Earlier this year I suggested to a small group of criminal defense lawyers that the trial by jury system was past its use by date. While the response was generally unprintable, the sentiment was clear – hands off!
But yesterday Nick Cowdrey, the New South Wales DPP and NSW Deputy Police Commissioner Nick Kaldas, who are both attending a criminal law talk fest in Sydney, also raised the spectre of whether or not juries in the modern age are up to the task.
Mr. Kaldas told the international criminal law meeting, “There’s an enormous amount of material for a normal person to try and absorb, analyze in their minds, and understand what that means for the prosecution. It’s that sort of matter at the moment which we think juries may well struggle with, and it’s something for us to think about.” Mr. Cowdrey said he too had heard similar arguments raised by his colleagues both in Australia and overseas.
Are they right? They may be, simply because the sophistication of crimes such as money laundering, drug trafficking and other similar offences are such that it requires a trained forensic mind to get one’s head around them. And many of the laws that govern the criminal law these days are complex and uncertain even for judges and lawyers.
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However, even if a serious case for abolition of trial by jury is not on the cards, Australia desperately needs to reform the current system.
We need to head down the American path and allow for background checks and questioning of jurors. When defence and prosecution lawyers are deciding who should be on a jury in a criminal trial they have zilch information on that person. They have no idea that, for example in a trial involving accused of African or Asian descent, that person might be a member of a racist white supremacist movement, or that the individual often makes racist remarks to his or her friends and relatives.
They have no idea if the prospective juror might have had someone in their family raped, murdered or assaulted, and the juror sees his or her opportunity to exact revenge by being on a jury a convicting a person charged with a crime along those lines.
The law should allow for defence and prosecution to engage jury consultants so that appropriate background checks can be made. And jurors should be able to be cross examined by both defence and prosecution on their views on relevant matters, or on matters pertaining to their background which might make it difficult for them to be objective about the evidence in a case.
The selection of juries needs to be made more transparent. If it is, that might assist those who argue vehemently for its retention.
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Pat, jurors are chosen at random from a ballot box. About 40 people sit in the court room and 12 of their names are called at random by the associate taking names from the box.
The complexity of trials is no reason to abolish the jury system. The intelligence and collective wisdom of 12 people picked at random to serve on a jury is too often underestimated. So is the seriousness with which they (or most of them) take the task.
If jurors are being sent to sleep, that is the fault of the lawyers presenting their case. It is in their and their client’s (including the State) best interest to cut the crap and get to the point.
Given that jury duty is a significant hardship for many people (self employed for one), having a system that would allow a potential juror to escape duty by spleen venting at interview would ensure that juries were staffed by people too dumb to escape.
Re: Item 15. Greg Barnes “Crime too complex for trial by jury”: Bring on the debate Mr Barnes! The legal profession is such a conservative bunch, change is not something that happens very often. This issue (the relevance/usefulness/justice of juries) has circled my mind since day 1 of Law school, but I have found few among the profession even willing to discuss it.
One fundamental question is never answered. Jurors are supposed to be chosen at random. How is this done? Does the sheriff use a blindfold?
Mr Barnes, one point that the legal “profession” should heed is that, unlike most citizens, they are barred from becoming jurors. This “Us and them” mindset is behind the current practice whereby jurors are subjected to delays, mind-numbing inanities spoken by defence and prosecution, excessive off-topic so-called evidence and general time wasting and frustration.
As a two-time juror in lengthy trials, I have found it hard to stay awake, impossible to comprehend the summings-up. Worst, I have found it impossible to deal with some of the other jurors, who for example were much more interested in getting home to the kids or to the Thursday session at the pub and were thus unable to concentrate on the task at hand.
Perhaps what is needed is for juries to be selected truly from peers of the accused – educated to similar levels and from related disciplines in the case of fraud or professional issues.
I favour consideration of the inquisitorial systems instead of juries for matters such as fraud, because the main issue in determining guilt or innocence seems so often to rest firstly on an ability to understand the evidence.
This understanding is clearly not present in the populace at large and may require many years of training and experience.
Some kind of change is needed… the question becomes not IF chage is required, but WHAT and WHEN and HOW.
Time for a Law Reform Commission discussion apper?