A targeted inquiry into the operation of the jury system

18.5 As noted above, the scope of the present Inquiry does not permit a thorough analysis of judicial comments, warnings and directions to juries.^[13] However, in light of the issues raised in this chapter, it is evident that a comprehensive analysis of the common law and the various pieces of Commonwealth, state and territory legislation^[14] relating to judicial directions is required. Submissions and consultations support the need for a review of judicial directions and of the operation of the jury system generally.^[15]

18.6 In the adversarial legal system, trial by jury is often identified as a touchstone of the democratic administration of justice, providing a check against arbitrary or oppressive exercise of power by the State.^[16] However, alongside notions of the jury as a ‘protector of liberty’, there is an uneasy ambivalence within the legal profession regarding the competence and comprehension of lay jurors. The concerns commonly expressed are exemplified in the following comment by a judicial officer of the South Australian Court of Criminal Appeal:

Each judge has his own style … but, whatever the style I wonder how much of a summing up the jury ever understands? For how long is the average juror able to concentrate on what the Judge is saying? Not much and not for long, I fear. Judges may overlook that jurors are laymen who before their jury duty know little, if anything of the Courts system and even less of the law which we administer in the Courts. Yet they are expected to grasp, at one hearing, the most complex legal concepts! I’ll bet not one juror in a hundred does grasp them!^[17]

18.7 The tension between the expectations placed upon juries—impartially and accurately to evaluate the evidence before them, taking into consideration only those factors which the law permits—and the anxiety about their abilities to perform their task is evident in the extensive body of directions perceived to be necessary in order for the jury to undertake adequately its fact-finding task.^[18] It was noted by the ALRC in the Interim Report of the previous Evidence inquiry (ALRC 26) that some of the directions considered necessary to prevent juries from misusing or overestimating the weight of evidence ‘require a mental skill and rationality … that is very high indeed’.^[19] It has been said that ‘jurors are rarely brilliant and rarely stupid, but they are treated as both at once’.^[20]

18.8 While doubts are often expressed about whether juries understand and heed judicial directions, the law operates on the assumption that they do.^[21] This is illustrated, for example, by the assumption that a warning about the unreliability of evidence can operate to reduce the danger that the jury will misuse or overestimate the probative value of the evidence, thereby reducing any unfairly prejudicial effect it might have.^[22] It is also illustrated by the stringency of the warning requirements and the readiness of appellate courts to find a miscarriage of justice arising from a single misdirection.^[23] Given that a significant proportion of the content of evidentiary and procedural law is premised on assumptions about the abilities and behaviour of juries,^[24] it is crucial that these assumptions be evaluated critically in light of empirical research.^[25]

18.9 Due to legal restrictions protecting the secrecy of jury deliberations and limiting disclosures by jurors, the scope of empirical research on juries has been significantly limited.^[26] Nonetheless, there is a considerable body of research, emanating predominately from the United States,^[27] examining the psychology of jury decision-making. This research has, for the most part, been based on the observation of shadow or mock juries; the questioning of other participants involved in the trial;^[28] or the self-completed questionnaires of actual jurors.^[29] The limitations imposed by such methodologies have been acknowledged.^[30] However, the findings of such research are still instructive. Primarily, they indicate a need to adapt trial processes to ‘fit the capacities of the integral players’^[31] and to reassess the evidentiary and procedural laws which are premised on unrealistically high or low assessments of juror competence.^[32]

18.10 Research findings show that, although most jurors are conscientious in their attempts to do so, they have difficulties understanding or following particular types of judicial directions.^[33] However, this does not amount to a conclusion of juror incompetence. Studies have found that juror comprehension varies depending on the subject matter of the direction.^[34] Directions regarding subject matter which is new, difficult or counter-intuitive to jurors’ commonsense are less likely to be effective than directions regarding subject matter with which jurors are generally familiar.^[35]

18.11 Unsurprisingly, juror comprehension has also been found to vary depending on the manner in which the directions are presented. Directions which use technical language, complex grammatical structures and abstract concepts without context are less likely to be understood.^[36] Studies have therefore concluded that juror comprehension can be improved by revising the content, form and timing of the directions in accordance with psychological and psycho-linguistic research.^[37]

18.12 Another significant finding is that the ability of jurors to follow directions varies depending on the type of direction given. A number of studies have shown that directions to disregard inadmissible evidence or to limit the use of evidence are less likely to be effective than other types of directions, and can in fact be counter-productive.^[38] A number of competing psychological theories have been used to explain the failure of these types of directions.^[39] Although it has been conceded that further work needs to be done in order to locate the ‘true theoretical source of limiting instruction failures’, some researchers contend that social psychological research can assist to find ways in which to increase the effectiveness of these instructions.^[40]

18.13 While research carried out in overseas jurisdictions is instructive, its applicability to the Australian context is likely to be limited by jurisdictional differences in legal culture and procedure.^[41] The findings of jury research will vary according to such factors as: the composition of jury panels;^[42] the average length of the charge to the jury;^[43] and the extent to which judges make comments in relation to the evidence.^[44] These differences must be taken into account in assessing the utility of overseas research. However, they may also serve as a useful comparator in assessing the effectiveness of different procedures adopted.^[45]

18.14 A number of significant jury research projects have been conducted in Australia, however there has been minimal direct investigation of juror opinion.^[46] The most recent and relevant empirical research on the comprehension of jurors was conducted by the New Zealand Law Commission (NZLC) as part of a review of criminal procedure.^[47] The research included post-trial interviews with jurors about their understanding of the issues in the case and about the collective decision-making process. The research confirmed the finding that jurors have difficulties understanding and following judicial directions. The NZLC concluded that this finding did not indicate that juries are inherently incompetent in performing the task assigned to them, but that the present system does not give juries the tools to enable them to perform their job effectively.^[48]

18.15 More recently, the Australian Institute of Judicial Administration (AIJA) has established an advisory committee which is currently examining jurisdictional variations in the approach taken by trial judges to instructing juries, and is attempting to identify a ‘best practice’ in order to maximise the accuracy, clarity and comprehensibility of jury instructions. This project will focus largely on practical issues, such as the utility of model directions and aids such as flow charts.^[49]

18.16 It is generally agreed that there needs to be more empirical research in Australia into jurors’ understanding of and reaction to judicial directions, and other aspects of the trial process.^[50] Justice Eames has remarked that ‘in the absence of such research, it is a field in which anecdote, self-assurance and self-delusion abound within the ranks of the legal profession and the judiciary’.^[51] One commentator has suggested that, in addition to interviewing jurors, jury deliberations should be made more transparent and jurors should be required to give reasons for their decisions.^[52]

Jury decision-making should not be regarded as sacrosanct, beyond critical examination. Empirical research, and our understanding of jury deliberations in general, remains hindered by secrecy requirements imposed upon common law jurors in Australia and elsewhere. Meaningful jury reform requires the piercing of this veil of secrecy, aided by greater efforts by judges to use existing powers to help juries achieve verdicts in a fair manner and according to the law.^[53]

18.17 The Commissions are of the view that, in order to effect meaningful law reform in this area, a more fundamental and comprehensive investigation of the operation of the jury system is required. This includes a review of issues such as eligibility and empanelment; juror attitudes towards jury service; juror perception of the courtroom and jury-room environment; judicial approaches to communication; jurors’ understanding of judicial directions; and the laws enforcing juror secrecy. Reform of the relevant laws, including those of evidence and procedure, should be considered in light of psychological and empirical research relating to jury practices. Any future inquiry should address the need to increase the quality and consistency of trial practice across the various Australian jurisdictions. A joint inquiry involving law reform bodies from a number of jurisdictions, as has been the case in the present Inquiry, would facilitate such an outcome.