TWELVE JURORS, GOOD AND TRUE

WORDS: Chris Nyst PHOTOGRAPHY Adobe Stock

Chris Nyst Ponders The Jury Selection Process: A Delicate Dance Of Rights And Procedures

Like so much concerning the former – and perhaps soon to be next – American president,  Donald J Trump’s recent jury trial was steeped in scandal and controversy before a single word of substance had been uttered.

The jury panel had no sooner settled in their seats than the judge summarily sent two of them packing.

One had complained that the press coverage of the proceedings had been so pervasive that a bunch of her family and friends had already worked out she had been selected. The well-meaning loved ones consequently began bombarding her with their personal views about the case, and the defendant, so much so that she became convinced she could no longer act impartially. In dismissing her from further service, the judge read the Riot Act to the assembled press. “We just lost what probably would’ve been a very good juror for this case,” he lamented, as he laid down a series of orders strictly limiting what they could and couldn’t publish that might identify anyone selected on the jury.

She wasn’t the only juror to get the chop. After some thorough research, lawyers for the Manhattan District Attorney’s Office unearthed a previously undisclosed anomaly arising from a second juror’s confident assurance that he had no criminal history. In truth, the DA revealed, that wasn’t quite the full story. The juror in question might not have been actually convicted of anything, but back in the 1990’s, he had been arrested for tearing down political advertisements. On top of that, according to the prosecutor, his wife “may have been” involved in a corruption case investigated by the DA’s Office. So, after a quick back and forth between the lawyers and the judge, a second juror got the push. But there were more to come.

Prospective jurors fell like ninepins as the panel was subjected to close questioning by the defendant’s lawyers about how they felt about the highly-divisive 45th US President. One was excused after admitting to not liking Mr Trump’s “persona,” another for disagreeing with “most of his policies,” and one for just conceding she “had opinions” on the controversial candidate. The Trump legal team meticulously mined casual connections, past associations, and even old social media indiscretions, to make sure no rabid anti-Trumpers made it to the jury room.

Of course, as history now records, ultimately it was all to no avail for the former president. But it left many wondering what such highly-publicised courtroom bloodletting said about the impartiality and anonymity of the jury process.

In all legal systems based on British Common Law, including the US system, both prosecution and defence have a limited right of peremptory challenge, without stating any reason, to reject persons selected for a jury. The exercise of that right differs from jurisdiction to jurisdiction.

For example, here in Queensland, each party is accorded a total of eight peremptory challenges. Prior to commencement of a trial, the panel of prospective jurors from which the twelve trial jurors are to be selected, assembles at the rear of the courtroom, awaiting the selection process, and the prosecution and defence are both given a numbered list containing the name and occupation of each of them. Corresponding numbers are then placed in a box, from which the judge’s associate draws them out, one by one, and reads aloud the number.

When each panel member’s number is read out, they walk to the front of the courtroom where the bailiff awaits with a bible, ready to administer their oath to conscientiously try the defendant. As they take that short walk, the lawyers have those few fleeting seconds to decide whether they want to reject the witness. Usually, that decision is made on no more than gut feeling and intuition. But if they elect to reject, the prosecutor announces “Stand by,” or the defence counsel “Challenge,” whereupon the panel member is sent back to await the next draw from the box. Once each juror reaches the bailiff, and the bailiff begins administering the oath, the right to reject that juror is gone. When both parties have exhausted their eight peremptory objections, that’s it. The next numbers out of the box go straight onto the jury, with no questions asked.  Additionally, however, either party can ask the judge to dismiss a juror for cause, by convincing the judge the person is unfit or unable to discharge the role of juror.

In the US, that process seems to have been elevated almost to an art form. Both prosecution and defence lawyers are routinely permitted to closely question panel members to determine whether there may be some cause to seek their dismissal, as clearly happened in Donald Trump’s trial. But in Australian courts, challenge for cause is extremely rare, and questioning of jurors is almost unheard of. Under Queensland law, a trial judge has the power, in certain extraordinary circumstances, to permit a party to examine a juror, but in practice that virtually never happens. And anyone who discloses, or even tries to find out, the identity of a juror, or a jury’s deliberations, commits a serious offence carrying up to two years imprisonment.

Arguably, such protections haven’t always produced perfect juries. The 1991 trial of former Queensland National Party premier Sir Joh Bjelke Petersen on perjury and corruption allegations – which ended with the jury unable to reach a verdict – was plunged into controversy when it was later revealed that the jury foreman was a member of the Young Nationals and “Friends of Joh” movement.

But then, the jurors aren’t the ones on trial. Their role is simply to collectively reflect community standards, by reference to broad human experience, including across the political spectrum. Labour or Liberal, Biden or Trump, the jurors’ obligation is no more and no less than to each bring their individual life experience and wisdom to the jury room, then together conscientiously try the charges and decide them, according to the evidence.