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.
Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban’in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the enabling legislation, the saiban’in system was subject to review three years after going into effect, and the Supreme Court issued its three-year evaluation in December 2012. While this essay introduces some of the results of that evaluation, the following remarks primarily reflect my own appraisal.
Of course, the saiban’in system is by no means perfect. Many issues warrant consideration. Some issues have become clearer during the four years the system has been in operation; others have become apparent since the system went into effect. To my mind, however, the achievements of the system far outweigh the issues relating to it, and it is on those achievements that I focus in this essay.
The literature considering various possible procedural reforms to American jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of procedural reform such as modifying the verdict form to insulate jurors from external pressures on the verdict.
This article examines the practice of restricting jury service to citizens. While some jurisdictions, such as the United Kingdom and New Zealand, base jury eligibility on permanent residency status, others, such as Ireland and the United States limit it to citizens. This article examines sets out two principal arguments in favour of abolishing citizenship requirements. First, the need to ensure that juries are broadly representative of the community from which they are drawn. Secondly, the need to promote integration more generally, particularly as Western societies become increasingly multicultural. The article also considers specifically Irish constitutional and historical reasons why this citizenship requirement is difficult to justify.
The article below discusses the voir dire process in a high profile murder case in Montreal. According to the article, the jurors selected for this case must be bilingual. This requirement is necessary because evidence will be submitted in both English and French. This surprises me because I would think the court would prefer an official translation of the evidence whether it be from English to French or French to English rather than rely on an individual juror's interpretation which can vary based on someone's fluency or proficiency in the other language.
The most recent edition of the Economist has an interesting article about juries in the Caribbean entitled 12 Clueless Men. According to the article, some of the smaller countries in the Caribbean that adhere to the common law system are moving towards abolishing criminal juries. While this article is definitely anti-jury, it does highlight some of the concerns that arise when countries rely on lay persons to decide difficult issues like guilt or innocence.
“WE simply cannot carry on the way we are going,” says Trinidad and Tobago’s chief justice, Ivor Archie. Along with other reforms, he wants to abolish the jury system, a hallowed cornerstone of English common law for almost 800 years and exported to Britain’s former colonies in the Caribbean. Juries, he argues, slow trials down, making them last up to a year, and clog his country’s courts. Clogged they certainly are. More than 500 jailed murder suspects await trial.