Chapter 7 Flashcards
Jury in canada
In Canada, juries are used in both criminal and civil cases. In criminal cases, the right to trial by jury was carried over from England to the British colonies in North America in the mid-1700s (Schuller & Vidmar, 2011). It is now preserved in Canada’s Charter of Rights and Freedoms civil trials, which involve a dispute between private parties (individuals or corporations) and not the state, the right to a jury is not specifically preserved in the Charter
least serious offences, referred to as summary offences, are tried in a lower court by a judge alone and the accused has no right to a jury trial.
Summary offences are punishable by no more than 6 months in jail, a fine (typically no more than $5000), or both. (But there are exceptions. For certain summary offences, such as assault with a weapon, the maximum sentence may be as long as 18 months.) Juries are reserved for the most serious class of offences, indictable offences.
The Role and Function of the Jury
always composed of 12 persons (Criminal Code, 1985, C-46
jury uses the wisdom and perspectives of 12 ordinary persons selected from the community who must unanimously agree on a verdict.
It is believed that because jury verdicts are rendered by members of the community, the jury’s legal decisions about guilt or innocence have greater legitimacy and public acceptance than the decisions of a lone judge. The jury also serves as the community’s conscience because it is usually selected from the community in which the crime was committed.
Assembling a jury
wo stages to assembling a jury: the out-of-court pretrial process and the court jury selection process
composition of the jury list is controlled by the Jury Act. Federal, provin- cial, and territorial statutes stipulate how the court is to assemble juries that constitute a “fair cross-section of the community.
neral rule is that the list is compiled by random selec- tion from electoral rolls in the territory, province, or local community. This means that anyone who is a Canadian citizen, 18 years of age or older (19 years of age in British Columbia, 21 years in the Yukon), and a resident of the juris- diction in which the crime was committed (and where the trial will be usually held) is eligible.
province or territory has a detailed list of persons who are excluded from jury duty. For example, in Ontario, excluded persons include police officers, lawyers, trustees-in-bankruptcy, and employees of the Ministry of the Attorney General.
Once the jury list is compiled, a random sample of jurors is drawn from the list and everyone in the sample is sent a summons—a legal notice to appear in a particular courthouse at an assigned date and time. The group of prospec- tive jurors that shows up is called the venire (from the Latin meaning “cause to come” or “come when called”) or jury panel. Unfortunately, not all jurors respect the summons. Although people who do not appear for jury duty could face a fine or jail time for contempt of court, such charges are rarely pursued as long as enough people do show up when summoned.
e first day of a jury selection, the trial judge will likely ask the assembled jury panel if they have health issues or other problems that would pose a hardship in serving as a juror (as outlined ear- lier) and if they have a relationship with any of the parties or witnesses in the case. Any person who answers yes to either question is excused from duty.
Lawyers have two types of challenges at their disposal for removing a juror. The first is known as a challenge for cause—the lawyer challenges a would-be juror, claiming that it is unlikely that the juror will be able to render an impartial verdict based solely on the evidence and the law. In theory, there is no limit to the number of challenges for cause, but this procedure is not invoked lightly. Before jury selection even starts, the lawyer must convince the judge that a widespread bias exists in the pool of potential jurors and that some jurors may be incapable of setting aside this bias despite the trial safeguards. This is the standard of proof used to demonstrate a “realistic potential” for bias (Tanovich, Paciocco, & Skurka, 1997). If the challenge for cause is granted, the lawyer is permitted to question the prospective jurors.
he lawyers still have the peremptory challenge. Using this more powerful type of challenge, a lawyer can dismiss a juror with- out giving a reason or obtaining approval from the trial judge. Each lawyer, however, is allotted a limited number of peremptory challenges. The number varies depending on the seriousness of the charges against the defendant. For the most serious of offences, such as murder and high treason, the defence and prosecution each have 20 peremptory challenges at their disposal. For crimes in which the accused may be sentenced to 5 or more years in prison, each side is allotted 12 peremptory challenges. The ability to eliminate persons with whom either side is uncomfortable, no matter what the grounds for exclusion, provides a perception of trial fairness. Additionally, the jury list is provided to both sides shortly before trial, and the Crown is permitted to examine the list to determine if any of the prospective jurors have a criminal record. Recently, in Ontario, a scandal erupted when it was discovered that, in some instances, Crown lawyers had gone well beyond searching for criminal records by conducting background checks on persons on the jury list (Kari, 2009). This practice has since been stopped
that they were planning to sell the story of the jury deliberations to the tabloids. With the exception of those cases in which the challenge for cause has been invoked, jury selection in Canada typically proceeds without the prospective jurors being questioned. Other than the prospective juror’s name, address, appearance, demeanour, and sometimes occupation, the lawyers have very limited informa- tion on which to base their peremptory challenges.
Selecting a jury
problem is that no matter what lawyers are able to find out by looking and listening, they cannot possibly know in advance how a particular juror will respond to the evidence in the case about to be tried and don’t know how that juror will influence and be influenced by other jurors in the delibera- tion room. This uncertainty, coupled with the high-stakes consequences of the trial, has led many lawyers to search out any information that might give them and their clients an advantage in evaluating potential jurors and using their peremptory challenges wisely.
Juror Characteristics and Attitudes as Predictors of Verdict
persuasiveness of the evidence presented at trial is the best predictor of whether a defendant is convicted or acquitted differences in how evidence is weighed and understood must be due to differences in jurors’ experiences, values, and personalities
imilarity–leniency hypothesis predicts that jurors who are similar to the defendant will empathize and iden- tify with the defendant. Consequently, they will be less likely to convict. This hypothesis is widely held by lawyers and has great intuitive appeal.
But sometimes there was a boomerang effect—similar jurors were occa- sionally harsher on defendants than dissimilar jurors were. For example, if the evidence against a black defendant was strong and black jurors were in the minority on the jury, the black jurors judged the defendant as guiltier than did white jurors. The same relationships held for whites.
Characteristics of the Jury
representativeness method is that individuals from the local community are randomly selected and summoned to appear for jury duty. This procedure does not in itself guarantee that the jury panel will include individuals from all groups in the com- munity or that the selected jury will be representative of the community. of eligible potential jurors can, in and of itself, introduce a first layer of bias. and impartiality jurors who
are able to disregard any previously formed opinions and to embark on their duties armed both with an assumption that the accused is innocent until proven otherwise, and a willingness to determine liability [guilt] based solely on the
evidence presented at trial.
Jury Bias and Remedies
four sources of juror partiality or bias, which the Supreme Court of Canada subsequently acknowledged in an important legal case (R. v. Williams, 1998). The first type, interest prejudice, involves biases that jurors may harbour as a result of their direct interest or stake in the outcome of the case (e.g., relation to the accused or to a witness who might be testifying). A second type, specific prejudice, involves attitudes or beliefs about the specific case that may interfere with the juror’s ability to decide the case fairly. These beliefs may arise as a result of publicity through mass media (e.g., newspaper and television coverage) or through discussions and rumours circulating about the case through social networks within the community.
The third type, generic prejudice, concerns general attitudes and beliefs about certain groups of people or certain types of crimes that may prevent the juror from deciding a case without bias. For example, racial or ethnic prejudices would be considered as generic prejudice. The fourth type, normative prejudice, refers to biases that occur when there is such strong community interest in a particular trial outcome that a juror feels he or she must reach a verdict consistent with community sentiment rather than with the evidence presented at trial.
our expectations and beliefs about others—as well as how we think the world operates—influence how we view and integrate information. In other words, our expectancies, or what psychol- ogists call schemas, guide our attention (e.g., what information we notice and attend to), our recall (e.g., what information we remember or misremember), our interpretation (e.g., the meaning we assign to the information), and our integration of the information (e.g., how we fit the pieces together). Ultimately, these schemas help determine the inferences and conclusions we draw from the information presented. (
Pretrial Publicity
Canadian trials, questioning jurors about their potential biases is the excep- tion rather than the rule. In most cases, jurors are chosen without being questioned at all. In the important case of R. v. Hubbert (1975), an appeal court stated that Canadian law begins with a presumption that jurors will follow their oath. That is, jurors will listen to the evidence with an open mind and decide the case fairly and impartially. One reason for this presumption is that Canadian courts restrict what may be reported in the media before the start of
Remedies to juror bias
three standard strategies used to deal with partiality or pretrial preju- dicial information: an adjournment, a change of venue, or a challenge of cause. adjournment is basically a delay of the trial. The premise of this solu- tion is simple: The passage of time will reduce the salience and impact of the prejudicial information. U
change of venue involves moving the trial to a new location. Although the accused is normally tried in the community where the crime occurred, the Criminal Code allows either the Crown or the defence to request that the trial be held elsewhere.
A third strategy used by lawyers is to invoke a challenge for cause. As we indi- cated earlier, this remedy is used for dealing with either specific prejudice (e.g., pretrial prejudice) or generic prejudice (e.g., racial bias). It involves a limited questioning of the potential jurors to screen out those who demonstrate potential bias. As with a change of venue, the challenge for cause is not the norm, and the defence or the Crown must convince the trial judge that it is necessary. In addition, the judge must ensure that the questioning is limited to the potential juror’s state of mind; examining the juror’s personality or background is not permitted. The juror is not on trial, and the wide-ranging questioning that occurs in some American trials is contrary to Canadian laws. And, unlike the American jury selection pro- cess, it is the jurors themselves, not the judge, who determine whether or not a potential juror demonstrates bias, a practice that is uniquely Canadian.
Challenge for cause
To begin the process, two individuals are randomly chosen from the jury panel and sworn to serve as “triers.” In effect, the challenge for cause serves as a mini-trial on the impartiality of each prospective juror. The two triers sit in the jury box in the courtroom (see Figure 7.1 on page 175) and listen to the pro- spective juror’s responses to specific questions posed by lawyers, and sometimes by the trial judge, regarding his or her ability to be impartial. Under instructions from the judge, the two triers then render a unanimous decision on whether or not the potential juror is acceptable (impartial). The triers typically conduct their deliberation in hushed voices in open court. If the individual is found to be “not impartial,” another prospective juror is called. This process continues until an unbiased juror is found. If neither lawyer exercises a peremptory challenge to the selected individual, this individual becomes Juror 1 and replaces one of the two triers that started the process. The process is repeated with Juror 1 and the remaining trier selecting Juror 2. Once Juror 2 is selected, he or she joins Juror 1 in the jury box and the trier is dismissed. Jurors 1 and 2 then serve as triers for Juror 3. Jurors 2 and 3 are triers for Juror 4, Jurors 3 and 4 are triers for Juror 5, and so on until all 12 jurors are selected.
Trial procedure
Trials begin with opening statements by the opposing lawyers. highlight the issues at stake and to provide jurors with an overview of evidence that will be heard. In criminal trials, the prosecution or the Crown speaks first. Defendants are presumed innocent until proven guilty. Thus, prosecutors and plaintiffs’ lawyers speak first because they are claiming the defendant broke the law and, therefore, they must bear the burden of proof for that claim. In criminal cases, a defendant must be judged guilty beyond a reasonable doubt, while in civil cases, the standard of proof for being held liable usually defined as a balance of probabilities Following opening statements, the prosecutor or plaintiff’s lawyer calls a witness to testify and questions him or her; this is called direct examination. After the witness has been questioned by the prosecutor or plaintiff’s lawyer, the defence lawyer may then cross-examine the witness (i.e., ask questions of their own). Next, the prosecutor or plaintiff’s lawyer has an opportunity to question the witness again in a process called redirect examination. The last opportunity for questioning the witness is given to the defence lawyer in recross examination. The procedure switches when the defence presents its case: The defence lawyer questions the witness first, followed by cross-examination by the prosecutor or plaintiff’s lawyer, followed by redirect and recross examination. In this way, the two lawyers take turns questioning each witness until both sides have finished presenting their cases.
After all the evidence has been presented, each lawyer makes a closing argument, also referred to as a “summation.” Like opening statements, closing arguments are not evidence. They are attempts to persuade jurors that the lawyer’s interpretation of the evidence is the correct one. The prosecution or plaintiff’s lawyer goes first, then the defence. The prosecution or plaintiff’s lawyer then has an opportunity to give a rebuttal: Notice that the prosecution has the first and last word at trial.
Following the closing arguments, the judge provides the jury with judicial instructions and a summary of the trial evidence. This is intended to educate the jury about matters they should consider in evaluating the witnesses and other evidence, but it should not infringe upon the jury’s decision-making dis- cretion (Coughlan, 2008). In R. v. Lifchus (1997), the Supreme Court of Canada addressed the question of whether the expression “beyond a reasonable doubt” should be explained to the jury and, if so, just how that should be done. Writin
Civil trial
civil trials, which involve a dispute between private parties (individuals or corporations) and not the state, the right to a jury is not specifically preserved in the Charter and its use has slowly declined over the last 200 years
civil juries are not used at all in Quebec’s civil law system.
Canadian Criminal Code
Canadian Criminal Code divides offences into three broad categories— summary offences, indictable offences, and hybrid offence
Juries are reserved for the most serious class of offences, indictable offences.
least serious offences, referred to as summary offences, are tried in a lower court by a judge alone and the accused has no right to a jury trial
hybrid offences, or “either way offences,” the Crown has the option to proceed either summarily (by judge) or by indictment (by judge and jury
Summary offences are punishable by no more than 6 months in jail, a fine (typically no more than $5000),
Criminal Code, 1985, C-46
Canadian criminal jury, unlike the civil jury in Canada or juries in the United States, is always composed of 12 persons
When can a jury provide sentencing instructions
cases where a person is found guilty of second-degree murder (e.g., murders com- mitted in the “heat of the moment”), the judge must inform the jury that the convicted person would normally be eligible for parole after serving 10 years in prison. The judge then asks the jurors if they wish to make a recommenda- tion as to the prison term (between 10 to 25 years) that the convicted person should serve before parole eligibility. The judge is not bound by the recommen- dation but the provision allows the jury to provide community input into the punishment process.
