Is the jury system relevant any more?
In his farewell speech on his departure from the Supreme Court (Brief Magazine, June 2015), the distinguished honourable Justice McKechnie commented on, amongst other things, the jury system.
His Honour said this:
I also want to pay tribute to the thousands of men and women I have had the privilege of observing as they carry out their functions as jurors. There are sometimes fierce criticisms of the jury system. It is, I think, a peculiar arrogance that some lawyers and even judges fall into thinking that a judge is necessarily better than the common sense and wisdom embodied in 12 ordinary men and women. With few exceptions I have seen them conscientiously carrying out their task, sometimes in difficult and distressing circumstances.
It is evident from this statement that his Honour:
(a) Wishes to thank those who have acted as jurors;
(b) Is a fan of the jury system.
With the greatest of respect, I differ from his Honour. That is not to say that I think that a judge is necessarily better – it is just that the world today is radically different from what it was even ten years ago – and there has been no concomitant reform of the jury system to acknowledge those radical changes.
What has changed? Principally, the digital revolution has forever changed the (at least) western world. And so rapidly. I can still remember using a mobile phone (akin to a brick) some twenty years ago, for the very first time. Who then would have imagined that within twenty years, almost everybody has access to a ‘computer at your fingertips’ – with not only instant access to virtually any information, but also a request and find service that, some fear, has the potential to usurp parental responsibility. Equally importantly, the rate of change is increasing, so that in something like a vortex, the speed of change appears to be increasing as well.
And the jury system? Cloaked in unknown history, it lingers on, a system that has not acknowledged the digital revolution, except in a minor way, and otherwise fiercely defends its sometimes peculiar traditions.
The jury system today
The jury system as it stands has been around a long time. It has changed little – except to become increasingly encrusted. Although no-one is quite sure, it is generally believed that when the jury system was introduced, a group of men stood around making decisions on many matters in a single day.
Now, it is common for all but the simplest and rarest jury trials to take at least two days, if not many more. The reason for this increasing length is because of all the ‘padding’ that is now deemed necessary. A trial generally commences with an address by the judge to the jury. Then the prosecutor opens the case. Then, frequently, defence counsel will present an opening statement on behalf of the accused. In a complex case, these matters alone can take a day or two, perhaps more. In a simple case, they can still take an hour or two.
Then the evidence is heard. Then, after the words of the final witness fall away, there is a repeat performance. The prosecutor sums up the prosecution case for the jury. Defence counsel sums up the case for the jury. And the judge proceeds to sum up both the prosecution case and the defence case, again, as well as instruct the jury members as to the law that they must apply, and how they might apply the law to the facts. Again, in a complex case, these lawyer and legal addresses can sometimes take a day, or more. In a very lengthy case, the closing of case stage can take well over a week.
Is it realistic to continue to expect jurors not only to fully pay attention throughout an address of, say, four hours (when psychologists suggest that the maximum time of concentration is closer to 45 minutes) – and apply those instructions in the jury room – when no-one at all knows if they have understood their instructions or not?
The present jury system is time-intense. In general, it is a time-consuming spectacle or piece of theatre which has changed little over the centuries, except by becoming ever more time-consuming.
Meanwhile, the rest of the world has gone into overdrive. You want a car ride in Perth? Virtually instantaneous. You want to book a flight from Vladivostok to London? Virtually instantaneous. You want the details of the nearest petrol station? Virtually instantaneous. You want to send some Hong Kong dollars to a friend in Jordan? Virtually instantaneous.
So, while the rest of the world increases its speed, the legal world asks its travellers to step into a backward time machine, to go back to when time was time, when people could luxuriate, when there was less time pressure.
Fine. But is it realistic?
Has the jury system evolved to take any account of these profound changes? No, except to be more insistent and demanding that its structures must be preserved. But more on that another time….