INTRODUCTION
The right to a fair trial provided for by article 6 of the European Convention Human Rights (ECHR) is the cornerstone of the criminal justice system. One of the core pillars of the right to a fair trial is that the accused person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[1]A jury is required by law to convict or acquit based solely on the evidence adduced before it and not any other extraneous consideration.[2]This serves to ensure that parties are well aware of the evidence relied upon to reach a verdict and challenge the same on appeal.[3]Therefore, a jury should not make its decision based on information or evidence not provided by either the prosecution or the accused person during the cause of the trial.[4] Decisions reached by any jury based on reliance to information or evidence not produced during trial unduly prejudices a defendant’s right to a fair trial guaranteed by article 6 of ECHR.
Indisputably, the right to fair trial comes under imminent threat of infringement when a juror with special knowledge or expertise exerts improper influence over their fellow jurors. The following paper delves deeply into how this legal problem manifests itself. Additionally, this paper argues that random selection of a jury isn’t sufficient remedy to address this subtle yet endemic problem in a jury system.
Imminent Risk of Placing Reliance on Extraneous EvidenceThe first risk associated with jurors who have special knowledge or experience tending to exert improper influence over their fellow jurors is that the jury may reach a verdict not solely based on the evidence presented during the trial but on other extraneous information. The defendant’s right to be furnished with evidence to be used against him will be significantly undermined. Moreover, the defendant will not get the opportunity to challenge the evidence that has been used to convict him/her.[5] As such, the risk of the evidence by expert juror being viewed as the true reflection of the totality of the case is very high. This leads to a gross violation of a fundamental rule of natural justice which posits that no person should be condemned unheard.
In the case of R v Smith [2005] 2, All ER 29 one of the jurors wrote a letter to the judge complaining about the conduct of certain jurors during the deliberation process. He asserted that during the deliberation process jurors were being badgered, coerced and intimidated into changing their verdict to that which a particular group of Jurors deem to be the right verdict regardless of what the evidence shows. The gist of the letter was an allegation by a member of the jury to the effect that some jurors were basing their decisions on speculations instead of considering the evidence presented by both parties during trial.
The judge then addressed the jury reminding them of the oath they had taken and that they should base their decisions solely on the evidence presented before the court and nobody should cajole or intimidate them into changing their decision. He also emphasised that it is not the duty of the defendant to prove his innocence. The burden of proof rests solely on the prosecution to prove their charge beyond reasonable doubt. The jury returned a guilty verdict on all counts.
When the appeal reached the House of Lords, it was held that the verdicts were unsafe and the conviction was quashed. The reasoning behind this decision was that the directions given by the judge were not sufficient to ensure the jury deliberations were carried out properly to safeguard the defendant’s right to a fair trial.
As seen in this case, jurors with special knowledge or experience may intimidate or coerce their fellow jurors into changing their verdict regardless of what the evidence shows. This has the potential effect of making the jurors reach their verdict based on other extraneous matters and not the evidence presented during trial hence undermining the defendant’s right to a fair trial.
- Presumption of Innocence
The presumption of innocence until proven guilty, which is an integral aspect of a defendant’s right to a fair trial may also be disregarded in circumstances where jurors with special legal knowledge or experience exert improper influence over their fellow jurors. The same can be illustrated by the case of R v Smith mentioned above where some of the jurors were making statements to the effect that it was the duty of the defendants to prove their innocence. This had the unjust impact of shifting the burden of proof from the prosecution to the defendant; hence negating the long-standing legal principle of presumption of innocence until proven guilty. In such circumstances, the defendant’s right to a fair trial cannot be safeguarded or guaranteed.
- Unchallenged Expert Evidence
Another problem associated with jurors with special knowledge or experience is that they may sneak untested expert evidence in the jury room during jury deliberations. Needless to say, expert evidence has an evidential character which is principally different from factual evidence. Expert evidence serves the purpose of helping jurors understand complex matters in a trial[6]. Experts provide jurors with specialised knowledge to facilitate them to make a just determination.
This was seen in the case of Voegeli v. Lewis, a medical malpractice case in which a plaintiff who had been in a motorcycle accident went to the emergency room complaining of knee pain, coldness of the leg and toes, and an inability to move the toes. The treating physician, believing the leg was merely broken, put it in a cast. Several days later, after the plaintiff complained of continuing pain, the physician performed surgery during which it was determined that the plaintiff was suffering from impaired circulation in the leg, which necessitated a partial amputation[7]. The issue in the case was whether the physician should have recognised the possibility of impaired circulation from the plaintiff’s initial symptoms.
In such a scenario, the jury will need to be provided with expert evidence to be able to make a just verdict. This is so because most people untrained in medicine do not know the symptoms of impaired circulation. However, expert evidence, like any other evidence must be subjected to the credibility and reliability test before it is admitted in evidence[8]This ensures that juries do not base their decisions on faulty and one-sided expert evidence.
Faulty, one-sided expert evidence presented by a juror during deliberations doesn’t portend well for the right to a fair trial. The risks are amplified by the fact that such evidence isn’t subjected to the various procedural safeguards pertinent in an ordinary trial such as; cross-examination, presentation of contrary evidence and careful instruction as to the burden of proof.[9] Moreover, the juror isn’t under oath and cannot be prosecuted for perjury, thus incentivising the likelihood of not being truthful due to absence of legal consequences. Needless to say, cross-examination and the opportunity to present contrary evidence are necessary checks which help to protect and safeguard the defendant’s right to a fair trial.
From the foregoing, it is clear that unchallenged expert evidence by a juror unduly and adversely so impacts the right of a defendant to a fair trial. Neither the prosecution nor the defendant’s legal team is afforded the opportunity to challenge the juror’s expert evidence. The expert juror is also under no legal duty to speak the truth.
- Right to be Tried before an Independent and Impartial Tribunal
Jurors with special legal knowledge or expertise may undermine the defendant’s right to be tried by an independent and impartial tribunal which is a central pillar of the right to a fair trial provided by article 6 of the European Convention on Human Rights. A juror with special knowledge or experience with bias against the defendant may use his expertise and knowledge to hoodwink other jurors to make a verdict which is unfavourable to the defendant.
In the case Hanif and Khan v UK, a juror, who was a serving police officer, knew one of the officers who testified at trial as to the guilt of the accused in relation to the offence of possession of heroin[10]. The European Court of Human Rights held as follows;
‘Where there is an important conflict regarding police evidence in the case and a police officer who is personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police.’
The fact that the juror knew the police witness personally and had worked with him on several occasions including investigation of the incident in question meant that he had special knowledge which he could have used to influence the jury improperly.
In the same vein, the European Court of Human Rights in the case of Sander V UK held that an Asian man accused of fraud, was denied a fair trial when the judge refused to discharge the jury after a juror admitted making racist jokes. The court reasoned that the defendant’s right to be tried by an independent and impartial tribunal was infringed when the judge failed to dismiss the jury after a juror wrote a letter complaining of racist jokes made by fellow jurors[11]. The court further observed that the trial judge’s admonition to the jury was not a sufficient safeguard against bias as racist views could not be changed in one day.
It is a trite principle of law that justice must not only be done but must be seen to be done. As such, expert evidence by a juror risks violating this sacred principle since a defendant/prosecutor may view such evidence as being the basis of the verdict by a juror. This undermines the principle of fair trial elucidated in article 6 of ECHR.
Why the principle of random selection is not an adequate solution
The principle of random selection lies at the heart of the jury system. This principle serves the purpose of ensuring fairness, impartiality and the independence of the jury. This means every person who is qualified for jury Service under the Juries Act of 1974 can be called for jury service[12].
However, this principle of random selection has done little to help solve the problem of jurors with special legal knowledge or experience using their expertise to exert improper influence over their fellow jurors hence undermining the defendant’s right to a fair trial. It is not a guarantee that if you randomly select juries you won’t get jurors with special legal knowledge or experience who may use that advantage to exert improper influence over their fellow jurors during deliberations. Therefore, this principle is not in itself a guarantee or a safeguard to the defendant’s right to a fair trial.
Recommendation
At the outset of each trial, a trial judge should explicitly instruct the jury not to rely on their background knowledge or expertise when deliberating about specialised matters. Also, jurors should be required to give reasoned verdicts. This will help cure arbitrariness and bias as the jury will be required to provide reasons for their verdict. In the case of Taxquet v Belgium, the European Court on Human Rights held that the right to a fair trial demands that the accused and the public must be able to understand the verdict[13]. This means that reasons must be given for the verdict.
Moreover, where the risk of such undue influence from a juror with special knowledge is apparent, he/she should be asked to recuse himself/herself.
CONCLUSION
In conclusion, the problem of jurors with special legal knowledge or experience exerting improper influence over their fellow is a significant blow to the criminal justice system. It undermines the defendant’s sacred right to a fair trial and consequently casts a shadow on the fairness of the criminal justice system. The solving of this problem is made difficult by the sanctity of the jury’s deliberations as the individual arguments or views of the respective jurors cannot be revealed to the court. Random selection doesn’t cure this problem but rather increases the probability of its occurrence.
As such, emphasis should be placed on the need of each juror to exercise independent thought based on evidence adduced during trial or recusal in particular cases.
BIBLIOGRAPHY
Juries Act 1974
European Convention on Human Rights
Human Rights Act of 1998
Sander V United Kingdom
Regina v Young
Dyer C, ‘Juror’s Racist Jokes Denied Asian Defendant A Fair Trial’ (the Guardian, 2000) <https://www.theguardian.com/uk/2000/may/10/race.world> accessed 28 July 2020
Jackson J, ‘Unbecoming Jurors And Unreasoned Verdicts: Realising Integrity In The Jury Room’
‘Jurors, Social Media And The Right Of An Accused To A Fair Trial’ [2019] Tasmania law reform institute
Kirgis P, ‘The Problem Of The Expert Juror’ (2016) 75 Temple Law review
Lipovsky C, ‘Right To A Fair Trial: Could Hard News Reports Influence Jurors?’ (2017) 4 Journal of World Languages
Martire K, Edmond G, and Navarro D, ‘Exploring Juror Evaluations Of Expert Opinions Using The Expert Persuasion Expectancy Framework’ [2020] Legal and Criminological Psychology
[1] Article 6, European Convention on Human Rights
[2] Caroline Lipovsky, ‘Right To A Fair Trial: Could Hard News Reports Influence Jurors?’ (2017) 4 Journal of World Languages.
[3] Ibid
[4] ‘Jurors, Social Media And The Right Of An Accused To A Fair Trial’ [2019] Tasmania law reform institute.
[5] John Jackson, ‘Unbecoming Jurors And Unreasoned Verdicts: Realising Integrity In The Jury Room’.
[6] Paul Kirgis, ‘The Problem Of The Expert Juror’ (2016) 75 Temple Law review.
[7] ibid
[8] Kristy A. Martire, Gary Edmond and Danielle Navarro, ‘Exploring Juror Evaluations Of Expert Opinions Using The Expert Persuasion Expectancy Framework’ [2020] Legal and Criminological Psychology.
[9] ibid
[10] John Jackson, ‘Unbecoming Jurors And Unreasoned Verdicts: Realising Integrity In The Jury Room’
[11] Clare Dyer, ‘Juror’s Racist Jokes Denied Asian Defendant A Fair Trial’ (the Guardian, 2000) <https://www.theguardian.com/uk/2000/may/10/race.world> accessed 28 July 2020.
[12] S. 2, Juries Act 1974
[13] John Jackson, ‘Unbecoming Jurors And Unreasoned Verdicts: Realising Integrity In The Jury Room.’