Trial by ‘Doctored’ Peers: Preventing Prosecutorial Jury Stacking

Since reading Harper Lee’s To Kill a Mockingbird in high school, I’ve always been fascinated by the jury system. The fictional champion Atticus Finch taught me at a very early age that ‘a court is only as sound as its jury, and a jury is only as sound as the [people] who make it up’.[1]

Our jury system has principally outlasted the test of time as it is seen to be the mighty defender of democracy. Specifically in the criminal law context, the guilt of the accused is determined by a diverse representation of randomly selected peers. The process is supposed to ensure moral objectivity, impartiality and just outcomes. However, predicting human behavior has become a calculated art form since the early fifties, and this art form now questions the integrity of these democratic ideals by manipulating the construction of justice and promoting a trial by ‘doctored’ peers.[2]

Ask any candid defence practitioner and they will identify that ‘systematic jury selection’, or ‘jury stacking’ as it is otherwise known, is deemed necessary to remain legally competitive in our adversarial system of justice. Indeed, it is an inherent part of the defence advocate’s job description to utilise scientific methodologies to predict and eliminate those who are scientifically calculated to make decisions based on stereotypes.

According to the defence advocate, systematic jury selection by the accused goes to the very root of our fair jury system – the accused has the right to follow his or her personal objections, until exhausted, to ensure the belief that he or she is accurately represented by those empanelled.

In Victoria, the Juries Act 2000 currently grants a single defendant six ‘peremptory challenges’ so that he or she can oust jurors without having to show cause to the presiding judge.[3] This procedural right, in my opinion, is sound as it rightly promotes a sense of procedural fairness for the accused and ensures that the accused is more likely to accept an adverse decision reached by the jury panel.

However, when our adversarial system of justice accords the same procedural right to Crown prosecutors, serious injustices follow suit. In Victoria, the Crown is provided the ability to ‘stand aside’ six jurors for a single defendant without having to show cause to the judge.[4] The practical difference between the right to ‘stand aside’ and ‘peremptory challenge’ is minimal, as the juror who has been stood aside joins the back of the jury queue and is highly unlikely to be empanelled.

As with all democratic ideals, serious threats pose to minority groups such as the Aboriginal population who are over-represented in the criminal justice system and under-represented as peers of the accused. For example, in the 1981 unreported decision of R v Smith, Judge Martin of the NSW District Court discharged the jury after numerous challenges by the Crown to empanel an all white jury against an Aboriginal defendant. In doing so, His Honour expounded, ‘It is a very important principle of our system of justice that justice must not only be done, it must appear quite clearly to be done… If I allow the situation to continue some members of our community, of our country, may think that appearances suggest that justice is not being done’.[5]

At the heart of the problem is the fact that prosecutors must be seen as being objective. Using stand aside procedure to affect the structure of the jury pool promotes the notion that the Crown is fundamentally subjective. One must remember that the burden of proving the guilt of the accused rests with the prosecution. Thus, the question of who is empanelled should not be of concern to the prosecution as ‘beyond reasonable doubt’ should apply to all jurors – not just those whom the Crown deems as most likely to agree. And if there is a clearly subjective juror within the jury pool, then the prosecutor should be required to stand up and justify his or her challenge by showing cause (under s 37).[6]

Admittedly, Prosecutorial Guidelines in Victoria expressly stipulate that Crown prosecutors are prohibited from exercising the right to stand aside on the basis of age, sex, race, physical appearance, and occupation.[7] The Guidelines provide that stand aside procedure should only be adopted in circumstances where a juror:

• is seen talking to a party involved in the trial;
• is related to the defendant or practitioner;
• has made a biased remark;
• has expressed an unwillingness to participate; or
• has an obvious disability.[8]

The problem with these Guidelines is that there is no reasonable way of ascertaining if prosecutors are legitimately adhering to the Guidelines or simply engaging in jury stacking. If we want transparency and prosecutorial accountability in the jury empanelling process, it is my belief that we must do away with stand aside procedure (s 38) and demand prosecutors show cause to the presiding judge under s 37 as to why they believe a certain juror cannot be competent or objective to sit on the jury panel.

Only then will justice be done, and seen to be done.

What do you think?

Ali Besiroglu