LAWS1000

COURT RESEARCH PAPER THE JURY SYSTEM

The jury system has been referred to as the bulwark of democracy and the
means by which democratic values are regularly brought into courtrooms. 1
However, it has also been criticised as ineffective instrument that should be
abandoned. Kerr asserts, Inefficacy indeed, the utter, abject inadequacy of
the jury as an instrument of justice is one of the best kept secrets of our legal
system.2 This report will focus on the role of the jury in the criminal justice
system through the analyses of observations that form two specific areas of
debate regarding the role of the jury. Firstly the effects of pre-trial publicity
and media reporting on the jury will be examined. Secondly the challenges the
jury faces in understanding court proceedings, in particular highly complex
evidence will be discussed. These challenges also give rise to observations
regarding the need for better communication between judges, advocates and
the jury.
The effects of the media on the jury
The media is often criticised for creating an emotionally charged atmosphere
through pre-trial publicity which in turn acts an as impediment to rational
thought processes by the jury.3 This media interference was observed in a
murder trial in the NSW Court of Criminal Appeal (see appendix) that received
mainstream media coverage. On entering the court building a journalist from
the SMH was observed who eagerly solicited the scoop in a gossip like
manner bluntly stating, The whole thing is over a packet of pistachio nuts.
Upon one subsequent day of observation on this case it was noted how easily
1 Kirby, M. Delivering justice in a democracy III -- the jury of the future, (1998)
2 Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (2006) p229
3 Ibid

this initial trivialisation of the facts by the aforementioned journalist had the
potential to influence in which light one views the accused and the severity of
the crime. Throughout the course of the trial journalist were observed
extracting one fact of the case, namely the presence of pistachio nuts during
the crime, and using it to frame a news worthy narrative that appealed to their
respective readerships. This not only put a comical spin on the facts of the case
but also to some extent painted the accused in an innocent light. The selection
of some facts by the media invariably means the exclusion of other facts and
important evidence that is perhaps more relevant and can portray the accused
in a very different light. Incomplete reporting against the backdrop of
corporate news values can ultimately lead to anachronism and the one can
argue that jury is not immune from being affected by such coverage outside
court proceedings.
Furthermore the observed case was the first day of an appeal so the jury would
have potentially witnessed media coverage regarding the case over the course
of the last 3 years. Therefore the judge accordingly took the time to explain
issues of pre-trial publicity to the jury and the reasons why they should try their
best to put any prior knowledge or memories regarding the case out of their
minds. The judge acknowledged that he could not realistically ask the jury not
to live in the world or not to watch TV. But he appealed to them not to
consider the reports in the media, as they tend to hyperbolise the facts to
interest the general public.
Whether or not judicial instruction is enough to deter the jury is questionable.
In a collaborative study conducted from 1997-2000, the jurors from 41 high
profile criminal trials were interviews on their impression of how prejudicial
media publicity associated with the trial may have affected their perceptions
and the verdicts reached.4 One of the principles findings of the study was that
in 53 per cent of the trials in which some form of pre-trial publicity was
recalled by at least one juror, the publicity was discussed in the jury room. This
4 Chesterman et al, Managing Prejudicial Publicity (2001)

suggested that despite judicial instruction to ignore pre-trial publicity and

media coverage, the jury was inevitably engaging with the media reports and
discussing them throughout deliberations.5 However, the study also found that
the majority of jurors believed that the media coverage of their trial was
inaccurate, incomplete and that ultimately it did not influence their verdict.6
Although it should be noted that the incidence of influence on jurors were
inevitably based on subjective evaluations, as the study itself also
acknowledge.7
The extent to which juries understand the law
The challenge for juries in understanding and recalling highly technical and
complicated evidence is the subject of much academic debate. There is an
obvious empirical challenge as there is no reliable way of knowing whether a
verdict is based on sound understanding of the case and logical reasoning. It is
somewhat problematic to conduct analysis regarding the extent to which a jury
understands the evidence and matters of law since juries are not required to
give reasons for their verdicts, and the grounds on which these verdicts are
reached are not usually divulged.

Nevertheless on an observatory level it can be argued that the complicated

nature of the criminal justice system gives rise to challenges for the laymen in
understanding court proceedings. One can observe that the courtroom can be a
bizarre atmosphere for those who do not frequent it. The jurors often look quite
confused and childlike with books and note pads, waiting for the judge or
council to translate and make relevant the seemingly endless presentations of
complex evidence, particularly by the expert witnesses..

5 Ibid at xiv
6 Ibid at xvi
7 Ibid
8 Proceedings of the Institute of Criminology, no. 68 The jury in Criminal Trials, (1986)

In his submission to the Law Reform Committee in Victoria, Justice Marks

observed that juries are asked to comprehend and remember evidence in a way
that would not be asked of a judge sitting alone. Judges are allowed to refer to
the transcript and are free to write their judgment in their own time. More
often than not, jurors are not given the transcript and they are pressured to
reach a verdict as soon as possible.9 One can observe that judges, in their
decision-making tasks, are heavily reliant upon their ability to refer to their
notes of the trial. By contrast, it was observed that jurors were not overly
encouraged to take notes despite the fact that all the lawyers were not only
taking notes but also had access to a transcript of proceedings. Jurors were
required to commit their instructions to memory as well as absorb all the
evidence.
This concern over the jurors ability to understand complex evidence has lead
to the argument that juries should be abolished in complex cases.10 Arguments
in favour of retaining trial by jury in complicated cases are based on preserving
the traditional role of the jury in the criminal justice system since some
fundamental principles of criminal justice are best served by the jury system.
To elucidate, community participation, the determination of guilt by reference
to the standards of the general community, accountability and public
acceptance of the criminal justice system are all features which would arguably
be lost if the jury were to be abandoned11
Perhaps an abolition of the jury system is not the solution and rather it is a
matter of making communication more effective within the courtroom. New
research suggests that juror misunderstandings may not be the result of the
jurors' intellectual capacity but may be caused by the form in which jurors are
presented with the evidence.12 Better use of visual aids such as diagrams,
photos, plans, whiteboard, chronologies, timelines, flowcharts and sight
9 Horan, J. Communicating with jurors in the twenty-first century (2007) p7

10 NSWLR, The Jury in a Criminal Trial (1985), s2.7

11 Proceedings of the institute of criminology, p19
12 Horan, J. Communicating with jurors in the twenty-first century (2007)

inspections can improved the presentation of the evidence and assist the jury
in understanding the relevant issues.13 Justice Eames also supports this view
and has developed some examples of useful flowcharts that court be
distributed to juries to assist them in understand murder trials.14 He has also
advocated flow charts and useful directions taken from the updated Bench
Book in New Zealand.15
Moreover, It was observed at the district court in a trial involving conspiracy to
import drugs (see appendix), that where evidence was presented in a very
tedious and confusing manner the jury, in particularly younger jurors, appeared
to be disengaged and bored. One can observe police spending hours reading
out logbooks of overly detailed evidence and streaming continuous hours of
poor quality video footage of ambiguous scenes without explaining to the jury
the significance of certain facts. In the particular instance observed, the jury
was predominantly made up of younger people (approximately 20-30 year olds)
who seemed disengaged and lethargic and it was observed that two of them
appeared to have briefly fallen asleep during the presentation of evidence.
Justice Kirby presents a compelling message on the implications of changing
community demographics that in turn warrant a change in the way judges and
advocates communicate with modern jurors.16 He heralds the arrival of
generation-X in the jury system and points out that this group of people have a
different experience of communication to the jurors of the past. He points to
the historical change in mediums of communication, most notably the rise of
the internet, which has profoundly affected the cognitive process of generationX citizens who are increasingly coming into jury service.17 He sees these
changes as having implications in the way in which those potential jurors
commonly receive, and expect to receive, information and the way they

13 Ibid
14 Eames, J., Towards a better direction Better communications with jurors (2003)
15 Ibid
16 Kirby, J., Delivering justice in a democracy III the jury of the future (1998)
17 Ibid at p5

themselves communicate with others and expect others to communicate with

them.18
In light of this argument, it can be observed that generally the methods of
communication that are currently used in the criminal justice system do not
always account for this change in the demographic makeup of the jury and do
not appeal to generation-X. Justice Kirby points to studies conducted in the
USA that have found that things intolerable to generation-X include, Lengthy
openings to a jury; elaborate reminders of the detail of evidence recently
heard; the regurgitation of passages of testimony and, above all, the taking up
of time in circumstances where the listener and watcher has lost completely
the power of control.19 One can observe all of these aforementioned
intolerable situations in the current system. Justice Kirby warns that, If the art
of the advocate is to persuade and the duty of the judge is to explain the law,
they will ignore research about gen-X at the peril of failed persuasion and
ineffective explanation.20 He challenges the lawyers and judges of today to
adapt to the changes in the demographics of juries concluding, If the jury is
truly to remain a democratic bulwark, it is judges and lawyers -- not jurors -who will have to change.21
In contrast a valuable method was observed in regards to the presentation of
complex evidence in the NSW Court of Criminal Appeal where the jury, judge,
councils, police and forensics expert were taken by bus to the crime scene and
walked through the area step by step. Each juror was given a map with
relevant markings that were elaborated upon by forensics experts in order to
help them gain a better understanding of the evidence. This is perhaps a very
effective mode of engaging the jury and helping them understand and
remember the evidence. But ultimately it is up to the judges and advocates
involved in individual to utilise these alternative methods of presenting
18 Ibid
19 Ibid
20 Ibid, p7
21 Ibid

evidence rather than subjecting the jury to endless hours of poorly presented
evidence.
Conclusion
The jury can be seen as an important link between the community and the
criminal justice system. It is designed to ensure that the criminal justice system
meets minimum standards of fairness and openness in its operation and
decision-making, and that it continues to be broadly acceptable to the
community and to accused people.22 Participation of laypeople in the system
itself validates the administration of justice and, more generally, incorporates
democratic values into that system.23 However, one can infer from observations
that there is room for improvement in the jury system in criminal trials.
Firstly, the role of the media and pre-trial publicity poses serious challenges in
terms of bias and creating an emotional climate that is not conducive to
dispassionate analysis of facts and their application to the law. However, there
is no easy solution to this challenge. In the interests of a democratic free
society, the media cannot be prevented on reporting on trials. Nor on a
practical basis can the jury be prevented from existing in the wider community.
Therefore perhaps the only line of defence is consistent and effectively
communicated judicial instruction during the course of a trial high-profile trial.
Secondly it can be observed that there are major challenges in the area of the
jury understanding complex and often technical evidence. However, this is
perhaps symptomatic of the modes in which evidence is presented by judges
and advocates. Although the jurors are at times sighted as the perceived
problem in academic discourse, new research and court observations suggest
that juror misunderstandings may not be the result of the jurors' intellectual
capacity but may be caused by the form in which jurors are presented with the
evidence. Moreover with a shift in the demographic make up of jurors, the
22 NSWLRC, The Jury in a Criminal Trial (1985) s 2.27
23 Ibid

criminal justice system needs to adapt to these changes and employ techniques
and technologies that present evidence in a more clear and concise fashion as
to engage the jury and assist their understanding of the evidence and relevant
legal issues.