The Good, the Bad and the Ugly: The Effect of Composition of Juries on Verdict
| Author | Rachel Casey |
| Position | Senior Sophister Law student, Trinity College, Dublin |
| Pages | 3-31 |
THE
GOOD,
THE BAD
AND
THE
UGLY:
THE
EFFECT
OF
COMPOSITION
OF
JURIES
ON
VERDICT
RACHEL
CASEY*
Introduction
There
is
no
more
potent symbol
of
the
common
law
tradition
than
the
jury.
As
an
institution,
it
is
quintessentially democratic
in
nature, constituting
the
lay
element
in a
criminal
justice
system otherwise
dominated
by
professionals.
The
concept
of
twelve
ordinary
citizens,
randomly
selected
and
capable
of
judging
the
guilt
or
innocence
of
a
defendant,'
has
become
so
integral
a
part
of
our
adversarial
system
that
it
seems
almost
above
reproach.
However,
questions
remain
regarding
the
composition
of
these
'juries
of
our
peers'.
To
whom
are
we
entrusting
the
liberty
of
defendants?
Every
jury
is a
miniature
democracy.
Unlike
political
democracy
in
modem
times,
2
the
democracy
in
a
jury
room
is
both
direct
and
participatory. Within
the
ideal
of
a
jury,
every
juror
is
entitled
to speak
and
be
heard
and
each
holds
a
vote
of
equal
weight.
Since
a
verdict
is
not
possible
without
a
substantial
consensus,
if
not
unanimous
agreement,
3
jurors
are
compelled
to
listen
and
respond
to the
arguments
of
others
in
order
to
reach
an
understanding.
The
jury
thus
symbolises
the
State's
commitment
to
democracy
and
constitutes
a
clear
expression
of
confidence
in
its
citizenry.
While
the
jury
provides
a
democratic
link
between
citizen
and
State,
jury
duty
serves
as
a
reminder
of
the
citizen's
civic
responsibilities.
Hence,
the
"social
contract
theory"
beloved
of
the
classical
criminologists
4
is
amply
illustrated.
Senior
Sophister
Law
student, Trinity College,
Dublin.
Former
winner
of
the Reddy,
Chariton
&
McKnight
Prize
for
Best
Article,
see
"Of
Mice
and Men: The
Patentability
of
Biotechnology"
(1999)
2
TCLR
86.
1
For
discussion
of
the
use
of
juries
in
civil trials see
Bennett, Hirschhorn
and
Gordon,
Bennett's
Guide
to
Jury
Selection
and
Trial
Dynamics
in
Civil
Trials
(West
Publishing
Company,
1993);
Litan,
Verdict:
Assessing
the
Civil
Jury
System
(Brookings Institute,
1993).
2
Political
democracy
is
regarded
as
indirect
and
representative
and
as
such
is
further
removed
than
the
jury
from the
ideal
envisaged
by
democratic
theory.
See
Gobert,
Justice,
Democracy
and
the
Jury
(Ashgate,
1997),
for
an
analysis
of
Aristotle's
modes
of
government.
3 See
Findlay
and
Duff,
The
Jury
Under
Attack
(Butterworths,
1998), at
Chapter
3,
for
an
in-
depth
discussion
of
the
majority verdict versus
unanimity.
© 2000 Rachel
Casey
and
Dublin University
Law
Society
Trinity
College
Law
Review
In
a
political sense,
the
jury
system
encourages
accountability,
5
since
the
risk
that
the
state will run
roughshod over
the
rights
of
individuals
is
reduced
by
the
fact
that
the
jury
stands
as
witness
to
any
potential
unfairness.
This satisfies
the
maxim which
holds that
justice
must
not
only
be
done, but
must
be
seen
to be
done.
In
this
way the
jury
provides a
legitimization
of
the
government's
power.
Often
represented
as
an
important
safeguard against
government
oppression,
the
removal
of
the
jury
in
circumstances
of
executive
conflict
has
met
with
detailed
criticism.
6
The
criminal
trial
is
adversarial,
a
contest
between prosecution
and
defence concerning
proof
of
guilt
to
the
requisite
standard.
Juries
are
presented
not
just
with
the
law,
but with
the
law
in
a
factual
context.
The
due process
model7
and
the
adversary
system
depend
on
the notion
that
the
contest
between the
prosecution
and
defence will
be
conducted
by
fair
procedures
that
forbid
either
side
to
gain
an
unreasonable
advantage
over
the
other
and
that
are
fairly
administered
by an
impartial
judge.
This
image
of
the
trial
is
essential
in
order
to
maintain
the
power
of
the
judiciary
and
ensure
its
successful
functioning
in
society.
The
existence
of
the
jury
once
again
has
a
legitimating
effect,
allowing
the
judicial
system
to
appear
independent
and
impartial.
8
4
Radzinowicz,
Ideology
and
Crime:
A
Study
of
Crime
in
its
Social
and
Historical
Context
(Heinemann,
1966),
at
10,
states
that "[t]he
people
as
a
whole
could
then
judge
how
effectively their
liberties
were
being
preserved
in
the
administration
of
criminal
justice".
5
Enright
and
Morton,
Taking
Liberties:
The
Criminal Jury
in
the
1990s
(Weidenfeld
and
Nicolson,
1990),
at 126,
"the
State has
to
justify
every
serious
prosecution of
an
individual
to
twelve
of
his peers
chosen
at
random
from
the
community.
It
is
one
of
the
checks
which keeps
the
State
in
tune
with society
at large
...
it
certainly
confers
an
element
of
legitimacy
on
prosecutions
brought
by
the
State".
The
'Diplock Courts',
introduced
in
Northern
Ireland
during
the height
of
the
troubles,
are
an
example
of
the
removal
of
the
jury
system
in
circumstances
of
conflict
within
the
community
from
which
the
prospective
jurors
would
have
been
drawn. Jackson
and
Doran,
Judge
without
Jury:
Diplock Trials
in the
Adversary
System (Clarenden
Press,
1995),
note
that
this
change
was
"not
accompanied
by
a
thorough investigation
of
how
the
adversarial
structure
of
the
trial
might change
when
the
sole
responsibility
for decision-making
was
handed
to
a
judge
sitting
alone...."
This
would appear
to
conflict
with
the
dictum
of
Lord
Hewart
in
R.
v.
Suffex
Justices
(1924)
1
KB
259,
"Justice
should
not
only
be
done,
but
should
manifestly
and
undoubtedly
be
seen
to
be
done".
7
Jackson
and
Doran,
op.
cit., at
4,
using
Packer's
famous
dichotomy
between
due
process
and
crime
control, state
that
"[tlhe jury
system
can be
viewed
as
counter-balancing
this liberal
bureaucratic system
...
and
as
upholding
due
process values
at
least to the
extent
that
defendants
are
assured
of
an
independent
external
scrutiny
of
the
merits
of
the
prosecution's
case".
8
In
Findlay
and
Duff, op.
cit.,
at
140,
Blake
contends
that
the
"laws
of
evidence
have
been
developed
because
of
the
nature
of
the
jury
trial.
It
is
impossible
to take
away
the
centrepiece
of
the
system
and replace
it
by,
for instance,
a
judge
sitting
alone
without
doing
damage to
the
whole system".
[Vol.
3
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