In defence of juries

The Age newspaper recently published an account of how it felt to serve on a jury during a criminal trial under the pseudonym Mary Thompson.

Ms Thompson's candid piece strikes at the heart of the jury system by confessing that she, and perhaps other jury members, simply heard the charges and assumed the accused was guilty. In her own words:

So from day one, the accused man was pretty much a condemned man. Which is not to say the jury did not take its duties seriously, because mostly it did. But to put it in the nicest possible terms, the jury was made up of an all-too-human group of, let's face it, humans.

Which means, in blunter terms, that it contained a distressing proportion of know-alls, know-nothings, don't-cares and cod psychologists.

Ms Thompson's honesty is laudable, but what she seems to have missed is that juries work precisely because of what she assumes to be their weakness.

There's no escaping the fact that someone has to demine guilt or innocence in criminal matters, and if not Ms Thompson's know-alls, know-nothings, don't-cares and cod psychologists then who?

That question has troubled legal scholars for a very long time. Lord Devlin came up with the best answer to date in 1956 when he described trial by jury as "..more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives…and if it is threatened, we must resist."

Few things can bring a Superior Court Judge to the barricades, but what Devlin saw in juries was the best possible protection against the excesses of power.

This analysis proved more prophetic than dramatic in 1984 when Clive Ponting, a public servant in the British Ministry of Defence, leaked documents showing the government and ministry were lying about events surrounding the sinking of an Argentine warship.

Caught red handed, Ponting admitted his crime and prosecution followed swiftly. With no defence permitted by the draconian statute under which he was charged, Pointing's trial looked like a formality until the jury simply refused to convict an honest man who had stood up against wrong.

Astonishingly, that what Ms Thompson's derides as "a mix of prejudice, ignorance, boredom, narrow-mindedness and downright stupidity" took on the abusive power of the state and won.

Ms Thompson might well marvel at the power vested in juries, but not because it's a power misplaced. Trial by jury is the citizen's veto against abuse of power and corruption, which explains why abolition of juries sits at the top of every budding dictator's to do list.

Of course not all cases are as important as Ponting's and not all juries would have shown the same courage, but that doesn't make everyday juries any less important.

Not convinced? Then consider the US, where trial by jury has already been largely replaced with plea bargaining at the behest of judges.

In one instance two Pennsylvania judges, Mark Ciavarella and Michael Conahan, were charged with accepting over $2 million in kickbacks for steering juveniles to for-profit detention facilities. While the matter is ongoing, the scale of alleged wrong doing could not have arisen unless determination of guilt had been reduced to a prerogative exercised by judges alone.

Shocked? You shouldn't be, US experience shows clearly that an absence of juries in criminal proceedings leads to widespread corruption and injustice. Click here for a general discussion.

Nor is it a case of "only in America". The European experience of trial without jury also shows that an absence of juries leads to corruption. A Danish newspaper has revealed existence of a letter written by a judge in which it's claimed a war crimes tribunal has been compromised by acquittals resulting from political pressure.

That's close to impossible where a jury determines guilt, but much less difficult where power to acquit rests with a judge and the line between investigator and judicial officer is blurred.

Imperfect though they may be, the evidence suggests that juries are the least flawed way of deciding who is and isn't guilty, but why?

The very fact of having to articulate a case so it can be understood by laypeople, who then determine guilt or innocence, is a quality control process that encourages police, prosecutors and judicial officers to examine evidence closely, test arguments and weed out bias.

Ms Thompson seems to have regarded the quality control process she was part of as inefficient, and it certainly is more cost effective to lock people up without the inconvenience of having to prove charges to an impartial group of people. But put yourself in the place of an accused. How long you would be happy to spend in prison for a crime you didn't commit just so the average trial could be run at a lower average cost?

Whenever someone tries to convince you that juries are a problem remember that Ms Thompson's was right. Juries are filled with prejudice, ignorance, boredom, narrow-mindedness and downright stupidity. But so are the alternatives.

Better to live with the flaws of juries than the defects of the alternatives because corrupting a jury is so much harder, and that helps keep everyone honest.