By Isaac Lam and Molly So 

Introduction

 Trial by jury has been instrumental to the criminal law for centuries. In criminal trials, juries are often tasked to determine questions of fact and decide guilty/not-guilty verdicts.

 Juries have historically been valued as a check against both the insulated worldviews of the often-privileged judiciary and potential political interference.[1]  By involving ordinary citizens in these questions, juries help to ensure that judicial decisions reflect the values of the broader population.[2]

 However, for this function to be effective, juries must be representative of the population. The proportion of New Zealanders born overseas has been increasing, reaching 27.4% as at 2018.[3] As the population becomes increasingly diverse, representation becomes increasingly difficult to ensure.

Jury Selection and Exemption

Under the current system, juries are selected through a random draw from the population living in the court’s jury district.[4] Historically, this system has been known to over-represent privileged and older demographics. Summoned jurors can seek exemptions from service for a variety of reasons, which younger and poorer jurors often do, as they simply cannot afford to take time off to serve.[5]

 However, on top of these issues with money and time, migrants and refugees also face additional language and psychological barriers that make participating in jury service both intimidating and functionally difficult.

Language Barriers for Refugees and Migrants

 In 2014, Hilary Smith submitted a report to the Ministry of Justice (MOJ) highlighting issues that New Zealanders from refugee and migrant backgrounds faced in jury service.[6] This report focused primarily on proceedings being almost exclusively in English, and the lack of interpretive support available to those with lesser English proficiency.

 Language barriers are typically the first issue that comes to mind when considering the challenges that multiculturalism poses to juries, and for good reason. A study Smith cited claimed that four in ten juries included a person who struggled to hold an everyday conversation in English.[7]

Complexity of Language

The resources containing jury summons information, both in summons letters and online, were difficult to navigate for New Zealanders with low levels of English proficiency. Much of the information uses technical legal terminology that jurors at beginner levels of English would struggle to understand.[8]

 This problem continues in the courtrooms. Despite the fact that just “basic everyday English” is required of jurors when summoned, several respondents stressed that the language used in courtrooms cannot be described as basic.[9] Analyses of courtroom language have identified that courtroom discussions are significantly harder to follow.[10]

Lack of Translation

 For the most part, translations of jury information are not available. In 2014, only one sentence in the summons information pack sent by mail was translated into Māori and twelve other languages - “If you think you may have trouble understanding the trial you should speak to a member of staff at the court”.[11]

 Information about who from the courts should be contacted and how the courts could be reached was also not translated and unclear, leading to a confusing and lengthy process for some who sought exemptions on the basis of English language ability.[12] At least one respondent recounted a situation where the recipients could not understand the summons information, and could not understand what they had to do.[13]

 Since Smith’s 2014 report, some changes have made jury summons materials slightly more intuitive to navigate, even for those with low English proficiency. One section of the summons letters is translated into thirteen different languages: “Court trials are in English. If you can understand and speak English in a group conversation, you should understand enough English to be on a jury. If you’re worried about understanding the trial, talk to court staff”.[14] Details of the telephone number, email address, and a map of the relevant court are now also listed right above this section.[15] This remains all that has been translated, however.

Lack of Interpretive Support

 Respondents told of how discussions in the jury room were difficult to keep up with. As people in court tend to look down as they speak, discussions can be hard to follow for foreign language speakers who rely on visual cues.[16] Also, the stenographer is not required to record the proceedings in writing, impacting jurors who may wish to revise the discussions.[17] As jury room discussions are strictly confidential, research on this aspect of the jury process is limited and could overlook other issues.[18] 

 The interpretive support available to jurors is still unclear. Smith found no information about whether translation or interpretation support was available to jurors with low levels of English language proficiency - the only interpretive support available appeared to be for jurors with disabilities.[19] Currently, interpretive support still only appears to be available for parties going to court. [20] 

Psychological Barriers

 Less immediately apparent are psychological barriers from certain aspects of the jury process that may intimidate overseas-born New Zealanders from jury participation, or discourage them from believing they are fit for jury duty.

Intimidation and Imposter Syndrome

 Some testimonies cited by Smith mention that the lack of procedural clarity made some second-language English speakers self-evaluate themselves unfit to sit in a jury.

 One respondent noted that some low, mid and pre-intermediate English students were “horrified at the idea that they could possibly be sending someone to jail”, and sought language-based exemptions on that thought alone.[21] Another account came from a former lawyer trained overseas, who felt anxious that his weaker English language abilities could cause him to easily misunderstand details and thus cloud the jury’s judgement.[22] 

 This preemptory self-selection out of jury duty is undesirable. As mentioned above, juries have traditionally already seen an overrepresentation of wealthier and older demographics. Excessively stringent self-selection out of jury service on a wide scale would further entrench this dynamic.

 Smith argues that this could be avoided by clarifying the standard of English proficiency required for jury service. Currently, this has been revised slightly from 2014 to be “If you can understand and speak English in a group conversation”. However, this still requires self-evaluation.[23]

 Beyond Language – Cultural Citizenship and Compatibility

 These psychological barriers extend beyond language issues, to cultural differences. Many migrants and refugees fear the courts because of experiences with unsafe legal systems where they come from.[24] Migrants from countries with legal systems based on religious law (such as Sharia) or socialist law (such as in communist or formerly communist countries) may be unfamiliar with the concept and role of the jury.[25]

 These issues are controversial and tempting to politicise. They raise the concern that migrants and refugees could hurt the integrity of the New Zealand criminal system and therefore should not serve on juries. However, Smith notes that the lack of understanding of courtroom procedures is not a uniquely migrant or refugee issue - but a general problem for jurors in New Zealand.[26] She argues the better solution is providing better explanatory materials, which currently do not cater well to those less fluent in English.

The Challenge Process

 Another psychological barrier is the controversial challenge process during jury selection. Before a case is heard, parties can challenge whether jurors are fit to sit on the jury, often without having to give a reason.[27]

 Smith provides an account of two people who turned up to attend jury service, but felt “very intimidated by the officious officials and overwhelmed by the proceedings”, and after being challenged “felt it was possibly ‘anti-Asian’”.[28]

 The challenge process can be intimidating and embarrassing for someone who may not understand it. The jurors being challenged are singled out and in front of everyone while the parties and their lawyers whisper and point at them.[29]

 In other jurisdictions where the challenge process has been studied in detail, ethnicity and background is a common ground for challenges. In Australia, when non-white defendants are being trialed in criminal cases, prosecutors often seek to exclude jurors who share a common ethnic background with the victim, fearing they would be over-sympathetic towards the victim.[30]

 Being challenged off a jury can be a stressful experience, particularly for migrants and refugees, who are likely to also be ethnic minorities. They could perceive the process as being racially discriminatory, or a personal attack on the integrity of their citizenship. Being challenged off a jury on the basis of ethnicity could easily feel akin to being told one was too foreign to have a say in the laws of New Zealand, or that one’s cultural background was incompatible with what the laws hold out New Zealand to be.

The Law Commission noted that judges in New Zealand sometimes do explain the peremptory challenge process during jury selection, emphasising that it should not be taken personally. However, this does not appear to be a mandatory or standardised procedure.[31] Currently, the challenge procedure is explained briefly on the MOJ’s website, but only in English and not in the jury summons materials. [32]   

 Challenges are a controversial part of the jury process; many critics from jurisdictions around the world support their abolishment.[33] Smith, however, believes the process just needs to be more clearly explained.[34]

Conclusion

While Smith’s report, and the changes it recommended, focus primarily on language barriers, the issues deterring and excluding migrants and refugees from sitting in juries run deeper than that. Current procedures may make jury service seem psychologically intimidating for New Zealanders born overseas, leading them to feel unworthy or unfit to participate as jurors.

 These language and psychological barriers make it less likely that foreign born jurors can and will participate in jury service, further undermining the jury’s fundamental function of a check on judicial authority that accurately represents broader societal values.

 More interpretive support and greater clarification of court procedures would go a long way to make jury service more accessible to migrants and refugees, allowing juries to better represent New Zealand’s increasingly diverse population.

    

 The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: piqsels.com

[1] New Zealand Law Commission Juries In Criminal Trials Part one (1998) at 62.

[2] Horan, Jacqueline Juries in the 21st century (Annandale, NSW: Federation Press 2012, Annandale, NSW, 2012) at 12.

[3] “New Zealand’s population reflects growing diversity” (23 September 2019) Stats NZ <www.stats.govt.nz>.

[4] New Zealand Law Commission, above n 2, at 62.

[5] Horan, above n 2, at 9.

[6] Smith, Hilary A. "English language issues for jury service by New Zealanders from migrant and refugee backgrounds" (2015) 10 58.

[7] Smith, above n 6, at 58.

[8] Smith, above n 6, at 60.

[9] Smith, above n 6, at 62.

[10] Smith, above n 6, at 63.

[11] Smith, above n 6, at 60.

[12] Smith, above n 6, at 61.

[13] Smith, above n 6, at 60.

[14] Letter from Ministry of Justice to Jurors regarding jury summons (April 2021).

[15] Letter from Ministry of Justice to Jurors regarding jury summons (April 2021).

[16] Smith, above n 6, at 62.

[17] Smith, above n 6, at 63.

[18] Smith, above n 6, at 63

[19] Smith, above n 6, at 63.

[20] Ministry of Justice “Going to Court” Ministry of Justice website https://www.justice.govt.nz/courts/going-to-court/pre/interpreters-language-and-disability-access/.

[21] Smith, above n 6, at 60.

[22] Smith, above n 6, at 60.

[23] Letter from Ministry of Justice to Jurors regarding jury summons (April 2021).

[24] Smith, above n 6, at 62.

[25] Smith, above n 6, at 61-62.

[26] Smith, above n 6, at 62.

[27] Horan, above n 2, at 26.

[28] Smith, above n 6, at 61.

[29] Horan, above n 2, at 27.

[30] Horan, above n 2, at 31.

[31] Smith, above n 6, at 61.

[32] Ministry of Justice “Jury Service” Ministry of Justice website https://www.justice.govt.nz/courts/jury-service/how-a-jury-is-selected/#challenge.

[33] Blake at 154.

[34] Smith, above n 6, at 61.