The craft of jury stacking by Jarad Henry

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The jury system has outlasted the test of time and seen as a pillar of democracy. Theoretically, the guilt of the accused is determined by a diverse representation of randomly selected peers. The process is supposed to ensure moral objectivity, impartiality and just outcomes. However, predicting human behaviour has become a calculated art form and many argue that it limits the integrity of democratic ideals by manipulating the construction of justice and promoting a trial by ‘doctored’ peers.

Also known as (AKA) jury stacking.

Ask any candid defence practitioner and they will identify that ‘systematic jury selection’ or ‘jury stacking’ is necessary to remain legally competitive in the adversarial system of justice. It is an inherent part of the defence advocate’s job description to utilise scientific methodologies to predict and eliminate those deemed to make decisions. It is an art and a skilful craft based on a mix of stereotyping, experience and a clever understanding of the human psyche. Hollywood glorifies this a little, but jury consultants are part of the system and a good lawyer will either have them on retainer or employed at least part time, and well paid.

According to defence advocates, systematic jury selection by the accused goes to the very root of our fair jury system – the accused has the right to follow his or her personal objections, until exhausted, to ensure the belief that he or she is accurately represented by those empanelled. That is, a panel of genuine ‘peers’.

Six ‘peremptory challenges’ are allowed, without having to show cause to the presiding judge. This promotes a sense of procedural fairness for the accused and increases the likelihood of the defendant accepting a finding of guilt. That is the theory. Reality speaks a different language, where appeals are almost par for the course.

Similarly, the adversarial system of justice accords the same procedural right to Crown prosecutors, which to some is viewed as unfair. Opponents argue that prosecutors must be seen as being objective. They contend that since the burden of proof rests with the prosecution, the question of who is empanelled on the jury should not be of concern to the prosecution, as ‘beyond reasonable doubt’ should apply to all jurors – not just those whom the Crown deems most likely to agree.

Proponents argue that if the defence is able to ‘stand aside’ six potential jurors, why shouldn’t the prosecution? What’s good for the goose is good for the gander. Further, there are ‘rules’ or guidelines that restrict the capacity for the prosecution to ‘stack’ a jury in their favour, which don’t apply to defence teams.

Firstly, the prosecutor may be required to justify his or her challenge by showing cause to the judge, whereas this doesn’t apply to the defence team.

Secondly, Prosecutorial Guidelines expressly stipulate that prosecutors are prohibited from standing aside potential jurors based on age, sex, race, physical appearance, and occupation. The Guidelines further stipulate that a juror can only be stood aside without explanation if they:

  • Have been talking to a party involved in the trial;
  • Are related to the defendant or practitioner;
  • Have made a biased remark;
  • Expressed an unwillingness to participate; or
  • Have an obvious disability.

The problem with these Guidelines (according to opponents) is that there is no reasonable way of ascertaining if prosecutors are legitimately adhering to the Guidelines or simply engaging in jury stacking. Surely the same can be said for the defence, and in many cases even more so, given the growth in ‘jury consultancy’ professionals. Hence those who demand prosecutors should show cause to the presiding judge as to why they believe a certain juror cannot be competent or objective might do well to remember that the odds are already stacked against the prosecution. Burden of proof, the CSI effect and inadmissible evidence (such as prior convictions) clearly make the job of the prosecution much harder than that of the defence.

They might also do well to consider the views of the majority. In any democracy, justice must be seen to be done. In the adversarial system, this is a considered a cornerstone. But so too are community expectations of justice and sentencing, which is theoretically based on a balance of ‘rehabilitation’, ‘retribution’ and ‘deterrence’.

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A poll of community members would, in my humble opinion, suggest that too much weight is placed on the rights of the offender and not enough on the victim. A similar poll would also reveal the community frustration and cynicism of lenient sentences, especially for violent offences.

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