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Dore, Paul --- "The juror experience: Meeting community expectations during COVID-19" [2020] PrecedentAULA 71; (2020) 161 Precedent 28


THE JUROR EXPERIENCE

MEETING COMMUNITY EXPECTATIONS DURING COVID-19

By Paul Dore

Juries bring the values, standards and expectations of our community into the courtroom. Jurors contribute in a significant way to the administration of justice. In criminal trials, they take on the weighty task of being the deliberators of the facts and evidence while the presiding judge remains the judge of the applicable laws and rules of the court. In our adversarial system of justice, this dynamic between judge and jury might be described as a balanced partnership; as opposite sides of the justice coin.

The intention of this article is not to defend Magna Carta nor to specifically extol the virtues of our system of trial by jury. Rather, what follows is a nuts-and-bolts, juror-centric review of effective jury systems in unprecedented times. Through the lens of COVID-19, this article explores the relationship between a court and its community, and identifies key factors that strengthen that relationship.

JURIES DURING COVID-19

Under normal circumstances (that is, prior to the COVID-19 pandemic), Juries Victoria staff work with the Victorian superior courts to ensure citizens are prepared for, and supported in, their role as jurors. On any given day, two-dozen jury trials run across all of the courts in Melbourne, with another half-dozen or more underway across regional Victoria.

On 14 March 2020, Victoria’s Supreme and County Court of Victoria announced the indefinite suspension of all new jury trials.[1] Our efforts at Juries Victoria to prepare and support citizens for jury service will need to be increased and intensified in anticipation of the resumption of jury trials. When public health advice allows, jury trials are likely to resume in a limited way (for example, with a reduced number of concurrent trials) in line with the contemporaneous rules and restrictions of COVID-life on the community.

These restrictions run contrary to our courts’ long-held practices in running jury trials, with the need for social distancing in particular raising significant practical difficulties. Indeed the integrity of the jury system relies on our ability to bring hundreds of people together to form the jury pool on a daily basis, randomly summonsed and broadly representative of the community. From the pool, smaller panels of 30–40 people are randomly formed and delivered to any number of courtrooms for the selection of a jury. The selected 12 must then attend that courtroom for many following days, often weeks. They actively participate in the trial then spend hours, and often days, in a deliberation room until they reach their verdict. Every milestone along the path to the formation of a jury is contrary to the current COVID-19 health advice. When restrictions are sufficiently eased to allow for jury trials to resume in Victoria, we will not only have to deliver a service that is in line with public health advice, but we must also be seen to do so. We will rely heavily on the willingness of citizens to comply with the summons, as informed by their confidence in us to keep them safe.

THE JUROR EXPERIENCE

Every year, approximately 20,000 Victorian citizens show up for jury service and over 6,000 serve on a jury. But for having a summons, most of these citizens would have no reason to be inside a court building. Often participation in the jury system exposes citizens to our justice system for the first time.

In most instances, people summonsed for jury service give little consideration to, and have even less appreciation of, our legal system, the court procedures and our expectations of them. In contrast, our expectations of them are high. It’s not our judges, lawyers, police or experts who decide the facts and determine the guilt, or otherwise, of fellow citizens; it is these 6,000 jurors, randomly selected from our community.

For most jurors, it is their first summons. The best we can hope for is that they’ve read and understood the information received with their summons, and we can only dream that they’ve visited our website. At worst, they arrive expecting an experience out of an American movie or television show. This latter group takes up a disproportionate amount of our time and energy, as we must undo their expectations formed by years of Hollywood misinformation. We are at times in the myth-busting business. Thankfully and anecdotally, most jurors attend in a state of not knowing; a little anxious or expectant, but curious and looking forward to the court experience.

There is no doubt that jury service represents a significant disruption. Jurors are asked to suspend their daily routine for days, weeks and sometimes months. Depending on the trial, the evidence can be mind-numbingly boring or shockingly detailed, the latter often describing the most horrific of human behaviour. Jurors are expected to consider this evidence alongside 11 strangers in foreign and formal surroundings. Finally, the jury must arrive at a verdict and declare it in an open court, knowing the impact will be felt by many people, in many different ways, for a long time or perhaps forever.

Courts and jury managers look to create and promote an environment where jurors are more likely to report a positive experience than a negative one. Feedback from citizens – both those who serve on a jury and those who attend but are not selected – is an important lens through which courts can be viewed, measured and judged. Despite the enormity of the expectation and task, an overwhelming number of jurors describe their experience as interesting, informative, positive and rewarding, and most leave with a feeling of genuine achievement.[2]

In the time of COVID-19, we’re forced to explore what more can, and must, be done to maintain positive juror experiences. The foundation of all effective jury systems relies on four pillars: governance, communication, research and capability.[3] During the pandemic these four pillars have become even more crucial, and they are best grouped into two subsets as described below.

GOVERNANCE AND COMMUNICATIONS

Courts and our system of trial by jury are institutions established over several centuries. Court proceedings, steeped in tradition, can be complex even for those who are well-versed. And they can be downright mysterious and intimidating for those who are not. Custom and practice, and even the court craft of judges and counsel, are drawn from centuries past. From the jurors’ perspectives, courts and jury management practitioners are seen to be late adopters of contemporary and emerging technologies.[4] As with other aspects of their lives, modern jurors expect to engage with the court system in a 21st century manner. This community expectation is what drives courts to strengthen governance, and improve and tighten their communications to prospective and empanelled jurors.

In terms of governance and internal communications, advisory groups have long been used in many jurisdictions.[5] Some are established on an ongoing basis with a generalist approach to jury management, while others are time-based and address a specific issue (akin to a task force). This latter model has been required and eagerly adopted in Victoria in anticipation of jury trials resuming.

At the macro level, and upon request of Chief Justice Ferguson, State Coroner Judge Cain heads up a working group of criminal courts, the legal profession, and criminal justice stakeholders to oversee all aspects of the Victorian courts’ COVID-19 response, including the resumption of jury trials.[6] Further, the superior courts have established judge-led working groups to address everything from legislative change to courtroom enhancements and reconfigurations.

Meaningful and effective communication with prospective jurors is a perennial challenge. As with any communications strategy, the trick is to ensure the right person delivers the right information at the right time. In pre-COVID times, we’ve applied this principle and targeted our communications rather effectively. For example, our messages to citizens have traditionally been aligned with their status as jurors, at the point in which they find themselves along their juror journey. For those who are yet to attend jury service, our messages address the issues of their eligibility and availability. The focus at this stage is on ‘us’, being the legislative framework that provides for the administration and operation of a jury system as well as court listings and demand. Once groups of people attend as summonsed, our communications become far more targeted on ‘them’, so as to address their personal circumstances and the impending juror experience.

As mentioned, in pre-COVID days our communication challenges were often with those who had watched too much American television. In the early stages of their juror journey, when we were tasked with assessing their eligibility and availability, we also found ourselves addressing anxieties associated with in-court experiences from those who anticipated a scene from Law & Order or 12 Angry Men.

We’re discovering that jury management in COVID-19 will require us to jump between and across the ‘us’ and ‘them’ paradigm. That is, a citizen’s eligibility might be informed by directions given by Victoria’s Chief Health Officer (for example, postcode lockdowns or industry-specific restrictions), while a citizen’s availability might be influenced by their understanding of the systems and practices in place to meet community expectations (for example, social distancing, cleaning and hygiene).

RESEARCH AND CAPABILITY

Australian courts and jury managers have been well-served by several local academics whose research, individually and collectively, has captured and recorded the juror experiences across Australasia.[7] This has led to developments and improvements in jury management and juror engagement over the past several decades. It also laid the cornerstone for a collaborative network of Australian jury administrators that continues to this day. Equally, a wider network of practitioners and academics has evolved into an annual Jury Research and Practice Conference, led by Professor David Tait (University of Western Sydney), Associate Professor Jacqui Horan (Monash University) and Professor Jane Goodman-Delahunty (Charles Sturt University) and held alternatively in Sydney, Melbourne or Canberra. Like any community of practice, this network has provided opportunities over the years to compare and contrast practice and share knowledge. In 2020, this network has assisted with informing the resumption of our operations.

When the impact of the pandemic first hit in March 2020, heads of jurisdiction across Australia declared the suspension of new jury trials, some indefinitely and others with a ‘not before date’ of resumption. At the time of writing this article, Victoria is the only state to have experienced a second wave of COVID-19 and as a result, it remains the only jurisdiction to have not resumed jury trials. In comparison, all other jurisdictions resumed jury trials in June or July.

The models adopted to resume jury trials in each jurisdiction are similar to one another: a combination of limited, targeted and gradual listings; reconfiguration of jury and court spaces to allow for social distancing; enhanced hygiene practices and cleaning; and bespoke COVID-19 messaging to summonsed jurors. Victoria will no doubt adopt a similar model when jury trials resume.

CONCLUSION

Juries are central to court proceedings and our justice system. The relationship between courts and community, and between judge and jury, is precious. Jury managers must strike a balance between meeting the listing demands of courts and minimising the disruption and inconvenience to citizens.

Citizens not only have an obligation to serve on juries but have a right of citizenship to do so. Therefore courts must also strike a balance between this personal obligation and right of citizenship. While COVID-19 may present jury managers and courts with unique challenges, the investment we’ve made in governance, communications, research and capability over the years, and very recently, holds us in good stead.

Paul Dore is Victoria’s Juries Commissioner and a 2018 Churchill Fellow. WEBSITE www.juriesvictoria.vic.gov.au.


[1] County Court Victoria, ‘New jury trials suspended from Monday 16 March’ (Media release, 14 March 2020) <https://www.countycourt.vic.gov.au/news-and-media/news-listing/2020-03-14-new-jury-trials-suspended-monday-16-march>.

[2] C Thomas, Diversity and Fairness in the Jury System, Ministry of Justice Research Series 2/07, 2007.

[3] P Dore, To Develop a Systemic Approach to Juror Support Programs in Australia – Canada, USA, UK (Report, 2018) <https://www.churchilltrust.com.au/fellow/paul-dore-vic-2018/>.

[4] J Horan, Juries in the 21st Century, The Federation Press, 2012.

[5] Dore, above note 3.

[6] Supreme Court of Victoria, ‘Joint statement: Victorian Courts and VCAT: Easing of COVID-19 restrictions’ (Joint statement, 7 September 2020) <https://www.supremecourt.vic.gov.au/news/joint-statement-victorian-courts-and-vcat>.

[7] J Goodman-Delahunty, N Brewer, J Clough, J Horan, J Ogloff and D Tait, Practices, Policies, and Procedures that Influence Juror Satisfaction in Australia: Report to the Criminology Research Council July 2007 (Research and Public Policy Paper No. 87, Australian Institute of Criminology, 2008).


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