Sarah Harte: We need to change how juries operate to modernise the courts

Both cases ignited public and private discussions about the nature of verdicts and the high-stakes and socially charged issues that may have been perceived to have underpinned the trials.

Without directly discussing those verdicts, it generally brought me back to the perennial question of whether we need juries at all.

To some, even raising this inquiry is heresy. The standard line is that a jury fulfils an essential function in the legal system. The theory is that 12 randomly chosen peers give an accused a greater guarantee of representativeness than one judge, thereby guarding against state tyranny or judicial whimsy.

Proponents of this view also believe that citizens’ participation in the criminal justice system promotes confidence in the judicial system as a whole and even educates and morally improves the character of the jurors involved.

As English law lord Patrick Devlin once loftily said: “Trial by jury is the lamp that shows that freedom lives.” 

Many fine words have been spoken about the ancient right of the citizen to be tried by a jury. This right dates back to the English Magna Carta of 1215 and the Irish Magna Carta of 1216 and is enshrined in our 1937 Irish Constitution.

Yet just because something has always been the case doesn’t mean it shouldn’t change. As the American comedian Norm Crosby once said: “When you go into court, you are putting your fate into the hands of 12 people who weren’t smart enough to get out of jury duty.”

While funny, this is glib and harsh. Law is turgid; evidence can be complicated and specialist and most jurors do their best. The question, though, is whether that best is good enough

A contrary view to the one that juries are essential is that they are unreliable and may vote with their emotions, potentially exhibiting gendered, racial, and socio-economic bias. They may associate criminality with class, misunderstand judicial directions, and even engage in internet research, introducing a large element of arbitrariness into the process.

In sexual violence cases in particular, there is much criticism of juries as being influenced by rape myths and responsible for the markedly low conviction rates. Quantitative legal data effectively suggests the jury may act as a roadblock to conviction in sexual crimes relative to other crimes.

There’s a strong case to be made that instead of juries in sexual assault cases, we should have specially trained (emphasis on the word trained) judges rather than juries. It’s a system implemented in New Zealand, and the feedback has been positive. Judges who are trained to understand concepts like how many victims freeze when being raped rather than fighting back. This is something that rears its head repeatedly in sexual assault and rape cases.

Jury selection

Even if we accept the right to a jury trial is essential, we could amend the current system.

There are similarities between how a jury is chosen here and in the United States. Still, one key dissimilarity is that American courtrooms know more about jury composition and its effects on verdicts.

Here, the County Registrar selects names of potential jurors randomly for a particular case. In open court, jurors are chosen at the beginning of a trial. This is comparable to what takes place in the States, but things get markedly different at this point.

In Ireland, the prosecution and the defence can challenge the selection of up to seven jurors each without explaining why they seek to strike out a potential juror. Once they’ve used their seven challenges, they can make as many more challenges as they like but must provide an explanation or cause for the objection.

Making informed objections about who they want or don’t want is difficult because they are more or less flying blind. The only deductions they can make about a juror are based on their age, gender, name, and sometimes occupation.

In contrast, in the US, the prosecution and defence can question potential jurors before they seek to have them removed, probing things like past experiences, such as being the victim of a crime, opinions, beliefs, and values through which they will view the case, education and occupation and even things like media viewing habits. If a lawyer is skilled at this procedure, they will mine a juror’s body language as they answer, including body movement, word choice, and vocal hesitancy. Here, the prosecution and the defence have almost zero insight into potential jurors’ prejudices, biases, and sympathies.

Not everyone would agree with extending the pre-emptive challenge system; in fact, they would argue that we should abolish the ability to strike people out altogether because then we would end up with a genuinely representative random cross-section of society.

I disagree. Surely, if we want juries to bring a degree of impartiality to a case, this lack of ability to question jurors is a shortcoming

For example, if I were defending somebody for rape, I wouldn’t want somebody on the jury who had previously been raped. Even though she might empathise with the victim, it’s possible that her trauma would prevent her from setting aside understandably strong views on the subject of sexual violence in favour of examining the evidence in the particular case.

ONCE called for jury duty in a murder trial, I was challenged as one of the jurors the defence didn’t want. My rear end had barely hit the chair when they had me out of there. I had my out anyway because, at the time, I was a practising solicitor, and nobody who works in the legal system is supposed to be a juror.

My guess, though, is because the victim who had been sexually assaulted and strangled was a young woman around my age, the defence would not want me reckoning I would sympathise or identify with her.

My assessment of the motivations underpinning the defence’s use of their seven challenges in that tragic case was they wanted blue-collar men who might identify with the accused and older women who might judge the victim for what she had been wearing and the fact she had been drinking and out late at night with a small child at home.

At the very least, the thorny and complicated topic of the necessity of jury trials and how juries operate in modern society bears further examination because, as I’ve written numerous times, we need to modernise the Irish court system, digitalise it, make it fit-for-purpose and efficient, and meet the needs of those who access it and hope to access justice. To say we are a long way off this is an understatement.