No wonder people try to get out of jury duty

By Legal Eagle

Crossposted Online Opinion – 10/8/09

When I was a young and green blogger with only my own small site, one of the posts which got the biggest hits was entitled “Excuses for getting out of jury duty“. It must be a disappointment for Googlers who are looking for convincing excuses – the post actually links to a set of pathetic excuses offered to the NSW Juries Commissioner, including “My budgie is sick.” How one can have the cheek to write an excuse like that, I’ll never know, but desperation leads people to do strange things.

I’ve had two family members on juries in the past year – one on an extended matter, one on a matter which lasted a few days. Apparently they’ve made it much more difficult for people to get out of jury duty because they were concerned that the only people who sat on juries were those who had nothing better to do. All I can say as a result of watching my family members’ experience is – No bloody wonder they have such a hard time getting people to sit on juries.

First, the “pay”. In Victoria, jurors get $36.00 per day for the first six days, and then $72.00 for any subsequent days. At least, the juror’s employer has to keep paying the difference between the juror’s salary and the pay they get from the Juries Commissioner. The employer is entitled to “dock” the employee’s pay to reflect the pittance they get for serving on the jury. But it’s pretty hard if you’re self-employed – then your income is adversely affected, and there’s no one to keep paying you. In the case of both my family members, serving on a jury actually cost them money, because they incurred costs they would not otherwise have incurred (transport costs, primarily). To my mind, paying people $36.00 a day is an insult – it suggests that the service is not valued (despite protestations to the contrary).

Secondly, there’s the great stress being on a jury puts a non-legally qualified person under. And they can’t talk about the case to anybody. At least I could be supportive of my family members because I have worked in a court before, and I know how stressful it is to be contributing to a decision which will totally change the parties’ lives, particularly when you can’t talk about it to anyone. Often, jury cases involve gory details in one way or another (personal injury, murder, sexual assault etc). And in a criminal law case, you’re deciding on someone’s liberty – a very heavy burden indeed. I’m glad to see that the Juries Commissioner offers counselling to jurors if they need it.

One thing that really annoys me is the way in which the press reports jury decisions. I wrote a post a year ago about the Thomas Towle case, where Towle was charged with culpable driving and dangerous driving. The jury found Towle not guilty on culpable driving, and there was outcry from the press and the victims’ family. Now, it’s understandable that the victims’ families are upset, and I don’t blame them for expressing that. I’m sure if someone hurt or killed one of my family members, I’d be outraged if that person didn’t get maximum sentence. But then…it is for precisely this reason that we don’t get victims’ families to judge crimes, we get 12 ordinary people off the street.

I think that some media outlets are irresponsible in whipping up the outcry of the families. As I said in commentary on the Towle case, the fact of the matter is that when people are given more information, their levels of punitiveness drop dramatically. Juries are given far more information than a simple media report, and therefore it is more likely that their opinion is carefully considered. The other thing is that not all evidence which is seen by the victims’ families and the press is shown to the jury. Some evidence is held to be inadmissible, generally because it is not reliable enough to base a conviction upon. The jury can only base its conclusions on the evidence it sees. It can actually be quite stressful for a jury member to find out after the event that certain evidence was ruled inadmissible.

Jury members are not allowed to talk about their experience, which is understandable and appropriate; but the problem is that most of the general public is not aware of this (perhaps because of the different position in the US) and may innocently attempt to question a juror without realising what the legal position is. Jurors are in a similar position to judges, in that they can be freely criticised by the press, but unlike judges, they don’t even have the comfort of issuing a judgment to explain their decision. In fact, they can’t say anything to anyone at all. The more I think about it, the more I’m convinced juries should be able to issue a brief statement of reasons which explains their decision:

I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. …[T]he more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict.

I suspect I would be quite a good juror (if I do say so myself) but of course, as a lawyer, I’m not eligible to sit on a jury. I note that the Victorian government is considering proposals to broaden the scope of the jury pool to include lawyers, politicians and judges. I’m not convinced that is a good idea. As I’ve discussed in another earlier post, I think the way in which lawyers are trained to analyse facts is quite unlike other people, and accordingly, it means that they view things in quite a different way to normal members of the human race:

I only ever saw a Court proceeding once as a layperson… It was a Magistrates’ Court session in the UK; we were on a school excursion. Afterwards, a Magistrate gave us various case examples and asked us to guess the outcomes were. In every single case, our class came to the opposite conclusion to the actual decision. We would have locked up the lady who seduced the boy scouts and we would have found no negligence in the case of a young driver whose drunken passenger stuck his head out of the window and died as a result. I came out thinking that the law was terribly unjust and that I would never ever be a lawyer. Famous last thoughts.

I had forgotten about that trip to the Magistrates’ Court until I began to write this post. It’s salutary to remember how strange the law can seem to other non-lawyers. And that sometimes, the legal constructs we put up to guide decisions are against the instinctive reactions of ordinary people.

Rather than broadening the scope of the jury pool to encompass lawyers, I think the Victorian government should compensate jurors more adequately for the creditable and difficult job they undertake. Then people might not try to escape being a juror by using sick budgies as an excuse. And I think there should be some understanding and acknowledgement by the media and the general public of the valuable public service that jurors provide.

38 Comments

  1. conrad
    Posted August 4, 2009 at 3:41 pm | Permalink

    Everyone always comments about how bad it is for the self-employed, but it’s bad for everyone. Even in many big organizations, many people are spread fairly thin on the ground. Just imagine if your systems administrator or the guy that teaches those two subjects no-one else knows about and supervises 5 honors students got deleted for a semester (perhaps you could be that person!). It would be a disaster.

  2. Posted August 4, 2009 at 4:58 pm | Permalink

    Hmm … seriously, how is this different to someone getting sick, being in an accident, or, umm, taking maternity leave?

    All of the above have the same effect on the workplace and workloads. Not much, in other words.

    The most notable aspect of white-collar work is that, for the most part, when someone is not there, no one notices and the world does not collapse. No disasters. Organisations, large and small, do not fall apart because one person goes away. Organisations aren’t reliant on individuals.

    I hadn’t read about the proposal for Victorian juries, but it’s so wrong I’m surprised that it’s being considered.

    Do we really have so many judges and politicians and lawyers in Victoria that any problems of summoning up jury numbers would be solved? We already have four million or so people to draw upon. How would the numbers be improved by inclusion of these groups? And, wouldn’t members of all three groups have, well, somewhat more important things to be doing than the rest of us, and, therefore, be even less well disposed to taking time out for jury duty?

    As a dumb-arsed solution to a non-existent problem, it’s pretty strange.

    People might be reluctant to be on a jury, but they have few options for getting out of jury service.

    Most people called up don’t even end up on a jury.

  3. Posted August 4, 2009 at 5:02 pm | Permalink

    1. the budgie may have been a very special champion budgie ?

    2. my friend the crim barrister tells me jury members often collapse at the horror of photos they have to examine.

    3. the hazard of having to judge a fellow human is a reason to avoid being on the electoral roll.

    4. my friend the court artist was terrified to be given the evil eye by the defendant – just terrified, and will never accept the job again. I wouldnt want the evil eye from Big JudyMoran either.

  4. thefrollickingmole
    Posted August 4, 2009 at 5:52 pm | Permalink

    My biggest problem with juries relates strongly to what appears to be a defence cousels main tatic.

    It is part of the defences job to throw doubt on the prosecution’s “facts” as alleged. In too many cases that appears to be twisted into “confuse the jury and cop the lesser charge/aquittal” which has had a corrossive effect on peoples respect for the law.

    Police prosecutors who charge with murder often end up with lesser convictions.
    Canberra for example hasn’t had anybody murdered for 10 years. Amazing but true.

    http://www.canberratimes.com.au/news/local/news/general/police-argue-act-murder-law-too-lenient/1575730.aspx

    “Commander Zuccato blamed the narrowness of the current laws for there being no successful murder conviction in the ACT since July 1998..”

    So if the police use that as a reason to widen the laws, that’s not a good outcome.

    The defence council who steps over the line between raising doubt about the prosecution’s case, and deliberately setting out to confuse a jury are the main cause of the breakdown in the jury system.
    Ad to that the increacing “need” for every single detail of any evidence to be noted, signed, co-signed, registered, tested etc and you allow any single item to turn a case, regaurless of its merits.

  5. Posted August 4, 2009 at 5:59 pm | Permalink

    It has become much more difficult to ‘get out of’ jury duty in NSW. Basically impossible, unless you have already booked to leave the country or can get a doctor’s note. It’s a real conundrum, I think, because even if you want to do it it can, as other have pointed out, cause serious difficulty in the workplace if the trial is prolonged. One thing that would help would be if the person’s usual wage was paid to their employer. At least they might be able to hire a casual and replace some of the work to be done.

  6. Posted August 4, 2009 at 6:09 pm | Permalink

    Great post. I have always been thankful that I am ineligible to serve on juries. I hope it stays that way.

    That said, I am not sure how useful juries are in many matters. But that is, perhaps, a debate for another day – and one that I should give some more considered thought to.

    I lived briefly with my father in the US and after I moved back to Australia he used to get at least 3 letters a year (over 10 years ) requiring me to attend jury duty over there – despite being informed each time that I lived in Australia. So weird.

  7. Posted August 4, 2009 at 7:00 pm | Permalink

    I’m going to take a radical view here. There should be no bar to sitting on a jury. In the UK lawyers can be jury members.

    I also think court cases should be televised unless there is a good reason why they should not be. And, I think jury deliberations could be televised too. Moreover jury members should be able to talk about the case after the decision has been rendered.

    In these days of social media there is something almost quaint about the jury system. I support it but it must be modernized. Jurors can twitter, google, etc. Inadmissable evidence can be introduced by the back door. So it’s time to deal with it not ban it.

  8. Sinclair Davidson
    Posted August 4, 2009 at 7:32 pm | Permalink

    Having positive views about public flogging and the death penalty gets you off too.

  9. conrad
    Posted August 4, 2009 at 7:49 pm | Permalink

    “but they have few options for getting out of jury service. “..”Having positive views about public flogging and the death penalty gets you off too.”
    .
    A simpler solution than trying to get out of it is not to get in it at all — don’t enroll to vote.

  10. Posted August 4, 2009 at 7:52 pm | Permalink

    LE : have you read “The Wasps” by Aristophanes?

    Anyway, the plot centres around a son who is trying to stop his father from turning up for jury duty every day – the father was addicted to it.

    Athenian jurors were pensioners, volunteered themselves, and were paid “lunch money”. It’s an interesting idea, drawing a jury from those who are retired – minimizing any economic downsides to individuals and the city.

    They argue back and forth about the advantages and disadvantages of being a juror – being able to make law, being flattered by the high-and-mighty hoping for a favorable decision, versus not enough pay. etc, etc, etc.

  11. Posted August 4, 2009 at 8:11 pm | Permalink

    [email protected]: I’ve got one volume with BOTH Congresswomen and Wasps waiting for when you get your pigeonhole back.

  12. Jacques Chester
    Posted August 4, 2009 at 9:18 pm | Permalink

    I’m not formally exempt, but I expect that if I mentioned I was a law student I might get passed over.

    In the classic libertarian analysis, jury duty is an abomination. It’s pretty much slavery: the forced extraction of labour without choice. It’s also a hidden tax on the businesses deprived of that person.

    I think Rothbard proposed professional juries. Prosecutors and Defenders would agree on which juror companies to engage for the trial, that company would then supply 12 professional jurors. These jurors could be trained to see through the usual tricks, be well versed in logic, evidence (scientifically as well as legally), aware of human biases etc etc. Essentially the usual advantages of division of labour.

    It would cost more but would be much less morally dubious.

  13. Jacques Chester
    Posted August 4, 2009 at 9:44 pm | Permalink

    I could also give this speech.

  14. Posted August 4, 2009 at 9:47 pm | Permalink

    As a law student, I got called for jury duty but no matter what I did, I did not actually get onto a jury, though I *really*, *really* wanted to.

    Having sat as a Judge’s associate and watched juries listen to evidence and lawyers, I have faith in the jury system. Most took their roles very seriously and most would see through the more unscrupulous tricks a defence lawyer would try to pull.

    It would be better if perhaps unfeasible, IMHO, to change attitudes towards juries – instead of people wanting to get out of it as chore, encourage people to want to get onto juries as a a higher civic duty: better pay being one of the first steps.

    Not enough brain at the moment to think what other steps … but I don’t agree with the idea of professional juries (although I should have to read Rothbard further I think). I think it’s important to have people completely fresh to the particular case.

  15. Posted August 5, 2009 at 1:59 am | Permalink

    Queensland has gone some way down the path towards making jury service more attractive. When I finished in the system, you got $33 just for showing up to be empanelled, and each day you sat, you got just under $100 a day. It was designed to ensure jurors were drawn from a more representative cross-section of the population.

    I do remember, for example, the importance of getting a decent number of young men (if you were the Crown) on rape cases. For a range of reasons not fully understood (and difficult to research in Australia), it made it easier to secure a conviction. You did not want a jury dominated by older females.

  16. Posted August 5, 2009 at 8:28 am | Permalink

    Being self-employed I also found jury service both disruptive and costly to my business. However as I have only been called up once in my 59 years, I accepted my month in the jury pool as my civic duty.
    During this time I served on 2 juries – one ran for 2 weeks and the other aborted after an hour!
    I found the experience to be both positive and broadening, it improved my understanding of and respect for jurors and the jury system.
    My only criticism is the excessive time it takes for matters to go to trial (2-3 years), I believe this undermines the veracity of the testimony of witnesses, and makes it more difficult for the jury to reach a finding beyond reasonable doubt.

  17. thefrollickingmole
    Posted August 5, 2009 at 9:06 am | Permalink

    I like the 3 classifications in that old post you linked mad,bad and the sad. There really are some sad cases, momentary brain farts that can wreck a persons life. Mad, well they will always be with us, no legal changes will protect society (or the offenders themselves) from this.

    But its the badwho seem to be the problem. If a person has profited enough from their enterprises to afford a silk, they become effectively immune from punishment. Thats what I think a lot of people are concerned about (Mr sin, and a number of WA’s “colourful northbridge identites” spring to mind).

  18. conrad
    Posted August 5, 2009 at 1:30 pm | Permalink

    “I just came to note that Japan had abolished the jury system, but has just reintroduced it.”
    .
    If I remember OECD stats correctly, then that probably isn’t such a fuss, because they only commit around 1/5th the numbers of crimes per head as Australians do, so presumably that means only around 1/5th the number of the jurors.

  19. Jeremy
    Posted August 6, 2009 at 3:04 pm | Permalink

    “And they can’t talk about the case to anybody”. Well, that’s not quite true:

    The Juries Act says that ” person who is or has been a juror must not disclose any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury if the person has reason to believe that any of that information is likely to be or will be published to the public.” On my reading, that doesn’t stop a juror from justifying his or her decision to anyone they want, so long as he or she doesn’t refer to what was said during the deliberations.

    As regards talking to family members, that’s allowed under the last bit (although another provision criminalises anyone who ‘solicits or obtains’ a disclosure, whether published or not. So family members – and the media – need to just listen, I guess.) The Act also provides exceptions for: (i) publicly available information; (ii) disclosures that don’t identify the proceedings; (iii) disclosures to doctors or psychologists for treatment purposes. But a further complication is that it’s a criminal offence for jurors to ‘make enquiries’ during a trial. And I imagine that judges, exercising their usual prerogatives, typically tell jurors not to talk to anyone during the trial or risk contempt of court. So, talking during the trial will be problematic.

    All that being said, I’m not so sure about LE’s idea of jurors giving a public explanation f their reasons. That’s just a recipe for successful appeals, surely? As for the UK’s dropping of most disqualifications, that ran into trouble last year when the House of Lords held that it would be contrary to the UK Human Rights Act to let police officers sit as jurors in cases where state misconduct is alleged. Tricky stuff. And, as for the pay issue, eh. Jury service is both a privilege and a responsibility of citizenship.

  20. Posted August 6, 2009 at 3:36 pm | Permalink

    Sinclair – Having positive views about public flogging and the death penalty gets you off too.

    What is it with you and public flogging?

    I’ve always wnated to get in to jury duty but they never pick me. 🙁

    Which is just as well. I’d be a pain in the arse.

  21. Chris Grealy
    Posted August 6, 2009 at 4:20 pm | Permalink

    Are you SURE you really want to know the reasons for a jury verdict. How about this? A man attacks his partner repeatedly with a knife, following her around the house. There are multiple stab wounds, and she needed surgery to repair an artery. It’s pure luck that she is still alive.

    The defense does not call any witnesses. In his summing up, he tells the jury that they cannot look inside his head. Perhaps he only meant to scare her.

    Immediately, FIVE of the jurors take the position that, “Yes, maybe he only meant to scare her. We can’t prove that he was trying to kill her.” If they keep to that, who’s going to be the poor bunny who explains that verdict? “Sorry, he is guilty as sin, but we got five morons on the jury.” How well would that go down?

    And this, my friends, is why jury duty is so stressful. It’s not the pittance that is paid, it’s the fact of having to be locked up with a bunch of absolute morons for god knows how long.

  22. Posted August 6, 2009 at 4:49 pm | Permalink

    Mmmm. Maybe in Hell there’s jury duty. Graeme Bird and Tim Lambert serving together for eternity. 🙂

  23. Posted August 6, 2009 at 4:50 pm | Permalink

    John Flood @9: In NZ trials are televised, and this has been very controversial recently in the case of a narcissistic defendant who seemed to be getting off (not literally – he was convicted) on the detailed descriptions of his own actions in stabbing his lover (who had been his student) many times while her mother tried to break the door to the room down. There’s a press report here and googling clayton weatherston will bring you much more. The full horror of the evidence really upset people, and many turned off the news for the duration.

  24. Posted August 6, 2009 at 5:45 pm | Permalink

    (1) If we limited jurors (especially for trials expected to be take a fair while) to senior executives and board members on the basis that they can afford the time off work, there’d probably be a side benefit of many happier workers – and perhaps better corporate performance if the gossip pages of the Fin and Business Age are to be believed.

    (2) If it’s philosophically ok to have ordinary able-minded citizens without special training able to decide on whether a law has been broken, then perhaps it’s also fair to say a lottery system could apply to deciding if legislation is to become law in the first place – have a 3 month stint by lottery at a fair percentage of backbencher pay, replacing all the backbenchers…. no electoral office costs, elections only for executive positions (PM/cabinet, and perhaps election of individuals for individual portfolios), and much less chance of party-room corruption.

    (3) Alternatively, especially for white-collar criminal cases, jury duty could be limited to a lottery of those who get LESS income than jury duty would provide. Pensioners and the unemployed sitting in judgement on folks like the conveniently amnesiac Alan Bond? I’d like to see that!

  25. Posted August 6, 2009 at 11:31 pm | Permalink

    M-H @30, I sympathize with the awfulness of this, but without television spectators in court would hear and see this. So for me TV is a matter of degree rather than kind. And despite all that, the jury has to sit and listen to it. They can’t switch off.

    Court TV has been successful in the US in showing a range of cases, criminal and civil. I think it’s a good thing if people can see what’s going on in court. Otherwise there is a real danger that their only experience of court will be Judge Judy and we don’t want that!

    Alternatively to TV court proceedings could be streamed over the internet. In both cases, TV and internet, there is choice as to whether one watches or not.

    The more we open up institutions, the better it is.

  26. Posted August 7, 2009 at 6:08 am | Permalink

    I agree John. I’m not against it myself, although I’m not sure I would bother to watch much of it. But this particular case does seem to have galvanised public opinion in NZ, and has also lead to discussions about the ‘provocation’ defence. But as I’m not a lawyer, nore am I married to one, nor do I play one on TV, I don’t have well-developed opinions on this. I’m just reading along.

  27. JusticePreacher
    Posted October 7, 2010 at 7:52 pm | Permalink

    Check out this youtube clip on getting out of jury duty in Australia. Interesting approach and sad facts….

  28. JusticePreacher
    Posted December 16, 2011 at 7:40 pm | Permalink

    Interesting article on NSW Court of Appeal Justice McLellan and how he suggests juries should be abolished.

    http://www.news.com.au/national/justice-peter-mcclellan-calls-for-court-review-of-jury-process/story-e6frfkvr-1226221446555

    Reliably informed the “blog” he talks of giving tips on getting out of jury duty is the Youtube clip in my last post. Nice to see a layman can rattle the cage of the highest courts.

  29. Xanthe
    Posted June 21, 2012 at 7:13 pm | Permalink

    Sorry to comment on an old post but in WA the experience seems to be very different – although as a 19 year old law student I have yet to find out if this is true! We recently tightened the excuses you can give to get out of jury duty too (I think in 2010 from memory) but by law employers must continue to pay the same wages or salary a juror would otherwise be earning. The State reimburses any employer who applies for such a reimbursement and any transport costs are covered. I don’t know what the situation on childcare is but I’d assume a system similar would exist. Jury duty is a civil responsibility and people need to recognise that as the system currently exists, flawed or not, they need to contribute to it in a positive, not negative, manner.

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