Fresh in the minds of those legally observant and internationally aware was the recently concluded Oscar Pistorius murder trial that was heard by Justice Thokozile Masipa, of the South African High Court along with her two assessors. The first thing that caught the fixated eyes of those looking on (particularly the legal observers) was that there was no jury. The jury represents the objective eyes and ears of citizens actively assisting in the administration of justice. The case reopened the age old debate of whether laymen who are not learned in the law should be able to make determinations and pronouncements on the guilt or innocence of a man or whether a learned judge seated at the bench from time immemorial and completely desensitized should be allowed to solely make pronouncements on the guilt or innocence of a man.
One scholar posited this stance “I don’t see what purpose a jury serves anyway, after all the system ‘commonly strives to assemble 12 persons colossally ignorant of all practical matters, fill their vacuous heads with law which they cannot comprehend, obfuscate their seldom intellects with testimony which they are incompetent to analyse or unable to remember, permit partisan lawyers to bewilder them with meaningless sophistry, then lock them up until the most obstinate of their numbers coerce the others into submission or drive them into open revolt.’ Trial by judge alone or special jury in certain technical cases will do”[i]
Alexis de Tocqueville, on the other hand, wrote:
“The jury, and more especially the jury in civil cases, serves to communicate the spirit of the judge to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge toward society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use they have made of the jury in civil cases.”[ii]
At this juncture it is worth noting that our Caribbean neighbours Belize have abolished the jury trials for most serious offences in 2011 and South Africa from as long ago as 1969. The Minister of Justice, Mark Golding, has sought to strike a balance (or so it seems) by recommending the number of jurors be reduced. This has since been strongly opposed by several members of the Jamaican legal fraternity.
Former Justice Minister Delroy Chuck weighed in on the debate outlining that he would not support the reduction to 7 jurors for a trial. He admitted that he may support 9 members but that 7 is too low as murder is a very serious crime. The fact that murder is such a heinous crime, it is often argued that 12 minds devoid of the rigors of the law should be the ones to determine the fate of the one who stands accused.
As it stands, the defence is entitled to reject seven persons of the potential jury pool for murder cases and five for other offences without proffering any reason for the refusal [Section 33 of Jury Act]. This alone requires that the pool be ample enough to supply the number of cases that comes up for trial. This then re-invites the ever present issue of whether jury based trials should still be held.
One of the proposed solutions to the jury woes is to remove civil servants who are currently exempted from jury duty. Schedule A of the existing jury legislation exempts civil servants, or individuals holding appointments within the public sector and receiving salaries in the public service, from serving as jurors. This undoubtedly will expand the pool of jurors and ought to provide a greater level of efficacy in the conduct of jury trials.
My two cents on this issue is that if Senator Golding succeeds in having the exemption currently in place for civil servants removed so as to widen the jury pool then this will solve many of the issues surrounding efficacy at a trial. With the already small jury pool existing in an island such as Jamaica with a population of 2.7 million people and a communal bond where ‘everybody knows everybody’, now may be an opportune time to suggest following in the footsteps of South Africa and our Caribbean neighbours Belize and do away with the jury altogether.
Jahmar Clarke is a Second Year student at the Norman Manley Law School
[i] Oppenheimer, “Trial by jury,” U. Cin. L. Rev. 141, 142 (1937)
[ii] Democracy in America 285-287 (Bradley ed. 1945).