1. LEGAL STUDIES 5. Juries U4.AOS2

2. Learning Intentions At the end of this topic, we will be able to explain: 4.2.12The role of juries, and factors that influence their composition 4.2.13Strengths and weaknesses of the jury system 4.2.14Reforms and alternatives to the jury system At the end of this topic, we will be able to: 4.2.17Define key legal terminology and use it appropriately 4.2.18Discuss, interpret and analyse legal information and data 4.2.19Apply legal principles to relevant cases and issues 4.2.26Critically evaluate the effectiveness of juries SD 28

3. Jury System Composition of juries Role of the Jury Evaluating the jury system Effective operation of the legal system Reforms to the jury system Alternatives to the jury system

5. C OMPOSITION OF JURIES

6. What is a jury?  A jury is an independent group of people summoned to a court and empanelled to decide on the evidence in a case and reach a verdict.  Jury selection is random  Potential jurors are selected at random if they are aged 18 years or above and are enrolled as an elector for the Legislative Assembly and Legislative Council.  However, the composition of a jury is dependent on a more complex range of factors than simple ‘randomness’.

7. Jury Pool

8. Jury Pool: Factors influencing jury composition The Juries Commission will send a questionnaire to prospective jurors to determine their eligibility for jury service.  If eligible: person is sent a summons to attend jury service.  If ineligible: person will not be summoned for jury service. There are three broad categories of ineligibility:  Excused for good reason – the Juries Commissioner has discretion to excuse a person from jury service on application by the person if there is good reason to do so. Good reasons for being excused are illness or poor health, incapacity, distance, substantial hardship, carer obligations, advanced age or religious beliefs incompatible with jury service  Disqualification – certain persons are disqualified from serving as jurors. These include bankrupt persons, a person on remand and a person on bail for an indictable offence.  Ineligibility – some persons are not able to participate in a jury due to their occupation. This includes people who in the last 10 years have been a judge, magistrate, judicial officer, governor, bail justice, lawyer or person engaged in law enforcement.

9. Jury Pool: Factors influencing jury composition Prior to becoming a member of a jury panel, a person may apply to the Juries Commissioner for deferral or exemption:  Deferral of jury service – a person who has received a jury questionnaire, at any time before becoming part of a jury panel, can apply to the Juries Commissioner to defer jury service to another period within the next 12 months  Exemption – the Juries Commissioner can grant to a person who attends for jury service a exemption for a period of time, not exceeding three years. This can be granted where the juror has attended a trial as a juror for a lengthy period, or for other good reasons.

10. Jury Pool: Factors influencing jury composition If a person is eligible and not granted exemption or a deferral, he or she must attend court as part of a pool of jurors (the ‘jury pool’) who may potentially form a ‘jury panel’ for a case. Members of the jury pool are told:  the type of action or charge  the name of the accused in a criminal trial or the names of the parties in a civil trial  the names of the principal witnesses expected to be called in the trial  the estimated length of the trial  any other information that the court thinks relevant.

11. Jury Pool: Factors influencing jury composition After receiving the information about the case, a juror may be excused or discharged by the Court.  Excused upon giving information to the Court – a person may be excused if the Court is satisfied the person will be unable to consider the case impartially or is unable to serve for any other reason  Discharge – a juror can be discharged during a trial if it appears that the juror is not impartial, the juror is incapable of continuing to act, the juror becomes ill or it appears to the judge that the juror should not continue to act.

12. Jury Pool: Factors influencing jury composition Not all prospective jurors will be selected for a jury. Some prospective jurors may be challenged. If a juror is not selected, he or she returns to the jury pool until another trial requires a jury and the process is then repeated.  Challenged for cause – each party in a criminal trial has an unlimited number of ‘challenges for cause’, that is, a challenge that is made because of a particular reason (e.g. knowing the accused). The judge will determine the outcome of the challenge.  Peremptory challenges – in a criminal trial, each party is able to challenge between four and six potential jurors without cause, depending on how many persons are arraigned in the trial.  Challenges without a reason are usually based on an assumption (usually based on appearance, age or occupation) that the juror might not be favourably disposed to the challenger.

13. Jury in a criminal case  A jury is required in criminal cases if the accused pleads not guilty to an indictable offence trialed in the County Court or Supreme Court.  Number of jurors:  Criminal juries are made up of 12 people.  When a trial is expected to continue for an extended period, the judge may empanel 15 jurors; but only 12 take part in reaching the verdict.  If at the end of the trial more than 12 jurors remain on the jury, a ballot will be held to reduce the number of jurors to 12.

14. Jury in a criminal case: challenges  Both the accused and the prosecution have unlimited challenges for causes.  Limits for ‘peremptory challenges’ by the accused or requests to ‘stand aside’ by the prosecution:

15. Jury in a civil case: challenges  A jury in a civil trial is optional. Either party may choose to have a jury. The party who wishes to have a jury usually pays for it.  In the County Court this amounts to about $700 for the first day of trial, about $500 per day for days two to six, and about $1000 for the seventh and each subsequent day.  Number of jurors:  If a jury is to be used in a civil trial in the Supreme Court or the County Court, it must consist of six members.  Up to two extra jurors may be empanelled if the trial is likely to be a lengthy one.  At the end of the trial, if eight jurors still remain, the court will decide by ballot which two jurors should be excused from the deliberation.

16. Jury in a civil case  Peremptory challenges  The plaintiff and the defendant are entitled to three peremptory challenges each. A peremptory challenge in a civil trial is made by striking the name or number of the potential juror from the list of persons selected.  Challenges for cause  There can be an unlimited number of challenges for cause. The judge makes the decision on whether to allow any challenges for cause.

17. Summary of factors affecting jury composition  Jurors must be over 18 and listed on the electoral roll  Jurors selected at random  Jurors can be ineligible for the jury pool due to:  Ineligibility  Disqualification  Excused for good reasons  Jurors can be challenged, with or without cause

18. Role of the foreperson  Once a jury is empanelled, the jurors elect a foreperson to act as their spokesperson.  The foreperson will chair the deliberations and ensure that each juror has an opportunity to have their say. They will ask the judge questions and deliver the verdict.  During the jury’s deliberations, the foreperson is responsible for the conduct of the deliberations, although his or her vote does not carry any extra weight, and he or she should not try to influence the other jurors in any way.

19. Juries Commissioner notifies the Electoral Commissioner of the number of people required for jury duty. The Electoral Commissioner randomly selects the required number of jurors.The Juries Commissioner sends a questionnaire to prospective jurors. Ineligible for jury pool Ineligibl e Dis- qualified Excused for good reason Eligible for jury pool but not selected as part of jury Discharged Excused upon giving info Challenged Peremptory Challenge Challenged for cause Eligible and selected as part of jury

20. R OLE OF THE JURY SYSTEM

21. Role of the jury: general  General purpose of juries: The jury acts as an independent decider of facts in criminal trials and in some civil trials.  In contrast, the judge is the independent decider of points of law.  Jury service is considered to be not only a right but also a responsibility of every citizen in the community.  A jury is never used in the Magistrates’ Court, in appeal cases or when the accused pleads guilty, and is optional in civil cases.

22. Role of the jury: in criminal trials The jury in a criminal trial is responsible for:  Listening to and considering the evidence presented by both parties  Reaching a unanimous or majority verdict in accordance with the facts (i.e. evidence) after being directed about the appropriate law by the judge  Unanimous verdict (all jurors agree)  Majority verdict (11 out of 12), if after six hours of deliberation the jury could not reach a unanimous verdict (in all cases except treason, murder and Commonwealth offences, where the verdict must be unanimous) The jury is expected to be unbiased and attentive during the trial in order for deliberations to be fair.

23. Role of the jury: in criminal trials If a jury is unable to reach either a unanimous or majority verdict, then it cannot reach a decision and is said to be a hung jury. A new trial, with a new jury, will usually be conducted after a hung jury verdict.

24. Role of the judge: in criminal trials  The role of the judge in criminal (and civil trials) is to:  explain which party has the burden of proof and the standard of proof required  apply the rules of evidence and procedure  direct the jury as to the law that applies to the facts  give rulings on points of law when appropriate  summarise the law applicable to the case  answer questions from the jury.  In criminal trials the judge will also:  Sum up the evidence to help the jury understand the trial’s elements.  Direct the jury to acquit if the evidence does not support a conviction.  Decide an appropriate sanction if the accused is convicted.

25. Role of the jury: in civil trials  Civil juries of six are optional and used only if one or other of the parties choose.  A civil jury’s role is to listen to the evidence and reach a verdict (which may be a majority of 5 out of 6) on the balance of probabilities about who is liable.  If the plaintiff is successful the jury will decide the amount of damages.

26. Role of the jury: in civil trials

27. Role of the judge: in civil trials  The role of the judge in civil (and criminal trials) is to:  explain which party has the burden of proof  explain the standard of proof required  apply the rules of evidence and procedure  direct the jury as to the law that applies to the facts  give rulings on points of law when appropriate  summarise the law applicable to the case  answer questions from the jury.  In civil trials if there is a jury, the judge will not determine liability and damages. If there is not a jury, the judge will determine liability and damages.

28. E VALUATING THE JURY SYSTEM

29. Strengths of the jury system Four categories: PCPT  Judged by peers  Cross-section of the community  Safeguard against misuse of power  Stood the test of time.

30. Strengths of the jury system: Judged by peers Juries allow the accused or defendant to be judged by their peers  The jury system allows the public to be involved in the decision-making process.  Juries can take into account the social, moral and economic values of the time, and make a decision from the point of view of the ordinary person in the street, rather than the legal reasoning that a judge may bring to a decision.  Responsibility for decision-making is spread across a number of people  The use of a jury allows the decision-making to be spread over more shoulders, rather than being placed solely in the hands of a judge. This spreads the burden of the decision and also means that the parties will feel more confident in a decision agreed to by a majority of several jurors rather than one judge.

31. Strengths of the jury system: Cross-section of the community Juries are a cross-section of the community and reflect prevailing community attitudes  Jurors are selected at random through the electoral roll, meaning that they come from all walks of life, geographic areas of Victoria and from different occupations. Their varied attitudes, values and life experiences mean that they can provide different views on the crime, the accused or the evidence.  This can be compared to systems where a specialist jury may be appointed, where the jury may not represent such diverse views.

32. Strengths of the jury system: Safeguard against misuse of power (1)  Juries are independent and impartial fact-finding body  Juries provide a trial that is free from direct political interference since they are independent from the three branches of government.  Directly safeguards against the misuse of power by judges  The judges in a courtroom hold enormous power. Their decisions will have an effect on every person who comes before them. The jury acts as a buffer between the parties to a case and the state.

33. Strengths of the jury system: Safeguard against misuse of power (2)  Protects democracy through public scrutiny of the legal system  Elected representatives make the laws according to the people and the courts enforce these laws. A jury, which is made up of representatives of the people, is another way in which the people are involved in the system and are able to scrutinise the interpretation and application of the law.  Juries ensure the law can be understood by the ordinary person  Juries ensure the system remains intelligible to the ordinary person and involves the community as there is less legal jargon. This also enables the parties to the case to have a better understanding of what is going on within the court.

34. Strengths of the jury system: Stood the test of time  As a general rule, the legal profession supports the jury system. They believe that the jury takes its role very seriously and tends to arrive at the right decision.  Experience has shown that the jury listens carefully to all the evidence and as a group remembers the facts well. As a result, juries tend to make the right decisions.

35. Weaknesses of the jury system Five categories: PCCCS  Judged by peers  Cross-section of the community  Cost and length of trial  Correct decisions  Deliberations kept secret

36. Weaknesses of the jury system: Issues with being judged by peers (1) Jurors may not understand or recall evidence that can be complex and technical  Members of the public normally have no legal expertise or knowledge of court processes, the law or the elements that need to be proved, thus providing some doubt as to whether they have understood the evidence and what is required to prove guilt.  The Juror’s Handbook gives a brief explanation of the processes to expect during the trial. However, the jurors will be in very unfamiliar territory and are likely to feel unsure of what is happening in the courtroom.

37. Weaknesses of the jury system: Issues with being judged by peers (2) Jurors may be influenced by factors other than the facts before them  In the adversary system, both sides are endeavouring to win the case. Every barrister will try to influence the jury to find in favour of their client – the more experienced barrister will do so more successfully. As a result, jurors could be influenced by emotional elements of the trial or the eloquent rhetoric made by a barrister, rather than the logic of the case put by both sides.  Jurors may be influenced by media reports of a case, despite provisions of the Juries Act preventing them from doing so.  If a case has caught the public interest, the jurors may have formed some ideas about the case before hearing the evidence in the trial. It is then very difficult for jurors to put their knowledge of the case out of their minds. However, jurors generally take their task very seriously and make every effort to approach it in an unbiased way.  Peers may have preconceived biases about the accused or the crime, and may find these biases difficult to ignore.

38. Weaknesses of the jury system: Cross-section of the community Juries may not be a true cross-section of the community  Potential jurors can be challenged or excused for a good reason, which reduces the ability of a panel to remain as a cross-section of the community.  The provisions of the Juries Act mean that many people may be ineligible or disqualified for appointment to the jury panel.  Ineligible persons include judges, lawyers, bail justices, some members of the public sector, police officers, therefore reducing the amount of people who have some knowledge of the law and the legal system from taking part in the jury system.  Furthermore, many people are determined to be disqualified, including some former prisoners, thus again reducing the people available to be part of the panel.

39. Weaknesses of the jury system: Cost and length of trial (1) Juries can add to the cost and length of a trial Delays  Because legal personnel have to explain the legal terms they use to the jury, the trial is likely to take longer.  A longer trial is likely to be more expensive, inconvenient and traumatic for the parties involved, and lead to delays in bringing matters to court because they take up more court time.  The empanelling of the jury and the deliberations of the jury also add to the length of the trial.

40. Weaknesses of the jury system: Cost and length of trial (2) High cost  Bringing a matter to court is expensive. The use of a jury makes the whole process more expensive in that the trial is often longer and the jury has to be paid, either by the state in a criminal trial, or by the party that decides to use a jury in a civil trial.  In the case of a criminal trial, the burden is placed on the taxpayers.  If a jury cannot reach a decision and there is a hung jury, it is very costly for the state to bring a criminal trial to court for a second time.  It is also very costly for the parties in a civil case to go through a retrial, although hung juries are less common in civil trials.

41. Weaknesses of the jury system: Correct decisions (1) Jurors are not capable of reaching the correct decision  Juries have been criticised because of their high acquittal rate  A jury often consists of people who come from different backgrounds and have different values. Such a diverse jury may have difficulty reaching a unanimous or majority decision.  Even though majority verdicts are accepted in all cases but murder, treason and serious drug offences, if two people disagree with the rest of the jury, there will be a hung jury.  Unanimous verdicts and majority verdicts (with only one juror being able to disagree) safeguard the innocent and make wrong verdicts less likely, but they also make reaching a guilty verdict more difficult.

42. Weaknesses of the jury system: Correct decisions (2) Jurors are not capable of reaching the correct decision  If there is a jury in a civil trial, the jury is required to assess damages. Juries tend to be very inconsistent and unpredictable in assessing damages.  The jury’s assessment could depend on the different spread of people on the jury. For example, a jury mainly made up of people in a high income bracket might award higher damages than a jury made up of people in a lower income bracket to whom larger amounts might seem unrealistic and out of the question.

43. Weaknesses of the jury system: Deliberations kept secret Jury deliberations are kept secret and reasons do not have to be given  Juries’ deliberations are carried out behind closed doors without anyone present other than the jury members.  Their decision could be unjust if all the evidence is not considered, yet the deliberations are not disclosed so it is not actually possible to tell whether the decisions are made on sound reasoning.

44. T HE JURY SYSTEM ’ S CONTRIBUTION TO THE EFFECTIVE OPERATION OF THE LEGAL SYSTEM

45. Use FAT!  The operation of the jury system is considered to be a cornerstone of our justice system.  When assessing the effective operation of the jury system, you should consider the extent to which each of the three elements of an effective legal system is achieved (FAT). For each element, you should consider:  the processes and procedures that help the achievement of each element  the processes and procedures that hinder the achievement of each element.

46. Fair and unbiased hearing Processes that Fair and unbiased hearing Processes that contribute to a fair and unbiased hearing For a fair and unbiased hearing to be achieved it is essential that the jury remain an independent and impartial decider of fact. This can be achieved by:  The random nature of jury selection, which promotes the ideal of the jury being made up of a cross-section of the community  Removing potentially biased jurors at the jury selection stage; some people are ineligible or disqualified from serving on juries due to their experiences with the legal system  Removing any juror who knows either party to a case or any of the witnesses – they should ask to be excused from that trial, to remove the potential for bias  Both sides of the case being able to challenge jurors they believe would be prejudicial to the case  The guilt of the accused being determined by a majority verdict (or unanimous verdict for some offences such as murder) of a jury with no former knowledge of the accused and that holds no preconceived ideas about the accused.

47. Fair and unbiased hearing Processes that Fair and unbiased hearing Processes that hinder a fair and unbiased hearing A fair and unbiased hearing may be hindered in a jury trial because:  Juries are not necessarily made up of a cross-section of the community  Some people are unlikely to be tried by their peers – for example, few Indigenous people are chosen for jury service, which could result in an Indigenous accused having their case heard before an all-white jury, which therefore does not account for cultural needs.  A juror may find it difficult to set aside a bias that they hold against particular groups in the community, such as gender biases.  The jury could be influenced by things they may have read or heard in the media before a case begins, and have difficulty setting this aside  Jurors may have difficulty in understanding the complicated nature of a trial and any complex evidence in a case, which could mean that the accused is not given a fair hearing on the evidence.

48. Effective Access to the Legal System Processes that Effective Access to the Legal System Processes that contribute to effective access  A jury provides the general public with a chance to be involved in legal processes, giving them a greater knowledge and understanding of the operation of the courts. This enhances the opportunity for effective access to the legal system.  The jury system also gives people confidence that their case will be heard by their peers, who are more likely to have an understanding of their predicament.

49. Effective Access to the Legal System Processes that Effective Access to the Legal System Processes that hinder effective access  The use of a jury in a civil trial is optional and, if used, the party requesting the jury must bear the cost.  This can be an expensive process, and is in addition to all the other fees and costs associated with pursuing a case. These high costs would preclude some parties from using a jury in their civil trial, denying them access to this mechanism.  In a criminal trial, the financial burden of a trial before a jury is borne by the taxpayers, although other problems of effective access to the legal system are present in criminal cases.  For example, if a person is accused of a crime, his or her effective access to the court would be diminished if he or she was not able to obtain the services of a good lawyer because of the high cost.  Effective access to the legal system may also be reduced if the people involved in a civil dispute or criminal case were not aware of their rights.

50. Timely resolution of disputes Processes that Timely resolution of disputes Processes that contribute to timely resolution  The speedy completion of a case frees up the courts for other cases and gives a verdict as quickly as possible to the accused and the victim or relatives of the victim, or the parties in a civil case.  However, the courts must ensure that the accused has been given a fair trial and the jury is able to reach the right decision.

51. Timely resolution of disputes Processes that Timely resolution of disputes Processes that hinder timely resolution The use of juries adds to the time taken for a trial for a number of reasons:  The empanelment process can often take hours or even days for long trials.  During the trial, proceedings may need to be halted and jurors removed from the courtroom while legal counsel argues a point of law.  The filing in and out of the courtroom and jury room can add to delays.  The trial itself can often take longer because the legal counsel are at pains to explain concepts to the jury so that members of the jury can understand the evidence given.  Jury deliberations may take some time. Delays are even more extreme if the outcome is a hung jury, and the case needs to be retried before a new jury.

52. R EFORMS TO THE JURY SYSTEM

53. Requirements of study design  The study design requires students to learn about both reforms and alternatives to the jury system.  Students should learn the distinction between the two:  Reforms are improvements to the jury system.  Alternatives replace the jury system with something else entirely.  Reforms do not need to be directly linked to the elements of an effective legal system (FAT), so long as it is clear that the reform was linked to some sort of improvement.

54. Reforms 1. Reduce or abolish peremptory challenges 2. Specialist foreperson 3. Amend the Juries Act 2000 (Vic.) to allow broader representation 4. Provide reasons for jury’s decisions.

55. Peremptory Challenges Reform: Reduce or abolish peremptory challenges – challenges ‘without cause’ could be reduced to avoid a possible ‘manipulation’ of the compilation of a jury based on the parties’ views about a juror. One possible reform could be to abolish peremptory challenges as these challenges are subjective; based only upon someone’s name and occupation. Furthermore, it prolongs the empanelment process and increases costs associated with additional jurors who are called but not used. However, peremptory challenges help to ensure the composition of the jury is even in terms of age, gender and race, helping the parties to give the defendant a fair trial.

56. Specialist foreperson Reform: use a specialist foreperson on the jury with relevant experience in the legal profession be the foreperson One possible reform is to have a professional foreperson. A professional foreperson who is familiar with the responsibilities of the jury and legal proceedings generally can help the other jurors with understanding complex legal language, and their role in determining the facts of the case to come to a verdict. This could make the jury system more timely and easier for ordinary people to understand. However, the foreperson’s words might be given more weight by the other jurors and they may be persuaded by the foreperson’s views rather than coming to a conclusion through their own judgment.

57. Broader Representation Reform: amend the Juries Act 2000 (Vic.) to allow broader representation A number of reforms have been implemented to make juries more representative, such as reducing the number of peremptory challenges and in 2001 the Juries Act was amended so that religious ministers are no longer ineligible for jury duty. The Juries Act could be further amended to allow broader representation – this would include allowing lawyers, police officers and other ineligible categories to become a part of the jury.

58. Provide reasons for decisions Reform: provide reasons for jury’s decisions. One possible reform is to require the jury to give a reason for its decision. In this situation, the accused in a criminal trial would know why they had been found guilty and the parties in a civil case would know why the jury had decided the way it did. The parties would also know whether due attention had been given to points of law. This would be more satisfying for the parties but could lead to more appeals, especially if it was thought that the jury had not followed the law as explained by the judge.

59. A LTERNATIVES TO THE JURY SYSTEM

60. Alternatives to the current jury system Some people have suggested that the jury system as we know it should be abolished and replaced with something different. For example:  Adopting a judge-alone system  Appointing professional jurors  Appointing specialist jurors

61. Adopting a judge-alone system ADVANTAGES  A judge would be able to make a decision based on the law with a thorough understanding of the law. A judge would also understand legal procedures and processes. The decision might therefore be more likely to be right. A panel of three judges could discuss the salient issues and spread the decision between them. DISADVANTAGES  A decision based on the law alone might not take into account the feelings and attitudes of ordinary people. A verdict going against the law, but in line with current community standards, would be far less likely.  A judge might have formed biases against certain types of people or cases, which could colour his or her judgment. A decision by a judge alone or a panel of three judges would be a disadvantage in that judges are employed by the Crown and the parties might feel more confident in a decision made by their peers. If there were three judges, this would be very expensive for the legal system.

62. Appointing professional jurors ADVANTAGES  A professional jury employed by the state would have a better understanding of court procedure and legal processes. They could also develop expertise in certain kinds of cases. DISADVANTAGES  They might, however, make decisions based on biases resulting from the many cases they had seen previously instead of seeing a case fresh for the first time. As employees of the state, they would lose the advantages of being an independent body.

63. Appointing specialist jurors ADVANTAGES  A specialist jury could be a jury made up of, for example, medical experts in a case involving complicated medical evidence, or accountants in a case of fraud.  One of the disadvantages of the jury system is that the jury may not understand complicated evidence put before it. A specialist jury would not have this problem. DISADVANTAGES  A specialist jury might have biases against people in the same profession who had allegedly done something wrong. The accused, or the parties in a civil case, would not have the benefit of having their case heard before a panel of ordinary people who brought with them the attitudes of ordinary people.  From a practical perspective, it could be difficult to find a group of specialists who would be prepared to give up their professional life for what could be many months of sitting on a jury. To pay such specialists an amount of money that would induce them to attend jury service would be expensive.

64. C HECK FOR UNDERSTANDING

65. Learning Intentions At the end of this topic, we will be able to explain: 4.2.12The role of juries, and factors that influence their composition 4.2.13Strengths and weaknesses of the jury system 4.2.14Reforms and alternatives to the jury system At the end of this topic, we will be able to: 4.2.17Define key legal terminology and use it appropriately 4.2.18Discuss, interpret and analyse legal information and data 4.2.19Apply legal principles to relevant cases and issues 4.2.26Critically evaluate the effectiveness of juries SD 28