The criminal justice system has long held the view that judges are more capable than jurors of disregarding inadmissible prejudicial material. One consequence of this is the differential treatment of judges and jurors in respect of actual or potential exposure, via conventional or social media, to publicity which is prejudicial to a defendant. This article examines psycho-legal research findings which undermine the assumption upon which this differential treatment of judge and jury is based. It then identifies a number of questions which merit further attention in light of these findings.
There is a longstanding presumption in Canadian law that jurors will act impartially in carrying out their duties, but this presumption may be challenged when the defendant is a member of a racialized minority group. In those circumstances, the defence may initiate a challenge for cause procedure, wherein potential jurors are questioned about their ability to set aside any racial prejudice and judge the case solely on the evidence. Although the challenge for cause procedure has been in place for some time, little attention has been given to the process and whether it in fact effectively screens for juror bias. The present article provides an overview of the challenge for cause procedure, with particular attention to race-based challenges, as well as psychological research assessing the effectiveness of the procedure. Reference is made to the authors’ analysis of actual jury selection proceedings in which the challenge procedure was invoked. The data revealed that, although only a small percentage of potential jurors admitted to potential prejudice in open court, many more were excluded by triers and counsel.
Australian State (NSW) Looking to Reintroduce Juries for Civil Trials
Here is an article that discusses a recent push to have civil jury trials reintroduced into New South Wales, Australia. One interesting point of the article is that allowing jurors to decide civil matters does not necessarily delay the proceedings because "jury verdicts are faster than a judge preparing a lengthy written judgment."
This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation. Parliament enacted fire-courts legislation on eight occasions between the mid-seventeenth century and the nineteenth century. The Article particularly emphasizes the first and largest of these courts, established after the Great Fire of London in 1666. Archival research into 1,585 cases resolved by the London Fire Court reveals that the Court never employed juries to resolve contested factual matters. The Article argues that the history of these courts provides a limited but clear power for Congress to strike civil juries in federal court.
This article considers aspects of lay participation in the Irish justice system, focusing on some political dimensions of the trial jury in the nineteenth century. It then identifies some broad themes common to systems of lay participation generally, and particularly nineteenth-century European systems. These include perceptions of legitimacy, State involvement and interference with jury trials, and issues around representativeness. The traditional lack of scholarship in the area of comparative criminal justice history has meant that many of the commonalities between different jury systems have been hitherto unexplored. It is hoped that this paper will contribute to a wider discussion of the various commonalities and differences in the development of lay participation in justice systems.
This article takes a look back at two of the major opinions of the criminal procedure revolution - Duncan v. Louisiana and Baldwin v. New York - and contends that, in retrospect, extending the right to jury trial to all felonies and misdemeanors was a mistake. Instead of protecting defendants from the power of the state, these decisions have had the opposite effect: criminal trials are increasingly rare and those defendants who dare to insist on their rights pay a substantial and sometimes brutal price if convicted.
The article makes its case comparatively by taking a look at two other common law countries - England and Canada. Each has two trial courts and two trial models for most felonies and all misdemeanors. The two models are distinguished in such a way that it is usually to the strong advantage of both prosecutors and defendants to opt for the simpler nonjury trial model if possible. Prosecutors get a much shorter trial and defendants are assured a rather lenient sentence if they are convicted. This contrasts sharply with the United States where only one trial model is available and it is strongly to the prosecutor’s advantage to charge as high as ethically possible for plea-bargaining leverage.
We often lament “the vanishing trial” in the United States. But Canada and England show there are options we could take to make more trials available for defendants without requiring additional resources. But, first, we must begin by reconsidering the wisdom of what the Court did in Duncan and Baldwin.
The right of an accused to trial by jury has traditionally been seen as a fundamental protection for the citizen against the Crown, and, in the words of Lord Devlin, it is “the lamp that shows that freedom lives”. As such, it should be remembered that trial by jury is a right of the accused, rather than the right of the community. This paper does not seek to consider all issues concerning the defendants’ rights in criminal jury trials in New Zealand. Rather, the parameters of this paper are constrained to exploration of several key issues pertaining to the defendant’s interest in peer representation. The Law Commission has revisited the issue of peer representation several times in the past few decades. Although acknowledging present jury representation issues, the Law Commission continues to emphasize the community’s interests over the defendant’s fair trial rights affirmed in the New Zealand Bill of Rights Act 1990. This paper therefore analyses the failures of present jury representation from the defendant’s point of view and contemplates how peer representation may best be achieved, with a focus on the source of one’s peers, but also with due consideration of the impact of in-court jury selection procedures.
Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean jury system are analyzed and contrasted with practices elsewhere. The unique procedures associated with Korean jury trials offer a natural experiment and deserve continuing serious study.
In 1993, Justice Doherty of the Ontario Court of Appeal crafted what was perhaps the most significant decision on racism in the Canadian criminal justice system of that decade. The twentieth anniversary of the groundbreaking decision in Parks offers an opportune moment to review the case law on challenges for cause to determine to what extent we have advanced the discussion on racism in criminal justice. Are we now more likely to recognize and respond to the harm of racial prejudice in the criminal trials of racialized accused? Have understandings of racism become more sophisticated and nuanced in the context of challenges for cause? In particular, how has the Parks question evolved to reflect the complex and elusive forms of contemporary prejudice in Canada, including subconscious racism? In this article, I argue that the progress we have made in examining the racial prejudices of prospective jurors has been negligible. While some individual judges have engaged in thoughtful and insightful analyses, the vast majority do not grapple with the insidiousness of racism in any meaningful way and reject attempts to deepen the inquiry.
The practice of justifying judicial decisions by reference to consensual community values, which are distinguished from ordinary public opinion, has occurred in a number of jurisdictions and has been defended by prominent scholars. It provides a response to concern about the democratic legitimacy of judicial decision-making especially in constitutional cases. While it has also been critiqued for exacerbating concern about democratic legitimacy, the community values approach has proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting those decisions to the community’s values. Some of the democratic theorists referred to by adherents of the community values approach are also helpful. It is suggested that community values be understood as majority informed opinion. It is finally argued that the aim of connecting constitutional review to the community’s values in order to promote democratic legitimacy in bill-of-rights cases might be realised if constitutional juries are introduced.