The Jury System and the Statute of Limitations

by George Hatjoullis

A foundation principle of the jury system is that an accused is tried by a group of 12 peers. The role of the jury is to assess the veracity and sufficiency of the evidence. The question immediately arises as to why a jury of peers might be better at assessing the veracity of the evidence than, say, a single judge? The mere existence of a jury system is tacit acknowledgement that ‘facts’ are subject to interpretation and that interpretation is contextual. A jury of peers is thus presumably deemed to offer a common context with that of the accused.

What is a jury of peers? Would an all-white jury in a southern US state in 1950 constitute a jury of peers for an african-american accused (I have already deviated in context by using the term ‘african-american’)? Would a group of wealthy householders constitute a group of peers for a homeless and impecunious accused? A group of peers is, as the terms implies, a group of people from the same society and having the same background of the accused. It is a group of people that the accused might normally mix with on a day to day basis without fear or prejudice. It is a group of people with which the accused would share a value system and set of perceptions, and some degree of empathy. In practice it is a group of people living within the same nation state as the accused at the time of the trial. It is not strictly speaking a random sample as it is the residual group of people eligible, available and acceptable at the end of the selection process.

Context is, of course, time dependant. The value system and perceptions prevalent in 1950 (or any other date) is not the same as that prevailing today. The trial today of someone accused of a crime committed in 1950 cannot, by definition, be by a ‘jury of peers’ pertaining to the time of the alleged offence. There is a material probability that the outcome of a jury trial of the accused in 1950 would yield a different result to the same trial today, even if exactly the same evidence is presented (thus excluding advances in techniques of evidence). A jury of peers might judge the same evidence differently to that of a ‘jury of peers’ today. This does rather bring into question the form of the statute of limitations.

If someone is charged today of an offence allegedly committed in 1950 and the sole source of evidence is witness statements¬†then the normal process of jury trial is not available. Even if the witness statements are exactly the same as those that would have been given in 1950 (which is unlikely), the interpretation and judgement of these statements need not be the same by a jury selected today as one selected in 1950. The context has changed and with it the ‘facts’. This is not to say that new forensic evidence techniques such as DNA testing cannot add facts. The point is that a trial which includes only evidence that would have been available at both dates might yield different outcomes at the two dates. The relevant context for the alleged offence is the time at which it was allegedly committed. Only then is a jury of peers, correctly defined, available. A trial today using only the same evidence available in 1950 cannot, by definition, be by a ‘jury of peers’ because the evidence is being judged in a new context.

This is not to say that offences committed in 1950 or any other time should not be tried today even if the only evidence is witness statements. There are many good reasons why they should be so tried. The point is simply that they cannot be tried by a ‘jury of peers’ and hence the nature of law is altered. The accused may be advantaged or disadvantaged depending on the nature of the alleged offence and the change in social values and norms. The exercise of law, and nature of justice, is not constant over time even if statutes have not changed. A properly drafted statute of limitations should acknowledge this issue.

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