The difficulty of insuring accurate randomness

This article points to the problem of how to produce true representation in juries.

Dearbhail McDonald: The verdict is in – our jury selection process is a farce

Juries are meant to be representative of society as a whole. However, they are anything but, writes Dearbhail McDonald

Trial by jury is one of the last remaining sacred cows in the criminal justice system.

Born by accident to replace trial by ordeal and duelling, amongst other dispute resolution techniques, the random selection of 12 peers is still prized as the only anchor by which a government can be held to the principles of its constitution.

Lord Devlin, the celebrated British judge whose father was from Co Tyrone, famously described jury trial as the lamp that shows that freedom lives.

Here’s the salient point:

For the most part, trial by a jury of one’s peers is as unquestioned as it is innate.

But our current system of selecting juries makes a mockery of jury trial as a bulwark against State power and other anomalies.

To fulfil their constitutional mandate, juries (which only featured women from as late as 1976) are meant to be representative and jurors drawn from a complete cross-section of the community.

They are anything but.

In practice, the burden of jury duty is disproportionately borne by Dubliners; the young, the old and retired, the unemployed, civil servants or those who can manage to undertake the difficult task. The recent empanelling of a 15-strong jury … brought home to me the challenges of achieving the “constitutional completeness” of the representative jury.

Hundreds of potential jurors were called, but the vast bulk was excused. This is not surprising given the restrictions (you couldn’t serve if you held shares in a bank, for example) and the fact that the trial could last for five months.

[…]

A significant amount of the panel knew either the defendants or the witnesses. The excused included former bank workers, people with health problems, those with work commitments, the self-employed, jobseekers and students.

[…]

Due to so many statutory exclusions, our jury pool is too small to be representative.

We don’t (thankfully) screen our jurors like they do in the US and we can’t quiz them about their views and attitudes – sometimes your selection comes down to your post code or the cut of your jib.

We don’t pay jurors and, for most, the difficulties caused by jury service are simply too great. Yet composition matters as much as the right to a jury trial itself.

If we are serious (and we should be) about maintaining trial by jury, we must urgently reform our jury selection process or forfeit the right to truly hold the Government – and our peers – to account.

I know this blog has already considered this problem at length. I suggest this post be placed as another example with the appropriate topic.

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3 Responses

  1. It would be very hard, if not impossible, for a randomly-selected sample of 12 persons to be representative in the the sense of a “complete cross-section of the community”. But why is that so important when it comes to the task of determining guilt or innocence in the criminal justice system? The vital issue is that the selection process should be impartial, hence the need to exclude those who knew the defendants. Representative accuracy, however, is essential in political juries as their role is not purely epistemic, a point that I make in a new post that I’ve just submitted to this forum. This means that exclusions need to be kept to an absolute minimum and that the sample size should be much larger.

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  2. Good point, Keith, about the difference between juridical and political functions.

    What exclusions would you make for short term policy-making bodies? For long-term (e.g., 2-3 years)?

    [Is there a separate thread already on this topic?]

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  3. Age and citizenship restrictions would clearly apply, as in standard electoral models. I used to advocate a (minimal) IQ threshold but have since been persuaded that it is both undemocratic and unnecessary as the numbers of mentally incompetent would be statistically insignificant. As for people claiming the right to not to participate this should be very strongly discouraged (i.e. every step should be taken to ensure that those who have been chosen are able to participate). My model is purely for short-term (ideally, ad-hoc) juries; 2-3 years would, IMO, be far too long.

    >Is there a separate thread already on this topic?

    Should be up shortly, so long as it didn’t end up in Yoram’s spam box.

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