Outcry greeted the verdict in the Saudi diplomat murder case. Attorney-General Gary Humphries went so far as to wonder whether we should have appeals against jury acquittals, or to put some fresh and different charges against the accused and to review the Evidence Act. But the precious jury system did not get attacked. Opposition Leader Jon Stanhope defended the jury saying he had no doubt they reached the correct decision on the evidence.
The accused have been acquitted, despite one wanting to plead guilty of manslaughter and the fact that an informant is serving a jail term after pleading guilty to being an accessory after the fact of murder.
Accessory to what, the public asks.
Well, the accused have been found not guilty by a jury and that is that, but we should start questioning the jury system.
Bear in mind Justice Terence Higgins withheld a lot a evidence from the jury, including quite a few witnesses to whom one of accused allegedly confessed. A lot of other evidence was not led because the Director of Public Prosecutions knew it would not be allowed.
The rules of evidence give the judge a discretion to rule out evidence that on balance would be too prejudicial to the accused when compared to its probative value. The rule is there because a jury might get unfairly prejudiced against an accused if they hear the evidence.
It is a bizarre rule. In effect it says that juries are too stupid, ignorance, injudicious and unthinking to listen to all the facts and circumstances that might help them come to a decision. The rule assumes that juries are not up to the job. Something should give here. Either we should do away with juries or we should allow them to hear everything with appropriate warnings from the judge. If juries are so wonderful decision makers why can’t they be trusted to hear everything?
Fact is, they are not got decision makers. It is not their fault, but they are not up to it. They have passed their used-by date.
What do you expect of a good decision maker? First, to be qualified to make the decision. Secondly, to consider ALL the material available to come to a decision. Third, to take reasonable time and be unpressured. Fourth to consult others where appropriate. And fifth to give reasons for the decision. The last of these ensures the decision-maker focuses his or her mind and forms the basis for review if things go wrong.
What happens with juries? All five of these essential elements to good decision-making are absent. Jurors are plucked at random from the electoral roll. Anyone in a profession, business to run or with a demanding job invariably can get excused or are challenged. Most of the sort of people who are skilled and pracitised at making decisions get excluded. Then the judge excludes a lot of evidence after challenges to it by defence lawyers or the stuff is not presented in the first place because it offends technical evidence rules. At the end of the trial juries are locked up until they make their decision. They are pressured. They pressure each other. They don’t have to give reasons. So they can decide on a hunch, emotion or irrationally. And they do not have to take responsibility for their decision. They go back anonymously into the community.
Worse, the system ensures that no comprehensive review of the way juries work if ever done – all in the name of protecting jurors.
It is a big con. It is a propaganda coup that juries are held in such high regard. Sure, they are to be pitied, being dragged of the street to do a job they are not equipped to do, but let’s not pretend the jury system is the best way to make decisions of guilt or innocence.
What about a review of juries? Why don’t we secretly tape a good sample of jury proceedings for later review (with identities concealed)? I suspect we don’t because we would be mortified, going on the revelations of the isolated juror who speaks out later about some of chicanery that goes on in the jury room? If the system is so fantastic, what is there to hide?
Attacking the jury system is a bit like attacking motherhood, but if you really think about it, you would not invent such a system to determine guilt or innocence unless you had the misfortune to inherit such a system by accident of history.
It did once serve a purpose against repressive governments, as the American Revolutionary experience shows. It still would serve a purpose in countries where there is no independent judiciary and where government repress, such as Malaysia. But we have stronger safeguards against tyranny and we should question whether the price we pay for the jury system is worth it.
Bear in mind this case was high profile. There are other cases, which if given the same publicity would result in equal public disquiet.
Juries are routinely denied access to material, including prior convictions, on the basis that they are not equipped to handle it properly. Well are they up to the job at all? And under present restrictions will we ever get a chance to expose their inadequacy?
Accountability, transparency and reasoned decision-making should replace secrecy and anonymity.