Jury trials can be long and expensive and if we are honest, there are few who relish the prospect of being called up for jury duty. But if we don’t want to abolish them altogether, how about making them smaller?
Can six be as good as twelve?
The current NSW system
Juries in NSW are usually comprised of twelve people – but they can be as few as eleven, or even expanded to up to 15 in lengthy criminal proceedings. However, only twelve of these will retire and give the jury’s verdict.
In criminal trials, a person will be found guilty if either a unanimous or majority verdict is returned. A “majority verdict” means eleven out of twelve, or ten out of eleven members of the jury.
Under section 55F of the Jury Act NSW, a majority verdict will only be allowed if the jurors have deliberated for eight or more hours and it is unlikely that a unanimous verdict will be reached.
When it comes to offences against the Commonwealth, the jury verdict must be unanimous.
The United States
The NSW jury rules are, for the most part, in line with other common law countries, where there are normally twelve jurors – and this has been the way jury trials have been conducted for the last 600 years or so in common law countries.
But in America, some states have changed tack have in recent decades. Several states now allow for just six jurors to constitute a jury. Six-member juries were also used in some parts of Canada for a short period, until they were declared unconstitutional.
Are these smaller juries just as good or can they seriously harm the case of innocent defendants?
The judges in one decisive 1970 Florida case looked at this very issue. They decided that neither the language nor the intentions of the Constitution mandated that a jury be comprised of twelve members. The judges found that the question was whether smaller juries could do the job of large ones – if so, they would be deemed constitutional.
The court went on to answer the question in the affirmative, deciding that smaller juries could indeed do just as well as larger ones – although subsequent research came to the opposite conclusion.
A study by M K Saks just a few years after the Florida decision found that smaller juries could indeed drastically change results.
Saks’ research ended up concluding that larger juries debate more vigorously and collectively recall more evidence, ultimately allowing them to make better decisions. It found that larger juries also increase the chance of individual prejudices being evened out, so that those with strong views about race, gender and even certain categories of criminal offences are less likely to be disproportionately influential.
And with juror bias already of significant concern in Australia – especially considering that only those on the electoral role are eligible for jury service – decreasing the size of juries could also further decrease their ethnic diversity.
Perhaps fortunately, six-member jury trials are not the norm for criminal cases in the US, although they are the standard for civil trials. Rather, defendants in criminal matters are almost always subjected to trial by juries of twelve. Florida is the exception to this general rule – in that State, several serious criminal trials have been heard by six-member juries.
Despite the costs of twelve member jury trials, it appears that there are significant risks in reducing the number of jurors. So while the debate around the advantages and disadvantages of the jury system continues; simply meeting halfway by using smaller juries does not seem to be the solution.