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

1 Feb

JURY TRIAL

JURY TRIAL

Introduction

As Trevor Groves writes in The Juryman’s Tale “belief in the jury system is an act of communal faith and political will.”

As the latest contribution to the John Grisham pension fund – Runaway Jury – heads for UK cinemas, life is set partially to imitate art at the Court of Appeal in London. The film tells the story of a juror and an accomplice who attempt to manipulate the result of a trial. At the Royal Courts of Justice, judges will be asked to interview jury members to ascertain whether the alleged hankerings of a jury forewoman for a prosecution silk could have unfairly influenced the verdict in a serious fraud trail. The film will probably make a lot of money; the appeal could make legal history.

A jury trial is a trial where a judge is supplemented by a jury, comprising citizens who are usually randomly selected and who are generally laymen. The accused is judged by his peers. It is seen as an important check against state power. [i] Usually the jury box consists of 12 people. They judge the facts of the case and usually an unanimous verdict is the accepted norm though in the United States, 11-1, 10-2, or 9-3 have been accepted.[ii]

In a jury trial, the jury is selected by the parties through a process called voir dire, where the judge or parties ask jurors questions in order to determine their biases and opinions. (Each side gets to reject a certain number of potential jurors.) After the jury is chosen and sworn in, the parties give opening arguments, present their evidence and give closing arguments. The jury then deliberates; when it reaches a decision, it returns to the courtroom and announces the verdict.[iii]

The final phase of a jury’s work is also its most mysterious. Both jury selection and the jury trial are, except in unusual cases, held in open court. Jury deliberations, by contrast, are absolutely secret. There are no prescribed procedures for juries to follow, and they are left to themselves in a locked room, guarded by the court, to reach a verdict based only on their judgment of the evidence presented. The jury is neither required nor allowed to offer their reasoning in court. They are asked only for their verdict.

The jury is seen as the gold standard of Western justice. Its adherents are found all over the world in all parts of the political spectrum and in every social class. However, for a number of years now the debate over the future of the jury system has rumbled on without achieving any consensus. One reason, perhaps, is that the mere mention of trial by jury makes a strong appeal to sentiment and tradition, often at the expense of rational discussion.[iv]

Jury trial is deeply rooted in England (unlike Scotland and other European countries), and has been rightly seen in the modern age at least as a particular aspect of the democratic rule of law. Juries are chosen at random so as to give a broad cross-section of society. They are not meant to be average or representative.[v] They are the means by which the general public have a say in important decisions affecting law and order, and are sometimes even a bulwark against state power. Jurors’ discussions are intended to be a distillation of the citizens’ collective experience of life: that has been said to be the strength of the jury system.[vi]

There is something intrinsically fairer about being judged by one’s peers rather than a grumpy old man in a silly robe. Juries are associated with government by the people, while the judiciary is often cast as the tyrant of law and order. Lord Devlin, the British legal thinker, said jury trials were “the lamp that shows that freedom lives”. In practice, however, some may opine that Mark Twain is probably closer to the truth. He defined the jury as “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”. Jurors are notoriously fickle, and that is when they can be got together as a quorum in the first place. Malaysia did away with them in 1995. Even Britain, whose tradition of trial by jury is said to go back to the Middle Ages, has had second thoughts. The Labour Government moved to restrict it in 2000 on the grounds that criminals were using it to “play the system”.

Even so, Attorney-General Tan Sri Abdul Gani Patail’s proposal to bring back jury trials cannot be dismissed as the musings of an idealist. Malaysians, he says, are no longer the ignoramuses that made them such a hindrance to due process in the past. Justice is better served by democratic averages or what Gani calls “the reasonable man standard”. A group of disinterested persons is likelier to arrive at a more considered evaluation of the evidence than a single and possibly biased member of the Bench. Besides, it is not as if Gani intends to apply the jury system as extensively as, say, in America. Serious crimes involving capital punishment, for example, certainly deserve more rigour, in their investigation, prosecution and adjudication, than has been seen from the conduct of several high-profile cases recently.

Apart from its principled stand, Gani’s proposal carries a subtext. Solicitor-General Datuk Idris Harun had suggested earlier that jury trials could be an antidote to judicial corruption. Dealing with troublesome laymen was a rite of passage in the high reputation of the Malaysian judiciary prior to its travails in the 1980s and thereafter. Juries may be essential to the doctrine of separation of powers by relieving judges from executive or external pressure. Nevertheless, many lawyers remain chary of surrendering decisions of guilt and innocence to a bunch of tyros. Gani must not only answer their doubts but the larger question of whether a system already slowed by its present burdens of proof will not be brought to a halt by the heavier ones that juries demand.[vii]

Michael Feldberg[viii] says: “The most experienced trial lawyer I ever worked with said there are two rules about picking a jury – one, you can never predict who is going to go which way, and two, you will always try.”

JURY TRIAL SELECTION

JURY TRIAL SELECTION

Historical Developments of Jury Trial in Malaysia

In the former British settlements of Penang and Malacca, the introduction of English law brought about a system of trial by jury (a jury consisted of originally twelve, but later seven, persons) in all criminal cases on indictment. In the Malay states, Sarawak and North Borneo, trial by jury had not been available, and capital cases were tried by a judge sitting with two assessors.

Due to concerns about miscarriages of justice during the Malayan Emergency, the first prime minister of Malaya, Tunku Abdul Rahman, extended trial by jury to all capital cases in Malaya after independence in 1957.

In Sabah and Sarawak, which did not join the Federation until 1963, capital trials continued to be tried by a judge sitting with two assessors, as they had been before independence.

In 1978, jury trials in Penang and Malacca were restricted to capital cases, bringing them into line with the rest of Malaya. From 1 January 1995, jury trials and trials with assessors were abolished throughout Malaysia. The Johor Bar was in the forefront in 1991 in calling for the abolishment of trial by jury. The reasons given were that:-

1. It was archaic, a colonial heritage void of merit, costly and time-consuming.

2. It was dangerous to leave a man’s life and liberty in the hands of persons who are inexperienced and emotional.

3. Most expert and forensic evidence is still in English. The juror’s proficiency in languages is questionable.

4. Jurors do not have to give reasons for their verdict. They could be swayed by eloquent counsel.

5. Jurors are generally timid. The most vocal amongst them is generally elected the foreman. With his verbosity, he will control six other minds and sway them.

6. But jurors as a class loath having to return a guilty verdict. They are mindful that a guilty verdict means death to the accused. They do not want to live the rest of their lives with the stain of having condemned a man to death.

7. There will be no play-acting if jurors are not involved in trials.

However, in 2006, Attorney-General Tan Sri Abdul Gani Patail felt that the jury system should be re-introduced since jury trials are a symbol of individual liberty – one is judged by one’s peers and not by judges who may be out of touch with standards set by the ordinary man.

Much interest has been generated since Attorney-General Tan Sri Abdul Gani Patail proposed that jury trials be brought back.

Experiences of Jury Trial in Other Jurisdictions

Jury trial has been in existence in England for over 800 years. Over the years, their function has changed from being a body of witnesses to having to decide the facts of the cases they try on the evidence put before them, and being disqualified if they already have any involvement in the case. The struggle for independence of a jury’s verdict was finally won some 300 years ago, in Bushel’s Case[ix] where Vaughan CJ stopped jurors from being punished. In that case, jurors had been imprisoned because they had acquitted William Penn for participating in an unlawful assembly.

The jury is a core political institution, a central part of the system for handling serious criminal cases in England. It enshrines the basis democratic demand that the law be accountable to the people. So closely is its independence guarded and so sacrosanct are its inner workings considered, that the presence of a stranger in the jury room during deliberations will invalidate its verdict.

Lord Denning[x] recorded that until 1854 all civil cases in the courts of common law had been tried by juries. Indeed there was no other mode of trail available. However since then the use of juries had declined and in 1965 they were involved in only two per cent of civil cases. He explained that damages for pain and suffering and loss of the amenities of life in personal injury cases could never be truly compensatory and that conventional scales of awards had evolved. The unsuitability of juries for determining such awards stemmed from the practical difficulty of informing them of the conventional scales or of the judge giving them sufficient guidance to enable them to make an appropriate award without usurping their function.[xi]


But its very secrecy is a source of weakness, making it vulnerable to charges of stupidity, capriciousness, and bias.[xii] Whilst there have been many attempts to test the validity of such charges, research was effectively ended by the Contempt of Court Act, 1981, s 8 of which makes it a contempt to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. Some ingenuity is, therefore, required to lift the veil.[xiii]

The peremptory challenge to jurors was abolished in England and Wales by the Criminal Justice Act 1988 after a previous reduction in challenges from seven to three.[xiv] Most significantly, the Emergency Provisions Act of 1973 set up the non-jury Diplock Courts in Northern Ireland following a report from the Diplock Commission which included the recommendation that ‘trial by judge alone should take the place of trial by jury for the duration of the emergency’. This recommendation found its way into the 1973 legislation in respect of ‘scheduled offences’ which included the most serious criminal offences including murder, robbery and kidnapping arising usually, though not always, out of terrorist activities.[xv]

The jury trial finds expression in the American legal system in three places: the grand jury, the criminal petit jury, and civil petit jury. Each is guaranteed in the federal courts by the U.S. Constitution, and every state uses them. In the United States, jury trial is held in the highest esteem. It is truly seen as a fundamental constitutional right. This is reflected in the far greater use of juries in both minor criminal trials and in the many civil cases in which the right of jury trial in England has long since passed.[xvi]

The Anglo-American jury is a remarkable political institution. It recruits twelve laymen, chosen at random from the widest population; it convenes them for the purpose of the particular trial; it entrusts them with great official powers of decision; it permits them to carry on deliberations in secret and to report out their final judgment without giving reasons for it; and after their momentary service to the state has been completed, it orders them to disband and return to private life.[xvii] The jury is thus by definition an exciting experience in the conduct of serious human affairs that, virtually from its inception, has been the subject of deep controversy.[xviii]

In 1776, the Declaration of Independence listed as a grievance against George III his “depriving us of the benefits of trial by jury”. Fifteen years later, the sixth amendment promised the people of the United States what they already had been promised by the Constitution of 1789 and by their states — that in all criminal prosecutions they would enjoy the right to jury trial.[xix]

Criminal and civil juries reflect the differences between the criminal and civil law, and most cases in the United States are settled before they go to trial. In cases that go to trial, a person does not have the right to a jury trial in every instance. Finally, an accused person has the right to a trial by jury but may waive that right in favor of a bench trial before a judge; in civil trials, both parties can agree to a bench trial. Thus a jury trial generally takes place only in those instances where one side in a civil case, or the accused, in a criminal case, believes it is in their best interest. The right to trial by jury, however, influences even the resolution of cases that never go to trial, “like the visible cap of an iceberg, exposing but a fraction of its true volume”[xx]

While UK juries maintain the lowest of profiles, quite the opposite is true in the US, where jurors can stand on the courthouse steps at the end of a trial and explain how they came to their verdicts.

Juries are much more widely used in the US than in the UK, particularly in civil litigation, where either party can demand a jury. In the federal courts in 2002, juries were involved in 3,006 trials compared with 1,563 bench trials.[xxi]

On the other hand, Japan is about to embark on a democratic experiment with important consequences for the rest of Asia. After a lapse of 60 years, the country is planning to bring back a jury system – but a huge effort will be required to convince ordinary Japanese about its advantages. Americans can help by sharing their jury experiences with the Japanese.

Beginning in 2009, Japan will institute a jury system called saiban-in. Juries consisting of three law-trained judges and six citizens chosen by lottery will decide criminal cases by majority vote. Japan had an American-style jury system for 15 years, but it was abolished by Japan’s military government in 1943. Since then, verdicts have been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction.[xxii]

The return to citizen participation represents a bold commitment to have ordinary Japanese take greater responsibility in running the country. If a jury is sufficiently unhappy with the government’s case or the government’s conduct, it can simply refuse to convict. This possibility puts powerful pressure on the state to behave properly and ultimately leads to better governance. For this reason, a jury is one of the most important protections of a democracy.

The goals are noble, but the new system faces many challenges. The government has already begun a campaign to educate the Japanese about the advantages of a jury system, but there are troubling signs that the message may not be getting through.

According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service intimidates many Japanese; other polls show 70 percent of them don’t want to be on juries. Japanese are much more likely to fear retaliation from defendants than American jurors are. They have far less confidence than Americans do in their ability to judge fairly. The government will review the new system after three years. If it concludes that jury service is too difficult for the Japanese to accept, it may scrap it.

Japan’s democratic experiment will be closely watched by the rest of Asia. South Korea is considering establishing a jury system. Reformers in China, Taiwan and Thailand are calling for greater involvement of citizens in their legal systems. If Japan’s effort to introduce a jury system fails, democracy movements elsewhere in Asia will suffer a serious setback.

Americans can play an important role in helping the new system succeed. They can reassure the Japanese that jury service is both feasible and valuable. While few Americans look forward to jury service and many are inconvenienced by it, the majority of Americans who do serve on juries report having positive experiences. It’s hard to imagine how Americans could fulfill their role as democracy advocates any better than by helping the Japanese become jurors.


[i] Constitutional Rights Foundation. (1987). We the Jury: A Simulation for the Classroom. Zenger Publications.

[ii] Constitutional Rights Foundation. Criminal Justice In America (1993), pp. 110-135.

[iii] Katz, Stanley Nider, (Ed.). “Introduction,” pp. 1-33, in James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger Printer of the New York Weekly Journal (1972).

[iv] Brenner, Susan. The Voice of the Community: A Case for Grand Jury Independence. Virginia Journal of Social Policy & the Law (1995).

[v] R v Smith [2003] 1 WLR 2229

[vi] R v Watson [1988] QB 690

[vii] The jury is still out. New Straits Times (Malaysia) July 2, 2006 Sunday

[viii] a former federal prosecutor and now head of Allen & Overy’s US litigation practice in New York.

[ix] 1670) 6 St Tr 999.

[x] Ward v James [1965] 1 All ER 563

[xi] Turow, Scott.“When a Secret Proceeding Has No Secrets,”New York Times (reprinted in Chicago Daily Law Bulletin, August 12, 1998).

[xii] Alden, Bill. Access to Hiss Transcripts Granted. New York Law Journal, May 14, 1999.

[xiii] Mike McConville. (2003) Shadowing the jury. UK Law Journal.

[xiv] Hoffman, Morris B. “Abolish Peremptory Challenges,” Judicature, Volume 82, Number 5, (March-April 1999), pp. 202-205.

[xv] Bendavid, Naftali. “Powerful Grand Jury System is Shrouded in Secrecy,” Chicago Tribune, February 19, 1998.

[xvi] Administrative Office of the United States Courts. Handbook for Federal Grand Jurors.

[xvii] Association of Trial Lawyers of America and Street Law, Inc. “Voir Dire: To Speak the Truth,” When Justice Is Up To You: Celebrating America’s Guarantee of Trial by Jury (1992: Association of Trial Lawyers of America), pp. 33-52.

[xviii] Landsman, Stephan. “The Civil Jury in America: Scenes from an Unappreciated History,” 44 Hastings Law Journal 579 (1993), pp. 579-619.

[xix] Albert W Alschuler and Andrew G Deiss. (1997). Three Huzzas for The Jury. UK Law Journal.

[xx] Kalven, Harry, Jr., and Hans Zeisel. The American Jury (1966), pp. 1-32.

[xxi] Grania Langdon-Down. The Future Of Juries: US Juries: Do They Show The Way The UK Courts Will Go?

[xxii] Robert E. Precht. (2006). Japan, the jury. The New York Times

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