Friday, 5 December 2008

Should justice be blind, or more insightful?

The shortcomings of our justice system in dealing with sexual violence has been a frequent topic of discussion at THM, and an article in yesterday's Dom Post provides more food for thought.

Unbeknownst to me - and probably many of us - it's common practice for Police to provide Crown prosecutors with info on potential jurors before a trial. Jurors can be vetted on the basis of this information, which includes their criminal convictions, acquittals, withdrawn charges, jurors' criminal associations and which jurors had been crime victims.

Lawyers are petitioning the Supreme Court, claiming the practice of vetting is a miscarriage of justice. The Solicitor-General has defended the practice, arguing that it would be inappropriate to have a convicted sex offender on the jury of a sexual violence trial.

But what should be the limits of this vetting, and what checks and balances govern (or ought to govern) the information which Police can provide? What's the threshold for deciding someone's not suitable to be on a jury? What crimes should disqualify a person from being a juror, and under what circumstances? What's the rationale for removing victims of crime from juries - do we think they'll be hysterical and irrational? And what does it mean to be judged by one's peers anyway?

There are a lot of questions to be asked here, and trade offs to be made between seem ethical values and others. I look forward to the insightful comments of THM readers...


Idiot/Savant said...

What's the rationale for removing victims of crime from juries

They don't actually say they remove victims - and from the prosecution standpoint, they'd be people you'd be hoping to get.

A jury is supposed to be a randomly selected body providing a cross-section of society, to act as a bullshit detector. Unless there is an explicit exclusion in law for criminals, the police should not be allowed to stack the process in this manner.

muerk said...

Hmmm... I would hate for a person convicted of rape in the past to be on a jury for a rape case.

Anna said...

You might well be right, I-S, but the rationale for the Police giving info about jurors' convictions would then be different from the rationale for disclosing whether jurors had been victims of crime.

In the first case, you can say that having a convicted rapist on the juror compromises the fairness of the trial, or is undermining of the dignity of the complainant. But in the second case, the Police would be advising the prosecution on how to gain a potential advantage.

Also, criminal convictions aren't necessarily a very accurate gauge of someone's character. Someone with a conviction from long ago might be a better juror than someone with no convictions, but misogynist views.

Recently, I was (apropos of nothing at all) doing some research on what a dickhead Dr Phil is. It transpires that he lost his license to practice psychology in Texas because of unethical conduct (how dodgy do you have to be to be deemed unethical in Texas?). He made his fortune renting himself out to lawyers and constructing psychological profiles of potential jurors.

muerk said...

I don't like Dr Phil's advice a lot of the time. And from what he's said about himself I'm not fond of Dr Phil either. I think he had a sexual relationship with one of his patients and that was what got him struck off.

I'm pretty sure he got his current gig because he helped Oprah with her hamburger law suit.

Anna said...

Hamburger law suit? Tell me more!

The ex-expat said...


Answer here

Hugh said...

I've got to agree with Idiot here. While the idea of somebody with a rape conviction serving on a jury for a rape trial may seem pretty unpleasant, trying to exclude them is very much falling into the "decent people vs crims" mindset of the SST which we've all so heartily abhorred a couple of posts back.

Anna said...

Something that seems like a logical problem with all this is that a juror's ethics or character shouldn't affect their efforts as a juror. A juror's job is to listen to the evidence, consider it according to the judge's instructions, and make a yes or no decision about guilt. So long as you do this, your personal opinions shouldn't matter. Jurors are to some degree automatons - they're not supposed to insert their ethical stances into trials, whether these are good, bad or indifferent.

If this is the case, the only people you can logically exclude from a jury are those who don't have enough respect for the rule of law to be trusted to follow instructions when they consider the evidence (leaving aside competence issues, which is a whole other debacle). You might argue that a person convicted of a crime doesn't respect the law - what particular law they've broken isn't that relevant.

People don't necessarily behave like this, of course. I was on a jury with a woman who was convinced that the defendant must be guilty of indecent assault because he was a cannabis smoker, and should in fact go to prison anyway whether he'd indecently assaulted anyone or not.

This woman would have passed any good character test, but she was very keen to insert her personal views in a way that undermined the rule of law idea. Someone who had had a conviction, but followed the judge's instructions regardless, would have made a better juror.

I'm not saying any of this is a good thing, but why worry about the character of jurors when character doesn't have much to do with it?ja8peri5cute

Julie said...

If our justice system was focused on rehabilitation having a convicted criminal on a jury would probably actually be a disadvantage to the defence, as someone who had been through the experience of having to face their own guilt might be less likely to be lenient on someone? I don't know.

And for that reason I think I'd have to say that I would not be uneasy about those with convictions for sexual crimes being on the jury for such a trial. Because hopefully they will have come out of the system more insightful and aware than when they came in. A naive hope on my part perhaps.