INTRODUCTION
As said by Lord Camden quoted in Rose-Marie Belle Antoine’s Commonwealth Caribbean Law and Legal Systems: “Trial by jury is indeed the foundation of our free Constitution; take that away and the whole fabric will soon moulder into dust.”In recent times the jury system has come under a lot of criticism. It will be argued however that for all the drawbacks there are stronger advantages supporting the retention of the jury system and the lack of adequate alternatives shows that as a common law community we are not quite ready to abolish it.
According to the Ministry of Justice of Jamaica, persons accused of certain criminal acts are judged by a jury of their peers, a practice inherited from the British jurisprudence. A jury is a group of people drawn from civil society and who bring their common sense, experience and wisdom to the matter of determining the guilt or innocence of a fellow citizen. This is done because of the belief that these jurors understand the nuances and idiosyncrasies of their society and bring their collective experiences to bear on a trial. The trial by jury ensures that the citizens of a state are accountable to each other for decisions made rather than to a government-appointed judge. In other words, the basis for a jury is that it is a representative cross section of the local community and therefore is more likely to judge in line with generally accepted values of the society. Jurors represent diverse backgrounds and therefore, individual prejudices are likely to be neutralised.
JUSTIFICATION FOR TRIAL BY JURY
The concept of a jury trial is that defendants are being assessed by people from their community who judge them based on the morals of their society. Rather than leaving decisions to the arbitrary state or a person who doesn’t live in the ‘real’ world, the jury system ensures that the law is applied in a way that fits the expectations of society. Words such as ‘reasonable’ and ‘proportionate’, should be given meanings that fit with the norms and values of society by representatives of that society.
One may ask if a set of trained professionals are better able to reach the ‘right’ verdict than a group of lay individuals. Important issues such as a person’s liberty and their future are not to be dealt with lightly. With such fundamental issues at stake, who is the better choice to be in charge of justice? Certain standards of conduct should be determined by society to ensure fairness and should be an expression of society rather than the government. The government should not hold citizens to a standard that most might never reach, and a jury is the way to put that to the test. Trial by jury can be seen as a way of ensuring that society is involved in the administration of justice, and that citizens are well protected from the state.
Even though it is good for all citizens to have the chance to play a part in dispensing justice, there will always be questions about whether a jury will secure the fairest possible trial. This is a natural concern given that jury service is compulsory; cases can go on for weeks or even months; and the law can be complicated.
CRITICISMS
The first kink in the system is the selection process, with a wide list of exemptions this results in a narrow pool of eligible persons who can be selected to sit on the panel. Most public officials, lawyers and persons who provide essential services, such as doctors and soldiers, are exempt from jury service. This has an impact on the composition of the jury and raises the question whether the jury represents the defendant’s ‘peers’ and attains a true representation of society. Jury qualifications result in both gender and class inequality which results in a composition which seldom represents the defendant. The unrepresentative composition of the jury is further compounded by the small multicultural societies found in the Caribbean.
Another concern is inconsistency between verdicts given and the evidence presented in court. One reason for this may be the inability of the members of the jury to adequately understand, thus follow the directions of the judge. It is possible that they may also be unable to separate the facts from the law thus corrupting the system which requires the judge to make the conclusions of law and the jurors, the findings of fact. This can lead to the jury disregarding the rules of law and coming out with inaccurate verdicts. An example where the jury considered both facts and law though erroneously left to them can be seen in the case of Sookram v R (1971) 10 WIR 195 where they had to determine whether the issue of self-defence rose on the facts, a task, the court held was for the judge and not the jury.
The perceived ignorance and incompetence of the jury is another cause for concern. In Nanan v The State [1986] 35 WIR 358 the foreman instructed the jury that a majority verdict was needed when in fact it should have been unanimous as he did not know the meaning of the word unanimous. Illiteracy and low levels of education can have a negative impact on the process of trial by jury.
Jurors may place too much emphasis on their feelings allowing their decisions to be affected by sympathies for the defendant or the victim instead of making their decision on the evidence alone. According to Antoine this leads to an unfair lack of uniformity in decisions and to an unpredictability in the law, since ‘jury law’ will change from case to case and from jury to jury. It is unlike the certainty of a judicial precedent which is followed on points of legal principle.
Jurors may also be affected by prejudice and bias. It is believed that juries are greatly influenced by the appearance, class and manner of defendants and witnesses. For example, the negative view of Rastafarians. Jurors may be willing to let their prejudices make up their minds before the trial even begins.
The jurors’ engagement during the trial which may be affected by boredom or willingness to be present is also a cause for concern. It is quite possible for decisions to be rushed because juror’s want to go home.
In these smaller jurisdictions within the Commonwealth Caribbean the general problems with jury trials are often exacerbated. Local knowledge of the defendant and/or the crime can lead to impartiality, this is magnified by ease of access to new reports and even further magnified by the technological advances of the modern era. This begs the question of how well the jury system can work in the 21st century now that the Internet makes it possible to research a defendant’s or witnesses history, or information relating to the trial. This is particularly concerning in high-profile cases that have widespread circulation online. Consequently the right to a fair trial may be seriously undermined.
It has been said that the jury system lacks transparency as the members cannot be held accountable for their decisions as they are not required to give reasons as in the case of judicial judgments. If the members of the jury were to behave in a perverse or improper manner it would never be known. It may be suggested that the only way to achieve transparency in the system is for trials to be determined by a single judge or three judges.
ADVANTAGES
The disadvantages of the trial by jury can be countered by the many advantages, some of which highlight the flaws in the criticisms.
Arguably the most favourable advantage of trial by jury is the fact that the jury’s verdict is the expression of the community’s conscience. It reflects the ideals and feelings of a society and can be seen as popular justice, not justice dispensed by judges allegedly out of touch with the ideals of the common man.
The jury’s primary tool is common sense which is not acquired through formal education or training. Highly educated jurors may place greater emphasis on procedure and instructions whereas those with a lower level of education will likely give the correct amount of weight to the evidence, judging it against the requisite personal experience and societal norms. It is the jury’s task to assess the truth of witness statements and adjudicate on the facts and it is submitted that common sense is all that is needed for this. The lack of legal training on the part of the jurors allows them to see the trial with fresh eyes as opposed to legal professionals who may be heavily influenced by their legal experience. It allows the jury to decide as the community itself would decide.
The number of jurors minimize the risk of individual prejudices significantly affecting the verdict. The jury system protects defendants from the bias of a single individual who is deciding their fate.
The question now is should trial by jury be abolished? Alternatives to the jury trial include using the inquisitorial system as used in many parts of the world. The advantage of using a single judge could be that the problem of perverse verdicts would be greatly reduced. Trail by investigating judges would result in not just more reasoned verdicts, but also quicker verdicts. Nevertheless, although judges are supposed to be independent, there would always be the suspicion that they were acting as agents of the government. This could be lessened by increasing the number of judges at first instance. The key benefit of the jury system however is public participation and all that it brings with it. Judicial verdicts may bring with them a level inflexibility when faced with similar charges on different facts and in different surrounding circumstances due to the doctrine of precedent. A jury is able to give the appropriate weight as they see fit to the differing circumstances of each case.
Other alternatives include using a panel comprising advisory assessors, made up of lay person whose function is merely to advise the judge on a verdict as in Tanzania; or as in Zimbabwe, a panel of assessors who are lay persons with special expertise may be chosen to assist the judge. A more radical option is to abolish jury trials entirely but increase the number of judges who will sit at first instance.
To tackle the issues of illiteracy and ignorance without completely abolishing the jury would be to implement a minimum level of education.
CONCLUSION
Some view jury trials as an essential feature of democracy which will allow citizens to be judged by their ‘peers’ while others view them as a lost opportunity to benefit from judicial expertise, greater education, technical expertise and unemotional adjudication by judges or legal personnel.
It is submitted that the best person to judge facts, the defendant’s character and other such ‘common sense’ matters is the common man. Despite its shortcomings, as stated in Ward v James [1956] 1 All ER 563 it has been “…the bulwark of our liberties too long for any of us to seek to alter it…when one or other must be deliberately lying, trial by jury has no equal.”
Some of the alternatives to the jury trial such as a judge sitting alone could adversely affect the perception of our criminal justice system in the eye of the public. Trial by jury should be kept and viable reforms implemented that ensure that it becomes an even fairer and more representative system.
As quoted in Rose-Marie Belle Antoine in Commonwealth Caribbean Law and Legal Systems – “Juries that include all of a community’s people, that allow for the expression of all their informed conscience, and take into account the sum of all their historical experiences, simply are more competent to dispense justice. And if that justice is not always perfect – well neither is anything else this side of the grave.” – Johnny Cochran Jr.