Jury Trials

June 2nd, 2007 at 11:11 am by David Farrar

This story on jury trials should ring some alarm bells.

* Only one in ten people summoned in Auckland for jury duty turn up
* In two trials a juror declared the defendant not guilty before they had heard any evidence (electing the Chair)
* Two jurors didn’t speak a single word during the entire deliberations
* Four jurors did not take any notes or read any of the material

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129 Responses to “Jury Trials”

  1. Graeme Edgeler () says:

    The defendant *is* not guilty before any of the evidence is heard :-)

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  2. peteremcc () says:

    I guess you have to live with that when a Jury is representative of the general population.

    That may be a very negative view of things on my part – but I feel it’s justified when non of those stats surprised me.

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  3. David Farrar () says:

    Peter – the jury is not representative of the general population. It is representative of the 10% who turn up.

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  4. tim barclay () says:

    Of course they are not pefect but you still need to get 12 people agreeing. Everyone notices something different in a trial. It is surprising what jurers notice when you have 12 people involved. Of course some go to sleep and some take no part. But in the end they all have to agree either actively or by implication. It is no different from any other committee.

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  5. Fred () says:

    The last check on the establishment by the common man is the jury system…..with all its faults.

    To imply a better system would be, say, a panel of judges means no more “jury nullification” when the law is seen as an ass.
    Some past self defence cases come to mind.

    Dave, you know not what you wish for.

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  6. RedRag () says:

    I’ve served on two juries, once as Chair, and I’m pretty comfortable with them. Not perfect, but neither is any other human endeavour. I think overall they still play a vital role in moderating the legal system, allowing it to both adapt to changing public attitudes, and at the same time accrue a large element of public acceptance to the outcomes.

    What did disturb me in both cases was the obvious “filtering” of evidence and information that went on. In both cases it was clear that certain witnesses had not been called, and quite important bit’s of evidence had been omitted, which meant that gaping holes appeared in both prosecution and defense cases. As a result we the jury were left to make some big speculations about critical aspects of the decision we had to make.

    I understand that within the last few years there has been some reforms around the “Rules of Evidence” laws has been introduced, and I would appreciate some informed comment from the likes of Graeme Edgeler as to what practical effect this has had.

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  7. dave () says:

    I have attended many jury trials as part of my employment and I have strong misgivings about the system, due to the calibre of people selected for juries which as David says is definitely not a representative sample of the population. However this is not solely because hardly anyone summonsed for jury duty turns up… the Crown and defence lawyers also use their “challenges” to stop anyone who looks like having half a clue from being on a jury.

    Take the Donna and Wi trial, which I attended in full.

    The jury there was carefully selected via challenges to be the slowest bunch of jurors I have ever seen. Most were elderly or unemployed; anyone with a job or dressed neatly was immediately challenged. It was certainly not a jury of the peers of the accused — all were Pakeha except one Island woman. None would have been educated past school certificate, whereas Donna has university degrees to her eyeballs.

    I watched the jury carefully during the trial, and all of them seemed confused as to what was going on. One was so clueless that she approached me during a break to ask me what the trial was about. I had to report this to the registrar, with a suggestion he get the judge to explain some basics to them. He did not.

    While the evidence against Donna was overwhelming and compelling, the SFO case against Wi was non-existent. The only “evidence” they had against him was a set of bank accounts subpoenaed from the National Bank of a “Wi Huata.” However in an excruciatingly embarrassing moment for the SFO accountant giving evidence, the defence revealed these were the bank statements of a completely different Wi Huata who lived in Rotorua not Hastings. The whole case against Wi was built on the bank statements of the wrong Wi and should have been thrown out at that moment.

    Given the non-evidence against Wi, the defence prompty did ask the judge to throw out the case against him, on the grounds that no jury properly directed could convict. But the judge, while agreeing the case was poor, nonetheless said it was something the jury could properly decide.

    The Crown in its summing up brazenly told the jury that the case against Wi was no different to that against a getaway driver who stayed in the car outside the bank while the accomplice was inside robbing the bank. Both were equally guilty under the law. “He was married to her,” the prosecutor said pointing at Wi. “He must have known what she was up to. Therefore he is equally guilty.”

    To my horror, the jury bought this bullshit and convicted Wi as well as Donna. The judge seemed as dubious as I was and immediately freed Wi on bail, but under our law a judge cannot overrule a jury verdict in such a case. (Later at sentencing he allowed Wi home detention but the Parole Board, departing from its practice when dealing with dangerous, violent thugs, overruled the judge and sent Wi to jail.)

    Immediately after the verdict and the pandemonium that followed in the courtroom, I went up to the prosecutor and asked how it was right for Wi to have been convicted. “That’s why we have juries,” he said with a big grin.

    If I were charged with a crime and was innocent, I would not select trial by jury, I would demand a judge sitting alone. I have seen too many juries in my time to throw my future to the mercy of one. Only if I were guilty would I have a jury, because there is then a chance of pulling the wool over their eyes with the right lawyer.

    I prefer the European inquisitorial system where the judge actively takes part in a trial in a quest to get to the truth. The truth often does not matter in the system we use — look at the shabby conviction of Wi Huata and the even shabbier conviction of Peter Ellis — all that matters here is the legal process.

    We do not have a justice system, what we have is a legal system. Usually the right person is found guilty, simply because the authorities almost always charge the right person. But even one wrongful conviction is too many and too often the result in our courts is injustice.

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  8. RedRag () says:

    However in an excruciatingly embarrassing moment for the SFO accountant giving evidence, the defence revealed these were the bank statements of a completely different Wi Huata who lived in Rotorua not Hastings.

    If that is true then it is a seriously damming indictment of the SFO and Crown legal people involved. Not to mention the judge as well. But I fail to see quite how this is a failing specifically of the jury system. After all it was not them who brought fraudulent evidence to Court.

    I am also reminded of the absurdly vindictive case that brought against the Canadian John Davies. He remains, and likely will remain for many years, the only person in NZ to have ever been convicted for falsifying a CV. Of course he was technically guilty and we can make all manner of righteous noises about how stupid Davies was….but unquestionably it was the political “Maori Broadcasting” aspect that generated the all the heat and led to the matter arriving in Court in the first place. The indelible impression in my mind is that the law still treats brown skins and white skins somewhat differently.

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  9. ross () says:

    See http://homepages.paradise.net.nz/r.christie/Civic%20Protest.html

    Section 16C of the Juries Act 1981 states that a juror may be excused: “If the Judge is satisfied that the person objects to jury service on grounds of conscience, whether or not of a religious character.”

    I will not serve on a jury. I have no desire to participate in an event whereby an innocent person may be convicted on the basis of only part of the evidence. As it currently stands, the police may “forget” to provide the defence with important information. The accused may not, for whatever reason, receive a fair trial. We have a number of convicted criminals who are imprisoned and who are, according to retired High Court judge Sir Thomas Thorp, likely to be innocent. That gives me little faith in the system.

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  10. ross () says:

    Dave wrote: “If I were charged with a crime and was innocent, I would not select trial by jury, I would demand a judge sitting alone”.

    The trouble is, Dave, that in the Peter Ellis case the judge agreed with the jury’s verdict. He clearly didn’t get a fair trial.

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  11. Chuck Bird () says:

    Redrag, mentions how the case that brought against the Canadian John Davies was politically motivated. It was the first case of someone jailed for falsifying their CV.

    I remember at the same time the PM was being investigated for much the same thing. Her CV goes to the public. She tried to portray herself as an artist who gave her valuable time to do an oil painting to help a charity.

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  12. David () says:

    Just to correct a mis-statement of fact that has been perpetrated since it was first raised …

    All Ms Clark was asked to do was sign a painting as part of a charity auction. She was not the only “celebrity” asked to do so, and was not the only one to sign some random “work of art”.

    That does not excuse it, or condone it, but it is interesting how one small thing gets distorted and is used by many to sully a person’s character.

    Instead, simply use some of her recently “handling” of embarrassing cases – Philip Field comes to mind. (I refuse to call him “Taito”, chief. That should be a title of respect, a title I suggest needs to be suspended pending the outcome of the case.)

    As a relevant aside – Will Field choose to be tried by jury?

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  13. Chuck Bird () says:

    David, if you have any evidence that others signed oil paintings that they did not paint?

    I bet no others arranged for their own painting to be bought back and destroyed while they were being investigated by the police.

    I had made a genuine offer for painting which was being consider when some slimy left wing lawyer bought the painting for $5,500. the painting was destroyed shortly after that.

    http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=2051011

    It would be as hard to prove Helen was involved in the purchase as to prove cutting the power killed Mrs Muliaga.

    There have been many mis-statements about the painting by Clark’s supporters.

    I do not know how many times I heard Labour lackeys ring talkback saying the painting was signed on the back and not the front. The spin was pure Goebells. Typical Labour tactic. repeat a lie often enough and it will believed.
    The painting was signed on the front.

    I read the police report. The police themselves said their was a prima facie case against Clark.

    If National had have taken a private prosecution we could have been rid of her much sooner. The chances of a private prosecution we considerably reduced while the evidence was destroyed during a police investigation.

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  14. dave () says:

    If that is true then it is a seriously damming indictment of the SFO and Crown legal people involved. Not to mention the judge as well. But I fail to see quite how this is a failing specifically of the jury system.

    It was a spectacular failure of the jury system. The Crown case against Wi collapsed, but the thick as planks jurors still found him guilty. Had it been a trial with a judge alone, Wi would have been acquitted.

    After all it was not them who brought fraudulent evidence to Court.

    The evidence wasn’t fraudulent. The SFO accountant genuinely thought she had Wi’s bank statements. She only realised when the defence cross-examined her that it was a different Wi. It was an honest mistake that the defence lawyer picked up at pre-trial and carefully kept quiet about till trial so as to get an emphatic acquittal for his client.

    In the event the jury was too thick to realise the blindingly obvious.

    At the time, I believed the judge should have discharged Wi then, as requested by the defence. I suspect the judge never thought for a moment that the jury would still convict Wi.

    The only fraudulent evidence I have seen* in the many trials I have followed was the Tamihere case, where the police planted the watch on Tamihere’s son and claimed it had been taken from Urban Hoglin’s body. And of course, when the body was found, the watch was still on his wrist.

    While I believe Tamihere was guilty, the verdict should still have been quashed on appeal when the watch turned up as it showed there was fraudulent evidence in the case. I was surprised when the Court of Appeal refused a retrial. It would have to have ordered one under the “let a jury decide not judges” edict of the Privy Council in Bain.

    *I don’t include Thomas as his case was well before my time, but clearly that was the worst case of police planting of evidence that has ever been uncovered, because it led to an obviously innocent man going to jail for many years for a murder he had nothing whatsoever to do with.

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  15. dad4justice () says:

    Graeme Edgeler wrote “ The defendant *is* not guilty before any of the evidence is heard :-)”

    I know it says that in a text book gathering dust in University academic land, however in real life often evidence means sweet bugger all, as crown law and cops do the harlem shuffle, planting, sorting etc it all before out pre trail, status hearings, and depositions. Often police get tunnel vision as they spot a guilty target and that’s that mate -bang – smack guilty bro, no matter what. They build the case around the vision, and they do not hard core evidence (on the balance of probabilities is good enough!) Cops have shown us all that they can withhold and plant evidence, but Joe average thinks our judicial system couldn’t be so corrupt? Crown prosecution often resort to low tactic’s to justify the conviction, and remember well – the state is always right, however in reality the system regularly blatantly influences and pressures many jury trials for the ‘right verdict’. Crown law, police medical and forensic experts often lie on (OATH – BIBLE) to obtain conviction. And please don’t say you’re any better of with a judge directed trial, as the judicial system is devoid of natural justice and fairness. For example – criminal charges result in a one way gender flow tide direction from civil jurisdiction (a respondent) where evidence is not required onto the presumption that they soon become the defendants in criminal jurisdiction. Then everyboys happy, everybody gets paid and they all have a cigar, brandy and sing God Save the Queen, meanwhile the shafted bloke is carted off to prison without the real need of any evidence, as hearsay from the system is never wrong ( Just ask at any golf or bridge club ) Wonder if they teach you that at law school? Yeah right. I wonder how many cases the Innocence Project wants to forward to them as prime examples. The law is a dysfunctional mess, if you don’t believe me, then I say how come a disobedient Prime Minister of a country can manipulate and discredit the law at her free will? Surely as a country we must have faith in a judicial system of honesty and integrity, dreams are free, however Kullen will find a way to tax them – bastard he is. The law is an ass !

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  16. Fred () says:

    DLSES do not a jury make.

    Bigger jury pools easily solve the problem ….a uniquely NZ handicap.
    No such problems in Aust.

    Prosecution of police who evidence tamper/withhold will do more to fix the system than all the “investigating judges” in France.

    Never happens….gee, wonder why?

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  17. RedRag () says:

    Dave,

    Thanks for the reply…. the circumstances of Wi Huata’s trial make better sense in your second version.

    I wonder though if there was still not some obligation on the prosecution to withdraw the evidence they had mistakenly introduced or for the judge to formally instruct the jury that the evidence they had just heard was incorrect and they should completely ignore it?

    In the event the jury was too thick to realise the blindingly obvious.

    Yes, or too prejudiced. The US system, for all it’s flaws, makes a much more focussed attempt to weed out potential jurors who are overtly biased or are likely to be emotionally invested in a fixed outcome.

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  18. dad4justice () says:

    Comparing a US system designed for a pop of 300 million and our small jury pool is stupid RedRag . Does the jury pool in New Zealand include people who struggle with English ?

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  19. bwooce () says:

    As someone who has ducked several summons’ I would like to note that while I would really like to do my civic duty it shouldn’t be at the cost of my house/marriage/health. The current payment, hell even the proposed new payments, are not comparable to my salary.

    I can’t, and won’t, sit for anywhere from 1 to n weeks being paid ~$50 a day when my mortgage alone is more than that. I don’t expect my company to pay for it either — I can’t imagine a more random tax and the impact is doubled since like shoplifting the company would pay for me and not get to sell me during that period.

    The jury system with representative juries would be a lot better; at the moment we get people who see the money as an incentive (unemployed) and people who are too stupid to get out of it.

    I’d like to think I’d get balance cross section of society if the occasion required it, but I’m well aware that I wouldn’t.

    If the jury duty payments were 80% of my salary then I would more seriously consider not excusing myself every time.

    What is the justification for the govt not paying peoples salaries while on jury duty?

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  20. Rumpole () says:

    bwooce

    You are dead right the payment is an insult which is why most working people try to get excused – it shows how seriously governments regard justice as opposed to law.Most political parties readily identify the problem but propose no realistic solution so until electors have the power to impose a solution perhaps through binding referenda this and many other problems will remain just that.

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