Predicting Jury Outcomes In A Trial
We’ve all seen famous television shows like Suits, Law and Order or The Good Wife where on occasion an episode showcases an entire field of study dedicated to reading the jury. In some States of the United States, members of the public who serve on a jury are not prohibited from discussing the case with the media or in public after the fact. Often jury members will go on a media tour or be interviewed extensively by the media or by field experts to get insight on what went on in the jury room during deliberations. In some U.S. jurisdictions, even the lawyers who argued the case are not prohibited from interviewing jury members after the trial to get feedback or insight into what swayed their opinions.
This is a marked departure from the practice involved in jury trials in Ontario. In Ontario, section 649 of the Criminal Code makes it an offence for jury members to disclose any information relating to jury deliberations. For civil cases, section 40 of the Juries Act similarly bars any communication with jury members before, during and after a trial.
This shroud of secrecy around jury deliberations is not without juristic reason. The Supreme Court of Canada in R v. Pan was asked to determine whether the secrecy rule is fair and just in the face of Charter rights. The Court held that the primary function of this secrecy is to:
- protect jury members from fear of reprisal, ridicule or contempt for any decisions made during jury deliberations so that jury members are free to engage in full and frank debate behind the jury room doors;
- to protect a juror’s right to privacy after the trial is over;
- to safeguard the public’s confidence in the propriety of the verdict;
- to safeguard the principle of a unanimous verdict; and
- to prevent undue influence in deliberations based on extraneous factors – such as how their conduct might be perceived by the media.
There is only one exception to the rule and that is – if there is any evidence of outside undue influence on the jury, such as a bribe, communication with third parties about the case, etc.
In R v. Pan the Supreme Court recognized that this secrecy does come at the expense of academic study of the jury system, which area of study is healthy and thriving in the United States. Noteworthy is the fact that some of the other sections of the Criminal Code also serve to protect the integrity of the jury system. For example, the court maintains the power to discharge a juror in the course of a trial pursuant to section 644(1), which may be used in a situation where a verdict could be affected by bias. The Supreme Court in R v. Pan recognized that “lack of impartiality, whether due to racial bias or another cause, could, in a proper case, justify the discharge of a juror under section 644.”
However, during a civil trial jury selection process the only information the lawyers receive regarding prospective jury members is their name and occupation. Although lawyers can challenge a potential jury member, i.e. refuse to have them participate as a part of the jury, they only get four challenges in total and only have knowledge of the juror’s name and occupation. In other words in a civil trial there is no process by which potential jury members can be questioned to uncover potential biases or prejudices. Jurors are presumed to be to be impartial. The lawyers are however allowed to ask such questions in a criminal trial – this process is referred to as challenges for cause.
What the lack of academic study has meant for Ontario trial lawyers is that predicting jury outcomes is practically impossible, beyond mere speculation. We spend a lot of time explaining to our clients the unpredictability of a jury trial. In R v. Pan the accused challenged the constitutionality of jury secrecy in the criminal context. The accused in the case put forward the challenge after two mistrials and a third trial which rendered a guilty verdict.
Just this past week Gerald Stanley, a Saskatchewan man was acquitted of second degree murder related to an incident where Colten Boushie, a young indigenous man, was shot in the head by Stanley. The case not only lead to protests but have reignited the call for reform. Many indigenous community members and legal experts were critical of the fact that in this case, the juror challenge process meant that all indigenous prospective jurors were challenged and removed from the jury. The verdict echoes injustice for a community that is too familiar with this pattern, including the 2015 acquittal of Bradley Barton for the horrific death of Cindy Gladue in Edmonton, in 2011, a verdict since overturned and a new trial ordered by the Alberta Court of Appeal.
A recent case involving a York Regional Police officer facing charges of dangerous driving causing death also highlights how hung juries or mistrials can protract proceedings and be costly to the parties involved and to the taxpayers who ultimately fund the judge’s time, as well as, the overhead and administrative costs associated with trial proceedings.
In the case of the York police officer, the jury came to a different verdicts each of the three times the matter proceeded to trial. The first jury was unable to come to a unanimous verdict. This is referred to as a hung jury and results in a re-trial with a new jury. In a second trial the officer was acquitted, and the acquittal was appealed by the prosecutors on grounds of improper jury instructions given by the trial judge. The appeal was successful, and the Court of Appeal ordered yet another trial for the third time. The third trial resulted in a conviction.
The lawyer for the accused York police officer, interviewed by the Star after the third verdict called the criminal justice system a “crapshoot”. In civil trials juries can be equally unpredictable making justice a risky and costly proposition for most, where cost consequences are felt by the losing party in the case, and costs for an average personal injury trial which runs about two weeks can easily amount to hundreds of thousands of dollars in legal fees. It is perhaps no surprise considering the foregoing, that an agreed upon settlement is usually the preferred outcome for the parties involved in civil cases.
For more information about juries in civil trials check out our blog on Five Things A Jury Member Must Know For A Car Accident Trial
 R v. Pan,  2 SCR 344.
 R v. Pan, at para 77.
 R v. Pan, at para 126.