Legal Eagle on the radio

By Legal Eagle

I will be on Radio 2UE at ~6:10pm on Sunday 18 December 2011 in their program discussing legal issues, talking about Justice Peter McClellan’s recent comments on juries in New South Wales. In a recent speech to the Faculty of Law at the University of New South Wales, His Honour said:

The second challenge which I sense we will confront is whether we should continue to use lay juries in criminal trials. At one level and in some cases this issue raises the same questions as the first issue [judges resolving cases involving specialist disputes]. If there are difficulties for a judge in resolving disputes between experts these difficulties will be greater for a jury of lay people. Many criminal trials involve medical issues or the sophisticated expertise of forensic scientists. Increasingly the prosecution of white collar and financial crimes involve accounting issues and an understanding of market transactions. The complexities can be significant and the issues perplexing even for experts in the relevant field. But there are other considerations. Although very often people who have served on a jury report satisfaction (not enjoyment) from their participation in the decision making of the courts, there can be no doubt that resistance to serving on a jury is growing. There are “blog sites” and talk back radio programs devoted to advising people how to avoid jury service. With the increasing length of trials, the length of the average murder trial has at least trebled in the last 40 years, criminal trials are inevitably taking months not weeks. The community resistance to giving up time and having their lives disrupted for inadequate remuneration is likely to grow. The level of remuneration for jurors is a significant issue. Governments will never have the money to address it. The reality is that as trials take longer the cost to the State of maintaining the jury system, funding the courts, the prosecutor and in many cases the defence, will become an increasing burden. I suspect that as occurred with civil juries the costs of maintaining juries in criminal trials will become a matter of controversy. A trial with only a judge or multiple judges will be far less time consuming and would result in significantly reduced expense to the State.

As SL noted a while back, the largest number of hits on this blog via random Google searches arise when people enter “getting out of jury duty in New South Wales”.

I will post a link to the podcast when it becomes available.


  1. Jacques Chester
    Posted December 15, 2011 at 8:14 am | Permalink

    A middle step might be to have professional jurors. This has the advantage that it can be a change within the form, reducing the amount of knock-on consequences.

    Professional jurors could be trained distinctly from lawyers and judges, perhaps with an emphasis on such issues as bias and so forth.

    I remember thinking about this during my law school days. I think Ken Parish was modestly horrified.

  2. Posted December 15, 2011 at 9:11 am | Permalink

    If we’re going with professional jury then I’d rather go the other way and get experts in various fields rather than lawyers and judges. Perhaps even have specialised juries/judges for determining particular facts of a case (e.g. accounting jury, forensics jury, etc) where required.

  3. Adrien
    Posted December 15, 2011 at 11:58 am | Permalink

    Professional juries? What a great idea!

    Another layer of bureaucracy to be, um, influenced by factionalism and graft. Another founding stone of liberty outsourced to yet another species of technocrat.

    Perhaps we should have a professional electorate next.

  4. Adrien
    Posted December 15, 2011 at 12:01 pm | Permalink

    The problem isn’t the jury system.

    It’s the laziness and ignorance of the citizenry and the ever increasing complexity of everything – surfeit, I shouldn’t wonder – of the advantages that those who plug into the paradigms of jargon-based reality and heavy formula have over the laymen when justifying their privileges.

  5. kvd
    Posted December 15, 2011 at 3:16 pm | Permalink

    Well I must say I favour the Jeremy Clarkson approach: they should all be shot. Judge, lawyer, juror, miscreant, whatever. Who really cares? Just get it done, so we can get back to the important things like cricket, and Kylie Sandilands, and where to get a decent coffee ffs!

    And what’s with all these big flashy buttons? What’s ‘Posterous’ or ‘Sphinn’ or ‘Tumblr’? Can nobody spell anymore? Shoot them too, as well, and also. Where’s Jeremy?

  6. kvd
    Posted December 15, 2011 at 3:18 pm | Permalink

    those who plug into the paradigms of jargon-based reality and heavy formula

    Also anybody who says crap like that 😉

  7. kvd
    Posted December 15, 2011 at 3:33 pm | Permalink

    But the more serious side of the above is to say that a jury of one’s peers is just that. Not a panel of experts, differing with each area of ‘forensic proof’ of one’s guilt. Just common people, thinking through what is right, by their lights, and with no higher expertise.

    The judges and lawyers ‘worry’ about the ‘cost’ of that; I find that quite disingenuous.

  8. Patrick
    Posted December 15, 2011 at 5:16 pm | Permalink

    Juries are fascinating. Originally, the jury was one’s peers, from one’s locality, who judged on the basis of their knowledge of the facts – i.e. their knowledge of whose chicken it was. The Judge, if there was one, was to facilitate the jury’s findings and pronounce sentence.

    Somehow, iirc, it was mainly at one end the increasing practice of tribunals/petty courts sitting at local fairs, where they might adjudicate between two people with no local peers, and the fact that the fair judges charged for their services and thus were incentivised to provide quicker ‘fairer’ justice, and the appeal of admirality tribunals at the other end, which led to the erosion of this principle of juries as the holders of the facts and replaced it with juries as deciders of fact.

    I’ve gotten that wrong since it has been too long since I thought about it but I have always been fascinated by that shift.

    I do agree that more arcane ‘white-collar’ crimes are likely to involve issues beyond the average Judge let alone juror, though. Merely the time required to dissect the evidence probably depasses the average person’s ability to concentrate by some order of magnitude!!

    There is probably limited benefit in these cases being heard by a jury at all.

  9. Posted December 15, 2011 at 7:24 pm | Permalink

    And what’s with all these big flashy buttons? What’s ‘Posterous’ or ‘Sphinn’ or ‘Tumblr’? Can nobody spell anymore? Shoot them too, as well, and also. Where’s Jeremy?

    An upgrade of the “Sociable” plugin helpfully a) replaced the small icons with big wanky ones and b) blew away the list of sites I want listed as options. I’ve cut it down to a minimum.

  10. Posted December 15, 2011 at 8:15 pm | Permalink

    Paying jurors more would be a good start, along with making the money non-taxable. Queensland has done the first part but not the second, and I know when I was in the courts it helped. Making the moneys an honorarium (so non taxable) would, I think, fix the problem entirely. This was the Roman model — and remember, they needed to get 15 for a criminal trial and 12 for a civil trial (what we do in Scotland).

  11. Posted December 15, 2011 at 8:54 pm | Permalink

    Also, I would be willing to defund large parts of the modern state in order to keep the jury system on foot, if non-taxable, higher rates of pay are the answer. The one thing citizens can legitimately expect from their government is the traditional duty of the Leviathan: courts, police, fire brigade, prisons. There are serious arguments for dropping pretty much everything else. There are no serious arguments for privatising the state’s core duty of protecting the citizen from force, theft and fraud.

    [As an aside, I know libertarians who do make ‘privatise the state’ type arguments. Their arguments are, without exception, crap; in light of the evidence amassed by Steven Pinker, provably so].

  12. Posted December 15, 2011 at 11:32 pm | Permalink

    [email protected] I am so with you, both on juries and on the daftness of abolish the state. PInker does amass a lot of compelling evidence.

  13. Ripples
    Posted December 16, 2011 at 8:52 am | Permalink

    I can’t help but like juries. I think it is important that the normal day to day person be an adjudicator in trials to ensure persons with some understanding of the real world of the defendant have an input.

    Judges and Lawyers and prosecutors can understand and imagine things but it is nice to know there might be someone in the jury who has lived it.

    I do find that the persons who front up for juries in my area tend to be unemployed; homemakers or retirees who can manage to find time in their lives to attend to jury duty or don’t have an excuse to not participate.

    For many defendants this pool is not necessarily representative of their peers. Especially the restrictions in relation to convictions barring many persons from sitting on a jury means those of a like mind to some defendants don’t sit.

    I accept that some matters are very complex and could require particular knowledge to understand issues. I have no answer for this issue. I feel for prosecutions as the onus would tend to fall on them to present evidence of a complex nature in a manner the jury understands.

    This situation may favour a defendant as jury not understanding half the stuff being presented could lead them to having doubt not based on evidence but on their understanding of the evidence.

    Therefore some matters might benefit from a panel of judges rather than a jury.

    Yet I waiver as I still have my preference for normal people to be the judges.

    I have always considered jury duty to be a price the citizenry pay for having the right to be judged by peers. I am sure many opponents to undertaking jury duty would be a little disappointed should they not have access to a jury in the event they become defendants.

    I don’t know that there has ever been a mind set of the citizenry where they undertake things as a civic duty and are pleased to do so. If that could be encouraged it would help things.

    The increased pay would be of benefit.

    It would also be useful to have something to encourage employers to allow and assist employees to attend to jury duty. It would still be an issue in regard to lengthy trials to have employees absent for employers.

    Obviously I am a big proponent of defendants and ensuring they get as much advantage as possible against the states resources and powers.

    I am ineligible to sit on jury as a practicing lawyer, shame as I think it would benefit lawyers to know the challenges a jury faces in adjudicating.

  14. Mel
    Posted December 16, 2011 at 8:55 am | Permalink

    The complexity of court cases might have increased as mentioned in the OP but arguably this is compensated for by the increased sophistication of the general population and hence the pool of potential jurors. The early juries, I’m guessing, would have been largely composed of illiterate, unschooled and superstition-addled folk with an excessive respect for authority. Today we’re on the whole a much more sophisticated bunch and also brighter as suggested by the Flynn Effect.

  15. Patrick
    Posted December 16, 2011 at 11:37 am | Permalink

    ROLF LE.

    the main things I want the State to do is stuff like keep the roads repaired, take away my rubbish, help make sure my water is clean, keep me safe etc. It’s the provision of these kinds of services which is really important to me.

    You present this as if these things are more important to you than police, fire and courts. I doubt it, somehow. I am fairly convinced that if the garbo accidentally threw out Leaglet instead of the rubbish you’d want the state to react…!

  16. kvd
    Posted December 16, 2011 at 11:53 am | Permalink

    Patrick, in the US the police (chief), fire brigade, and court appointees to some extent are all locally funded, locally elected – as opposed to being primary functions of some government provided from on high. Along with the services that LE mentions.

    Anyways, your comment is probably a very good example of why lawyers are excluded from jury service. It’d be like herding cats 😉

  17. Mel
    Posted December 16, 2011 at 1:12 pm | Permalink


    “The one thing citizens can legitimately expect from their government is the traditional duty of the Leviathan: courts, police, fire brigade, prisons. There are serious arguments for dropping pretty much everything else.”

    I would add macroeconomic stability as a core expectation of government. This could only be dropped if the ultra-libertarian fantasy of a self-regulating market economy was true.

  18. Posted December 16, 2011 at 1:59 pm | Permalink

    [email protected] Macroeconomic stability is a worthy goal.

    Since 1993, Oz has been providing a text book lesson in macroeconomic stability, despite the highly volatile mining sector being 9% of GDP, and it is almost impossible to get anyone in the US, Europe or Japan to pay attention, outside a few of the better econbloggers. Sigh.

  19. kvd
    Posted December 16, 2011 at 3:50 pm | Permalink

    Now there you go, whatever you agreed or disagreed with, he made you think through your position. One of the very few people on this earth who I admired, unreservedly, for his wit and consistency.

  20. Posted December 16, 2011 at 10:16 pm | Permalink

    Yes, for the avoidance of any doubt, I wasn’t suggesting that the arguments against many state functions were all correct, or that I agreed with all of them — just that they could (in the right hands) be good — think of Robert Nozick. I’m reading Pinker’s The Better Angels of our Nature in fits and starts right now, and he has definitively, to my mind, destroyed the ‘privatise the state’ and ‘anarchism’ (whether capitalist or socialist) arguments. Quite a few other apriori philosophical systems are looking pretty seedy, too — Pinker really does seem to be heir to David Hume, except he does it with empirical data.

    I will review the book after exams, I promise!

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