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Book Review: Juries in the 21st Century Print E-mail

book_juries_intro.jpgAuthor: Jacqueline Horan

Publisher: The Federation Press.

214 pages, soft cover,

Reviewed by Brian Morgan

I will commence this review by saying that over the past 40 plus years of practice, I have been involved in a great number of jury trials, both in the criminal and civil jurisdictions, albeit not in Queensland. When I saw this book advertised, my interest was immediately sparked and you will see why, as this review proceeds.

The 12 good people and true are a time honoured method of determining guilt or otherwise in criminal trials and, in the many in which I have been involved, only twice did I think they got it wrong. In one of those cases, I later changed my mind when my client committed another crime using the identical procedure. In the other, to this day, I continue to think their decision was wrong.

Thus, I remain an advocate of jury trial. But my mind could not help but think about whether our approach to these trials was keeping abreast with the times and with the increased use of computer animation, power point presentations and the like. We remain very conservative in our approach to how we present our evidence to a jury. In contrast, we would not think of giving a lecture to the public without modern aids.

This excellent book is written by Dr. Horan, an academic Victorian barrister who has taken my thoughts to a much more refined level, resulting in a text from which anyone who engages in jury trials, or intends to do so, can gain a great deal.

The book considers juries from the beginning, that is, jury selection, right through to the presentation of evidence to them. Juries in the 21st Century considers the results of jury polling in a number of States as well as the results of some mock jury trials. The book, generally, tries to use this feedback to guide the legal profession in attaining a better understanding of how jurors are selected and what makes a jury tick.

Perhaps to me, the most informative chapter of this book is that which considers scientific evidence. I include in that subject, statistical evidence. Very few of us would ever forget the Lindy Chamberlain cases and how forensic evidence seemed so important to that jury’s decision. Since then, we have had a proliferation of cases apparently decided almost solely on DNA evidence. But as Dr. Horan points out, the legal profession accepts, without reservation and perhaps too readily, statistical evidence which is probably not within the expertise of the witness and which, in any event, may be suspect. She considers, albeit briefly, mock jury research with 571 Australian high school students in which they were willing to convict even when presented with evidence having low statistical significance. The mock jurors recorded the same conviction rate for random match probabilities of 4000 and 400,000 and were more likely to convict when the figure went up to 4 million.

I have sometimes seen what Dr. Horan and others have called the “CSI effect” where juries are so attuned to crimes being solved within an hour, purely by scientific evidence, that they expect the prosecution to present them with the case, all gift wrapped, in the same way. We know that, in real life, this rarely happens. I refuse to watch such television shows, I hasten to add, because it is so easy to pick holes in them.

Dr. Horan also considers expert evidence in the sense of joint experts, single experts, concurrent expert evidence and, importantly, the problems that arise where the prosecution experts and defence experts give their evidence days or weeks apart, making it particularly difficult for the jury to compare them.

Finally, I commend to you the discussion of what evidence should be made available to the jury when it considers its verdict and in what form. We all know how juries are directed that they must not make their own inquiries but must base their decision on the evidence heard in the Court. In a matter I was involved in some years ago, notwithstanding this direction, the foreman went out at lunch time and obtained documents from a local council which he then shared with the other jurors. That jury was discharged and a retrial ordered. Dr. Horan discusses detective juries in some thought provoking depth.

Let me leave you with the suggestion that every page of this book contains thoughtful material of how we can better present our evidence to a jury. I did not agree with everything that was said. But every comment that I read was thought provoking and challenged my own personal views. Surely, that is the hallmark of a first rate textbook.

This newly published book is highly recommended.

Brian Morgan

Chambers

27 February 2013


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