Previously jury trials in Canada required trial judges to remain above the fray, assisting the jury only to the extent that they provided a jury selected by the lawyers an independent and impartial assessment of the facts and how the law should be applied to the facts of the case. Trial judges were there, at least in part, to assist the jury in carrying out their responsibilities to make an appropriate decision based upon applicable law.
Trial judges were tasked with carrying out this responsibility fairly or evenly. It will surprise noone, however, that some trial judges were known to allow their view of the evidence to permeate their in-trial comments and behaviour, and most importantly, their final instructions to the jury.
Although jurors are sworn to decide cases based solely on the evidence presented and the application of the applicable law to the evidence, they are often exposed to much more. Their decision-making process is, for example, exposed to the behaviour of the trial lawyers, the expressions, or reactions of the trial Judge to the evidence, and what may be described as the dynamic impact of “non-testimonial information.”.
Influencing a jury to a particular interpretation of the evidence is easily accomplished by a trial Judge either wittingly or unwittingly. Consider the language that can be used by the Judge in his or her instructions in the following examples.
You may conclude that witness “A” is not credible based upon his criminal record that he admitted during his cross-examination.
You undoubtedly will consider that witness “B” conceded that her view of the events was impeded by a large tree and her distance from the events she purports to have seen.”
You should consider the evidence of witness “C” as an admission that he has an interest in the outcome of this case, and his interest weighs in favour of the defence.:
In one jury selection that followed within days of the removal of peremptory challenges, Justice Flynn, the trial Judge, had only one question for each prospective juror: “Are you available on this particular date and for two weeks following?” In that same case Justice Flynn was aware that one juror that he selected for jury duty had refused to fill out a mandatory document requiring each potential juror to answer questions that could potentially render the juror ineligible to serve.
This uncooperative juror was still selected by the trial Judge to serve as a juror. He had satisfied the trial Judge’s only criterion for service, that is, he was available for the two-week period when the trial was scheduled to take place. However, even by the end of the trial, and despite repeated requests by the trial Judge to have that juror demonstrate his eligibility, the juror refused to complete and turn over the mandatory juror information document. Ironically, this recalcitrant juror was selected by his peers to be the “foreman” of the jury. These are the types of jurors that most trial lawyers would spot and reject in a heartbeat. To the trial Judge the juror’s refusal to comply with the “mandatory” process and the repeated instructions of the trial Judge did not result in his disqualification.
So, the impact of the 2019 amendments on jury selection have eliminated all those interesting psychological concepts previously described as the “art of jury selection. Peremptory challenges no longer exist. The only challenge left in Canada is a “challenge for cause” and as you are about to learn, this type of challenge is now also entirely in the hands of the trial Judge, not the lawyers.
The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.
Read or listen to the Preface and Introduction and subscribe to Patrick Ducharme’s Youtube Channel.