I. INTRODUCTION
2.1 As we have revealed in Chapter 1, the jury is an evolving institution both with respect to its composition of the jury, there has been a relatively recent and quite dramatic “democratization” of the jury. In New South Wales a far broader cross-section of the general community is now liable for jury service than was the case before 1977. In Chapter 3 we consider the argument that the modern jury must represent a fair cross-section of the community and propose amendments to further enhance the representative composition of juries .
2.2 The description of the evolution of the jury in Chapter 1 also highlighted the declining use of the jury. Juries are rarely used in civil litigation and are no longer available in most minor criminal trials. However, when a serious penalty could be imposed the accused person still has et right to be tried by a jury of his or her peers. We have described the categories (of offences for which an accused person may elect summary trial and thereby be liable to a substantially diminished maximum penalty if convicted. Arguments can be made against using a reduction in penalty as an incentive to encourage the choice of summary trial in preference to jury trial. Arguments can also be made against the differentiation between indictable offences triable summarily without the accused’s consent and those so triable at his or her option and also between the latter class of offence and offences triable only before a jury. For example, concern may be expressed that expediency has overridden considerations of public policy and broader principle in the choices made on these questions. The Commission has not considered these questions in this Discussion Paper, preferring to deal with them in a paper covering a range of fundamental issues in the criminal justice system with particular reference to procedural matters.
2.3 Indeed, in this Discussion Paper we have tended to discuss procedural changes to the jury system largely in isolation. We do not, however, neglect the fact that the jury is closely interrelated with the criminal justice system as a whole. The jury’s evolution is one part of the evolution of that entire organism and any changes to it which we may recommend will resound throughout. Moreover, any reforms in other areas of criminal procedure could vitally affect jury trials. In some areas we have referred to proposals in our second Discussion Paper on Procedures Before Trial, particularly those whose chief purpose is to improve jury trial procedures. Similarly, in later Discussion Papers other links will be made where relevant.
2.4 In other areas we are inhibited in suggesting changes which would impinge on the substantive criminal law. One very important example is in relation to complex instructions of law. While we believe that most directions which juries require can be given in simple language and, thus, fully understood, we fear that further research may force us to conclude that some directions are too complex to be properly communicated to lay people. It could be argued that, in such cases, the substantive law should change to accomodate audience. We are constrained From making such recommendations, however, although it may be that we will recommend a separate .investigation of such matters.
2.5 Before we consider what improvements can be made in the system of criminal jury trial, we must deal with the threshold question whether juries should be retained or abolished. The remainder of this Chapter is devoted to a discussion of the opposing arguments on this question.
II. ARGUMENTS FOR THE ABOLITION OF THE JURY
2.6 The arguments which can be advanced in support of the case for the abolition of the jury in criminal trials can be separated, we believe, into four categories. First, criticisms are made of the jury which cannot be denied, such as that juries are costly. Such arguments can be met with the response that these features are disadvantages which are outweighed by the advantages of jury trial. Second, some critics look at features of the jury system, such as the jury’s ability to bend the law without breaking it, as a serious flaw in the jury system, while others, including this Commission, consider it to be a significant advantage. Third, there are criticisms which can, we believe, be refuted. Finally, there is a class of criticism directed solely cat the use of juries in long and complex cases . We deal more fully with this last category in Chapter 10 of this Discussion Paper.
2.7 The chief criticisms of the jury are, first, that it is inefficient: and, second, that it is ineffective. In other words, it is claimed that the jury cannot, for a number of reasons, properly fulfil its role. One reason put forward for the incompetence of juries is the very democratisation which we consider so crucial to its continued acceptability. It is said that the average intelligence of jurors has declined as the ownership of property is no longer a qualification.1 More specifically, it is said that jurors are now less likely to understand financial matters and therefore less able to appreciate the evidence in fraud trials. Similarly, it is said that, since they have no scientific knowledge, they cannot understand scientific evidence. It is patently not the case that intelligence is the sole preserve of those who possess material wealth. Neither (:an it be said that the essential concepts of fraud are beyond the grasp of all but a few members of the community. Moreover, as we argue in Chapter 10, complex evidence in any case should be presented in a way that can be adequately understood by any member of the community regardless of experience or qualifications.
2.8 Another. reason put forward to demonstrate the jury’s alleged incompetence is found in more general misconceptions about particular types of evidence or classes of witnesses. For example, it is feared that jurors, not being equipped with research results on the unreliability of much evidence, are unable to assess the reliability of eyewitnesses. One study has shown:
The crucial factor affecting a juror’s evaluation was the amount of confidence displayed by the witness. Jurors were inclined to believe witnesses who were highly confident more than those who had less confidence.2
And yet, in fact, confidence is not an indicator of accuracy. One possible way of dealing with this problem is for the judge to carefully warn jurors about the risks of identification evidence. Another problem is the tendency to v-ely on the expert witness, accepting his or her opinion without question. Part of the problem in this context is the language in which expert evidence is usually given. In Chapter 10 we consider ways of making expert testimony more accessible to jurors.
2.9 More generally, the criticism has been made that the jury is required to perform irrationally. Noting that juries generally are unable to ask questions of witnesses and counsel, are presented with information in a fragmentary manner, are not assisted by access to documents and transcript and observe a trial dominated by the dispute mode and persuasive argument, Mungham and Bankowski ask:
...how, in the midst of the turmoil of the adversary mode, (can any jury be expected to do its own work ‘efficiently’?3
Judges are not required to make decisions in such an irrational manner. When considering a criminal matter the judge has before him or her all the relevant documents including, of course, the indictment, the transcripts and his or her own notes. Moreover, the judge can give the matter leisurely consideration. The jury, in contrast, must commence its deliberations immediately after- the case is completed and the judge’s summing-up has been delivered. It is suggested that mature consideration and reflection are denied them. Why, the critics ask, do we impose on juries a method of working which operates so contrary to human logic? The Commission considers that the great deal can be done to improve the rationality of jury trials even within the confines of trial procedure alone. Much of this Discussion Paper is devoted to examining means by which such improvement can be achieved.
2.10 Some critics point to the rate of acquittals by juries as indicative of their incompetence.4 Such critics perceive the majority of acquittals as jury errors, or the result of bribery or intimidation. This criticism is most often made by police and it strongly suggests that the police, who lay the charge and gather the evidence, are right in all cases . if they were, then trial by jury would be unnecessary. What the criticism ignores is that the police generally know more about the case and the accused than can be submitted to a jury. For example, the police assessment can be influenced by their awareness of an accused’s record of past convictions . Judges and magistrates are usually the only other participants in a position to determine guilt. Yet judges in New South Wales have overwhelmingly supported the retention of trial by jury in criminal cases5 and numerous judges in many common law jurisdictions have affirmed they generally agree with the verdicts of juries.6
2.11 In Chapter 7 we describe the requirement that each, accused be tried by an impartial tribunal as being a fundamental principle of criminal justice, Some critics believe that Lay jurors, not trained to ignore prejudicial information, are unable to guarantee to an accused an impartial trial. Jurors, it is argued, are too readily swayed by the rhetoric of’ persuasive counsel and by the appearance of the accused. Stereotypes may play a role which can be further highlighted by media publicity before the trial. Jurors may bring with them strong; prejudices which, far from cancelling each other out, reinforce one another. In Chapters 4 and 7 we describe the current procedures for ridding a jury of bias and propose improvements . Moreover, we have faith in the ability of jurors to make impartial decisions reflecting a broad community conscience. It is important ‘that jurors are given adequate orientation to help them understand their role and the significance of impartiality. We deal with this latter subject in Chapter 5.
2.12 Related to the issue of bias or partiality is the protection of jurors from hearing certain prejudicial evidence. We discuss this subject in Chapter 7. It can be argued that if elaborate rules of evidence were not required to shield jurors from prejudice, in other words, if lay juries were no longer used, the tribunal of fact would be free to accept prejudicial evidence which is relevant and probative. Such a tribunal would be more likely to get to the truth of the matter. on the other hand, as we argue below, the very presence of the jury is an essential safeguard against the presentation of unfairly prejudicial information.
2.13 In Chapter 6 we consider the problem of legal language and juror comprehension. We accept that there will be little support for the jury system if it is generally believed that jurors understand little of the law they are required to apply. The Commission considers this to be a most serious problem and one which threatens the survival of the jury system. In Chapter 6 we discuss possible ways in which juror comprehension can be enhanced. We also propose to sponsor further development of standard jury instructions for the guidance of judges (see Appendix). Again it is frequently argued that as the criminal law becomes more complex and the nature of evidence tendered in some criminal cases more technical, the capacity of the jury to cope with the demands of its role is diminished. It is argued that the complexities involved in the trial of some charges have rendered such charges unsuitable for trial by a body of men and women chosen at random from the community without reference to their experience or qualifications. It is suggested that lay people are unable to assess technical evidence because they are unfamiliar with the language in which it is given or with its conceptual framework. Thus, some commentators argue that the jury should not be used for certain cases. Fraud and commercial prosecutions, in particular, fall into this category.7 In Chapter 10 the argument is made that much technical evidence can be made comprehensible to jurors. Emphasis is laid on the mode of presentation of such evidence.
2.14 The jury is, of course, an expensive method of trial. Not only must the twelve jurors be paid but so must the others, often more than thirty, who form the pool from which the jury is selected. The jurors, moreover, while they are serving, are kept from their ordinary occupations and responsibilities. In addition, court personnel are employed to administer the jury system at all stages. This is one criticism which, we believe, falls into the category of “well worth it”. Indeed, it could be argued that the jury system is no more expensive than most of the suggested alternatives. A panel of judges, on judicial salaries, for example, might work through the evidence more quickly than a jury can, but would ultimately prove more expensive because they would tend to deliberate at greater length and would have to prepare written reasons for decision. Expert assessors, even if a panel of only two or three were required, would need to be paid a very much higher fee than lay jurors currently receive.
2.15 Time, too, would not necessarily be saved if the jury were discarded. The presentation of evidence is a relatively slow process when a jury is involved, but deliberation follows immediately and no reasons need be given for verdict. Even a single judge will, in most cases, take much longer on deliberation and the preparation of reasons although there is no doubt that the presentation of the case itself can be expedited. We agree with the proposition that,
... the role of our judicial system is to dispense justice and not to dispatch business. The speed at which a case progresses is not, thankfully, the true measure of whether justice has been done.
... curing court delay must be done without destroying the quality of the end product.8
2.16 Many of the criticisms outlined above are soundly based. We consider, however, that the conclusion which follows from an analysis of them is not the abolition of the criminal. jury system but its reform. The jury, in the future as in the past, must evolve to meet existing demands and to reflect current concepts of its role and function. In the next Part we outline the unique strengths of the jury system.
III. ARGUMENTS FOR THE RETENTION OF THE JURY
2.17 Juries are traditionally used to assess and determine the facts in a criminal trial because they are considered to be able to do this better than a judge. It is believed that juries are the best judges of the credibility of witnesses and that they are best able to accurately characterise behaviour as reasonable or unreasonable and so on. This is so because they bring to their task a range of backgrounds and experiences of necessity far broader than that possessed by a single judge.
It is the mix of different persons with different backgrounds and psychological traits in the jury room that produces the desired results. There is both interaction among jurors and counter action of their biases and prejudices.9
The Law Reform Commission of Canada has suggested that the Jury has a number of unique features which together make it accurate as a fact-finder, and reliable ii n its assessment and characterization of behaviour. They are:
- a jury brings to bear on its decision a diversity of experiences;
- because the jury deliberates as a group, it has the advantage of collective recall; and
- the jury’s deliberative process contributes to better fact-finding because each detail is explored and subjected to conscious scrutiny by the group.10
It can be argued that the more representative at jury is the better it is able to perform its fact-finding task.
... among the twelve jurors there should be a cross-section of the community, certainly not usually accustomed to evaluating evidence, but with varied experiences of life and of the behaviour of people.11
It is felt that such a group is “better able to understand and appraise conduct than one who lives the remote life of a judge”.12
2.18 As well as being best suited to determine facts, the jury is able, unlike the judge, to give weight to the broad equities in the individual case. While a judge is bound by precedent and statute, the jury can take into account the “human” factor. It is in this way that each jury verdict can bring to bear the broad community conscience. Where precedent and statute set down the law in a general sense, the jury can adjust the law to the merits of each case.
Is it not better that juries should be swayed by sympathy than that judges should be swayed by purely technical or legal considerations? Jurymen will do a little wrong in order to do a great right. They endeavour to do justice without regard to strict law. A judge, bound by precedent, must tread the straight and narrow path.13
The jury’s equitable power, it is argued, ensures that the criminal justice system continues to have the support of the public and of the direct participants, especially accused people.
Citizens believe that juries of their peers are more likely to consider individual circumstances in applying legal rules. A group of one’ s peers certainly can empathise with particular circumstances faced in a fact pattern.14
The jury represents the conscience of the community from which it is drawn. It is able to do justice, and because the finding of a jury creates no precedent, it is able to decide a case equitably without making bad law.15 As the Supreme Court of the United States has acknowledged:
...in differing from law-bound conclusions, juries serve some of the very purposes for which they were created, and for which they are now employed.16
2.19 The role of the jury in relieving judges of responsibility for, determining criminal Issues has also been stressed.
The weight of responsibility is lifted from their shoulders - a weight which, in criminal cases, would often be almost unbearable.17
Of course, the judge is not entirely relieved of responsibility. lie or she is responsible for controlling the proceedings and instructing the jury. Nevertheless, the sharing of responsibility would seem to be significant, Juries also should judges from opprobrium and allegations of bias. The decision-maker in, a criminal jury trial is an almost anonymous group of twelve ordinary citizens with no attachment to the particular case and no dependence upon or relationship with the other participants. The particular jury does not have a history or a record and it has no future after the trial is concluded. The judge, on the other hand, could be identified with his or her record and allegations of bias might be easy to make. The sentencing practices of various judges are, from time to time, subjected to considerable public attention. The use of the jury to render verdicts prevents the problems which would arise if such attention was focussed in the same way on judges for their verdicts.
2.20 The jury system is sustained not only by its effectiveness as A dispenser of justice in individual cases but also by its practical ;and symbolic function as a democratic institution. This function may conveniently be discussed under two broad headings.
- The jury system legitimises the criminal justice system by providing a link between that system and the community.
- The jury system is the ultimate protection of the individual citizen and, indirectly, of society as a whole against oppressive laws and the oppressive enforcement of laws.
2.21 The jury acts as a two-way link between the community and the legal system. One of its functions, arguably the most important function it performs, is to make sure that the legal system does not become distinct from, and alien to, the community. Individual citizens have, however briefly, a direct influence con the process of criminal justice and its values. The use of juries keeps the criminal justice system in step with the standards of ordinary people. Because “they represent current ethical conventions” juries “are a constraint on legalism, arbitrariness and bureaucracy”.18 The other important function is to ensure that community support for the criminal justice system is maintained.
Part of the function of the jury is ideological. Via the celebration of the ‘communion of peers’ its aim is to legitimise the law and legal institutions.19
It is often argued that in order that the community accept the decisions of courts as “legitimate” or fair, proper and just, they must identify with the process of justice. An important way in which this community acceptance or identification is achieved is by requiring citizens to participate in the administration of justice by serving on juries.
2.22 The jury system ensures at measure cof accessibility in the criminal justice system. Because the jury is the ultimate decision-maker, each case must be presented in a manner, language and broad value framework which juries of lay people both understand and accept. This compels both lawyers and judges to present the law comprehensibly and to reveal some of the underlying principles of the law and in his justice system, which in time decreases the mystique generally associated with the courts.
The importance of the jury lies in the fact that, lawyers and judges know that their arguments must be pitched on a level that the man in the street can understand. Juries (counter the centrifugal tendencies of authorities.20
The jury is an active participant in each trial if only because the entire case is directed towards the jury’s verdict as its ultimate result. Judges and counsel recognise the need to direct their communication to the juries. The effective communication of a case to the jury should result in a verdict which is a fair reflection of the merits of the case. Accessibility is enhanced in a broader sense also when it is considered that people who have served on juries have received an education in the relevant law and procedures which will stay with them in the future.21
2.23 It is also claimed that the jury system is a bastion against oppression. This feature incorporates the reluctance of juries to apply the law in cases where an unjust, unfair or harsh result will occur. It also sees the jury system more broadly as a continuing check on the “rightness” of the law, on criminal investigation practices and prosecutorial policy,22 and on the independence and quality of judges.23 The results of the Chicago Jury Project offer one example of this. It was found that juries tended to “punish” the prosecution with acquittals or convictions on lesser charges where police and/or prosecution behaviour was considered to be unfair, in cases involving entrapment, physical violence, harrassment to obtain a confession, or, a failure to prosecute all participants.24 The jury’s ability so to express its disapproval is an indirect control on the practices of the authorities. One commentator believes that the most important role of the jury in contemporary society is in preventing police influence in the courts from becoming dominant.25 Moreover, the jury is often relied on to mitigate the harsh results which the law may demand, even to the point of returning a “perverse” verdict of not guilty as a protest against an unjust law. Thus, the jury is seen as a political institution. Both by its presence and by its verdict, the jury assumes a degree of responsibility for the integrity and fairness of the criminal law and the criminal justice system.
2.24 The jury system does not rely merely upon the sense of responsibility of each juror to defend the individual accused against oppression. Built into the system are safeguards to further protect the accused person against wrongful conviction. We have mentioned above the importance of a jury which represents a cross-section of the community. Individual prejudices are, it is hoped, counteracted and the resulting interplay of views and backgrounds leads to a fair and balanced assessment of the case.
A judge in a criminal court is constantly confronted with criminals. This can become such a routine job that in spite of conflicting evidence he may reach a (quick decision, thinking that it is a run-of-the-mill case., If the same evidence is taken before a carefully attention jury - where the presiding judge to precluded from dropping a subject prematurely - the chances are that the accused may well be acquitted for lack of evidence.26
2.25 Again, the very presence of the jury has led to the development of rules of evidence which ensure that prejudicial material is not presented and, therefore, cannot influence the jury in its deliberations. Thus the presence of the jury “may be regarded as helping to guarantee an unbiased judgment”.27 Accused people may be suspicious of judges who are required to disregard prejudicial material ruled inadmissible and lack confidence in their ability or willingness to ignore such material. The jury, however, offers the accused in tribunal protected from prejudicial material and able to concentrate only on the evidence and the other factors which it is entitled to take into account.
2.26 The retention of the jury as the tribunal of fact in the trial of serious offences suggests that it is regarded as an acceptable means of dealing with questions of guilt and that the jury is a necessary safeguard when a significant penalty could be imposed. The increasing range of criminal charges being determined without the use of a jury indicates that its use is considered problematic in some quarters for whatever reason. This apparent ambivalence in the community’s attitude to the jury may result from ignorance of the jury’s role or from apathy as to its future, Alternatively, the value of jury trial may have been consciously weighed against the social importance of different offences and the expense, delay and inefficiency believed to result when a jury must be empanelled. In the case of very serious crimes it is clear that the perceived costs of jury trial are still considered to be well worth paying.
2.27 The Commission is firmly of the opinion that trial by jury should be retained in serious criminal cases. The jury is an effective institution for the determination of guilt. it has the added benefit of possessing the ability to do justice in the particular case. The jury system is, moreover, an important link between the community and the criminal justice system. It ensures that the criminal justice system meets minimum standards of fairness and openness in its operation and decision-making, and that it continues to be broadly acceptable to the community and to accused people. The participation of laypeople in the system itself validates the administration of justice and, more generally, incorporates democratic values into that system.
FOOTNOTES
1. C.L. Newman, “Trial by Jury: An Outmoded Relic?” (1955) 46 Journal of Criminal Law Criminology and Police Science 512, at p.516.
2. L.Re. “Eyewitness Identification: Why So Many Mistakes?” (1984) 58 Australian Law Journal 509, at p.516.
3. G. Mungham and 7, Bankowski, “The Jury in the Legal System”, in P. Carlen (ed.), The Sociology of Law (Sociological Review Monograph 23) 202, at p.213.
4. See, for, example, Sir Robert Mark, then Commissioner, of the Metropolitan (London) Police, Minority Verdict (Dimbleby Memorial Lecture, B.B.C., 1973).
5. Survey of Judges, July 1985, New South Wales Law Reform Commission (results to be published).
6. H. Kalven and H. Zeisel, The American Jury (Chicago University Press, 2nd ed. , 1971), at p.318; S. McCabe and R. Purves, The Jury at Work (Blackwell, Oxford, 1972), at p.38; Lord Du Parq, Aspects of the Law (Holdsworth Club Lecture, 1948), mkt p.10; J. Baldwin and PE McConville, Jury Trials (Clarendon Press, Oxford, 1979), at p.4; Estey, J. (Canadian Supreme Court) in “Changes needed to save jury system, judge says”, Canberra Times 10 August 1985, at p.12; D.S. Hogarth (formerly Supreme Court of South Australia), letter to the editor, Weekend Australian 20 July 1985.
7. A. Samuels, “The Great Unknown” (1968) 118 New Law Journal 1132.
8. R. Janata, “The Pros and Cons of Jury Trials” (1976) 11 The Forum 590, at p.592.
9. Id., at pp.595-596.
10. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper, 27, 1980), at p.6. See also The Law Society (U.K.), “Another Chance for the Jury?: Evidence to the Roskill Committee on Fraud Trials” (1984) The Law Society’s Gazette 3574.
11. Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedure and Evidence (Third Report, 1975), at p.84.
12. Ibid.
13. P.A. Jacobs, “Trial by Jury - Its Origin and Merits” (1948) 21 Australian Law Journal 462, at p.463.
14. L. Pressler, “The Right to Trial by Jury: The Best Appendage of Freedom” (1983) 19(9) Trial 56, at p.57.
15. P.A. Jacobs, “A Plea for Juries” (1932) Australian Law Journal 208, at p.209.
16. Duncan v. Louisiana 391 U.S. 145 (1968), at pp.156-157.
17. P.A. Jacobs, note 15 above, at p.210.
18. M.D.A. Freeman, “The Jury on Trial” [1981] Current Legal Problems 65, at p.90.
19. G. Mungham and Z. Bankowski, note 3 above, at p.217.
20. M.D.A. Freeman, note 18 above, at p.89.
21. See generally Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at p.13; Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedures and Evidence (Third Report, 1975), at p.83.
22. The Law Society (U.K.), note 10 above.
23 . Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedure and Evidence (Third Report, 1975), at p.82.
24. H. Kalven and H. Zeisel, note 6 above, at pp.318 ff.
25. W.R. Cornish, The Jury (Penguin, 1968), at p.144.
26. E. Knittel and D. Seiler, “The Merits of Trial by Jury” (1972) 30(2) Cambridge Law Journal 316, at p.323.
27. Id., at p.318.
