Jury Trial

The Significance of a Jury Trial:
Pros and cons
In countries where jury trials are common, juries are often seen as an important check against state power. Other common assertions about the benefits of trial by jury is that it provides a means of interjecting community norms and values into judicial proceedings and that it legitimizes the law by providing opportunities for citizens to validate criminal statutes in their application to specific trials. Many also believe that a jury is likely to provide a more sympathetic hearing, or a fairer one, to a party who is not part of the government – or other establishment interest – than would representatives of the state. This last point may be disputed. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction beyond reasonable doubt. In France, former attorney, then later minister of Justice Robert Badinter, remarked about jury trials in France that they were like "riding a ship into a storm," because they are much less predictable than bench trials.
Another issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of excessive force in the violent beating of a black man by a jury consisting mostly of whites without any black jurors, despite an incriminating videotape of the action. This led to widespread questioning about the case and riots ensued.
The positive belief about jury trials in the UK and the U.S. contrasts with popular belief in many other nations, in which it is considered bizarre and risky for a person's fate to be put into the hands of untrained laymen.
Jury trials in multi-cultural countries with a history of ethnic tensions may be problematic, and lead to juries being unduly biased and partial. This is one of the reasons why both India and Pakistan abolished jury trials soon after independence. Indeed, in these countries, a jury trial is seen as a failing of some foreign legal system rather than an advantage; this is despite the fact that both nations are common law countries.
A major issue in jury trials is the secretive nature of the process. While proponents may say that secrecy allows the jury to remain impartial by protecting it from undue pressure or attention, opponents contend that this prevents there from being a transparent trial. The fact that juries do not often have to give a reason for their verdict is also criticized, since opponents argue it is unfair for a person to be deprived of life, liberty or property without being told why it is being done so. In contrast where there is a decision by a judge or a bench, they are required to give often detailed reason of both fact and law as to why such a decision is given.
One issue that has been raised is the ability of a jury to fully understand statistical or scientific evidence. It has been said that the expectation of jury members as to the explanatory power of scientific evidence has been raised by television in what is known as the CSI effect. In at least one English trial the misuse or misunderstanding or mis-presentation by the Crown prosecution of statistics has led to wrongful conviction.
Australia
The Australian Constitution provides that: "80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”
The first trial by jury in the colony of New South Wales was held in April 1841.
Challenging potential jurors
Peremptory challenges are usually based on the hunches of the counsels and no reason is needed to use them. All Australian states allow for peremptory challenges in jury selection, however, the number of challenges granted to the counsels in each state are not all the same. Until 1987 New South Wales had twenty peremptory challenges for each side where the offence was murder, and eight for all other cases. In 1987 this was lowered to three peremptory challenges per side, the same amount allowed in South Australia. Eight peremptory challenges are allowed for both counsels for all offences in Queensland. Victoria, Tasmania and the Northern Territory allow for six. Western Australia allows five peremptory challenges per side, according to section 104 of the Criminal Procedure Act 2004 (WA).
Majority and unanimous verdicts in criminal trials
In Australia majority verdicts are allowed in South Australia, Victoria, Western Australia, Tasmania, the Northern Territory and New South Wales, while Queensland and the ACT require unanimous verdicts. Since 1927 South Australia has permitted majority verdicts of 11:1, and 10:1 or 9:1 where the jury has been reduced, in criminal trials if a unanimous verdict cannot be reached in four hours. They are accepted in all cases except for "guilty" verdicts where the defendant is on trial for murder or treason. Victoria has accepted majority verdicts with the same conditions since 1994, though deliberations must go on for six hours before a majority verdict can be made. Western Australia accepted majority verdicts in 1957 for all trials except where the crime is murder or has a life sentence. A 10:2 verdict is accepted. Majority verdicts of 10:2 have been allowed in Tasmania since 1936 for all cases except murder and treason if a unanimous decision has not been made within two hours. Since 1943 verdicts of “not guilty” for murder and treason have also been included, but must be discussed for six hours. The Northern Territory has allowed majority verdicts of 10:2, 10:1 and 9:1 since 1963 and does not discriminate between cases whether the charge is murder or not. Deliberation must go for at least six hours
before delivering a majority verdict. Majority verdicts were introduced in New South Wales in 2005 (see Jury Act 1977 (NSW), s 55F).
ARGUMENTS FOR THE ABOLITION OF THE JURY
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 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.
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 fulfill 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.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 can it be said that the essential concepts of fraud are beyond the grasp of all but a few members of the community. Moreover, 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.
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.
Another criticism has been made that juries generally are unable to ask questions of witnesses.
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.
ARGUMENTS FOR THE RETENTION OF THE JURY
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.
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 st atute, 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.
The jury represents the conscience of the community from which it is drawn.
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”.The other important function is to ensure that community support for the criminal justice system is maintained.
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.。