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Alternative Law Journal |
Brendan Cassidy
Brendan Cassidy teaches law and legal studies
at La Trobe University.
You can see the jury in court, sitting quietly in the
box. Some jurors are half asleep, some knit, some take notes. Some are smart,
some slow. Some wealthy, some strugglers. But when the evidence has been heard,
these 12 strangers have to decide on another person’s future, and they
have to agree. How do they do
it?[1]
The jury, and the adversarial system of which it is a part, continue to be
subject to media — and often as a symbiotic effect, public —
criticism. The criticism almost predictably emerges whenever a trial outcome
occurs that goes against media /popular expectations, and the alleged offender
‘gets off’.
Such occurrences tend to stimulate brief and often kneejerk
‘reappraisals’ of everything from the inadmissibility of certain
types of evidence, and questions of the admitted evidence’s complexity and
the jury’s ability to comprehend it, through to the behaviour of
‘clever’ barristers in manipulating the jury’s perception of
both the consequential and the less tangible issues surrounding the case.
The jury is observed — often closely — but it is mute and
unknown except for its verdict. The jury is a soft target, easily accused of
‘getting it wrong’, being naïve and subject to the vagaries of
a system which is depicted as being more concerned with the maintenance of an
unnecessarily complex and costly process.
Through these bursts of media acrimony the jury remains silent — no
one expects otherwise. Thus the speculation about what may have moved a jury in
one direction and not another is not addressed by the only source able to do so.
The jury’s silence permits continuing ‘second-guessing’
from the press, and the media will often ‘run’ with a trial story
eliciting comments from politicians, victims’ relatives, criminologists
and other academics. Very occasionally — and at some risk — they
might approach members of the jury.[2]
Representatives of legal professional associations will point to the checks
and balances traditionally used to quarantine a jury from speculative or
non-probative evidence, and then try to explain why these are necessary and in
the interests of a fair trial. Such explanations rarely satisfy the advocates of
a less cautious approach to the testing of facts and the matter of guilt.
But with the passage of time the news story slips from the front page and
out of public consciousness, and the criminal justice system continues as
before. The jury as an institution rarely emerges from this process with its
image enhanced, and as the media is often the community’s only direct
connection with the legal process, the jury’s standing and worth become
more tenuous with each unpopular verdict. Occasionally members of the legal
profession contribute to this declining image by suggesting that legal contests
are too important and complicated to be left to
amateurs.[3] This attitude has seen a
decline in the number and variety of matters heard before a jury.
In the introduction to his book We the Jury, Abramson says:
‘Trial by jury is about the best of democracy and about the worst of
democracy’.[4] He then records
the historical highs and lows of juries through a number of notable cases, from
the trial of Socrates to more recent outcomes in the American justice system.
Abramson provides a list of reasons in support of his belief that there is
a crisis of confidence in the quality and accuracy of jury verdicts. The
catalogue includes inconsistency, incoherence and ignorance, all of which raise
doubts about the value of juries and problematise their retention.
The problems that he discusses are ones that observers of the Australian
justice system would recognise. But despite the litany of problems he exposes,
Abramson is a firm supporter of the jury system in the US:
there are all the jurors we never read about, who toil in the limelight every day, crossing all kinds of racial and ethnic lines to define a shared sense of justice — these examples convince me that the jury, far from being obsolete, is more crucial than ever in a multiethnic society struggling to articulate a justice common to U.S. citizens.[5]
However,
in common with many writers, Abramson, by his failure to even raise them as
matters worthy of discussion, does not seem to consider the deliberative
processes of the jury or the ‘silence’ of individual jurors in the
presentation of verdicts to be issues worthy of some attention.
Traditionally, the prevailing view within the Australian legal system
appears to have been that for a jury to record and make available its
deliberations is either not possible for practical legal reasons, or for other,
less precise notions to do with a range of potential human frailties alluded to
by Abramson, including incompetence, oversensitivity, prejudice, and ignorance.
While many of these objections may have some anecdotal support, they are
theoretical and speculative, rather than having a basis in facts revealed by
carefully conducted research into the behaviour of Australian juries. Some of
the obstacles to such research are well known and include the prohibition on
non-jurors being present during the deliberation process.
Whether or not the claims about juror limitations are accepted or simply
put in the unproven category, these imponderables do not prevent discussion
about other in-principle issues, such as the ways by which juror participation
in the deliberative process may be enhanced.
Although they are unelected, juries are still the community’s formal
presence in the legal system, for good or ill. Their efforts
‘produce’ the decisions which, as well as creating a determining
moment for the trial participants, help shape the community’s perceptions
of legal events.
At present they make decisions which amount to a form of highly contrived
speaking, where their individual utterances (or silences) are reduced to an
aggregate finding — or the lack of one. Beyond anecdotal reports and
occasional breaches of the rules of silence, no one knows how juries reached
their collective view, which matters were given appropriate consideration, and
which ones were dealt with less satisfactorily.
Courts are content not to know, for the practical reason that what they
might discover — biases, irrationality, confusion and so on — may
constitute serious problems for the administration of justice. Thus there is an
understandable concern that knowledge of what actually occurs in the jury room
may do more harm than good.
The vision of juries moving from their present mute engagement with the
legal process to some level of audibility may be alarming to a traditional view
which fears that ‘tampering’ with any part of the jury system may
bring unforeseen and dire consequences.
The maintenance of a rigidly cautious position that asserts the system
cannot be improved is probably not tenable now. This is a time when governments
of various ideological persuasions have taken an interventionist approach to
many aspects of the Australian legal system. Moreover, whatever the strength and
detail of lawyers’ concerns about change and its ramifications for both
court practice and the delivery of justice, it is clear — if the media is
any yardstick — that the present system does not meet the expectations of
some sections of the Australian
community.[6]
The media can be — and are — blamed for the public’s
dissatisfaction with the legal system, but in many instances they are simply
exploiting the system’s most fundamental weakness — the jury’s
silence, and the uncertainties which flow from it. A recent example was the
six-person decision in Kennett v Nationwide News, a defamation case in
which the jury was ‘expected’ to find for the plaintiff but found
instead for the respondent, causing considerable media speculation about the
possible reasons behind the
decision.[7]
There appears to be a lack of public debate about the matter of jury
deliberations and the contribution individual jurors make. In a narrow but
perhaps understandable sense, this silence can be seen as the product of the
problem of ‘access’ to the subject under investigation — the
jury room is sacrosanct and the interactive processes which occur in it are
secret.
While it is easy to see ‘what juries do’ in terms of formal
outcomes, it is almost impossible to discover why they reach certain
outcomes and not others. This obstacle is a daunting one for the researcher keen
to establish a picture of jury behaviour and the dynamics associated with the
collective decision-making process at work in the jury room. A carefully
controlled trial of reforms to the present system may constitute the only way in
which the many questions about jury deliberations can be scientifically
addressed.
Notwithstanding the lack of evidence one way or another, the objections to
juries recording their deliberations should be met and examined, not merely be
allowed to be the last word on an issue of such public significance.
Fortuitously, McHugh J has listed many of the main lawyers’ objections to
juries having the ‘right’ to speak, and I will consider them in the
order given in his path-breaking
account.[8]
While these objections are by no means exhaustive, they provide a useful
starting point. I have summarised the relevant parts of McHugh J’s list of
objections and the accompanying commentaries in italics, and offered my
response in normal type. By conducting a ‘dialogue’ with these
objections I offer a response to them, and also outline possible reforms to the
system.
The first necessity is freedom of discussion in the jury room ... fear
of publicity may have the effect of inhibiting frank discussion and expression
of views in the jury room.
Fear of publicity assumes that the identity of jurors may be disclosed. It
seems fundamental that jurors’ identities should not be disclosed: jurors
should not feel, at any stage of the deliberative process, that they may be
exposed to a media-driven ‘court of public opinion’.
The question of being identified and made the subject of stressful
publicity should not be an issue, as it is within both the court’s and the
Parliament’s power to suppress the names of the jurors irrespective of how
their deliberations are delivered to the court, and ultimately to the public.
Indeed, the maintenance of juror anonymity would seem to be fundamental to the
reforms contemplated here.
Within the jury room however, while one must agree that the freedom to
communicate is fundamental to a collective decision-making process, the question
remains whether there is real ‘freedom’ under the present
arrangement. No one knows how much coercion — subtle or overt — goes
on during the deliberative process or how much the ‘frank’
discussion may be limited to a few powerful personalities.
If the ordinary committee or small meeting dynamics common to Australian
public and commercial life are any indication of the functional reality in a
typical jury room, then there is a good chance that one or more powerful
personalities will emerge and play a more or less dominant role in the
jury’s deliberations. Whether their behaviour is persuasive or coercive
may depend on the enforcement of procedural rules. However, in the jury room,
for want of external control or even observation, a question mark must be placed
against the claim the decision reached is truly collective. No one knows but the
jurors themselves.
Under such circumstances the realisation of the freedom to speak on behalf
of oneself — and the community — needs to be seen in the context in
which it is meant to occur. The image of 12 individuals arriving, after due
deliberation and vigorous debate, at a truly collective decision is a persistent
but an untested one. It is perpetuated by films such as ’12 Angry
Men’, which show that principle, logic and dogged argument win through.
But less satisfactory processes are quite possible and it is necessary to face
this as a forerunner to planning reforms.
As anyone experienced in group dynamics will know, a responsibility to make
a collective decision does not mean that a group’s
‘collective’ mind will produce a synthesis based on collective
wisdom. If some jurors find themselves to be intimidated by the hot-house
environment of the jury room there is no guarantee that their decisions might
not be shaped by anything more than the desire to conclude their experience as
soon as possible. Others may simply abdicate their responsibility for no other
reason than boredom.
To minimise the occurrence of some of these factors, particularly the
possibility of a coercive environment affecting the outcome, it may be better
for each juror — in the first instance at least — to try to
formulate their view of the evidence and the judge’s instructions in
isolation from the rest. There is nothing particularly radical about such a
proposal, given that most individuals have more experience interpreting events
and meaning for themselves in relative isolation than through the dynamics of
collective situations and group decision-making. The education process requires
that people assess and apply the information that it provides in ways that
represent those of the individual not those of an artificially formed group.
The total elimination of face-to-face deliberations is not contemplated
here, but it is suggested that it should occur only if no agreement exists as to
the verdict after jurors have had several opportunities to weigh the evidence
away from the potentially disruptive environment of the jury room.
The need for each juror to focus calmly on the issues rather than confront
the inter-personal dynamics of a group of strangers, seems to be worthy of
consideration as a possible pre-requisite to a properly considered
verdict. If each juror’s deliberations are, at least in the first
instance, conducted in isolation, then some of the more potentially harmful and
sensational post-trial disclosures about coercive behaviour in the jury room
could be eliminated.[9]
Each juror could consider the material issues in the case in response to a
court-approved questionnaire and their written responses (this concept is
discussed below) could constitute their official findings in the matter. The
findings from each juror could be placed on the public record, but with the
strict proviso that only the court in which they were delivered was privy to the
author’s identity. Anonymity and secrecy should remain conditions
of jury service, and the possible sale of one’s ‘story’ to the
media embargoed until the passage of an appropriate period of time had reduced
or eliminated the newsworthiness of the story.
The publication of the jurors’ views, as responses to a
court-administered questionnaire, could be controlled by making them a part of
the presentation of the verdict. Clearly, considerable care would need to be
exercised in structuring the form and content of an appropriate questionnaire to
avoid, among other things, the sensationalising of the responses and the
creation of endless grounds for appeal. However, the problems of presentation
need not be construed as insurmountable, but rather a matter requiring
appropriate planning and effective control.
Exposure of jurors’ deliberations would undermine public
confidence in the system and bring about the end of trial by jury ... The fear
is that the exposure of jurors’ deliberations would produce the appearance
of a dubious result since factual findings are often the product of compromise.
Worse still is the worry that the exposure of the jurors’ deliberations
will bring to light decisional premises with which various members of the public
will disagree.
The exposure of jurors’ deliberations could indeed alarm the public,
if jurors had some open-ended licence to compile a collection of
unstructured thoughts on the evidence, and were permitted to publish them.
It would be important that the form of the document containing each
juror’s deliberations be contained in a carefully prepared, highly focused
and self-limiting form which provided no speculative opportunities, but which
required written answers to specific questions prepared by the court; this idea
is not new.[10] Such a list might
include a number of matters requiring no more than a ‘yes’ or
‘no’ response, the appropriate verdict option becoming clearer with
each ‘step’.
To avoid the risk of leading jurors’ responses, the process of
constructing questions for such a form is clearly an issue of major
significance; however the technicalities of it cannot be addressed here. A
number of models are possible: one would have sets of questions prepared by both
defence and prosecution which could be submitted to the judge for negotiation
and approval.
Any reform to the deliberative process would need to take into account that
the requirements of a clear, unambiguous decision throw an onus on those
preparing a juror’s deliberation questionnaire to be clear as to what
questions are to be answered. Obviously the notion of a juror writing a verdict
in isolation from their associates has ramifications for the concept of the
negotiated verdict, particularly the matter of compromise and the assumptions
about the part it plays in the production of a verdict. Nevertheless, as the
public and the media often signal disagreement with decisions being made under
the present system, this process may constitute an improvement, despite the
obvious risks associated with written utterances and their potential as a basis
for appeals.
One of the most widely accepted arguments in favour of the secrecy rule
is the necessity to ensure the finality of the verdict. Instead of seeking an
unobtainable society-wide consensus on the detailed reasoning of the jury, the
legal process concentrates on the bottom line in the hope of persuading the
public that ‘it shares with the jury common notions of the way in which
the minutiae of human experience should be synthesised’. Once the
deliberations of a jury become public the verdict is no stronger than the
reasoning upon which it is based.
This objection links several propositions together as though they are
self-evidently connected. The implicit suggestion is that juries as community
representatives may not, in their reasoning processes, reflect a consensus view
at all, and that the public may be more accepting of a verdict for which no
reasons are given than one which shows the flawed reasoning by which it was
reached.
While both propositions are possible, there is no empirical evidence
available to support either. There is, however, evidence — in the form of
media reports — to show that the public becomes dissatisfied with verdicts
when a general sentiment exists that supports an outcome different from the one
reached. But if the jury supplied answers to questions raised by both sides and
weighted their answers (by direction) to produce a verdict, the public could see
the relative significance of the stages of evaluating evidence and hopefully the
logic of the outcome.
Allowing the jury to give its reasons may well require a mode of
presentation which takes into consideration not only the need to produce a
reliable verdict, but also the disparate abilities in reasoning and
communication which may exist in a randomly chosen jury. Nevertheless, the
problems of providing appropriate guidelines and limits to the presentation of
jury deliberations should not be routinely treated as insurmountable.
Australians are required to fill in a relatively large number of often complex
forms during the course of their lives and samples of jury deliberation
questionnaires could be included in schools’ legal studies courses to
facilitate awareness of them.
This is closely connected with the final argument: the secrecy rule
protects the community satisfaction which flows from a unanimous verdict ... it
is argued that jurors will hesitate to reach unanimity if their compromises may
be publicly exposed.
Again, the claim that there exists a level of public confidence in jury
outcomes is not supported with evidence. Indeed, the matter of political
intervention in the Australian legal system during the 1990s may be seen as
being made possible by some degree of public disaffection with it.
As to the matter of compromises: the management of a carefully mediated
process which allows unpressured responses — particularly away from other
jurors — is important to the need to secure a just and viable outcome.
Moreover, it is a dubious proposition to suggest that, as a general rule, the
publication of a jury’s deliberations will act as a deterrent to unanimous
verdicts. This is largely irrelevant as majority verdicts exist in most
Australian jurisdictions.
Without evidence to the contrary, it can be argued that the pressure to
conform and not ‘stand out’ as a dissentient might be a more
powerful influence than a notional reluctance to find a commonly held position.
Of course, where they occur, there does not appear to be any compelling reason
to air the compromises made in the jury room; a final position statement is all
that needs to be presented by each juror to the court and the
community.
Disclosures by jurors may be unreliable and lead to misunderstandings of
the basis of the verdict ... Experience teaches that human recollection of what
was said or discussed in situations of drama, conflict or emotion is, at best,
always suspect.
Just as the form and presentation of juries’ decisions should be a
carefully managed event, the matter of disclosures — presumably of the
deliberative process — should be subject to stringent controls. Under the
traditional structure, much of the jurors’ deliberative process is shaped,
to an unknown degree, by oral argument presented by witnesses and barristers. If
unsupported by appropriate records of the proceedings, this may well constitute
a risk to the accurate recall of events, and may need to be supplemented with
transcripts of the court proceedings. As has been suggested, effective
deliberation may be best achieved by allowing each juror to conduct an analysis
of the trial in isolation from their colleagues until (or unless) it becomes
necessary to test a hung jury by bringing all the members together in a
‘final’ attempt to achieve unanimity or a majority (see discussion
below).
The final argument is based on solicitude for jurors. The strain on
jurors in any trial and particularly a trial concerning a public figure or
involving public issues places enormous pressure on jurors.
The participation of citizens in a democratic process is both a right and a
duty. The concept of a written statement of reasons created by each juror is
designed to enhance the expression of that right and improve the conditions
under which the duty is carried out.
Undoubtedly under the present system there are strains: from the
requirement to be attentive to a seemingly repetitious process which may give
the appearance of having no end in view, to the potentially uncongenial dynamics
of the jury room, where personalities drawn from different parts of the
community find themselves bound to accommodate views which may seem
incomprehensible, complex, illogical, obstructive or just plain confusing. This
objection amounts to an argument for reform rather than more of the
same.
There are a number of possible problems associated with all of the reforms
postulated here. Delays, confusions and additional costs are just some of them.
A further objection could be that the variables associated with legal knowledge
or the lack of it, and even with written expression may produce a degree of
incoherence or incompatibility in the written account of the reasons for finding
an otherwise clear-cut and unanimous decision.
Moreover, the more articulate members of the jury may influence their
colleagues in such a way as to impose a set of values and attitudes in the
decision-making process that might not otherwise have been there. These are
significant concerns and would require careful monitoring to establish whether
patterns emerged in written responses. Nevertheless, it should be remembered
that under the present system, undue influence and indeed psychological bullying
may well be going on in the nation’s jury rooms.
It is very hard to obtain more than anecdotal evidence about the
interpersonal dynamics of the jury room. But it can be said, with some
confidence, that the small-group dynamics of the jury room can accommodate
almost any form of behaviour short of physical or overt personal abuse, without
the court knowing about it. This should be a matter of major concern to those
administering the justice system.
Coercion does not require the fear of physical injury to be effective.
Individuals who feel insecure in the unaccustomed role of determining matters of
fact may well be vulnerable to pressure applied by individuals whose experience
includes presenting viewpoints forcefully. The point is that on these
unquantified, but arguably probable, social dynamics alone, it seems worthwhile
to consider allowing individuals to construct their deliberations in isolation
in the first instance and to use a collective forum only if the former fails to
produce a useable verdict.
Such an approach preserves the traditional method as a last resort while
the former recognises that most people make the significant decisions in their
lives by some combination of the methods discussed here, but usually have the
right to determine the rules of their engagement with their peers.
The ‘reforms’ discussed are meant to stimulate discussion, not
to constitute the last word on the matter of juries and their deliberations in
Australia. Clearly the ramifications of the ideas canvassed here have not been
exhaustively explored — space limitations do not permit more than a
contribution to a reform agenda, one meant to overcome the high level of inertia
that seems to encumber the matter of jury reform in this area.
The pressing question is not only how to keep juries relevant, but how to
enhance their involvement in the legal process as an article of commitment to
the concept of a democratic legal structure.
Helping individual jurors to focus on the significant issues of a trial
should be undertaken as part of a strategy of system enhancement. Efforts to
increase levels of participation should be a matter of continuing policy. By
allowing juries to ‘speak’, this participation could perhaps be seen
as an attempt to allow the community’s voice to be given expression, in a
way which articulates the needs of justice with increased public awareness of
its processes. Perhaps this can be achieved — at least in part — by
first creating the conditions where juries’ reasons see the light of day.
References
[1] Clohesy, B., ‘Ladies
and gentleman of the jury’, Sunday Age, ‘Sunday Life’,
2 May 1999, p.12.
[2] See Kirby,
M., ‘Delivering Justice in a Democracy, iii —The Jury of the
Future’ (1998) 17 Aust. Bar Rev 113 at
117.
[3] Nathan, H.,
‘Modern Trials too Complex for Juries’ Age, Letters, 25 July
1997, p.A16.
[4] Abramson, J.,
We the Jury, Harper Collins, New York, 1994,
p.1.
[5] Abramson, above,
p.5.
[6] Whitton, E., Trial by
Voodoo, Random House, 1994.
[7]
Milburn, C., ‘Verdict Puzzles Lawyers’ Age, 13 March 1999,
p.4.
[8] McHugh, M.,
‘Jurors’ Deliberations, Jury Secrecy, Public Policy and the Law of
Contempt’ in M. Findlay and P. Duff (eds), The Jury Under Attack,
Butterworths, 1988, pp.62-5.
[9]
Clohesy, B., above, p.16.
[10]
For a more limited application of the concept, see Munsterman, T., Hannaford, P.
and Whitehead G. (eds), Jury Trial Innovations, National Center for State
Courts, 1997, ch.6: ‘Jury Instructions and Deliberations’,
especially pp.187-90, and also Appendix 10, pp.287-9.