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Zimmerman verdict rebukes smaller-jury advocates

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The six-person Florida jury that acquitted George Zimmerman of second-degree murder in the shooting death of black high school student Trayvon Martin, 17, has come in for criticism on a lot of fronts.

It's been labeled racist (five of the jurors were white, one was described as Hispanic or black), gender-biased (all jurors were female), and firearms-friendly (one juror said she once carried a concealed-weapon permit, three others said they either have guns in their homes or have family members who do). The common denominator of the attacks is that the jury's weighing of the evidence was skewed by colour, gender, or right-to bear-arms prejudices.

Much of the criticism is fueled by the jury's abbreviated size. A reality that undermines critics of Canada's criminal jury system, who've long pointed to the American criminal justice system to support a small-is-good argument when it comes to juries.

The argument in favour of reducing jury size is that financial or other hardships suffered by jurors -- loss of income, absence from employment, removal from home -- would be minimized, at least in the aggregate, by following the American example of smaller criminal trial juries. Savings in court costs and time, both to empanel and maintain the jury, are also touted as grounds to halve jury size from the current 12 to six.

Numerous U.S. states permit six-person criminal trial juries. But, apart from Florida, only Connecticut permits them for serious felony charges, such as the second-degree murder charge Zimmerman faced.

In Canada, only Alberta has ever had six-person criminal juries. But in 1969, with little debate, it upped the required number of jurors to 12, to bring itself in line with all other provinces. (Public discussion was limited to questioning whether the province was doing so just to "keep up with Ontario.")

The reasons for retaining 12-member criminal juries are compelling. Some of those reasons surfaced in the fallout from Zimmerman's acquittal.

Twelve jurors yield a more representative group than six, and thereby better reflect the opinion of a broader cross-section of the community. Moreover, the larger the jury, the more likely minority ethnic or racial views will play into its deliberations. Tellingly, the dearth of racial diversity in the six-person Zimmerman jury has been repeatedly faulted.

A 12-member jury also, generally, has better collective recall, and renders more accurate fact-based verdicts, than a six-member panel. American studies suggest a larger jury is more faithful to what's actually admitted as evidence in court because one or more members of a larger jury will inevitably remember essential pieces of information others don't, and bring that information to the attention of the rest of the jurors.

The little research available also suggests a 12-member jury is more given to robust discussion of the evidence than a six-member group. Not surprising then, that statistical data indicate the risk of convicting an innocent person increases as the number of jurors decreases.

There's also the issue of group dynamics: The smaller the deliberating group, the more possible a skewed result.

It's not unknown for a charismatic or oddball juror to try to sway everyone else to his or her position. Such manipulation of opinion is more likely to succeed where only five other personalities are in play. There's literally safety in numbers when it comes to juries.

The use of 12-member juries dates back to 14th-century England. Why 12 was fixed as the optimal number is historically obscure. But the rationale seems to have been that a larger jury made for a breadth of maturity and judgment on tap to weigh evidence and evaluate witnesses -- a proposition as valid now as it was then.

The arguments in favour of scaling back the size of criminal juries in Canada are largely fiscal ones. Fiscal arguments should never be dismissed out of hand. But cost considerations must yield to government's fundamental duty to protect its citizens' rights, even -- perhaps especially even -- its criminally-accused citizens.

The protests in dozens of U.S. cities, and the post-acquittal quasi-critical comments of President Barack Obama, underline that a jury's rendering not only a just verdict, but also a broadly accepted one, hinges, in part, on its size and representative diversity. Too small and homogeneous a jury, and you risk the result in the Zimmerman case -- a decision large swaths of the population neither trusts nor respects.

In jury trials, size matters.

 

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition July 29, 2013 A9

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