Why jury trials need a serious rethink – Part 1: Jury selection

By city_jumping

I’m just going to say it: I don’t believe in jury trials.  Not as they currently are.

To be clear, I’m talking about the UK here.  The US system is infinitely worse, with elements like a heavily-engineered jury selection process deliberately built in – but that’s for another day.

We may think that we have the moral high ground, that we can pat ourselves on the back for not being as bad as the Americans.

But there are far too many flaws in our present system to make the chances of getting a fair trial and a just verdict anything more than that: chance.  Sheer luck or randomness.  And that’s just not good enough.  Not for the defendant, who doesn’t get a right to a fair trial.  Not for the victim, whose case isn’t properly considered.  Not for society, who cannot trust in their judicial system.

lou-levit-1940

“A jury of one’s peers”

I get the (idealistic) picture.  That justice should represent the common values of the community.  That all are equal before the law and a defendant is judged by a group of his peers.

But what does that even mean these days?  Perhaps it made sense back when communities were smaller and more homogenous.  For a white defendant in a small, largely white, relatively income-equal town, a jury of one’s peers may be easier to identify.  Randomly selecting 12 people in those circumstances may be a fairly safe way to get an impartial and representative jury.  But vastly increasing disparities in wealth and education, combined with a far greater degree of ethnic and religious diversity and other differences in background, make agreeing what should count as a fair representation of one’s society pretty near-impossible, let alone trying to get such a jury together.

Combine that with the fact that you can only be called up for jury service if you’re on the electoral register and have lived in the UK for at least 5 years since the age of 13, and you’re quite significantly narrowing the chances of getting a representative jury.

“Please can I be excused?”

So, we’re already likely have a somewhat skewed sample from which potential jurors can be called up.  Who then ends up sitting on the actual jury?

The process of excusing or excluding certain people from service adds yet another distortion to the process.  When I did jury service a few years ago, I was shocked at how easy it was for some people to excuse themselves from service.

I was supposed to be doing an internship at the time I got called up.  Trying to be helpful, friends and acquaintances offered plenty of suggestions of how I could get out of service (though to be clear, I did go through with my jury duty!), based on successful excuses that had been used by themselves or people they knew.  From claiming your English wasn’t good enough to (I assume – or hope – falsely) confessing a prejudice against certain groups of people, it was apparently pretty straightforward to ensure that jury service didn’t disrupt whatever you had planned.

And why do this?  Well, aside from the potential inconvenience of serving on a jury, there may be a significant financial cost for some people as well.  As noted on the gov.uk website, although an employer must give a juror time off work, they can “choose whether or not to pay you during your service“.  And if your employer doesn’t, that can be a huge problem for some people.

Sure, you can apply for “loss of earnings and other expenses” during this time – but in reality, this doesn’t necessarily compensate the full extent of lost earnings and can be an unsustainably small amount for some people.  Maybe you’re the sole or main earner in the household, and your employer decides they won’t pay you while you’re on jury service.  Perhaps you have children or other dependants that will need a carer too.  Suddenly being put on effectively minimum wage for an indefinite period (the current maximum compensation for the first 10 days – including any child/other care you may need to arrange – is £32 per day for up to 4 hours, or £64 per day for more than 4 hours) may well make people think twice about service.

It’s no wonder that many of those who face a significant opportunity cost of doing jury service will look to find any of a number of fairly easy routes to excusing themselves.

Imagine what that does to the jury pool.  It’s not much of a stretch to think that higher earners or those with more dependants are going to be more likely to find ways to excuse themselves.  And so this further increases the risk of the jury pool getting skewed in a certain direction, with less representation from a certain section of society.

timon-studler-63413.jpgSo far, so problematic

It’s not exactly a promising start for a fair trial by one’s peers – an idea that is held to be fundamental to our criminal justice system.  And we’ve only discussed the pre-trial stage.  I’m only just getting started.  What happens in the courtroom brings even more problems…

3 thoughts on “Why jury trials need a serious rethink – Part 1: Jury selection

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  1. South Africa did away with juries in 1969, and personally I’d rather be judged by someone who knows the law, than by people who rely on their feelings, or have a short attention span, or are easily swayed by a charming speaker. I think judging by one’s peers made sense centuries ago when life was different and before there were volumes and volumes of different kinds of law. My only problem is sometimes the law trumps what’s morally right and just.

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    1. True – there are so many issues when relying on completely untrained and extremely fallible decision-makers. I think you’re pre-empting some of the problems that I’m planning to highlight in the next post on this! Watch this space… Also, would love to know more about the thinking behind abolishing juries in South Africa + any studies done!

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      1. I don’t know of any studies done – we’re accepted it and a jury system is alien to us even though we see it on TV and in the movies – but I remember how many commentators on the UK Guardian were appalled when they learned that the Oscar Pistorius case would only have a judge. This despite the fact that most European countries also don’t have juries, or only in special cases. Here’s a link to an article written by an expert on our constitutional law: https://constitutionallyspeaking.co.za/do-we-need-a-jury-system/

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