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Chapter Seven Notes

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Ryerson University
ECN 510

Chapter 7: Juries  Criminal cases o An act was allegedly committed as found in the criminal code of candad o Can be heard by jury or judge o The process of judy slection and decision rules are ver diffrn then civil cases  Jury trials for civil cases can have fewer jurors  Verdict do not have to be unanimous for civil cases  Civil cases o Breach of contract or other calims of harms (known as torts) o Can be heard by a jury or judge -------------- Jury Selection in CND: Selected = seated when we are talking about juroros The Case Heard by Jurries o Only some type of offenses can proceed with jury trials o There are 3 types of offences in Canada  Summary offences  Senteces of less than six months in prison  Fine of less than 2000  For some offences the max sentence is 18 months  The defendant does not have the right to a jury  Indictable offences  Three categories:  Judge alone o Less serious o Section 553 of criminal code o Theft, failure to comply with probation officer, obtaining money or property through false pretencces  Tried by Judge and Jury o Treason, murder, piracy o Exception under section 473 of criminal code  If the attorney general and the accused agree the trial can proceed without a jury – the judge alone can try the case  The accused can choose – judge or jury o Offences are not listed in either 553 or 469 o Robbery, arson, sexual assult with a weapon o The defendant has the option  Be tried by a provincial or territprial court judge  without a jury  without preliminary inquiry  Be tried by a judge  No jury  Have a preliminary inquiry  Judge and jury  To have a prelim inquiry  Of a defendant does not decide – this is the default option  Hybrid offences  Cross btw indictable and summary offences  Sentences if 5+ years – if they proceed by indictment (ie you get the choice of court type)  If the crown proceeds summarily the max penality is 6 months and 18 in some cases (such as sexual assault) o Trial by judge only  Its up to the crown = prosecutors Jury Selection o Jury Act – provincial and territorial legistlation  outlines the eligibility criteria for jury service  Ontario o Eligibility  Cnd citizen  Live in Ontario  Be at least 18 years p;d o Ineligible  Member of  Privy council of Canada, exec council of Ontario, senate, house of common or legislative assembley  Judege, justice of peace, barrister, solicitor, law student  Medical doctor, veterinary surgeon  Coroner  Works in law enformcmetn  Physical or mental disability that may prevent  Convicted of indictable offence and not been pardoned  BC o Eligible  Cbd citized of bc  19 years old o Ineliblablge  Police officer, lawyer, employee of certain government agencies  Convicted of certain criminal offences within the last 5 years o Exemptions  Over the age of 65 – can choose if they want to or not  Health reasons  Full time students  Others o Exclusion criteria  Summoned as a witness or may be a witness or has some sort of interest in the case is ineledgible  If you served as a juror less than 3 years ago (ontario) o 2 years in BC  Serving as a juroro could cause you extreme hardship – a nursing mother  Limited ability to speak or understand English  Firm travel plans o governed by federal law o a set of random names from a community are determined often by telephone directories or voters lists o prosective jurors receive a jury summons  court order that states a ttime and place for jury duty  receiving a jury summons does not guarantee that you will be a juror  you just have to show up prepared to be a juror  if you do not show up to a juror summon you may be subject to a severe legal penalty such as a fine or jail time o when you arrive for the juror summon  given a number  escored to a room with other potential jurors  you are not allowed to talk,eat or drink while in this room  the judge will explain the jury selection procees  in Canada criminal trials have a 12 person jury o If you are selelcted from the juror pool – you will be a juror unless one of the lawers presents a challenge  2 typpes of challenges  Premptory challenge o Crown and defence – are limited in how many of these they can issue o Murder trials – each gets 20 o Other trials – each gets 12 o Used to reject juror why they bleeve are unlikely to reach a verdict in their favour o No reason is needed  Challenge for cause o The laywer must give a reason o Keep in mind lawyers have very limited data about poteltial jurors o Name, occupation, address, physical demeanour o In most provinces lawyers cannot ask questions o If a juror is sucefully challenged – her or she will go back to the room with the other who have not been sleectied – a prospective juroro who has been challenged may still be used in another case Juror Payment  Receive a fee for each day they serve on a jury  Fee increases as the trial continues  Fee schedule in BC o 20per day – day 1 – 10 o 60 – for each day after day 10 o 100 – for each day after day 49  Ontarip – o 40 – 11- 49 days o 100 for each day after day 50  Responsible for their own lunches  During deliberation meals and accomodations are provided  Sequestered – isolated from people except from the other juroros until a verdict is reached Are Lawyers Able to Slecect Favourable Juroros  Study o Lawyers provided the facts of a case and demographic info of the potential juroros o lawyers asked to assume the defence postion and pick 12 juroros they want and 12 jurors they do not want o the lawyers were not very good at picking favourable jurors Scientific Jury Selection  scientific jury selection – rejecting prospective jurors who would be unsymphathetic to ones case and accepting those who would be sympathehtic based on predetermined charactherisitcs  not possible in canada béc you cannot ask the jury question in most cases  many consulting firms in the us – try identifiying these charactheristics (demographic variables, personality traits and attitudes)  this form of jury selection was used in oj simpsons, the menendex brothers and Martha steweart  Broad based approach o Starts with the presumption that there are certain tratis or attitudes that people have that make them more likely to be pro-prosecution versus pro defence  Authoritatrianism & Dogmatism  More likely to side with the procescution  Lawyers may hand out questionairs or ask particular question during the voir dire  The question period when jurors are selected to serve on the jury  Case specific Apprach o Approach to scientific jury selection that starts with the issues and factors of the case o A specific questionair then is developed assessing a number of charachrteristics that may influence the verdict o In the US trial consultant may be retained by lawyers throughout the duration of the trail to monitor and provide feedback on the jurys demanours – can help give lawyers an ongoing sense of whetethery they are winning or losing  These trial consultatns also help with opening and closing statements, witness preparation and demonstrative evidence o Telephone survey  1. Jury elidgble respondts may be selected at random  2. Questions are often asked about demographics and religious affiliation, probing background attitudes o Focusgroup & Mock Jury Trials  Jury elidgible respondents may be called at random and asked if they are willing to participate in a focus group or mock trial  The mock juroros may view video or the trial may be stages for them live so that opening and closing statements can be testsed  These mock jurors may be asked to complete a questionnaire and their deliberations may be put on video for analysis ---------------- Charactheristics and responsabilities of Juries in Canada The supreme court of Canada indicated 2 fundamental charachteristics of juries 1. A compostition that represents the community in which the crime occurred – representitivesness 2. A lack of bias on the part of the jurors known as impartiality  Representitiviness o For a jury to be representative – it must allow any possible eliglbe person from the community the opportunity to be part of the jury o Achieved through randomness o Telephone directory or voter registration used as a pool to draw ppl from o R v Nepoose  The defendant was an aborigninal women  Jury-composition challenge based on race  Impartiality o Three main issues  1 – he or she must set aside any pre-existing biases, prejudices or attitudes and judge the case based soley on the admissible evidence  Juror must forget person on trial is black if the juror if from the kkk  2 – ignore all info that is not part of the admissible evidence (media attention)  3 – no connection to the defendant Box 7.3:  Peter gill and 5 others were tried in Vancouver for 2 gang-style murders in 1995  Gillan guess was one 12 jurors hearing pere gills case Gillian Guess ran into peter outside of the courtroom – after that they began to flirt in the courtroom  The courtroom found peter not guilty  Later the court learnt of the relationship  Gillian became the first juror sentenced to jail for obstructing justice  A retrial was ordered Threats to impartiality:  Study o Meta analysis of 44 studies examining the effects of pretrial publicity o Found a modest positive relationship btw exposure to negative pretiral publicity and judgments of guilt  Study o Juries exposed to pretrial publicity were more likely to render a guilty verdict than were juries without exposure to the publicity o Juries exposed to publicity with high factual content were more likely to render a guilt verdict when their was no trial delay o Juries exposed to publicity with low factural conentetn were more likely to render a guilty verdict when their was a delay o Implies that ppl tend to forget the facutla details of the information they heard but remember the emotions it raised – negative emotions have a very strong biasing effect Keeping potential jurors impartial  Before a case goes to trial  A preliminary hearing occurs  The crown presents the evidence against the defendant  The judge then determine if there is sufficient evidence to proceed to trial  In cnada at the prelim hearing – the judge typically places bans on the media reporting of evidence behore the end of the trail process  Methods to increase likelihood of an impartial jury are as follows o Change of venue  Not very often – if it is granted the trial still stay within the province  Ex: Kelly ellard – charged with the murder of 14 yr old virk in a bc suburb o Adjournment – delaying the trial until sometime in the future – to allow sufficient time to pass so that the biasing effect of any pretrial info has dissipated  Side effect witness memory may fade o Challenge for cause – an option to reject biased juroros <  The crown or defence may argue that although the prospective jury pool may be partial if questioned these jurors could be identified and rejected from serving on the jury  For this motion to be granted they must prove that the community has a lot of partiality  The prospective jury pool will then be probed with preapproved questions – not many questions  Only the state of mind or thinking can be examines – nothing about their background or personality can be looked into Box 7.4:  Questions focused on racial biases ruled to be approiate  R v Mcleoad – two black men of Jamaican origin – were charged with murdering a man of Asian descent  The crowns theory was that all three men where involved in drug trafficking the Asian was killed bc they thought he was a drug informant  In this case some probing question on racial bias were delievered -------  A challenge for cahse changes how jury is selected  The processes is unique to Canada o First – 2 indivduals are selected from the jury pool – sword to act as triers o A thir person is selected as a prospective juror o The lawyer or judge question the propective juror – the triers listen to the answers o The triers then decided wheter the juror is impartial o One of the triers will be replaced with the juror o Thus juror 1 and 2 will be triar for juror 3 – juror 3 and 2 will be triar for jury 4 so on until 12 jurors are selected  When identify
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