New Zealand Law Society - Jury practice - suggestions based on experience

Jury practice - suggestions based on experience

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Details of what occurs behind the closed doors of jury rooms remain largely unknown to judges and counsel, as all are disbarred from serving on juries. As a layperson having performed jury service I offer a brief summary of my experiences, together with recommendations.

The subject of jury competence has received attention in recent years. Judge David Harvey (quoted in LawTalk 806, 12 October 2012), spoke on the need for “a proper educative process for jurors”.

In 1997 the Law Commission and Victoria University Faculty of Law undertook a survey of 48 jury trials with the broad aim of identifying problems that juries experience. Their 2003 report Guide to Jury Trial Practice covers much ground but did not consider the following three questions, which might have revealed significant problems in jury rooms:

  • Did all members of the jury understand and apply the judge’s directions?
  • Did the jury focus on considering evidence presented in court?
  • Did jury members work together harmoniously?

In my limited experience, the answer to all three questions was “no”.

My observations are based on service in two criminal trials, both of which eventually resulted in unanimous verdicts. Both trial A and trial B involved multiple charges, each charge embodying several elements.

In trial B, each juror was provided with a flowchart summarising the elements of each charge. The jury found this feature helpful, but an element summary was lacking in trial A.

In both trials the jury was provided with two copies of the transcript of court proceedings. In the jury room these transcripts were referred to occasionally, but not in detail. In both trials, few jurors took notes in court. Juries A and B encountered different sets of problems.

In jury A, education levels varied widely. Four members of the jury were recent immigrants, and were to some extent handicapped by unfamiliarity with English in general and with legal language in particular.

In addition, there was unfamiliarity with legal concepts. For example, two individuals struggled to grasp the concept of presumption of innocence, as in their own culture arrest is almost synonymous with guilt. Two others were inclined to make decisions based more on character than on evidence: “I think he is a bad man, so he is guilty”.

The foreman dealt patiently with these misunderstandings. Late in the evening, the entire court had to be reconvened so that the judge could repeat his explanation of the law underlying one element of one charge, a key point that the majority of the jury did not correctly recall from the judge’s closing remarks.

Jury B presented a fresh set of problems, even though all jurors were well educated and competent in English. Four factors contributed to dysfunction in the jury room.

  1. The judge’s directions were poorly retained. In particular, little heed was paid to his clear advice that if one witness or item of evidence was perceived to be implausible, that evidence should be put aside and attention should be directed towards other witnesses and other evidence. Instead, some on the jury tended to focus on the character and credibility of two witnesses (out of a total of eight witnesses), and on societal problems generally.
  2. On the second day, the jury room became dominated by personal verbal attacks between different factions of the jury, on matters barely related to the trial or to evidence. These attacks were more related to personal ideologies.
  3. The foreman was well able to see what was going on, but lacked the experience to control conflict between aggressively opposed individuals in the room.
  4. There was considerable debate but no agreement around the term “beyond reasonable doubt”.

On the basis of the above experiences, a few suggestions are offered. These changes could be in addition to – not instead of – instructions provided orally by any judge during any jury trial.

I suggest the following four guidelines be provided in writing, available to every juror at the commencement of trials, and that judges should direct juries to pay close attention to these guidelines. Ideally this information should be written in plain English, be standardised nationwide, and be no more than one page long.

  1. Advice on selecting a foreperson, on the importance of this process and on the kind of skills needed.
  2. A reminder that a jury’s central task is to evaluate evidence presented in court and that societal generalisations should play no part in the process.
  3. Advice on what path a jury should take if it believes any evidence implausible or any witness unreliable.
  4. The meaning of the following key terms:
  • presumption of innocence;
  • onus of proof;
  • quality of evidence;
  • balance of probability; and
  • beyond reasonable doubt.

Printed summaries of the elements that apply to each charge would greatly assist any jury.

In addition, more care could be taken to screen out jurors with inadequate English. I have been called for jury service four times, and each time have heard the court official in charge of ballots announce to the pool of prospective jurors that anyone who did not feel confident with their level of English could come forward and be excused. These single brief announcements were indistinct and easily missed. Also, new citizens may be unwilling to publicly admit to being less than competent in English. It may be better, at the stage when jury service notices are sent out, to provide a one-page summary of juror responsibilities and legal terms – including perhaps those listed above – in order to give prospective jurors an indication of the level of English needed.

In order to reduce the possibility of the trials referred to in this article being identified, the name of the author is not given. The author of this article is a science teacher and writer, with teaching experience in Britain, South Africa and New Zealand; and with several New Zealand textbooks to his name. He has travelled widely in Asia and Africa and has had a number of travel features published.

LawTalk has been provided two statements which say that this article does not conflict in any way with the convention of jury deliberation inscrutability. One is from Professor Warren Brookbanks of Auckland University and the other from Judge Stan Thorburn. Professor Brookbanks added that the article does not reveal information relevant to a particular trial or trials, but is simply commenting on aspects of process. And Judge Thorburn said that: “there is a huge need for impediments that might reign to be revealed for what they are and be outed, surely!”

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