No wonder people try to get out of jury duty

When I was a young and green blogger with only my own small site, one of the posts which got the biggest hits was entitled “Excuses for getting out of jury duty”. It must be a disappointment for Googlers who are looking for convincing excuses - the post actually links to a set of pathetic excuses offered to the New South Wales Juries Commissioner, including this one: “My budgie is sick.” How one can have the cheek to write an excuse like that, I’ll never know, but desperation leads people to do strange things.

I’ve had two family members on juries in the past year - one on an extended matter, one on a matter which lasted a few days. Apparently they’ve made it much more difficult for people to get out of jury duty because they were concerned that the only people who sat on juries were those who had nothing better to do. All I can say as a result of watching my family members’ experience is - no bloody wonder they have such a hard time getting people to sit on juries.

First, the “pay”. In Victoria, jurors get $36 a day for the first six days, and then $72 for any subsequent days. At least, the juror’s employer has to keep paying the difference between the juror’s salary and the pay they get from the Juries Commissioner. The employer is entitled to “dock” the employee’s pay to reflect the pittance they get for serving on the jury. But it’s pretty hard if you’re self-employed - then your income is adversely affected, and there’s no one to keep paying you. In the case of both my family members, serving on a jury actually cost them money, because they incurred costs they would not otherwise have incurred (transport costs, primarily). To my mind, paying people $36 a day is an insult - it suggests that the service is not valued (despite protestations to the contrary).

Second, there’s the great stress that being on a jury puts a non-legally qualified person under. And they can’t talk about the case to anybody. At least I could be supportive of my family members because I have worked in a court before, and I know how stressful it is to be contributing to a decision which will totally change the parties’ lives, particularly when you can’t talk about it to anyone. Often, jury cases involve gory details in one way or another (personal injury, murder, sexual assault and so on). And in a criminal law case, you’re deciding on someone’s liberty - a very heavy burden indeed. I’m glad to see that the Juries Commissioner offers counselling to jurors if they need it.

One thing that really annoys me is the way in which the press reports jury decisions. I wrote a post a year ago about the Thomas Towle case, where Towle was charged with culpable driving and dangerous driving. The jury found Towle not guilty on culpable driving, and there was outcry from the press and the victims’ family. Now, it’s understandable that the victims’ families are upset, and I don’t blame them for expressing that. I’m sure if someone hurt or killed one of my family members, I’d be outraged if that person didn’t get maximum sentence. But then … it is for precisely this reason that we don’t get victims’ families to judge crimes, we get 12 ordinary people off the street.

I think that some media outlets are irresponsible in whipping up the outcry of the families. As I said in commentary on the Towle case, the fact of the matter is that when people are given more information, their levels of punitiveness drop dramatically. Juries are given far more information than a simple media report, and therefore it is more likely that their opinion is carefully considered. The other thing is that not all evidence which is seen by the victims’ families and the press is shown to the jury. Some evidence is held to be inadmissible, generally because it is not reliable enough to base a conviction upon. The jury can only base its conclusions on the evidence it sees. It can actually be quite stressful for a jury member to find out after the event that certain evidence was ruled inadmissible.

Jury members are not allowed to talk about their experience, which is understandable and appropriate; but the problem is that most of the general public is not aware of this (perhaps because of the different position in the US) and may innocently attempt to question a juror without realising what the legal position is. Jurors are in a similar position to judges, in that they can be freely criticised by the press, but unlike judges, they don’t even have the comfort of issuing a judgment to explain their decision. In fact, they can’t say anything to anyone at all. The more I think about it, the more I’m convinced juries should be able to issue a brief statement of reasons which explains their decision:

I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. … [T]he more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict.

I suspect I would be quite a good juror (if I do say so myself) but of course, as a lawyer, I’m not eligible to sit on a jury. I note that the Victorian government is considering proposals to broaden the scope of the jury pool to include lawyers, politicians and judges. I’m not convinced that is a good idea. As I’ve discussed in another earlier post, I think the way in which lawyers are trained to analyse facts is quite unlike other people, and accordingly, it means that they view things in quite a different way to normal members of the human race:

I only ever saw a Court proceeding once as a layperson … It was a Magistrates’ Court session in the UK; we were on a school excursion. Afterwards, a Magistrate gave us various case examples and asked us to guess [what] the outcomes were. In every single case, our class came to the opposite conclusion to the actual decision. We would have locked up the lady who seduced the boy scouts and we would have found no negligence in the case of a young driver whose drunken passenger stuck his head out of the window and died as a result. I came out thinking that the law was terribly unjust and that I would never ever be a lawyer. Famous last thoughts.

I had forgotten about that trip to the Magistrates’ Court until I began to write this post. It’s salutary to remember how strange the law can seem to other non-lawyers. And that sometimes, the legal constructs we put up to guide decisions are against the instinctive reactions of ordinary people.

Rather than broadening the scope of the jury pool to encompass lawyers, I think the Victorian government should compensate jurors more adequately for the creditable and difficult job they undertake. Then people might not try to escape being a juror by using sick budgies as an excuse. And I think there should be some understanding and acknowledgement by the media and the general public of the valuable public service that jurors provide.