The recent trial and acquittal of George Zimmerman for the murder of Trayvon Martin has raised the controversial issue of jury selection in the United States. The six-member jury was entirely female, and, unlike Trayvon, none of the jurors was African American. Critics argue the jury did not adequately represent the community, denying Trayvon justice.
The selection of juries in Victoria is a far less involved process than in the United States, but there is still debate here about the ability of parties to influence the composition of juries. For example, statistics for 2012-13 show that in criminal trials, women are challenged off juries at twice the rate of men.
The Victorian Law Reform Commission (‘the Commission’) is currently considering issues related to the selection of juries in Victoria. In Victoria, juries are used to try serious criminal offences and are also used in some civil trials.
The Commission Review
The Commission has been asked to consider three aspects of the selection process:
• peremptory challenges
• whether jurors should be identified by name or number in court
• the use of additional jurors for long trials.
Peremptory challenges are challenges made by a party to exclude a potential juror from the jury. The party does not have to provide a reason for the challenge.
In criminal trials, an accused person may make up to six peremptory challenges during the selection of the 12 jurors for the trial. The prosecution has a similar challenge power known as the ‘right to stand aside’, but this is rarely used.
In civil trials, each party may peremptorily challenge three jurors during the selection of a jury of six.
Peremptory challenges are available in all Australian states and territories, but have been abolished in the United Kingdom.
One of the major criticisms of peremptory challenges is that they are based on prejudice, stereotypes and impressions, rather than fact. For example, an accused person in a sex offence trial may challenge young women, because they assume young women will not be objective as jurors.
Defence lawyers, however, argue that peremptory challenges are an essential way of ensuring that people accused of serious crimes receive a fair trial.
Whether or not peremptory challenges are exercised, the parties in criminal and civil trials have an unlimited right to challenge for cause. One of the matters the Commission is considering is the impact of challenge for cause upon the existence and extent of peremptory challenges.
Whether jurors should be identified by name or number in court
In a Supreme Court murder trial in August 2013, a jury was discharged after expressing concerns to the judge that they had been identified by name in court.Until 1990, jurors in Victoria were always identified by name. Following concerns about the safety and protection of jurors, Victoria amended its law in 1990 and further in 2006 to allow jurors to be identified by name or number. This decision is now at the discretion of the trial judge.
A survey by the Juries Commissioner's Office shows that jurors strongly prefer to be identified by number only. In contrast, many defence lawyers in criminal trials prefer to know a juror’s name, as it may provide information relevant to a challenge.
Additional jurors for long trials
For long trials, additional jurors may be empanelled to provide a 'buffer' in case unforeseen circumstances such as illness force jurors to withdraw from the trial.
However, if more than 12 jurors (in criminal matters) or six jurors (in civil matters) remain on the jury when the jury retires to consider its verdict, a ballot must be held to reduce the jury. This process often causes significant distress to jurors excluded in this way. It can also disrupt the decision-making dynamic of the remaining jurors.
The Commission wants to hear from you
Lawyers have a key role in jury empanelment. The Commission wants to hear your views and experiences to help formulate its recommendations on the issues in the terms of reference.
The Commission has released a consultation paper, is holding consultations with key stakeholders in October and November, and is interested in receiving written submissions, which are due on 15 November 2013.
The Commission is to report its findings and recommendations by 31 May 2014.
For further information about the jury empanelment review, and for details about how to make a submission, please visit: http://www.lawreform.vic.gov.au/