zealand study. While a high proportion of jurors (over 80%) reported that they found the judge’s summing up clear and helpful,³⁸ jurors in a similarly high proportion of cases (72%) demonstrated a misunderstanding of the law.³⁹ This indicates that judicial clarity alone may not be enough to help jurors understand the legal concepts involved in a trial.

4.27 Research indicates that juries do not passively absorb information during the trial and pull the evidence together only at the end. The “story model” theory of jury comprehension assumes that jurors bring with them their prior knowledge based on life experience. Jurors listen to the evidence presented in the trial and construct a narrative story based on how the evidence converges with their view of the world to reach the appropriate verdict.⁴⁰ The initial legal framework that jurors adopt when they are constructing their “story” is very important to the way that evidence is evaluated and understood.⁴¹ Consequently, it is crucial that the judge explain the relevant law to the jury as early and as clearly as possible.

4.28 The nature of the jury system is that each juror will draw on his or life experience in determining the credibility of witnesses and deciding facts. However, relying on preconceptions of the law on which to construct a “story” and reach a decision can be dangerous. Jurors may begin to construct their version of events not only on the law they hear presented at the trial, but based on their belief of what the law is or should be. For example, many jurors think they know what a robbery or a rape is, or understand, for example, the importance of establishing “intent” in murder and manslaughter charges. However, the beliefs held by each individual juror may not accurately reflect the correct elements of the law, promoting the risk of questionable verdicts. Nor may the preconceived views accord with the beliefs held by their fellow jurors, increasing the likelihood of disagreements during deliberations.

4.29 Juror preconceptions about legal concepts are often fostered by television programs, predominantly from the United States. While those programs may fleetingly resemble aspects of American law, they do not reflect the law as it stands in NSW. Personal accounts from ex-jurors inevitably compare and contrast their experiences to John Grisham novels, or to movies such as “Twelve Angry Men”, or programs like “Law and Order”.⁴² A growing trend in America is known as the “CSI effect”, where jurors are conditioned through television to expect crimes to be solved by sophisticated forensic evidence, and refuse to convict without it.⁴³

4.30 Research has shown that judicial instructions explaining relevant legal concepts, but ignoring that jurors may have their own understanding of those concepts, will not be enough to override jurors’ existing preconceptions about the law. ⁴⁴ Further, while it is helpful for judges and the justice system to recognise that such prejudices may exist, it is not sufficient to point out to jurors that they must disregard their preconceived ideas.⁴⁵ Studies have shown that jury bias about legal concepts will persist unless additional instructions are given specifically to revise those preconceptions. For example, judges may need to describe what an offence does not mean in addition to giving the legal definition of the elements it does contain. This has been shown in a series of experiments in the United States that revealed juror preconceptions about the charge of kidnapping (eg that a ransom must be demanded to constitute the offence, that the victim is generally a child, and must be taken to another location, etc). Improvements in decision accuracy were only achieved when the judge spelt out that kidnapping need not be for monetary gain, can be perpetrated against adults, and the victim need not be taken to another location. Following this, the standard instructions setting out the elements of the offence were given.⁴⁶

4.31 Tailoring instructions in this way in order to meet juries where they are, has been found to be effective in other studies. For example, the use of “pattern” instructions in the United States (or general, standard form instructions such as those found in the Bench Book), have not been found to be particularly successful,⁴⁷ especially in cases involving legally complex issues. In those cases, jurors are better served by clear language instructions specifically addressed to the particular issues at hand.⁴⁸

Timing of instructions

4.32 As discussed above, providing jurors with a clear and comprehensive set of instructions at the start of the trial creates the framework within which juries reach their ultimate decision. Personal accounts from ex-jurors note that there is a general lack of information from the judge at the outset of the trial setting out the nature of the role of the jury and the types of decisions they need to make.⁴⁹ This is reported to be an issue, even in short trials. Others have endorsed this, suggesting that the judge’s opening statement should be summarised in writing.⁵⁰ That summary should explain the legal terms that constitute the offence in the indictment, and clearly give meaning to other concepts such as “beyond reasonable doubt” and “burden of proof” at the start of the trial. ⁵¹

4.33 The New Zealand study noted that there were widespread misunderstandings about relevant legal issues (such as the meaning of “intent” or “beyond reasonable doubt”) that significantly influenced jury deliberations in 35 of the 48 cases they examined.⁵² An account from one Australian ex-juror noted that confusion among jurors over the meaning of “reasonable doubt” may have led to compromise verdicts on several charges.⁵³

4.34 Other studies also supported the idea of instructing jurors on important aspects of the law before the trial, so that they will understand the legal framework that should define their verdict choices before they hear the evidence.⁵⁴ The recent New Zealand study found that:

[jurors] did not always absorb the outline of the law provided by the Crown Prosecutor in his or her opening address and as a result they heard the evidence without an understanding of the nature and meaning of the key legal elements of the offence. This meant that they failed to interpret the evidence with those elements in mind. ⁵⁵

4.36 It has also been suggested that the judge’s opening remarks should include advice to the jury on the best way of resolving any disagreements that may occur during deliberations, and also letting the jury know that they have the option to hang.⁵⁸

Written instructions

4.37 In addition to the timing of instructions to the jury, the form in which those instructions are conveyed is equally important. It is well documented that information received aurally is more difficult to remember than printed material.⁵⁹ Written materials are more easily comprehended and recalled.

4.38 Commentators have suggested the use of a juror notebook, containing a list of witnesses (with photos), copies of key documents and a copy of the final instructions.⁶⁰ Researchers in New Zealand found that 62.2 % of jurors surveyed would have found a written summary of the law useful. They suggested that juries should be provided with a written summary of the legal elements of the charge and definitions of relevant legal terms. It is thought that the provision of such materials would lead to a better application of the law.⁶¹

4.39 Others have endorsed the view that it should be standard practice to provide judicial instructions and the summing-up in writing.⁶² Written directions on the law would “help understanding, reduce deliberation time, cut down on later disputes over what the judge said, and increase juror satisfaction”.⁶³ While many judges in NSW do provide juries with written instructions or “road maps”, it is apparently not standard across all courts. According to the recent survey of judges conducted by Ogloff, Clough, Goodman-Delahunty and Young, 82.6% of NSW respondents indicated that they provided the jury with written assistance about the summing up.⁶⁴

4.40 More innovative measures are being used in other jurisdictions to assist jurors to comprehend the law and evidence. For example, audio-visual presentations (including illustrated instructions and computer-animated conceptualisations of legal terms) and flow charts accompanying written instructions have been shown to improve juror comprehension.⁶⁵ The use of written and visual aids in New Zealand has increased since being recommended by the Law Commission.⁶⁶ Studies have also investigated the use of “decision trees” to help focus jurors’ attention on the questions they need to ask themselves and answer in order to reach a verdict.⁶⁷

Access to transcripts

4.41 As noted above, the Jury Act enables jurors to request a copy of the transcript of the trial.⁶⁸ However, the Act also confers discretion on the judge to refuse such a request. Some judges may allow part of the transcript, or their summing-up, to be provided to the jury, while others do not.⁶⁹ Presumably, the decision to refuse to issue a transcript would be done on the basis that it was too lengthy, would encourage jurors to rely on the transcript rather than listen to the evidence as presented in court, and could be prejudicial if only part of the evidence is read out of context.⁷⁰ There does not appear to be any consistent practice in NSW on this point.

4.42 The refusal to provide a written transcript of evidence may come as a shock to jurors who were relying on it as a memory aid during deliberations. This is a particular concern where jurors have not received judicial instructions about taking notes.⁷¹ In one account by a former juror, a request for a transcript was denied (only the summing up was provided), despite the fact that the case involved ten charges heard over more than five days.⁷² Ex-jurors have suggested that either written or video recordings should be provided to jurors wherever possible.⁷³ Failing that, jurors should be told in advance that they will not be given a transcript of evidence, so that they can take detailed notes.⁷⁴

Pre-deliberation discussion

4.43 Traditionally, jurors have been directed to take the role of passive fact finder during the trial. However, the assumption that jurors commence deliberations without having formed a view as to the appropriate verdict is increasingly seen to be “at best, wishful thinking on the part of judges and lawyers and, at worst, a complete legal fiction”.⁷⁵

4.44 In NSW, there is nothing to stop jurors discussing the case with each other before the conclusion of the trial. These discussions, when they occur, are generally informal ones held over lunch or coffee breaks. A more formal approach to pre-deliberation discussions has been taken in America, providing an opportunity to gain more of an insight into the timing of opinion formation by jurors. The State of Arizona changed its Rules of Civil Procedure to permit pre-deliberation discussion. Rule 39(f) provides that jurors in civil trials may discuss the evidence amongst themselves prior to the formal deliberations commencing, but only in the jury room, and only in the presence of all jurors. Further, jurors were instructed that they must refrain from forming a judgment about the outcome of the case until the deliberations commence.⁷⁶

4.45 Proponents of pre-deliberation discussions are of the view that conducting discussions during the trial would assist juror comprehension and recollection of evidence, making verdict choice faster and easier. Opponents fear that this may promote prejudgment. Research into civil juries in Arizona has revealed that pre-deliberation discussions do assist jurors to clarify points of confusion and test their recall about the evidence, which is particularly beneficial in long and complex trials, and those involving expert testimony.⁷⁷ On the other hand, jurors also frequently ignored the prohibition on discussing the case only when all jurors were present, and some expressed early opinions as to verdict. However, in just over half of those cases, those early opinions changed during deliberations, somewhat negating the fear that early discussion would inevitably lead to intractable opinions as to verdict. This finding has been confirmed in other research showing that over 95% of jurors changed their minds at least once, with more than 20% changing their minds as a result of pre-deliberation discussions, and nearly 40% altering their opinion during final deliberations.⁷⁸

4.46 The researchers suggested that the negative aspects of pre-deliberation discussions could be minimised by providing written as well as oral instructions to juries outlining the conditions under which they are permitted to discuss the case prior to deliberations commencing, and by selecting an interim foreperson to preside over pre-deliberation discussions.⁷⁹

Structuring jury deliberations

Guidance to juries on how to deliberate

4.47 Some commentators in the United States have called for reforms to the actual deliberation process. One of the first jury reform projects, which took place in Washington D.C in 1989, recommended that guidance should be given to juries about how to structure their deliberations. In particular, the project recommended that juries be encouraged to discuss the law and evidence before they take any votes: that is, adopt an evidence-driven approach.⁸⁰ The New Zealand study endorsed this recommendation.⁸¹

4.48 Since this study, 42.9% of judges in New Zealand reported that they provide advice to juries on approaches they may wish to take during deliberations. This compares with just 26.1% of NSW judges who responded to the survey.⁸² Guidance on how to deliberate effectively is seen as necessary in Australia as well:

Most jurors would appreciate a simple written guide on the difference between poll-driven and evidence-driven deliberations, on the value of secret and open ballots, and on basic conflict-resolution techniques.⁸³

4.49 An issue related to providing juries with guidance on the best way to conduct deliberations is giving them better information on the role of the foreperson in guiding those discussions. The New Zealand study found an effective foreperson to be crucial in ensuring productive deliberations, particularly in long and complex trials.⁸⁴ As noted earlier, these trials are more likely than others to result in a hung jury.⁸⁵

4.50 The New Zealand study revealed an overall lack of understanding of the role of the foreperson. Australian ex-jurors have also commented on the arbitrary nature in which the foreperson is selected.⁸⁶ In one case, a juror was appointed foreperson because she happened to be sitting in the seat nearest the judge after being empanelled.⁸⁷ Jurors would appear to receive little, if any, information on the type of skills and qualities a foreperson should possess.⁸⁸ The New Zealand study suggested that juries in general, and the foreperson in particular, should be given extensive advice (in writing and in the judge’s preliminary remarks) as to the best way to structure deliberations, including the foreperson’s role in guiding discussions and dealing with disagreements.⁸⁹

4.51 The study also discussed the timing of foreperson selection. Jurors are encouraged to select a foreperson as soon as possible after the swearing in process. While early dissemination of information to jurors about the role of the foreperson is desirable, there are advantages to delaying the actual selection of the foreperson until later in the trial. By then, the jurors would be more acquainted with each other and better able to select the person with the most suitable skills. Until a foreperson is appointed, one juror could act as an interim spokesperson. This suggestion has been made in relation to NSW trials as well.⁹⁰

4.52 However, as the New Zealand Report pointed out, the foreperson’s role is more than that of spokesperson. He or she also needs to be a leader: guiding jurors in their discussions and identifying and advising the court of any problems.⁹¹ Consequently, the New Zealand study recommended that the foreperson should continue to be selected early in the trial. However, jurors should be given more information on the role of the foreperson, and the type of skills and experience that could assist the foreperson to fulfil his or her role most effectively. The New Zealand study also found that the selection of a foreperson often happens under pressure and occurs very quickly (the average time being less than four minutes). Hence, in addition to more information, the study recommended that jurors be given more time early in the trial to select a foreperson, perhaps during an adjournment.⁹²

Directions given to deadlocked juries

4.53 As the Commission noted in Chapter 1, judges in Australia generally deliver the Black directions, named after a High Court case of the same name, to juries who have deliberated for some time, but are having difficulty reaching agreement. Under the directions, a judge would direct a jury as follows:

Members of the jury,

I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.⁹³

[a] juror who conscientiously holds out against a majority and thereby prevents unanimity has not failed properly to ‘do what (he or she was) chosen to do’. To the contrary, he or she has done no more than discharge his or her duty to both the accused and society. Any suggestion that a minority juror should democratically submit to the view of the majority is antithetical to the jury process under the common law of this country.⁹⁶

4.56 The secrecy surrounding juror deliberations makes it difficult to know whether or not the Black directions provide a focus for juries who may be having difficulty in reaching a decision, or merely encourage uncertain jurors to capitulate. Personal accounts from ex-jurors have revealed confusion over the meaning and intent of the Black directions.⁹⁹ Judges can provide further clarification for jurors on matters of law and evidence. However, as noted in the New Zealand study, such clarification is “unlikely to be helpful unless there is a clear indication of the nature of the jury’s difficulties”.¹⁰⁰ In the absence of direct questions from jurors, judges may be reluctant to enquire as to the nature of the difficulties being experienced by the jury, so as not to be seen to be influencing them towards a particular verdict.

4.57 The New Zealand study considered the question of how judges can better assist juries who may be having problems reaching agreement by clarifying the law and identifying relevant evidence, and how juries can be reminded that this help is available should they wish to ask for it.¹⁰¹ The study recommended that the Papadopoulos directions be amended to encourage juries to consider the particular areas where they disagree, and include a reminder to the jury that they may ask the judge questions about the evidence and the law, and the meaning of any legal concepts.¹⁰²

4.58 A recent Australian study raised the issue of whether judges should advise juries on effective dispute resolution techniques in their opening remarks, before any actual disputes arise. The study noted that the current practice of waiting until disagreements occur before issuing the Black directions runs the risk that the deliberations have become dysfunctional by the time the jury notifies the judge of the dispute.¹⁰³

The Commission’s views

4.59 The strategies discussed above may go some way to reducing the incidence of hung juries. Some of them are already being implemented in courts in NSW and are provided for in the Bench Book. In many ways, however, the Bench Book and the research studies raise more questions than they settle. The Commission considers that the Bench Book provides sound guidance to judges on how to ensure that juries understand their role as fact finders in a criminal trial.

4.60 However, the extent to which the measures it contains are applied consistently by judges in NSW is not clear. Nor is it clear whether the Bench Book goes far enough in facilitating effective communication and understanding between all trial participants. Another unknown factor is the extent to which the directions given by judges are actually understood and applied by juries. Since juries deliberate in secret and are prevented, in most jurisdictions (including NSW), from discussing their deliberations after the trial has concluded, it is not possible to ascertain definitively whether or not juries actually understand the evidence put before them. Nor is it possible to know the number of verdicts delivered, or juries that have hung, based on a misunderstanding of the law or the evidence. Personal accounts and anecdotal evidence, however, suggest that jurors need more information put to them in a clear and accessible form.

4.61 The survey of judges recently conducted by Ogloff, Clough, Goodman-Delahunty and Young under the auspices of the Australian Institute of Judicial Administration, goes some way to bridging the gap between theory and what is actually occurring in practice. However, as the study acknowledges, more research needs to be done. Only judges were surveyed, and only a small number of NSW judges responded. For example, the study gives rise to questions such as:

• What objections do judges have to jurors having access to transcripts?
• What do jurors feel about having access to transcripts, and would it affect their attitude to taking notes?
• Would jurors like to be able to question witnesses, and how should this be managed?
• Would jurors like to be given more guidance on how to structure more effective deliberations (eg the difference between poll-driven and evidence-driven approaches)?
• Should judges provide jurors with “decision trees”, or a list of questions they need to consider in reaching their verdict? If so, would judges have any objection to this?
• Would jurors like more time to select a foreperson, and more guidance from the judge on the type of skills that person should have?
• Should judges provide instructions about the legal aspects of the particular case and how to apply the evidence to the law before the trial begins?
• Should judges provide juries with more information on how to resolve disputes? If so, what sort of information should be provided and when should it be given to juries (eg at the start of the trial or only after a dispute arises?) What objections to this would judges have?
• Do jurors sufficiently understand the directions given to them by judges? What more information do they need?
• Are jurors provided with enough written material? What other format for receiving information would jurors find helpful?
• What do judges really think of the Bench Book? What improvements could be made?
• Was adequate information presented early enough in the trial to give jurors a context in which to develop their views?
• Did jurors feel that they were able to ask the judge to clarify any matters of law, evidence or trial procedure?
• Did jurors discuss trial issues with each other during the trial, and, if so, did those discussions help them to understand and recall the evidence better?

4.63 We believe that until a comprehensive study is conducted in NSW to determine the existing practices in NSW jury trials, and what improvements need to be made, no major overhaul of the jury system should be attempted. As the BOCSAR 2002 study pointed out, there is an assumption underlying the call for majority verdicts that “juries hang as a result of the make-up of the jury or what transpires in the jury room”.¹⁰⁴ The facts are that we simply do not know enough about how actual juries really deliberate and why they reach the decisions they do. While studies have shown when juries are likely to hang, they have revealed only limited insight into why some juries remain deadlocked. Until more information is uncovered as to the problems that need to be addressed, the introduction of majority verdicts would be of limited value.¹⁰⁵

4.64 Furthermore, there has been no systematic review in jurisdictions that have majority verdicts as to whether the decisions are soundly based. The focus to date has been solely on numbers of hung juries in jurisdictions with majority verdicts as opposed to unanimity. It would be extremely beneficial if the empirical research recommended here could be conducted in conjunction with a jurisdiction that has introduced majority verdicts.

RECOMMENDATION 2

The Commission recommends that empirical studies should be conducted into the adequacy, and possible improvement, of strategies designed to assist the process of jury comprehension and deliberation.

1. Hannaford-Agor, Hans, Mott and Munsterman (2002) at 86.

2. BOCSAR 2002 study at 11.

3. Hannaford-Agor, Hans, Mott and Munsterman (2002) at 86.

4. P Ellsworth and A Reifman, “Juror Comprehension and Public Policy: Perceived Problems and Proposed Solutions” (2000) 6 Psychology, Public Policy and Law 788-821 at 813.

5. The extent to which judges in Australia and New Zealand follow their various versions of the Bench Book is the subject of a current study: see JRP Ogloff, J Clough, J Goodman-Delahunty, and W Young, The Jury Project: A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2005). For the Commission’s views on the Bench Book and adherence to it, see para 4.59-4.64.

6. Criminal Trial Courts Bench Book at 1-510. See also the Suggested Direction at 1-520: (www.jc.nsw.gov.au/ctcbb/Agreement%20for%20Use%20internet%20only.htm).

7. Criminal Trial Courts Bench Book at 1-520: Suggested Direction – advice/instruction to the jury on empanelling.

8. This should be done in open court with consent of counsel for both sides: see Glissan and Tilmouth, Australian Criminal Trial Directions (Butterworths 2003) at 7-1200.

9. Criminal Trial Courts Bench Book at 1-520: Suggested Direction – advice/instruction to the jury on empanelling.

10. See Criminal Trial Courts Bench Book at 7-020 (Suggested Direction - Summing Up)

11. Jury Act s 55B.

12. See R v Savvas (1989) 45 A Crim R 38 at 38.

13. Criminal Trial Courts Bench Book at 7-010.

14. Jury Act s 55C.

15. K Auty and S Toussaint (eds), A Jury of Whose Peers? The Cultural Politics of Juries in Australia (University of Western Australia Press, 2004) at 21.

16. L Heuer and S Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) 18(1) Law and Human Behaviour 29-51. This study consisted of a field experiment in which jurors were permitted to take notes and ask questions in some trials, but not in others. To test whether the success of juror note taking and question asking was affected by trial complexity, some judges were asked to allow jurors to take notes and ask questions only in complex trials, where others were asked to allow this in their next jury trial, regardless of length or complexity.

17. Heuer and Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) at 41-42.

18. Heuer and Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) at 42.

19. Heuer and Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) at 49.

20. Heuer and Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) at 49.

21. That study examined 160 civil and criminal trials across 33 states, and included a judicial questionnaire completed by 103 judges. The average trial length was 10 days for civil trials and 6 days for criminal trials: L Heuer and S Penrod, “Juror Notetaking and Question Asking During Trials” (1994) 18(2) Law and Human Behaviour 121-150. This study builds upon an earlier one conducted by the same authors using a smaller sample: see L Heuer and S Penrod, “Increasing Jurors’ Participation in Trials” (1988) 12(3) Law and Human Behaviour 231-261.

22. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 136-137.

23. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 137-140.

24. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 129.

25. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 142-143.

26. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 143-144.

27. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 144-148.

28. Heuer and Penrod, “Juror Notetaking and Question Asking During Trials” (1994) at 148-149.

29. NZLRC Report 69 at para 368.

30. A recent survey of Australian judges found that 54% of respondents discussed with jurors whether or not they may ask questions. Of those, fewer than half (43%) gave jurors any information about how those questions should be asked: see Ogloff, Clough, Goodman-Delahunty and Young at 8 and 11.

31. Ogloff, Clough, Goodman-Delahunty and Young found that 71% of Australian judges who responded to their survey instructed the jury that may take notes, with less than half (43%) providing any additional guidance on note taking: at 8-9.

32. Auty and Toussaint (eds) at 16-17.

33. See para 4.41-4.42.

34. See Darbyshire, Maughan and Stewart at 25; Devine et al at 698; M Knox, Secrets of the Jury Room: Inside the Black Box of Criminal Justice in Australia (Random House, Sydney, 2005) at 299; VL Smith, “When Prior Knowledge and Law Collide: Helping Jurors to Use the Law” (1993) 17 Law and Human Behaviour 507-536 at 510; JRP Ogloff and VG Rose, “The Comprehension of Judicial Instructions” in N Brewer and KD Williams (eds) Psychology and the Law: An Empirical Perspective (The Guilford Press, New York, 2005) at 438.

35. Ogloff, Clough, Goodman-Delahunty and Young at 2.

36. Ogloff and Rose in Brewer and Williams (eds) at 427-429 and 438.

37. See para 4.32-4.40.

38. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 7.3.

39. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 7.12.

40. Y Tinsley, “Juror Decision-Making: A Look Inside the Jury Room” (2001) The British Criminology Conference: Selected Proceedings www.britsoccrim.org at 6; N Pennington and R Hastie, “Practical Implications of Psychological Research on Juror and Jury Decision-Making” (1990) 16 (1) Personality and Social Psychology Bulletin 90; and P L Hannaford, V P Hans, N L Mott and G T Munsterman, “The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination” (2000) 67 Tennessee Law Review 627 at 630.

41. See Darbyshire, Maughan and Stewart at 22.

42. See, eg, Auty and Toussaint (eds) at 13 and 19; and Knox at 10 and elsewhere.

43. JE Starrs, “The CSI Effect” (2004) 28(3) Scientific Sleuthing Review 1.

44. See VL Smith, “Prototypes in the Courtroom: Lay Representations of Legal Concepts” (1991) 61 Journal of Personality and Social Psychology 857-872; Smith (1993); and NJ Finkel and JL Groscup, “Crime Prototypes, Objective versus Subjective Culpability, and a Commonsense Balance” (1997) 21(2) Law and Human Behaviour 209-230.

45. In NSW, a brochure sent out to prospective jurors warns them against expecting the trial to be like something they have seen on television: see Knox at 10.

46. See Smith (2003) at 529-535.

47. Ogloff and Rose in Brewer and Williams (eds) at 439.

48. Heuer and Penrod, “Trial Complexity: A Field Investigation of its Meanings and its Effects” (1994) at 50.

49. See Auty and Toussaint (eds) at 4.

50. See Knox at 297.

51. See Knox at 297. Ogloff, Clough, Goodman-Delahunty and Young found that 70% of Australian judges who responded to their survey indicated that they provide some outline of the legal concepts that are likely to arise in the trial. However, there were considerable differences between the types of concepts mentioned: at 14.

52. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 7.13-7.17; W Young, C Cameron, & Y Tinsley, “An inside look at jury decision-making” (2000) 12 Judicial Officers Bulletin at 27. See also Darbyshire, Maughan and Stewart at 27.

53. Auty and Toussaint (eds) at 22-23. That account noted that an explanation of what was meant by “beyond reasonable doubt” was sought after the jury had been deliberating for one day, but no helpful reply was offered.

54. Ellsworth and Reifman at 814; Auty and Toussaint (eds) at 48; Ogloff and Rose in Brewer and Williams (eds) at 431-432 and 439.

55. Y Tinsley, “Juror Decision-Making: A Look Inside the Jury Room” (2001) The British Criminology Conference: Selected Proceedings www.britsoccrim.org at 6.

56. NZLRC Report 69 at para 304-308.

57. NZLRC Report 69 at para 308.

58. Ogloff, Clough, Goodman-Delahunty and Young at 12; Knox at 299.

59. Darbyshire, Maughan and Stewart at 35.

60. B M. Dann, “Learning Lessons and Speaking Rights: Creating Educated and Democratic juries” (1993) 68 Indiana Law Journal 1229.

61. Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 7.59-7.60.

62. Knox at 299.

63. Knox at 248.

64. at 24.

65. F Dattu, “Illustrated Jury Instructions: A Proposal” (1998) 22 Law and Psychology Review 67; N Brewer, S Harvey and C Semmler, “Improving Comprehension of Jury Instructions with Audio-Visual Presentation” (2004) 18 Applied Cognitive Psychology 765-776; Ogloff and Rose in Brewer and Williams (eds) at 435-438.

66. NZLRC Report 69 at para 359.

67. Ogloff, Clough, Goodman-Delahunty and Young at 23; Ogloff and Rose in Brewer and Williams (eds) at 435-436.

68. Jury Act s 55C.

69. Ogloff, Clough, Goodman-Delahunty and Young found that only 40% of Australian judges surveyed (as opposed to 88% of judges in New Zealand) told the jury whether or not they would be provided with a copy of the transcript: at 10.

70. Where judges refuse juries access to the transcript, jurors are generally told that they may have aspects of the evidence read or played back to them if they wish: Ogloff, Clough, Goodman-Delahunty and Young at 10.

71. See para 4.24.

72. Auty and Toussaint (eds) at 20.

73. Knox at 298.

74. Knox at 298.

75. Hannaford, Hans, Mott and Munsterman (2000) 67 Tennessee Law Review 627 at 630.

76. See S Seidman Diamond, N Vidmar, M Rose, L Ellis and B Murphy, “Inside the Jury Room: Evaluating Juror Discussions During Trial” (2003) 87(2) Judicature 54.

77. See Seidman Diamond, Vidmar, Rose, Ellis and Murphy at 56 and 57.

78. Hannaford, Hans, Mott and Munsterman (2000) at 637-638.

79. Seidman Diamond, Vidmar, Rose, Ellis and Murphy at 58.

80. Ellsworth and Reifman at 816. See para 2.31-2.33 for a discussion of the distinction between evidence and poll-driven approaches to jury deliberation.

81. NZLRC Report 69 at para 391.

82. Ogloff, Clough, Goodman-Delahunty and Young at Table 5.

83. Knox at 299.

84. NZLRC Report 69 at para 387-391; and Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 6.23-6.34.

85. See para 2.3 and para 2.5.

86. Auty and Toussaint (eds) at 11.

87. Auty and Toussaint (eds) at 11.

88. Ogloff, Clough, Goodman-Delahunty and Young found that only 17% of Australian judges who responded to the survey (as opposed to 74% of New Zealand judges), gave guidance to the jury as to the sort of person they might choose as foreperson: at 8 and 12.

89. NZLRC Report 69 at para 287-289 and 388-390.

90. Knox at 296.

91. NZLRC Report 69 at para 290-293.

92. NZLRC Report 69 at para 294-299.

93. Black v The Queen (1993) 179 CLR 44 at 51-52.

94. See Chesterman, Chan, and Hampton at para 420-426. See also Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 8.6-8.14.

95. Chesterman, Chan, and Hampton at para 426.

96. (1993) 179 CLR 44 at 56

97. See Young, Cameron and Tinsley, Preliminary Paper 37(2) at para 9.7. See also para 3.23-3.26 of this Report for a discussion of compromise verdicts.

98. See Hannaford-Agor, Hans, Mott and Munsterman (2002) at 83. See also SE Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty (Palgrave MacMillan Press, New York, 2005).

99. Auty and Toussaint (eds) at 13.

100. NZLRC Report 69 at para 393.

101. NZLRC Report 69 at para 394.

102. NZLRC Report 69 at para 395.

103. Ogloff, Clough, Goodman-Delahunty and Young at 12.

104. BOCSAR 2002 study at 2.

105. BOCSAR 2002 study at 11.