Abstract
In a high-profile trial, jury verdicts, jury questions, and the conduct of a so-called ‘detective juror’, may ignite public discussion and criticism of the role of juries in criminal trials. If, in the course of this discussion, a juror or jury is criticised, the voice of jurors is rarely heard in response. Through the examination of several high-profile cases, this article examines the role and limitations of a judge, Juries Commissioner, Attorney-General and academics in promoting informed public debate about jury trials. This article then discusses how a Juries Advisory Council could improve public discourse about juries and juror misconduct.
The 2022 trial in the Australian Capital Territory of Bruce Lehrmann, charged with sexual intercourse without consent, raised important issues about trial by jury. The trial judge dismissed the jury, and the trial was aborted, because one juror improperly brought information into the jury room about the incidence of false complaints in sexual offence cases. This resulted in extensive media discussion and commentary about why jurors ‘research’ a case, what judges can do to try and prevent jurors researching a case, and whether the only solution is to abolish trial by jury. These are not new questions. However, the discussion and commentary revealed that we need better ways of responding to these questions in public discourse. Because of limitations with existing offices and bodies speaking for juries or presenting their perspective, I propose that a Juries Advisory Council also undertake this role. I then outline some examples of the ways in which this body could improve public discussion of these critical issues.
Criticising jurors and juries
Debate about the value of juries in criminal trials is often based on strongly held policy or philosophical views rather than evidence about the effectiveness of juries as decision-makers. 1 For example, trial by jury has been described as one of the most ‘venerated and venerable’ 2 institutions of the common law world: it has been described as ‘the glory of English law’ 3 and ‘fundamental to the freedom that is so essential to our way of life’. 4 However, it also has strident critics who argue that jurors are all too often prejudiced, 5 ignorant and inexperienced at their task. 6 Despite the overstated virtues and deficiencies of the jury system, it plays an important role in common law criminal justice systems and enjoys considerable public support. 7
Criticisms of juries often arise following miscarriages of justice or highly controversial cases. 8 Only a small percentage of jury trials are controversial and/or involve a miscarriage of justice, and where a juror or jury is blamed for a problem in the trial. Publicity about these cases can shape public debate about juries but the discussion is often based on limited information. Strong confidentiality protections apply to jury deliberations. The public policy rationale for preserving the secrecy of jury deliberations is to promote full and frank deliberations, to protect jurors (and former jurors) from pressure and harassment, and to promote public confidence in the integrity of the jury’s verdict and the justice system. 9 These protections mean that little information becomes public about what jurors know, how they reason, and whether they fully understand their task and perform it correctly.
Trial by jury and what jurors do are not above criticism. Reasonable views may differ about trial by jury. Jurors may intentionally or unintentionally compromise the trial process and some jurors have been convicted of offences for their misconduct. 10 Public criticism and discussion of problems that arise in jury trials can helpfully highlight problems and lead to better practices. What is often missing from debates is information that enables an informed discussion about why problems arise and what can be done to address these problems. Research over the last 50 years provides useful information about these matters. Before turning to how that discussion could be improved, it is helpful to consider some recent examples of public criticism about juries.
As discussed above, in the Lehrmann trial, one juror improperly brought information into the jury room about the incidence of false complaints in sexual offence cases. The trial judge said that on ‘at least 17 occasions, and possibly more’ she had given the jury ‘warnings or directions as to the prohibition on undertaking any research or inquiries of their own’. 11 The judge made clear that in her view the juror was at fault and that she had done all that she could to prevent the juror’s conduct. This case led to public discussion about whether juror misconduct can be prevented 12 and if juries are appropriate in ‘a 21st century hyper-connected world’. 13
In 2019 and 2020, the conviction of Cardinal Pell and subsequent overturning of that conviction resulted in significant public criticisms of juries, with commentators saying, among other things, that:
Sarre noted one of the consequences of the High Court setting aside the jury’s verdict was that it may result in ‘a loss of public confidence in the jury system ... [and] in the justice system itself’. 17
This kind of public commentary is not limited to Australia. In the United Kingdom (UK) in 2013, Vicky Pryce was charged with attempting to pervert the course of justice for having accepted driving licence penalty points incurred by her husband. Pryce was a senior public servant and academic, her husband was a member of parliament and had been a cabinet minister. In her highly publicised trial, the jury asked the judge 10 questions. Having discharged the jury for failing to reach a verdict, the judge said that the jury’s questions revealed ‘absolutely fundamental deficits in understanding’ and that ‘questions of this very basic kind demonstrat[e] that at least some jurors haven’t grasped it’. 18
With these kinds of criticisms and public commentary, who can present the perspective of jurors and the jury system to better inform public debates?
Why don’t jurors speak for themselves?
Jurors do not have an official and ongoing representative, or a ‘juror’s union’, 19 to speak about how the trial system is working or to defend jurors or juries from unwarranted or uninformed criticism. The ‘jurors’ perspective so often gets lost, largely because jurors are not in a position to advocate for themselves’. 20 Jury service is transient – jurors come together to determine a case and then depart the courtroom. The jury’s foreperson only speaks for the jury in the trial for limited purposes. Jurors do not usually have any legal training and will not usually have had experience as a juror. 21
Further, jurors may be uncertain about how the law applies to what they can say in the media 22 given offences apply to the disclosure of information from a jury’s deliberations. 23 Many jurisdictions have laws that prohibit soliciting or obtaining information about jury deliberations and prohibit the disclosure or publication of information about jury deliberations. In most jurisdictions, it is an offence for jurors to discuss their deliberations with anyone who was not a member of their jury. 24 The general prohibition on discussing deliberations prevents judges, lawyers, academics, journalists, and others from asking jurors any questions about their deliberations, 25 including questions about what jurors did or did not do, or understand, and how they reached their verdict.
Jurors do occasionally speak publicly, including in the media, in Australia. For example, journalist Malcolm Knox wrote about his own jury service. 26 Because of jury secrecy laws, Knox fictionalised some aspects of the trial and jury deliberations. A juror might speak to the media, but this is an ad hoc process, often based on an individual juror’s experience of one case and where the case attracted significant media attention. 27
If jurors are not in a position to explain or defend themselves, the question is whether someone else could perform this role.
Defending jurors and informing the public about juries
There are five potential people, offices or bodies that could defend jurors publicly and inform the community about juries: a juries administrator, judges, Attorneys-General, academics and a Juries Advisory Council.
In Victoria, the Juries Commissioner is responsible for administering the jury system. 28 The Commissioner is not privy to jury deliberations but can provide valuable information that contributes to public debate about the jury system. For example, Victoria’s Commissioner explained the range of reasons why a jury may be discharged without giving a verdict. 29 However, the Commissioner, like interstate equivalents, is part of the court administration, providing an essential service to judges to enable trial by jury. It is therefore not within their role to publicly disagree or criticise a judge for their comments about a juror or jury. Further, jury administrators’ knowledge is based primarily on direct exposure to jurors outside of deliberations rather than expertise in jury research about deliberations.
In most court proceedings, a judge or magistrate determines the relevant law and the facts. Judicial experience in performing a fact-finding role might suggest that judges are well-placed to defend juries when juries perform their fact-finding role. However, as discussed in both the Lehrmann and Vicky Pryce trials, the judge was critical of the jury. Sometimes these criticisms reflect judicial frustration that the trial they have presided over has failed to finalise the case, and the judge will be aware of the stress and trauma to those involved in the case and the cost of further court proceedings. However, judicial exasperation may also reflect the judge’s opinion that the problem (or fault) lies with the juror or jury and not with the judge. As discussed below, apportioning blame can be complicated, and the judge’s assessment may not be impartial.
Even where a judge does wish to speak about a juror or jury, few judges have expertise in jury research and therefore may not be aware of relevant information that could inform public debate. 30 Judges also do not usually discuss cases publicly and are not usually experienced with the media. Further, judges do not also usually defend themselves in the media – historically, the Attorney-General has been responsible for defending judges.
As a factfinder, the jury takes on a judicial function: the jury is the ‘constitutional tribunal for deciding issues of fact’ 31 in most criminal trials and in some civil trials. This raises the question of whether an Attorney-General should defend juries and inform the public about the judicial function that juries undertake.
The role of the Attorney-General traditionally includes being the ‘political guardian of judicial independence’, 32 a role that involves defending the judiciary from unwarranted criticism, particularly where the attacks are personal to a judge. However, some Attorneys-General have rejected the view that this is their role. 33 Further, Attorneys-General have wide-ranging demanding jobs that make it unrealistic to expect them to function as an informational resource for the media and the public about juries. These two institutional voices (judges and Attorneys-General) have limited capacity to defend jurors and juries and to provide information about juries.
Following the Lehrmann trial, two academics with expertise in juries operated as informational resources for the media and provided measured commentary about juries. Associate Professor Jacqueline Horan was quoted in the media directly and some media quoted directly from her book Juries in the 21 st Century. 34 Professor Jeremy Gans also discussed issues about juries together with his book on an infamous jury trial in the UK. 35 These two academics provided helpful information including identifying that jurors are usually well-motivated, that they want to get the ‘right’ answer, and that the judge’s directions about what jurors must not do in terms of ‘research’ may not be as clear to jurors as judges think.
Relying on academics to defend juries and inform the public depends upon academics having knowledge about juries and being available and willing to engage with the media. Availability can be difficult as this role is not a normal part of an academic’s work. Media interest is likely to be intense but only for a brief period and academics have other commitments. A further challenge for academics arises when the issue is more about defending a juror or jury. Academics usually speak for themselves and do not have the authority of an Attorney-General or judge.
Given the limitations with these alternatives, another option that I have proposed elsewhere is to establish a Juries Advisory Council (‘JAC’). 36 The primary focus of a JAC would be to assess what jurors need to understand to perform their task, and what support judges need to perform their task of guiding juries more effectively. However, another important function of a JAC would be to ‘disseminate information to members of the judiciary, legal profession and other interested persons and the public on jury issues’. 37
For example, a JAC could disseminate information to dispel common myths about juries – such as the myth that unemployed people and pensioners are disproportionately represented in juries. 38 And contrary to myths about juror education, the education levels of jurors are actually likely to be better than the general population. 39 Myths and misconceptions can be ‘powerful forces in undermining [public] confidence in the criminal justice system’. 40 Providing correct and accurate information to the public and to the media in addressing myths and misconceptions about juries would therefore be valuable.
The composition of a JAC should include judges and academics with jury expertise. Therefore, the role of a JAC would overlap with options discussed above concerning who could speak for juries. Like a Sentencing Advisory Council, 41 a JAC would add to, rather than replace, any of the above options. As an independent body, a JAC would not have the potential conflict of interest of a trial judge, should have more time and capacity to respond to issues than an Attorney-General, and should have more organisational or institutional authority and capacity than an academic to undertake this role. However, like the other options (but with the exception of academics), the presence of judicial members may constrain what a JAC might say about a judge who has criticised a jury or juror.
If a JAC existed, how might it assist in public discourse about jurors and juries?
What might a JAC say about jury cases?
Research indicates that jurors are generally very well motivated: they know they have an important task and want to arrive at the ‘right’ answer. 42 In their everyday lives, jurors will be used to making decisions based on sufficient information or, where they believe the information is insufficient, they will gather more information. Many jurors are used to being ‘continuously online and engaged’ 43 and ‘[s]earch engines such as Google are new tools in [their] problem-solving toolkits’. 44 However, jurors face an ‘unnatural’ situation where they do not control the information from which they must make their decision. 45 Where jurors consider that they do not have sufficient information to perform their important task, they may solve this by using ‘the very tool by which they are accustomed to learning and organizing material’ 46 – by googling it. This is what the juror did in the Lehrmann case, seeking information to ‘clarify a point’ and to make sure they were not ‘inventing anything’ if the point came up during deliberations. 47
Lehrmann’s case was that complainant Brittany Higgins’ allegation was false. In this regard, the Lehrmann trial was a typical sexual offence trial: analysis of 25 rape trials in Victoria between 2013 and 2020 revealed that the defence case often involved a ‘false allegation’ narrative. 48 Indeed, assertions that the complainant was lying were so common that Quilter and McNamara said that rather than the commonly used descriptions of ‘she said/he said’ or ‘word on word’ cases, a more accurate description of the cases would be ‘she said/she’s lying’. 49 Thus, the information obtained by the juror in the Lehrmann trial concerned a central issue in the case – even if the information was neither helpful nor admissible.
The ‘detective juror’ is a well-known phenomenon. 50 The challenge for courts has been to find ways that are effective in stopping or reducing this behaviour. The challenge involves determining the best way(s) of engendering behaviour change in jurors to limit the risk that they will use the internet. Courts and parliaments have met the challenge on the basis that if a judge instructs jurors not to do something, and a criminal penalty applies, this will stop the unwanted behaviour. For this approach to be effective, jurors must (at the very least) understand what is prohibited.
In the Lehrmann trial, Chief Justice McCallum said that she told the jury on at least 17 occasions that they should not undertake ‘any research or inquiries of their own’. 51 Judges often give this direction multiple times during a trial. It is also known that jurors do not always follow this direction. Jurors may not always follow this direction because the breadth of the prohibition may not be clear to them. Where that is the case, repeating the direction will not assist jurors.
To assist the jury in understanding the direction, Chief Justice McCallum provided clear examples of inquiring about the case and re-enacting aspects of the case (eg, consuming alcohol), or going to the alleged crime scene. It is obvious to judges and lawyers that this general prohibition applies to looking up general information about false complaints in sexual offence cases – that is, about other cases and research about offences. However, the direction is for jurors not lawyers. It is not clear that jurors would understand that the judge’s direction prohibited not only research about the case but research about sexual offences more generally. When questioned by Chief Justice McCallum, the juror in the Lehrmann trial reportedly said they were not aware that they were doing anything wrong. 52
Further, the description of a ‘detective juror’ depends upon certain assumptions. Juror misconceptions about sexual offences are well known. What if one or more other jurors said in deliberations that they had doubts about the complainant’s evidence based on the misconception that ‘women often lie when making a sexual offence complaint’. This misconception is encapsulated by the statement that complaint of a sexual offence is ‘easy to fabricate, but extremely difficult to refute’. 53 This is a pervasive misconception that courts accepted for centuries and which detrimentally affected the law and sexual offence cases.
There was no expert evidence concerning sexual offences in the Lehrmann trial and it is unlikely that the judge had given any directions about this misconception. A defence case may trigger juror misconceptions without even referring to the misconception. For example, the accused’s case may (only) allege that the particular complainant in the trial lied, but this may trigger the general misconception about sexual offence complainants, resulting in the complainant’s credibility being assessed on an erroneous basis.
Because of the confidentiality of jury deliberations, we do not know whether this misconception played any role in the Lehrmann trial. However, the possibility that it could have raises two critical issues. First, the researching juror may not have been a ‘detective juror’ seeking to find out about the case. Instead, the juror might have been trying to correct another juror’s misconceptions – but they could also have been seeking support for their own misconceptions. Second, if we knew more about how jurors may view certain cases, judges might take preventative action. Expert evidence about the incidence of false complaints in sexual offences could not have rationally affected whether the complainant in the particular case was lying or telling the truth. However, jury directions are not limited to the evidence and can be used to dispel inappropriate lines of reasoning (eg, because a person has lied in the past does not necessarily mean they are lying on this occasion). To ensure a fair trial, where jurors determine the issues on their legal and factual merits 54 and not based on misconceptions, jury directions may assist in counteracting misconceptions. 55
Changing juror behaviour may require changes to the system in which jurors operate. Understanding a jury trial from a juror’s perspective is essential. In the Vicky Pryce trial, the judge’s frustration was palpable. But a judge well-versed in jury research might have responded very differently to the jury’s questions. The jury’s questions were potentially a useful source of information about what jurors did not know in that case. The jury’s questions included: some common problems (eg, what does ‘proof beyond reasonable doubt’ mean); challenges in understanding elements of an offence (eg, what does it mean for a ‘will to be overborne’); and cognitive challenges (eg, understanding the difference between inferences and speculation, when jurors may use common sense and when doing so becomes speculation). 56 With better information and support (eg, from a JAC), judges may be better equipped to answer these kinds of questions and understand juror perspectives.
Another way of changing the system in which jurors operate would be to provide a clear process for encouraging jurors to ask questions if they are unsure about what they can and cannot do. This might reduce the incidence of jurors inappropriately accessing the internet. Courts often assume that if jurors need to know something they will ask a question in court. Judges may then mistakenly conclude from the absence of questions that jurors understand what they are supposed to do. However, jurors often feel ‘an overwhelming inhibition against asking questions’. 57 Courtrooms can be intimidating – jurors are aware that they are ‘amateurs in a world dominated by professionals’. 58 Jurors often feel intimidated, discouraged, disempowered, and mistakenly may think that they cannot ask questions. 59 Creating an environment in which jurors feel comfortable in asking questions is difficult. Some judges tell jurors that they are the jury’s google! 60 Combining this with clear encouragement to ask questions is likely to be important in preventing the ‘detective juror’.
Conclusion
There is no person, office or body clearly responsible for defending jurors and juries publicly, for presenting the juror or jury perspective, or for providing a more nuanced understanding of why things have gone wrong in a jury trial. In the Lehrmann trial, further information may have better contextualised the juror’s perspective and could have improved public discussion about what can be done to prevent similar problems in the future. Too often, jurors are blamed for the problems that arise in trials when the system itself may be part of the problem. And when a judge criticises a juror or jury, jurors may feel even more powerless and unable to defend themselves. Better information about juries might also lead judges and commentators to be more circumspect when criticising juror conduct.
There is no single panacea, but a JAC could improve public discourse about jurors and give jurors a voice. It could disseminate information to improve public debate about problems with jury trials. This would help to change the narrative that suggests courts are powerless to prevent the ‘detective juror’ or other jury errors. Better information might also shift the focus from judicial exasperation and public criticism of jurors and juries (the Lehrmann and Pryce trials) to prevention through a better understanding of why jurors act as they do and improved public discussion of whether juries (the Pell and Pryce trials) perform their role appropriately.
Footnotes
Acknowledgment
The author would like to thank the anonymous reviewers for their helpful comments and feedback on an earlier version of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
