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11 June, 2009  
Jury reform hobbled by truth problem

Secrecy and lack of reasons mean juries can be as irrational as they like … A process based on unwise assumptions … South Australian DPP says it’s time for change … Should judges sit with juries or in them?

imageIn 2003 NSW Chief Justice Jim Spigelman gave a speech entitled Reasons for Judgment and the Rule Of Law. He said:

“It should be recognised that publication of reasons is one of the most distinctive characteristics of the judicial process.”

He has mentioned the importance of giving reasons on other occasions, for example in 2004
and in 2007.

How strange it is, therefore, that juries in criminal cases do not give reasons (for their verdicts) at all.

Juries are engaged in a judicial process. They decide facts and law, despite frequent suggestions that they are limited to deciding the facts.

As the South Australian DPP, Stephen Pallaras, recently said:

“Jurors, after being solemnly told that they are not to trouble themselves with the law, are then required to pronounce on the ultimate question of law in the trial.”

Juries deliver a one or two word judgment. That’s it.

All that is left is for the judge to convict (and sentence) or discharge the accused.

imageThe sentencing, incidentally, cannot be based on the facts as decided by the jury because the sentencing judge does not know what they are.

As far as I can see, Spiggsie has never tackled the issue of criminal case juries not giving reasons, but the South Australian DPP (pic) has.

On May 24 he sailed into these stormy seas with an excellent article called Why our jury system must be changed … and verdicts made more transparent.

A summarised version can be found HERE.

Pallaras pointed out:

“At every stage of the criminal process transparency is demanded. Why is it then that when the most important decision in a criminal trial – the jury’s verdict of ‘guilty’ or ‘not guilty’ is made – it is, in most cases, beyond scrutiny? What is delivered is a bare conclusion with participants left to speculate on the reasons for it.”

He also said out that the lack of jury reasons makes a nonsense of the appeal process:

“The accused, now the appellant, now has to make a choice. He may appeal on questions of law … or he may claim that the facts have been misdescribed by the judge or that the facts as proven do not support the conviction. The problem for the appellant, as it is for the judge, is that he too has to guess what facts the jury has decided were actually proven because the jury is never required to state or to reveal in any way what was, and what was not, proven.”

The combination of jury room secrecy and lack of reasons means juries can be as irrational as they like.

imageThey can make up their own “law” because, as the DPP says, the system proceeds …

“on the untested and untestable assumption that juries listen to, understand and apply the legal directions given to them by judges.”

This is an unwise assumption. Justice Vincent of the Victorian Court of Appeal (pic) once said:

“Often, as a trial judge, I experienced concern about the capacity of jury members to follow and comply with the plethora of sometimes complicated instructions that I was obliged to give them. I am confident that this view would be generally shared by most, if not all, of those currently performing that role.”

Surprisingly, in the US there have been instances of jury deliberations being taped, with various degrees of consent from jurors or even judges, as part of research exercises.

An article entitled Jury Room Ruminations on Forbidden Topics (at page 1876) picks up on one example of jury ruminations from the civil jurisdiction.

imageCourts (in the US and Australia) try to keep juries in the dark about the litigants’ insurance. The article notes:

“For a topic that is ostensibly irrelevant or forbidden … talk about insurance was a strikingly common occurrence in the jury room. Conversations about insurance occurred in 85 percent of all cases. On average, jurors in these trials referred to insurance at least four times during deliberations.”

In March this year the West Australian CJ, Wayne Martin (pic), said we should put judges in with juries:

“A system whereby the judge retires with the jury to assist and guide them in their deliberations would not seem at all strange to anyone from continental Europe.”

One problem is that while in Europe all relevant evidence is admissible and truth seeking is the number one objective of the criminal litigation process – that is not so here.

Judges would end up listening to individual jurors raising relevant stuff they are not meant to know or not meant to talk about. Then what?

In England, since 2004, another jury reform development is set to upset the entire jury trial apple-cart.

UK judges are now eligible to sit in jury rooms, not as judges, but as jurors.

This has created some fascinating problems. For example, should the judge tell the rest of the jury members “I’m a judge”?

imageShould the judge shy off from being the foreperson? Should the jury/judge alert the trial/judge – “Psst, I’m a judge too”?

In the UK what is a Spiggsie (seen here) to do if he ends up as a juror and the trial judge starts directing him (as a juror) quite wrongly on the law?

Is the Spiggsie to apply wrong law?

Members of the public will be reassured to learn that in the interests of judicial solidarity, the answer is yes.

Also in the UK it was reported in 2004 that:

“Last week a judge discharged a senior barrister from a jury at the Old Bailey because he believed his presence might be prejudicial. Judge George Bathurst-Norman said the QC’s knowledge of court procedure would allow the lawyer to understand a legal matter that other jurors would not pick up.”

If 11 members of the jury can’t understand a legal matter, then we had better make that 12.