Juror Discretion: Powers, Predictability, Reviewability and Risk

14 Pages Posted: 16 Sep 2021

See all articles by Dr Sara Golru

Dr Sara Golru

The University of Sydney, Faculty of Law

Date Written: August 2017


Juries are invested with undoubtedly one of the most important discretionary powers in the criminal justice system, namely deciding whether an accused is guilty or not guilty of the alleged offences. Despite the gravity of the decision-making process, the nature of the jury’s discretion is weak, concealed and deviational. Jury members are legally bound to follow the trial judge’s directions and rely solely on the evidence presented at trial. However, in practice, jurors are effectively able to disregard these limitations on their discretionary power. The jury can safely ignore judicial directions because they are not required to give reasons for their decision and the entire deliberation process is secret. Even if a jury member makes allegations of misconduct against another juror, the court cannot be made privy to any alleged misconduct relating to matters intrinsic to jury discussions. The jury secrecy rule limits not only the reviewability but also the predictability of jury verdicts as the jury is provided the discretion to attach their own meaning to the ‘beyond reasonable doubt’ standard of proof. Nevertheless, an analysis of widely held community beliefs and prejudices, particularly in sexual assault cases, provides an element of foreseeability in determining likely jury verdicts. In addition, an examination of commonly held public opinions relating to the supremacy of forensic evidence clarifies the potential outcome of many jury trials. Moreover, the phenomenon of modern technology poses a significant threat to fundamental principles of the criminal justice system, such as the right to a fair trial, by increasing the ease with which jurors may conduct their own research. Coupled with the dangers of technology, the difficulty of assisting ‘amateurs’ to comprehend the complexity of the law continues to be a major risk factor in distorting the jury’s decision-making process. The substantial length of modern litigation further exacerbates this issue of jury comprehension as well as the potential for juror intimidation and coercion. In sum, juries may be the sole arbiters of fact but they are also provided an even broader deviational discretion to ultimately disregard the arbiters of law.

Keywords: criminal law; juror discretion; criminal justice; jury; discretion

Suggested Citation

Golru, Dr Sara, Juror Discretion: Powers, Predictability, Reviewability and Risk (August 2017). Available at SSRN: https://ssrn.com/abstract=3905644 or http://dx.doi.org/10.2139/ssrn.3905644

Dr Sara Golru (Contact Author)

The University of Sydney, Faculty of Law ( email )

Faculty of Law Building, F10
Sydney, NSW

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