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.