Guest blogger Yael Boneh explores how Therapeutic Jurisprudence thinking can improve the experience of jurors…
Therapeutic jurisprudence (TJ) proposes that the legal system, judges, court officers, and lawyers constitute social forces that can exacerbate or alleviate potential harms on those coming in contact with the legal system including jurors.
Jury trials are based on democratic principles. However, the negative effects that jury service can have on juror wellbeing have prompted unwillingness among the public to engage in the service, and could ultimately lead to a loss in representative character of a jury and loss of public trust in the legal system.
Recent years have seen a resurgence of interest into the effects of criminal trial processes on juries, and much can be done by way of reform, change in practices and improved welfare services to alleviate the adverse impacts jurors’ experience.
In criminal trials, jurors are required to determine questions of fact, to apply the law as stated to them by judges, and to reach a verdict on guilt. The principles underpinning jury trials are representativeness and impartiality. Broadly, these encompass:
- Limitation of executive and judicial power;
- Administration of justice according to community standards (as opposed to unelected Judges);
- Direct and participation of the community in justice processes; and
- Isolation from biases or preconceptions that might influence the fair judging of evidence.
For these reasons, jury trials are perceived to be a ‘central feature of the criminal justice system’ with regard to serious offences, particularly in democratic common law jurisdictions.
In the Australian State of Victoria, jury trials comprise a minority of court cases as most indictable cases are heard summarily in the Magistrates’ Court. Nevertheless, about 60,000 people each year are summoned to participate as jurors around the State.
Interestingly, for most people the concept of a jury is detached from daily life, and conjures references to film and pop culture, sensationalist media depictions, and perhaps the (buzzwords) ‘civic duty’.
In truth, after completing jury service most people feel ‘a sense of achievement’, having contributed to a valuable community service. Yet, for some, the experience is much less pleasant.
Behind the Jury Room Door…
It is really quite an exceptional concept. Jurors are randomly selected from the voting roll and summoned after completing a questionnaire.
In Victoria, they are given no training other than an information video, oral presentation and a handbook. Armed only with this, they are expected to assimilate information and evidence, apply principles of law and sit in judgment in the State’s most serious criminal matters.
In its most basic form, stress can be caused from departing from one’s usual routine, being away from work and home, listening to and digesting evidence, or discussing the case with other jurors (strangers) in foreign surroundings.
In addition, jurors – who presumably have spent most of their lives avoiding interaction with the law and the courts – may be confronted by the courtroom, the presence of lawyers, Judges, the formalities of the law, unexplained rules, incomprehensible instructions and new restrictions imposed on their conduct and communication.
As one anonymous juror reported:
‘Entering a jury box for the first time is entering unknown territory with different rules, limitations and expectations… It is a most peculiar isolation. It has no familiar cues and it can be an uneasy experience. Experiencing it is the only possible preparation’.
On another level, jurors may contribute to the stress levels of one another. While great friendships have been formed through jury service and jurors may find support and comfort in one another during and after a trial, the interpersonal dynamics of a jury can be taxing. These were highlighted in a report prepared by Professor Warren Young on behalf of the New Zealand Law Commission in 1999, and refer to:
- clashing personalities;
- lack of or different life experiences amongst young jurors;
- difficulty in understanding the law, instructions or definitions;
- frustration over the process or lack of information; and
- other concerns which lead to a ‘troubled’ jury.
In addition to all of the above, jurors in criminal trials may be exposed to graphic evidence and disturbing and detailed testimonies, which can have an effect akin to experiencing the event itself. Such harm is then compounded by no-contact rules, which deprive jurors of their regular coping mechanisms.
Communication and inquiry prohibitions are important for maintaining jury integrity, yet these rules simultaneously isolate jurors from support networks. Discussions with other jurors can also be limited by these rules, but even if this were not the case, jury members are unlikely to have the expertise to deal with their own emotional or psychological responses, let alone to assist others in coping.
The average length of service is between 1-3 days, but some trials take much longer, in which time jurors can be exposed to ongoing evidence of extreme violence, injury or sexual material, and are unable to discuss it with family, friends or professionals. In some cases, lawyers and court personnel are ordered by judges to avoid contact with jurors, cementing feelings of isolation. Lastly, many jurors become stressed by the burden of responsibility and pressure of deciding a verdict that can drastically impact a person’s life, particularly in the context of the feelings described above.
Consequently Jurors have evidenced various psychological and physiological symptoms, including anxiety; insomnia, eating disorders; emotional distress (such as guilt or anger); social distress (withdrawal; panic or fear); depression; phobias; overt reactions such as peptic ulcers, hives, hypertension and visual distortions or even symptoms akin to post-traumatic stress disorder.
Using a therapeutic jurisprudence Elena to improve juror experience
TJ regards the law as a ‘therapeutic agent’, capable of producing good (therapeutic) or bad (anti-therapeutic) consequences for those who interact with it.
Considering the effect of the law and criminal justice system on jurors as discussed above, it is clear that the anti-therapeutic consequences need to be revised, and the therapeutic ones augmented.
In 2013 the Victorian Law Reform Commission issued a consultation paper on Jury Empanelment. The Commission was not asked to review whether juries are desirable or whether alternatives should be considered. However, it did consider the effects of various empanelment processes on jurors. In its Final Report on Juries, the Commission found that peremptory challenges, the Crown right to stand aside, calling of the panel in court by name or number and the use of additional jurors all caused or contributed to the stress of jurors. The Report suggested various alternatives to these processes based on procedures used in other jurisdictions or suggestions made by lawyers and court officials.
This is just one example of the ways in which legal processes, which have been recognised to negatively impact jurors, can be reformed to create more therapeutic outcomes on juror welfare.
Yet even within the existing legal framework, there is scope for reducing anti-therapeutic consequences through practice.
One of the biggest grievances of jurors is the lack of, or confusing information regarding court procedures and instructions. Judges might take the time to explain legal jargon, clarify instructions, act courteously and be responsive to jurors who are in unfamiliar surroundings and without a sense of control.
Judges might order frequent recesses following disturbing evidence, allowing jurors to recover.
Lawyers too, without compromising their duty to their client and to the court might use discretion as to when, how or in what volume they present evidence capable of traumatising jurors, or at least to provide warning.
Lastly, welfare services or debriefing should be more readily available to jurors after their service. Following the research of 41 criminal trials in the Australian State of New South Wales occurring between 1997-2000, Chesterman et al reported that 76% of criminal trial jurors felt that free counselling should be provided for problems arising from jury service, and one third of jurors said they would make use of such a service if it were available.
A US study conducting debriefing sessions for jurors discovered that juror reactions in cases of serious injury could be similar to that of rescue workers at the scene.
Jury service provides an opportunity for members of the community to engage in the criminal justice system and have a positive interaction with principles of democracy and justice. However, jurors, whose participation and assistance in the judicial process is encouraged, must be better protected from the potentially negative effects of such involvement.
This post is part of a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to therapeutic jurisprudence to blog readers. The very best post on each topic is published on the blog.
About the blogger…Yael Boneh is a student at Monash University, completing her final year of a Bachelor of Laws in 2017.
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Kaplan, Stanley & Carolyn Winget, ‘The Occupational Hazards of Jury Duty’ (1992) 20(3) Bulletin of the American Academy of Psychiatry & the Law 325
King, Michael, Arie Freiberg, Becky Batagol, Becky, Ross Hyams, Non-Adversarial Justice (The Federation Press, 2009)
Najdovski-Terziovski, Elizabeth, James R.P. Ogloff, Rudy Monteleone and Jonathan Clough, ‘An Analysis of the Content and Process of Juror Orientation Australia’ (2008) 92(2) Judicature 70
Steele Jr, Walter W. & Elizabeth G. Thornburg, ‘Jury Instructions: A Persistent Failure to Communicate’ (1991) 74 Judicature 249
Wexler, David B. ‘Therapeutic Jurisprudence and the Culture of Critique’ (1999) 10 Contemporary Legal Issues 263
Wexler, David B. and Bruce J. Winick, Law in Therapeutic Key: Developments in Therapeutic Jurisprudence (Carolina Academic Press, 1996)
Juries Act 2000 (Vic)
Anthony Rivas, Vicariously Traumatised, Jurors in Murder Trials May Experience Symptoms Similar To PTSD (14 July 2013) Medical Daily
Court Services Victoria, Jury Service: After Trial (27 April 2016) Court Services Victoria
Elizabeth Landau, Murder Trial Jurors can be Overwhelmed, Traumatized (28 June 2011) CNN
Owen Bowcott, Are courts demanding too much from jurors? (7 November 2011) The Guardian
Ruth Lee Johnson, The Hidden Horrors of Jury Duty (16 March 2015) Psychology Today
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Chesterman, Michael, Janet Chan and Shelley Hampton, Justice Research Centre Law and Justice Foundation of NSW, Managing Prejudicial Publicity, February 2001
Law Commission of New Zealand, Juries in Criminal Trials, Part Two: A Summary of the Research Finding, Preliminary Paper 37 Volume 1, November 1999
McGrath, Tim & Siobhan Ryan, NSW Attorney General’s Department, Criminology Research Council Sub-Group on Juror Stress and Debriefing, Paper 2 for Sydney Conference, 29 June 2004
National Center for State Courts, Through the Eyes of the Juror: A Manual for Addressing Juror Stress, 1998