Werner's Blog — Opinion, Analysis, Commentary
Reforming jury duty in Canada

Have you ever been summoned to jury duty? If yes, did you eagerly embrace your civic obligation or did you demur? Did you find one of the many valid reasons to have yourself excused from jury duty? And did you wonder who ends up serving on juries—the supposed impartial panel of fellow citizens that reflect the composition of society overall? Or are you perhaps eagerly waiting for your chance to render a guilty or not-guilty verdict at a celebrity murder trial?

In British Columbia, criminal trials involve twelve jurors and civil trial eight jurors. If you are called for jury duty, it does not mean that you will indeed get selected. When you show up for a jury panel, the clerk of the court begins the selection process by drawing names from a box at random until 15 to 20 people have been called forward. Both defence and Crown counsel have the right to challenge a prospective juror, for whatever reason they like. During this "voir dire", they do not need to explain their reasons why they accept or reject a prospective juror. Lawyers have become quite skilled at anticipating biases that would work in their favour—a method known as "scientific jury selection" that often involve sociodemographic characteristics such as gender, race, marital status, age, income, and profession. If you appear to be too independent-minded, you may not get selected, but if you appear gullible, you may be just right. No wonder that researchers have found numerous biases in jury selection and verdicts that they deliver.

The case for jury duty

The notion that members of the community play a central role in the administration of justice has a centuries-long history that crosses cultures. The case for jury duty hinges on the notion that judgement by a "group of peers" is an insurance against government excesses and tyranny, or as the US Supreme Court maintains, a guard against "the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Jury duty is also closely tied to capital crimes and capital punishment, where appeals come too late when a sentence has been carried out. The importance of juries lies in their perceived impartiality and independence. Random selection of jurors is meant to safeguard impartiality, while the shroud of secrecy of jury deliberations is meant to safeguard independence. Because jurors cannot be punished or otherwise be held legally responsible for their decisions, juries lack accountability. This lack of accountability is balanced by the jury's impartiality and independence—elements that help get the verdict right on first try. The size of the jury, and requirements for unanimous verdicts, also set the bar high for convictions. The larger the jury, the more likely it is to be free of outside influences. However, an impartial jury is meant to be composed of impartial jurors, and thus jury selection matters.

Judgement by peers also raises the question about who is considered "peer" to a person. Today, peers equates with citizens, but originally it meant nobody of an inferior status (e.g., aristocracy could judge lower classes but not vice versa). The complications of what would be implied by a "group of peers" has led to the random selection of citizens. Unfortunately, selection bias has krept into this process.

Are juries better than judges?

Whether juries produce "better outcomes" than judges is an empirical question. What is the metric for "better outcome"? How does one measure whether verdicts, by judge or jury, are just? How do we know whether a verdict is a type-I error (an innocent person being convicted) or a type-II error (a guilty person being acquitted)? And in many instances, guilt is a relative concept and difficult to measure. Perhaps we need to rely instead of perception of fairnesss. Transparency International surveys corruption around the world, and they have also investigated corruption in judicial systems. Are countries with juries less corruptible than those without? The World Justice Project produces a Rule of Law Index for countries. Do countries with juries have a higher rule-of-law index? I do not have answers to these questions, but the bottom line is that perception matters. If citizens are satisified that their judicial system is fair, is jury duty an integral element of this perception of fairness?

Are juries really impartial?

The concept of impartiality is paramount for juries. Every living person has beliefs, values, and prejudices. Some more than others. Nobody starts out with a clean slate of unbiasedness, the tabula rasa that is envisioned. Jurors are routinely dismissed if they are "too informed" about the background of a case. The quest for impartiality introduces selection bias: the "unbiased" juror is not necessarily the most capable "well-informed" juror. Elimination of jurors through pre-trial challenges does not necessarily remove all biased jurors. Both sides try to eliminate jurors they think are biased toward the opposing side. The quest is for the most favourably-biased jury, rather than the most impartial jury. Impartiality may be an illusion. Perhaps other qualities and traits should be emphasized more, such as intelligence, inquisitiveness, and a healthy degree of skepticism—qualities and traits that turn jurors into better "fact finders".

Jury duty hardship

For full-time employees, jury duty often amounts to hardship. Even though employers are required by law to allow employees to return to their jobs after the completion of jury duty, jury duty can often interfere seriously with work plans where another employee cannot fill the gap left by the employee on jury duty. For that reason, certain professions are exempted from jury duty: typically, medical doctors, fire fighters, and other emergency responders. Most jurisdictions provide exemptions for "extreme hardship", which is often not well defined. For example, is separating a nursing mother from her infant "extreme hardship"? I would say so. And what about finding childcare or driving kids to and from school? There can be many good reasons to ask for exemptions from jury duty. Fortunately, the courts in Canada appear to be mostly quite accommodating.

Hardship can also arise through the nature of the trial, or the length of the trial. There are some criminal trials that are psychologically demanding. Not only may one have to listen to accounts of capital crimes, but these proceedings may stretch over several weeks or even months in some high-profile cases. Jurors cannot discuss the proceedings with outsiders, not even their closest family members. Jury duty can be stressful, as Andrew Guthrie Ferguson reported in his article The Trauma of Jury Duty. In the United States, surveys indicate that jurors may suffer from physical ailments that include headaches, nightmares, and even symptoms similar to post-traumatic stress disorder (PTSD). While many of us may be able to sit through testimony as if it was just another episode of Law and Order, listening to the gruesome forensic details of some capital cases may be too much for many others.

Jury duty can also create financial hardship for those who simply cannot afford to lose wages. Compensation for jury duty is abysmally low. For example, in British Columbia jurors are paid $20 per day for the first 10 days, which rises to $60/day for days 11-49 and to $100/day for day 50 and up. Jurors are even responsible for all their meals; only tea and coffee are provided free. For prospective jurors that receive hourly wages, jury duty is expensive. Self-employed people may also suffer. Being unable to complete contractual work on time, or being unable to take on a new contract in a timely fashion, can amount to serious problems.

Are juries representative?

There seem to be few statistics available in Canada about who sits on juries. Thus, we don't know if jurors are chosen in a way that reflects the population at large. What can be said with some degree of certainty is that certain groups are underrepresented. A 2013 report revealed that aboriginal people are underrepresented on juries in Ontario. We also know that absentee rates are in the twenty percent level in many jurisdictions. A 2013 CBC report showed that provinces do not keep detailed records of absenteeism. Fines for no-shows are rare.

Even if juries are not truly representative and over-emphasize certain population group, perhaps it may suffice if the selection does not discriminate against anyone. Non-discrimination may be a sufficient substitute for representativeness if jurors are chosen from an otherwise representative juror pool. If, for example, voters lists are used for jury selection, certain population groups are more likely to register to exercise their voting rights than other groups. If voter registration correlates with demographic factors, juries will carry the same correlation.

Some people have argued that diversity shoud be an element in jury selection. Consider the case where by statistical chance a jury is all-male or all-female. It is not likely but, statistically speaking, not impossible. But even a jury that is three-quarters male or three-quaters female may rise concerns about inequity. But other than gender, should diversity matter? Whatever the rationale for greater diversity, using religous, cultural, or ethnic criteria would likely introduce new biases rather than reduce biases.

And what if a juror is a celebrity?

In August 2015, presidential candidate Donald Trump was called up for jury duty. Unsurprisingly, he was not selected. He was quoted as saying "People are suprised I agreed to do this." As the New York Times reported at the time: "He had previously failed to respond to at least five jury summons, going back to 2006. He never received them, his lawyer said, because they went to the wrong address." It is interesting to note that Mr. Trump thought that he could agree to do the jury, implying that he could refuse it if he didn't agree with it. Naturally, being a presidential candidate on the campaign trail would have been a perfectly good reason for being excused from jury duty. Why Mr Trump chose to ignore the previous summons, we can only speculate. Surely, misdirected mail is a lame excuse. And which judge would want to have a celebrity on a jury, diverting attention and creating logistical problems?

What happens when juries get it wrong?

Juries are independent; they cannot be punished for reaching the "wrong" verdict. Juries have the power to acquit a defendant even though the jury believes the defendant to be guilty of a charge—this is known as jury nullification. Countries in which a defendant cannot be retried after an acquittal (due to double jeopardy), a guilty defendant may indeed walk free. A jury could also choose to convict a defendant despite serious doubts about the defendant's guilt. Personal biases can lead juries astray and lead to "false positive" and "false negative" verdicts. Naturally, judges may hold biases as well, but a defendant's right to appeal a verdict or the Crown's right to retry an acquitted defenant under certain circumstances provide a reasonable safety valve. In Canada, the Crown can appeal an acquittal when there on errors of law.

Are juries competent?

The competence of juries comes into play when juries decide cases of high legal complexity—not the usual criminal "whodunnit" but commercial cases with complex contractual clauses and international entanglements. Intellectual property rights is a good case in point. Juries often side with domestic companies over foreign companies. Absent a deep understanding of the legal merits of a case, juries substitute their prejudices: patriotism is one that abounds. If a case can be made for juries in criminal cases, that case is rather weak for civil cases.

Are juries effective?

Even when juries are competent, they may not always be effective. One problem with juries is that they are less predictable than judges who have a track record of rulings. Juries are not often used in civil trials. However, when they are used, there seems to be a high proportion of insurance cases. Perhaps the insurance companies who insist on trial by jury have figured out that the higher uncertainty and unpredictability of a jury's verdict (compared to that of a professional judge) makes it more likely that the other party will offer to settle.

Are there alternatives to jury trials?

One possibility is to abolish juries completely and leave the judging to jduges entirely. However, a good argument can be made for a hybrid solution where "ordinary citizens" take part in judicial proceedings and advise professional judges. A look at other countries shows that there are compromises along those lines. Several European countries (Germany among them) use hybrid systems that employ both professional and lay judges.

‘Jury duty is fraught with problems. Replacing most juries with lay judges is worth considering.’

There is a perhaps a better way to involve citizens in trials and judicial proceedings than impanelling jurors into a jury. In Germany, for example, courts make use of lay judges ("Schöffen" in German). A lay judge is an ordinary citizen who can apply to her municipality to have her name added to the nomination list. The city council must approve a nomination with a two-thirds majority. The nomination list is made public and other citizens have the right to challenge a nomination. Challenges are reviewed by a nine-person judicial panel, and the panel appoints lay judges with a two-thirds majority. Once appointed, a lay judge holds office for five years, and there is a two-term limit. Lay judges essentially hold the same rights as professional judges and hold equal weight when voting. A professional judge typically sits with two lay judges, and thus the lay judges can in principle vote down the professional judge.

The voluntary nature of lay judges eliminates many of the hardship issues with jurors. Of course, selection is far from random. These volunteers are often well-established in their communities, what one may call "community elders" in many instances. The process of vetting lay judges through municipal bodies ensure that a notion of representativeness is combined with a notion of diversity. The main objection against the use of lay judges is their potential deference to the professional judge—lay judges may be too passive to submit too readily to the greater expertise of the professional judge. The selection process therefore needs to place weight on a certain degree of "indpendent-mindedness", a stronger personality, inquisitiveness, and intellectual astuteneess. These are traits that lack entirely in the jury selection process that only looks for impartiality.

There is another reason why lay judges may be particulary suitable for the Canadian context. As metioned earlier, aboriginal people are underrepresented on juries, while at the same time they are more likely to be victims of crime. According to Brzozowski, Taylor-Butts and Johnson (2006), aboriginal people were three times more likely to have been victimized compared to non-aboriginal people. Recruiting indigenous lay judges could help achieve better outcomes at criminal trials, as well as improve confidence in the fairness of our justice system. Our new federal justice minister, Jody Wilson-Raybould, may appreciate this sentiment.

So what?

You may argue that the jury system ain't broken (at least not terribly), so why fix it? I am arguing for cautious reform and experimentation. While I feel that the current version of jury duty leaves much to be desired, the historic roots of jury duty are strong. The best place to start reforming jury duty is with civil trials, where the use of juries appears to be rather inefficent. I would not stop there, however. In my view, jury duty in criminal trials seems unlikely to improve the quality of outcomes. Instead, trial by jury can introduce problems with individual jurors that lead to mistrials. This is much less likely when professional judges and lay judges handle a trial. In Canada, verdicts without juries cannot lead to irreversible outcomes, unlike the United States. Indeed, all verdicts should always be subject to the possibility of judicial review, and the benefits of due process. Perhaps the time has come to rethink jury duty in Canada. Jury duty is fraught with problems. Replacing most juries with lay judges is worth considering.

But even if governments do not show appetite for jury reform, we can do better. In order to understand jury duty better, governments need to start collecting information and statistics on jurors—who was called up and who was accepted or rejected, and socio-demographic information including gender, age, occupation, and education level. We need to have solid data to understand which biases are present in juror selection, and how trial outcomes differ when juries are involved. The latter will be a difficult task statistically: when a jury is involved, we do not see the counterfactual outcome when no jury is involved. However, some outcomes can be observed readily. For example, do jury trials end in mistrials more often than trials without juries? Many more such questions can be studied and analyzed. To do so, we need better data.

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