Written June 14, 2017
I recently served on the jury for a ten day murder trial at the Supreme Court of Victoria in Melbourne, Australia. It was occasionally intimidating and unpleasant, frequently tiring, but always educational and engrossing, and ultimately a positive experience.
Now that the trial is over I am permitted to discuss publicly available details about it. I won’t discuss the crime itself here. Instead I will describe how the jury selection and trial processes worked, a topic that I find equally interesting.
Notice of Selection
In February I received a Notice of Selection for Jury Service. This letter said I had been randomly selected from the Victorian electoral roll for jury service at the Melbourne Law Courts some time between March and June.
I completed an online Jury Eligibility Form. There are numerous reasons for mandatory exclusion, such as the following.
- If your English language skills are insufficient.
- If you are a lawyer, law enforcement officer, judicial officer, member of the defence force, or a member of the Victorian Parliament.
- If you are on bail or remand, imprisoned, or bankrupt.
There are also numerous reasons for voluntary exclusion, such as the following.
- If you have a medical condition that would make jury service difficult.
- If you live more than 50km from the court.
- If you are self-employed or an employee of a small business.
- If you are the primary caregiver for a child, elderly, or disabled person during business hours.
- If you are a full-time student.
- If you are 70 or older.
None of these applied to me. However, I was given the option to state periods of time that would be inconvenient. This is useful for things like vacations.
I received my Jury Summons some time later, with instructions to show up on a particular date in May. I had another chance to request deferral or exclusion, but again none of the standard reasons applied.
The summons included one vital piece of information: in Victoria each juror receives a small daily stipend, and their employer must pay them the difference between that stipend and what they would normally be paid. This holds for the entire length of the jury service. This distinguishes Victoria from some other jurisdictions, and in my opinion it is a fine thing; jurors should not be financially punished for performing a civic duty.
The afternoon before my summons date I received a text message to confirm that I was still needed.
Jury Pool Selection
I arrived at the County Court of Victoria shortly before 9am on my summons date. I passed through an airport-style security checkpoint, complete with metal detectors and x-ray machines, and followed the “jury service” signs. I checked in with my summons notice and identification, and was given a juror number: lucky 88.
The County Court is a modern building, and the jury pool selection area is like a small airport terminal. There is a long wide walkway with two large open rooms, like airport gates, to one side. The first room has rows of seats facing a desk and TV. The second room has tables, comfortable chairs, carrel desks, and a pool table. There is even public wifi! I would have brought my laptop if I had known.
About half an hour after I arrived we were all called to the first room. There must have been 120 people present. The woman in charge spoke for about 15 minutes, explaining what was going to happen. We then watched a short film that filled in some more details. The film was earnest but informative, and included re-enactments of the jury selection process within the courtroom. I thought this was helpful, particularly for anyone who was feeling nervous.
After the film we went back to waiting. I read a book. Eventually we were called back to the first room for the first ballots. We were told the first trial was in the County Court and was expected to take about 5 days. The woman in charge had a wooden box, about 20cm on each side. She randomly pulled cards with juror numbers from it until about 25 people had been chosen. That jury panel was then escorted out. The process was repeated for a second trial, also in the County Court, and expected to take 5-7 days.
We were then allowed out for lunch, with instructions to return by a given time. Some time after our return the third ballot took place, this one for a Supreme Court trial expected to last for 10 days. This time there were about 40 people chosen, and I was one of them.
Jury Selection in Court
We were escorted from the County Court to the Supreme Court, a grand old stone edifice on the other side of Lonsdale Street. Before leaving the County Court we were requested not to speak to anyone while moving between courts, because the media and people involved with the trial could be present.
The seriousness of the situation escalated dramatically as we were ushered into a courtroom. The courtroom was only moderately large, but had high, ornate ceilings and old, wooden furniture. Furthermore, court was in full session! Present were the judge, the judge’s assistants, the prosecution and defence counsels and their assistants (two or three per side), the accused (sitting in the dock towards the back of the courtroom, flanked by two police officers), and numerous spectators. The court officers and counsel were all wearing formal black robes.
We jury pool members were seated between the counsel and the dock. The judge welcomed us, then gave us a brief description of the charge (murder) and the circumstances. We were also each given a list of more than 80 people relevant to the trial including potential witnesses; knowing someone on this list was grounds for potential exclusion. After some discussion, a handful more people were granted exclusions.
This left about 35 potential jurors. I was hoping not to be picked, and the odds were in my favour. The Judge’s Associate starting drawing cards out of a wooden box identical to the one that had been used earlier in the other building… and my name was on the first card drawn. Oh dear.
The accused had the right to reject up to six jurors without explanation, but the only information they had about the juror was the juror’s name, occupation, and physical appearance. I had to walk slowly past the dock so the accused could get a good look at me. They didn’t call out “challenge” by the time I sat down in the jury box, by which point I was officially a juror.
More names were randomly chosen, and the process repeated. The accused rejected several jurors, who sat back down. Soon we had 13 in the jury box. A full jury is 12 people, but we had one extra in case of illness because it was a moderately long trial. (In longer trials they sometimes choose 14.) At the end of the trial, just prior to deliberations, one juror was randomly selected for removal.
We then had to pledge to do our best and not reveal privileged information to outside parties. This was done in two steps: first those of a religious bent took an oath (“I swear by almighty God…”), then the rest made an affirmation (“I solemnly and sincerely declare and affirm…”).
The two main types of trials are criminal trials and civil trials.
Criminal trials are between the state (“The Crown” in Victoria, because Australia is a constitutional monarchy) and the accused. This basically means crimes where the police are involved, such as violent crimes. This trial was a murder trial and hence a criminal trial. The standard of proof in a criminal trial is “beyond reasonable doubt”, which is the highest standard of proof in the Victorian legal system.
Civil trials are between two private parties. They include things like medical malpractice, defamation, and negligence. The standard of proof in a civil trial is “on the balance of probabilities”, i.e. more likely than not, which is a lower standard of proof.
This distinction was explained to us during the opening remarks from the judge, the prosecution, and the defence… especially the defence. Once those remarks were completed, it was late in the afternoon, and we were sent home.
On the second day we had to arrive by 10am. We entered via a side entrance, replete with more security checks, and met in the jury lounge, a room where multiple juries congregated in the morning and after lunch.
In that room we were met by the Tipstaff He is an employee of the judge who served throughout the trial as the liaison to the jury. He greeted and farewelled us each day, escorted us around the building and in and out of court, and often explained what was going on.
The Tipstaff took us to the jury room. It was a comfortable room with a large conference table and chairs, whiteboards and a TV (for replaying video evidence), a kitchenette with tea and coffee facilities, and toilets. But definitely no wi-fi!
After the Tipstaff left us alone in the jury room we all introduced ourselves and chose a foreperson, which ended up being me. The foreperson’s main job is to announce the verdict at the end of the trial. For this reason, they are the one jury member who cannot be randomly selected for removal for trials with extra jurors. The foreperson can also serve as a leader for discussions in the jury room; throughout the trial I did my best to do this with a light touch. My most overt action was to get to everybody to sit in a different seat around the conference table each day so that we weren’t always next to the same people.
Every time the Tipstaff entered the jury room he first knocked twice, loudly, and then paused for a few seconds before entering. He did this so he wouldn’t hear any of our discussions about the trial. Because we never knew exactly when he was coming, these knocks were often startling, particularly when the room was quiet.
Each time we entered court the Tipstaff escorted us across a corridor and into an ante-room. He then repeated his double knock on the door to the courtroom and led us in. As the foreperson I was always the last one to leave the jury room, and I had to make sure nobody was left behind, which mostly involved checking the toilets weren’t occupied. I also had to sit in the front row of the jury box in the position closest to the judge; the other jurors could sit in any arrangement.
Most of the trial consisted of the presentation of evidence, i.e. the facts of the case. Evidence came in a number of forms.
- Testimony from lay witnesses, i.e. people who were involved directly or indirectly with the crime.
- Testimony from expert witness, e.g. police officers and pathologists.
- Photographs. We saw hundreds of photographs relating to the crime, including photographs of places, artifacts, and an autopsy.
- Transcripts of police interviews.
- Written statements.
- Screenshots of text messages and Facebook posts.
Witnesses appeared both in person and via video link.
The judge had explained that the jury serves as the judge of the facts, while the judge serves as the judge of the law. As the judge of the facts, the members of the jury are free to reach their own conclusions about all of the presented evidence. For example, testimony from witnesses can be evaluated for both honesty and reliability.
All the documentary evidence was duplicated 14 times, so that the judge and every juror received a copy. (I see now why law firms use so much stationery.) The Tipstaff gave each juror a bag in which to hold the various binders and photo books that we received.
There were some obvious and surprising gaps in the evidence. For example, we did not hear testimony from some people who were directly involved in the crime. I imagine the decisions regarding these omissions is a matter of much discussion between the counsel and the judge, but we as the jury were not privy to any of it because it could bias our views.
The jury is also allowed to ask questions of the judge. These are submitted in writing to the judge and can be about any topic.
Court time each day was 10.30am to 1pm, then a break for lunch, then 2.15pm to 4.15pm. Combine that with two or three short breaks and the maximum court time on any day was about 4 hours. Also, we rarely started right on 10.30am or 2.15pm, and a couple of times the judge halted proceedings well before 4.15pm. We even had one whole day off while the judge and lawyers discussed matters that we weren’t privy to.
It might sound easy, but it wasn’t. Court time as a juror is exhausting. You are a non-expert in strange surroundings who is given a huge responsibility. You are presented with a great deal of detailed information about unfamiliar subject matter and you don’t want to lose attention for a second. It requires enormous concentration, and we were all reliably tired by the end of each day. It did get a little easier after the first few days once we were familiar with the setting and the details of the case.
The jury is always the last to enter the court and the first to leave. This lends a slightly unreal feeling to proceedings. Every time we entered court, everybody else was already there, in their usual positions, as if they existed purely for our pleasure. As soon as we took our seats the judge would welcome us back, and the action would immediately start again. Combine that a room of our own, plus our personal attendant (the Tipstaff), and it felt a bit like we were travelling in first class. But not quite, because first class customers aren’t captive; they are allowed to leave the first class lounge.
The court had three spectator areas.
Downstairs at the back was seemingly reserved for people with a connection to the trial. Most of the people who watched from this section did so for the entire length of the trial.
Upstairs at the back and sides there was a public gallery. People viewing from this section tended to come in and watch for short periods. There were a number of high school groups that came in briefly.
A side box on floor level appeared to be reserved for the press, though I’m not certain about this. Only a handful of people used this section.
Misconceptions from Popular Culture
It was interesting to see how real life court differed from court scenes in TV shows and movies, particularly American ones. In the jury pool selection area there were a number of information panels on a wall explaining various aspects of jury service, and one panel specifically mentioned a number of common misconceptions.
- In the 1960s some jurors suffered from “Perry Mason Syndrome”: an expectation of high drama, such as aggressive cross-examinations, last-minute confessions, and gasps from spectators. They were invariably disappointed.
- A modern manifestation is “The CSI Effect”, where jurors expect exquisite forensic evidence to solve every case.
- The old film “Twelve Angry Men” features a lone juror who disagrees with the other jurors in a murder trial. It was mentioned as being potentially misleading because for some cases in Victoria an 11-1 result is sufficient for a verdict, though not for a murder trial.
- I mentioned earlier that jurors are not questioned. This differs from American courts where questioning of jurors (voir dire) is often a critical part of a trial.
Another mild surprise was the subdued behaviour of the counsel and judge in court. There were no shouts of “objection”, “sustained”, or “overruled”; nor was there any use of a gavel. There were a handful of objections, but the objecting counsel did this by simply standing and gently interrupting, whereupon the judge would calmly agree or disagree and issue instructions. The counsels also referred to each other as “my friend” or “my learned friend”, which is apparently the standard form of address.
At one point one counsel, after receiving an answer from a witness that he clearly didn’t expect or like, pointedly said “I suggest you are confused”, paused expectantly, and then went on to hector the witness about the details of the answer. In a TV show the other side would have surely objected— “badgering the witness”, or something like that—but nobody batted an eye.
Although the counsel and judges wore formal black robes, I was surprised that they didn’t wear wigs. Apparently they stopped using wigs in the Supreme Court just a year or two ago. (They are still used in the County Court, however, and I saw plenty of lawyers wearing them outside on the street.)
The closing statements were much longer than the opening statements. The prosecution’s was about two hours, and the defence’s even longer.
The prosecution’s closing statement tied together most of the pieces of evidence into a cohesive argument. This was useful, because prior to that point the relevance of some pieces of evidence had been unclear.
The defence’s closing statement was largely an exercise in casting doubt and poking holes in the prosecution’s case. Whic is fair enough; that’s basically the defence’s entire job. The defence counsel also reminded us, literally dozens of times, that the standard of proof was “beyond reasonable doubt”.
Both sides’ closing statements included a great deal of repetition. This is understandable, and both sides took every opportunity to reinforce their arguments.
Finally, the judge also made her “charge”, a kind of closing statement. Part of this was very useful, providing some legal definitions and instructions about how to consider various pieces of evidence. For example, we were told that a lack of testimony from certain people involved in the crime cannot be considered meaningful. The judge also summarised both the prosecution and defence’s cases in considerable detail. This part was annoying because it simply repeated what we’d just heard directly from the prosecution and the defence.
After the judge finished her charge one juror was randomly selected to leave. That juror was immediately ushered out of court by the Tipstaff without a chance to even wave goodbye to the other jurors. After ten days together, this was unfortunate.
The remaining twelve jurors then took another oath or affirmation relating to confidentiality—all discussion during deliberations must remain secret forevermore—and we returned to the jury room to begin deliberations. Unanimous agreement was required for a verdict in this case.
At this point we were under tighter control. The Tipstaff took our phones, and we had breaks in the interior courtyard of the building under his supervision. Sandwiches were provided for lunch. We would have been allowed to go home had deliberations taken long enough—overnight sequesters are only required for extremely high-profile cases—but this wasn’t required in the end.
Life as a Counsel
During the trial I thought frequently about life as a counsel. You spend months or years on each case, preparing for the trial, at which you give a kind of competitive performance.
But it’s an unusual performance, because you’re primarily performing for a tiny audience (twelve people) of non-experts. So you’re not only a performer, you’re also a teacher of sorts. You have to educate the audience, correcting any prior misconceptions they might have, at the same time you are making your argument.
Finally, this audience evaluates your performance, and your opponent’s. A winner is announced, but there is zero additional feedback. You don’t know which parts of your performance were effective of ineffective, nor how the audience came to their conclusion. It’s the least helpful performance review imaginable. What an odd and frustrating experience it must be.
Announcing the Verdict
Once we had a verdict, we informed the Tipstaff and he arranged for everybody to return to court. This took about half an hour, partly because the court we had been using was being used for a mock trial for some kind of publicity purposes! So we ended up in a different courtroom.
This courtroom was similar in size and decoration to the other one, but the jury room was much less pleasant: cramped, stuffy, and it opened directly onto the courtroom. From the seat I had chosen I could see the accused before the door to the courtroom was fully open! I’m glad we weren’t in that room for two weeks.
After entering court the Judge’s Associate asked me the following three questions (paraphrasing slightly).
- Have you reached a verdict?
- Do you find the defendant guilty or not guilty?
- Is this the decision of the entire jury?
I had been given a script by the Tipstaff beforehand so I knew exactly what the questions would be and how to answer. I answered these using a microphone that was attached to the jury box.
The judge then thanked us for our service, and, bizarrely enough, told us that we would be given a survey about our experience as jurors, and spent a minute or two encouraging us to complete it because our feedback would be very helpful. This felt entirely out of place—we had just announced the verdict for a murder trial!—and it could easily have been handled in the out-of-court debriefing that we received immediately afterward.
In fact, we didn’t get the survey in the debriefing because no copies were ready! But we were given an information sheet and told that we would all be excused from further jury duty for at least three years, although we had the option to waive that exclusion. Finally, we were dismissed, let out of the building, and the whole experience was over.
One of the most positive aspects of this experience was the jury itself. The jurors were diverse in terms of gender, age, occupation, and where they lived. It felt like a genuinely random cross-section of the populace.
I was also impressed by every juror’s attitude and behaviour. I doubt anyone particularly wanted to be there, but everybody participated seriously, actively, and to the best of their ability. I hope every jury is as good as ours.
My jury duty was a positive experience. It wasn’t easy, but it was engrossing and educational. We had a good jury that performed an important civic duty to the best of our abilities. The lawyers, judge, and other staff were professional and competent, and did a good job of teaching us what we needed to know. The selection process was reasonable. The court experience was a little on the slow side, but not unreasonably so. The handling of juror surveys was poor, but that’s a minor matter. Overall it left me with a good impression of the Victorian justice system.