Gang rape trial verdict raises question... Should lawyers be allowed to keep women off juries?

Press, 8 December 1982, Page 17

Gang rape trial verdict raises question... Should lawyers be allowed to keep women off juries?

By

GARRY ARTHUR

Public outrage at the acquittal of five men in a recent gang rape case focused mainly on two aspects of the case — the fact that it was an all-male jury, and the judge’s warning to the jury to be wary of convicting on the uncorroborated evidence of the young woman complainant. The selection of an allmale jury certainly appeared to be no accident. This was a multiple trial, and each of the five accused was entitled by law to challenge six jurors "without cause,” even though only one juror was being empanelled. Defence counsel consequently had a total of 30 challenges, and they evidently took the view that it was their clients’ best interests to challenge women jurors as their names were called. Even if that was not their intention, it looked as if it was. and so infringed the precept that justice must not only be done, but it must also be seen to be done.

“I'd certainly say, in a case such as this, that if the challenges are used to exclude women or any other identifiable group, it presents an unhappy appearance to say the least,” says Professor Gerald Orchard, professor of law at the University of Canterbury. Quite by chance, the group of 75 jurors from whom the gang rape trial jury was

selected were equally divided between the sexes — 38 men and 37 women.

All of those jurors who were "stood aside” by the Crown were men; but the defence challenged 20 women to achieve the all-male jury. Not all lawyers are convinced that women jurors are more likely to convict in rape cases. Some take the contrary view, believing that women jurors may in fact take a hard line against another woman who alleges rape, especially if she is seen as a “common” type. In practice, there have been women on most juries in Christchurch rape cases in recent years.

No-one really knows how any particular classes of person will react as jurors, and the defence counsel’s decision to challenge a woman, a taxi-driver, a farmer, or some other kind of juror, is largely based on pure guesswork. He may' challenge six jurors for each client he represents at the trial “without cause.” which means that he does not have to give his reasons.

In deciding whether or not to challenge a juror, the lawyer does not have much to go on. Five clear days before the trial he is able to get a list of the jury panel. This tells him their names, addresses, and occupations, and he can go through it with his client, the accused person, to see if any of the

names are known to him. There might be a neighbour, for example, or a workmate with whom he is on bad terms. Or he might recognise the name of someone he knows to be an associate or relative of a prosecution witness. These will be marked down for challenge if their names come up. If the complainant is a shopkeeper and the charge is one of burglary, the defence lawyer will almost certainly decide to challenge any juror

whose occupation is given as “shopkeeper.” Others he might challenge as they come forward just because he has a hunch about them — the set of a juror’s mouth might give him the feeling that this one will be tough on any alleged wrong-door.

It is very unusual for counsel to make inquiries about those on the jury list, according to one experienced trial lawyer, Mr Stephen Erber.

“In the ordinary case most counsel just take the jury as they come,” he says. “You look at them as they step forward and say ‘he looks nuts,’ or ‘she looks a bit of a bitch,’ and challenge them.”

Mr Erber says there are cases which counsel for the defence think would be better handled by a male jury. For example, for a serious or murderous assault in circumstances of provocation where the accused is a woman, most counsel would prefer a male jury.

“But my own view is that women are much tougher on women complainants than men,” he adds.

He prosecuted in one recent rape case in which at least half the jury were

women, and the accused were acquitted. “There were no complaints about that,” Mr Erber adds. He says he has never challenged to achieve an all-male jury in such cases. He believes that women are more intelligent than men and respond better to the sort of rational arguments with which he likes to persuade a jury. But Mr Erber frankly admits to having challenged to eliminate other classes of juror when he thought it in his client’s interest to do so — such as public servants, coloured persons, manual labourers, or “anyone who looked remotely like an accountant,” depending on the circumstances of the case. Professor Orchard says there is no evidence that mixed juries are more or less prone to acquit. “If it was thought that because of the way in which challenges were being exercised — for example to produce a jury that is not representative of the panel or of society, and that is what is alleged here, with apparent justification — then a number of changes could be made,” he says. “One possibility would be to abolish the right of challenge without cause. But that would be taking away a traditional right of the accused, and might be going too far.

"Or the number of challenges could be reduced to less than six. That would still leave potential for a lot of challenges in a joint trial. It would be arbitrary, but it would lessen the scope for abuse.

“Or you could put a low maximum on the challenges where a number of accused are standing trial together. That would be difficult — there would have to be a formula to allow the accused to share the challenges. “Another possibility would be to give the judge an overriding- discretion to disallow challenges, but there would be a danger that the judge could appear to be biased against the accused. "The fifth possibility is that counsel, would be allowed to challenge only with cause, and after questioning the juror, as happens in some of the United States.

“I think that would be unacceptable. It leads to enormous delays and subjects the juror to vigorous cross-examination.”

Stephen Erber does not think it would be practicable to change to challenges for cause only. He says it would be impossible to state the cause because nothing would be known about the jurors unless the accused had gone to the expense of having inquiries made about everyone on the list.