Juries In Australia Essay

Is trial by jury still relevant and appropriate?

Section 80 of the Australian Constitution contains a provision that states that “the trial of indictment of any offence...shall be by jury” (Commonwealth of Australia Constitution Act), with some semblance of juries in Australia existing since the years following the arrival of the First Fleet in 1788. These “juries” were “comprised of six military officers… sitting with a military judicial officer, the Judge-Advocate” (Chesterman, 1999) and the notion of juries has since developed into the familiar bench of six and twelve members in civil and criminal cases, respectively (Supremecourt.vic.gov.au, n.d.). Questions concerning the relevancy and suitability of juries in regard to their role in

deciding criminal (and, on occasion, civil) cases have been raised, particularly in pertaining to the supposedly representative nature of juries, the competency of jurors in understanding complex legal issues and related evidence, and the alleged “CSI effect” which posits that jurors are unduly influenced by popular media including forensic procedural television programmes such as CSI.

The evaluation of these factors is significant given the discourse surrounding the questions of reform to the jury system and whether juries are relevant at all.

The notion of being tried by a jury of one’s peers is arguably an intrinsic aspect of the jury system, with Section 80 of the Australian Constitution being “based on a provision contained in the United States' Constitution, which in turn rests on the philosophy that people… are entitled to have their guilt or innocence determined by … their peers” (Information and Research Services, 1997). Mark Israel (1998) comments on how, in Australia and New Zealand, indigenous people “seem to have only a very minor involvement in trials as jurors” despite “overrepresentation in trials as defendants”, later citing a 1984 case in Derby, Western Australia in which an all-white jury was empanelled in a town comprised of 60% Aboriginal inhabitants. Furthermore, Israel (1998) cites a research

paper from the Australian Law Reform Commission that states that “in those parts of Australia where Aborigines represent a sizeable proportion of the population, it is still rare for an Aborigine to sit on a jury” (1986). In 1988, the Queensland Court of Criminal Appeals ruled that, in accordance with Queensland’s Jury Act 1929, it was “irrelevant that there were no Nunukul people on the jury”, in response a case in which an Aboriginal individual challenged the composition of a jury that had found him guilty. This ruling does not, however, mitigate concerns of the implications of the jury system for ethnic and racial minorities. Horan and Tait (2007) quote Findlay and draw attention to the idea that “certain trials might arguably require a jury with particular age, gender or ethnic/racial representatives if the concept of the ‘communion of peers’ is to have any reality”. The appropriateness and relevancy of juries must be considered in relation to how well the jury system upholds notions of how it should operate, and given that it is “difficult to suggest that juries in Australia are anything more than “moderately representative” of the whole community”, it should be questioned as to whether juries were ever appropriate, particularly for Aboriginal people and other minority groups.

Given that jurors are randomly selected from the Victorian electoral role (Supremecourt.vic.gov.au,n.d.), there has been some argument as to whether jurors are able to adequately comprehend evidence, testimony, and legal issues. The competency of jury is “determined by the its ability to place and assess the necessary facts and evidence accurately and fully” (Parliament Of Victoria Law Reform Committee, 1997). A report by the Parliament of Victoria Law Reform Committee (1997) (hereafter referred to as the Law Reform Committee) suggested that, “due [] to a lack of reliable empirical information regarding the ‘competence’ of the jury system, the basis of many of these arguments is speculative”, however despite its apparently speculative nature, consideration of this argument may still prove useful in determining the appropriateness of juries. However, the report quotes Thomson, who suggests that “the more frequently the demands imposed on members of a jury...exceed their capacities the greater the probability that the jury’s verdict is based on non-evidentiary matters, the more likely the occurrence of a miscarriage of justice”, pointing to a likelihood of unjust outcomes as a result of a lack of jury comprehension. Wheate (2006) points to “research [that] suggests that even potential jurors who have an identifiable disability (lingual, intellectual or otherwise) may nevertheless find themselves on a jury panel and deliberating on a verdict despite their inability to participate properly or to grasp evidence”, and suggests that “the most difficult and contentious aspects” of science are discussed in the courtroom. Wheate further points to a lack of scientific training on part of both the counsel and the jury, suggesting that a lack of scientific training makes adjudication by a jury inappropriate and later points to a mock jury study conducted on the Australian community which determined that “very few mock jurors could totally and consistently comprehend and utilise the statistical evidence presented”. The report published by the Law Reform Committee concludes that “competence and complexity are not fixed but malleable characteristics dependent on extraneous factors”. Thus, given the increasing pace of technological and scientific development paired the suggestion that jurors are both overwhelmed and unable to comprehend evidence, the appropriateness of trial by jury must be further considered.

A key criticism of jurors and by extension the jury system as of late has been that of a perceived “CSI effect”, which refers to the idea that “watching television shows, such as CSI, has influenced the general public's attitudes, expectations, and decision making related to the use of scientific evidence in jury trials” (Baskin and Sommers, 2010).

This has, however, been recently challenged as greater research has been conducted. According to Schweitzer and Saks (2007) “CSI viewers were more critical of the forensic evidence presented at the trial, finding it less believable” whilst also “express[ing] more confidence in their verdicts than non-viewers”, but later go on to state that “viewers of general crime programs ... did not differ significantly from their non-viewing counterparts … suggesting that skepticism toward the forensic science testimony was specific to those whose diet consisted of heavy doses of forensic science television programs”. Professor Tom R. Tyler is quoted in Schweitzer and Saks (2007) stating that “no existing empirical research shows that [the CSI effect] actually occurs”. This stance is similarly mirrored in other research papers on the topic, including Tyler (2006) which states that “there is no direct research evidence that watching CSI has changed juror standards of reasonable doubt.” Baskin and Sommers (2010) further suggest that the personality characteristics of jurors, such as authoritarianism and narcissism, ease of being influenced, and

individual negotiating skills may affect trial outcomes, and suggest that “one cannot underestimate the role that multiple factors and processes play in moving jurors toward a particular verdict”. The ability of a jury to remain objective and to separate their biases from decision making is key in ensuring that juries remain relevant in determining just outcomes, and whilst the “CSI effect” may now be largely considered a myth, this does not negate the “multiple factors” that influence decision making.
The relevancy and appropriateness of juries relies on multiple factors, including representativeness, competency, and objectivity - all of which have been called into question. Whilst the “CSI effect” has been debunked by multiple studies, the competency of jurors in understanding the complex nature of evidence and the “moderate representative[ness]” of juries overall makes questions regarding their suitability a valid concern that warrants future research. Future research into this topic may want to consider the implications of ethnically, racially, or gender unbalanced juries in deliberating the outcome of cases and courts may want to consider the benefits of scientific training for jurors or scientific literacy aides in the courtroom. Reforms to the jury system and decisions on the suitability of juries cannot be made until more research is done, however, there must be a conscious effort on the part of courts to ensure that miscarriages of justice do not occur as a result of juror bias or incompetence.