Bringing dark art of jury selection into the open
Jury members should not be dismissed without ‘a good and verifiable reason’, say reformers
The UK has abolished peremptory challenging of potential jurors, so is it time we too adopted that model?
At the Central Criminal Court in Dublin earlier this year at a trial for sexual assault, the defence used all seven of its entitlements to challenge potential jurors. As each person stepped forward the defence team sized them up and either accepted or rejected them. They excluded as many women as they could and also rejected older men and those in shirts and ties.
The result was a jury made up of nine men and three women, with most of the men appearing to be of a similar age and background to the defendant. As it turned out, despite the challenges, the defendant was convicted. But the attempt by the defence team to influence the make-up of the jury raises questions about the challenge process.
Is it “patently unfair” and “discriminatory”? Is it a kind of unscientific “voodoo”, as at least one lawyer claims? Or is it an opportunity to give the accused a small “sense of ownership” of what’s happening to him or her?
In England and Wales, the right to “challenge without cause shown”, known as peremptory challenge, was abolished completely in 1988, in Scotland in 1995 and in 2007 in Northern Ireland. In the Law Reform Commission’s Report on Jury Service, published in April, it recommends the current law in the Juries Act 1976 should be retained.
The Act allows for seven peremptory challenges for each side, to be made before the potential juror swears the oath. Any number of challenges with cause shown can also be made, though the option is rarely used. It is the solicitor on either side who calls the challenge having usually worked out a strategy in advance with other members of the legal team. Lawyers are also entitled to see names and addresses of those in the jury pool as well as information on occupations if supplied.
The commission report says in general, both sides use between three and five challenges each. Any attempt by either side to use all their peremptory challenges to achieve a specific “balance” is unlikely to achieve its aim, the report says, and juries generally reflect the pool from which they emerge.
Remy Farrell, a barrister who works in criminal trials, says peremptory challenges are useful, in particular for removing jurors who may not be capable of performing their duties.
“Very often a juror is about to be sworn in and it is clear they could be a couple of olives short of a pizza; you can’t filter out someone like that without being offensive. The challenge is a way of doing it.”
He argues it is not objectionable for a person on trial to be allowed to reject some jurors. If for example he were defending a client in a bank robbery case, we would not want the person who works in a bank on the jury or the one with the Financial Times under his arm. If he were prosecuting, he might not want the man with the dreadlocks and piercings who may not like the police.
He believes prosecution teams in the Central Criminal Court should use the challenge process more and should use it “tactically”, but he concedes there is no scientific basis for it.