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What Juries Get Wrong and Why They'll Never Deliver True Justice

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The acquittal of George Zimmerman, like the O.J. Simpson acquittal years ago, calls into question the validity of the jury system. Perhaps it's time to replace it with panels of legal experts or with a smart computer like Watson, the world champion of chess and Jeopardy.

The practice of asking peers, or jurors, to sit in judgment has been around since ancient Greece and Rome. This was to provide a check and balance against tyrants or government-sanctioned officials. It was devised to tap collective wisdom as opposed to allowing one individual to determine the fate of another. Unfortunately, juries fall short and cases and laws are more complex than ever.

This is why courts must educate juries and spend a great deal of time doing so. An excessive amount of time is spent picking and choosing jurors, to cull the bigoted or brain dead, from the pool of prospects. Then once the trial begins, too much time and money must be spent training the chosen jurors. Unfortunately, there is no guarantee of success, witness some of the comments made by two jurors in interviews following the Zimmerman acquittal. One stated that she acceded to the others because unanimity was required (which is not the case) and another that intention had to be established to convict Zimmerman, also inaccurate.

The wisdom and efficacy of the jury box in both criminal and civil cases should be re-evaluated, particularly in the United States where it is over-used.

"I agree the jury system is imperfect," said Heather Bird, a former journalist and now criminal defence lawyer licensed in the U.S. and Canada. "But it's a check and balance on the fact that the prosecutors have all the power. Then you have the judge, who is elevated but also part of the government. So you need the defence there to say to the government 'go ahead and prove it,' then you need a jury to decide whether that was accomplished."

The Grand Jury system is unique to the U.S. and highly questionable for several reasons. Grand Juries are held in secret, jurors hear only one side of the story, the prosecutor's, then must decide whether to indict, or to lay charges. There is a judge present but no press or public. Among New York's defence lawyers, there's a joke that "in New York you can indict a ham sandwich."

In Canada, there is no Grand Jury system and judges determine whether charges should be laid against individuals. Judges and prosecutors in Canada are also not politicized and are civil servants, not elected officials as is the case in many parts of the United States.

Juries don't determine whether someone will be charged in Canada, but a "preliminary hearing" is held before a professional judge to determine if a trial is needed. Reporters can be present but cannot report on the proceedings and the information is sealed so as not to prejudice the defendant's right to a trial should one occur.

In U.S. trials, juries are the norm. In state-level courts, the accused can choose a jury or judge, but federal offences require a jury trial unless the prosecution grants permission for a judge trial.

In Canada, the use of juries varies with the crime. Minor offences are tried before judges, and those charged with serious charges can choose jury or judge, but the government determines who will hear cases involving property, fraud or probation offences. And juries are mandatory when it comes to treason, threatens to officials, sedition, murder, war crimes, or bribery of a judge.

Another difference between the United States and other countries is that jurors can be interviewed after a trial by the press. They can talk about what transpired inside the jury room, blame one another and write books about it.

"In Canada, the Criminal Code does not allow jurors to disseminate what happens in the jury room," Bird explained. "I have problems with jurors being interviewed, but the argument in favour of allowing it is that it does introduce more transparency into the process."

Clearly, the best way to adjudicate would be to devise a system that eliminates poor judgment, ignorance, emotion, theatrics, media pressure, and questionable verdicts. Enlisting the efforts of a Watson-like mechanical genius to weigh the scales of justice is, theoretically, ideal. After all, computers fly the airplanes we use and run just about everything else in our lives.

Maybe it's time to eliminate human error in our justice system too.

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