bad press18 sept 09

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BAD PRESS: DOES THEJURY DESERVE IT?

36th Australian Legal Convention

Judith Fordham

Jury Research Unit

Centre for Forensic Science

University of Western Australia

[email protected]*

(+61) 411 648 684

*Please feel free to contact me for further information about any of the projects mentioned in this paper at

the email address above.
mailto:[email protected]:[email protected]:[email protected]


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THE BAD PRESS

In May 2006, Messrs Kizon, Morris, Lloyd, Martino, Mercanti, Dobaj were acquitted by a

jury of unlawful wounding and perverting the course of justice. A public outcry followed,

accompanied by suggestions from the Commissioner of Police and the then State

Shadow Attorney-General, Sue Walker, that jurors in that trial had been intimidated into

acquitting by the notorious nature of the accused, if not by overtly threatening

behaviour. Ms Walker was reported West Australian Newspaper on 19 May 2006 to

have said that the psychological impact on a juror of having to sit in a courtroom and be

looked at by an organised crime figure is obvious1.

Also in 2006, twelve jurors found three Western Australian men guilty of the murder of

Phillip Walsham. The case featured in an ABC Australian Story three-part series

"Beyond Reasonable Doubt". In 2007, the Western Australian Court of Appeal quashed

the convictions of the men who were serving life jail terms, finding the verdict

unreasonable and cannot be supported on the evidence.

A media storm followed, with suggestions that the jury could only have reached their

verdict by speculation or as a result of prejudice. The following statement was released

to the media by some jurors:

Every stakeholder in this case has been allowed to express their opinion in the media with the exception of

the twelve people who were charged with the responsibility of making an extremely difficult decision. As a

jury, the justice system forbids us to have a public voice on what occurred within the jury room during the

1See Hansard: Thursday 18 May 2006. Ms. S.E. Walker: For Mr Mercanti and Mr Kizon in particular, because he is

notorious, to sit in a courtroom and study the jurors faces in detailwould cause the jurors some

apprehensionPresently, the psychological impact on the jurors is immense. A study is not needed to determine

that; it is commonsense.


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trial. This we respect. We would, however, like to express our deep frustration at a number of things that

have occurred since our decision was handed down.

There are a number of issues that we would like to address, along with our concern and disgust at the

obvious bias and inaccuracy of much of the media representation. We did not choose to be jurors on this

trial. We were initially selected by means of a ballot system, with final approval by the defendants, the

defence and the prosecution.

Once selected we all acted professionally throughout the trial. We all took the role of juror very seriously.

We are all intelligent and professional people who were prepared to listen to both sides of the case and were

more than capable of analysing the evidence presented to us. When we went into deliberations we did so

carefully, thoroughly and did not allow emotion to enter into our decision-making process. Our decision

was based purely on the evidence put to us.

We all support and recognise the need for, and right of, appeal. We recognise that it is the prerogative of

the appeal judges to overturn a jurys decision. Unfortunately, a decision that took many days to reach has

now been ruled as unsafe and unsatisfactory. What part of our decision was unsatisfactory? We made

the only decision we felt possible on the evidence presented to us over the ten weeks. Does the decision of the

appeal judges undergo the same thorough scrutiny?

We are disgusted with the subsequent public attack on the juryspecifically, our integrity and ability to

make reasoned decisions. It is easy to blame and speculate about the jury when their decision does not suit.

Remember, the system chose us. We did not choose to be on the case.

Our experience has led us to believe that the jury system is a farce. If the judicial system deems that a juryis unable to make reasoned decisions in a high profile and/or prolonged case, then surely those cases should

only be heard before a panel of appeal judges. Why do juries even exist? Criticism of the decision we accept,

what we object to is the public maligning of us personally. Again, the system chose us.

The media reporting of the case has been scandalous. Certain commentators have stated they heard all ten

weeks of the trial. Not one media representative heard all the evidence presentedthe evidence on which

the jury based their decision. Much of what has been put in the public domain by so-called commentators,

both in newspapers and on the internet, has been biased, speculative and factually inaccurate.

One constant criticism levelled at the jury has been the amount of speculation allegedly made by them in

the process of them reaching their verdict. How ironic it is that those same people are now speculating

themselves about the alleged prejudices of the jury and their ability to make decisions without emotion. Do

those charged with the responsibility of informing the public have an obligation to be factually correct and

unbiased? Unfortunately, it appears not. Some, it appears, align themselves with one side and present only

the information beneficial to their case. Sadly, the West Australian public in general have not been given


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an unbiased account of the facts and as such go on believing that another miscarriage of justice has been

averted.

This was a legitimate trial by twelve peers. I s this really justice?

These cases are only two of many where calls have been made to scrap the jury

system and replace it with something else. Anecdotal horror stories abound. Are

these stories typical of what happens in the jury room? Do juries deserve the

type of criticism they have received? Should the system be scrapped or

reformed?

REFORM PROPOSALS

JUDGE(S) ONLY?

One widely debated suggestion is to have one Judge or a panel of three Judges

assess the evidence, consider and deliver a verdict. Dispensing with juries would

end the longstanding community involvement in the justice system and is unlikely

to be an attractive prospect to many. Another suggestion, most recently put

forward by The Chief Justice of Western Australia, is to have a system whereby

the Judge retires with the jury to assist and guide deliberations.2 Although one

can see the merit in professional guidance and facilitation, this suggestion has

2 The Honourable Wayne Martin, Current Issues in Criminal Justice (2009) Rotary District Conference. Perth:

Burswood Convention Centre.


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met with little support as it is thought a Judge might wield too much power and

have a disproportionate influence on the decision-making process.

A GUIDEBOOK?

Another mooted solution is the use of a juror guidebook. In a study conducted by

Boatright and Murphy3, a guidebook for jurors which offered written assistance in

selecting a jury foreman, discussing the evidence and the law, voting, getting

assistance from the court, the verdict, and dealing with feelings once jury duty is

over, was tested. Jurors found the guidebook helpful, were more likely to

organise a theme for deliberations, and developed formal procedures for

addressing disagreements among jurors than jurors without the guidebook. The

first-time jurors used the guidebook more than the experienced jurors. Such a

book has been proposed in the past in Western Australia but has not met with

universal judicial approval.

A FACILITATOR?

The more radical solution of a facilitator may provide all the benefits of a

guidebook but in a more flexible manner.

3R G Boatright and B Murphy, How Judges Can Help Deliberating Juries: Using the Guide for Jury Deliberations

(1999) Court Review, 38-45. *


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During our research, jurors have explained numerous ways in which the group

discussed the evidence and the law, and have described various methods of

voting. During one-one-one interviews with real jurors, participants conveyed real

concerns about methods of deliberation. Both first time and experienced jurors

felt often unprepared to deliberate, pressured to vote sooner than they would

have liked to, or into voting a certain way, and have suggested they would have

liked more training and preparation in order to know how to deliberate. Many

jurors have recommended a professional facilitator to guide (but not influence)

the deliberations. The jury facilitator would assist with structuring discussions,

reaching consensus, ensuring all jurors are heard, minimising inappropriate

pressure in the jury room, voting and communicating with the court.

RESEARCH

The then Attorney General, Jim McGinty said in 2006 in response to media

criticism of the jury system4: We must ensure that changes to the jury system,

which has been in place for hundreds of years, are made on the basis of

research and fact, and not on the basis of emotion and prejudice.

Any reforms should be based on the fullest and most reliable information

available. Research in Australia has been constrained by legislative barriers1 and

the reluctance of justice administrators to interfere in any way with jurors.

Permission has been given by both the past and present Attorneys General of

Western Australia for our team at the Jury Research Unit to interview jurors after

4Hansard: Thursday, 18 May 2006.


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criminal trials. Three Projects have been undertaken, and this paper discusses

some of the findings which may shed light upon whether the jury deserves the

bad press it has received from time to time, and what might be done to resolve

some of the issues.

JURORS, JURIES AND EXPERT EVIDENCE

The purpose of this Project is to learn more about how real jurors and real juries

assimilate, evaluate and use expert testimony, in order to provide a basis forpractical, sound proposals about ways to improve the manner in which expert

testimony is communicated to juries in Australia.

Following a series of jury trials involving complex expert evidence, a short

questionnaire was completed by jurors in the jury room seeking non-identifying

demographic details, subjective impressions of the expert evidence, ease of

comprehension and general comments about the jurors experience.

Respondents were invited to take part in a semi-structured interview canvassing

issues such as:

the manner of presentation of the evidence and the effect this had on

individual understanding

what presentation methods are most effective

alternative methods of presentation the individual and group deliberative process as it related to

understanding, integrating, evaluating, weighing and applying the

evidence

the effect of the introduction of an opposing expert


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Data collection, quantitative and qualitative analysis are complete. A preliminary

report has been published5, and presentations made, with final analysis on hold

till 2010 due to the intervening Jury Intimidation Project.

JURY INTIMIDATION

This Report is complete and is currently with the Attorney General and his

Department, awaiting formal release in the near future.

In this study, almost 3,000 (2,954) jurors from a random and targeted6 sample of

trials were sent a 24-page questionnaire. We received 969 completed

questionnaires, and of those, 501 jurors consented to an interview. Of those,

jurors who had expressed any experience which could have been interpreted as

intimidation, no matter how minor, were interviewed, as were their fellow

consenting jurors.

There was intimidation in some trials from the accused, his or her supporters or

from the victim or his or her supporters, but this was by no means a common

finding. The incidence of intimidation was found to be considerably less than the

media would lead us to believe, came from some unexpected sources, and in

5Muddying the Waters with Red Herrings: a Progress Report on Western Australian Jury Research, in Freeman and

Brooks-Gordon (eds), Law and Psychology, Current Legal Issues, Oxford University Press, 2006 (ISBN 0199211396)6

Targeted trials: trials where it has been suggested or suspected that jury intimidation has occurred. Note that the

questionnaire was oblique in its approach and that the word intimidation is not used as we did not want to

influence the responses at all.


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most instances, jurors were not influenced by the intimidation into voting a

different way from that which their dispassionate consideration of the evidence

would dictate.

Proposals have been made in the Report for reform to minimize the prospect of

intimidation. As the Report is not yet approved for release, we cannot make very

specific comments on this issue. If any attendee would like to access the Report

when it is released, please email Judith Fordham and we will ensure you are

advised, or a copy or link sent to you.

JURY EXPERIENCE PROJECT

The Jurors, Juries and Expert Evidence and Jury Intimidation research and

follow-up interviews provided an enormous amount of extraordinary and

valuable information about the whole jury experience, well outside the scope

of the projects. From the moment people receive their jury duty summons, toleaving the court after the trial is over and beyond, jurors have volunteered

a broad spectrum of information and important insight into their experience

and the justice system.

We can make comments on many of the issues which have been raised in

the Bad Press juries have received, though a full exploration of the

mountain of information must await the outcome of funding applications. The

amount of information offered has vastly exceeded our predictions. The

response rate of well over 30% in a project requiring completion of a 24-page

questionnaire, and the willingness of well over half of these jurors to


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participate in an interview as well, indicates the strength and depth of feeling

possessed by these volunteers.

Traditionally, Australian courts have considered the deliberation processes of

juries as completely autonomous and have been reluctant to interfere with the

dynamics that occur within the jury room. Consideration of the findings from

the Jury Experience Projectaims not to threaten the autonomy of the jury, but

to consider whether there are skills or structured guidance which can be

provided to jurors in order to manage the group process and assist in

decision-making.

IN SUMMARY

The information we have thus far from all three studies indicates that there are

potentially soluble problems that arise throughout the trial and inside the jury

room. There appears to be a range of issues associated with jury deliberationsthat may have inexpensive and non-invasive solutions.

Most relate to the (in)adequate provision of information to jurors, education on

group decision-making processes and provision of basic functional guidance to

jury members on how they can best perform their role as a juror. Possible

solutions would not attempt to dictate how juries should reach their decisions, but

aim to eliminate some of the fundamental problems which result in hung juries,

inattentive or disengaged jurors, juror dissatisfaction and discomfort with their

verdict, any or all of which may indicate that justice has not been served.


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The recommendation which in our view has most merit is the provision of a jury

facilitator and/or a deliberation guidebook. A guidebook alone would also be a

useful innovation, but not take the place of dynamic assistance which could be

adapted to the jurors personalities and circumstances of the specific trial.

SOME BAD PRESS: OUR COMMENTS

THE JURY WAS BIASED/PREJUDICED

Jurors do hold preconceived ideas. Everyone does. Examples jurors have

mentioned include:

drug users and their behaviour (liars, thieves)

drug dealers (how they should be locked up and kept away from our

children) aboriginal peoples and their behaviour (drinking, beating their spouses)

young people and their behaviour (king-hit)

women and their behaviour (sleeping with several men)

high profile criminals (hes guilty of other things, then hes guilty of this)

defendant looks like a stereotypical criminal (looks like a drug dealer, or a

paedophile)

reverse racism making sure they get it right becausethe defendant isaboriginal.


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The media suggests that these prejudices influence the decision-making process

and the verdict. However, our data suggests otherwise. When jurors have told us

that prejudices were expressed, we asked them to explain who expressed

prejudices and how this issue was dealt with.

In summary, most jurors identify prejudice within themselves, and direct

themselves to put their prejudices aside and concentrate on the facts. They take

judicial directions in this regard very seriously (indeed they take all judicial

directions very seriously). They discuss their (and others) prejudices before

moving onto study the facts and evidence. They work very hard to achieve this.

Often, during the trial on breaks and / or during the deliberation one or two or

several jurors will express prejudices towards the accused or alleged victim.

Then, those less likely to have these opinions, identify and argue against these

prejudices and assert to the group that they are there to scrutinise the evidence

and not to take into consideration such opinions and beliefs. As one juror said,

When I first heard the charge I instantly felt the male was guilty. After

listening to all the evidence, I changed my mind.

First impressions of the accused:

Young and not the look of a sexual predator but cautious as looks can be

deceiving.

The most convincing indication that jurors have been successful in putting aside

irrelevant considerations is the frequency of comments such as the following: I


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believed he had done it, but I could not convict because the evidence was not

sufficient to reach the standard of beyond reasonable doubt.

In the Jury Experience Project, jurors were asked if they thought the verdict

reached was correct or not, and for their reasons. The answers to this question

give some insight into the matters jurors do take into account in their

deliberations. The following two tables illustrate this, and are consistent with our

findings about the jurors abilities to consciously put their prejudices to one side.


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368

80

55 55

20 19 13 13 10 9 7 40

50

100

150

200

250

300

350

400

Reasons for verdict

Frequency of jurors who indicated the verdict was the right one

and reasons why n=719

Based on evidence

Not enough evidence

Not proven beyond a reasonable doubt

Opinion of juror

Prosecutor (negative)

Behaviour/Testimony of the Accused

Judge (information or instructions)

Stregth of case (weak)

Law

Poor evidence

Behaviour / Testimony of the victim

Proven beyond a reasonable doubt

Conflicting / inconsistent evidence

Prosecutor (positive)

Defence (negative)

Strength of case (strong)

Defence (positive)

Lack of Testimony of the Accused

Prosecutor influence

Prejudices of jurors

Juror/s wanted to go home


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14

1211

9

7

5

2 2 21 1 1 1

0

5

10

15

20

25

Reason for Verdict

Frequency of jurors who indicated the verdict was not the right

one and reasons why n=87 Based on evidence

Not enough evidence

Not proven beyond a reasonable doubt

Opinion of juror

Prosecutor (negative)

Judge (information or instructions)

Stregth of case (weak)

Law

Defence (negative)

Defence (positive)

Behaviour/Testimony of the Accused

Poor evidence

Prejudices of jurors

Juror/s wanted to go home

Behaviour / Testimony of the victim

Proven beyond a reasonable doubt

Conflicting / inconsistent evidence

Prosecutor (positive)

Strength of case (strong)

Lack of Testimony of the Accused

Prosecutor influence


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THE JURY IGNORED THE EVIDENCE AND WERE INFLUENCED BY THE MEDIA

We found almost no evidence of any media influence on the verdict, whether the

trial was a targeted (rumoured intimidation) trial or a randomly selected trial.

THE JURY WAS INTIMIDATED

Watch this space! As explained earlier, we are unable to explore this issue untilthe Report is released for general distribution.

THE JURY IS NOT REPRESENTATIVE OF THE GENERAL POPULATION

The following charts indicate the makeup of the juries taking part in the ExpertEvidence Project. We are not able to say whether the juries are representative or

not, as not all jurors took part in the survey. However it would stand to reason

that as so many occupational groups are not permitted or can decline to carry

out jury duty, that a jury cannot be especially representative in that sense. It is

another question whether a jury ought to be representative. If the view is taken

that it should be then there are some easy (partial) solutions such as permitting

people to defer jury service to a convenient time. However our research does not

permit us to comment on this policy issue.


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Missing

55+ years

45-54 years

35-44 years

25-34 years

18-24 years

Unemployed

Tradespe

rson,Labou

Student

Retired

Professionals

Other

Managers

andAdminis

Ho

memaker

Clerica

l,Salesand

60

50

40

30

20

10

0


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JURORS JUST WANTED TO GO HOME

We consider this to be a significant issue which requires attention. There were quite a

number of reports of jurors and juries in real difficulty as a due to this problem, and

regrets about voting a certain way as a consequence. Clearly different verdicts may

have been arrived at, had a jury not experienced this problem. Possible solutions could

include not sending a jury out on a Friday afternoon, having them keep strict 9-5 hours

regardless of the stage deliberations had reached, the use of a facilitator to encourage

jurors to keep on task and to make deliberations more efficient and therefore shorter,

and better education and guidance before jury service:

The Foreman she sort of brokered a deal on the last night because one

particular member wanted to go home. He had a child and he said:Weve

been at this for a couple of days now. I want to get going. Everyone had

dinner and it was like lets pack it up. I was a little bit beside myself. She

virtually brokered a deal. She said: If you want to go and see your

child this is the way you vote. Thats the way it went. It still brings a shiver

down my spine and to this day I dont know if that guy was guilty or no t

really but thats the way it ended up. He was convicted.

THE JURY CANNOT FOLLOW COMPLEX EVIDENCE

Notably, almost half the interviewees in the Jury Experience Project were educated to

tertiary level and even assuming those who chose not to take part were educated to

below this level, jurors are probably more highly educated than the general population

(there were some difficulties with comparing the Australian Bureau of Statistics data

with data from this study as ABS data included people under 18).


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The consistent message from jurors is that those less able to follow complex evidence

are assisted by those more able: the jurors pool their knowledge and experience.

However, it is clear from the Expert Evidence Project, that jurors would be assisted by

experts being better trained in communicating, lawyers and judges being better able to

assist this communication by the structure and nature of questions

Tertiary

TAFE

Seconda

ry

Primary

Olevels

Notprovided

MSc

H.M.C

.

GCE

AchievementC

ertif.

80

70

60

50

40

30

20

10

0


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JURIES ARE NOT CONVICTING DUE TO THE CSI EFFECT

The media, and lately academic commentators, are starting to discuss the

existence of a supposed CSI effect. The so-called CSI Effect234 relates to

fears often expressed, usually without anything other than anecdotal evidence

that jurors will

demand scientific testimony

acquit (wrongly) if it is not made available

be unduly influenced by such testimony

uncritically give it more weight than other evidence

accept it unquestioningly

be unable to understand it

be influenced by the most articulate expert and

be unable to critically evaluate it.

Others consider the jury to be considerably underestimated5.

The Expert Evidence Project is producing encouraging, though sometimes

mixed, messages about the so-called CSI effect. This work has been published

and presented more fully7 elsewhere. What follows are some examples of how

real jurors deal with the sorts of CSI Effect concerns which have been raised:

7

Muddying the Waters with Red Herrings: a Progress Report on Western Australian Jury Research, in Freeman and

Brooks-Gordon (eds), Law and Psychology, Current Legal Issues, Oxford University Press, 2006 (ISBN 0199211396)


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ABSENCE OF EVIDENCE

Jurors are alive to the possibility that more evidence could have, or should have,

been made available to them. The missing information was usually, on the our

analysis, available and logically relevant:

We were so upset that they never did the nail scrapings. It leaves us jurors

thinking why not? on TV they say that they can get DNA There was all

these questions that we asked. Even though we know were not meant to, we

still ask ourselves that in the jurors room it was such a hard case anyhow,

but we thought oh well, if theyve got DNA well be fine. It will just give us the

answers, if he had DNA under his fingernails because of the fighting

belonging to someone else, then were going to know

In a drug sell/supply case another juror complains:

Like the lady who was actually seen to be handing him the package by the

Detective. Why she wasnt called to say it wasnt drugs. And they were so

adamant that it wasnt drugs. And he was saying it was a friend of his

girlfriends. Then why wasnt she called? Why wasnt she tracked down?

And yeah, no, she wasnt, so It would have been probably not in the

Defences favour to have found her, in case she couldnt say that it wasnt

A shooting:

Thats what we thought [he had got the residue by transfer]. That might have

happened.

[Q] Is that something the defence put up to you as a possibility?[A]No.. Because there was a lack of residue and lack of evidence to

really directly point that it was coming from that balcony. [They should

have swabbed the balcony] and the other guy.


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We listening to them have got to make up our minds and give an accurate

version of what we feel happened, not what they think or what they say

happened.

On the other hand, some jurors were frustrated with the inability of an

expert to give a definitive answer rather than an opinion.

[O]ne of the big issues is when they use words like most likely because a lot

of people took that as anything could have happened and that added to

confusion. Particularly when youve got people who dont want to decide on

guilty anyway, as soon as they are given an out on this is the most likely

cause or that is not very likely that creates a whole heap of doubts in

peoples minds Using words like is consistent with made it very difficult

to get to a decision at the end.

CONGRUENCE OF THE EXPERT EVIDENCE WITH OTHER EVIDENCE IN THE TRIAL

A strong theme emerging is that jurors are very careful not to just accept expert

evidence at face value, but to look to see what other aspects of the evidence supported

or contradicted the expert evidence, and assess evidence on that basis. They were also

conscious of which witnesses were independent and ascribed more weight to their

evidence, all other things being equal. This was a powerful factor in assessing expert

testimony.

[Y]ou would expect them to be there for a reason and you respect their

opinion because all of the other evidence. The witnesses are too close to the

action. They're all emotionally involved.


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OWN INVESTIGATIONS

Some jurors carry out their own investigations despite judicial instructions to the

contrary:6

I didnt come to any conclusion until Id actually sat down with a model. I had

a little car and I actually saw what would happen with the wheels and trying to

depict when everybodys saying Idid it at home. Next morning, I explained to

[the other jurors] what happened and it was logic .

I know that one person did go out and they said that it was a lot closer than they

expected. I think she was told she shouldnt have gone out there.

WHAT MIGHT HELP JURORS?

Some suggestions were made consistently by jurors:

TAKING NOTES?

Note-taking by jurors in Western Australian Courts is now commonplace, as opposed to

some other jurisdictions7. This was positively viewed by jurors, however they

consistently volunteered that they would have liked clear guidance early in the trial,

particularly as to the law8, but also as to the factual issues. Instruction as to the law

applying to the particular trial (as opposed to general instructions about such matters as

burden of proof) is rarely given in Australia9. A partial solution at least in relation to the

facts may lie in advocates appreciating this concern and dealing with it in their opening

addresses.

I wish I had taken more [notes]. I wish that had been stressed to us more

because when they say youve got, I think they had 72 witnesses you dont

think about it at the beginning but when we got to about witness 4 or 5 and we


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were having a hard time remembering what number 1 said, I went oh my gosh,

Id better start writing and thats when I started writing. Then when we got to the

jurors room and we needed to know things, it was like please did someone write

out those first few? Thats when we realised how important it was. [W]e all got

our notes together. There was a couple that just wrote absolutely everything

like books. A couple of pads one guy, I couldnt believe it. We couldnt believe

how much they came in handy.

ASKING QUESTIONS OF EXPERTS?

Judges do not encourage jurors to ask questions generally, and to the authors

knowledge never of expert witnesses, during the trial10.

[W]e had, just a particular question just wasnt answered....We actually raised

it couple of times, can we pass a note to the judge to get him to ask the

questions and we were told no.

Say the first day of a six week trial the jury gets fully informed and at that

time if the person running that says, Now there is an opportunity for the jury to

put questions to certain key people, being [the experts] and you will be given an

opportunity to ask them questions after the prosecution and defence have

finished their cross examinations, related to information theyve provided

the Judge may say, No, you can't ask that question or you dont have to answe r

it what that will do is it will make the jury more involved [T]hey will then

automatically want to participate more because you feel almost not an outcast,

but you're sitting there, you have to make a judgment but you can't say anything

really.


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A reform which could usefully be considered, is to allow jurors to retire briefly, ask them

to consider whether there is anything they would like further explained or repeated, and

whether there are any questions they would have liked to have asked. These questions

could be committed to writing, vetted by the trial judge, then put to the expert before

release. This would ensure the jury understood that evidence as well as possible.

The Expert Evidence Project supports the existence of a tech effect, in the sense

described by the Michigan researchers11, whereby dissemination of technical

knowledge packaged for the popular market is greater than ever before. Jurors are

increasingly imbued with the willingness and skills to come to grips with technical and

scientific evidence. This is no bad thing. It is the responsibility of the criminal justice

system to recognise this change as one which will enhance the dispensation of justice,

and to take advantage of and encourage it, by making changes in modes of

presentation of evidence, and improving the technical and scientific knowledge of all

players in the system: judges, counsel, courtroom architects, and prosecuting

agencies.

CONCLUSION

So, does the jury deserve the bad press it has received? The evidence is that, in

general, jurors do their conscientious best, and do far better than often assumed. The

dangers of bias, coin-tossing, intimidation, media influence and the CSI Effect are

much less than popularly assumed. However, this is not a reason to leave well enough

alone. Any verdict not based on a dispassionate consideration of the evidence is an

unsatisfactory verdict, particularly for victim and accused.


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During deliberation, jurors are left alone to muddle their way through the evidence. The

provision of guidance by way of a Deliberations Guidebook, and/or a Facilitator is a

reform worthy of consideration.

Lawyers muddle along also, with no awareness of the effect of their advocacy than pop

psychology and leaks from the jury room. The dissemination of information based upon

research involving real jurors after real trials can only assist all participants in the

criminal justice system.

AFTERWORD

It is fitting that a juror should have the last word in this paper.

What follows is a poem volunteered to us by a juror and used with his kind permission.

(Demographics: over 60, technical assistant).


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ACKNOWLEDGEMENTS

The support of the Attorney-General of Western Australia, the Chief Justices

(immediate past and present) of Western Australia, the Chief Judge of the District Court

of Western Australia, the Western Australian Sheriffs Office, all the Judges whose

courtrooms were invaded, and most of all, the jurors is gratefully acknowledged, as is

the financial support of the University of Western Australia, the Law Society of Western

Australia Public Purposes Trust and the Department of the Attorney General.

1Juries Act 1957 (WA). Similar restrictions exist in Canada, England and New Zealand (see N. Vidmar, When Jurors Talk

About Their Verdict, in J. Kleinig & J. P. Levine (eds.), Jury Ethics: Juror Conduct and Jury Dynamics (Boulder, 2005), 237-245).2D.E. Shelton, Y.S. Kim, G. Barak, A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the CSIEffectExist? (2006) 9(2) Vanderbilt J of Entertainment and Tech Law331-367.3 D. I. Lehman, R. O. Lempert, et al, The Effects of Graduate Training on Reasoning: Formal Discipline and Thinking aboutEveryday-Life Events, (1988) 43American Psychologist 431-432.4 M. B. Kovera and B. D. McAuliff, The Effects of Peer Review and Evidence Quality on Judge Evaluations of PsychologicalScience: Are Judges Effective Gatekeepers?, (2000) 85(4)Journal ofApplied Psychology574-586.5 G. Edmond and D. Mercer, 'The Politics of Jury Competence', in B. Martin (ed.), TechnologyandPublicParticipation,(Wollongong, 1999) 85-112.6 JRP Ogloff, J Clough, and J Goodman-Delahunty, The Jury Project: Stage 1A Survey of Australian and New Zealand Judges(Melbourne, 2006).7 I. A. Horowitz and L. ForsterLee, The Effects of Note-Taking and Trial Transcript Access on Mock Jury Decisions in aComplex Civil Trial, (2001) Law and Human Behaviour, 373-391.8In this regard, see M. J. Bourgeois, I.A. Horowitz et al, Nominal and Interactive groups: Effects of pre-instruction anddeliberations and evidence recall in complex trials, (1995) 80 Journal of Applied Psychology,58-679 J. Ogloff , J. Clough and J. Goodman-Delahunty, n. 7 above.10 J. Ogloff , J. Clough and J. Goodman-Delahunty, n. 7 above.11D.E. Shelton, Y.S. Kim, G. Barak, n.11 above.

12 (Anon, 2005)

bad press18 sept 09

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