Arguments for Trial with Jury
Alexis de Tocqueville wrote: “The jury system appears to me to be as direct and extreme a consequence of the sovereignty of the people as universal suffrage.”[i]
Many eminent men have agreed with him. Lord Devlin called the jury “the lamp that shows that freedom lives”. He contended that “each jury is a little Parliament for no tyrant could afford to have a subject’s freedom in the hands of twelve of his countrymen”.[ii]
Prior to the arguments for the trial with jury, lights may be shed upon the purposes of having jury trial. There are basically four main purposes:-
1. It does justice and decides whether the prosecution has proved its case against the defendant whom it is considering. But the jury’s purpose does not stop there.
2. It helps to ensure the independence and quality of the judges. That great eighteenth century jurist Sir William Blackstone regarded the jury as a safeguard against the violence and partiality of judges appointed by the Crown (Commentaries on the Laws of England 4:349). We are a long way from those corrupt days, but who knows what the future may bring, and it is helpful to have a check on the possibility of biased judges being appointed by some future administration, perhaps long in the future.
3. It gives protection against laws which the ordinary man or woman may regard as oppressive. It was the refusal of juries to convict sheep-stealers of grand larceny (they found that the defendant had stolen the sheep but that the value of the sheep was less than ₤5, and hence it was petty larceny) that led to the abolition of hanging for theft. There are indeed modern examples of acquittals in protest at what are perceived to be unfair laws.
4. The jury system helps to ensure the maintenance of proper behaviour by investigating officers. The great majority of police and customs officers behave impeccably. There are, however, a small number who behave with arrogance and unfairness, or who are just bullies (whether physical or verbal) to the defendants in their charge. Were a judge sitting alone or with assessors, whatever his abhorrence of such conduct, he would have to convict the defendant assuming the evidence proved guilt, unless it were possible to exclude the officer’s evidence under cross examination. Hence, the principle that those investigating criminal offences should behave with absolute propriety to those in their charge is surely fundamental in a civilised society, and this principle transcends the merits of an individual case.
After perusing the purposes of the jury trial, one may well derive form them the significances of jury trial. First and foremost, jury trial ensures simplification of the issues and the language. The judge will find taking the decision on innocence or guilt very stressful, being the sole decision-maker, he is not accustomed to taking the decision in serious criminal cases-that has never been his judicial role. Nor is he provided with assessors to assist him. His experience of ‘life’ will necessarily be limited. Whatever the decision, the judge will be vulnerable to accusations of bias and even vilification; he will not enjoy the anonymity of the jury. Trial by lawyers may be conducted in legal jargon incomprehensible to the public and may turn on legal technicalities. Public confidence could be undermined. Jury trial will be gradually and stealthily undermined.
The Solicitor-General said reintroducing the jury system would prevent suspicions of corruption in the judiciary. The main reason for jury trials is the traditional thinking that someone charged with an offence where the penalty is death, the facts of his case are to decided by his peers, namely the Malaysian community, regardless of race, class and creed.[iii]
By doing this, it takes away the burden of the judge. It gives the true meaning to justice. The judge can concentrate on looking at the law and legal technicalities like the introduction of confessions, whether a statement is voluntary or involuntary. These are technical matters the judge can concentrate on.[iv]
Things are clearly different now compared to when jury trials were abolished in 1995. There’s an improvement in literacy rates, the man in the street is more aware of his rights. In fact, people are more litigation-conscious. Whenever there is something wrong, the public become increasingly vocal. They write letters to newspapers, they make statements, there are more non-governmental organisations. There are Domestic Violence Act and a Child Abuse Act in Malaysia. These new laws show how aware people are now of various issues.
If we look at the track record, there were cases where the jury was reluctant to convict, but if we look at individual cases, there was not a single one where the jury acquitted a guilty man where the facts were overwhelming. Juries will not return the verdict of murder unless they are absolutely sure because they live with their conscience. For the judge, it’s a more mechanical process.
Jurors are “innocent”, they see the facts pure and simple, and that’s it; unadulterated. This is because they’re individuals. Sometimes a judge is influenced by what he hears outside, whereas it’s not easy to influence seven jurors.
It’s a fallacy that jurors are so easily taken up by the Bollywood or Hollywood style in court. Secondly, there are no dramatics by defence counsel because the judge is in control of the court. If the lawyer does all sorts of things, the judge will tell him to stop. There are no dramatics like we see in the movies or on television, plain and simple.
When you talk about a jury being influenced, no doubt. If they see a defence counsel who is experienced, they may given him that little bit of extra respect, but we see, so do judges. They, too, have respect for good lawyers, so there’s no issue that jurors are more affected. As Jagjit Singh[v] said, “I have absolute faith; not a single member of the jury in my past cases has been disappointing. Not only do I have faith, I have confidence in their honesty and integrity. I’ve had jury trials where they ask questions when they’re not clear, so it’s not that they’re sitting there like a bunch of seven idiots. They may appear quiet, but you know that they’re paying full attention.”[vi]
It is not going to be difficult in choosing seven people. We have the electoral roll, all the names are there, there’s no problem. They can be contacted though addresses on the electoral roll. Give or take 10 per cent change of addresses. But apart from that, there would be no problems. When they receive the letter, they will have to do jury duty. There’s no question of them being interested or not in being jurors. If they’re called, they have to do their duty.
The selection process would not result in delay and backlog. This is because after the names are short-listed from the electoral roll, the selection process where we see the prospective jurors for the first time only takes half the morning. To save time, this can be done at the pre-trial stage in front of the Registrar. That way, the actual length of the time of the trial in front of the judge will not be added to.
Arguments against jury retention include previous allegations of jury misbehaviour, the possibility of intimidation, personation and a general lack of comprehension. However attractive jury abolition may be to our lords and masters, both for political and financial reasons, the way forward is not the amputation of the patient’s head to save the rest of the body.
There is no reason on earth why the present system cannot be improved without radical surgery, particularly a system which has served the UK so well, by and large, over many hundreds of years. The answer lies in improving the jury. The protection of jurors and their education are simple practical steps. Whilst many would think that the ‘random’ selection of jurors is incompatible with vetting, it may nevertheless be desirable, in complex cases, to empanel a jury which the court can be assured has a comprehension of the proceedings they are to try.[vii]
Manickavasagar[viii] said that “seven members of the jury could always ‘see and sense’ better compared with a single judge hearing the case. If only the judge is hearing the case, he may miss out certain things like the demeanour of the accused or the witnesses.”
Besides that, it’s better to allow the peers of the accused to judge him as they may see things differently and have plenty of time to delve into the case compared to the judge. Jurors were also allowed to ask questions whenever they had doubts. The fact that no juror was ever charged with any wrongdoing or corruption spoke volumes about the advantages of the system. S. Gurdial Singh also said that “Why I feel the system is the best? Well, anyone would tell you that seven heads are better than one. In fact, eight heads are looking at the same matter because the judge guides us on matters pertaining to law.”[ix]
Datuk M. Ramalingam also said that, “I still remember the then High Court judge, Justice Ajaib Singh, telling the accused that he may have escaped the human law as there was no concrete evidence that could incriminate him. However, he would not escape the greater judge in his afterlife.”[x]
That is the uniqueness of the jury system. A system that is corruption-free because we cannot have all seven with crooked interests. One man cannot be made to judge the life of another. Also, the fact remains that intelligence could always be misapplied. Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim recently said even ordinary trials in the High Court should be heard before three judges rather than one.[xi]
On the other hand, a jury trial is not costly. When compared to a man’s life, it’s nothing. Previously, a juror was paid about RM70 a day. Since it took about two weeks to hear a case, it was nothing compared to a life.
The act of electing jury trial also brings in safeguards, including further independent review of the strength of the case and greater disclosure of the prosecution case.[xii] The jury system enables an accused to be judged by his peers, that is, the public, who will apply the standard of ‘the reasonable man’ The public will view the facts of the case without being burdened by legal technicalities, unlike a judge. Jurors are not illiterate and can be relied on to analyse facts intelligently.
Tan Sri Abdul Gani Patail said public participation in the jury system could ensure a better application of the ‘reasonable man’ standard on the question of facts during a trial. “Before people owned televisions or radios, they used to attend court hearings because they were interested in the law. Bringing back jury trials will allow them to participate. To me a law is a good law when the public can understand and be a part of it,” he said.
To sum up, the jury system is an established and, by and large, satisfactory institution for the trial of cases which affect reputation and liberty. In a democracy the judgment of the public is paramount. Peer justice is an essential aspect of the jury system. In serious cases, it is preferable to the continental tradition of a professional state-appointed magistracy.
There is an important constitutional point regarding juries. Were a dictator to seize power, apart from cowing from Parliament he would abolish or restrict trial by jury. This is because no dictator could afford to leave a person’s freedom in the hands of his countrymen. In Williams v Florida (1970), the Court stated that the chief function of jury is to safeguard the citizen against arbitrary law enforcement. Reinforcing the purpose is the jury’s role of preventing oppression by the government and providing the accused an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge.[xiii]
[i] De Tocqueville, Alexis. “What Tempers the Tyranny of the Majority in the United States,” Democracy in America (1969), Part II, Chapter 8, pp. 270-276.
[ii] Lord Devlin. The Hamlyn Lectures 1956.
[iii] Jury trials may be best way to keep graft at bay. New Straits Times (Malaysia) June 1, 2006 Thursday
[iv] Edmond, Gary and David Mercer, “The Politics of Jury Competence,” from Technology and Public Participation (University of Wollongong, 1998).
[v] a Malaysian practicing lawyer for 38 years.
[vi] Interview of Jagjit Singh, published in To be, or not to be judged by one’s peers, News Straits Times (23 Oct, 2006)
[vii] Stephen Gilchrist. (2000). The need for a better jury — the jury system has been part of the British legal system for hundreds of years. UK Law Journal.
[viii] Former court interpreter S. Manickavasagar, 84,
[ix] S. Gurdial Singh 81, retired teacher who had served as a member of the jury twice in the mid 80s.
[x] Datuk M. Ramalingam, 66, secretary-general of National Council of Justices of Peace and former Commonwealth Magistrates and Judges Association regional vice-president
[xi] A system free from corruption. New Straits Times (Malaysia) July 9, 2006 Sunday
[xii] Vicki Chapman. Jury trial safeguards must be kept. The Lawyer June 7, 1999
[xiii] Duncan v Lousina (1968).