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Lecture #5.docx

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University of Toronto St. George
William Huggon

Lecture #5: Jury Bias Plan for today - Role of jury - Characteristics of jury - Bias + Solutions When do we use a jury? - Summary offences - Indictable offences - Hybrid offences o Medium-seriousness that are turned into summary or indictable offences depending on the Crown’s decision on how to try you  as soon as the Crown decides then it has the exact same characteristics - Only in more serious court cases Summary conviction offence - Less serious than indictable offences - Must be charged within 6 months o If you do some minor shoplifting and the cops tell you that they’re going to arrest you for it once they finish their investigation and they come back six months later, you can’t be charged with anything o If you get some kind of parking regulatory ticket and they don’t send it to you in the mail by 6 months you won’t be charged - Don’t need a warrant - Do not have to submit fingerprints (no record for you) - Maximum 6 months in jail and a fine of $5000 or both o Depending on the summary offence o The biggest sentence given in Canada is a fine - Eligible for pardon after 3 years o As long as you’ve been good for the past 3 years and can prove that you have, they’ll take it directly off your record - Examples: Communicating for the purposes of obtaining sexual services from a prostitute, causing a disturbance, harassing telephone calls Indictable offence - The range is kind of huge  between 6 months all the way up to life in prison - If you’re charged with something that’s going to put you in jail for less than 2 years, then you’re going to go to a provincial prison; more than 2 years, you’ll go to a federal penitentiary (with differing security levels) - Most serious offences o i.e. murder, rape, treason (i.e. high treason: the guy who sold secrets to Russians) - No time limit on charges o Can be charged for a murder even 30 years ago o Except for treason  If you committed treason 3 years ago but not since, then they can’t charge you - Do need a warrant - Fingerprints - Right to a jury if punishable by 5 years or more o if you could go to jail if you’re found guilty for more than 5 years, then you have the right to a jury  but you can choose whether you want a jury or not o in the U.S. it’s way more expensive  state by state, they have slightly different rule o for Canada, it’s the same across the board - Eligible for pardon after 5 years o Depending on how serious the crime is o If you’ve been on good behavior, etc. Hybrid offences - Fall in between summary and indictable offences o i.e. maybe it’s a summary offence but you committed 8 of them and they’re charging you all at the same time  or maybe they can bump you up o or maybe you committed an indictable offence but it’s a weaker one, or there are a lot of mitigating factors  i.e. theft  you steal your neighbors $100 000 car, but you’re 17, you’ve never done anything before, there was no violence involved, you didn’t actually break into the car, you found the key  they might switch it down, because in Canada our goal is rehabilitation (compared to the U.S.) - Crown chooses mode of prosecution o Once they choose it, then all the rule of that offence apply - If indictable (and you can go to jail for more than 5 years), defendant has choice of jury - In summary, no right to jury Breakdown of jury vs. judge trials - Civil trials mostly go with judge only trials - In criminal cases that go to court about 2/3 are resolved without a trial (plead guilty)  obviously doesn’t have a jury - 1/3 are disposed by trial (go to trial)  we’re talking about indictable offences that you can go to jail for more than 5 years o ½ of those use juries, ½ use judge alone  So the majority of trials are judge only, only a small portion have juries - The majority of these are serious crimes Function of the jury - Legal function: to render a verdict o Like the judge acting alone, they decide from the facts and evidence presented, along with any law given from the judge (law from the judge + evidence at trial) o The judge is the trier of law and the jury is the trier of facts o The jury can’t, they’re not supposed to, decide a case based on any of their biases, based on any evidence that wasn’t presented in the court trial (has to be allowed in by the judge) o And the jury don’t do sentencing, the judge does that (in the U.S. a lot of the juries do sentencing, in Texas, one jury decides on the verdict and one jury decides on the sentence) Strengths/weaknesses of jury - Combines the wisdom of 12 people o Couldn’t it be better if it was 20 or 100 people? o Traditionally been 12 people - From community (where the crime took place) o It’s assumed that there’s a greater legitimacy to this, here’s the people that were wronged and now they get to make a decision o Problem with this: you’re not supposed to bring in personal biases  Depends on the crime – shoplifting vs. murder of Tori Stafford (community bias) - Shows conscience of community - Serve as guardian against rigid law  Symbolic significance o E.g. in the 80s when all the abortion laws came through and the same-sex marriage laws in the 90’s  people broke the law, and they’d go in front of a jury and the jury would say not guilty o So what happens when a jury says that enough times, because we have laws based on precedence, there’s the idea that we’re going to have to change the laws o Problem with this is that it can go the other way too What the jury does not do - Sentencing - One exception o Second-degree murder  That ranges  you could have really meant to do it, or you didn’t mean to  So the jury is allowed to suggest to the judge how much parole they should get (you could have parole anywhere from 10-25 years) and the judge can completely ignore that if they want, but usually the judge goes with what the jury thinks Robert Latimer case - Found guilty of second degree murder in the killing of his disabled daughter o He said that his daughter was permanently physically and mentally disabled from birth and she was in constant pain, so he decided when she was about 10 that he would end her suffering  Put her in his truck and piped carbon monoxide in o On the other side, a lot of witnesses came forward that she was a really happy girl, she loved going to school, had friends, she was happy o Also on top of that there was evidence that showed that when they first found her he said “oh no, how’d she get into the car” – a bit of a cover up by him - There was enough evidence by the rules of law that he had to be found guilty, but the jury gets to decide whether they get parole at 10 years or 25 years (for second-degree murder) - So he’s found guilty in 1994, he appealed because he said it was a mercy killing, and the court of appeals upholds the conviction o But then it was found that the prosecutor maybe interfered with the jury (he asked them about their religious beliefs  religion = prime for mercy) o So in that appeal they said that okay he gets a new trial because of jury interference, but he did confess so the new jury would still hear that o And that second jury also found him guilty - Jury asked for sentence recommendation (10-25 years) before being eligible for parole o Jury Suggested 1 year (not within the rules, but shows the conscience of the community) o The judge said I agree with it, so they gave him second-degree murder but only one year in prison  constitutional exemption (Called it compassionate homicide) - Issue of mercy killing as daughter was in constant pain - The Crown appealed, and the Court of Appeal set aside exemption, imposing a life sentence with no chance of parole for 10 years (gave him the minimum) o The court appealed  the sentence for first and second-degree murder is written out. To grant someone a constitutional exemption, that will be a problem because other convicted individuals will want to have a constitutional exemption as well + was it really a mercy killing truly? - Latimer appealed all the way up to the Supreme Court of Canada  from provincial court of appeal (in Saskatchewan) o His Life sentence is upheld on appeal and Robert Latimer began serving his 10 year- sentence on January 18, 2001 - March 2008 granted day parole - December 2010 granted full parole  served his 10 years and now is on parole o But he still has a life sentence  will be on parole for the rest of his life, unless he has such good behavior that he applies for a pardon (may or may not have a pardon) Characteristics of the jury (derived from R. v. Sherratt (1991)) - A jury of one’s peers o Representativeness  Voter registration and enumeration lists  If you are qualified to vote and you’re registered to vote then you’re going to be on these jury lists  Gender, race, socio-economic status – theoretically reflective of social stratification o Impartiality  Must not be biased, or if biased they must be able to set aside any bias and decide the case on the evidence presented at trial alone  Two main motivating factors: you want to be accurate and correct, and you want to be liked by people Representativeness - You are randomly selected o You are put into a big jury pool and put into smaller jury pools, and from those small jury pools you are going to be picked from - Not actually all groups in community or specific peers o Only 12 people, but the original group represents the community and from that you’re going to be selected - Representative of wider community - Statutory exemptions? o Cops, if you’re over 65, lawyers, legislators (anyone who creates laws), sometimes doctors, firefighters, veterinarians, and others doing public service  Doctors, firefighters and veterinarians are exempt because they’re helping the community  to be a juror is to be pulled away from the public o Undermines the representativeness of the jury to some extent - Others that may be exempted but not statutory: senior citizens, instructors who research jury bias Presumption of impartiality - Presumption that jurors will follow their oath to listen to the evidence with an open mind and decide the case fairly and impartially o It’s the complete opposite in the U.S. o In Canada it’s assumed that the jurors are going to be impartial and in the U.S. it’s assumed that jurors are going to be partial (biased) o Why is it assumed that Americans will make unbiased decisions and Canadians will make biased decisions?  It’s because of the amendment rights in the U.S. and our constitutional rights in Canada  S. 1 states: reasonable limits in a free and democratic society  So no pretrial publicity  media is not allowed to go into the court; you learn all the specifics once the jury’s chosen (not allowed to be published in Canada)  In the U.S., they have the first amendment rights to freedom of speech, freedom of media, freedom of expression  So the media is allowed into the court and newspapers are constantly displaying this and biasing the jury pool o So that’s one of the reasons that Canadian jurors are assumed to be impartial, because nothing has biased them yet and in the U.S. it’s assumed that they could potentially be biased because they might have read it on the paper or saw it on the news - We also have some laws in Canada that are a little bit different, we have criminal code 6.49 (need to remember): o If you serve on a jury, you’re forbidden from discussing anything about the deliberations that led to your verdict o Summary offence  In this case, it’s a $2000 fine and 6 months in jail o So why would that make people less biased?  In the U.S., a lot of time jurors, after they’re done the trial, they’ll release tell- all books about the deliberation, and they’ll be making notes while they’re on jury members (which is forbidden) - Instructions are that the judge admonishes the jurors to be impartial (you have to be impartial) and you swore in oath to be impartial o this is an authority figure telling you to be impartial Impartiality - R. v. Sherratt (1991) o Defense lawyer appealed and said the jury was partial against his defendant  there were no rules in place at that time so they decided to make some rules o Right to jury meaningless without impartial jurors o Must be impartial, and represent the larger community  So we can create rules to make sure that the jury members are impartial - R. v. Parks (1993) o Expanded on R. v. Sherratt (1991) o Black defendant from Jamaica, charged with drug crimes (way too many stereotypes in place) o What the judge said was we need to question the jury about their biases, and the rule was if there’s an air of reality that the prejudice exists in society – how would we prove that?  So they ask jurors if they’re prejudiced or not o Partiality has two components: o Attitudinal: whether a particular potential juror was biased  was there a realistic possibility that a potential juror would be biased against the accused?  Prejudice: having racist feelings; the emotional endorsement of negative stereotypes about a group o Behavioral: if the prejudice existed, would it cause that juror to discriminate against the accused  was there a realistic possibility that a prospective juror would be influenced in the performance of his/her judicial duties by racial bias?  Discrimination: the actual behaviour based on prejudice attitudes (i.e., making a verdict decision based on personal prejudice instead of just the factual evidence and the laws in the case) o Social psychology really does back this up  you might be prejudiced, but unless you’re extreme, you’re probably going to act along with social norms (not to be prejudiced)  Even high prejudice people will act in a non-discriminatory way if you remind them not to Fairness - The public’s belief about the fairness of the legal systems is largely determined by the perceptions of the fairness of the procedures used o It has to look like there’s fairness in the legal system o i.e. judge doesn’t allow wiretap of guy confessing  why is this fair
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