The right to a trial by a jury of one’s peers is an age old concept which dates back to the Magna Carta of 1215. Policies and practices in respect of fair trials have encapsulated this right to such an extent that it runs parallel to all fundamental rights of the accused person. This element of fairness has become compromised by practices that question the definition of “peer” as manifested by the selection process. This is particularly so in the US where a jury vetting process is so widely practices that it has become the norm.
In Australia however, where jury selection is by and large random, the opposite is true. Australia takes the position that a jury of one’s peer refers to the model member of the community and provides a more effective means of securing a fair and just result. Academics argue that by changing the process to shift its attention to a jury selection process that allows for each side to select jurors that are more representative of the accused and/or the victim will compromise the concept of fairness.
This paper argues that a jury of one’s peers should remain as it is, a representative of the conscience of the community by demonstrating that a process that allows for a representative jury panel can only upset the balance with the result that a fair trial is virtually impossible. Jury of One’s Peers An examination of the role of the jury in a criminal or civil trial leads to the inescapable conclusion that the term “jury of one’s peers” is no more than a misnomer. For instance, jurors are selected on the basis of their ability to determined the facts of a case objectively, rather than in a manner partial to one side or the other.
As Roger Ballard explains: “... the jury is the source of that vital yardstick ‘the reasonable man’: the instrument through which a relevantly contextualised assessment of things done or said can be confidently and, at least in principle, reliably implemented. ” The idea of jurors as peers originates from the notion that jurors should represent a “bastion” between government powers and ordinary citizens in a democratic society. Chapter 39 of the Magna Carta stands as a manifestation of this ideology and provides as follows:
“No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land. ” The term “we” in Chapter 39 of the Magna Carta is important since it distinguishes the government from the ordinary citizen. The Magna Carta was composed by King John and addressed to all manner of government officials including but not limited to, archbishops, earls, barons, sheriffs, ministers, bailiffs and justiciars.
It is widely accepted that the notion of a jury of one’s peers has its roots in the Magna Carta and it is from this concept that the jury panel selection policies and practices have developed in Common Law countries. The Parliament of Victoria Law Reform Committee considered the idea of revamping the selection process with a view to reflecting a more accurate image of a jury of one’s peers. By doing so the Law Reform Committee gave serious consideration to the definition of “an accused person’s peers. ”