Crime and Mind
November 17, 2011
We will talk about jury screening and selection and the concept of bias. We have departed from the rest of the course
which has been about the perspectives of the mind of the offender. Though we will talk about criminal law juries, some
has to do with ivi juries as well.
-You can understand traditional legal doctrine about juries and psychological and socio legal challenges to that model as
-The traditional legal model is seen and most have the availability of a jury trial. The accused has the right to have a jury
trial except in limited circumstances. They emerged in an interesting way. Initially in the common law tradition (from
Enfglish) juries weren’t the triers of fact. In England, before the emergence of juries the German law had a similar thing to
juries. However, in English law, when juries emerged it was more in the form of character witnesses being tried before a
lord or king. So they were witnesses with intimate knowledge about what was going on in the community and gave
testimony. It is prejudicial in many ways because they make assertions and preferences about the accused. It was people
intimately engaged and they didn’t realize this is untrustworthy.
-Out of this came juries that are triers of fact. They were initially all men, with property, not very poor, and they heard the
case and rendered judgement. The jury delibverated in front of the court. This is how the jury emerged. For a long time, it
was established that in law, certain people wouldn’t be appropriate to have on the jury (those with a financial benefit,
those related to the parties, etc. Were not considered to be good because they wouldn’t be impartial). This is something
we carry today.
-People who we would disqualify because they are too close to the action now, would have been seen as a benefit before.
Prejudices and impartiality wernt a concern before. They would have rendered judgement based partly on what they knew
-Over time, when it became possible to have juries who didn’t know anything about the people, it became demanded by
the system that there be impartiality (they didn’t know the person, etc). Thus, the quest for impartial jurors became more
through. You would excude people who were just too close to the events as members of the community in some way.
-Over time, we see more and more people being allowed n juroes (women, poorer people).
-We will explore a development tht occurs that in certain kinds of cases, the judge can be persuaded that there is a risk of
jurors not being impartial because of the nature of the case (if there is a lot of pretrial publicity, they often presume many
jurors can’t be trusted because the news say that the person did it. Also cases with racial prejudice, where people can
persuade the court that they should take a suspicious attitude towards the jurors).
-Thus, now not only can you fail to get on the jury because of something about you, you can also fail to get on the jury
because some see potential biases in you.
-There is a general presumption in the common law the a juror can be expected to follow their oath. Thus, to exclude a
juror, you have to overcome that hurdle. **11:00
-Screening occurs in a Voir Dire process that occurs before the trial starts. As the jury is empanneled, counsel for the
defence and prosecutoon can make 2 challenges.
1. Challenges for cause- is a challenge one way of another that s proved to the court in regards to why one cannot
be on the jury. You can have as many of these as you can persuade the court of their relevance. One is that
you persuade the court that there is a individual reason why they cant be impartial, another is that you persuade
the court that all potentials should be suspect because of media.
2. Peremptory challenge- these are limited in number, and no reason has to be given as to why they don’t want
them on the jury. You would only use this when you fail to prove a challenge for cause
Challenges for Cause
-They are raised by counsel (screening, individual, etc). Sometimes they are handled by a udge to some degree. In
Canada, the judge doesn’t deside whether a person will be on for a challenge for cause. A mini jury does who have been
summoned. The judge doesn’t make the final decision. In some places in the US, the judge does make the final decision.
We assume this doesn’t work in canada because part of the value of the jury is that a jury stands as an obstacle to state
tyrnny. It may be easy for the state to appoint its own judges who are corrupt. Thus, jures are reps of the community and
thus can stop the police and the CJS or corrupt judge from depriving people of their rights. If you allow the judge to listen
to challenges for cause and decide them, the judge can control who is on the jury to some degree…
-s.638- Challenge for cause
638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it
appears to the court that the description given on the panel sufficiently designates the person referred to;
(b) a juror is not indifferent between the Queen and the accused;
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding
(d) a juror is an alien;
(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under
section 627, is physically unable to perform properly the duties of a juror; or
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of
Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required
by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada
that is the language of the accused or the official language of Canada in which the accused can best give testimony or
who speak both official languages of Canada, as the case may be.
No other ground (2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
(3) and (4) Repealed, 1997, c. 18, s. 74
(5) Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96
-So If I am summoned to jury, it can be challenged that it isn’t actually me, unless there is just a discrepancy about
spelling or something.
-s. 641- This is what happens: 641. (1) Where a full jury has not been sworn and no names remain to be called, the
names of those who have been directed to stand by shall be called again in the order in which their names were drawn
and they shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.
Other jurors becoming available
(2) Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor
may require the names of those jurors to be put into and drawn from the box in accordance with section 631, and those
jurors shall be challenged, directed to stand by, excused or sworn, as the case may be, before the names of the jurors
who were originally directed to stand by are called again.
-So the reason we use jurors to see who is acceptable to be on the jury is to protect tyranny.
-So they can exclude jurors on any ground, but it is limited. They are, however, not allowed to do this in a discriminatory
way (so they can’t exclude all women, blacks, old people, etc). This is complicted because though it is clear in law, it is
this kind of discrimination that they are often used for. If the prosecution of defence doesn’t want any women jurors, it
can’t relly eliminate all women because this is discriminatory. Thus, they have to allow a couple of women just so they
aren’t called on it. Most of the time they are used demographically, but they rent meant to be used in a discriminatory way.
Everything is done to make things as equal as possible (though this wasn’t always the case). The doctrine we have now is
that we demand they act in a quasi judicial way, but we don’t trust that they will do that if they have no limits.
-s.641/s.341? Because it is important that yu can use a challenge for cause first before a peremptory challenge, there is a
question about the order. If you are the defence and you both agree to exclude them through peremtory challenge, it is to
the advantage for them to go first because they may waste their challenge on someone who you would challenge anyway.
Thus s.635(1) shows that they have to be called on alternately. This means that we have 2 people charged with 1 degree st
murder and robbery, they both get 20 challenges and the prosecutor had 40. They agree between themselves which one
is going to go first. When the first jurr comes up, the defence counsel is asked if they want to challenge, then next juror the
crown is asked if they want to challenge, etc. So you have to use your whole process before it gets passed. So if you want
to get rid of someone, you can challenge for cause, but you have to decide whether to waste a peremptory challenge
before you can see what the other side is going to do.
R. v. Parks
-There is an important challengendor cause in Canada called R. v. Parks from 1993. Parks was a black drug dealer living in
Toronto who was charged of 2 degree but convicted of manslaughter but appealed the conviction based on jury
selection. He asked the judge if there could be a general screening of all jurors because they may be prejudiced for being
a black man killing a white person, and also because they may be biased because he is a drug dealer. This related to
s.638 (b) … The defence came up with 2 questions they wanted to put to the jurors. A juror must judge the evidence
without bias, in spite of this direction, would your ability to judge be affected by the fact that there are drugs involved or by
the fact that the accused is a black man accused of killing a white person. Thus, you are asking for the potential jurors
own estimate of whether they may be biased. This doesn’t commit the mini-jury to take the answers at face-value. It is a
straight-forwrad question. T