Wednesday, 25 February 2015

Can a judge bar jurors that are bias from trying a case?                           

Juries in criminal court rooms are groups of persons sworn to render verdicts officially submitted to them by prosecutors and defence lawyers after they have been given instructions by the trial judges. Challenges are a tool attorneys use during jury selection to eliminate prospective jurors who they feel would be biased against their client.  Challenges are also available to prosecutors. Peremptory challenges in particular are predicated on the assumption that individual differences or attitudes reliably predict jurors' verdicts. Although scientific studies of peremptory challenges suggest that they do not affect trial outcomes as much as lawyers (attorneys) think they do, lawyers are nonetheless very reluctant to give them up.

Every once in a while, we read about juries that have possible biased jurors selected from the jury pool. How should I describe such a juror? What follows are some examples.   


In 2006, a Colorado jury convicted Homaidan Al-Turki, a Saudi Arabian citizen who had been pursuing a PhD at the University of Colorado, of unlawful sexual contact, extortion, false imprisonment and other charges. The charges stemmed from accusations made in November 2004 by Al-Turki’s housekeeper.                                                                                              

Prior to the trial, 106 potential jurors were assembled. Given the issues that were expected to come up during the trial, the potential jurors were asked to briefly give their reaction to the fact that “the defendant, the complaining witness, and the other witnesses in this case were Muslims. The potential jurors were also asked general questions about their ability to be fair and impartial. Then the parties were given 45 minutes to question the pool and exercise their peremptory challenges. Ultimately, 12 were selected to the jury.  

As the jury was being sworn, one of the jurors interrupted the proceeding. He said that his understanding of the “Muslim religion” was “that the laws of God are higher than the laws of man,” and he asked whether the fact that he was “more likely to believe a person of faith would commit a crime if the faith conflicted with the laws of our government” amounted to a bias. He also indicated that his bias might somehow come into play “if it came to a situation where it was a he said, she said issue.” Al-Turki’s counsel asked for permission to further question this juror about his beliefs, but the court denied this request. The court also denied counsel’s request to dismiss the juror, stating that the juror’s responses to the questions submitted to the pool qualified him to serve.

Al-Turki’s appeals were unsuccessful, and on April 5, 2010, the U.S. Supreme Court declined to consider his argument that the trial court should have allowed him “to probe the juror for potential bias.” Although few psychologists have studied anti-Muslim bias in legal decision-making, research to date sheds light on some of the issues raised by Al-Turki’s case.                                                  

Research indicates that prospective jurors may be reluctant to disclose biases for a number of reasons: They might perceive their bias to be socially unacceptable, they might not be aware of their biases or they might view the questioning about their potential bias as an invasion of privacy.  

As an example, consider the following scenario.  A Muslim is charged with terrorism.  Another Muslim is part of the jury pool and when questioned by the defence lawyer, he is asked if his religion condemns terrorism. Is that question improper?  It would be because the lawyer is prying into his religion in which a juror’s view of his religion is sacrosanct. Although the lawyer has the right to mot accept a specific person to sit on the jury, he can’t do it simply because the prospective juror won’t talk about his religion.  However, a potential juror’s belated expressions of doubt about his own impartiality might merit probing, even if that juror initially failed to admit to bias during the jury-selection process.

People who are exposed to negative portrayals of Muslims through the media or otherwise might develop anti-Muslim biases that could be hard to identify during the jury-selection process. Further, the prosecution’s use of negative associations during a trial might foster an implicit bias against a Muslim defendant.

Several jurisdictions in the United States have wrestled with the issue of challenges based on religion. There was a case in 2004, in which the defendant was charged with first-degree armed robbery. During jury selection, the prosecutor used four of his first five peremptory challenges to excuse African Americans. When defense counsel objected that the prosecutor excused two potential jurors from sitting on the jury based upon on his basis of religious principles, race, color, ancestry, national origin or sex, the prosecutor responded that two of the potential jurors were excused not because of their race but because they were expressing their feelings about their religions quite vividly. 

The "demonstrativeness" apparently consisted of the white juror stating that he worked as a missionary and the African-American juror wearing black garb and a skullcap, from which the prosecutor inferred that he was "obviously Muslim." Neither juror indicated that his religious beliefs would interfere with his serving fairly on the jury. The trial judge overruled the objection, and the jury convicted the defendant on both counts.

The New Jersey Appellate Division affirmed, the judge’s ruling based on the majority's distinction between excluding members of recognizable religious groups which would constitute impermissible discrimination and excluding individuals who merely appeared to be religious. The New Jersey Supreme Court subsequently overruled the appellate court, finding that the prosecutor's belief concerning religious jurors “suggests the very stereotypes that have been used by prosecutors and lawyers alike to justify a policy of blanket exclusion that the law condemns.” 

I am now going to tell you about a case heard in Canada where the religion of a juror became an issue.

Terrance Kum was tried by a jury and judge of trafficking cocaine and possessing the proceeds of crime. Earlier that morning the jury had sent a note to the trial judge saying they were at a stalemate. The note said;  Your Honour: The jury has reached a stalemate on some key evidence and cannot yet come to a conclusion about guilty or not guilty on the charges. The vote was 10 for guilty and 2 for not guilty after we discussed all the relevant evidence.

Two jurors also wrote on separate notes to the trial judge. The notes read: “Juror number 1 appears to be unable to make a judgement because of religious convictions. Juror number 9 takes bathroom breaks just as we are about to vote.”

When the two complaining jurors were then asked to explain their allegations against the two jurors, they gave inconclusive evidence to substantiate those allegations.

The trial judge discussed the jury’s notes with counsel. Their letter disclosed how many jurors intended to convict and how many intended to acquit.  The trial judge then embarked upon a lengthy inquiry of each individual juror, and a number of further inquiries of the two impugned jurors. The trial judge asked the first juror whether she had religious beliefs that would preclude her from deciding the case impartially. She denied the allegation.

In the initial interviews, the two impugned jurors completely denied the allegations made against them, and denied the existence of any other problems. Despite their denials, the trial judge ultimately discharged both of the impugned jurors. Defence counsel’s motions for a mistrial were denied. Following the discharge of the two jurors, after about an hour of further deliberations, the ten-member jury convicted the appellant.

The intended purpose of the judge’s inquiry was to determine whether the two impugned jurors could faithfully discharge their duty to render a true verdict based on the evidence, or whether they were instead determined to act on sympathy, prejudice or bias, matters extrinsic to the evidence they heard and saw. Unless the jurors made admissions of such accusations, which they did not, then the removal them from the jury is not necessary.  

The main issue if Kum’s appeal was whether the discharge of the jurors resulted in an unfair trial. Kum’s lawyer argued that it was conceivable that if the two jurors had been left on the jury, the decision would be a hung jury requiring a new trial.

All jurors are entitled to take different views of the evidence and bring their own world experiences and views into account, and this is a welcome part of our jury system.  But all jurors take an oath to well and truly try the case and deliver a true verdict based on the evidence and only on the evidence without sympathy, prejudice or bias.  Judges cannot inquire about differences of opinion among jurors in the jury room, but they need to know if one or more jurors are unable or unwilling to fulfill their duties as jurors for reasons of sympathy, prejudice or bias. 

The trial judge dealing first with the defence motion for a mistrial stated that while a mistrial would be an easy outcome, the jurors had sat for many days and they were “entitled to give judgment if they are at all able to.” She also said that one, or in this case potentially two biased jurors, should not be allowed to hijack the process if the court can be satisfied that the remaining jurors can come to a just and proper verdict on the evidence.

The trial judge dismissed the two jurors. For obvious public policy reasons, the actions with respect to one of the two jurors, based on the testimony of the other jurors, the trial judge concluded that juror had sympathy for the accused that was not based on the evidence, and that he was concerned about punishment. Furthermore, based on the testimony of the other jurors and of that particular juror himself, the trial judge concluded that he had a bias with respect to police that would cause that juror to speculate in a way that would be inconsistent with the evidence. The trial judge was also satisfied that the other juror would not abide by her oath.

An accused has the common law right to be tried by a jury of twelve who reach a unanimous verdict. Section 644 of the Canadian Criminal Code describes the exceptional circumstances when a maximum of two jurors may be discharged. It provides in Section 644. (1) “Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.”

Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly. In this particular case, there were eleven jurors who arrived at the verdict. In some jurisdictions, more than twelve jurors will hear the case and when the case is turned over to the jury, only twelve with decide on the verdict and not the standbys. If a juror is to be replaced, a standby will that that juror’s place. 

Jurors in Canada cannot disclose anything said about their or other jurors’ minds that formed their ultimate decision.  On the other hand, that  rule does not render inadmissible evidence of facts, statements or events disclosed by them to their trial judge that is extrinsic to the deliberation process, whether originating from a juror or even from a third party that has evidence that someone may have tainted the jury’s  verdict.

There are limits to the use of section 644 of the Code as a mechanism for discharging jurors in the course of the trial. Section 644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror. It is not designed to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of the trial, nor does it contemplate the discharge of jurors over minor concerns.

In another case, the defence counsel asked the trial judge to conduct an inquiry under section 644, after observing one of the jurors turn his back on the accused during his entire testimony in chief, make impatient motions during his counsel’s closing, and shake his head in a negative manner at the accused when his counsel admitted that the accused had a knife on the evening in question. The trial judge refused to conduct an inquiry.

Admittedly, the actions of that particular juror was improper but it didn’t mean that it really influenced the other jurors or the outcome of the verdict since it was conceivable that he may have changed his mind after he heard the other juror’s opinions.

Now if I was the judge in that case, I would have adjourned the trial temporarily and had that juror brought into my chambers where I would then severely chastise him and warn him that if I saw any more of those antics again, after the trial I would have him brought before me and I would find him in contempt of court and slap a heavy fine on him.

There have been instances in the past where events have taken place that have warranted a court embarking on an inquiry as to whether a specific juror should be discharged.  Instances of unusual conduct during the course of deliberations in the jury room is one example. Possible contamination of an individual juror, or the whole jury, arising from improper contact with other individuals is another example.

The trial judge in the Kum trial went on to reinforce an important concept for the operation of the jury process. It being that even if the juror’s observed conduct meant that the juror had formed an opinion contrary to the accused’s position, that did not mean, in and of itself, that the juror would not honour his oath and do his duty including listening to the views of his fellow jurors.  It is not realistic to expect that each and every juror will go into deliberations with a completely open mind as to the ultimate verdict.  Jurors can be expected to form views and opinions regarding the evidence they hear and see and even before all the evidence has been submitted.  They may well develop an inclination towards a particular verdict.  That is human nature and there is nothing wrong with it as long as each juror maintains an open mind regarding the final conclusion and is receptive to the views of their fellow jurors.  This concept is recognized and explained to jurors when they are given the preliminary instructions by the trial judge at the outset of a trial.

Such instructions could be; “As the trial proceeds, you may discuss the case amongst yourselves when all of you are together in your jury room.  You must not, however, come to any conclusions about the case during those discussions.  You must first hear all the evidence and keep an open mind.”

It follows that, when addressing concerns about jurors’ alleged misconduct, the trial judge should consider whether a recharge on the duties of jurors, or on relevant aspects of the evidence or process, would be the best approach to resolve this problem. It might even be necessary for the trial judge to instruct the jurors again on their duty and responsibility as the sworn judges of the facts that are presented to them and to await further evidence to be given to them.

A trial judge’s decisions whether to conduct an inquiry and/or discharge a juror under section 644, and whether to declare a mistrial are discretionary.

In a case heard in 1999, one of the jurors felt uncomfortable judging his fellow man and he said that God should be the judge. When questioned by the trial judge, the juror said; “I feel unable to carry on any further since I feel that my only conclusion will be an acquittal.” The court of appeal upheld the trial judge’s decision to discharge the juror.

Section 644 should not be made into an easy avenue for jurors to tattletale on other jurors, with a view to having a “dissenting minority” juror discharged. Rather, the trial judge should take a cautious approach and consider carefully whether the allegations raised are serious enough on their face to discharge the juror.  Further, jurors should not have been asked by the trial judge in Kum’s case to give opinions about their fellow jurors’ subjective motivations in the deliberation process and their ability to decide the case fairly. Jury members are nevertheless expected to bring their entire life’s experience to their deliberations and to apply it to the decision-making process.  That would also include their religious upbringing, if any.

Jurors have the right and obligation to develop views of the evidence as the case progresses, including a negative view of the accused or of any witness, such as a police witness. This is not inconsistent with jurors’ duties as long as they remain open to listen to the views and approaches of others, and to consider them along with their own views before reaching a conclusion. In the end, jurors are not precluded from applying their life experiences when assessing credibility, or the likelihood of a conclusion to be drawn from circumstantial evidence.

In Canada and unlike in the United States, the secrecy and sanctity of the jury deliberation process is intended to allow and encourage the free expression of ideas and concerns based on the evidence and on the life experience of the jurors. In the Kum case, there was circumstantial evidence about the Kum’s possession of the 519 cell phone. In assessing that evidence, jurors were entitled to take into consideration any concerns they had about the credibility of the police witnesses. Of course, what they were not entitled to do was to close their minds to the possible inferences on the basis of a firm belief that police always lie to obtain a conviction. That is because not all police officers lie under oath. In fact I suspect that very few do that.

The trial judge in the Kum trial decided to question the remaining jurors, as well as the impugned jurors, about the allegations. Her inquiries breached the secrecy of the jury’s deliberations and impugned the integrity of the jury process and the fairness of the trial itself. The inquires led to the discharge of one juror, then to the discharge of the second juror at her own request, when it was known that they were very likely the only two holdout jurors voting to acquit.

The Court of Appeal set aside the convictions of Kum and ordered a new trial. When that trial finishes, I will do an UPDATE in this article and tell you what the verdict was. 

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