Juries: Is it Time to Say Goodbye? (a 1L law student perspective)

Are juries problematic, archaic, or possibly even dangerous? I came upon this question while listening to the Real Crime Profile podcast. This podcast focuses on real crimes within the realm of domestic and sexual violence. One of the podcast’s hosts, Jim Clemente, is a former New York City prosecutor and retired FBI profiler. He holds a strong opinion that juries are putting a strain on the judicial system because they are made up of a group of individuals unfamiliar with the law. Although this is arguably the purpose of a jury, Clemente believes that the ineptitude of jurors makes for problematic trials and therefore unjust results. Hearing this, I couldn’t help but think about the Canadian legal system and its use of jury trials. I wanted to learn more about juries in Canada and whether or not they ought to be a thing of the past.

According to the Government of Canada’s Department of Justice website, anyone who has been charged with a crime for which there may be a sentence of more than five years has a right to a trial by jury. This is also guaranteed in section 11 of the Canadian Charter of Rights and Freedoms. Some civil cases, and some cases for which the penalty is less than five years, may also have the option of being tried by a jury. If the criminal offence is of the severe nature, such as murder, treason or alarming her Majesty the Queen, trial by jury is mandatory. There seems to also be an exception to this rule if the Attorney General consents to a trial by judge alone. So, it appears as though juries are probably not used in vast majority of criminal cases anymore. Is this a good or bad thing?

Perhaps it is valuable to inspect the history of jury trials. What was their initial purpose and how have they evolved over time? Like most of everything to do with law in Canada, juries originated in England and came over during colonization. In fact, jury trials actually began in the time of Socrates thousands of years ago. Juries were originally made up of people who had some sort of stake in the argument. They were often community members who were invited to provide their input because they knew something about the dispute at hand. Following the Norman conquest, more often than not, juries consisted of regular community folk who knew little to nothing about the current case. They were chosen because courts wanted to include unbiased citizens in courtroom dispute resolution. Individuals on a jury were chosen at random in order to make up a group of peers to resolve cases in an impartial manner (see The Canadian Criminal Jury below).

The right to be tried by jury was first decided in Canada in the Criminal Code of 1892 (see The Canadian Criminal Jury below). The jury process has evolved over time, but the core conceptions remain the same. Juries are made up of 12 people who are selected randomly and impartially in the community of where the trial is being held. So, if the trial is being held in Winnipeg, the jurors cannot be selected from Saskatoon. This makes sense. How can you be tried by a group of your peers if you do not all live in the same community? Peers ought to mean people who live within proximity of one another (although the conception of a representative jury in Canada is a fraught one). Once selected as a juror, the jury’s responsibility is to either acquit or convict the individual on trial. This decision must be unanimous across all 12 jurors. It is up to the jurors to decide whether or not a convicted person is guilty of the crime they are being accused of beyond a reasonable doubt. This is where things become a little sticky. Who decides what is reasonable doubt? What is reasonable, what is doubt? How can 12 individuals make a unanimous decision based on an undefined concept of reasonable doubt? Although these are critical questions when investigating the efficacy, I will leave that to a more experienced person to answer.

What I am particularly concerned with is the level of competency of a jury. Jim Clemente, the Podcast host and former NYC prosecutor, believes that juries are not competent enough for the task they are asked to execute. Lawyers, members of law enforcement, and judges are not eligible for jury duty. This is because they are seen as biased members of society. But why? When you think about it, juries exclude some of the most valuable people in the field of law to undertake a task specifically about the law. Why would that be considered bias? Obviously, lawyers and judges interact, they work together and spend a large amount of time in similar circles. It is clear that putting a lawyer on a jury who knows the defence attorney would likely compromise the trial. Even though lawyers and judges operate under a Code of Conduct that prohibits them from using personal biases during professional work, it is near impossible to set aside bias in certain situations. People in the legal profession may have the most knowledge of the law, but that is clearly not a strong enough reason to put them on a jury.

Okay, so maybe excusing lawyers from jury duty is based on morally and therefore practically sound reasoning. But what about other professionals? Would juries be better off if they were made up of individuals who have specific expertise on relevant topics? This could include individuals such as physicians, psychologists, forensic science technicians and software engineers. There are people who are specifically trained to interpret sciences that could shed light on the guilt or innocence of accused people. Having a group of 12 experts highly skilled in understanding the empiricism of what is happening might be more beneficial to a trial. For example, physicians would be better able to interpret evidence and autopsies in ways that could definitively tell them whether or not someone has committed the crime. Psychologists would be able to understand how the mind works when someone commits a crime, and this could inform a more accurate judgment. It can also be argued that these individuals are more likely to set their social biases aside when scientific facts present. In many criminal cases, such nonpartisan experts will be invited to give testimony at a trial. However, wouldn’t it be better to also have those individuals determine whether or not the accused has committed the crime? They are already highly trained and have likely seen similar cases in the past. How could a group of one’s peers be any better than this?

In my opinion, the only reason I would prefer to have a group of my peers as the jury in my trial rather than trained professionals is if I were guilty. While other reasons no doubt exist, I can't help but wonder if juries allow us to ignore the truth in favour of the persuasiveness of well-crafted advocacy. Certainly the law allows us to trouble the truth. Juries allow us ample opportunity to do so.