You may have been following the current criminal trial in Victoria where a woman is accused of murdering three people by serving them a meal laced with death cap mushrooms.

If so, you will know that the judge took more than four days to deliver his instructions to the jury. You will also know that the jury sat through 10 weeks of complex evidence given by more than 50 witnesses. The process may have left you pondering a number of questions. For example, would you have welcomed involvement as a juror in this case? If not, how could you have been excused from duty? Would you have been confident that (without assistance) you could fully understand the complex and circumstantial evidence that was presented?

The expert evidence canvassed areas including mobile phones, phone towers, computer searches, and death cap mushrooms – their ingestion, toxicity and effects. Would you have been assisted in this regard by a more informed fellow juror? Would you have been able to absorb, understand and recall the important points made by the prosecutor and the defence in their closing addresses as well as all the judge’s instructions? And how could you have resisted the temptation to use the internet to research something related to the case, or to simply see what the outside world was making of it? These are all questions that have barely been researched in Australia because it is illegal for jurors to discuss their deliberations with anyone! This is despite the Australian Law Reform Commission in 2005 urging that such research be enabled.

Currently the jury is regarded as the linchpin of the adversarial criminal justice system in Australia and most of the English-speaking world. It is frequently said to be the best system there is, a claim never accompanied by evidence. The jury system does have weaknesses and is held to be in need of reform to respond to our highly technological and specialised era. Technological and scientific advances leading to increasing complexity of expert evidence put before the criminal courts are just one reason to consider whether the jury system remains fit for purpose or whether a more effective and reliable means exists to adjudicate guilt or innocence. Are we sometimes asking juries to do the impossible? If we are serious about reducing the incidence of wrongful convictions, of which it is estimated that close to 10 such cases occur every year, then suggesting improvements or alternatives to the jury system is justified.

What then are the positive features of the jury system? It represents an important extension of our democracy and it allows criminal allegations to be evaluated by fellow citizens rather than by appointed legally trained judges. It can serve as a curb on the power of the state. Additionally, it provides safety in numbers; e.g. to be convicted of murder in Victoria, 12 fellow citizens have to be unanimous that you are guilty beyond reasonable doubt. (Notably, this requirement for unanimity has been variably diluted in all jurisdictions other than the ACT and the Commonwealth so that juries can now convict on the basis of a majority of an 11-1, 10-1 or 9-1 verdict).

And what are the negative features that are now gradually emerging in regard to the jury system? In the absence of data based on research into real juries, the following list of weaknesses must be regarded as anecdotal. First must be the questionable ability of jurors to concentrate for the requisite period, day in and day out, for long trials. Assuming that to be possible, does the jury possess the education to understand the forensic and other expert scientific evidence that may be complex and difficult, let alone to properly connect it with other circumstantial evidence in the case? Next, will each jury member be able to understand and follow the judge’s instructions? If all of that is achieved, will the jury correctly apply the concept of “beyond reasonable doubt”? An additional burden is the temptation to ignore firm instruction (including the threat of a fine or imprisonment) not to research or seek information online about the trial. Besides, through various reasons to be excused from jury duty (including financial hardship, carer duties, mental or physical impairment or other personal circumstances), the composition of the modern jury may not be truly representative of the community from which it is drawn.

There are other reasons to question the merit of the jury system. We may indeed be asking juries to do more than they are collectively capable of. The system throws ordinary citizens into an unfamiliar environment where they can be readily misled by talented barristers. The barristers’ task is not to seek the truth, but to represent their client as effectively as possible, which generally translates to trying to achieve a win in our adversarial legal system. The century-old adage of American poet Robert Frost (1874-1963) that declares “the task of the jury is to decide which side has the better lawyer” (or in 2025, the “better expert witness”) remains apposite. While we can see no ready means of proving our thesis, we suggest that questionable ethical conduct (sometimes called ‘over-zealous’ conduct) on the part of prosecutors may explain some of the worst miscarriages of justice seen in Australia.

There are additional weaknesses in our jury system. When concern is raised that juries may have difficulty evaluating complex scientific evidence, a common response is that every jury is likely to have one or two members who understand science and statistics. This suggestion is highly questionable and has never been researched. Another weakness peculiar to Australia is the expectation that the jury, possibly unguided by the presiding judge, must carry the enormous responsibility of evaluating the validity and reliability of novel or complex expert evidence. While some state judiciaries have questioned this, suggesting a stronger gate-keeping role for the judiciary, the High Court of Australia has confirmed it.

The jury system was readily justified in an earlier era where trials were brief and little of the evidence presented was based on complex forensic and other sciences. For our courts and for jurors, the world has changed dramatically in the last 30 years, not only from advances in science but also through the advent of the internet and social media. The world has also changed for the criminal justice system through research findings that show how powerful are the subconscious influences that lead to confirmation bias and tunnel vision among participants in the system. These subconscious influences are, as far as we are aware, still awaiting adequate acknowledgement the world over. One obvious lack of acknowledgement lies in the slow pace of establishing clear procedural walls — or communication protocols — between police investigators on the one hand and crime scene investigators and forensic science and forensic medicine practitioners on the other. We do acknowledge the difficulties associated with adopting this approach.

So, if the jury system has reached its use by date, what alternatives are there? A standard answer is the inquisitorial system as used in most European countries with its origins in the Napoleonic Code. However, there are many variants of the inquisitorial system and much time and effort would be needed to determine if any variant might be suitable for Australia. We would be wary of any inquisitorial system based solely upon the decisions of judges who, no matter how well-trained, will bring subconscious biases that need to be balanced by other input.

Our preference (should a change be considered) would be for a hybrid court or tribunal made up of trained judges working alongside lay members drawn from the community who are given authority and status equal to that of the judges. In defined circumstances, such a court could be assisted by scientific expert advisers but who would have no role in the final decision. An interesting example of a hybrid court exists in Japan and there are variants in place in Germany, Sweden and Denmark. However, should any adjustments be made to Australia’s jury system, we would argue that an adversarial component must remain to enable an independent barrister to put forward the defence of her/his client.

The inquisitorial approach is not foreign to Australia. It has been used for decades by coroner’s courts, administrative review tribunals and professional disciplinary tribunals. While it may be premature to recommend such a change at this point, it is surely time for the criminal justice system to permit, actively encourage, and support research into the jury system. This research can be done ethically and confidentially.

The views expressed in this article may or may not reflect those of Pearls and Irritations.