Sunday, January 29, 2006

Book Review - Secrets of the Jury Room

This week's book review is Secrets of the Jury Room by Malcolm Knox. Malcolm Knox is the SMH's literary editor, and a few years ago got himself on a jury in a fairly serious criminal trial.

This book is the result of that trial. It doesn't tell the story of it, exactly, as Knox was forced by the defendant in that trial to completely disguise the trial so he (the defendant) couldn't be identified. That's my main irritation with the book - Knox was so (obviously) annoyed by this, that he spends far too much time talking about the arcane legalities about what you can and can't reveal about the jury room.

That aside, it is fascinating. I had expected a fairly pedestrian discussion of the trial that Knox himself was on. And there is a pretty interesting (but completely fictional) trial and jury described in the book. But at least half of the book is a readable, and serious, discussion of jury trials, their advantages, disadvantages, and the politics of them. Knox has talked to as many former jurors as he could (without soliciting - you are not allowed to ask jurors to tell you anything, they have to volunteer it) and read every piece of research (there isn't much) on the workings of juries in Australia. He's also read the US research, but thankfully doesn't use it too much, even though it must have been quite tempting given how little there is in Australia. He has talked to judges and barristers about what they look for in juries when trying to persuade them, and how they decide who to challenge during jury selection.

The eventual conclusion is that juries are an important, but very under-recognised part of the legal system. Most people who have been on juries were sceptics about whether they are a good decision making process, until they have been on one, when they see everyone, including themselves, taking the process much more seriously than they expected, and particularly being quite shaken up by the impact they are having on someone's life.

I've been on two juries (one of which, interestingly, was hung because of a single holdout juror) and I do agree that my fellow jurors took the process more seriously than I expected them to. There were some fairly base prejudices on display in my first trial - fortunately they cancelled each other out as the Aboriginal defendent was found not guilty, due to what seemed pretty obvious police verballing.

I was glad that this book contradicted the research that I read before going on my first jury - I had read that prospective jurors who look intelligent are likely to be challenged - but the way the Australian system works (challenges being solely on the basis of someone's name and appearance) tends to mean that challenges are based more on gut feel, and occasionally some ethnic similarity or difference.

The book ends with a set of recommendations about how to make juries work better ranging from the important (tell juries what they can and can't ask for in the jury room - many juries don't know that they can ask for the transcript of the trial, and judges are reluctant to tell them, because they think juries won't pay attention if they know they can get a transcript later) to the completely mundane (give jurors a meal allowance instead of providing inedible sandwiches every day).

He particularly points out that there are very few hung juries that have one single holdout juror, so abolishing the requirement for unanimity is unlikely to save the courts very much time, but may well change the dynamics of a jury room in a way that will lead to ganging up on people to change their mind in a situation where you have one too many holdouts.

Unfortunately, the political process being what it is, it's hard to imagine anyone changing their view of what to do about jury trials based on a book by a literary editor of the SMH, even one with a law degree, however well researched.


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