U402 B ENGAGING IN JUSTICEAdversary System and Juries

Key Knowledge major features of the adversary system of trial, including:

the role of the parties; the role of the judge; the need for the rules of evidence and procedure; standard and burden of proof; and the need for legal representation.

strengths and weaknesses of the adversary system of trial; major features of the inquisitorial system of trial; possible reforms to the adversary system of trial; the role of juries, and factors that influence their composition; strengths and weaknesses of the jury system; reforms and alternatives to the jury system; problems and difficulties faced by individuals in using the legal system; and recent changes and recommendations for change in the legal system

designed to enhance its effective operation.

Elements of an effective legal system:

F ~ fair and unbiased hearing; A ~ effective access to the legal system; T ~ timely resolution of disputes.

Key Skills define key legal terminology and use it

appropriately; discuss, interpret and analyse legal information; apply legal principles to relevant cases and issues; critically evaluate the adversary system of trial; compare the operation and features of the

adversary system with the inquisitorial system; critically evaluate the effectiveness of juries; and suggest and discuss reforms and alternatives to

the adversary system and the jury system

SAC Details

SAC 2B Tuesday 8th Sept (Term 3 Week 9) 2.30PM

Adversary System

Adversary System of trial The adversary system of trial is where two opposing parties, or

adversaries, fight in court to win their legal battle. The trial is presided over by an independent and impartial umpire,

and is conducted according to rules of evidence and procedure. The role of the adversary system is to provide a procedure for the

parties to present and resolve their case, in as fair a manner as possible.

The adversary system operates in both civil and criminal cases. In a criminal case the state is trying to prove the guilt of the

accused, and the accused is fighting to be found not guilty. In a civil case the party bringing the case is trying to prove that

the other party was in the wrong and the person who is defending the case is trying to show that he or she was not in the wrong.

Major features of the Adversary System

Role of the parties Role of the judge Rules of evidence and procedure Burden and standard of proof Need for legal representation

Role of the parties In the adversary system of trial each party

controls their own case and has complete control over decisions about how the case will be run as long as the rules of evidence and procedure are followed.

This is known as ‘party control’. The parties in the adversary system are

responsible for instigating proceedings, investigating the facts, deciding which evidence to present, investigating the law, deciding whether to have a jury in a civil case and choosing whether to have legal representation.

Evaluation of role of the parties

The parties are more likely to feel satisfied with the result if they have been able to control the conduct of their case. Party control is particularly important in

criminal cases in that a person is prosecuted by the state but does not have to depend on the state for their defence.

In civil cases, the parties are able to settle their differences with little interference from the state.

The parties are able to: Control their own case Engage legal representation to present their

case in the best possible light Decide what facts are brought before the

court

However, particularly in civil matters, party control can lead to further animosity between the parties instead of settling their differences in a more amicable manner.

Party control may also disadvantage the parties, as it relies on the parties bringing out all the evidence that is favourable to their case. Some vital evidence may be missed and the court may reach an unfair decision.

Party control may also lead to more delays and increase the costs involved as the parties are responsible for their own case and having to pay for legal representation in order to win the case.

Pro’s Con’s

Role of the Judge The judge or magistrate has the role of ensuring that the court processes and procedures are

carried out according to the strict rules of evidence and procedure and each of the parties is treated fairly. The judge must act as an impartial umpire and not favour either side.

The judge or magistrate has the following responsibilities: Keeping the contest fair and impartial Deciding on admissibility of evidence Deciding on questions of law Ensuring the burden of proof is discharged Deciding the case when there is no jury Sentencing the accused in criminal cases

For the adversary system to operate effectively, it is essential that the judge or magistrate acts impartially. If the judge or magistrate favoured one side, then the contest would not be fair.

It is also essential that the decision-maker in the trial (the magistrate, the judge when there is no jury, or the jury) is independent. The magistrate, judge or jury makes the decision on the facts brought before the court. They have no previous knowledge of the accused or the parties in civil cases.

Evaluation of the role of the judge

The judge operates as an impartial umpire within the adversary system. This ensures that the rules of evidence and procedure are followed and the parties are treated fairly during the trial or hearing.

The judge is independent of the prosecution in criminal cases and independent of the parties in civil. The public is more likely to feel confident in the decision of an independent decision maker.

However, as the judge is independent and impartial, they cannot offer the parties any assistance. This means that the judge’s experience and knowledge of the law is underutilised, which may lead to unfair result if one of the parties is poorly represented.

Pro’s Con’s

Rules of evidence and procedure Each court in the adversary system is governed by rules of

evidence and procedure that aim to ensure that there is fair and equal treatment for both parties.

Rules of evidence The rules of evidence keep the contest fair. Irrelevant material

that would confuse the issue cannot be introduced, and unreliable evidence such as hearsay evidence cannot be used.

Rules of procedure The truth should emerge through the use of the rules of

procedure. The witnesses give their evidence through examination-in-chief, cross-examination and re-examination and the court should be able to pick out the truth and see where there are flaws in the story.

Evaluation of rules of evidence and procedure

The rules of evidence and procedure help to ensure all parties are treated equally and that there is a fair and unbiased hearing.

Oral evidence helps reveal if witness is sincere and the process of examination and cross-examination allows both parties to present their case and test the evidence of the other party.

The rules of evidence provide guidelines to ensure that the evidence heard can be tested and that it is not irrelevant or confusing. The court hears evidence relevant to the facts of the particular case, and not what has happened in the past.

However, witnesses may be intimidated by the strict formality and say something misleading.

Witnesses can only respond to questions as opposed to being able to tell their story and oral evidence relies on the memory of witnesses which may be unreliable.

Expert evidence may carry too much weight and the strict rules may mean that vital evidence may be inadmissible and thus the truth may not come out leading to an unfair outcome.

Pro’s Con’s

Burden & standard of proof The burden of proof relates to the question of which party has

to prove the facts of the case. It lies with the person who is bringing the case. This means that the person who brings the case has to prove that their view of the facts is correct. In a criminal case, it lies with the prosecution; in a civil case the plaintiff carries the burden of proof.

This follows the concept of control by the parties within the adversary system; someone who thinks they have been wronged, brings the matter to court to prove the case or, in a criminal case, if society has been wronged the prosecution brings the case.

The other party then has the opportunity to show that the evidence does not support the facts alleged.

Evaluation of standard & burden of proof

The burden and standard of proof are designed to ensure that the party bringing the case has to prove the facts to the standard of proof required.

This is a fairer system than having the judge solely responsible for discovering the truth.

However, the adversary system is more concerned with winning rather than finding out the truth.

Each side brings out the facts of the case to benefit their side. This is particularly relevant if one party is poorly represented. If the court does not hear all the facts, the party in the right may not win the case.

The prosecution is however, obliged to present all the evidence they are aware of.

Pro’s Con’s

Need for legal representation

Legal representation ensures the parties are able to present their best case as they are familiar with rules of evidence and procedure and aware of people’s legal rights.

Legal representation helps to ensure that the parties are able to present their best possible case, and assists in achieving a just outcome

When each party present their case to the best of their ability, the truth should emerge.

The adversary system only works effectively when both sides are equally represented. If one lawyer is better, they may be able to influence the case and bring about an unfair result.

Evaluation of the need for legal representation

The ability to be represented by legal personnel provides those accused of a crime or parties to a civil case with the opportunity to present their side of the facts in the best light possible.

The parties can choose the best legal representation (that they can afford) to bring out the evidence in an objective and logical manner that will best benefit their case.

However, legal representation is very expensive. If one party is not able to afford legal representation or is poorly represented, they are significantly disadvantaged in the adversary system.

Both sides need to be equally represented for adversary system to be effective. If one side has inferior legal representation, this may lead to an unfair outcome.

Pro’s Con’s

INQUISITORIAL SYSTEM OF TRIAL

Inquisitorial System of trial The inquisitorial system (also called the

investigatory system) is a system of trial where the court is actively involved in determining the facts and conduct of a trial.

Its main role is to find out the truth of an issue.

The inquisitorial system is based on the idea that the effective operation of the legal system is of benefit to society as a whole and that it is the responsibility of the state to ensure all relevant information is examined and that the truth is reached.

Major features of the Inquisitorial System

Role of the parties Role of the judge Rules of evidence and procedure Burden and standard of proof Need for legal representation

Role of the parties Due to the judge having control

of the case in the inquisitorial system, the parties have a greatly reduced role.

They are required to respond to the directions of the court.

While this may reduce the effects of some inequities between parties, it places control of their case in the hands of a third party.

Role of the Judge One essential feature of the inquisitorial

system is that the judge takes a more active role in the case. This includes: investigating cases defining the issues to be resolved gathering evidence (together with the police).

The judge’s objective is to find the truth of the matter.

At trial, the judge is actively involved in calling and questioning witnesses.

Further, judges are not restricted to the issues at question in the trial. The judge may raise other matters of law or fact, even those that have been conceded by the parties, or ones the parties could perceive as not relevant to their case.

Rules of evidence and procedure There is less reliance on strict rules of evidence and

procedure in the inquisitorial system. There is extensive use of written evidence, and witnesses

are able to tell their stories, uninterrupted and in a logical form, rather than responding to specific questions.

Evidence led could also include character evidence (either good or bad) and information related to prior convictions.

Judges are free to hear all evidence, then to determine which evidence they feel is relevant and reliable.

No strict rules Witnesses are allowed to tell their stories

Judge determines what evidence is

relevant

Burden and standard of proof In the inquisitorial system, no formal

burden of proof or standard of proof is set on any party, as the judge is the person responsible for bringing evidence and finding out the truth. The pursuit of truth is the main objective in this system of trial.

No formal burden or

standard of proof

Judge determines

what evidence is relevant

Pursuit of truth is the main objective

Need for legal representation Due to the judge’s active role in relation

to investigation and questioning, the legal representatives have a lesser role to play in the inquisitorial system.

They assist the judge with finding out the truth.

This can include further questioning of witnesses.

COMPARISON ADVERSARY & INQUISITORIAL SYSTEMS

Vs

Epic Battle Seeking truth

Comparing Adversary & Inquisitorial

You need to be able to compare ALL features between:

Adversary system Inquisitorial system

Role of the parties

One feature of the adversary system is party control. In the adversary system each party controls their own case. They decide what evidence to present and whether to engage legal representation.

However, in the inquisitorial system parties have a greatly reduced role. They are required to merely respond to directions of the court. This reduces inequity between parties, but places control of their case with a third party.

Adversary Inquisitorial

Role of the judge

One feature of the adversary system is the role of the judge. In the adversary system, the judge is independent and impartial. They ensure both parties receive a fair hearing.

However, in the inquisitorial system, the judge plays a more active role. They may call and question witnesses and may raise other matters of law or fact. The judge’s aim is to uncover the truth of the matter.

Adversary Inquisitorial

Rules of evidence and procedure

One feature of the adversary system is strict rules of evidence and procedure. They aim to keep the contest fair and ensure the truth should emerge through questioning.

However, in the inquisitorial system there are no strict rules of evidence and procedure. The judge determines what evidence is permissible and witnesses are allowed to tell their stories rather than respond to questioning.

Adversary Inquisitorial

Burden and standard of proof

One feature of the adversary system is the burden and standard of proof. This ensures the party bringing the case has to prove it to the required standard.

However, in the inquisitorial system there is no formal burden or standard of proof. The judge is responsible for bringing evidence and the pursuit of truth is the main objective.

Adversary Inquisitorial

Need for legal representation

One feature of the adversary system is the need for legal representation. Legal representation ensures parties are able to present their best case as they are familiar with rules of evidence and procedure. This assists in achieving a just outcome.

However, in the inquisitorial system legal representation have a lesser role. They assist the judge to find out the truth which may include further questioning of witnesses.

Adversary Inquisitorial

REFORMS TO THE ADVERSARY SYSTEM

Possible reforms to the adversary system

Possible reforms to the adversary system generally involves taking aspects of the inquisitorial system and incorporating them into the adversary system.

Need to be able to DISCUSS at least two reforms – i.e. you must be able to talk about both sides.

Greater investigative role of the judge

The judge or magistrate can ask questions and call witnesses, but this is usually done to clear up points made in the proceedings.

For example, a judge might call a medical witness to clarify evidence given about someone’s health.

This power could be increased to allow a judge to ask questions and call witnesses to ensure that cases are decided correctly — in the interests of fairness and finding the truth.

However, the judge could be seen as being biased towards one side or the other by bringing out evidence that would benefit one side; and a judge loses the advantage of being an uninvolved observer.

Pro’s Con’s

Greater use of written statements

Court time and money could be saved with the use of written statements where possible during the trial.

Medical evidence, for example, could in many cases be tendered in written documents without the medical expert having to attend in person to prove the accuracy of the statements.

The use of oral evidence, however, does allow cross-examination of the witnesses to bring out any falsehoods and gives the court the opportunity to see whether the witness is sincere.

However, the move to the use of written statements could also lead to increased legal fees because the solicitor would need to draw them up and the barrister would have to examine them.

If anything within the statements was disputed, witnesses would still have to be called to be cross-examined.

Pro’s Con’s

Greater availability to legal aid

Parties are likely to be disadvantaged in the adversary system without legal representation or if they cannot afford the best lawyer.

Parties with limited financial means are entitled to legal aid.

Increasing the availability of legal aid would allow more people to be represented adequately and help to achieve a fair trial.

However, legal aid is limited and cases that are unlikely to succeed are rejected.

In addition there is little or no funding for civil cases. Increasing legal aid may reduce some of these problems, but it would increase the burden on the taxpayer.

Pro’s Con’s

More informal conduct of the trial

Under the adversary system, the court follows strict rules of evidence and procedure. This is intimidating for the parties involved and can be confusing for a jury if present in the court (juries are optional in civil cases).

Greater use of tribunals could enable more parties to resolve civil cases quickly and cheaply in a more informal atmosphere.

Witnesses could be allowed to tell their stories rather than just responding to questions.

However, rules of evidence and procedure are there to protect the parties and help achieve a fair outcome.

Pro’s Con’s

EVALUATION OF THE ADVERSARY SYSTEM

FAT

Evaluation of the adversary system When assessing the effective

operation of the adversary system you should consider the extent to which each of the three elements of an effective legal system is achieved. For each element, you should consider: the processes and procedures that

help the achievement of each element

the processes and procedures that hinder the achievement of each element

Fair & Unbiased

party control — allows the parties to be in control of the progress of their case

independent arbitrators — ensures that both parties are treated fairly, that the rules of evidence and procedure are followed, decide all questions of law and can make a decision on the facts brought before them

rules of evidence — ensures that certain types of evidence that might inappropriately influence the magistrate, judge or jury, such as hearsay evidence, irrelevant evidence, opinion evidence other than that of an expert, and bad character evidence, are inadmissible, although propensity evidence is allowed

rules of procedure — helps to ensure that the truth will come out through the parties to a case being given equal opportunity to bring out the evidence relevant to their case; the truth should emerge from the evidence given

right to silence — allows people accused of a crime to say nothing so as not to incriminate themselves, although the abolition of the right to silence is being considered under some circumstances because of its detrimental effect on investigations

legal aid — is provided to those parties unable to afford legal representation, although the availability of legal aid is limited

burden of proof — is placed on the party bringing the action, so they have the responsibility of proving the case, according to the relevant standard of proof.

Vital evidence may be inadmissible

Legal representation is costly

Oral evidence can be misleading

Judge and jurors may have personal biases

Pro Con

Effective Access

can get assistance to take a matter to court through legal aid, if it is available in the circumstances

have an opportunity to take a matter to court

have access to legal representation can use alternative methods of dispute

resolution in civil cases can be ordered to participate in mediation,

which can assist the parties can take some civil matters to a tribunal

which is less expensive and more accessible have rights during police investigations to

protect them from unfair treatment are presumed innocent until proven guilty in

a criminal case

High court fees and the cost of legal representation may reduce access

Formality of proceedings may be intimidating

Pro’s Con’s

Timely Resolution

Each trial within the adversary system is heard as a single, continuous event. At the conclusion of the pre-trial procedures, a date for trial will usually be set. Once the trial begins, it will continue for the hours, days or weeks needed until its completion. There are no stops in the procedure to allow for gathering more evidence or for further investigation (as can happen in the inquisitorial system). This system helps to: minimise delays during the trial, so that it can

be heard in a timely manner, thereby enhancing effective operation of the legal system

reduce delays in the pre-trial processes through the directions hearings

cut out the committal hearings in a criminal case when it is a clear-cut case

provide systems such as mediation in civil cases to speed up the process and assist in achieving a resolution.

Pre-trial procedures and strict rules of evidence and procedure may delay resolution

More evidence may emerge after trial

Pro’s Con’s

Adversary system effective… While high court fees and the need for

legal representation reduce access for those with limited financial means, the benefits of independent arbitrators and the ability to hear all types of cases make the adversary system an effective system of trial.

JURY SYSTEM

Role of the jury The jury system is trial by peers. The jury acts as an independent decision-maker in

criminal trials and in some civil trials. In both civil and criminal trials, the jury is the decider

of the facts. The role of the jury in both civil and criminal trials is

to: Listen to all the evidence Apply the points of law as explained by the judge Put aside prejudices or preconceived ideas Take part in deliberations Make a decision on the facts

Criminal Trial Jury Must make a unanimous decision where

possible and determine guilt beyond reasonable doubt.

If they cannot be sure of the guilt of the accused, they must reach a decision of not guilty.

The jury must first try to reach a unanimous verdict (a verdict where all members of the jury agree), but if this is not possible after six hours, a majority verdict (11 out of 12 jurors) can be accepted as the verdict except in cases of murder, treason, drug trafficking, or Commonwealth offences.

GUILTY 12 vote

Unanimous

Not Guilty 1vote

Majority

Guilty 11 vote

Civil Trial Jury In a civil trial, the jury must make a decision on the balance

of probabilities, that is, which party is most probably in the right and which party is most probably in the wrong.

The jury also has to decide on the amount of damages to be paid to the plaintiff if the plaintiff is successful.

In a civil trial the decision can be a majority decision (five out of six) if they are unable to reach a unanimous decision after at least three hours of deliberation.

Composition of Juries

A number of factors affect the composition of juries which occur during the selection and empanelment of juries

Selection of jurors People are randomly selected

for jury service

The Electoral Commissioner randomly selects people from the electoral rolls

Those selected are sent a questionnaire to determine their eligibility to serve on a jury

Liability for jury service The Juries Act 2000 (Vic) outlines

requirements for the composition for juries

Every person 18+ who is enrolled to vote is liable for jury service expect if

Disqualified Ineligible Excused

Disqualified Some people are disqualified from jury

service because of something they did in the past that makes them unsuitable.

Examples: Criminal record Bankrupt

Ineligible Someone might be ineligible

because of their occupation or their inability to comprehend the task of a juror.

Examples: Members of legal profession

(too influential) Poor English, visually impaired,

deaf or intellectually disabled

Excused

Potential jurors may be excused for good reason.

Examples: Illness or incapacity Distance to travel (>50km in Melbourne) Care of dependants or advanced age

Summons for jury duty If a person is not disqualified, ineligible

or excused, they are liable for jury service

They will then receive a summons for jury service

It is an offence not to attend when called which is punishable by a fine of 30 penalty units or 3 months imprisonment!

Jury Pool

This is the selection pool from which jurors maybe called for the empanelment process

If liable for jury service, the person will be called into the pool for one to two days

From here a jury panel is called If the person is not called on, their jury

service is complete.

Empanelling a Jury

Compulsory jury of 12

5 extra jurors may be empanelled for long trials

Trial can continue with 10 jurors

Optional jury of 6 Either party may choose to

have a jury Two extra jurors may be

empanelled for long trials If 8 jurors remain at end of

trial, a ballot determines which jurors are excluded from deliberation.

Trial can continue with 5 jurors

Criminal Civil

Challenges The parties to a case have some say in

the composition of the jury in that they may challenge some of the jurors if they feel these people would be unsuitable for their case.

The jurors are called one by one. Their names and occupations are called out. If one of the parties decides to challenge one of the jurors, the challenge must be made before the juror sits down in the jury box.

Types of challenges

with a reason such as knowing the

accused Both the defence and

the prosecution can make unlimited for cause challenges in both criminal and civil cases if the judge allows.

without a reason usually based on an

assumption that the juror might not be favourably disposed to the side of the challenger

Peremptory challenges are limited to 6 in a criminal trial and 3 in a civil trial

Challenge for cause Peremptory challenges

Foreperson

Once a jury is empanelled the jurors elect a foreperson to act as their spokesperson.

The foreperson will ask the judge questions and deliver the verdict.

During the jury’s deliberations, the foreperson is responsible for the conduct of the deliberations, although his or her vote does not carry any extra weight, and he or she should not try to influence the other jurors in any way.

STRENGTHS AND WEAKNESSES OF THE JURY SYSTEM

Cross-section of the people

An accused person can therefore feel confident that they are not being oppressed by authority but are being tried by people like themselves from within society.

A jury is able to assess the situation before it, not in legalistic terms, but according to the current standards of the general community.

The jury may not be a true cross-section because some people are disqualified, ineligible or excused, and because of challenges made.

Pro Con

Involves the general community

Serving as a juror is seen as part of a citizen’s civic duty.

A person who serves on a jury is able to participate in the legal system and see the legal system in operation.

This can help members of society improve their knowledge of how the legal system works, allow the jurors to see the plight of others in society and generally help those participating to gain a feeling of confidence in the legal system.

Jury service is a difficult task.

The jury might experience difficulty understanding complicated evidence such as forensics or medical evidence or simply coping with the sheer volume of evidence in lengthy trials and the number of witnesses.

Pro Con

Spreads responsibility

The use of a jury allows the decision-making to be spread over more shoulders, rather than being placed solely in the hands of a judge.

As the jury is made up of average people, most of whom would have little knowledge or experience of courtroom procedure.

They may feel quite confused and overwhelmed by the courtroom formalities and unable to concentrate on the task at hand.

Pro Con

Reflects community values

The jury is able to reflect community values and bring a common sense approach to decision making in the court.

A jury does not need to give a reason for its decision, so the jury members can follow the law, or ignore it if they disagree with it.

As the jury doesn’t need to give a reason for its decision, there is no way of telling what reasoning was used in reaching their decision.

Therefore there it is not possible to know if the law was followed or applied correctly.

Pro Con

Safeguards against the abuse of power

The jury acts as a buffer between the parties to a case and the state.

In criminal cases, the state is responsible for prosecution, but the jury decides guilt or innocence.

Use of a jury increases costs and delays.

Delays can be caused by explaining legal terms to jury, empanelling the jury and the time taken for jury deliberations.

Costs are increased because the jury has to be paid, the trial will be likely longer as evidence and the law need to be explained to the jury, which further increases court costs and legal fees

Pro Con

Juries generally accurate

As a general rule, the legal profession supports the jury system.

Experience has shown that the jury listens carefully to all the evidence and as a group remembers the facts well.

Jurors could be biased. Jurors are meant to put

out of their minds any biases they may hold that could be relevant to the case before them. However, this could be very difficult to do even if jurors are aware of their biases. This may lead to an unfair trial.

Pro Con

IMPROVING THE JURY SYSTEM

Reform Vs Alternative Must know two reforms and two

alternatives to the jury system and be able to DISCUSS each

A suggested reform is something that seeks to improve the current jury system, but maintains the principle of a trial by peers.

A possible alternative to the jury system is something that replaces the current system. It does away with the principle of a trial by peers and replaces it with something else.

REFORMS TO THE JURY SYSTEM

Juror’s give reasons for decisions

Parties would know the reasons for the jury’s decision and whether due attention had been given to points of law.

However, this could lead to more appeals if it was thought that the jury had not followed the law as explained by the judge.

It could also be difficult for twelve jurors to come up with one reason for their decision.

It would also reduce the flexibility of the jury to make decisions that reflect community values.

Pro Con

Have a specialist foreperson

A specialist foreperson would be able to inform the jury on the relevant law and court procedure and could assist the jury to make the right decision.

However, their opinion might carry too much weight. Jurors may take too much notice of what the foreperson feels is the right decision, rather than basing their decision on the facts.

Pro Con

Introduce ‘not proven’ verdicts

‘Not proven’ verdicts would allow the accused to be retried if new evidence surfaces after trial.

However, this may lead to the jury taking the ‘soft option’ of not proven rather than examining the evidence and reaching a decision.

This could lead to more re-trials, which would increase costs and delays and add to the stress of not knowing the outcome.

Pro Con

Give instructions before the trial

It would be beneficial to explain legal procedure and rules of evidence to the jury before the trial so they are better able to understand the trial as it unfolds.

More technical assistance could be provided and the jury could be given access to the trial transcript in electronic form and to word processing facilities to assist with their deliberations.

However, both would increase costs and the jurors my better off relying on their own notes of the trial.

Pro Con

Reduce challenges and exemptions

If the number of challenges and exemptions was reduced, this would help to ensure the jury is a true cross- section of the community.

However, if members of the legal profession are allowed to be jurors, they may have too much influence. Reducing the number of challenges would reduce the ability of the parties to have some say in the composition of the jury.

Pro Con

Reduce the size of the jury

Reducing the size of the jury would make it easier to reach a decision and would reduce costs and the time of deliberations.

However, this may increase the likelihood of an incorrect decision and would erode the standard of ‘beyond reasonable doubt’ in a criminal trial.

Pro Con

Increase the size of the jury

Increasing the size of the jury would allow the jury to provide a truer cross-section of the community as more sections of society would be able to be represented on a jury.

However, extra jurors would need to be paid, which would increase the costs involved. It would also increase delays as the empanelment process would be longer and jury deliberations would take longer.

Pro Con

ALTERNATIVES TO THE JURY SYSTEM

Judge sitting alone

One possible alternative to the jury system is to have the judge sitting alone.

The judge has a better understanding of the law than the jury members, so is more likely to get the decision right.

However, the judge would be less able to reflect community values and the parties may feel more confident in the decision of peers.

Pro Con

Professional jurors

Professional jurors would have a better understanding of the law and court room procedures.

They could develop expertise in certain cases and would be more likely to get the decision right.

However, professional jurors may develop biases from hearing similar cases and would lose the advantage of being independent.

Pro Con

Specialist jurors

Specialist jurors such as medical experts could be empanelled for cases.

They would be better able to understand the evidence as they are experts in the area.

However, the may have biases for/against members of profession. In addition, this would be practically difficult and expensive.

Pro Con

EVALUATION OF THE JURY SYSTEM

FAT

Fair and Unbiased the random nature of jury selection promotes the ideal of the jury

being made up of a cross-section of the community removing potentially biased jurors at the jury selection stage;

some people are ineligible or disqualified from serving on juries due to their experiences with the legal system

any juror who knows either party to a case or any of the witnesses should ask to be excused from that trial, to remove the potential for bias

both sides of the case are able to challenge jurors they believe would be prejudicial to the case

the jury acts as a buffer between the state and the individual; the state prosecuting the accused and

the jury reaching the verdict, ensuring a fair and unbiased hearing the guilt of the accused is determined by a majority verdict (or

unanimous verdict for murder) of a jury with no former knowledge of the accused, who hold no

preconceived ideas about the accused.

Fair and Unbiased juries are not necessarily made up of a cross-section of the

community, as some people are ineligible, disqualified or excused from jury service; other potential jurors could be challenged by either of the parties to the case

some people are unlikely to be tried by their peers — for example, few Indigenous people are chosen for jury service, which could result in an Indigenous accused having their case heard before an all- white jury

a juror may find it difficult to set aside a bias that they hold against particular groups in the community, such as racial biases

the jury could be influenced by things they may have read or heard in the media before a case begins, and have difficulty setting this aside

jurors may have difficulty in understanding the complicated nature of a trial and any complex evidence in a case, which could mean that the accused is not given a fair hearing on the evidence.

Effective Access Provides the general public with the

chance to be apart of legal system – greater knowledge and understanding

Gives people confidence their trial will be heard by peers

Effective Access In civil cases, the jury is optional

and the costs therefore lie with the party requesting the jury

This limits the access of financially disadvantaged parties

Timely Resolution

Timely Resolution The use of juries adds to the time taken for a trial for a

number of reasons including: the empanelment process can often take hours or even days

for long trials during the course of the trial, proceedings may need to be

halted and jurors removed from the courtroom while legal counsel argues a point of law the trial itself can often take longer because the legal

counsel are at pains to explain concepts to the jury so that members of the jury can understand the

evidence given the time taken for jury deliberations if there is a hung jury, then the whole trial will need to be re-

heard, which increases the costs and delays involved.

Jury System Effective…. Although it may appear not (access and

timely), must balance the negative aspects of the jury system, such as costs and delays with the positive contribution of juries to fair and unbiased hearings.

Overall, the jury system is an important element of an effective legal system.

END OF U402 B

GOOD LUCK

LEGAL STUDIES CONTENT COMPLETE … Yes that’s right …

We have FINISHED!