Juries in Criminal Trials
`Juries in Criminal Trials', the Law Commission's final report on the jury system, reaffirms the importance of the jury system as an essential and desirable feature of the criminal justice system. However, it also recommends a number of major changes.
The Main Recommendations
Majority Verdicts. The Law Commission says that juries should be able to reach their verdict by a majority of 11:1. This, the Commission believes, will remove the influence of a small minority of irrational jurors and may decrease the rate of hung juries.
Trial by Judge. Currently juries must be used in trials for the most serious crimes (such as murder and rape). The Commission recommends that the accused should be able to apply for trial by judge alone in such cases. However, this would only be granted if, because of the subject matter of the case or the identity of the accused, a fair trial by jury is not possible. The Commission also recommends that in cases that would last for 6 weeks or more, which is too long to expect a jury to sit, the prosecution should be able to apply for a trial by judge alone. This recommendation is aimed at complex fraud trials, and would not apply in cases of serious violent crimes.
Easier to Understand Evidence. Recommendations for making the job of the jury that little bit easier include: increased use of written and visual aids, and more explanation to jurors about the case they are hearing, including the transcript of evidence given by witnesses in court.
Reducing Avoidance. The high number of people who avoid jury service, particularly skilled and educated people, is worrying. The Commission believes this could be addressed by:
- allowing jurors to defer their service to a more convenient time;
- making it an offence for employers to prejudice an employee's job because that employee is or might be on a jury;
- in some circumstances, allowing reimbursement of actual financial loss in excess of the normal juror fee; and
- increasing the penalty for failing to answer the jury summons without proper excuse, from $300 to a maximum penalty of $1,000 and 7 days imprisonment.
Structure of the Report
The proposals concerning majority jury decisions have attracted most of the media attention. However, there is a host of other recommendations in the body of the report which, in their own way, could bring about significant changes to NZ's jury system. A brief summary of the chapters in this report is as follows:
- Chapters 2 and 3 deal with the issue of trial by judge (see above).
- Chapter 4 `Making juries more representative', recommends, for example, increasing jury district boundaries from 30 to 45 kilometres.
- Chapter 5 `Maori representation on juries', discusses under-representation of Maori on juries. Aside from extending jury boundaries, the Commission recommends that practical barriers to participation, particularly with respect to transport and child care, need to be addressed.
- Chapter 6 `Disqualifications and excuses', concludes that current provisions should be retained, but rejects a routine literacy requirement as being impractical and unnecessary.
- Chapter 7 `Challenging jurors', recommends that the current practice of jury vetting be retained, but recommends that the Crown should have to disclose, to the defence, any information it has about a potential juror (who the Crown does not intend to challenge) which may affect his/her ability to serve as a juror, so that the defence may challenge that person if they see fit.
- In Chapter 8 `Discharging jurors', the Commission recommends that the current discharge provisions should be repealed and replaced with a single and general discharge provision, enabling the trial judge to discharge any juror who, because of illness or any other reasonable cause, should not continue to act.
- In Chapter 9 `Information and assistance before the trial', the Commission recommends that: an informational video be made discussing standard matters such as the role of the foreman and how to approach the deliberations process; more information be given on how to select the foreman and on the role and tasks that this person must undertake; and that the foreman should continue to be chosen at the start of the trial, not later on.
- Chapter 10 `Information and assistance at the beginning of the trial', covers the judge's preliminary remarks; the new right of the defence to make a brief opening statement; supplying written copies of the judge's directions (or a summary of them) to the jury; and, where appropriate, supplying written guidelines or a flowchart to assist in reaching a verdict.
- In Chapter 11 `Presentation of evidence', proposed changes to pre-trial disclosure of evidence are discussed, and the use of `admissions of fact' to lessen the evidence that must be presented at trial. The chapter also contains recommendations about: new technology which will allow evidence to be recorded at a natural speed; that juries should receive a copy of the judge's typed notes of evidence to use in their deliberations; making greater use of written and visual aids; and that juries should be routinely advised of their right to ask the judge to put questions to a witness for the purpose of clarification, and actively encouraged to ask questions during deliberations.
- Chapter 12 `Jury deliberation', includes a discussion of the role of the foreman in deliberations and a revised version of the "Papadopoulos" direction (which is given to juries when they have been deliberating for a long time and appear to need assistance); a proposed general guideline for jury deliberation not to go past 9.00pm (in normal circumstances); and that juries (generally) should no longer be sequestered overnight during their deliberations.
- In Chapter 13 `Failure to agree - majority verdicts', majority verdicts of 11:1 are recommended. Briefly, such verdicts should be available for both acquittals and convictions, and for all crimes, including murder; the jury should be required to deliberate for at least 4 hours before being permitted to return a majority verdict; and if a verdict has been reached by a majority, then this fact should not be made public.
- In Chapter 14 `Secrecy of jury deliberations', recommends that the law relating to the secrecy of jury deliberations should be codified to make clear the obligations of jurors and the media.
- In Chapter 15 `Media and their influence on juries', the Commission concludes that there are a number of aspects of the law of publication of trial information which would benefit from legislation. This will be the subject of a separate project.
- Chapter 16 `The experience of being a juror', addresses practical problems of jury service. The continuing problems with inadequate jury facilities are noted, and it's recommended that regular surveys of jurors on these issues should be carried out. This chapter also looks at, for example, paying jurors, deferring jury service, and making counselling available to jurors.
| This paper can be downloaded as a free .pdf file from the publications page at www.lawcom.govt.nz , or a hard copy can be bought from C Gurney (for $20.00 incl GST), tel (04) 473 3453, fax (04) 471 0959, or email cgurney@lawcom.govt.nz |
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