Is it possible to have a socially distant trial by jury?

Image: RTÉ Brainstorm
May 13 2020 Posted: 15:43 IST

Author: Dr Rónán Kennedy and Dr Conor Hanly, School of Law

Opinion: here are some suggestions to ensure constitutionally mandated jury trials can take place in a safe environment for all participants

Trial by jury for serious offences is a fundamental element of Ireland's criminal justice system, guaranteed by our Constitution. It is a safeguard: for all its power, the State cannot punish a person on trial without the consent of the jury. For this reason, the jury has been called the palladium of liberty, and the lamp that shows that freedom lives.

In a statement on March 16th, the senior Irish judiciary announced the effective suspension of jury trials for the duration of the emergency brought about by the coronavirus. The suspension is temporary, and the criminal justice system will have to resume at some point regardless of the virus situation. Crime has not stopped, and there are many indictments that require resolution. Victims and accused are entitled to closure.

But there is a real issue in running jury trials when the lockdown is relaxed, as courthouses are not designed for social distancing. According to a statement from the Irish judiciary on March 31st, the Courts Service is putting "remote court hearings" in place. On April 20th, it piloted virtual hearings for civil cases. Perhaps jurors in a criminal trial could perform their duties remotely? Jurors could also engage in virtual deliberations, thus removing the need for any physical interaction.

As a Scottish Government discussion paper makes clear, there are serious logistical and security issues involved in this approach. Jurors would need to be accommodated somewhere, and be provided with safe and secure computer equipment. Physical security would need to be provided for each juror to ensure against external influences. A study by British non-governmental organisation Transform Justice recommended against "trial-by-Skype", finding that technology threatens defendants’ rights and undermines trust in the criminal justice system. Both judges and litigants in civil cases have already expressed unease about the loss of the human and emotional dimension in remote hearings. This would be even more likely and more damaging in criminal cases, which often turn on an assessment of credibility.

Anyone called for jury service in pandemic conditions will reasonably fear an increased possibility of infection. The Courts Service is already trying to spread jurors around the courtroom instead of confining them to the jurybox, and has allowed them to deliberate in an empty courtroom instead of in the much smaller juryroom.

We applaud these efforts because the core of jury trial – a randomly selected body of citizens brought together to hear evidence, to deliberate in secret, and to announce a verdict with the voice of the community - must be preserved. What else could be done to protect this key institution?

Lawyers tend to resist changes to their hallowed institutions, but we should never allow the perfect to become the enemy of the good

We might temporarily reduce the size of the jury, which would assist in social distancing efforts in the courtroom. This has been done in other jurisdictions in wartime, and the United States Supreme Court ruled in 1970 that such a reduction was acceptable providing the jury was large enough to include differing perspectives. Six was the minimum number of jurors that the Court was willing to accept, though we would be nervous about anything less than eight jurors. Research indicates that larger juries typically conduct qualitatively better deliberations that include more perspectives and recall greater amounts of evidence.

We can also reduce the number of potential jurors called for jury service in the first place. Using the electoral rolls, the Courts Service creates a representative panel of jurors, which is a constitutional requirement. Many of those will demonstrate a statutory exemption and be removed from the panel. Nevertheless, a large number of eligible persons will be crammed into the courtroom in which the random selection takes place. This is to allow for challenges – each party may peremptorily challenge (i.e., not give any reason) up to seven jurors, and an unlimited number if cause is shown. Experience also suggests that 10 to 30% will ignore their summonses, which must be taken into account.

We could recommend a pre-selection selection to reduce the number of people called to physically attend for jury selection. The initial panel would be reduced by random ballot, in the presence of the lawyers, to a much smaller panel required to attend court, where the final selection would take place. This would be required to allow all sides to exercise their challenges.

We might also abolish the peremptory challenge entirely, reducing further the number needed in the final selection. England and Wales abolished peremptory challenges decades ago with no apparent ill effect. Without peremptory challenges, a final panel of 20 persons to fill an eight-person jury should be enough. This would also allow the selection of alternates, in case jurors become infected during the trial.

If more than one jury is being selected, 20 for each could be called to the courthouse at staggered intervals. Anyone chosen for final selection should be contacted by post, and again by telephone the day before,  informed of the social distancing measures being put in place for their safety, and be reminded that jury service is a legal requirement enforced by prosecution if necessary.

Lawyers tend to resist changes to their hallowed institutions, but we should never allow the perfect to become the enemy of the good. Our suggestions, along with the measures already being implemented by the Courts Service, will allow constitutionally mandated jury trials to resume without affecting the core elements of trial by jury.

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