"UNLOCKING PANDORA'S BOX?": RESOLVING THE CLASH OF INFRASTRUCTURE AMIDST THE RISKS OF JURY SECRECY.

• Author: Khakhar, Nik

INTRODUCTION 192 I IN CONVERSATION WITH "REVIEWING OUR PEERS": THE LAY JURY, 193 JURY SECRECY, AND WRONGFUL CONVICTIONS A. Practical Concerns 198 B. Jurisprudential Concerns 199 II THE APPELLATE STANDARD OF JURY REVIEW 201 III THE FORCED DISPARITY: THE STATUTE-MANDATED JURY TRIAL 206 IV THE ROLE OF THE CROWN 210 A. Core Prosecutorial Discretion 210 B. Shaping Prosecutorial Discretion in the Decision to 212 Consent V CONCLUSION 218 INTRODUCTION

In Hesiod's epic, Works and Days, Zeus sends Pandora to Prometheus' brother with a box of every human fault as vengeance for stealing fire from the heavens. Pandora opens the box, releasing all sorts of misery and evils, leaving only hope behind. The phrase "unlocking Pandora's Box" refers to starting a conversation that could cause unforeseen problems. Critiques of any action that would, so to speak, open Pandora's box, rest their faith in its remaining virtue--hope.

In the legal system, Pandora's Box is not just a myth; it remains ever-present in our legal system in the form of jury trials. (1) Like the spirits of Pandora's Box, jurors enjoy considerable freedom to deliberate as they wish, provided that they comply with judicial instructions. Commonwealth constitutions worldwide, and their related jurisprudence, have framed jurors as the most capable fact-finders in the criminal trial--a recognition founded on their ability to integrate human and life experiences into the formalities and technicalities of the courtroom. The reluctance to open the jury verdict to scrutiny is founded on the abstract notion of hope, despite the risk of wrongful convictions which comes from relying on jurors who are untrained in the law, overloaded with information, and exposed to unreliable evidence. Altogether, any reforms to jury secrecy must effectively reduce the risk of wrongful convictions, without opening the metaphorical Pandora's box.

The jury trial not only creates risks of inaccuracy but also creates an inequality in appellate review powers between jury verdicts and verdicts by a judge alone. While judicial verdicts are accompanied by reasons, the rules of jury secrecy prevent appellate courts from spotting errors in the fact-finding process of jury deliberations. Since trial by jury is the default for serious offences such as murder and treason at common law and under the Criminal Code--unless the Crown consents to a judge-alone trial--many accused persons in complex cases, where evidence may contain reliability or prejudicial concerns, are compelled to accept this uncertain and unreviewable process. Compelling accused persons to be tried by a jury, without sensitivity to case-specific risks, can render the right to the "benefit" of trial by jury--s. 11(f) of the Charter--virtually useless and increase the chances of wrongful convictions.

This paper is the second part of my series about jury-induced wrongful convictions. In my first paper, "Reviewing Our Peers," I discussed the heightened risks of evidentiary misinterpretation in jury trials and the reduced ability of courts to regulate these risks through jury instructions and evidentiary exclusions. (2) I proposed three reforms: expanding the right to be tried by judge-alone, providing pre-trial jury instructions about the risks of misinterpretation, and mandating the anonymous disclosure of jury verdict reasons. However, since publishing that work I have identified practical issues with the solutions to jury secrecy that I proposed in the article. In this paper, I will argue that reforms that promote the accuracy of verdicts must work around the stringent rules of jury secrecy. Ultimately, it is the Crown that decides whether to consent to the accused's request for a judge-alone trial. As such, minimizing the risk of jury-induced wrongful convictions is most effectively achieved through targeted reforms to prosecutorial discretion.

Part I examines my earlier research on the risks associated with jury verdicts, while also highlighting the practical and jurisprudential challenges of altering jury secrecy rules in Canada. Part II explores the disparities in appellate review of judge-alone and jury verdicts, and Part III demonstrates how mandatory jury trial provisions for severe offences can increase the risk of wrongful convictions by exacerbating these disparities. Finally, Part IV proposes modifications to Crown policy guidelines on consenting to judge-alone trials informed by the factors that can contribute to jury-induced wrongful convictions.

I IN CONVERSATION WITH "REVIEWING OUR PEERS": THE LAY JURY, JURY SECRECY, AND WRONGFUL CONVICTIONS

In my earlier work, "Reviewing Our Peers," I argued that jurors' lack of legal training, coupled with the secret nature of their verdicts, heightens the risk of wrongful convictions. (3) Jurors are selected for their lack of legal knowledge, with individuals from the legal profession and related fields excluded from participation under provincial jury statutes. (4) This is premised on faith in the power of laypeople to bring their common-sense and human experiences to the formalities of the criminal justice process, make verdicts more democratic, and serve as interpreters of the facts of the case, while the judge determines the applicable law and evidentiary rules which jurors must follow. (5)

The lay character of the jury is particularly concerning given the ever-increasing complexity of criminal trials. Most criminal trials today contain evidence that may be prejudicial to the accused--evidence that can lead the jury to doubt the innocence of the accused even when it is not directly probative of guilt. The Kaufman Report, written following the wrongful conviction of Guy Paul Morin, reflected the concerns that jurors may misinterpret unreliable evidence and that they must be instructed accordingly. (6) Confessions, expert testimony, and character evidence are examples of unreliable evidence which, if overemphasized or misapplied by jurors, can lead to wrongful convictions.

Specific to jury trials, there is a particular concern that while confession evidence that is deemed inadmissible mid-trial would be struck from the record, it may not ultimately escape the mind of the juror--and can subconsciously skew the mechanics of jury deliberations. The wrongful conviction of Roman Phillion has illustrated the risk that false confessions may be overemphasized by the jury due to the common perception that confessions are rarely made by someone who did not commit the offence. (7) However, social science and psychological literature has since debunked this misperception. The high-pressure environment of interrogation scenarios can cause younger, mentally vulnerable, and detained individuals to view confessing as the most effective way to get out of their current situation--whether it is separation from their family, personal discomfort, or simply the isolating and often unsanitary conditions of jail cells. (8) At such a stage, the costs of a lengthy trial--despite a potential exoneration--would perceptibly outweigh the short-term benefits of confessing, and there are compelling incentives for vulnerable individuals to falsely confess. However, in a study of mock jurors conducted by Saul Kassin and Holly Sukel, it was found that they were more likely to convict--on the criminal standard of guilt beyond a reasonable doubt--when presented with a confession, regardless of whether it was obtained through coercive circumstances or whether the judge declared it inadmissible mid-trial. (9) It must be noted that in all experimental scenarios, the content of the case and the other pieces of evidence remained the same. This study shows jurors may internalize the misguided perception that confessions are rarely false, even when informed about their reliability risks. Indeed, the very common-sense reasoning by jurors that is subject to praise can cause them to overemphasize coerced confessions even in the absence of corroborating evidence or the presence of evidence that casts reasonable doubt upon the accused's guilt.

In addition to confession evidence, cases have increasingly relied on expert testimony, which requires technical knowledge of disciplines such as pathology, psychiatry, or ballistics. Expert theories such as bite-mark evidence and shaken baby syndrome, which dominated cases in the 20th century, have now been debunked as a result of DNA exonerations of wrongfully convicted individuals. (10) The 2008 Goudge Report on over 12 wrongful convictions or miscarriages of justice influenced by the flawed testimony of former forensic pathologist, Doctor Charles Smith, showed just how easy it is for jurors to be overinfluenced by the perceived credentials of an expert. There is a risk that individuals previously untrained in spotting flaws in scientific methodologies may rely on the confidence rather than competence of a witness. (11) McAuliff and Duckworth have found that jurors are more likely to engage in heuristic reasoning when evaluating expert evidence: they are less likely to "scrutinize the quality of the persuasive arguments," and more likely to "rely on more superficial mental shortcuts or decision rules," such as the credentials of an expert or their confidence and articulation of testimony. (12) In this study, jurors were not able to detect experimental or confounding bias threats that could call into question the credibility of expert testimony. On the other hand, rules of evidence ensure that trial judges make their decisions about admitting expert testimony based on more nuanced factors, such as the qualifications, relevance, compliance with other evidentiary rules, and necessity of the witness. (13) It is more likely that judges, alive to the risks they have to consider as part of the White Burgess test on expert admissibility, may be more experienced with weighing evidence on the basis of its validity and quality of argument.

In addition, particularly in trials involving...