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Column: Should defendants be able to waive their right to trial by jury?

Are jury trials suitable for high-profile, white collar crime cases? It could be near impossible to impanel a jury that wouldn’t be unduly biased in such cases, writes Karl Shirran.

Karl Shirran

THE TRIAL OF Sean Fitzpatrick is expected to begin in the foreseeable future. It will be the first high-profile, white collar criminal case to be dealt with in the history of the state. This will undoubtedly raise a number of issues for the legal system. The most fundamental of these may be the suitability of the jury for such trials.

Considering all sectors of Irish society have been affected by the post-Celtic Tiger recession to a greater or lesser extent, it could be perceived at least near-impossible to impanel a jury that won’t be unduly biased against the Anglo Irish Bank’s former director.

The media have shone light on what can be perceived as shady slights of hand which proceeded the collapse of Anglo. The public have been affected in two tangible ways – firstly, by media accounts of what occurred in the bank which the public have been exposed to for some time and, secondly, the personal hardship experienced directly by the public which many feel the bankers were largely responsible for.

In 2009, an American jury research firm polled 400 individuals from the jury eligible population of the Southern District of New York. The statistics made for stark if not all that surprising reading. The figures showed 74.3 per cent believed that the economic crash was as a result of senior executives acting with carelessness and greed. Some 47.3 per cent felt that if the government accused financial executives of committing fraud, then they probably did commit it. Finally, 30.2 per cent admitted to finding it hard to consider a senior executive accused of fraud innocent until proven guilty, despite the direction of a trial judge.

US law

In the United States an accused will often be entitled to waive their right to a jury. This is as a result of the jury seen as right which is beheld by the accused, as opposed to simply being another part of the criminal justice system.

In the American context, the Framers were responsive to the contempt with which the administration and judges were held. The jury was seen to interject fairness in a trial which may have been presided over by a judge with closer ties to England and the Crown, than citizens of the newly-formed independent states.

In short, the jury came about to protect the individual. And, if the jury was derived to protect the individual, is it not only right that the individual defendant be allowed dispense with the said protection if their belief is a jury will lead to a biased trial?

American citizens are protected by individual state law and federal law. Section 23 of the Federal Criminal Procedure Rules concerns the waiving of the right to a jury trial. The accused must be fully informed before waiving their right to the benefit and protection of a jury trial. These include the jury being composed of 12 members of the community, the verdict having to be unanimous and the defendant’s involvement in selecting an appropriate jury. Under Rule 23(a) the government must consent through the prosecution to any waiver, as well as the waiver being in writing. The rule also stipulates that the trial judge’s consent be affirmed.

State law can contain slight variations. For instance, New York state law does not require the consent of the prosecution for a valid waiver except in cases of first degree murder.

In Patton v U.S. the court rejected the idea that an absolute right to waive a jury trial existed for the accused. In other words, criteria can exist to be met by an accused before they may waive there entitlement to a jury trial. However, in Singer v U.S. the court did explicitly recognise that a situation may exist where a defendant’s reasons for wanting to be tried by “a judge alone might be so compelling that the Government’s insistence on trial by jury would result in denial to a defendant of an impartial trial”. At the very least, this reasoning accepts that a defendant’s right to a fair and impartial trial may not be best served by the impanelling of a jury.

The difference with Irish law…

The relevant Irish case law, albeit obiter, stands in direct contrast to the above American cases. Former Chief Justice O’Dálaigh referred to a jury trial for non-minor offences as “mandatory” and “not simply a right to be adopted or waived at the option of the accused”. In de Burca and Anderson v A.G. Mr Justice Henchy spoke of the “risks inherent in a trial conducted by a judge or judges only” and the idea of “correctness and public acceptability that may be expected from the group verdict” of a jury. The Irish case law makes no mention of a situation where the interests of the accused would be better served by a bench trial, where a single judge presides determining all issues of fact and law.

A single judge presiding on their own carries with it a degree of risk. It is far from all positive from an defendant’s point of view either. In favouring a bench trial, the defence is automatically giving up fertile appellate grounds such as defective jury instruction and deliberation. However, the reasoning behind the bench trial, from a defendant’s point of view, is the value judgement that an experienced and battle hardened trial lawyer may look at a case in more dispassionate and objective way. This is not to be confused with the judge having sympathy for the defendant, rather being less inclined to allow bias play a part in the outcome of the case. If sufficient evidence of a crime having been committed is placed before a court, whatever the exact make up of that court, a defendant will be found guilty.

A majority of citizens will not feel the slightest sympathy for excessively paid, high-profile senior bankers facing fraud charges but at the heart of a fair trial lies proper impartiality. Our legislator could introduce legislation to ensure an accused this choice even if the onus lies with the accused to prove the likelihood of bias were a jury trial to proceed.

Karl Shirran is a law student with a BCL from UCD and LL.M from Trinity.

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Karl Shirran

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