Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

8. The importance of representative juries

Reform will make our society more inclusive. If juries include a wider range of people, then a wider range of views will be offered in the deliberation process. A broader cross-section of people will provide a more accurate reflection of the community.^[1] —Australian Institute of Interpreters and Translators

Overview

• Enabling people from the subject groups to serve on juries will ensure that juries are representative of our community and satisfy a key purpose in the Juries Act 2000 (Vic).

• Representative juries:

– assist with impartial decision making by bringing diverse views to the case which may balance out any individual bias; and

– provide the community with confidence in the justice system by allowing them to participate in the administration of justice.^[2]

• Greater representativeness than is currently the case would spread the obligation of jury duty more broadly across the community.

Improving representativeness is a key purpose of the Juries Act

8.1 A key purpose of the Juries Act 2000 (Vic) (the Act) is to provide for the operation and administration of a jury trial system that ‘makes juries more representative of the community’.^[3] Victoria’s Juries Commissioner Paul Dore observes that a jury ‘represents the community from which it is drawn, a cross-section of citizens, each with their own experiences and opinions, standards and expectations’.^[4]

8.2 In our report Jury Empanelment (2014), the Commission adopted the Parliamentary Committee’s articulation of the representative principle that juries should be:

an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, gender, occupation and socio-economic status.^[5]

8.3 The key means of achieving a representative jury is for jurors to be chosen randomly or impartially ‘rather than chosen by the prosecution or the State’.^[6] After random selection from the electoral roll, rules and practices in the jury selection and empanelment process filter out certain people, thereby limiting the representativeness of the jury. For example, the Act excludes particular professions from jury service (see Chapter 2). Peremptory challenges may also impact on representativeness because some groups are more likely to be challenged than others (see Chapter 17).^[7]

8.4 Rather than direct exclusion through the Act, it is the failure to provide reasonable adjustments and the operation of the 13th person rule that limits the participation of people from the subject groups. It is these indirect exclusions that we address in this report.

8.5 Ensuring that juries are also representative of people in the subject groups would benefit juries and the justice system generally.

The advantages of representative juries

Decision-making processes in diverse juries

8.6 Good decision making through diversity benefits the justice system and society as a whole. Research in the United States indicates that jury diversity can help strengthen its decision making.^[8]

8.7 A United States study by Samuel Sommers involving 200 participants on 29 mock juries examined the effect of racial diversity on group decision making. In the study ‘participants deliberated on the trial of a Black defendant as members of racially homogeneous or heterogeneous mock juries’.^[9]

8.8 The study concludes that by ‘every deliberation measure examined in the present research, heterogeneous groups outperformed homogeneous groups’.^[10] It was found that ‘diverse juries deliberated longer, raised more facts about the case, and conducted broader and more wide-ranging deliberations … They also made fewer factual errors in discussing evidence and when errors did occur, those errors were more likely to be corrected during the discussion’.^[11]

8.9 Sommers’ research challenges traditional assumptions that the influence of diversity comes from the ‘contributions of minority group members’ who educate others and bring ‘new perspectives and experiences to the table’.^[12] Instead, Sommers suggests that the benefits are broader than these assumptions with diversity leading to superior decision making overall. In this case it was ‘not that the minority members of the jury were more thorough or accurate than the white jurors, but in diverse juries, all members of the group take more care to examine the evidence and reflect critically’.^[13]

8.10 Academics who ran a mock trial involving a deaf juror in New South Wales observed that:

The feedback suggested that jury deliberations involving an Auslan interpreter were more ordered and in a sense more democratic than usual. People were less likely to speak over each other and interrupt each other. This was also the experience of a deaf juror who was appointed as a foreman juror in New Zealand.^[14]

Jury participation encourages confidence in the justice system

8.11 A 2004 study of the views and attitudes of a sample of jurors who had completed jury service in six English courts found that, for the majority, jury service increased people’s confidence in the court system.^[15] A similar finding was made in a United States survey by David Rottman, which examined public trust and confidence in California courts.^[16] Rottman identified that most (56 per cent) Californians’ involvement in a court proceeding came about when they responded to a jury summons or served as a juror. The study found that the ‘jury is the prime audience for the state courts, and the best available mechanism for disseminating positive information on the courts by word of mouth. Specific policies and programs should be directed at maximizing this potential’.^[17]

8.12 Similar observations were made in 2011 by the former Victorian Juries Commissioner:

In a democracy it is essential that every opportunity is provided for the public to participate in the administration of justice. As a consequence of serving as jurors members of the public become part of the court itself. This in turn has served to increase the level of confidence in the courts and the general administration of justice as was recently highlighted in a 2011 Victorian Juror Feedback Survey, where 43% of respondents indicated that their level of confidence in the criminal justice system was higher as a result of their participation.^[18]

8.13 The County Court observed:

Community participation through the jury system is a vital and important part of our justice system and promotes public confidence in the rule of law and the administration of justice. 

The trial process offers the opportunity to educate the community and for those who sit on juries to, in turn, educate others. This opportunity should not be restricted to people without disabilities.^[19] 

8.14 The exclusion of people in the subject groups from juries means that they are only experiencing the justice system as victims or litigants, witnesses and defendants or supporters of others. Therefore, Victorian courts are missing the opportunity to build trust and confidence in the justice system amongst the people in the subject groups more broadly.

Trial by one’s peers

8.15 Representativeness is also linked to the notion of a ‘trial by one’s peers’.^[20] Disability rights organisations have observed that defendants with disability are denied the opportunity for a trial with a jury that may include their peers.

8.16 The exclusion of people from the subject groups means that the ‘experience of disability is not available for jury consideration during trials’.^[21] Associate Professors Bruce Baer Arnold and Wendy Bonython note that this exclusion is a ‘distortion of the legal process which is not defensible on the basis of cost or administrative inconvenience’.^[22] Youth Disability Advocacy Service noted in consultation:

[we have] heard countless experiences of people with disabilities who have been witnesses, victims or defendants in the Victorian court system. They participate in a trial with a judge, lawyers and jurors who have no understanding of their lived experience. Having jury members who have disabilities would counterbalance this.^[23]

8.17 Victoria Legal Aid (VLA) identified in its submission that approximately one-quarter of VLA clients disclose having a disability or experiencing mental health issues. VLA commented:

Juries serve an important role in the democratic process; if juries are to be representative of the community, diversity is necessary to ensure that legal decisions reflect the attitudes and values of the whole community. Including people who are deaf, hard of hearing, blind or have low vision to participate in juries (and all components of the legal system) will ensure juries represent the diversity found within the general community, and enable defendants with hearing or vision impairments to have a juror which [sic] shares some of their lived experience. It could also improve access to juror participation for Aboriginal and Torres Strait Islander people, who have a disproportionately high rate of vision and hearing impairments.^[24]

8.18 The Commission acknowledges that enabling people from the subject groups to serve on Victorian juries does not necessarily mean that they will indeed serve on a trial involving a party or a witness with a disability. Representativeness as a concept does not extend that far. However, reform is an important step towards normalising the presence of people with disabilities in all aspects of a trial and the court system generally.

Community responses: representative juries

8.19 Community responses to the consultation paper supported the benefits and reiterated the importance of representative juries.^[25] Brent Phillips, a deaf man who in 2014 was not allowed to serve in Victoria with an Auslan interpreter, noted:

Deaf people come from all walks of life: professionals, managers, lawyers, tradesmen, parents, and contribute to society as much as anyone else … We should be given the opportunity to serve on juries, particularly if deaf people who are on trial are tried by a panel of non-deaf people.^[26]

8.20 Juries Victoria made several observations about the importance of representative juries:

The representative nature of juries is a central feature of the jury system, ensuring a variety of views, values and life experiences are brought together in the consideration of relevant court matters.

… A jury represents the community from which it is drawn, a cross-section of citizens, each with their own experiences and opinions, standards and expectations. Where a particular segment of the community is excluded from jury service, the jury system’s capacity to act as this voice may be reduced.

The Victorian Parliament saw fit to enumerate a number of categories of both compulsory and voluntary exclusion from jury service in the Act. However, only four of these categories result in a permanent exclusion from jury service, thereby seeking to strike a balance between excluding members of the community on reasonable grounds, and having the broadest possible inclusion of the community in the jury process.

This represents an acknowledgement that juries are enhanced by a broad inclusion of the community, an acknowledgment which is reinforced in section 1 of the Act […] Indeed, if juries are to be truly representative of the community, diversity is essential in ensuring they reflect the views and values of the whole community.^[27]

8.21 Both the Supreme Court of Victoria and the County Court of Victoria also emphasised the importance of representativeness.^[28]

Sharing the obligation of jury service among the community

8.22 The other key purpose of the Act is to equitably spread the obligation of jury service amongst the community.^[29] Active citizenship involves shared responsibility. Former Juries Commissioner Rodolfo Monteleone comments:

Jury service is an important but onerous civil responsibility … Deciding another’s fate is a trying ordeal, and the financial and emotional burdens of jury service can be significant even in the most simple cases.^[30]

8.23 In its report A Review of Jury Selection, the Queensland Law Reform Commission (QLRC) acknowledges that ‘jury service is a burden and can disrupt a citizen’s life’. No other civic obligation is like jury service in this way.^[31] The QLRC observed that ‘a large pool ensures that the burdens and benefits of jury service are shared as widely and fairly as possible, and reflects the fact that jury service is both a duty and a privilege’.^[32]

8.24 When people in the subject groups serve as jurors the responsibility of jury service will be shared more broadly across the community.

1. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)).

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2. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 32, citing Mark Findlay, ‘Juries Reborn’ [2007] (90) Reform 9, 3, 7, 10.

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3. Juries Act 2000 (Vic) s 1. Mr Loney (Geelong North), who was a member of the Law Reform committee which undertook the juries enquiry, noted in Parliament that: ‘Central to our discussions was the issue of exclusions. If we want a representative jury pool we must drastically reduce the number of exclusions. In Victoria under the [Juries] 1967 Act it was about as hard to get into a jury as it was to get into the Australian test team’. Victoria, Parliamentary Debates, Legislative Assembly, 15 March 2000, 376 (Peter Loney).

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4. Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust, 2018) 31.

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5. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 9 [2.7], citing Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1996) vol 1 [1.20].

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6. Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011) Appendix A, 447.

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7. For example, women are more likely to be challenged in criminal trials: Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 42–43; Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 33 [3.92]–[3.96]. Broader societal factors also limit the participation of some groups of people, for example, whether a person is on the electoral roll, if they live regionally or remotely and can get to a court, whether they speak or understand English, and whether they are a recent migrant: see Lord Justice Robin Auld, Ministry of Justice (UK), Review of the Criminal Courts of England and Wales (Report, September 2001) ch 5 [6] <https://ials.sas.ac.uk/eagle-i/review-criminal-courts-england-and-wales-right-honourable-lord-justice-auld-september-2001>. People may also seek to be excused. The jury eligibility form requests additional information from people seeking to be excused for medical reasons, distance from the court or because they are self-employed, casual workers with unpredictable shifts, work for a small business, have primary caring responsibilities, are a student or an apprentice: Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020.

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8. Richard Lempert, ‘The American Jury System: A Synthetic Overview’ (2015) 90(3) Chicago Kent Law Review 825, 839, 856.

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9. Samuel R Sommers, ‘On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations’ (2006) 90(4) Journal of Personality and Social Psychology 597, 597.

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10. Ibid 608.

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11. ‘Racial Diversity Improves Group Decision Making in Unexpected Ways, According to Tufts University Research’, ScienceDaily (Web Page, April 2006) <https://www.sciencedaily.com/releases/2006/04/060410162259.htm>. Sommers also concluded that more diverse juries were ‘more open-minded in that they were less resistant to discussions of controversial race-related topics’: Samuel R Sommers, ‘On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations’ (2006) 90(4) Journal of Personality and Social Psychology 597, 608.

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12. ‘Racial Diversity Improves Group Decision Making in Unexpected Ways, According to Tufts University Research’, ScienceDaily (Web Page, April 2006) <https://www.sciencedaily.com/releases/2006/04/060410162259.htm>; Samuel R Sommers, ‘On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations’ (2006) 90(4) Journal of Personality and Social Psychology 597, 608.

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13. Christina Marinakis, ‘What Are the Benefits of Having Diversity in a Jury Panel?’, Litigation Insights (Blog Post, 30 September 2015) <https://www.litigationinsights.com/benefits-diversity-jury/>.

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14. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

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15. The research was based on interviews (a combination of qualitative and quantitative methods) with 361 jurors who had recently completed jury service at six Crown Courts in England. Those courts were Southwark, Central Criminal Court (Old Bailey), Wood Green, Blackfriars, Snaresbrook and Norwich. The research took place between October 2001 and October 2002. The interviews were conducted by telephone after jurors completed their jury service: Roger Matthews, Lyn Hancock and Daniel Briggs, Juror’s Perceptions, Understanding and Confidence and Satisfaction in the Jury System: A Study in Six Courts (Online Report No 05/04, Home Office UK, 2004) <https://webarchive.nationalarchives.gov.uk/ukgwa/20110218141448/http://rds.homeoffice.gov.uk/rds/pdfs2/rdsolr0504.pdf>, discussed in Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 12.

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16. David B Rottman, Trust and Confidence in the California Courts—A Survey of the Public and Attorneys (Report Part 1, National Center for State Courts, September 2005). Between November 2004 and February 2005, a survey examining trust and confidence in the Californian courts was conducted. Over 2,400 Californian adults were surveyed regarding their knowledge about the courts and the sources of that knowledge; perceived and experienced barriers to court access; experiences as jurors, litigants, or consumers of court information; expectations for what the courts should be doing; and sense of the accessibility, fairness, and efficiency of the courts. At the same time, over 500 randomly selected practising attorneys were interviewed for their views on topics covered in the public survey and on issues relating to their conduct of business with the state’s trial and appellate courts.

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17. Ibid 4, Executive Summary, Recommendation 1.

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18. Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 29.

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19. Submission 14 (County Court of Victoria).

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20. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 31–32 [3.83]–[3.84]; Civil Society Report Project Group, Disability Rights Now: Australian Civil Society Shadow Report on CPRD (Report, August 2012) 81 [223].

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21. Civil Society Report Project Group, Disability Rights Now: Australian Civil Society Shadow Report on CPRD (Report, August 2012) 81 [223].

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22. Submission 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)).

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23. Consultation 17 (Youth Disability Advocacy Service (YDAS)).

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24. Submission 8 (Victoria Legal Aid).

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25. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)); Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity); Online Survey (Response 20). Similarly, in 1997 the Victorian Law Reform Committee reported that ‘The overwhelming number of submissions were in favour of Victorian juries being representative of the Victorian community’: Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [3.127].

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26. Sylvia Varnham O’Regan, ‘Deaf Victorian Man Denied from Serving on Jury Calls for “Discriminatory” Law to Be Changed’, SBS News (online, 24 November 2014) <https://www.sbs.com.au/news/article/deaf-victorian-man-denied-from-serving-on-jury-calls-for-discriminatory-law-to-be-changed/cvjppq9j2>.

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27. Submission 13 (Juries Victoria).

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28. Submissions 11 (Supreme Court of Victoria), 14 (County Court of Victoria).

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29. Juries Act 2000 (Vic) s 1.

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30. Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 25. This paper goes on to explore the need to protect the security and privacy of jurors.

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31. Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011) 68 [5.26].

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32. Ibid 67 [5.23].

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