Shopping to improve The System

Andrew L. Urban

Jury research, divorcing forensic services from police and quality control of The System – a shopping list for reforms in a new book by Professor Stephen Cordner AM and Dr Kerry Breen AO. 

It was 8.45am when I walked through the doors of the Downing Centre Courts in Sydney’s Liverpool Street … with apprehension. A bored security guard pointed me downstairs to the jury gathering & administration area. This is the old Mark Foys department store building, once dedicated to shoppers looking for expensive goods. These days, those walking through its doors are shopping for justice. Also expensive. I had been summoned for jury duty. My summons said I would be required for 28 weeks. Hence my apprehension. The growing crowd of would-be jurors mixed with jurors already selected, heading to one of the courts. Us ‘newbies’ were shown a short video, Welcome to Jury Service, to calibrate expectations and responsibilities. Have a look.

By 10.30-ish I was dismissed, to be summoned again at a later date. As I walked into the bustle of the morning, I wondered what sort of trial I had missed out on. Might it have been a murder trial, like the one in 12 Angry Men (Sidney Lumet, 1957)? Might I have been the modern equivalent of Juror 8 (Henry Fonda), whose sceptical caution forces the others to consider the evidence more carefully before a hasty guilty verdict? The Reginald Rose screenplay is a monument to cinema.

The jury summons seemed as if the universe had picked up on my preoccupation with juries, an occupational necessity perhaps, for anyone concerned with wrongful convictions. And the subject grew ever larger in my mind as my research for posts and books led me to consider the whole subject. Most recently, I was alerted to a new book that touched on the subject of juries, Wrongful convictions in Australia: Addressing issues in the criminal justice system by Kerry Breen & Stephen Cordner*. Their book canvasses the many areas of concern that contribute to wrongful convictions, all of them familiar to readers of this blog. But I was interested to read what they say about juries, not least because they echo my own views. (Confirmation is always welcome…)

The need for anonymity and privacy for those who serve as jurors is fully understood. Nevertheless it is surprising and disappointing to us that so little research has been conducted into how juries in Australia make their decisions. As a result we have little idea about the thinking of jury members, individually and as a group. We know little about how juries function in particular cases, whether they understand and follow all the instructions they are given, or how they feel if their decisions are overturned on appeal. In making this plea for such research, we are reassured to observe that this was a recommendation made by the Australian Law Reform Commission (ALRC) in 2005 but disheartened that it has not been acted upon.

 In its 2005 report the ALRC stated: Jury decision-making should not be regarded as sacrosanct, beyond critical examination. Empirical research, and our understanding of jury deliberations in general, remains hindered by secrecy requirements imposed upon common law jurors in Australia and elsewhere. Meaningful jury reform requires the piercing of this veil of secrecy, aided by greater efforts by judges to use existing powers to help juries achieve verdicts in a fair manner and according to the law. We suggest that jury research has become even more essential and that it can be done ethically by recording anonymous interviews with jurors who are willing to discuss their jury experience.

 Here are a series of questions that might be asked:

How and why was the foreperson appointed?

Did that person perform their role well?

 If you were the foreperson, were you given adequate information about the performance of your role and adequate support within that role?

Was the juror confident and comfortable with the decision reached jointly?

Was pressure brought to bear by a more dominant jury member?

How much was the juror helped or influenced by the jury discussions?

Was the juror confident that she/he comprehended and recalled all the evidence that was presented?

Was the juror confident that she/he comprehended and recalled the instructions given by the judge?

How could the task of each jury member be better assisted (e.g. via enhanced use of technology)?

Did the juror discuss the case with anyone outside the jury either during the conduct of the case or subsequently?

Did the juror search the internet or look elsewhere for information relevant to the defendant, the evidence, the law or the decision-making process?

Was the juror exposed to and possibly influenced by media coverage of the alleged crime or coverage of the court case?

If so, via what type of media?

The answers to the last of these questions would be valuable since serious concerns have been raised about the extensive world-wide electronic access to information and about the use of court orders to suppress media coverage locally, orders probably no longer fit for purpose.

 And I would add another layer of questions, to do with the reasons for the verdict, such as what evidence swayed the jury most? That would elicit information that is the equivalent of a judge’s reasons for a decision. Something of huge value, especially if the verdict is appealed.

Their critiques are respectful of the system and show deference (especially to judges) as the authors emphasise the importance of reforms that we have ourselves sought for some time, noting the difficulty that judges, barristers and juries may have in comprehending complex forensic or scientific evidence. This difficulty was identified forty years ago when forensic pathologist, Dr Vernon Plueckhahn, advised a judicial conference that: ‘Scientific evidence in the judicial process is the most elaborate form of interdisciplinary communication that has yet been attempted’. His comment echoes strongly today. Much of the science is now more complex with difficulties in comprehension and transmission multiplied.

independent of any police force

We therefore recommend that all forensic science services in Australia should, where necessary, be restructured to make them genuinely independent of any police force and to place them in an environment in which more research is funded and undertaken, especially into those forensic sciences where fundamental validity is weak. We note that this is not a new recommendation as Justice Morling in 1987, when calling for a national institute of forensic science, emphasised that such an institute must function independently of the police forces. There is unlikely to be one single path to achieve the aim of effective independence for forensic science and thus we do not propose any particular path.

 If all of Australia’s forensic science services are made independent of the police forces, then it would follow that the National Institute of Forensic Science (NIFS)9 will also need to be de-linked from the police forces. We note that Justice Vincent in his 2014 review of the NIFS concluded that the NIFS ideally should be a stand-alone independent body. Indeed, if forensic science in each jurisdiction is to become independent and develop a strong academic base, it may well be that the NIFS can be re-purposed. In due course, Australia’s independent forensic science profession may wish to establish its own national mechanism for sharing advances, regulating the profession and assisting in the continuing education of its members.

Deferential yet determined, the authors make a strong case for looking at the justice system with the same critical eye with which society looks at the health care system. Quality control of the legal system is imperative.

Returning to our earlier analogy with the health care system, a miscarriage of justice leading to a wrongful conviction should be regarded by the criminal justice system in the same light as the most serious of adverse events affecting a patient in hospital. A wrongful conviction should lead to the equivalent of a root cause analysis in health care (or in the case of a fatal aircraft crash, the equivalent of a meticulous aviation safety investigation) with lessons learned then published and officials assigned to implement recommended remedies. If such a quality system approach were to be undertaken regularly by the criminal justice system, it may well be seen – to pick but one example – that incorrect, inflammatory, or biased addresses by the prosecution are a more significant problem than is currently understood.

Unsurprisingly, the authors conclude that a key reform would be the establishment of a Criminal Cases Review Commission. They provide a check list of questions that might be posed to help frame the nature and function of such a Commission.

*Professor Stephen Cordner AM is Emeritus Professor in the Department of Forensic Medicine at Monash University and a forensic pathologist. For twenty-seven years he served as the inaugural Director of the Victorian Institute of Forensic Medicine (VIFM) and frequently gave evidence in the criminal courts. In addition to publishing extensively in his field, he has focussed on humanitarian and human rights aspects of forensic medicine internationally.

*Dr Kerry Breen AO is an adjunct professor in the Department of Forensic Medicine at Monash University. He is a specialist physician with extensive experience of chairing medical tribunals and serving as a part-time member of the federal AAT. He has published over 150 professional papers, three textbooks and four medical biographies. He and Professor Cordner jointly authored Good Medical Practice: Professionalism, Law and Ethics, now in its fourth edition.