Updates and background for this project (Digest)

• Introduction
• Recommendations for leniency
• Asking juries to determine specific facts relevant to sentencing
• Other jurisdictions

INTRODUCTION

3.1 This chapter discusses the role the jury currently plays in determining sentences in criminal trials. As noted in the previous chapter, in Australia, there is no formally defined role for the jury in the sentencing process.¹ On the contrary, it is has long been considered fundamental to the fair and effective administration of justice in Australia that the jury’s role be limited to finding the facts that support their verdict, and that it is the responsibility of the judge to determine the appropriate sentence.²

3.2 However, there are currently a number of ways in which the jury might provide indirect input into sentencing in the course of their role as fact finders during the trial. This chapter discusses two of those ways in detail, namely:

• the jury’s ability to recommend mercy or leniency; and
• where jurors are invited to return a special verdict by which they answer specific questions of fact that may also have an impact on sentencing. These types of jury involvement in sentencing occur during the course of delivering a verdict.

RECOMMENDATIONS FOR LENIENCY

3.4 When a jury returns a verdict of guilty, it may, if it chooses, recommend to the judge that the offender be given leniency. That recommendation does not constitute part of the verdict.⁴ There is no legislative recognition in NSW of the jury’s right to recommend leniency.⁵ However, a number of cases have referred to the power, either explicitly or implicitly.⁶ The definitive High Court statement can be found in Whittaker v The King,⁷ where Justice Isaacs said:

[i]t is of course the duty of a judge who has the difficult task of determining the proper sentence to be imposed upon a person convicted of a crime to take into his consideration a recommendation by the jury for mercy. But it must be emphasised that it is not part of the verdict; it does not bind the trial judge; it operates only as a recommendation, and the responsibility in the interests of society to impose an appropriate sentence commensurate with the seriousness of the crime remains with the trial judge. It in no way absolves the trial judge from the duty of considering the circumstances of the crime independently for himself, and it in no way requires him to put any remote or strained interpretation upon the facts to find some justification for the rider.⁸

Human nature being what it is, such recommendations are not always based upon reason or upon logic. They may be based upon all kinds of considerations, and such things as sentiment, a spirit of compromise, a misunderstanding of the true situation, and a host of other things, may be responsible for them. A Judge is not bound to act upon such a recommendation, if, in his opinion, the circumstances do not justify it, and if the jury in the present case had been asked upon what they based their recommendation—and I think that it is to be regretted that they were not asked— it might have appeared that it did not rest upon any substantial basis and was not entitled to be given any real weight.¹¹

3.7 Neither the judge, nor counsel for either side, may expressly invite the jury to make a comment as to the leniency of the sentence should they choose to convict the defendant.¹⁴ Generally, a jury is not even informed, either before retiring to deliberate or upon returning to deliver their verdict, of their right to recommend that the judge impose a lenient sentence should they choose to convict. Nor are they informed of the possible sentencing options or the maximum available sentence. In Report 48, we recommended that, while the power of a jury to express an opinion as to leniency should be preserved, so too should the current practice of not informing the jury of this power, unless they ask whether they may qualify their verdict in such a manner.¹⁵ This is to mitigate against the temptation to deliver a compromise guilty verdict: that is, finding the defendant guilty on the condition that a lenient punishment be imposed.¹⁶ Similar considerations apply to the practice of not disclosing to the jury details of the sentence and the sentencing options that are available.

3.8 Presumably, the power of a jury to make a recommendation as to the leniency of sentence also extends to making a recommendation that the judge impose a sentence at the more severe end of the scale. However, we are not aware of any cases where this has occurred.

ASKING JURIES TO DETERMINE SPECIFIC FACTS RELEVANT TO SENTENCING

3.9 It is the primary role of the jury to determine whether or not the evidence presented during the trial leaves them satisfied beyond reasonable doubt that the defendant committed a specific offence, or offences, listed in the indictment. Sometimes, the jury is presented with alternative offences, which may be expressly charged, or available as statutory alternatives. In such a case, the jury must decide whether the facts support a finding of guilt in relation to offence A or offence B, or neither offence. Since offence A and offence B are likely to have different maximum penalties prescribed by statute, the jury’s finding of guilt regarding one offence but not the other, indirectly affects the sentence the offender may receive. In this way, jurors can have de facto involvement in sentencing as a by-product of their role as determiners of guilt.

3.10 The jury’s general guilty verdict will not always reveal the facts found to have been proved. While this does not affect the verdict, the answers to these facts may be significant in determining the appropriate sentence. A classic example is the difference between murder and manslaughter. Where a jury decides an offender is guilty of manslaughter but not of murder, it is not always clear whether that verdict was returned because the jury had a doubt as to whether the offender had the requisite intention or state of mind required for murder, or whether some other factor, such as provocation, excessive self defence, intoxication or substantial impairment by abnormality of mind, was involved. Since the penalty for manslaughter can vary considerably depending on the presence or absence of these (and other) factors, it may be useful for a judge to know the basis for the jury’s findings.

3.11 In certain circumstances, a judge may invite the jury to deliver a special verdict by answering specific questions concerning issues of fact which arise in the trial.¹⁷ The courts have held that, while it is open to juries to deliver special verdicts, they may only answer specific questions of fact that relate to the elements of the offence identified on the indictment, and not those matters that relate to sentence only.¹⁸ In Kingswell v The Queen,¹⁹ the defendant was charged with conspiring to import narcotics into Australia under s 233B of the Customs Act 1901 (Cth). That section stated that a person found guilty of that offence was punishable as provided by s 235 of the Customs Act 1901 (Cth). The appropriate penalty provided for under s 235 depended on the Court being satisfied of a number of factual matters, including the quantity of the narcotics involved. One of the questions raised in Kingswell was whether the matters of fact to be determined under s 235 were elements of the offence (due to the combined operation with s 233B), or were matters that related only to sentencing.

3.12 The High Court held that the jury was not empowered to give a special verdict relating to the facts identified in s 235 as circumstances of aggravation relevant to sentencing, as they were not issues pertaining to the elements of the offence in s 233B as specified on the indictment. In his judgment, Justice Brennan stated:

A jury which is charged to try the issues on an indictment is not at liberty to find facts which are not pertinent to those issues. It has long been established that, if a jury returns a special verdict, its verdict must be confined to the issues which it is sworn to try, else a finding on any other issue is… void.²⁰

3.14 The High Court discussed the respective roles of the judge and jury as finders of facts relevant to sentencing. In the course of this discussion, the High Court confirmed that the role of the jury is to determine the matters of fact on which issue is joined by a plea of not guilty. The issue of whether a special verdict should have been obtained from the jury to clarify its view of the facts was raised in oral argument, but was not argued at trial or on appeal, and so was not considered in detail by the High Court. However, Justice Kirby expressed cautious approval of asking jurors specific questions of fact to ensure, as closely as possible, that the sentence is in line with the basis for the jury’s verdict:

... at least where the potential difference for sentencing is as substantial as it was in this case, it is desirable, and certainly permissible, to seek from the jury answers to questions (or a special verdict) concerning the basis upon which they have convicted the prisoner.²³

3.16 However, all arguments advocating a greater role for the jury in sentencing failed in Cheung’s case. The High Court held that the nature of the accused’s motive for becoming involved in the crime, and the extent of his involvement, while relevant to sentencing, was not an element of the particular offence charged and not, therefore, a matter to be resolved by the jury.²⁶ In rejecting the constitutional argument, the Court stated that the:

procedure involved the trial judge, following a jury verdict of guilty, reviewing the evidence for himself for the purpose of making findings on matters of fact which were necessary for sentencing, and which were not resolved by the jury’s verdict. Such a procedure does not involve any infringement of a right to trial by jury. It involves the application of well-established principles as to the division of functions which are, and were in 1900, an aspect of trial by jury.²⁷

OTHER JURISDICTIONS

Recommendations as to parole eligibility in Canada

3.18 In Canada, there is provision under the Criminal Code for juries to make recommendations to the court regarding an offender’s eligibility for parole, following a finding of guilt on a charge of second degree murder.²⁹ Prior to discharging the jury, the judge shall put to them the following question:

You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.

3.20 The power of the jury to make recommendations on parole has generated controversy. In the case of Latimer, the jury recommended a minimum period of parole ineligibility of 12 months after convicting a defendant of the mercy killing of his severely disabled 12 year old daughter. Although imposed by the trial judge, the sentence was overturned on appeal and the mandatory 10 year minimum period was imposed.³³

Jury sentencing in the United States of America

3.21 American juries have had a role in sentencing ever since the War of Independence in 1776, which ended English rule over the American colonies. In the early days of the colony, people were suspicious of the arbitrary power exercised by Crown appointed judges, and were eager to cast off the vestiges of English colonial rule.³⁴ The early colonists saw juries as being far better suited than judges to determine the extent to which the defendant’s behaviour deviated from the socially accepted norms.

Jury sentencing in capital crimes

3.22 The usual punishment for crime in the American colonies was death. Consequently, early American juries were involved in sentencing for capital crimes. That historical role continues today, with juries playing a part in the sentencing of offenders convicted of federal capital offences, and in the thirty-eight states that have offences punishable by death. This was made certain in Ring v Arizona,³⁵ where the United States Supreme Court determined that only juries, and not judges, could find the existence of aggravating factors necessary to invoke the death penalty. In all capital sentencing jurisdictions, including federal proceedings, judges may impose a lesser sentence than that recommended by the jury, but may not increase the sentence beyond the jury’s finding.³⁶

3.23 In order not to contravene the constitutional prohibition against cruel and unusual punishment,³⁷ sentencing procedures for capital punishment must be tightly structured so as to avoid arbitrariness and capriciousness.³⁸ In general terms, this means ensuring that criminal statutes specify aggravating and mitigating factors to which jurors may have regard when considering the appropriateness of the death penalty. Also, the verdict and sentencing stages are separated into two distinct hearings, so that jurors do not hear prejudicial evidence concerning the defendant’s character and prior convictions until after the verdict has been delivered.

Jury sentencing in non-capital offences

3.24 In addition, six American states also involve juries to varying degrees in the sentencing of non-capital offences. In Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia, juries decide on appropriate sentences for offenders convicted of offences for which discretionary terms of imprisonment, fines, or both, are available. In reality, jury sentencing occurs in only a very small number of non-capital cases,³⁹ since over ninety percent of matters are plea bargained.⁴⁰

3.25 In all of these states, the same jury that delivered the guilty verdict determines the sentence the offender will receive.⁴¹ However, unlike the tight statutory regulation of capital sentencing, there is no uniformity of procedure between jury sentencing states in terms of non-capital crimes. The most significant variation between jury sentencing states is whether or not the trial is separated into two distinct stages for determining guilt and punishment. Five of the six jury sentencing states have a bifurcated format: meaning that the sentencing takes place in a separate proceeding after the trial has concluded.⁴² There are also differences between the states as to whether or not a defendant may elect to be sentenced by a judge rather than a jury,⁴³ and also in relation to the types of offences that may be sentenced by juries. Also, the sentencing options that jurors may select from differ from state to state, as does the issue of whether or not the sentences are subject to parole.⁴⁴

Commentary on jury sentencing in the United States

3.26 Critics in the United States claim jury sentencing to be costly, time-consuming, unnecessary and antiquated; that jurors lack the expertise of judges, which can lead to disproportionate or inconsistent sentences that are based on prejudice rather than solid evidence.⁴⁵ Others note that the criminal justice systems in jury sentencing states do not provide non-capital sentencing juries with sufficient power and information to enable their effective functioning.⁴⁶

3.27 Jury sentencing advocates are of the view that the arguments voiced against jury sentencing, such as jurors’ lack of expertise and inability to handle complex issues, amount to a mistrust of the jury system as a whole.⁴⁷ Some claim that the perceived problems with non-capital jury sentencing could be addressed by importing many of the procedures already in place for capital cases: such as giving jurors clear instructions as to aggravating and mitigating factors, access to relevant sentencing guidelines, and more rigorous appellate review.⁴⁸

3.28 Others have reached a more pragmatic conclusion, noting that non-capital jury sentencing is not an “obscure and curious appendage of an earlier age” but a critical component of modern sentencing policy.⁴⁹ Studies in three jury sentencing states have revealed that its practice bears little relation to the democratic ideals on which it is was traditionally based.⁵⁰ Rather than setting a benchmark reflecting community expectations, researchers found that jury sentencing is favoured by prosecutors as a means of encouraging guilty pleas.⁵¹ The study also found that jury sentencing can operate as a convenient tool to place accountability for any unpopular sentencing policy on jurors rather than criminal justice officials.⁵² This is especially the case in jurisdictions with an elected judiciary.⁵³

Mixed jury panels

3.29 The European criminal justice system is characterised as a mixed jury system, the details of which vary between countries. It is said to be mixed because, like the “pure” jury systems of countries like Australia, Canada and the United Kingdom, jurors are drawn from a pool of randomly selected citizens.⁵⁴ However, there is not the same separation of functions between European judges and jurors as exists in our system. European jurors participate actively alongside professional judges in deciding questions of fact, law, verdict and penalty.⁵⁵

3.30 In Germany and Poland, jurors participate only in trial courts, whereas French and Italian jurors play a role in both original and appeal courts.⁵⁶ Jurors may serve for the duration of the particular trial,⁵⁷ or for a particular length of time.⁵⁸ In most cases, lay judges outnumber the professional judges on a panel.⁵⁹ Despite this numerical superiority, evidence suggests that lay jurors are less likely to express their views than the professional judges, leading to the observation that it is “unclear whether optimum conditions exist in mixed juries for the free communication of lay juror views”.⁶⁰ This is perhaps not surprising given lay jurors’ lack of legal training and criminal trial experience in comparison with their professional counterparts, and the likelihood that the professional judges’ behaviour would be more assertive, with their views carrying greater sway.

3.31 In Japan, plans are underway to reintroduce a jury system following its abolition during the Second World War. It is expected that a mixed panel system of lay jurors and professional judges, based on the European model, will be operational by 2009. Japanese jury panels will comprise nine members: six lay and three professional. Lay jurors will participate in trials for serious criminal offences, and decide matters of verdict and sentence, including the death penalty, along with the professional judges. Decisions as to verdict and sentence must be made by a majority of the nine member panel, with at least one professional judge being in that majority.⁶¹

3.32 Although not yet introduced, the Japanese mixed jury model is already drawing controversy. Debate has centred over whether citizen participation in verdict and sentencing decisions will be effective in Japan, particularly given the absence of any form of jury system for two generations, and the Japanese cultural tendency to defer to authority.⁶²

Requirement to provide reasons for verdict

3.33 Juries have recently been reintroduced in Russia and Spain.⁶³ Unlike most other European countries that have a mixed panel system with professional and lay judges, juries in Russia and Spain are composed completely of randomly selected lay jurors, more akin to juries in common law countries.⁶⁴ However, like their European counterparts, Russian and Spanish juries have input into sentencing decisions. Their deliberation process is also subjected to tighter controls than that of common law juries. This can be seen in part as providing greater assistance to jurors, and partly as a sign of a lack of trust in a newly reintroduced lay institution.

3.34 A distinguishing feature of both the Russian and Spanish jury systems is that juries are required to deliver not only a general verdict of guilty or not guilty, but must also answer a series of specific questions tailored to each particular charge. Those questions consist of a number of statements, either favourable or unfavourable to the accused, and the jury must decide whether they support or reject each proposition. Questions may concern the facts alleged by either party during the trial phase, the elements of the offence with which the accused is charged, and the existence of any aggravating or mitigating factors that may affect the accused’s criminal responsibility.⁶⁵ The questions list needs to be carefully considered and logically structured so as to guide the jury’s reasoning.

3.35 Spanish juries are also asked to provide a rationale for each of their answers, noting the evidence on which they relied.⁶⁶ If a jury delivers a guilty verdict, the judge asks whether it wants to recommend clemency, or that the sentence be suspended.⁶⁷ Of a nine member jury panel, seven votes are needed to support a specific proposition or a guilty verdict, whereas only five are needed to support a verdict of not guilty or a recommendation on sentence. ⁶⁸

3.36 While there has been little direct research on the effect on jury decision-making of such a detailed questions list and the requirement of verdict justification,⁶⁹ there is evidence to suggest that juries find the questions list complex and ambiguous.⁷⁰ Confusion among jurors seems to be particularly apparent with regard to the aggravating and mitigating factors relevant to sentencing.⁷¹ Although judges endeavour to avoid using legal terminology, they have had more success at this during the trial stage rather than during sentencing.⁷²

Conclusion

3.37 The overseas examples provide an interesting counterpoint in our examination of jury involvement in sentencing. However, they are of limited relevance in NSW. So far as jury sentencing in the United States is concerned, the constitutional basis of jury sentencing in death penalty cases creates a very different environment from that in NSW. The logistics of sentencing in capital crimes is also far too different from other cases to be a useful comparison. In non-felony cases, the bulk of commentators consider jury sentencing to be unworkable and anachronistic.⁷³ The fact that it adds uncertainty to the sentencing process, and may be used to encourage guilty pleas and absolve judicial officers from sentencing responsibility is also cause for concern.

3.38 The Canadian situation can be seen as analogous to the position in NSW whereby a jury may recommend leniency. The main difference is that trial judge in Canada is under an obligation to inform the jury of their right to make a recommendation. As we noted at paragraph 3.7 above, the practice in NSW is for judges not to inform juries of their ability to recommend that a lenient sentence be handed down. We are of the view that this practice should continue, since the jury should not be distracted from its primary role of delivering a verdict based on sound reasoning by considerations of sentence severity.

3.39 The civil law systems of Europe make it difficult to import elements of their jury panels into our own system. Criminal trials are structured around inquisitorial rather than adversarial proceedings, with civil law jurors taking a much more active role than their common law counterparts. The different constitutional circumstances of European nations also means comparisons need to be treated with caution. This is particularly so with regard to Russia and Spain, where juries have been reintroduced as part of a move toward democratisation.

3.40 To sum up, there is little or no evidence from the jurisdictions we have studied to suggest that juror involvement in sentencing decisions produces fairer, or more reasoned and consistent, sentencing outcomes. There is, however, a plethora of academic commentary highlighting the drawbacks of jury sentencing. Consequently, we are of the view that overseas experiences of jury sentencing offer no support for the proposal to involve NSW juries in sentencing to any greater degree than at present.

1. See Cheung v The Queen (2001) 209 CLR 1, [6], where Gleeson CJ, Gummow and Hayne JJ noted that trial by jury in this country does not include sentencing by a jury. It was held that there was no requirement under the Commonwealth Constitution for the jury to be asked to state the basis on which a guilty verdict was reached, or for it to decide contested facts relevant to sentencing.

2. Cheung v The Queen (2001) 209 CLR 1.

3. We note one specific circumstance where a form of jury sentencing existed in Australia. Prior to amendments to the Defence Force Discipline Act 1982 (Cth) made in 2006, the procedure for courts martial involving Australian military personnel was somewhat analogous to jury sentencing. Defence force personnel would effectively sit as a jury panel along with a Judge Advocate, and consult on matters of verdict and sentence. The courts martial system was replaced in 2006 by the creation of the Australian Military Court, to be presided over by independently appointed military judges rather than general service officers: see the Hon Bruce Billson MP, Minister Assisting the Minister for Defence, “Landmark Reforms of Australia’s Military Justice System”, accessed at «www.minister.defence.gov.au/Billsontpl.cfm?CurrentId=6232».

4. R v Tappy [1960] VR 137.

5. The Australian Capital Territory is the only Australian jurisdiction to have legislated the jury’s power to recommend leniency: see Crimes Act 1900(ACT) s 342.

6. See, eg, Myerson v The King (1908) 5 CLR 596; R v Dickson (1865) 4 SCR (NSW) 298; R v Tappy [1960] VR 137; Whittaker v The King (1928) 41 CLR 230; R v West [1979] Tas R 1; R v Harris [1961] VR 236; R v Wingrove (1936) 53 WN(NSW) 118.

7. (1928) 41 CLR 230.

8. (1928) 41 CLR 230, 240.

9. Some courts are more dismissive of jury recommendations on the grounds that punishment is the province of the judge not the jury: see R v Tappy [1960] VR 137.

10. The other factors a judge must consider are discussed at [2.5]-[2.16] of this Report.

11. R v Whittaker (1928) 28 SR (NSW) 411, 420 (Street CJ). See also R v Millward (1931) 23 Cr App R 119.

12. (1936) 53 WN (NSW) 118.

13. R v Wingrove (1936) 53 WN(NSW)118, 118 -119.

14. R v Black [1963] 1 WLR 1311.

15. New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), Recommendation 73 (“NSWLRC Report 48”).

16. NSWLRC Report 48, [8.15]. See [4.13] of this Report for a discussion of the danger of jury sentencing leading to compromise verdicts.

17. See Thompson v The Queen (1989) 169 CLR 1, 30. See also Cheung v The Queen (2001) 209 CLR 1, [19], where Gleeson CJ, Gummow and Hayne JJ stated that it was not necessary to decide whether a jury could be compelled, as distinct from invited, to return a special verdict, as this had not been raised in submissions by either side.

18. See Kingswell v The Queen (1985) 159 CLR 264; Cheung v The Queen (2001) 209 CLR 1; and Director of Public Prosecutions v Nasralla [1967] 2 AC 238.

19. (1985) 159 CLR 264.

20. Kingswell v The Queen (1985) 159 CLR 264, 287. Although Justice Brennan’s judgment in this case was a dissenting one (on other grounds), the reasoning of the majority does not imply error in the passage quoted.

21. (2001) 209 CLR 1.

22. Section 80 provides for the right to trial by jury for defendants charged on indictment with Commonwealth offences.

23. Cheung v The Queen (2001) 209 CLR 1, [133] (Kirby J).

24. Cheung v The Queen (2001) 209 CLR 1, [71]-[74], [86] (Gaudron J).

25. Cheung v The Queen (2001) 209 CLR 1, [132] (Kirby J), [160] (Callinan J).

26. Cheung v The Queen (2001) 209 CLR 1, [7] (Gleeson CJ, Gummow and Hayne JJ).

27. Cheung v The Queen (2001) 209 CLR 1, [55] (Gleeson CJ, Gummow and Hayne JJ).

28. Cheung v The Queen (2001) 209 CLR 1, [7] (Gleeson CJ, Gummow and Hayne JJ).

29. See Criminal Code (Canada) s 745.2.

30. R v Joseph (1984) 15 CCC (3d) 314 (BCCA); and R v Van Osselaer (2004) 181 CCC (3d) (BCCA).

31. R v Nepoose (1988) 46 CCC (3d) 421 (Alta CA); R v Okhuatsiak (1993) 80 CCC (3d) 251 (Nfld CA); and R v Poirier (2005) 193 CCC (3d) 303 (Ont CA).

32. R v Cruz (1998) 124 CCC (3d) 157 (BCCA).

33. See R v Latimer (2001) 150 CCC (3d) 129 (SCC).

34. For an account of the history of jury sentencing in America, see Jenia Iontcheva, “Jury Sentencing as Democratic Practice” (2003) 89 Virginia Law Review 311; Adriaan Lanni, “Jury Sentencing in Non-capital Cases: An Idea Whose Time Has Come (Again)?” (1999) 108 Yale Law Journal 1775; Nancy J King, “The Origins of Felony Jury Sentencing in the United States” (2003) 78 Chicago-Kent Law Review 937; and Morris B Hoffman, “The Case for Jury Sentencing” (2003) 52 Duke Law Journal 951. See also NSWLRC IP 27, [2.18]-[2.43].

35. 122 S Ct 2428 (2002). The Court extended the ruling in Apprendi v New Jersey 530 US 466 (2000) to capital proceedings, by deciding that denying juries the power to decide the facts on which a death sentence is based is a contravention of the Sixth Amendment to the US Constitution (guaranteeing the right to a fair trial).

36. See Ring v Arizona 122 S Ct 2428 (2002). Judges may stipulate that a maximum term of life imprisonment should have a lifetime non-parole period: 18 United States Code s 3594. Note that while judges, appellate courts and State Governors may in fact make the final decision in capital cases, juries must not be told that the ultimate responsibility for determining the death penalty rests with an authority other than them: see Caldwell v Mississippi 472 US 320 (1995).

37. Found in the Eighth Amendment to the US Constitution.

38. See Furman v Georgia 408 US 238 (1972).

39. It is estimated that approximately 4000 United States juries hand down sentences for non-capital offences each year: see Nancy J King and Rosevelt L Noble, “Felony Jury Sentencing in Practice: A Three-State Study” (2004) 57 Vanderbilt Law Review 885, 887.

40. Iontcheva, 355. Plea bargaining involves a deal between the prosecuting and defence attorneys, whereby the accused agrees to plead guilty, but to a lesser offence than the one with which he or she was initially charged. In some states, a defendant may still choose to be sentenced by a jury even after entering a guilty plea. However, this is almost never done in practice for fear of upsetting the bargain struck with the prosecution: see Iontcheva, 355 and King and Noble, 894.

41. See Iontcheva, 354.

42. Those states are Arkansas, Kentucky, Missouri, Texas and Virginia. In Oklahoma, juries decide on guilt and penalty in the same proceedings for first time offenders. However, proceedings are bifurcated for offenders with a criminal history.

43. For example, in Kentucky and Arkansas, the defendant cannot be sentenced by a judge following a jury trial unless the prosecution consents: King and Noble, 903-904, 934. Virginian law prohibits judicial sentencing following a guilty verdict at a jury trial: King and Noble, 919.

44. King and Noble, 891-892.

45. See the arguments advanced in Hoffman, 985-991.

46. See, generally, King (2004).

47. See Iontcheva, 315; and Lanni.

48. See Iontcheva, 359; Lanni, 1802; and Hoffman, 1000-1011.

49. King and Noble, 889.

50. The study involved interviews with judges, prosecutors and defence attorneys from Arkansas, Kentucky and Virginia: see King and Noble, 890.

51. The concept of a “plea discount” (whereby the defendant receives a lesser penalty upon pleading guilty than would otherwise have been imposed following a trial resulting in a conviction) is a pervasive feature of American criminal justice. Consequently, many defendants prefer to plead guilty and be sentenced by a judge rather than risk the unpredictability of being tried and sentenced by a jury: see King and Noble, 895-940.

52. King and Noble, 889.

53. As one commentator put it: “Judges are elected, jurors are votes”: King and Noble, 933.

54. Although German jurors tend to be selected because of their particular professional backgrounds: see Martin F Kaplan, Ana M Martin and Janine Hertel, “Issues and Prospects in European Juries: An Overview” in Martin F Kaplan and Ana M Martin (eds), Understanding World Jury Systems Through Social Psychological Research (Taylor and Francis, 2006), 113. This is largely due to the structure of the German justice system, which has a number of subject-specific courts.

55. See Martin F Kaplan, Ana M Martin and Janine Hertel, “Issues and Prospects in European Juries: An Overview” in Kaplan and Martin (eds), 111-121.

56. See Martin F Kaplan, Ana M Martin and Janine Hertel, “Issues and Prospects in European Juries: An Overview” in Kaplan and Martin (eds), 112.

57. As in France, Russia and Spain.

58. As in Italy, Germany and Poland.

59. For example, Italian jury panels are comprised of six lay and two professional members, French panels have nine lay and three professional members. The only deviation is in Germany in relation to serious criminal cases, which are heard by panels of two lay and three professional members: See Martin F Kaplan, Ana M Martin and Janine Hertel, “Issues and Prospects in European Juries: An Overview” in Kaplan and Martin (eds), 112.

60. See Martin F Kaplan, Ana M Martin and Janine Hertel, “Issues and Prospects in European Juries: An Overview” in Kaplan and Martin (eds), 118.

61. See Yohsuke Ohtsubo, “On Designing a Mixed Jury System in Japan” in Kaplan and Martin (eds), 199-212. See also Lester W Kiss, “Reviving the Criminal Jury in Japan” in Neil Vidmar (ed), World Jury Systems (Oxford University Press, 2000), 353-379.

62. See Yohsuke Ohtsubo, “On Designing a Mixed Jury System in Japan” in Kaplan and Martin (eds), 200-204.

63. Juries were restored in Russia in 1993 and in Spain in 1995 as part of the democratisation process in both countries: see Ana M Martin and Martin F Kaplan, “Psychological Perspectives on Spanish and Russian Juries” in Kaplan and Martin (eds), 71. See also Stephen C Thaman, “Europe’s New Jury Systems: The Cases of Spain and Russia” in Vidmar (ed), 319-351.

64. Note that the Russian system also has a mixed panel of lay assessors. In certain cases, the defendant may choose between a three judge panel, a mixed panel of professional and lay judges, or a completely lay jury: see Martin and Kaplan in Kaplan and Martin (eds), 72.

65. Martin and Kaplan in Kaplan and Martin (eds), 73.

66. Martin and Kaplan in Kaplan and Martin (eds), 74.

67. Martin and Kaplan in Kaplan and Martin (eds), 73.

68. Martin and Kaplan in Kaplan and Martin (eds), 73.

69. See Kaplan, Martin and Hertel in Kaplan and Martin (eds), 120.

70. Martin and Kaplan in Kaplan and Martin (eds), 74-76.

71. Martin and Kaplan in Kaplan and Martin (eds), 76.

72. Martin and Kaplan in Kaplan and Martin (eds), 74.

73. As noted in one submission, it is fair to say that the “systems of criminal justice in those states are not often mentioned as flag-bearers in the movement for the improvement of the justice system”: Public Defenders’ Office, Submission, 18 September 2006.