Wednesday, February 20, 2013

Jurors and Lay Assessors in Trials in South Africa

The Pistorius case led journalists to discover that South Africa does not have the sort of jury system that is found in the United States and (in some trials) in the U.K.


"Review of the Law of Evidence," SOUTH AFRICAN LAW REFORM COMMISSION, Issue Paper 26, Project 126 (January 2008) (footnotes omitted):
2.9  Lay participation in the formal judicial system in South Africa dates back at  least to the nineteenth century where justices of the peace and occasionally elected  veldcornetten “administered law in many frontier areas”. Although prior to 1954 there was not an absolute colour bar in the vast majority of cases the jury was compromised of nine white men. Trial by jury in civil cases was abolished in 1926  and there was a steady decline of the use of juries in criminal trials and by the 1960’s less than one percent of criminal trials was by jury. Jury trials were abolished by  the Abolition of Juries Act 34 of 1969. In the 1970's and 80's there was minimal lay  participation in the formal judicial system. The 1990's saw the re-emergence of the  use of lay assessors in both the magistrates and superior courts. Section 34 of the Magistrates’ Court Act 32 of 1944 permits the court in civil actions, ”upon the  application of either party, to summon to its assistance one or two persons of skill  and experience in the matter to which the action relates who may be willing to sit and  act as assessors in an advisory capacity”. Section 93ter makes provision for the use of lay assessors in criminal trials. A magistrate presiding over a criminal trial may if he/she deems it expedient for the administration of justice, before any evidence has been led or in considering a community-based punishment in respect of any person who has been convicted of any offence, summon one or two assessors to assist him or her at the proceedings. However, the provisions are more peremptory in respect of murder trials in the regional court where the presiding officer must summon two assessors to assist him or her, unless the accused requests that the trial be proceeded with without assessors, in such a case the use of assessors is within the discretion of the presiding officer. In the High court it is generally within the presiding officer’s discretion whether to sit with an assessor in criminal matters. Lay assessors are used in a number of civil tribunals.

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The Commission considered the question of the appropriate relationship between the law of evidence, on the one hand, and juries and assessors, respectively, on the other hand. The Commission wisely discussed the differences and similarities between the common system of trial by jury and South Africa's current assessor system (footnotes omitted):
2.10 Professor SE van der Merwe succinctly summarises the distinction between jurors and assessors as follows:
  
“Assessors in lower courts and in the Supreme Court can to some extent be  compared with jurors as they are all finders of fact and do not decide legal issues. But our system of adjudication differs materially from trial by jury. The role of jurors can briefly be summarized as follows: jurors are lay people and sole finders of fact. They listen to the evidence and hear arguments, and they receive a summing-up and instructions from the presiding judicial officer: They are then called upon in their capacity as sole finders of fact to consider  and reach their verdict in the absence of the presiding judicial officer. And they are not required to advance reasons in support of their verdict. But in our system the judge or magistrate is at all times either a sole finder of fact or, where assessors are involved, a co-finder of fact. A judge must give reasons for his verdict. Magistrates almost invariably do give reasons for their verdict and, failing which, they may in certain circumstances be legally required to do so. It is true that the function of assessors can be compared with the function of jurors, because the function of assessor - with one exception - is also limited to fact finding. But assessors - unlike a jury - must give reasons for their verdict. They either agree or disagree with the presiding judicial officer’s reasons and finding, and in the event of a disagreement must furnish their own reasons in a separate judgment which is read out in court by the presiding judicial officer. And assessors - unlike jurors - are under constant and immediate judicial guidance in the sense that a judge (or magistrate) and the assessors involved in the trial have joint deliberations in reaching their respective verdicts. During these deliberations the presiding judicial officer can and must draw the attention of assessors - who of course may be lay people - to certain rules which govern the evaluation of evidence, for example, the cautionary rule, the rules governing inferences drawn from circumstantial evidence, and those rules which determine the effect of an accused's silence on the evaluation of the prosecution’s prima facie case.”

2.11 The absence of a jury and the somewhat different role of lay assessors in our courts as joint fact finders who are subject to the continual guidance of the court and who are required to give reasons for their decisions calls into question whether our jury based rules of evidence remain appropriate.

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The Commission discussed some interesting general questions -- or, in any event, general questions that interest me. For example, in its Conclusion the Commission stated:
5.  FORMUALTING [sic] PRINCIPLES FOR REFORM: QUESTIONS FOR COMMENT
Χ What is the scope of the law of evidence? Should the focus of evidence law be exclusively on the trial or should other stages of the process be considered as well?
Χ Should the exclusionary rules directed at controlling juries in the exercise of their fact finding function be re-placed by judicial discretion? 
Χ To what extent should relevance and weight be regulated? 
Χ To what extent should  public and social interests be reflected in evidence law? 
Χ Should there be different rules for different courts and tribunals?
Χ What should be the primary purpose of the rules of evidence in the trial process? In particular to what extent should evidence law facilitate all or any of the following policies: 
-  rationality and truth-finding? 
- party freedom? 
- procedural fairness? 
- public interest? 
- efficiency and finality?

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The Commission discussed the views of, inter alia, William L. Twining, John Henry Wigmore, Kenneth Culp Davis, and John Jackson.

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More later.

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