Why write now
In recent times there have been a number of high profile criminal case in which the jury findings of guilt beyond reasonable doubt, or acquittal have given rise to public disquiet. The list is disturbingly long and includes: The Crew murders, the killing of Ben Smart and Olivia Hope, the Lundy retrial in which the prosecution was permitted to abandon the case it made at the first trial, found wanting by the Privy Council, and take a fresh tack leading to Mr. Lundy’s second conviction, the Scott Guy killing, the Ellis trial for paedophilia where the jury was allowed to hear evidence which was bizarre by any standards, and the George Gwaze acquittal and retrial, to name but a few. The number and variety of these cases gives rise to a legitimate question of whether or not the jury system is any longer capable of arriving at just and rational outcomes in cases involving difficult questions of fact, married as it often is to complex directions from the judge on the applicable law. The paradox is that randomly chosen juries are no doubt capable of deciding cases involving questions which are within their everyday experience and competence, but as the statistics discussed below indicate the overwhelming number of those cases are dealt with by judges sitting alone. It is the cases involving difficult questions of scientific evidence, DNA, medical evidence, ballistics and the like, and the complex questions of law to which such cases give rise that occupy juries in the more serious cases. These difficulties are exacerbated by the increasing length of time taken to hear such cases. Randomly chosen Jurors who often have no particular expertise in deciding anything complex are expected to sit and listen to evidence for days (merely concentrating for such length of time is novel for some people), sometimes weeks and then retire to consider their verdict with only their recollection of what a witness may have said days or weeks before. So wither Juries.
“Twelve good men and true” (now of course persons) have long been thought to be the arbiters of the fate of the criminal classes in the common law system which we inherited from Britain. Some say, dubiously that trial by Jury is mandated by Magna Carta, but certainly in more Arcadian times Juries were drawn from people who actually knew the accused and could on the basis of their prior knowledge form a view about whether or not the person was likely to have committed the crime charged. By the eighteenth century, and as social interactions became more complex this mutated into a panel of “peers;” people from the same social order (all men) who might be expected to understand the nature of the offence charged and whether the Crown had proved the case beyond reasonable doubt. Baron Hawkins an eighteenth century Judge who might have been the inspiration for the old saw “and wretches hang that Judges may dine” was won’t to tow recalcitrant juries around behind him from Assize to Assize if they failed to bring in a verdict of guilty until such time as they relented and delivered the required verdict.
The position today
Trial by jury as the default mechanism for deciding the outcome of litigation in the courts has not been the norm in New Zealand for many yers and is becoming less so as the provisions of the Criminal Procedure Act 2011 begin to replace previous legislation governing the availability of trial by Jury. Thus in the year to December 2014 the High Court received 179 criminal jury cases, of these only 30% were “High Court only” cases; murder manslaughter and the like and the rest were cases which could have been heard in a District Court but the High Court arrogated them to itself. In the year to June 2014 District Courts received 2370 such cases out of a total of 133,034 criminal cases dealt with in District Courts in that period. The balance of 130,664 criminal cases were dealt with by District Court Judges sitting alone.
Broadly speaking the allocation of criminal cases between the High Court and District Courts is made on the basis of the perceived seriousness of the offence. To understand why such an allocation should be made between the High Court and District Courts it is necessary to say something about the roles of the respective Courts.
Insulting as this may seem to the lay reader The Judicature Act 1908 enshrined in New Zealand a system which exists to this day of “Inferior” and “Superior” Courts. The High Court, Court of Appeal and The Supreme Court are the “Superior Courts, and everything else, including all of the District Courts is by definition “Inferior.” It is noteworthy that there is not even a “District Court” in New Zealand as there is in the United States Federal system merely a collection of locally based Courts which deal with the business in a defined district. This weakens the authority of District Courts, and the message to the public is that if a serious crime, such as; murder, manslaughter, or large scale drug cases and the like is committed it can only be dealt with in The High Court. Although if practice makes perfect then the intelligent observer would wonder why the Judges in the Courts which hear the overwhelming number of criminal cases, both jury and Judge alone do not hear all crime as is the case in the Federal District Courts in the United States. It is within this confused, and in my view unnecessarily complicated court structure, serving four million or so citizens that juries do their work.
Who are the Jurors?
The Juries Act 1981s. 6 provides:
Every person who is currently registered as an elector in accordance with the Electoral Act 1993 is qualified and liable to serve as a juror upon all juries that may be impanelled for any trial within the jury district in which the person resides.
Which of course is saying that there are no special qualifications for determining the fate of an accused other than being enrolled as an elector, and furthermore unless excused by the Court official must do so. This means that people who have been convicted of some criminal offence and are at the time of selection serving a sentence a non-custodial sentence are eligible to sit on juries. The selection process is random and results in a panel being available for the time set aside for a given criminal trial. The jury for any particular trial is drawn from this panel. Selecting a jury panel involves some judicial theatre. Counsel for both the prosecution and the accused have unlimited rights of challenge for cause and for no reason at all (up to 6 for the accused). This makes it very difficult to empanel “twelve good men and true” and the challenge procedure is often used by defendants counsel to ensure that only those who for whatever reason are thought to best suit the defence to be run, assuming there is one. At least in this the system in New Zealand is spared the nightmare of the American system whereby counsel has the right to cross examine any member of the panel on any matter which it is thought might adversely affect the interests of the client, and empanelling a jury can sometimes take weeks.
What does the Jury do?
The scene and the standard of proof
In any criminal prosecution which is defended on the facts, unless there is an eye witness, the only person who knows whether he or she committed the crime is the accused. The jury are required to decide whether the accused did or didn’t carry out the acts which make up the crime by piecing together the evidence called for the prosecution and setting it against any evidence called for the accused. In doing this the Jury must be satisfied in its conclusions beyond reasonable doubt. This is a high test and not one which many people adopt in their daily lives in deciding whether or not to believe that something did or didn’t happen. They will be carefully instructed by the judge on what this standard means as a matter of law, but there is no way of knowing whether the instruction, divorced as it is from most people’s daily lives carries over to the jury room. This itself creates an air of artificiality about the sanctity of the jury’s deliberations and verdicts.
The Jury is the sole decider of the facts relevant to the prosecution before the Court. The Judge who may have heard hundreds of such cases is not allowed to express a concluded view on any matter of fact which goes to make up the case for the prosecution or any defence mounted by the accused. To do so will result in the findings of the Jury being set aside and a retrial being ordered. It is solely for the jury to decide if the Crown has proved that the offence charged has been committed beyond reasonable doubt. In doing so Jurors are not required to give reasons. The verdict is either guilty or not guilty. In the result the findings of a jury are in most cases immune from appeal. The only real check being that the result was open to a properly instructed jury on the evidence before the court. There is thus no way of ascertaining if the jurors understood the evidence or if they drew the proper inferences for or against the accused. This is particularly worrying where expert evidence is at the heart of the prosecution case. There is very little in the way of expert evidence that has not been heard by the experienced criminal judge, but for most jurors they will be hearing it for the first time, and there is no way of knowing what if any of it they understood, or whether they gave it the proper weight when measured against other conflicting expert evidence. These difficulties are also present in Judge alone cases but there the judge must give reasons for the decision and nothing exposes a flaw in thinking as the requirement to mount a reasoned argument. It also means that any errors can be readily rectified on appeal.
Because we are all creatures of our upbringing and the circumstances which prevailed during our formative years we all develop biases for or against certain people or things. That is just as much so for judges as lay people. Lawyers throughout the common law world have spilt much ink on the subject of judicial bias and what can be done to minimise the effect that it has on decision making. Careful rules have been developed and are being regularly amended as social conditions change. We are all biased to a greater or lesser degree and one of the main tasks of the judicial system is as far as is humanly possible to ensure that bias does not creep into decision making. Thus the oath which all judges must swear on appointment is; to do right by all manner of persons without fear or favour, affection or ill will. This tends to keep most judges on the straight and narrow and if it does not then any hidden bias will be exposed in the reasoning process. No such safeguards exist in the case of jurors. Although they are required to render a true verdict according to law and will be instructed by the judge to put aside all personal considerations affecting the accused or the crime charged, there is no way of knowing what part bias plays in their deliberations. A juror may make little or no contribution to the jury discussions but silently harbour some grudge against a person or class of person arising from his or her own experiences in life. It is impossible to say what part such a grudge plays in how the juror votes. The Marlborough Sounds Murder case illustrates the point. The Judge allowed evidence of prior bad behaviour of the accused in relation to drinking and young women. It is known as similar fact evidence and can be allowed in a restricted range of circumstances. What can never be known is the weight the jury gave to such evidence when set against the evidence which pointed to Mr. Watson’s innocence. Had the case been heard by a Judge alone it is almost certain that the Judge would have assigned little or no weight to what the defendant might have done on earlier occasions. Indeed the Judge would almost certainly excluded the evidence as being of no probative value. Similarly in the Ellis paedophile case the jury was allowed to hear the most bizarre evidence (almost certainly coached) from small children about what the accused was alleged to have done to them. A Judge sitting alone would very likely have ruled such evidence highly prejudicial, incapable of belief and would have disallowed it. But where the jury is the decider of the facts a Judge must be cautious in excluding evidence, and hope that the jury has enough collective common sense to decide between the probative and the merely prejudicial.
A compelling argument in favour of having facts decided by juries is that they bring to the task their collective common sense, and in the past this has been thought sufficient to outweigh the difficulties of a lay tribunal deciding, at times difficult specialist questions of fact. Two problems have emerged in taking much comfort from this rather metaphysical idea however; Firstly what now is common sense, and secondly in any event is it up to the task of unravelling competing skeins of evidence on arcane specialist topics. It is the first of these which gives rise to the most reservations about the continued use of juries in deciding the outcome of litigation.
As society has become more fragmented and special interest groups increasingly dominate the media and the means of public education the notion that there is some sort of generally sensible way of looking at the world is becoming dimmer. When juries were widely used to decide civil cases- defamation, personal injury and the like, the test which one Judge applied and which became widely understood was the world view of the “man on the Clapham omnibus.” What lay behind this was that the good burgers of Clapham a London suburb were like the three bears porridge, not to rich, not too poor, generally hard working, sufficiently educated in a range of subjects including; history, geography, arithmetic, reading, politically aware be it Conservative, Socialist or Liberal, and having some religion and moral standards. In short displaying what we used to call the “middle class virtues”, and in that context middle meant between the extremes. It also required a balancing of various considerations in assessing any matter for decision. Recognising that there will be upsides and downsides in coming to most views but allowing for a preponderance of factors which lead to a conclusion. Any lawyer of that era experienced in jury trial cases will tell you that cases in the hands of such people generally resulted in a plainly just outcome. All of this is of course widely sneered at now by the cognoscenti who dominate the media and the educational bureaucracies. Children are taught now from an early age that: Capitalism and the market economy is bad, notwithstanding the undeniable fact that it has lifted millions (probably billions by now) out of grinding poverty, that we of the older generation are destroying the planet and will bequeath to our grandchildren a burnt cinder for which no uncontested scientific evidence exists, that institutions such as marriage and the bonding of a male and female for life to produce a safe haven for children are not only outmoded but brutally unfair to those of some other sexual persuasion.
Whether all of this ferment may prove to be good or bad one thing is clear beyond any doubt; there is very little “sense” which is now common to the majority of society. Increasingly juries will be comprised of single issue people with little or no idea of their place in the wider world, or where they came from. The result is that a single issue person will be incapable of balancing the various considerations. The one issue will trump all others. When that becomes the norm, and I believe it to be not far off then the most compelling argument for letting lay people decide the fate of a fellow citizen comes to nothing.
The second development which I believe heralds the demise of the Jury as a decider of fact is that standards of detection of crime have become so much more sophisticated in the last twenty years or so. In times past in evaluating circumstantial evidence Juries were asked to consider such basic science as finger print evidence, or chemical residues found on a body and the like. Not so now and perhaps the best example of the shift is the use of DNA evidence to establish whether or not the (say) hair, or fluids found at the scene of the crime belong to the accused. For some years this science was thought to provide the complete answer to guilt or innocence. The probabilities were so overwhelming that the standard of proof of beyond reasonable doubt was satisfied. But more latterly doubt has begun to creep into the nature of the methods used to extract the DNA and this gives the lay jury the added problem of deciding not only between competing scientific evidence but also whether the evidence was properly obtained in the first place. Similarly with ballistic evidence. In the case of Mr Barlow the Wellington antique dealer charged with murder the ballistics evidence was irreconcilably divided yet the Jury was required to find whether or not the case for one side was proved beyond reasonable doubt. No amount of common sense assists a Jury in such cases. Unsurprisingly it took three trials before the Crown secured a conviction. In such cases it is rare for anybody on the jury to have the necessary scientific background to even understand the evidence let alone decide between competing scientific claims. And if by some chance such a person did survive the challenge process he or she would in effect become the decider in relation to that evidence to the exclusion of the others. Hardly an exercise in collective common sense.
When one adds to these difficulties the fact mentioned above, that the overwhelming number of cases involving simple fact questions which might be thought suitable for Jury disposition are heard by a Judge alone the scale of the problem becomes apparent. Increasingly lay juries are being asked to decide difficult specialist questions of fact for which they lack the training, experience and in some cases the mental capacity to do so. These inherent defects cannot be rectified by the Judges summing up no matter how careful. The greater the care taken by the judge with one eye on the Court of Appeal, or the Olympian towers of academe who will send bolts excoriating a Judge whom the academic thinks has gone astray, the greater the prospect of confusing the Jury.
Given these problems it is no coincidence that the jury has almost disappeared from the civil litigation landscape and that of white collar crime. Increasingly in such cases a defendant who has an arguable defence but one which requires the painstaking sifting and analysis of complex evidence will elect trial by a Judge alone. The recent South Canterbury Finance Ltd. case is a good example. It is inconceivable that a Jury could have understood the complex financial evidence in that case, analysed it, applied the correct law and delivered the verdicts that the Judge arrived at. Yet it is thought right that cases involving the most serious crimes against the person should continue to be decided by 12 lay persons drawn at random from a diminishing pool of people, themselves with a diminishing pool of common sense.
Any attempt to do away with or reform the use of juries in the Justice system would undoubtedly be met with vigorous opposition from those barristers practising at the criminal bar. This for the reason that faced with a client who has no defence either on the facts or the law the last hope is to run the case before a jury in the hope that counsel can sow enough confusion, or sway the jury with such eloquence as to secure an acquittal. To do so is not a criticism of the lawyers. Their job is to do all they ethically can to secure the acquittal of the client. It is a criticism of the system that allows for such an outcome and is probably the most disreputable of reasons for retaining juries.
There would also be an outcry from the civil liberties people, no doubt marching in the streets and an outpouring of ill-informed nonsense which usually accompanies such protests, but which ignores the injustices inherent in the present system. That sort of protest is to be borne as it always does as being no more than another example of the demise of common sense.
For these reasons I have long been of the view that retaining juries as the sole deciders of fact in any case, but particularly serious crime, has become indefensible. They are past their use by date and serve no useful or just purpose in the justice system. They create a lottery in what should be as secure a process as can be devised for such serious matters. There are a number of options for reform including: Enabling a Judge to decide if on balance the evidence to be called in a given case is likely to be beyond the competence of a randomly chosen jury to decide. Or in difficult cases a return to specialist juries drawn from a roll of suitably qualified persons having expertise in the areas of evidence mostly commonly in issue in such cases (including white collar crime). Judges sitting with suitable assessors to enable the Court to better understand difficult specialist evidence is another option. But probably the most efficient outcome is to simply do away with juries and leave it to Judges to decide all questions of fact and law which arise in court litigation. At least the Judge is likely to be experienced in the business of deciding and will be subject to a transparent appeal if he or she gets it wrong. Less hopeless cases would be run once counsel understands they will likely be met by a raised judicial eyebrow early on in the proceedings. Neither is the Judge likely to be swayed by emotive pleas which fly in the face of the evidence. The net result would be a freeing up of a massive amount of court time and the cost saving that entails, a saving of inconvenience and financial loss to the jurors selected and the public purse by way of legal aid. Most important the public disquiet which surrounds the sample of cases referred to earlier in this article would be laid to rest.