The scary thing about jury trials

When going to court, the thought of a jury can be terrifying (even to the lawyers). They are completely unpredictable, but are still one of the best ways to settle disputes.

There is a lot of public confusion around juries, so this column is intended to shed some light.

To start, a jury is a group of people who are gathered in court to listen to each side in a dispute/trial and then make a decision. Throughout the trial, a judge gives instructions to the jury on the appropriate law.

The process of using juries is very old, dating back to ancient tribal cultures when communities used several honourable community members to judge another person’s actions (and decide their fate).

Jury trials are not common. Trials are typically heard in front of judges alone. Juries will typically occur in serious criminal matters when someone stands to go to trial for five years or more. Juries can also occur in civil cases, too, such as in personal injury cases. But, again, juries are rare.

In civil cases, a jury is composed of eight people. In criminal trials, a jury is composed of twelve people.

After coming to a decision, a jury does not have to give reasons for their decision and it is against the rules to disclose what goes on in jury deliberations.

So, who can be on a jury? Well, not everyone: see section 3 of the Jury Act.

To start, people who work in the justice system are excluded from being on a jury, which includes lawyers, police, judges, and correctional officers. Politicians are excluded, too; MPs and MLAs cannot serve on a jury.

Also, people who are under 19, who are not Canadian citizens, who are not residents of B.C., and who have been convicted (or are currently charged) with a Criminal Code or drug offence cannot be on a jury.

Even if you meet the basic requirements to be on a jury, it does not guarantee that you’ll sit on a jury. Before trial, lawyers go through a selection process with potential jurors to ensure that the jury is fair (particularly for their client).

Juries have tremendous power: they do not have to follow the rules. I’ll explain…

While instructed by a judge about the law, the jury does not have to follow the law, which includes laws made by judges (i.e. common law) and laws made by politicians (i.e. legislation). This allows juries to decide cases where the law conflicts with justice.

Here is an example of a jury refusing to apply the law:

In the 1970s, Dr. Henry Morgentaler performed abortions that did not fit within the narrow exceptions allowing abortion (during that time). In the 1970s, Dr. Morgentaler was tried three times for defying the anti-abortion law. Clearly, he was guilty of the offences. But, the jury found that the anti-abortion law was unjust and took the law into their hands, finding Dr. Morgentaler ‘not guilty’ each time.

When juries refuse to enforce a law that they think is unfair (and render a different verdict not supported in law), it is referred to as ‘jury nullification’.

Clearly, juries are able to base their judgments on emotion, rather than rational or logical argument. This isn’t always a good thing…

In America, there was an analysis looking at racism on juries. It was found that, in serious criminal cases, juries were more likely to convict black defendants than white defendants. It was also found that having a jury member with a different racial background often eliminated individual prejudices (and eliminated the gap in conviction rates among different races).

While there can be problems, juries should represent the community and will likely make judgments that are in accordance with community values (and the law).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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