Year 12 Legal Studies

The Jury System

Historical Background

“No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any

way destroyed, nor will we condemn him, nor will we commit him to prison, excepting
by lawful judgement of his peers, or by the law of the land”
Clause 39, Magna Carta 1215; Clause 29 Magna Carta 1225

Magna Carta is seen as a symbolic statement of rights, including the right to be judged
by one’s peers. To be judged by your peers means to be judged by someone with the
same legal standing – an ordinary member of the community. The jury system reflects
the idea that everyone in the community is responsible for the administration of
justice. Today a person accused of an indictable offence is entitled to have their guilt
or innocence determined by a jury of 12 people. A jury of six can also be used to hear
civil cases in the County or Supreme Court.

Jury Composition and Preselection

Juries Act (2000) sets out the process to select a jury. Firstly, the names of potential
jurors are selected from the electoral roll, the selection of names is random. The
names, addresses and occupations are then sent to the Juries Commissioner. Secondly,
the Juries Commissioner sends a questionnaire to all people named on the jury roll.
The questionnaire helps to determine their eligibility for service. Many of those listed
may not be considered for jury duty because they are either; disqualified, ineligible,
excused for good reason or permanently excused.
A person is disqualified if;
 they have been imprisoned for a term of more than three years
 they have been imprisoned (within the last ten years) for a period of three
months
 they have been imprisoned (within the last five years) for a period of three
months or have served a sentence of imprisonment by way of an Intensive
Correction Order
 they have in the past two years have been sentenced by a court, charged with
an indictable offence (and released on bail) or is in remand

A person is ineligible if;

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 they are too closely involved in the court process (police, lawyers, employed
in corrective services
 they have a disability that would render them incapable of jury duty
 they have an intellectual disability
 they cannot speak English

A person is excused for good reason if;

 they are of illness or poor health
 the distance to be travelled to the court (if the trial is in Melbourne) is over 50
kilometres or the distance travelled would take excessive time or cause
excessive inconvenience
 attendance causes hardship on the person
 the person has dependants and can not find alternative care

A person is permanently excused if;

 they are of advanced age, continued poor health or disability

Thirdly, the questionnaires are screened for those who are eligible for jury service
and the police match the lists against criminal records. A list of jurors is then
drawn up. Fourthly, people available for jury service receive a summons not less
than 10 days before they are required to appear in court. On the first day of the
hearing a roll is called to ensure that all jurors have attended for jury service.
Finally, the jury is empanelled by random ballot. Once the ballot has been
conducted, the jurors will be then directed to the appropriate courtroom. In the
courtroom, the jurors will be told the type of action, name of accused (criminal) or
the parties (civil), the names of the witnesses and estimated length of trial. After
this a potential juror may be excused if they are unable to consider the case
impartially.
The judge’s associate then draws the juror’s name and occupation out of a box,
they walk past the accused and may be challenged (the accused has the right to
challenge six jurors or an unlimited number for cause) by either party (the Crown
has the right to stand aside six jurors and unlimited number for cause) before
entering the jury box. Once the required number of jurors has been selected they
are sworn in.

Role of the Jury

In a criminal trial, the role of the jury is to;

 decide what facts to believe
 ask the judge to clarify questions relating to facts
 reach a unanimous verdict (all 12 jurors agree) beyond reasonable doubt, but
do not have to give reasons for their decision
 if a unanimous verdict cannot be achieved within 6 hours, a majority verdict is
accepted eg, 11 out of 12. A jury hearing a murder or treason must reach a
unanimous verdict
 the jury can ignore a judge’s directive, however the jury is obliged to follow
the judge’s advice when it is to acquit the accused. A guilty verdict ignoring a
judge’s directive would result most likely in an appeal
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In a civil trial, the role of the jury is to;

 consider the facts
 decide on the balance of probabilities
 reach a unanimous decision
 if a unanimous decision cannot be reached within three hours, a majority
verdict is accepted eg, 5 out of 6
 decide the extent of compensation, but do not have to give reasons for their
decision

The role of the jury foreperson is to ask questions of the court on behalf of the jury
panel, take responsibility for deliberations and then delivering the verdict.

There is some debate over the issue of majority and unanimous verdicts. One
argument “for” unanimous verdicts is a jury cannot convict a person unless it is
satisfied by reasonable doubt of the guilt of the accused, if one or more jurors are not
satisfied of guilt, then the jury is not satisfied. If 12 jurors cannot agree then a
person’s guilt has not been determined. An argument “for” majority verdicts is it has
the effect of breaking an 11 – 1 jury deadlock which would otherwise force a retrial
(which is an extra pressure for the accused, great inconvenience to witnesses and
expensive for the taxpayer).

Role of the judge

A single judge hearing a dispute must make a decision based on the evidence
presented to the court. The judge determines points of law and points of fact, delivers
a verdict or decision and passes sentence or provides a remedy.
When a case is being heard by a judge and a jury, the judge;
 presides over the court and instructs the jury of its role and responsibilities.
 explains which party has the burden of proof.
 explains the standard of proof required.
 Applies the rules of evidence and procedure.
 Directs the jury as to the law that applies to the facts.
 Gives rulings on points of law when appropriate.
 Summarises the facts of the case and the law applicable to those facts.
 Answers questions from the jury.
In a criminal case, a judge may direct the jury to return a verdict against the
prosecution. For example, if the judge believes that the evidence does not support
a conviction, then the jury may be directed to acquit the accused.
In criminal cases, the judge will pass sentence if the accused is convicted.

Advantages of the jury system

There are a number of advantages of the jury system. They include;

1. Provides an independent fact-finding body, not bound by the rules of
precedent who provide a fresh view of how the law should be applied to a set
of circumstances by ordinary men and women. Normally the are not
prejudiced by past experiences with the operation of the legal system
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2. It helps to democratise the court, jurors are selected from people in the
community who reflect the values of the community. The use of the jury
ensures public scrutiny of the function of the courts and safeguards basic
human rights.
3. Provides more flexibility than a judge or professional tribunal, by ignoring
outdated and obsolete precedents where a judge may be more inclined to
follow these precedents.
4. It safeguards freedoms in that juries may elect not to administer bad or
inappropriate laws and protects the individual from unfair prosecution by the
state.
5. It represents the view of the ordinary person by demonstrating an
understanding of how the ordinary person would behave in certain
circumstances. Judges may be excessively legalistic and may ignore the social,
moral and economic circumstances of the person. Juries represent a cross-
section of the community and therefore bring a common-sense approach to the
courtroom.
6. It provides a forum to assess the justice system, where the conduct of the
prosecution and police are on show. The jury provides that the community
through its representatives scrutinizes the administration of the law.
7. It ensures that the accused is treated fairly, in that the accused must be
proven guilty beyond reasonable doubt. This provides some protect against the
individual from being wrongfully convicted.
8. That the jury takes its role seriously. There is evidence to support the view
that jurors fulfil their role to the best of their ability. This is evidenced by the
length of deliberations taken by some juries.
9. The jury system has stood the test of time. It has been used and maintained
for centuries.
10. It provides for access and education. Members of the jury gain an insight
into the workings of the legal system and gain an appreciation and
understanding of various operations, which is important when some people
may be cynical of the legal system.
11. It ensures that the ordinary person can understand the law. The law must
be simplified so the ordinary person can understand it, therefore arguments are
presented in a coherent fashion, free from legal jargon.
12. It offers a cross-section of the community. Juries act as a barometer of social
norms and their decisions are most likely going to be supported by the
community.
13. It spreads the responsibility for decision-making, though the judge is
impartial, it would be impossible for any individual to be persuaded by
personal values and prejudices. The more people involved in the decision
making process, the less likely personal prejudices will prevail.
14. It consists of anonymous men and women. Jury members are less likely to
be subjected to threats of violence, corruption or personal appeal. Lawyers can
become accustomed to the way a judge thinks and operates.

There are a number of disadvantages to the jury system. They include;

1. The judge is better able to decide on credibility. Judges are trained to hear
and interpret complex legal argument and are less susceptible to emotive
arguments.
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2. The jury is not required to give a reason for its verdict. There is no
knowing whether the jury has understood the evidence or the judge’s charge to
the jury or have applied the rule of law to the facts. There is no understanding
to how the jury reached its decision.
3. Trial by jury is costly and time-consuming. Though criminal trial by jury
accounts for a small number of criminal trials, it can cost about $20 000 a day
for a trial, though the cost of jurors is not substantial. It takes time to empanel
the jury and often trial by jury takes longer, due to legal argument and
deliberation.
4. Evidence is sometimes complex and technical. The jury requires skill and
ability to follow the facts of a case. They must evaluate the evidence apply the
facts of the case to law. Juries have no special training and jury service might
be a juror’s first exposure to the legal system. Cases such as taxation law or
company law may be too complex for the ordinary person to follow.
5. Jurors may be influenced by emotional bias or swayed by rhetoric. The
skill and eloquence of a barrister may convince the jury of their story. Since
the nature of our system is adversarial, the best or most convincing story wins,
sometimes at the expense of the truth or facts. The jury may therefore be easily
manipulated.
6. Juries may make inconsistent assessments of damages. In civil case the
jury tends to be pro-plaintiff and assessment of damages can often be
inconsistent and unpredictable. This causes uncertainty in the legal system.
7. There are problems with unanimous verdicts. Juries can deliberate for days
before reaching a decision that adds to the costs of a trial. It is also unrealistic
to expect 12 people all agreeing on the verdict. A majority verdict works in a
democratic society that is governed by the principle of majority rules.
8. Juries do not represent a cross-section of society. Given the grounds for
ineligibility etc. a significant proportion of society can “excuse” themselves
from jury service. Surveys have revealed that 67% of those convicted are men
under 30, yet the same cohort represents only 24% of juries. Unemployed
make up 50% of those convicted of crimes, yet are represented by only 3% on
juries.
9. Jury acquittal rates are too high. It is claimed that the acquittal rate is
around 50 %, juries may be too scared to convict even in the face of strong
evidence. Also criminal trial by jury amount to less than half of one per cent of
all offences dealt with.
10. Perverse verdicts can occur. This is done when the jury decides a case
against the proper application of the law. This may undermine the confidence
people have in the legal system.

Reforms to the jury system

There have been a number of suggested reforms to the jury system. These include;
1. Compelling juries to give reasons for their decisions. This would make
juries accountable for their verdicts and less likely to make decisions for the
sake of expediency (getting the job done quickly). This would also help legal
counsels to understand the processes that have gone into determining guilt.
Guilty verdicts based on discriminatory grounds would also be reduced.
2. The “not proven” verdict. This allows for the accused to be discharged but
can be tried again if new evidence is forthcoming. This can assist when juries
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are deadlocked, it allows the accused to be released which provides for their
basic human right of freedom and innocent until proven guilty. This would
stop jurors from agreeing just to break a deadlock.
3. A more representative cross-section. By increasing payment to jurors and
educating people on the importance of jury service may encourage more
people to involve themselves in the legal process.
4. Reducing the size of the jury. This would also reduce the cost of a trial, and
there is no evidence to suggest that a jury of 10 would be less effective than a
jury of 12. There are no significant arguments to justify the use of 12 jurors. It
seems to have a biblical reference more than anything.
5. Having a specialist foreperson. Usually the foreperson is no more skilled
than the other jury members. A professional foreperson can explain to jury
members their role and function clearly and assist them with points of law or
ask the judge for clarification that wouldn’t be as obvious to another jury
member.
6. Reducing challenges. Challenges enables parties to hand-pick juries,
eliminating those by way of occupation or gender that may be less sympathetic
to their case.
7. Provision of training sessions and other assistance. Jurors may require more
than an introductory video on the role of the jury, but need to be prepared for
the length of the trial, the emotional trauma and stress that comes with their
responsibility of determining guilt or innocence.

Alternatives to the jury system

There have been recommended alternatives to the jury system. They include;
 trial by judge alone
 trial by a bench of judges (more than one)
 trial by judge and specialist/professional jury
 abolition of jury in civil matters, due to their unpredictability in determining
compensation. Many civil cases can be exceptionally complex and three
percent of civil trials heard in the Supreme Court are heard by juries suggests
that they are not preferred and becoming obsolete
 use of assessors. In awarding civil damages, a trained assessor can be used to
determine the amount of compensation. This would provide consistency and
fairness

Payment for jury service

 You will be paid $40 per day for the first 6 days and $80 per day from day
seven onwards*
 The Juries Act 2000 requires your employer to pay the difference between the
amount you receive for jury service and the amount you could reasonably expect to
have received if you had not been on jury service
 This requirement applies to permanent, part‐time and, casual employees but
does not include independent contractors. (NOTE: You should discuss the question of
make up pay with your employer prior to attending, if you are unsure of your
entitlements regarding jury service)
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 In Victoria, an employer’s obligation to make up an employee’s pay while on

jury duty is not limited to 10 days. Section 112 of the Fair Work Act 2009 states:

“This Act is not intended to apply to the exclusion of laws of a State or Territory that
provide employee entitlements in relation to engaging in eligible community service,
to the extent that those entitlements are more beneficial to employees than the
entitlements under this Division. Note: For example, this Act would not apply to the
exclusion of a State or Territory law providing for a casual employee to be paid jury
service leave.”

In Victoria, the make up pay provision of the Juries Act 2000 has no limitation and as
such, an employer is required to continue to make up the pay of an employee for as
long as that employee is on jury duty.

 Payment is made at the completion of jury service and a certificate of

attendance is provided