THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (PART II)

1 Feb
JURY TRIAL

JURY TRIAL

Arguments for Trial without Jury

“Trials are too important to be left up to juries,” was the cynical mantra of trial consultant, Rankin Fitch (played by Gene Hackman) in the Hollywood hit film ‘Runaway Jury’. This sparks off the questions as to what actually happens in the jury room and how can citizens prepare themselves to deliberate fairly and justly.

Indeed the jury system has acquired powerful critics in the British Parliament, in the media and amongst lawyers, academics and senior police officers. Professor Glanville Williams, for instance, has voiced the concern of many by focusing on the very foundations of the system: the caliber of individual jurors: “persons whose ordinary occupations are of a humble character rarely qualify to be regarded as first rate intellectual machines. They are not accustomed to giving sustained attention to the spoken word and many will have a narrow vocabulary and range of ideas.”[i]

Other notable critics include Sir Robert Mark who once instituted a study with view to demonstrating that juries acquitted far too readily[ii] and frequently spoke of “blatantly perverse acquittals.” [iii]

There is much to be said for this argument; one of the attractive features of jury trial is that it resolves disputes within society in a final and decisive manner. However, this notion is based on a questionable premise; that juries generally ‘get it right’. This can no longer be assumed in indeed it ever was. If it seems that something seriously untoward has taken place in the jury room then this clearly outweighs the non disclosure principle.[iv] Case law provides us with many examples; perhaps the best is that of R v Thomas[v] where the defendant was convicted of sheep stealing. It later transpired that two of the jury spoke no English and had of course been unable to follow the evidence. The defendant appealed unsuccessfully. The Court of Appeal refused to look at the evidence in the interests of finality.

The most common problem is that clever lawyers with a lot of drama and histrionics are able to play on the jury’s emotions to arouse sympathy, distrust or hatred to secure a verdict of guilt or innocence. Jurors are much more susceptible to histrionics than a judge. Lawyers can play to the gallery, indulge in histrionics and whip up the emotions of jurors to get a desired result. For example, in a child rape case, the jury may be driven to convict the accused based on personal feelings rather than on conviction beyond reasonable doubt. The accused must “receive a trial by an impartial jury free from outside influences”. Trial by the media[vi] and ordinary gossip may take precedence and this would adversely affect the accused in that the jurors may be influenced by them.[vii]


Secondly, an impartial jury must be handpicked from a representative cross-section of the community, with no participants excluded on the basis of race, sex, religion or other impermissible factors.[viii] This would be a daunting task for a cosmopolitan country like ours. Naturally both the prosecutor and the defendant’s lawyers would study profiles of potential jurors to admit only jurors who would support their case.[ix] This battle would, of course, threaten the principle of “equal justice under the law”. In the US and Britain, juries have been known to hand out mind-boggling payouts in defamation and related cases. This is unrealistic and unworthy of the system.[x]


Thirdly, it has been felt that jurors, being ordinary people, are prone to the passions, pride and prejudices of human beings. In judging cases, one has to be detached. That isn’t always possible for a layman. One has to act from behind the veil of ignorance about his own race, religion, gender, economic and professional position.[xi] You’re a woman, but as a juror you can’t act as a woman; you have to act an agent of justice. This is almost impossible. This may be an elitist point of view but some feel that jurors can’t act impartially, unlike a judge. True, not all judges can act with such disinterest and impartiality but they are better trained. The first objection would be asking jurors to decide on questions of fact. This is dangerous because jurors neither have the professional need nor the training to disregard their own passions and prejudices which a judge is trained and required to do.[xii]


In a multiethnic country like ours, the jury system may not work as it should. In our country, there is a potential for jurors to succumb to racial prejudice. The possibility of bias is an ever-present threat to confidence in the jury system. There is always a potential for the minds of individual jurors and indeed whole juries to be clouded by bias.[xiii] A biased jury would undermine an accused’s common law right to a fair trial, and also violate their right to a fair trial under Art 6 of the European Convention on Human Rights. Just picture this scenario. An Indian kills a Chinese man and three of the seven jurors are Indians. What if he is acquitted? Will there be complaints of racial bias in the decision-making?[xiv]


In the US, for instance, in the notorious Rodney King (19920 case, white police officers were acquitted of violently beating up a black man by a jury of mostly whites, without any black jurors, in spite of an incriminating video tape of the assault. This resulted in riots. In the Michael Jackson case, some of the jurors admitted that they were convinced of his guilt but sentiment for his image swayed them to find him “innocent”.[xv]


Fourthly, jurors can also be tampered with by outside influences. Jurors can be threatened by mobs or bribed by agents of the accused. Twelve jurors locked away in isolation does not mean 12 independent inputs to arrive at a common decision. It just takes one articulate juror with a strong personality to lead the rest to say “yes”. The herd instinct would come into play and the more naive jurors could easily be led by the nose by the more aggressive. Justice would then take a back seat.[xvi]


Fifthly, data indicates that in certain cases, jurors tend to be prone to acquittals, while some studies have shown that male jurors are reluctant to convict for rape. It has been found that women are very reluctant to convict, except in sex offence cases. There they tend to sympathise with the victim. So the acquittal rate tends to be high in particular types of cases. There are hundreds of thousands of cases waiting for trial.[xvii] If you introduce the jury system, you’re going to increase the backlog of cases. As it is in Malaysia, we have a backlog of cases in dire need of quick clearance. Jury trials will certainly cause more delays and uncertainties.


Sixthly, it seems bizarre and risky for the accused to put his fate in the hands of a few untrained laymen who can also be emotional. It is better that 10 guilty men be set free than one innocent man be hanged. In the words of the former French Minister of Justice Robert Badinter, jury trials are like riding a ship into a storm, because they are much less predictable than bench trials”. Some acknowledge that jury trials would “bring the people into the system’, yet they are skeptical of juries being able to dispense justice. This is because the problems override its benefits. There is a worry that jurors don’t act as agents of justice, but as representatives of their communities.

Seventhly, memory is not only notoriously unreliable but it is rarely objective, and yet the system is wholly dependent upon the accuracy of the jury’s memory for when they are considering their verdict none of the evidence given under oath from the witness-box is available for reference. They do not have a record of the judge’s directions on the law, nor any of the summarisations.


Juries may and do take notes which they take into the jury-room. But as any student knows, whenever you are busy writing notes of any length you miss the next bit of the lecture, and the same is true in court. Also the really significant points may not be apparent at the time due to the sequence in which the evidence is presented, so a really good memory is needed to recall them accurately once their importance becomes clear.


As can be seen in local context, jury trials in Malaysia were only used in murder and kidnapping cases. That itself is an objection – why should only certain cases be subject to jury trials rather than others which are much more justifiably subject to public opinion, like defamation for example. Why only kidnapping and murder, why not rape? Why not commercial fraud? Defamation trials should go before the jury where the input of the public is more important because the issue is – have you by your words, brought me down in the public’s eyes? I think the public should answer that.

The Attorney-General of Malaysia said that Malaysians are more well-informed and well-read than they were in 1995 when jury trials were abolished, so they should be able to analyse facts much better now. It is true that the levels of literacy have improved. However, this issue is not only of knowledge but of wisdom. Facts do not contribute to wisdom, the ability to be impartial and to ignore stereotypes.

It has been argued that it could not be difficult in selecting jurors since there are so many graduates. Nonetheless, being a degree or diploma holder doesn’t make you impartial or objective. Dag Hammarskjold, the former secretary-general of the United Nations said: “To be truly objective, you must be subjective from the other person’s point of view.” There is something to be said for the standard of the ordinary reasonable man, but it is doubtful whether any selection of jurors would truly represent the public.

Penny Darbyshire[xviii] mentioned that “Of all the people I have asked about their jury service over the years (probably 40 to 50), only about five have enjoyed the experience. Some were shocked, many were uneasy. Most were bored. No one suggested it endowed them with ‘a sense of airiness and propriety of the judicial process in this country’ and I was no exception.”

It was reported in local newspaper that Nazri[xix] said that there may be those who were reluctant to carry out their jury duty. Ordinary citizens, he said, were also weaker than judges. “Judges, who are highly-trained and respected, can attract the suspicion of corruption and abuse of power. What more, seven members of the public? One would only have to bribe four jurors to win a case,” he said. At that point, Karpal Singh[xx] interjected: “You cannot win with a four-three majority. You need a minimum of five-two. Don’t you have any experience handling a jury trial?[xxi]


If it is just ‘common sense’ that is needed to come to a just conclusion in a trial, why do we bother to spend a fortune to go to law school? The conduct of a case is based on many factors, including the evidence, which is sometimes circumstantial. It is risky to entrust our fate to a few untrained people. It would be difficult for them to differentiate between “beyond reasonable doubt” and “the balance of probabilities” – the divide between criminal and civil cases.


Some argue that “seven heads are better than one”, but “too many cooks can spoil the broth” as well. It is a fallacy to assume that just because there are seven jurors, there will be seven different inputs into the deliberations. All it takes is just one juror with a dominating personality to lead the others. Jurors are human, albeit educated, and can be swayed by emotion, prejudice and racial considerations. In an emotionally charged case, like child rape, the jury may be swayed to convict based on personal feelings rather than on a case beyond reasonable doubt.


No sane person will relish the idea of condemning another to death, never mind if that person is a stranger. But under the jury system, which was abolished in 1995, one had no choice but to obey a court order and appear in court to judge one’s peer. How did jurors feel when they sat to decide somebody’s fate? If jury trials were implemented, lawyers will bypass law and go for acting lessons in histrionics to play on the sentiments of the jurors. Is all this necessary?

JURY SELECTION

JURY SELECTION


[i] Professor Williams. The Proof of Guilt, p 271.

[ii] New Law Journal June 9 1966.

[iii] Robert Mark. In the Office of Constable, p 285.s

[iv] Baldwin J & McConville ME (1979) Jury Trial. Oxford: Oxford University Press.

[v] (1933) 2 QB.

[vi]Is a Fair Trial Possible in the Age of Mass Media?” Bill of Rights in Action (Winter 1994, Vol. 11, No. 1).

[vii] Kennedy, Randall. “Racial Conduct by Jurors and Judges: The Problem of the Tainted Conviction” pp. 277-282, and “Black Power in the Jury Box?”, pp. 295-310, Race, Crime and the Law (1997).

[viii] Kennedy, Randall. “Race and the Composition of Juries,” Race, Crime and the Law (1997: Vintage), Chapters 5-6, pp. 168-230.

[ix] Kennedy, Randall.“Race and the Composition of Juries: Setting the Ground Rules,” Race, Crime and the Law (1997: Vintage), Chapter 5, especially pp. 182-192.

[x] Brenner, Susan.“Is the Grand Jury Worth Keeping?”Judicature, Volume 81, Number 5 (March-April 1998).

[xi] Scheffey, Thomas. “Connecticut Outlaws Religion-Based Juror Challenges,” Connecticut Law Tribune, April 5, 1999.

[xii] Interview of Universiti Teknologi Mara constitutional law expert Professor Shad Saleem Faruqi published in To be, or not to be judged by one’s peers, News Straits Times (23 Oct, 2006)

[xiii] Keeler, Barbara. “Court of the Uninformed: Searching for Unbiased Jures,” The Jury System, (1999: Newsweek), p. 14.

[xiv] Brendan Pereira. Even in the jury box, we might not look beyond race. New Straits Times (Malaysia) July 10, 2006 Monday.

[xv] Finkelman, Paul, Kermit Hall, and William Wiecek, (Eds.). American Legal History, pp. 27-29.

[xvi] Urriden, Mark. “Americans’ Right to Trial by Jury May Be Slipping Away,” ABA Journal, August 2000.

[xvii] Fried, Rinat. “A California Justice Takes Stand for Jurors,” The Recorder/Cal Law, May 11, 1999.

[xviii] Penny Darbyshire is a law lecturer at Kingston Polytechnic. In addition to standard jury service she has played a bit-part in Baldwin & McConville’s Birmingham jury project of the mid-1970s.

[xix] de facto Law Minister of Malaysia.

[xx] DAP-Bukit Gelugor.

[xxi] Nazri: Jury system will not be revived. New Straits Times (Malaysia) July 5, 2006 Wednesday

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