Jury room saboteurs

Are bored or distracted jurors and would-be Sherlock Holmeses undermining our system of justice?

THE fate of an accused man hung in the balance. Yet at a critical moment of the trial, nothing said by the defence, the prosecution or even the judge seemed to register with one particular juror. When the reason became clear, it was as frightening as it was funny: he had been secretly watching Little Britain on a portable DVD player.

This take from an English courtroom is just one incident in a colourful catalogue of jurors misbehaving: from solving crosswords during evidence to unauthorised visits to crime scenes, sending bottles of champagne to the prosecution and jury room brawls interrupting deliberations.

In one Sydney trial last June, a jury was discharged after up to four of its members were found solving sudoku puzzles instead of weighing evidence. Another NSW trial had to be aborted and started from scratch last month after claims that a juror rang a radio journalist to complain about a fellow juror bullying them to visit the crime scene.

  NO MORE EXCUSES IT has been said that the only people who serve on juries are those not clever enough to find an excuse. But in NSW, at least, finding ways of getting out of jury duty is expected to become more difficult following this year's NSW Law Reform Commission report that recommended sweeping away exemptions for professionals such as doctors and lawyers, among others. Journalists, who were once confident they would never be empanelled, are discovering there is no escape. Resistance is futile, is the message from court officials.
      Courts are already being tougher on what they regard as feeble excuses.
      Someone called to jury service in Sydney, for example, would have to show that they do not speak or understand English, unless they happen to be a member of parliament or too sick to stand.
      Apart from fulfilling a civic duty, serving on a jury has few rewards. Payment of $86 to $116 a day is a bare compensation, especially if a juror is a small-business person, and many trials last weeks, if not months, with a direct effect on family life.

One Adelaide juror was recently seen on security footage talking to the defendant. This enraged the judge who, after declaring a mistrial, said he hoped the juror appreciated the seriousness of his actions. "Not only has thousands of dollars of community money gone into the conduct of this trial, your time has been imposed upon for more than two weeks ... a complete waste of your time," he thundered from the bench.

Given the legislative veil of secrecy that obscures the identity and workings of juries, little is known about what exactly goes on within the wood-panelled antechambers of the nation's courtrooms. But the recent conduct of some good men and women with the task of deciding between guilt and innocence has led to renewed questioning of the jury process.

In an attempt to prevent jurors from carrying out their own investigations, the Victorian Government has made access to the internet illegal during a trial. As of last month, jurors face fines of $13,000 if they are caught doing online research.

State Attorney-General Rob Hulls told parliament the new legislation followed recent successful appeals of criminal trials that had "emphasised the damage caused by undirected juror investigations". He says such jury behaviour not only wreaks havoc on the viability of public prosecutions but also on "the peace of mind of victims of crime".

Limiting a juror's use of the internet is a logical extension of the standard practice of judges telling juries to avoid case reports in newspapers and other media. A more difficult question is why some jurors are going against the direct instructions of judges and placing multimillion-dollar trials in jeopardy.

Former judges, lawyers and academics say the recent instances of alleged misconduct by jurors stem from several causes: boredom, people wanting to play Sherlock Holmes, juries believing they have a right to gather their own evidence, personality clashes among jurors and what some lawyers dub the CSI effect.

"In one trial I was doing, I had a juror get up and say, 'What's been done about the GSR (gunshot residue),"' Melbourne criminal barrister Philip Dunn QC says. "Where did this stuff come from? They are all watching CSI four nights a week. The jury has moved into the 21st century and embraced television shows and technology like CSI, but the courts are stuck in a 19th-century structure."

Dunn believes boredom also plays a part in jurors doing puzzles instead of paying attention to court proceedings.

"Both the prosecution and defence can be exceptionally tedious and have no regard for the jury. If judges and barristers don't treat them with respect, they are going to get bored," he says.

Former Victorian Supreme Court judge and law professor George Hampel QC agrees, saying it is crucial to keep the jury interested to stop any further misconduct.

"It's a critical thing," he says. "We are unrealistic if we expect people to listen every day for six months. The attention span of university students is about 40 minutes. Why should we expect juries to be any better?"

Hampel believes it is up to prosecutors and defence barristers to present their cases in a crisper and more concise form so the jury does not get bored. He thinks this could be done by the better instruction of barristers and time limits on lawyers' arguments.

"Time limits are something we have to think about," he says. "It would get the parties involved to focus their mind on the main issues instead of protracting it."

Courtrooms are often thought of as a theatre, featuring dramatic performances by prosecutors and defence lawyers, with examples of human nature at its worst on display. It's easy to forget that the real drama often takes place behind the closed doors of the jury room, where 12 complete strangers are forced to spend weeks, sometimes months, together, deliberating on the fate of the accused. And this can cause problems.

A person who once served as a juror in a serious criminal trial, speaking to The Australian anonymously, says the dynamics of the jury room were what dismayed her most about the trial process. "It seemed like there was a power struggle (among) the jury," she says. "Some people were more interested in grandstanding than just looking at the evidence." She also thought many of her fellow jurors didn't have a clear understanding of a jury's role in a criminal trial.

"I just always felt like I considered it important to be judged by my peers, but it (being a juror) gave people of average intelligence a lot of power and that went to some of their heads.

"It was almost that they were so caught up with the role of playing juror rather than just looking at the evidence."

University of NSW associate professor Jane Goodman-Delahunty has spent the past 20 years researching jury behaviour in Australia and the US. She says much of the research -- which in Australia is based primarily on mock jury work because of legal restrictions -- suggests most juries are conscientious and take their duties seriously. However, there is also evidence that sometimes jury dynamics can be very difficult.

What makes the complex and often incredibly stressful task taken on by jurors even harder is that they are forbidden to talk about the case to their loved ones and can discuss it only with their fellow jurors.

"They are without access to their greatest support system, their family and friends. That isolation can be difficult for some more than others," Goodman-Delahunty says.

She also believes jurors should be given more time for the crucial task of electing a foreperson, given that forepersons often can exercise some influence over other jurors and the verdict. "Sometimes the most assertive and most aggressive (jurors) may put themselves up to be the foreman or forewoman, and they may not be the best person for the task," she says.

This potential for bullying among juries in decision-making was the subject of a study in New Zealand and the findings led to significant changes in the law. Researchers found that several jurors reported being bullied to conform to the majority view, and this led to the introduction of majority verdicts.

"There were some concern about pressure to go along with other jurors ... and people felt they had to go along with the jury against their beliefs," says University of Queensland psychology lecturer Blake McKimmie of the NZ study. "The law was introduced to allow people to basically have a differing view from the rest of the jury without feeling the pressure to conform."

According to criminal barrister Colin Lovett QC, given the thousands of people who sit on juries each year, it is inevitable that some of them are domineering.

Almost as common, he says, are those he calls deerstalkers: jurors who decide to go and investigate the case themselves.

"I think it's an understandable human response, particularly these days (when) they are watching many (crime) television shows, that they want to be part of the investigatory process," he says. "The odd juror is going to want to put on the deerstalker and become Sherlock Holmes."

Goodman-Delahunty believes such behaviour should be classed as a misunderstanding rather than misconduct.

"We point out to jurors that they are supposed to be the finder of facts, but they are also not allowed to go out and find the facts or do their own investigation ... they have to (base their decision) on the limited evidence presented (to) of them. So the jurors may get confused about their role."

Goodman-Delahunty says this problem could be resolved by juries receiving clearer guidance from judges, including more specific instructions about how they should go about their task, and even the process of deliberating. "They also may need a little more settling-in time to absorb all the dos and don'ts of the jury process," she says.

Despite the concerns raised by instances of strange -- and costly -- behaviour on the part of jurors, McKimmie stresses that, according to research, most juries are conscientious, take their roles seriously and determine the case before them on the evidence.

"The biggest determinant of jury verdicts is the evidence, so that is a good thing because it shows they are paying attention." he says.

"Given the number of jury trials that happen in Australia, it (juror misconduct) is pretty infrequent."

All the lawyers, former judges and experts The Australian spoke to agree that the jury system is the best option for a fair criminal justice system, notwithstanding the memorable moments that juries occasionally provide.

"The strength and the weakness of the jury system is that they are ordinary people," Dunn says.

"I remember a case in Lismore (in northern NSW): it was a hot and humid day when the jury was deliberating. And then we heard a fight broke out in the jury room and all you could hear was screaming and crashing.

"The judge later sent his tipstaff to find out what happened and (a juror) opened the door an inch and said, 'We are fine', and five minutes later they had a verdict."