Trial by Jury

One of the major criminal law reforms of the last decade was the passage of a Criminal Procedure Act that abolished trial by jury for most crimes, and for the crimes where a trial by jury is permitted on its face, giving the Court the power to deny trial by jury. There are some technicalities and exceptions, but that's the crux of it.

This move, if not popular, seems to have passed with minimal complaint. It seems clear that the disruption to people's lives from jury service, and the inadequate compensation offered (most workers would get considerably more per hour from their employers, but were obliged to take leave without pay and accept jury compensation of $25 per hour minus tax instead), caused the public to regard jury service as an unwelcome imposition rather than a safeguard of their liberties.

But a natural consequence is that now, subjective findings of fact reflect the prejudices of the class from which judges are drawn: mostly middle- to upper-class, highly educated, and sympathetic to, if not the governing party, to governments and the bureaucracy in general. (Historically, they would also have been men of European descent, but with changes to the bench as judges retire or die and new judges are appointed, this is by no means guaranteed now.)

What I suggest is this:

  • Restore trial by jury for many crimes, and especially all crimes where the reasonableness of the defendant's beliefs, acts, or omissions is relevant to the offence, even if the maximum possible sentence is light.
  • Pay jurors well. A juror ought to be paid at least as well as his or her day job offers. I suggest the juror's ordinary hourly pay, or the median hourly wage, whichever is greater. The juror should also accrue annual leave and other benefits as if the juror had been working for his employer throughout, according to the juror's agreed, or (if casual hours) typical or average working hours.
  • Look into compensating employers for loss of productivity, or (for long trials) the need to find and train a temporary replacement.
Making jury service honourable and no less lucrative than the person's ordinary job would go a long way towards making deciding guilt by one's peers (or, at least, fellow citizens) attractive again.

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