If you read the news you will inevitably have seen recently a bit of a spate of juries being “discharged”. That is, during or after a criminal trial concludes, the jury is sent home without having reached a verdict.
In Australia the most well known of these situations recently was the Bruce Lehrmann trial, where the jury was discharged after the conclusion of the trial.
So – when will a jury likely be discharged, and what happens if they are?
Understanding the Role of the Jury
Many criminal matters are heard in the Magistrates’ Court, in front of a single Magistrate and without a jury.
However, once you get to the range of alleged offences that are considered more serious (at least in the sense that they have greater possible maximum penalties), the trial will likely be in the District or Supreme Courts. There the majority of cases are going to have a jury.
The jury is made up of 12 people. If you’ve ever been called for jury duty, you will have an idea of how those people are selected, but we won’t discuss that here.
The primary job of the jury is to make a single major decision: is the person charged with the offence guilty or not.
It is not the jury’s job to investigate the law or make decisions on legal topics. They make decisions about facts based on the evidence they heard presented in the trial, and in accordance with the directions given by the Judge.
What can Go Wrong with a Jury?
There are really two main ways that things can start to become concerning in the eyes of the law when it comes to juries:
- The jury is unable to reach a decision at all; or
- The jury is unable to reach a fair decision, as that concept is understood within the legal system.
In either case, the jury cannot do the job for which it has been called – to make a fair decision based on the available facts as to the guilt or otherwise of the individual on trial.
In these situations, a jury could potentially be discharged as they are not able to do their job.
So while there are myriad possible ways things could go wrong, what are a few examples that might result in a jury being discharged?
The Jury is Unable to Reach a Decision
The media, at least based on its reporting habits, seems to be under the apprehension that 12 people can hear weeks of evidence and then make an important decision that will have a significant impact on someone’s life within the space of a day. Anything beyond that appears, to be remarkable and warrants a collection of articles about the jury “still” deliberating.
The reality is that complex, important decisions can take time. Similarly, getting 12 people to agree on something is not always very easy, especially when witnesses can give precisely opposite evidence about what happened.
Because of this, judges will be naturally reluctant to accept a jury saying “we can’t reach a decision” after a short time only, and will often encourage the jury to continue working through the issues to reach a decision.
There is no hard and fast rule about “how long is too long” – it will depend on the case, the evidence, the complexity, and the issue preventing the jury from arriving at a verdict.
But generally speaking – it’s more than a few days.
The Jury Receives Information it Shouldn’t
The jury is asked not to embark on its own course of enquiry, but rather to think about, rely upon, and determine the case based solely on the evidence that was put to it at the trial.
This creates an obvious challenge in a world that has essentially limitless access to news, information, research and “data”.
For some, this restriction seems unreasonable. After all, why should a jury not be allowed to inform itself in any way it sees fit? So what if a jury member decides to “check out the scene of the crime” for themselves, despite being directed not to do so?
There are a number of reasons this isn’t good.
Firstly some information, while true, is considered to be unacceptable for the jury to hear. This might be information that, for example, tends to prejudice the jury one way or the other, but offers no direct impact on the case itself. This information can be excluded from the Courtroom, but a juror on Google could sometimes readily find it.
Next, media reporting is hardly unbiased and a juror attempting to maintain impartiality will inevitably suffer from a degree of bias should they spend their time digesting news reports on the case itself (should there be any).
Finally, some information that you can find online is simply unreliable (shocking!). Online information does not have the same checks and balances that evidence before a Court does, nor does it receive the same scrutiny from the lawyers that might reveal a weakness in the content or reasoning.
Because of these things, if the jury receives information not given in evidence at the trial, which may impact their decision, it could lead to the jury being discharged.
Lack of Impartiality
The jury must be impartial, and be seen to be impartial. A biased jury, after all, will make decisions on important outcomes that might be based on other factors such as personal opinion, other than the evidence and the Court’s directions.
Close relationships with witnesses or participants in the trial is a common reason why a juror might not be suitable for a particular case. In some cases, jurors have been seen to be “flirting” with the defendant.
Someone who has a demonstrated history of hatred of a particular category of people (people of colour, religious people or the like) might similarly be unable to remain impartial in their decision making.
On this topic in particular, it’s worth bearing in mind that if there is an issue, one option is to discharge an individual juror rather than the entire jury.
Whether that is possible will depend on the circumstances, but can be a better path to avoid the unfortunate consequences of an entire jury being discharged and generally there are reserve jurors empanelled for these reasons
What Happens if you Discharge a Jury?
If an entire jury is discharged, then effectively everyone needs to start the trial again.
This is obviously both expensive and time consuming. It can also be a significant burden on a defendant if they were not able to secure bail, or if their bail conditions are onerous. Similarly in accusations of violent crimes, the complainant and witnesses can remain under significant stress because of the delay in any decision being made.
Bearing in mind that a trial in the first place is often months, if not years, after a person is first accused of a crime you will appreciate that judges are reluctant to discharge juries unless it is absolutely necessary. That said, a judge needs to be satisfied that the interests of justice are being served and will similarly be cautious before allowing a potentially biased jury from continuing to decide the outcome of a trial.
In all, discharging a jury either because they cannot arrive at a verdict or, for some other reason is a fairly significant event. It is not taken lightly and as many safeguards are put in place as possible to prevent it from occurring.