As a criminal lawyer, one of the topics that I’m asked about most often is jury duty. For many people, it’s their only interaction with the criminal justice system (although there are jury trials for civil cases, most sitting juries preside over criminal cases). People usually want to know how to get themselves excused from jury duty, which is unfortunate. In many ways, a criminal jury trial represents the pinnacle of our justice system. It’s easy to think that you know what’s going on in a trial by watching one on TV, but there’s no substitute to being a juror, deciding the fate of another member of your community. In this article, I hope to dispel some of the mystery of jury duty and explain why it’s worth your while.
The jury pick
When you receive a summons to attend jury duty, you are still far from required to sit on a trial. Only a small percentage of people who receive a summons are actually selected to sit as a juror. For most people, the day will begin by waiting at the courthouse for a few hours (in some cases, even a few days) before being called to a courtroom where selection occurs. Generally, those with clear reasons for ineligibility are excluded first (e.g. hearing problems, language problems, familiarity with someone involved in the case, etc.). Next, each prospective juror is called randomly to approach the judge. They are permitted to address the judge directly if they believe there is a personal circumstance that might preclude them from serving. The most common are travel, work, and family constraints. It’s entirely up to the judge whether your personal circumstance will exclude you from selection, so bring any relevant documentation about your conflict if you have one. And keep in mind that if you are excused from that panel, you will usually be deferred to a panel in the near future.
Once the preliminary selections are done, the lawyers may ask you questions that pertain to the case. Where applicable, defence counsel could ask jurors if their ability to assess the evidence will be affected if their client is a visible minority. Another frequent question is if the jurors have been exposed to any media coverage of the case. These are called “challenges for cause” and are meant to exclude jurors who might have a prejudice about the case.
Next, the Crown and defence are given several “peremptory challenges” wherein they can exclude jurors for any reason, whether it be their demeanour, age or occupation. Generally speaking, lawyers try to select jurors that are more inclined to favour their side. The number of peremptory challenges depends on the defendant’s charge. There can be as many as 20 (in a murder case) and as few as four (where the risk of jail is five years or less).
A jury selection can take anywhere from half a day to more than a week, depending on the nature of the case and the challenges.
Sitting as a juror
If you’re selected as a juror, you have an elevated status. The result of the case lies in your hands. You are always the last to enter the courtroom and the first to leave when you come and go, the others in the courtroom (except for the judge) are required to stand. You are escorted to and from your room by deputies and, at most courthouses, you are provided with refreshments during the court recess.
Most jury trials take one to three weeks, although more complex cases can last for several months. For most people, this is a significant disruption to their lives. Fortunately, the court day is relatively civilized: most days begin at 10 am and end by 4:30, with a recess each in the morning and afternoon and a 60- to 75-minute break for lunch. During the course of the trial, legal issues will arise that require argument in absence of the jury, so it is common for there to be half or full days off throughout the trial.
One of the interesting aspects of being a sitting juror is that you’re generally left in the dark with respect to what you’re supposed to make of the evidence that you’re hearing. This is intentional. Jurors are supposed to approach the evidence with an open mind. Most cases will begin with general instructions from the judge on how to approach the task, followed by an overview from the Crown about how the case is expected to unfold. The rest of the trial will consist of evidence – of witnesses answering questions about their involvement in the case. It’s not until the end of the case that the lawyers are allowed to tell you their views of the evidence and why they think you should conclude the case a certain way.
Deliberations
Once deliberations begin, the procedures around a jury change to allow for complete privacy in order to avoid any tampering or influence of the verdict. All meals are provided for and you are housed at a hotel near the courthouse when deliberations conclude in the evening.
In a criminal trial, the decision of the jury must be unanimous. Understandably, this can take some time to happen. Most juries will return with a verdict within a few days, although in very rare cases, juries deliberate for weeks. A jury that is unable to reach unanimity is called a “hung jury.” When this occurs, the judge declares a mistrial. It is up to the Crown to decide whether they will prosecute a case a second time. This decision will depend on the type of case and how the trial went the first time. Generally speaking, the Crown will offer a more lenient position on sentence if someone decides to plead guilty after a hung jury.
The privacy afforded to the jury during their deliberations is indefinite. Unlike in the United States, Canadian jurors are prohibited from disclosing the details of their deliberations. As a result, most of what we know about what happens in a deliberation room comes from American research.
The role of a jury’s verdict
Juries are regularly instructed not to think about what sentence someone is likely to receive when considering their verdict. Nevertheless, most people are aware that a conviction for murder will result in a life sentence. A conviction in most jury trials will result in a term of imprisonment. Bearing this in mind, it is difficult to overstate the importance of a juror’s role.
The rationale of the jury system is that the public has a right to be tried by a jury composed of their peers. Our jury system has its roots in England. There, it was recognized that judges usually came from a different class of society than the accused before the court. In order to ensure fairness in the trial process, the jury was comprised of members of the community who were more similar to the accused than the judge.
Today, jury members come from all walks of life. It’s rare to see any commonality in a jury between age, gender, race or occupation. One of the things that I find most interesting in a jury trial is to see how 12 strangers become a group unified by their task as it progresses. For better or worse, jurors are forced to get to know one another in order to form a consensus. For most jurors, it’s one of the most memorable experiences of their lives. Inevitably, their decision will impact the person who is on trial for the rest of the life.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
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