The Fairness of Jury Decision-Making - Research Paper Example

Table of Contents 1.0.Introduction 1 2.0.The fairness of jury decision-making 2 3.0.Juries contravention of constitutional mandate 4 4.0.Consistency of jury verdicts 7 5.0.Lack of trial on the evidence and the law 8 6.0.Positivity in scale of jury trial 9 7.0.Misconceptions about juries and convictions 9 8.0.Conclusion 10 9.0.Bibliography 11 1.0. Introduction It seems a confident and bold step to advocate about or rather, against the legitimacy of the jury system in any jurisdiction. Scholars have succinctly aired their concern regarding the writ of habeas corpus as well as trail by the jury, to an extent of making it as little less compared with the gift of divine inspiration. In as much as researchers such as Erez and Rogers (1999) have postulated that the writ of habeas corpus still has a chance to stand, there is a lot than what meets the eye with regard to juries system. As a matter of fact, it cannot be proved that time spirit has passed so much upon the habeas corpus and it is not what we expect at the moment. However, the question that must be explored further is whether candid examination will possibly resist or challenge the conclusion, if made, that there is jurisdiction or a country where trial by jury has possibly outlived its usefulness. The premise of this argument is that time has come when it is legally a disqualification for a person to know something or anything concerning the case in question. There was a time when jurors and juries system could put men of the vicinage on oath, so as to help it with a statement of the issue or facts they were aware of---during this period there was health and life in the juries systems. As Hansard (1982) saw it, ‘at the moment, jurisdictions are characterised by one aspect; informing the jury regarding the facts after which it tells the same jury substantially what facts or information they should hand back to it as they got or found.’ From this position, it is clear that there is an institution with little setting when it comes to reason and, as it continues to happen so, there is also little respect with those familiar with it in practice. This is the point of departure in this policy brief, critically assessing whether juries have outlived their usefulness. 2.0. The fairness of jury decision-making Looking at Australian, American or even United Kingdom’s judicial system there are instances of an institution which has been sapped of its strength. Such has been down by the growth about it of a multitude of less important details. Law Commission of England (2009) terms them as forces that neither goes to stalk nor shoot and does so till life and innocence is smothered by its own abnormalities. This brings the question whether juries have been fair in their decision-making. According to Daly and Pattenden (2005), juries have the ability of deciding about 2% of all criminal cases in Australia. In as much, defendants in such cases have been charged with the most serious criminal offences and have been facing the greatest possible loss of liberty in the process. In the same regard, Daly and Pattenden (2005) also puts that lack of fairness in jury decision making is brought by lack or little knowledge concerning the law and such attributed to laws such as Section 8 of the Contempt of Court Act 1981 (within England and Wales jurisdictions). Basically, the Act makes it illegal to disclose, obtain or solicit any information or particulars of statement made by jury in the course of their deliberations. The complications of the matter is that the existence of the Act has indeed brought confusion concerning what jury research can and cannot be done and has also brought an information vacuum regarding juries in the two jurisdictions. Just like it was seen in the case of Sweetman vs. Radfield Management Services, there seemed to have been unfairness in the process of decision making process since there was no empirical evidence thus relying upon other jurisdictions in the jury decision making.1 Tocqueville once saw this and said, “Trial by jury and in fact, the juries systems has become emphatically political institution where the verdict is not only unfair but you can possibly point at political intent in the speeches given by the juries” (Abwender and Hough, 2001, p. 301). 3.0. Juries contravention of constitutional mandate The jury system, more so as it concerns criminal cases, has been regarded as a fixture of Australian legal systems tracing from early times. Based on the same system, constitution postulates that there should be speedy trial of the criminal offender (Australian jurisdiction calls it expeditious trial) or as it is succinctly encapsulated; justice delayed amount to justice denied. Basing such provision on its practicability, during Investments and Collins Marrickville2, it was apparent that the administration of justice is still facing dilemma with regard to what appears to be conflicting priorities. Looking at the nature of the case (Investments and Collins Marrickville) there was exigency of a trial jury which was indeed time-consuming. The Australian Constitutional mandate is however amply unequivocal and therefore should strictly be followed. Such delays qualify juries to be seen as having ‘outlived their usefulness’ in face of Brickman, et al. (2008). Such judgments and conclusions (Investments and Collins Marrickville) have been arrived at based on the fact that judicial systems in Australia have been relying on plea-bargaining so as to meet its Constitutional need. When such trials are began and verdicts made, they have left the public wonder and question whether the jury system is broken or perhaps requires complete overhaul. In their studie, Chesterman et al. (2002) cite "trial of the century" (the California) case that involved O.J. Simpson. This was a murder case that happened in a different jurisdiction (United States) that did not only contravene the constitutional mandate in its delay but failed to provide what most people considered as ‘guilty’ verdict. Still in United States of America, there was the Lemrick Nelson case that was handled in New York. The case was delayed for over 2 years and when the verdict was finally made it was contrary to the expectation of many. Huckleby (1997) once mentioned the term ‘jury nullification.’ With jury nullification, he witnessed situations where justice is delayed and when it comes, juries render their verdicts with what is apparently disregard of the facts that were presented in the case. Huckleby (1997) notes that jury nullification is rare in other jurisdiction but there have been increasing tendencies in Australia. Taking a case of Investments and Collins Marrickville the reality that can be established is that there was jury nullification which indeed had high visibility and in fact received disproportionate amount of attention forming bad and lasting impressions in minds of Australians. In this connection, civil part of the ledger criticism has also been considered abound (Jones and Singer, 2008). This area concerns life and death and has indeed attracted attention of people while the argument of whether juries are worthy anymore continue to rage. The point is Australia has witnessed the equivalence of the nullification of jury when it comes to tort law, specifically personal injury cases. Starting the arguments from Civil Liability Act 2002 (NSW), it can be noted that the Australian parliament amended the law of negligence by bringing the Civil Liability Act. To underscore the statement, where there has been a risk of individual injury the Act has managed to replace the reasonable individual test with a three-step test. As a matter of fact Section 5B (1) states; (1) An individual may not be negligent in failing to take precautions against a risk of harm unless; (a) There was foreseeable risk (emphasis added but as such, it is a risk of which individual knew or ought to have known). In view of these provisions, juries have not been providing what is expected by many thus contravening the Act. For instance, in Australia, there was disbelief among citizens when a verdict in Romeo v Conservation Commission3 was made. In this case, the plaintiff (Nadia Romeo) fell from Dripstone Cliffs and landed onto the Casuarina Beach that was located in suburban Darwin. Having suffered multiple injuries due to negligence of the defendant under the provisions provided above, the Court ruled that the accident as suffered was indeed reasonably foreseeable under Section 5B (1) but the majority of the court found that defendant did not visitors who legally entered land a duty to take reasonable care so as to avoid foreseeable risks of injury to them. It is apparent from the verdict that the court felt that the duty was perhaps a duty by Romeo to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries to him. In addition to this, Bowers et al. (2004) add that there have been instances where victims’ awards are substantially reduced by the trial judge or in the alternative on appeal. Citing cases such as Annetts v Australian Stations4 and Shaddock & Associates Pty Ltd v Parramatta City Council5 it is worth mentioning that in Australia alone, there has been merit to most awards when it comes to losses and injuries that indeed commensurate economic loss and suffering and pain. However, cases such as McWilliams v Sir William & Company Ltd Arrol Limited6 casts doubt on whether juries are still worth in any legal proceedings. The financial benefit in McWilliams v Sir William & Company Ltd Arrol Limited case did not benefit the plaintiff to an extent of the financial damages caused or even in accordance with tort law. 4.0. Consistency of jury verdicts This is yet another aspect that makes researchers ponder whether juries have outlived their usefulness. As Department for Constitutional Affairs (2005) puts it, juries have the responsibility of increasing public confidence when it comes to fairness as well as effectiveness of the criminal justice system. Gordon (1993) took a study to examine consistency of jury verdicts on blacks and minority races vis-à-vis the whites in England and Australia. The findings suggested that overall; there is slight inconsistency when it comes to verdicts made by juries especially when dealing with different races. Though this study is not wholly aligned to Gordon‘s assertion, at least this has been the trend by researches that have proved such inconsistencies to be existing. To concretise the argument, this study relates trial of Grey v. The Queen7 where it was believed that juries’ conviction on the matter varied substantially especially when the offence was compared with others tried in other jurisdictions before.8 It is from this premise that scholars such as Kelly et al. (2005) have voiced their concern on whether juries indeed try other defendants on the law and evidence. Another example is that basically, offences where there is strongest direct evidence that has been brought against defendant should command strongest conviction whereas offences where juries are forced to deliberate on the state of mind of the defendant so as to convict should command somewhat lower conviction rates. However the opposite was true during the trial of Medical Board of South Australia v Manock9 and Keogh v James10 respectively. 5.0. Lack of trial on the evidence and the law Generally, it is expected that jury conviction will be attached to the provisions of the law and the available evidence. For instance, offences such as falsification, rape and theft are likely to have strong physical evidence presented to the court against the defendant. On the other hand, there are offence types such as non-fatal against individual or sexual offences where jury is obligated to make a choice between conflicting versions of stories or event which in most cases are in absence of strong corroborating evidence. Having established this, there has been instances where juries conviction rates are not linked with the nature of legal questions they (juries) must answer so as to convict a defendant on a given offences and the type or nature of the evidence that have been presented to a jury in such cases. To complicate the matter, instances such as case of DPP v Gursel Ozakca & Anor 11 it was seen, against public expectation that the defendant was acquitted on the premise that the case presented a difficult question for juries to deal with. In other jurisdictions such as England and Wales, it is appreciated that Crown Prosecution Service (CPS) legal guidance recognize the complexities and difficulty of securing convictions for attempted murder and threatening to kill but such has been contrary in Australian jurisdictions. 6.0. Positivity in scale of jury trial Despite challenges and ineffectiveness from juries in the administration of justice, there are other instances where juries’ duties to the administration of justice have been commendable. Further to this, the views and evidences presented above indicate that juries are not necessarily pro-plaintiff decision making individuals. Studies such as Sellers and Shelton (2003) have indicated that such are stereotypical ideologies that are aimed to taint images of juries. 7.0. Misconceptions about juries and convictions There exist counter arguments that have shown that juries’ convictions have been merely misconception (Temkin and Krahe, 2008). Further to this, there are empirical evidences and concluded court cases showing that such have been just mere misconception (Daly and Pattenden, 2005). Again Temkin and Krahe showed in his study that juries fairly convicted rape cases that involved women complaints. This finding significantly differ from the reports and figures published by Home Office (HO) showing that facts, evidence and law are not always applied when trying rape related cases (Department for Constitutional Affairs 2005). To concretise this argument, during the case involving Catterpillar Inc v John Deere12, prosecutors had to rely on Section 65 of the Evidence Act (this study notes that there is exception to the hearsay rule-maker unavailable) so as to have the statement admitted. The application of this Section showed that juries are always keen on evidence, facts and laws when making critical verdicts. 8.0. Conclusion This study has critically reviewed importance of juries and the verdicts that have been made. First, this study concludes, based on the cases reviewed as well as empirical evidences that indeed juries have indeed outlived their usefulness. To reflect on the cases presented above, there is difference between courts in jury conviction rates if various jurisdictions are considered. The main challenge that can be attributed to such inconsistencies is due to juries conceptions of the justice and crime rather than a rule of law. It was however, not within the scope and jurisdiction of this study to provide an explanation on which factor brings such inconsistencies in jury convictions. Secondly, it is clear from the studies such as Jones and Singer (2008) that the extent to which jurors understand directions regarding the law and judicial proceedings is so narrowed that they misunderstand judgments made by juries. This is also a factor that has significantly made people believe that juries have not been performing their roles. 9.0. Bibliography Abwender, D. & Hough, K. (2001) “Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants’ Judgement and Sentencing Recommendations”. 141 Journal of Social Psychology 603. Bowers, W. J., Steiner, B. D. & Sandys, M. (2004) “Death Sentencing in Black and White”. 2 University of Pennsylvania Journal of Constitutional Law 171. Brickman, E., Blackman, J., Futterman, R. & Dinnerstein, J. (2008) “How Juror Internet Use Has Changed the American Jury”. Journal of Court Innovation, Vol. 1, No. 2. Chesterman, M., Chan, J. & Hampton, S. (2002) Managing Prejudicial Publicity: an empirical study of criminal jury trials in New South Wales. Law and Justice Foundation. Daly, G. & Pattenden, R. (2005) “Racial Bias and the English Criminal Trial Jury”. 64(3) Cambridge Law Journal 678. Department for Constitutional Affairs (2005) Jury Research and Impropriety. Consultation Paper, CP 04/05. Erez, E. & Rogers, L. (1999) “Victim Impact Statements and Sentencing Outcomes and Processes”. 39 British Journal of Criminology 216. Gordon, R. (1993) “The Effect of Strong Versus Weak Evidence on the Assessment of Race Stereotypic and Race Nonstereotypic Crimes”. 23 Journal of Applied Social Psychology 734. Hansard (1982) Adjournment debate in the House of Commons on “Selection of Jurors”, 18 October 1982. Hansard, vol. 29, cc. 205–10. Huckleby, A. (1997) “Court Culture: An Explanation of Variations in the Use of Bail by Magistrates’ Courts”. 36 Howard Journal 129. Jones, A. & Singer, L. (2008) Statistics on Race and the Criminal Justice System – 2007. London: Ministry of Justice. Kelly, L., Lovett, J. & Regan, L. (2005) A Gap or a Chasm? Attrition in Reported Rape Cases. Home Office Research Study 293. London: Home Office. Law Commission (2009) The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Reliability. Consultation Paper No. 190. London: Law Commission. Sellers, R. M. & Shelton, J. N. (2003) “The Role of Racial Identity in Perceived Racial Discrimination”. Journal of Personality and Social Psychology 84. Temkin, J. & Krahe, B. (2008) Sexual Assault and the Justice Gap: A Question of Attitude. Oxford: Hart Publishing. Read More