Our Constitution provides
that a person accused of
a criminal offence has
the right to a fair and
public hearing by an independent
and impartial tribunal.
There is no provision for right
to trial by jury. Thus, while a person
charged with a grave crime
has for many years been entitled
to the right to be tried by a jury,
this is not a constitutional right,
as was held in appeals to the Privy
Council in 1976 and later in 1980.
The Government has stated
its desire to abolish jury trials in
respect of some offences (“blood”
crimes, I believe) and when this
law is brought to Parliament I expect
there will be many reactions
to the proposal, for and against.
It is acknowledged, though,
that many countries in the world
do not have jury trials, some of
them Commonwealth countries
with similar legal systems to
ours.
In some countries where they
existed previously the law intervened
to abolish such trials to enable
judges alone to try all offences.
Such countries include India,
Singapore and South Africa.
Yet, in other countries such as
the UK and the USA jury trials
predominate for serious crimes.
It has been said that trial by
jury provides a means of bringing
community norms and values
into judicial proceedings and also
educates citizens about self-government.
In fact, even in criminal trials
in T&T, jurors are frequently
told that their sitting in the jury
provides an opportunity for them
to contribute in a real way to the
criminal justice system.
Even though trial by jury
originated in England over 1,000
years ago as trial by one’s peers
and grew in importance over the
centuries, the reality was that in
England and later the US there
was very little of trial by one’s
peers.
First of all, women were not allowed
to sit as jurors until the 20th
century.
Secondly, until recently, in order
to qualify as a juror, a person
had to be possessed of a certain
amount of property in a country
where most defendants were poor
lower-class persons.
In the United States, it was only
in 1875 that African Americans
were given the right to serve as
jurors. This however did not mean
that they were actually selected.
In practice black people continued
to be excluded from juries
whether because they lacked property
qualification or through challenges
by the lawyers.
Booker T Washington observed,
at the end of the 19th century, “In
the whole of Georgia and Alabama,
and other Southern states,
not a negro juror is allowed to sit
in the jury box in state courts.”
It was only in 1946 that the US
Supreme Court invoked its supervisory
power over the administration
of federal justice and struck
down the exclusion of daily wage
earners from jury service which
had existed until that time.
The court said it refused to
“breathe life into any latent tendencies
to establish the jury as the
instrument of the economically
and socially privileged”.
So much for the assumption
that trial by jury is by one’s peers
and is the preferred and fairest
type of trial.
An infamous case which
demonstrated this was
not so was the 1992 trials
in California of some
white police officers for the beating
of Rodney King.
The police officers were in
their first trial acquitted—by a
jury consisting mostly of whites
and no black jurors—of using excessive
force in the violent beating
of King even with a videotape
showing King trying to get up, despite
the beating.
After ensuing riots the officers
were tried for different offences
on essentially the same facts and
were convicted by a jury that included
black people.
Apart from the issue of personal
prejudices there are other
considerations when assessing
whether jury trial is the best option.
BS Oppenheimer, writing in
the University of Cincinnati Law
Review as far back as 1937, denounced
the jury system in these
words: “We commonly strive to
assemble 12 persons colossally
ignorant of all practical matters,
fill their vacuous heads with law
which they cannot comprehend,
obfuscate their seldom intellects
with testimony which they are
incompetent to analyse or remember,
permit partisan lawyers
to bewilder them with their
meaningless sophistry, then lock
them up until the most obstinate
of their number coerce the others
into submission, or drive them
into open revolt.”
While that statement may be
somewhat extreme it is a fact that
in T&T after their selection it has
often been determined that one or
more jurors were functionally illiterate
or easily intimidated.
In recent times, the percentage
of “hung” juries has risen.
This latter circumstance may also
be owing to the fact that some jurors
are unwilling to make decisions
that could lead to significant
terms of imprisonment or death
sentences.
Even in the UK, with its long
tradition of jury trials, there has
come an acceptance that in some
cases trial by jury is not preferable.
The 2003 Criminal Justice
Act allows a judge to order
a trial to be conducted
without a jury where he
is satisfied that there is a real and
present danger that jury tampering
will occur, despite whatever
reasonable steps are taken to prevent
it.
In addition, in respect of serious
or complex fraud cases, an order
may be made for a judge trial
without a jury.
There is one reason, if for no
other, that I would support a decision
to abolish jury trials, at least
in certain cases. It is because, unlike
other decision-makers, juries
are not required to give reasons
for their decisions.
Their deliberations are conducted
in private, out of sight and
hearing of the judge, litigants, attorneys,
witnesses and others in
the courtroom.
No one knows, except through
partial secondary sources, why
they arrived at the decision they
did. In this day and age that is not
acceptable.
Dana S Seetahal is a former
independent senator