Lecture 9.docx

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Woodsworth College Courses
William Watson

JURY SCREENING - Todays topic is NOT about the mind of the accused - Its about the mind of the juror - Traditional model of juror exclusion or inclusion is based on traditional elgal model of the mind - But it has shifted to psychological or social thoughts - Its not that long ago that women weren’t on juries cuz they weren’t considered to be able to make a rational judgement - In the british system what developed initially was that the lord of the area judged cases - Juries were initially more like character witnesses - They were ppl who knew the accused and were ppl coming along to speak to the court about the case - Back then they didn’t really have clear ideas that we would now think are central about what we should or shouldn’t know (ex. they didn’t know we cant base things on rumours) - That transmuted to a system where representatives of community were trying the facts of the case for guilt or innocents. Not witnesses. A restricted group. Wouldn’t be from the wealthiest ppl or the poorest ppl. Given the responsibility of trying the cases - It wasn’t seen as a bad thing If they knew all about the participants or knew their reputation - The ifea that ordinary members of the community would try the case was established a long long time - If you have a direct interest in the outcome of the case (ex. lose or gain money), a personal interest (ex. a friend of someone involved) it has been long accepted that you shouldn’t be able to sit on a jury - But in recent years weve seen a growth in the kinds of conditions that someone can be excluded from a jury - The idea we have now is that a juror should be someone who doesn’t have interest in the case, hasn’t heard about it, has no opinion on it, etc. - This ideal of an impartial juror gives rise to some paradoxical situations - Ex. it would mean that if they managed to find hitl;er and put him on trial, you wouldn’t be able to find a jury cuz everyone knows about him and has an opinion - So this can be tricky when we have so much media coverage of crime - One thing they look at is if the person has been contaminated by media reports - One of the biggest difference between Canada and US, in Canada it’s a mini jury, two of the ppl who have been called missed something 9m50s - CHALLENGE FOR CAUSE – the defence/prosecuition have proved that the person cant be trusted to be on the jury - PEREMPTORY CHALLENGE – limited number, no explanation needed - They don’t have to give a reason why but its accepted that they shouldn’t use it in a blantantly discriminatory way (ex. using it on all of the women) - Statutes for challenges for cause - Section numbers: 638, a, b (this is the one we care about), c, d, etc, e, f - The main important one is b, all the rest are technical - S 640, etc - Idea is that judges are kind of out of step from society, bring 12 ppl bring conventional wisdom - Another reason is that jury is seen as interceding between the power of the state and the power of ppl - Its harder to compromise the jury - The jury is in charge of selecting the jury - But this is because if the judge selects the jury its easy to be tyrannical - Now for PEREMPTORY CHALLENGES: - Crowns represent justice, defence represents the accused - Before the prosecutor decided the jury but since we cant always expect them to be impartial and stuff so they try to make it more fair - S 634 - You can exercise peremptory challenge after you fail a challenge for a cause - Great deal of care taken for that to be completely fair - So weve got this idea that juries should really be impartial in a strict and important sense - Very different from the old idea where the jury knew what the gossip was, knew the accused, etc. - Interesting question about justice on reseve communities - Aboriginal justice system trying to deal with more and more serious crimes and theyre trying to say if you needed to bring ppl who didn’t know them youd have to bring in ppl from outside and that’s not good - - CHALLENGE FOR CAUSE; - Particularly important case: - R. v. PARKS - (not sleep walking case) - 1993 - Jamaican immigrant drug dealer and was accused and convicted of manslaughter for a white drug user - Wanted to ask questions about drug delares and about anti black prejudice - Wanted to each juror to be asked “as the judge would tell yhou, in deciding whether or not prosecution has proven the case etc without bias or prejudice. Inspight of the judges direction would your ability to judge impartially be affected by the fact that the person charged is a black Jamaican immigrant and the deceased is a white man? And about cocaine user? - Asking juror for his or her understanding of prejuidice - Not actually asking the juror whether they care about drug dealing or ppl of color - But specifically do you yourself think that your attitudesan d feelings about this mean you wont be able to give a fair trial - Pretty limited cuz someone can be the most prejudiced person ever and answer that they don’t think it will affect them - If youre worried about prejudice why would you frame that question in that way? - Technical reason is that in Canadian law theres a principle that we assume that a qualified juror would be able to follow the oath. You have to PROVE they cant and theres a presumption they can. So if jurors themselves are saying they cant do this, you;’ll have proved it to the court that they wont be able to - Problem with drug thing is that even if the judge says ‘you cant infer that because hes a drug dealer you cant infer that hes the type of person to murder, but you CAN infer that the person cant be trusted on his testimony’ - So you cant ask that question cuz the juror was allowed to think of his testimony as not being honest if hes a drug dealer - But the appeal court accepted that the second question should have been put (about him being black) - The basic reason they allowed it was cuz they were concerned about racial prejudice in Canada - One concern I missed 34m - Another concern was that this was a ttempt to get a good jury for the defence and not a fair jury - One problem with black thing is that if a person says no, they may be very biased towards the defence but they don’t see themselves as biased [im not going to think im a bleeding heart liberal so I cant be trusted - Some crucial point at 36m - Bla hblah - Its now an established principle of Canadian law that there should be a generalized screening for racial bias - Some Stephen lewis report - Rodney king riot in LA - Rodney king driving under influence of a drug and chased by police - He was trying to get up and police kept beating him and kicking him and this was filmed - They were charged and it went to trial - It wasn’t tried in LA cuz it was thought that jury there cant be fair to him, was tried in a white county with a lot of police that’s pretty pro-police - Defence
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