The jury is out: the difficulty of reaching a verdict
UNSW Sydney
What happens when we trust 12 ordinary people to make extraordinary decisions?
A jury is one of the justice system’s greatest trust exercises.
Twelve people are randomly selected to serve on a case. They may sit through days, weeks or even months of evidence before deciding whether the prosecution has proved a person’s guilt beyond reasonable doubt.
These strangers must put aside what they’ve heard or read outside of the courtroom and their own assumptions and consider only the evidence that’s presented to them.
Then, behind closed doors, they deliberate to try and reach a verdict: guilty or not guilty.
The recent US trial of Lindsay Clancy, who was accused of killing her three children, brought the dynamics of a jury into the spotlight. The jurors were unable to reach a unanimous verdict, resulting in a mistrial.
But while high-profile US trials can make jury selection and deliberation seem like something out of Hollywood, Australia takes a markedly different approach.
A trust exercise
According to Dr Leah Williams from UNSW Law & Justice, the Australian jury system is built on a fundamental principle of trust.
“Once a jury is empanelled in NSW, the judge gives them instructions that emphasise that they are the ones who are the triers of fact. It is their responsibility to decide whether the prosecution has proved the facts beyond reasonable doubt,” Dr Williams says.
“The judge then explicitly directs the jury to ignore and not seek out any media coverage. They’re also not supposed to talk to anyone about the case other than other jury members in the jury room, and then it’s a trust exercise mostly that jurors will follow those instructions.”
Even when rules aren’t being followed, it’s up to other jury members to report them.
“The jurors themselves keep each other in line,” Dr Williams says.
There’s so much trust placed in jurors that sequestration – isolating a jury from the outside world during the case – is now uncommon in Australia.
There are, however, exceptions. Dr Williams points to the high-profile Erin Patterson case as a prime example.
“It's not impossible to be sequestered in Australia, but it's very rare,” she says. “The jury is sequestered when the risk of there not being a fair trial is likely and where there aren’t any other remedies that are available or feasible in the circumstances.”
When jurors break the rules
While there’s a lot of trust placed on jurors to follow the rules, it doesn’t necessarily mean they always do.
In the past, jurors have been discharged for falling asleep during a case, while others have been caught playing sudoku, causing the trial to be abandoned.
Jurors can also be excused if they become ill during a trial rather than delaying proceedings until they recover, Dr Williams says.
“Juries can be discharged for a range of reasons,” she says. “Depending on the reason, the individual juror will be discharged or the whole jury will be discharged because the conduct of that juror may be seen to have tainted the whole jury.”
What happens when jurors disagree?
One of the biggest controversies to emerge from the Clancy trial was that one juror was reportedly unwilling to acquit Ms Clancy despite admitting having reasonable doubt.
But Dr Williams says the NSW system has ways of dealing with “that one obstinate juror, whether they are committed to a guilty or not guilty verdict”.
She explains that majority verdicts of 11-1 are accepted in NSW, but only once jurors follow what’s called a Black direction. “It acknowledges the jurors are having trouble coming to a decision but encourages them to keep calmy considering the evidence and listen to the opinions of other jurors in the hope of forming ‘genuine agreement’,” Dr Williams says.
“The judge will give the jurors this encouragement and then send them back to the jury room. If they then can’t reach a unanimous verdict, then the judge may accept a majority verdict, otherwise it’s a hung jury.”
The important point, Dr William says, is that disagreement between jurors isn’t necessary evidence that the system has failed. Nor can outsiders infer how individual jurors reached their conclusions. That’s what makes the jury room something of a black box, Dr Williams says.
“In our judicial system, we don’t know why a jury has reached its decision. All the jury says when it returns to the courtroom is guilty or not guilty. When the judge sentences the defendant, they will draw inferences based on the jury’s return of a guilty verdict as to the facts that the jury accepted,” Dr Williams says.
“It’s a process of making assumptions, which is potentially why hung juries in NSW are more difficult for prosecutors to navigate. They have no insight into what the jury did or didn’t believe, or what the jurors were thinking.”
Should we know what happens in the jury room?
That secrecy continues even after a trial ends. Australian jurors aren’t allowed to publicly discuss what happened in the jury room.
Dr Williams says there is a tension between transparency and preserving confidence in the jury system.
She says on one hand, hearing directly from jurors could give the public a better understanding of how decisions are reached, though it could also place a lot of pressure on jurors and potentially influence their decision-making. On the other hand, Dr Williams says, opening the jury room to scrutiny could also expose the messy reality of deliberations – and potentially undermine confidence in the system.
“It might not always be confidence-inducing to see how the sausage is made,” Dr Williams says. “Ultimately, our justice system requires justice to be seen to be done. In NSW, that means seeing a properly instructed jury returning a verdict, or not – not seeing how they have come to that decision.”
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For enquiries about this story and interview requests please contact Aimee Chanthadavong.
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