Jus­tice blind when it comes to ju­ries

Lawyers can’t learn much about jurors be­fore, or af­ter, trial


Agut feel­ing, a stereo­type about a pro­fes­sion, an air of open-mind­ed­ness — that’s all the snap de­ci­sion that goes into se­lect­ing jurors in Canada can come down to.

“You can’t tell any­thing, so you should pick the first 12. Any ju­ror who would agree to be on this jury would be fair,” de­fence lawyer An­thony Mous­ta­calis’s men­tor once told him.

When pressed for de­tails, he sug­gested the lawyer pick peo­ple he would walk up to and speak with at a so­cial event — ad­vice Mous­ta­calis still goes by.

“You are go­ing to be speak­ing with these peo­ple for weeks.”

There are ques­tions that can be asked about po­ten­tial jurors, but un­like the U.S., they are lim­ited to screen­ing for racial or cul­tural bias and pre­trial pub­lic­ity.

“You don’t get to know the ju­ror . . . for bet­ter or for worse,” said de­fence lawyer Daniel Brown. “It’s based on a snap de­ci­sion in the mo­ment. Do you get a good feel­ing from a ju­ror or a bad feel­ing?”

In a case such as that of Toronto po­lice of­fi­cer James For­cillo, who has pleaded not guilty to sec­ond-de­gree mur­der and at­tempted mur­der in the street­car shoot­ing of Sammy Ya­tim in 2013, Brown says jury se­lec­tion may be es­sen­tial to the out­come of the case.

“It’s go­ing to be whether or not the jury can un­der­stand or see this case through the eyes of For­cillo,” he said. “In some cases it’s hard to put your­self into the head of the ac­cused or to feel sym­pa­thy for the ac­cused . . . the ac­cused may be of a dif­fer­ent back­ground from you, a dif­fer­ent na­tion­al­ity, dif­fer­ent eco­nomic class. They may al­ready have crim­i­nal past, and jurors are be­ing asked to look past all of that. This is a dif­fer­ent case, be­cause you have some­one who is go­ing to look a lot like the jury panel.”

In this case the de­fence may ben­e­fit from a jury panel that could skew older, since older can­di­dates are more likely to be able to serve on a jury for eight weeks with­out fi­nan­cial hard­ship.

For the de­fence in this case, “you don’t have to be con­cerned about racial bias that might ex­ist,” Brown added. “And peo­ple gen­er­ally on ju­ries are favourable to the po­lice be­cause in or­der to be on a jury you can’t have any se­ri­ous crim­i­nal con­vic­tions. So peo­ple who may have had neg­a­tive in­ter­ac­tions with the po­lice are likely go­ing to ex­cluded from be­ing on a jury.”

The jury trial oc­cu­pies a spe­cial place in the crim­i­nal jus­tice sys­tem, though it makes up a very small per­cent­age of ac­tual tri­als.

The role of the jury is “small but sig­nif­i­cant,” said Os­goode Hall law pro­fes­sor Ben­jamin Berger. “They play sig­nif­i­cantly in our imag­i­na­tion. And they have an im­por­tant role, ar­guably, in the sys­tem as a whole, in in­volv­ing cit­i­zens in the day-to-day de­ci­sion-mak­ing in the courts.”

But they are also sur­rounded by se­crecy. Jurors in Canada can­not share any de­tails of their de­lib­er­a­tions and, un­like judges, do not give rea­sons for their ver­dicts.

As a re­sult there are lim­its on what re­search can be done on jury de­ci­sion­mak­ing in Canada. The lim­its also ex­tend to re­search that has been done look­ing at how ef­fec­tive the cur­rent method for screen­ing for bias is.

“The chal­lenge for cause may not be an ideal or even ef­fi­cient process for de­ter­min­ing whether peo­ple are bi­ased or not, es­pe­cially in cases of racial and cul­tural prej­u­dice,” said Univer­sity of Toronto psy­chol­o­gist Dax Urb­szat, who re­searched the process as part of his the­sis.

“Hold­ing peo­ple to a stan­dard of be­ing able to iden­tify their own bias and make de­ci­sions with­out hav­ing it af­fect them, I would con­sider to be not pos­si­ble or ex­tremely dif­fi­cult, be­cause we are con­stantly moved by our bi­ases even when we are not aware,” he said.

For Mous­ta­calis, the “in­di­vid­u­al­ity and hu­man­ness” brought to the trial process when a jury is in­volved re­mains ex­cit­ing. He re­calls a trial from early in his ca­reer when he was a Crown, when the foreper­son wore a Bat­man shirt when an­nounc­ing the jury had found the ac­cused guilty.

“I guess he was show­ing he was a crime fighter,” he said.

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