It is rare to find someone excited over jury duty. I have never met such a person. When the summons for jury duty arrives in the post, how many people scream, “Yes!” and run to clear the calendar? I guess the first and only reaction would be, “Oh, no”, quickly followed by, “How can I get out of this?” It might well be that as our current jury selection process stands an accused will be putting his or her fate into the hands of nine people who were not smart enough to get out of jury duty.
By examining jury systems outside our own, we can learn about new practices and see if they would improve our own jury system. There are a number of issues that can be reviewed, including the emphasis on the jury selection process in the trial, the amount and type of information available about prospective jurors and the frequency with which trial lawyers alter the composition of the jury. The probable impact of these issues could be analysed by considering the importance of jury composition in determining a jury’s verdict, the effectiveness of lawyers in exercising their challenges and the broader effects of jury selection procedures.
Our law lays down the functions of a jury selection committee but is doubtful in reality how much they do what the law requires of them. This committee is by law made up of the Commissioner of Police, two magistrates and the Registrar of Courts. In the month of August of each year, they are entrusted with drawing up, to the best of their knowledge, a list of persons duly qualified and sufficiently competent to serve as jurors for the trial of Maltese-speaking persons. A more equitable way to select jurors should be found. It is not enough to randomly select several thousand people at a time from the Electoral Register and simply evaluate their eligibility on the basis of their name, date of birth, gender, occupation and listed address. Why not consider introducing the voir dire process whereby the judge and attorneys for both sides ask potential jurors questions to determine if they are competent and suitable to serve in the case? Among the practices that we should adopt over time would be jury selection without the peremptory challenge, which the English have done, and which produces a more diverse jury because the selection is random rather than skewed.
As things stand at the moment, jurors and judge trying an accused person is akin to having a number of lay people exclusively diagnosing your medical condition and then, on the basis of that correct or incorrect diagnosis, having a medical doctor prescribing the corresponding medicine. Yes, there is a right of appeal but hardly ever successful, unless (bar the exceptional cases of miscarriage of justice) the jury could not have reasonably reached the verdict they delivered in the circumstances. So far we have always adhered to the principle that it is not only the juror's right but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the instruction of the court.
Would it not be better if the judge presiding at the trial takes on the role of foreman of the jury and participates in the deliberation process “in camera” together with the rest of the jurors, rather than having a deliberating jury consisting wholly of laypersons with no questions asked or reasons given? This would provide a means of better introducing citizens' values into the criminal justice system, and it would also create new challenges that a traditional jury system does not face, such as ensuring that laypersons feel as free to speak during the deliberations as the presiding judge, in spite of the disparity in training. It would probably eliminate the risk of having delivered, as happened in the past, some strange verdicts such as guilty of attempted involuntary homicide or a finding of guilt of two alternative counts in the bill of indictment. Juries play an important role in our justice system. They are supposed to be made up of people from all walks of life, representing a broad cross-section of the community. They are supposed to bring the values, standards and expectations of our community into the courtroom.
Jury duty is not just about eating hearty meals at the hotel buffet and a marshall escort to court. It is about taking notes, deliberating facts and making a decision that may ultimately affect a person’s life and liberty.
Jury practices are not written in stone. Even though jury practices might be of ancient lineage, they are not beyond improvement. What works well in one country might not work well in another. By examining jury systems outside our own, we can learn about new practices and see if they would improve our own jury system.
And while one is at it, perhaps one could also think of revising the payment of fees to jurors Regulations (S.L. 9.06) to reflect modern monetary expectations. Well, crime does not pay but jury duty should. Our law requires employers to provide paid court leave. That is good for employees, who get their full wages and benefits. But it dumps jury costs onto employers. And what about other jurors who are not employed? Jury service is a civic duty. Some jurors may have found their court experience interesting and educational. But many find it stressful or even traumatic, especially for long trials of violent crimes. There are several reasons, aside from basic fairness, why jurors should be paid better. I am focusing here on financial issues. First, it would encourage jury participation rather than absenteeism. Secondly, some folks, like part-timers and the unemployed, might even find the service attractive. This could also help make juries more representative of the general population. A lack of juror diversity in such a small country as ours might easily lead to controversy around high-profile trials.
Dr Mark Said is an advocate