Study Notes for SAC 4.2 Part A

Study notes for SAC 4.2 Part A

VCE Legal Studies Unit 4 2012

Star of the Sea College

The jury system

The key features of the jury system

·  Prospective jurors are selected at random from electoral rolls and sent a questionnaire

·  The responses to the questionnaire determine whether the person is able to serve

·  The categories for juror availability are as follows:

-  ineligible: this usually relates to a person’s occupation such as police officer, lawyer and court personnel

-  disqualified: people are usually disqualified if they have been imprisoned for committing criminal offences, are on parole, or are an undischarged bankrupt

-  Excused for good reason: such people must attend the court to explain, under oath, the reasons for their request not to serve. For example, doctors, pharmacists and self-employed people may be excused due to the hardship that may be caused if they were absent from home and/or occupation over an extended period.

·  On the day that the trial is to commence, the jury pool is assembled. In criminal cases, each juror is called to appear before the parties in the courtroom. During the walk from the courtroom door to the jury box, either party may challenge the person. In civil disputes, prospective jurors are chosen through crossing out of names on the jury list.

·  The parties have available to them the following challenges:

-  Peremptory challenges: where no reason is given for the exclusion of the juror

-  For cause challenge: in these cases, reasons must be given which must be acceptable to the judge. If not, the person will be allowed to take their place in the jury box

·  The role of juries is to decide questions of fact in the trial, and to apply the law as explained by the judge. In this assessment of the evidence, the jurors apply the relevant standard of proof.

·  Each juror to return a verdict in accordance with the requirements for the particular case (either unanimous or majority).

·  If a jury cannot reach a verdict, it is referred to as a hung jury, and a retrial may be needed with a new jury.

·  In civil cases, the losing party may be required to pay the costs of employing the jury for the trial.

Comparing the roles of juries in civil disputes and criminal cases

Civil disputes / Criminal cases
Number on jury / 6 / 12
Peremptory challenges / 3 challenges per party, used by crossing names off the jury list. / 6 – if one person arraigned
5 – if two people arraigned
4 – if 3+ people arraigned
For cause challenges / Unlimited / Unlimited
Standard of proof / Balance of probabilities / Beyond reasonable doubt
Verdict required / Majority (5/6) or
unanimous (6/6) / Majority (11/12) or unanimous
Must be unanimous in murder, treason & Commonwealth cases
Role of the jury / To reach a verdict and to award damages to the successful party / To reach a verdict; the judge delivers the sentence

Advantages of the jury system

·  The presence of juries allows the values and expectations of the ordinary person to be reflected in outcomes. This is vital in cases such as defamation (civil law) and rape (criminal law) where judgments are made as to human behaviour

·  The presence of a jury eases pressure on the judge in cases that may be controversial or emotional. For example, cases involving police shootings or the murder of children. Decision making is spread across a variety of people

·  Juries are independent of the parties and the legal system, and stand as a safeguard of the rights of the defendant against inappropriate use of power by the police or the State

·  The need to convince a jury ensures that the language used by counsel remains intelligible to the ordinary person

·  With the changes to the ‘excused’ categories of jurors from August 2001, a wider cross-section of people serve on juries

·  The requirement of a majority or unanimous verdict provides for certainty in the delivery of outcomes. In criminal cases, the 12/12 verdict in murder cases encourages community confidence that outcomes are appropriate

Disadvantages of the jury system

·  Although juries have become increasingly representative of the community, the reality is that many professional categories of people are still excused. Their contribution to the decision-making process is therefore minimal, and jury outcomes may not truly reflect prevailing values

·  The use of peremptory challenges allows defence counsel to exclude people who may otherwise have been valuable jurors

·  Jurors may be unduly influenced by factors other than the evidence being presented. This includes the communication skills of a barrister, or previous media reporting of people involved in the case

·  Jurors may not understand factual evidence in a complex trial such as international money dealings

·  Jurors do not give reasons for their verdict, and parties (and the community) may be left uncertain as to the reasoning behind decisions. This may reduce confidence in the capacity of the legal system to deliver justice

·  Juries add to the costs and delays in trials. This occurs due to factors such as illness of jurors; the time taken for judges to explain issues to the jury and the need for retrials where a hung jury occurs.

Evaluating reforms to the jury system

Reforms / Strengths / Weaknesses
Jurors give reasons for their verdicts / The parties and the court could see whether jurors understood the evidence / Giving reasons for verdicts would be unfair on jurors who are not legally trained
The introduction of professional forepersons / The foreperson could assist the jurors to understand legal processes during the trial / A professional foreperson could influence the outcome through instructions to jurors
The introduction of a verdict of ‘not proven’ in criminal trials / Jurors could deliver a verdict to show that the Prosecution case was strong but didn’t satisfy the standard of proof / With the principle of ‘double jeopardy’, a not proven verdict could not lead to a retrial, so its use is limited
Eliminating the use of peremptory challenges in all trials / A greater number of people who are eligible to serve would be available, increasing representation / Parties rely on peremptory challenges to exclude people who may not be fit to serve due to elements of that case

Evaluating alternatives to the jury system

Alternatives / Strengths / Weaknesses
Trial before one judge / Trials might be more efficient with fewer delays in proceedings; the judge could understand complex evidence / Having cases heard by one judge would eliminate community involvement in decision-making in courts
Panel of judges in criminal cases / Responsibility for outcomes would be shared across a number of highly capable people / If a unanimous verdict was required, retrials may still be necessary. If a 2-1 verdict was allowed, doubts may arise over the verdict
Specialist (expert) jurors; eg a jury of accountants serving on a fraud case / Expert jurors in complex cases would have a strong grasp of the evidence, which may be very complex / There is a potential for a conflict of interest if a panel of experts judge a member of their own profession
Professional juries, employed by government / Professional jurors would have a strong grasp of the legal processes used in court / Language in court may become too complex for ordinary people

VCAA exam question and excerpt from sample example

2011 exam question 13

In a recent submission to the Victorian Law Reform Commission (VLRC), an individual stated that the ‘jury system is outdated and should be abolished’.

Discuss the extent to which you agree or disagree with this statement. In your answer, describe the role of the VLRC. (10 Marks)

Please note that you will not be given a question on SAC 4.2 that also involves elements of Unit 3. You can expect such a question on the final exam.

This question combined content from both Units 3 and 4. It required students to discuss the extent to which they agreed or disagreed with the statement that the jury system is outdated and should be abolished, and also to describe the role of the VLRC. The task words should have given students a guide to how much time should be spent on each part: the first task word, ‘discuss’ the extent..., should have given students a signal they needed to spend more time on this part of the question than on the description of the role of the VLRC.

The extent to which the student agreed or disagreed needed to be stated. Students could have taken either approach; the discriminating factor was in the discussion. Reforms or alternatives to the jury system were not required to gain full marks, but some students did make a point about a possible alternative or reform if they argued that the jury system should be abolished or should simply be modified.

The role of the VLRC could have been addressed at the start or end of the response. Some students were too vague or brief in describing the role of the VLRC and therefore did not gain full marks for this part. It is important for students to read the question carefully. Some simply described strengths and weaknesses of the jury system without any attempt to relate it back to the statement or to the stance they took.

The following points could have been made.

Some strengths of the jury system are:

·  the decisions reflect the views of the common person/community

·  juries are independent and impartial

·  juries are a cross-section of the community and reflect prevailing community attitudes

·  juries ensure the system remains intelligible to the ordinary person and involves the community

·  decision-making is spread across a number of people

·  there is less likelihood of a wrong decision being handed down

·  juries provide a trial that is free from political interference

·  juries can act as a social conscience

·  juries ensure that the hearing of evidence is conducted in an open forum

·  juries have stood the test of time and have historical significance.

Some weaknesses of the jury system of trial are:

·  jury deliberations are kept secret and reasons do not have to be given

·  juries may not be a true cross-section of the community as people are able to be challenged or excused for a good reason

·  juries can add to the cost and length of a trial

·  jurors may not understand or recall evidence that can be complex and technical

·  jurors may be influenced by factors other than the facts before them (for example, rhetoric of counsel) or they may be influenced by bias and prejudice

·  juries have been criticised because of their high acquittal rate

·  juries may have difficulty reaching a decision, even though majority verdicts are now accepted in all cases but murder and treason.

The VLRC:

·  reviews the current law

·  finds out how it is operating in practice

·  discovers any problems or omissions

·  consults the public and interested parties and groups

·  formulates a report.

·  The VLRC can use a variety of strategies including internal research and contributions from the public, community organisations, academics, lawyers, government and private sector organisations. It calls for submissions from these groups, holds face to face consultations in rural and metropolitan areas, prepares issues and discussion papers, and prepares final reports.

The following is the beginning of a good answer.

Despite some flaws in its operation, the jury system remains the most effective way of reaching a fair and just decision. The jury system has withstood the test of time and is the cornerstone of our legal system as it provides society a voice in our justice system. I therefore do not agree with the above statement.

First, the jury system reflects community values through its cross-section representation of society. The jury is randomly selected from the electoral roll and come from all walks of life, age, gender, education, occupation and nationality. The jury system enables a trial by one’s peers and therefore is reflective of current social and moral standards. Some people argue that the jury is not a true cross-section of the community as the legislation enables some people to be excused, whilst stating that some are disqualified or ineligible. However, whilst the current system means that some members of the community are not required to (or are not allowed to) sit on a jury panel, it is a far better system than, for example, a professional jury or a panel of judges, where there could be issues of bias as well as a far less representation of the community.

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