Jury trials are referred to as a thing of beauty every lawyer dreams to be part of. And there is in fact a deep-seated admiration of jury trials within the legal fraternity, particularly among prosecutors (just my hunch). But to Gen Zers, jury trials are quite an unfamiliarity. For them, witnessing a jury trial would be quite an impossible dream.
First impressions always count! Inspired by College lesson and Rustom, I ended up writing this blog, compiling the relevant statutory provisions and prominent case law about jury trial procedure in Sri Lanka. In this blog I will attempt to document a clear and detailed exposition of the right to trial by jury and the process of jury trials in Sri Lanka. This blog will also address the question why jury trials remain a super rarity in our criminal justice system today.
For a comparative study of American, English and Australian jury systems, check out the following link.
https://lawgradlk.blogspot.com/2021/11/jurys-fall-from-grace-comparative-study.html
Right to jury trial, not a constitutional right in Sri Lanka.
In Sri Lanka, only criminal juries are provided for by statutory enactment. However, the right to trial by jury is not guaranteed under our Constitution. Code of Criminal Procedure Act No. 15 of 1979(CCRP) is the principal statute dealing with criminal jury trials. Section 161 of CCRP( as amended by Act No. 11 of 1988) sets out the the general rule as to the mode of trial in High Court proceedings.
"Subject to provisions of CCRP or any other law, all prosecutions on indictment instituted in the High Court shall be tried by a Judge of that Court."
The proviso to section 161 outlines the instances when an accused can exercise his right to be tried by his peers.
"Provided that in any case where at least one of the offences falls within the list of offences set out in the second schedule to the Judicature Act, No2 of 1978, trial shall be by a jury before a Judge, if and only if, the accused elects to be tried by a jury".
Accordingly, bench trials are the norm in High Court proceedings unless an accused indicted for at least one of the following offences opts to be tried by a jury.
Second schedule to the Judicature Act No.2 of 1978 lists out
1.Murder (section 296 of the Penal Code).
2.Culpabale homicide not amounting to murder (section 297of the Penal Code).
3. Attempt to murder (section 300 of the Penal Code).
4. Rape (section 364 of the Penal Code).
5. Attempt to cause death or injury with offensive weapons Section 4(2) and section 4(2) read with section 6(1) of the Offensive Weapons Act.
6. Abetment and conspiracy for the abetment or commission of the offences described above.
Thus, it is clear jury option is a statutory right confined to a small subset of serious offences to which accused pleads not guilty.
Can the accused waive the right to trial by jury?
Prior to 1988, there wasn't a historical right of the defendant to waive a jury trial over a bench trial. However Amendment Act No. 11 of 1988 conferred an absolute right in the accused to waive the jury option on his own without having to seek prior sanction of court or prosecutorial consent. Under section 161, accused merely makes an election as to the mode of trial and that decision is at his sole discretion. Therefore jury-trial right belongs exclusively to the accused, and the mode of trial in High court necessarily depend on defendant's preference.
Giving the jury option to an accused, an inviolable duty of the trial judge.
Section 195(ee) of CCRP requires a High Court Judge, upon receiving an indictment, to inquire from the accused, whether or not he elects to be tried by a jury, where the indictment relates to an offence triable by a jury. It casts a mandatory duty on the judge to give an accused the jury option and inform him about his right to be tried by a jury, irrespective of whether there has been a preliminary inqury before a Magistrate or not.
Thus, a bench trial should not proceed without recording an accused's response to a question posed by the trial judge as to the mode of trial. Non-compliance with the statutory duty under section 199(ee) amounts to depriving an accused of his right to jury under section 161. It is a sufficient ground of appeal to quash a conviction made in a bench trial. In case a conviction is quashed, bench trial becomes a nullity and a re-trial will be ordered. Thus, the fact that non-compliance with section 195(ee) is fatal to the validity of a trial, shows that right to trial by jury is considered as a fundamental feature in our criminal justice system, despite it not being given constitutional status.
In Nimal Bandara V The State, it was held that the failure to comply with section 195(ee) is a fatal irregularity. It is stated that in a trial before the High Court, judge is required to inquire from the accused whether or not he elects to be tried by a Jury. This is a recognition of the basic statutory right of an accused to be tried by his peers.
In Wijesena Silva v A.G, it was held that section 195(ee) imposes a mandatory duty on High Court judge upon receipt of indictment to inquire from the accused whether or not he elects to be tried by a Jury.
Jury design and composition.
The seven angry men.
The process of selecting a jury is known as empaneling. In terms of section 210 (1) and (2), of CCRP, once an accused expresses his consent to be tried by a jury, prospective jurors will be called into the courtroom. Then jurors for the trial will be selected by lot from the relevant panel elected by the accused. According to section 209(1), a jury consists of 7 laymen randomly chosen from among the lists of jurors qualified/liable to serve as jurors(See section 248 of CCRP).
Sri Lankan jury is comparatively smaller than the classic twelve-member jury at Common law. However in US, six-member juries are permitted. Literature suggests that juries of higher number are more effective in fact-finding, promoting jury deliberations, resisting juror intimidation and representing a larger cross-section of community. Smaller juries are preferred mostly for saving time and costs associated with jury trials. However they are not optimal in view of minority representation, as they are less likely to attract members from minorities. One advantage of having smaller juries is that they are less likely to result in hung juries.
Foreman.
One juror out of the seven-member jury shall be elected by the remaining members as the foreman. Where foreman is not elected by a majority of jurors within a reasonable time, the judge shall appoint a foreman from among the jurors. After foreman is chosen, jurors shall be sworn or affirmed to faithfully try the defendant and give a fair verdict according to evidence presented.(section 214).
Foreman presides in the debates of the jury, communicates with the judge and poses any questions to judge that other jurors may have. And most importantly, jury verdict shall be delivered by the foreman(refer to section 214).
Peremptory challenges.
Peremptory challenges (objecting to jurors without stating any reasons) can be made by both the prosecution and defense to form a more acceptable jury to both parties. Objections without grounds shall be permitted to the number of two on behalf of all the accused indicted. Any number of remaining jurors may be challenged for cause by the defense.
Prosecution can however object to any number of potential jurors without stating any grounds of objection(section 210(5). Prosecution can object so simply over a hunch, no cause is required to be shown. The objected jurors shall be kept stand by to be later called for service on jury in case a jury is not formed(section 210(6). Where no sufficient number of jurors remain unchallenged, trial shall be adjourned to make way for a new panel of jurors to be summoned.
Some critiques view peremptory challenges as derogating from the concept of random selection of jurors. But many see them as a safeguard against potential juror bias.
What are grounds of objection?
Presumed or actual partiality in a juror, deficiency of required qualifications, executing or entrusted with police duties, a conviction in view of the judge rendering a juror unfit for service on a jury, inability to understand the language, any other circumstances which in the opinion of the judge rendering a juror improper as a juror, may be shown as cause to object to any juror.
The above grounds must be made out to the satisfaction of the judge, as objection taken against a juror is decided by the judge whose decision will be final on the matter(section 212). Where a judge allows an objection, the juror concerned shall be substituted by a new juror(section 212(2).
Qualifications of a juror
Section 244 sets out who shall be liable to serve as a juror. Accordingly, every person
- residing in Sri Lanka,
- who has attained twenty one years of age,
- has obtained a pass at the General Certificate of Education(Ordinary Level) Examination or at an equivalent examination in six subjects including Sinhala or Tamil language,
- and is in receipt of a monthly income of not less than three hundred rupees, shall be qualified for jury service.
What is a special jury?
In terms of section 244, a graduate of recognized university or who holds an equivalent professional qualification shall be deemed qualified and liable to serve as a special juror. Therefore a special jury consists of graduates or professionals.
Section 208 deals with summoning a special jury. Accordingly a special jury may be requested either by Prosecution or defense. If the accused has sought a special jury he must do so by submitting an affidavit stating reasons satisfying court as to why a special jury should be summoned in the particular case.
According to section 254, when an order is made for summoning a special jury, a panel of a number as specified in the order shall be prepared from the list of special jurors. And provisions relating to selecting jurors in Chapter 20 shall be applicable to special juries.
Who cannot be /not eligible to serve as jurors?
Section 245 and section 246 deal with persons eligible to serve as jurors. According to section 245, the following persons shall be excluded from jury service.
(a) President of Sri Lanka.
(b) Judges of courts.
(c) Members of parliament.
(d) representatives of foreign governments.
(e) officers and employees of parliament and of courts and of the ministry of justice.
(f) inquirers.
(g) attorneys at law.
(h) police and custom officers.
(i) priests.
(j) persons employed in the department of attorney general, commissioner of prisons and commissioner of probation and child care services.
(k) persons who have suffered imprisonment for a term of one month or more.
(l) persons who labor under such bodily or mental incapacity or profess such religious tenets as render them unfit to discharge the duty of a juror.
People with pre-determined views/preconceived notion that the accused has done the offence even prior to evidence being led, affecting a fair trial are excluded.
Section 246 lists out persons who shall not be called for jury service except without their prior consent.
(a) persons saving in the Army, Navy or Air Force on full pay or active employment.
(b) medical practitioners.
(c) dispensers of drugs.
(d) Registrars and deputy registrars of births and deaths.
(e) persons over the age of sixty years.
In terms of section 247, any person summoned to serve as a juror within the last twelve months is entitled to be exempted from jury service if a claim for exemption is made in writing to Registrar immediately after he is called to serve as a juror and the court is of the opinion that exempting him would not unduly reduce the number of jurors in the panel.
Further section 247(2) permits a person listed as a potential juror in any list, to apply to Registrar to excuse him from jury service for a specified period of time. He must state satisfactory grounds for such request.
According to section 247(3) judge has the power to excuse a juror from attending a hearing on any particular day/days or time of the day for any reasonable cause, either conditionally or unconditionally.
The role of judge in a jury trial
Why would there be a judge in a jury trial, if the jurors alone decides an accused's guilt or innocence? To begin with jurors are non-lawyers usually legally illiterate, and do not often have high levels of comprehension. Therefore fundamental legal concepts and all other legal questions arise in the course of a proceeding must be explained to the jurors by the judge. And also, a wide authority is given to a judge to oversee the proceedings in order to ensure a fair trial to both parties. Therefore the role of a judge in a jury trial is no less important than in a bench trial. The judge makes decisions about the matters of law that may arise in the course of trial, and he must ensure that both sides have a fair trial.
Section 230 sets out four main duties assigned to a judge in a trial by jury.
(a) All questions of law as to the relevancy of facts proposed to be proved and admissibility of evidence, and the propriety of questions asked/proposed to be asked by parties shall be within the sole purview of the judge. A judge must also be careful to block production of inadmissible evidence whether objected to by parties or not.
Thus, judge acts as the judge of the law while jurors act as judges of facts. It is for the judge to adjudicate upon all matters of law by making decisions as to applicable legal provisions.
As all legal matters are interpreted and determined by the judge, when questions as to admissibility of evidence(section 5 of the Evidence Ordinance read with section 136(1) of the same) arise in the course of the trial, these questions of law are dealt with by judge in the absence of the jury. Questions of law usually include credibility of witness testimonies, admissibility of hearsay and confessionary statements. For instance where admissibility of a confession is in issue, the judge will rule out such confession as inadmissible, and the jury will have heard nothing about the exclusion of confessionary statement and the trial continues.
i.e. A murders B. There are no eye witnesses. But a passerby(P) sees someone fleeing away from the scene of crime where B was found lying dead. When the witness(W) comes to the scene, a passerby makes a comment that A ran away from house. The passerby has not been called as a witness in the trial. Comment made by passerby if introduced to court by witness(W) it is hearsay evidence prejudicial to the accused. The general rule is that hearsay evidence is inadmissible. However the principle of res gestae under section 6 of the Evidence Ordinance permits admission of something said or done in the course of the same transaction as an exception to the hearsay rule. The admissibility of this piece of hearsay evidence must be determined by judge in the absence of jury.
(b) Judge decides upon the meaning and construction of all documentary evidence.
i.e. Let's take a DNA report as an example of documentary evidence. Judge must decide as to the admissibility of the facts given in the DNA report and their relevancy to the facts in issue at the trial. If the DNA report contains evidence as to a blood sample found on the accused's shirt which matches with the deceased's blood, judge has to first admit the DNA report as evidence material to the case. The jury can consider the DNA report only after judge so admits it.
(c) Judge decides upon all matters of fact necessary to be admitted to enable any other evidence to be given.
i.e The general principle is that a document must be proven on primary evidence by presenting the original document itself. Secondary evidence(copy) of a lost document(the primary evidence) can be given only after proving the fact that the original document was actually lost or destroyed by leading evidence of a witness who says he saw the original document before it was destroyed or lost.
(d)Judge decides whether a certain question is a question of law or a question of fact?
If it is a question of law then it is a matter to be decided for the judge.
if it a question of fact, it is a matter for the jury.
i.e. The accused sees his child being abused by the deceased. All factual matters relevant to the question as to whether the accused was provoked in a grave and sudden manner must be decided by jury as directed by the judge in his charge to the jury. It is not for the judge to decide if the accused was under grave and sudden provocation in the circumstances.
Thus, all factual matters are for the jury, not for the judge. Nevertheless in view of the provisions in section 231, a judge can comment upon questions of fact or questions of mixed law and fact, if judge thinks it proper in the course of his summing up to the jury. Thus, judge has the right to merely express his opinion on matters of fact and of mixed fact and law.
Judge's instructions in his charge to the jury act as a legal guide to enable jurors to arrive at legally acceptable decisions and to shake off any bias or pre-conceived notions in jurors' minds. They must be clear and comprehensible to facilitate effective performance of duties assigned to the jury. Moreover a judge must be cautious in instructing jury on questions of law since a misdirection would vitiate a jury verdict. Misdirection of jury is often the only ground on which an appeal would lie against a jury verdict.
Duties of jury
Jury merely determines the guilt or innocence of an accused based on their evaluation of the factual evidence presented before them, in accordance with the law as instructed by the judge his charge to the jury. In the process of determining guilt of an accused, jury must determine what the true facts are and what actually happened in the case. Before doing so, it must consider separately each of the charges specified in the indictment.
Section 232 describes the duties of jury in a jury trial. There are four main duties.
(a) Jurors must decide which view of the facts presented before them is true, and return a verdict upon such view in accordance with the law as laid down in the charge given by the judge.
i.e. In a case of murder, after a judge explains to the jury the difference between murder and culpable homicide not amounting to murder and which view of the facts leads to conviction of murder and which view of the facts leads to conviction of culpable homicide not amounting to murder, the jury must decide which view of the facts adduced is true and return a verdict according to the directions of the judge.
(b) Jury must determine the interpretations to be given to all technical terms other than terms of law, and words used in an unusual sense. The rationale behind this provision is that various dialects in certain areas and in certain industries are best within the knowledge of the jurors than judges.
(c) Jury must determine all questions of fact.
The question whether a person entertained a reasonable belief on a particular matter, or whether a particular work was performed with reasonable skill and care in the circumstances are matters to be determined by the jury.
(d) Jury must decide whether general indefinite expressions other than expressions referring to legal procedure, apply to particular cases. Where those expressions refer to legal procedure or are ascertained by law, they must be decided by judge.
The process of trial by jury.
Provisions in sections 217, 218, 219, 220, 221, 222 and 223, 229, 233, 234, 235 in the CCRP deal with the procedure of a jury trial.
(1) Registrar reads out the indictment (section 217).
(2) Judge addresses jury for the first time (section 217).
(3) The prosecution present the opening statements(section 218).
(4) The prosecution calls witnesses and produces evidence to prove its case. Each of the prosecution witnesses will be examined by prosecution (section 218).
(5) Defense cross examines each of the prosecution witnesses.(section 218).
(6) Statutory statement of the accused has to be put in evidence and then the prosecution case is closed (section 219).
(7) Judge considers the sufficiency of evidence that whether the accused committed the offence and if evidence presented by prosecution is insufficient he shall direct the jury to return a verdict of not guilty(section 220(1)).
(8) If judge considers there is sufficient evidence, judge asks defense counsel to adduce evidence (section 220(2)).
(9) If defense do not adduce evidence, prosecution may address the jury by summing up the evidence against the accused (section 220(3)).
(10) If defense wishes to adduce evidence, defense counsel may open its case by presenting evidence and call defense witnesses and then sums up its case.(section 221(1)).
(11) Prosecution cross-examines the defense witnesses. (section 221(2)).
(12) Prosecution may call rebuttal witnesses to disprove defense case (section 223).
(13) Prosecution will address the jury by commenting on evidence before court and make a plea asking the jurors to accept that evidence and do justice in the case (section 229).
(14) Defense counsel will address the jury in reply.( section 229).
(15) The judge instructs or charges the jury as to the law (section 229).
(16) The jury retires to deliberate (section 233).
(17) The jury reaches its verdict upon the law and evidence (sections 234 and 235).
(18) Judge sentences the accused if a verdict of guilty is returned by the jury.
As soon as jurors are sworn in, the indictment will be read out by court Registrar in the presence of jury and the accused. A jury trial commences with the reading out of the charges specified in the indictment. Then judge informs the jurors about the importance of their duty to listen to evidence by asking them to return a verdict of accused's guilt in respect of each of the charges specified in the indictment. Jurors shall also be briefly introduced to fundamental legal concepts such as presumption of innocence( that the accused remains an innocent person who is merely subjected to a trial) and the standard of proof in a criminal trial.
Then prosecution counsel in his opening address will present to the jury the nature of the case prosecution wishes to prove before the court. The purpose of opening address is to briefly mention to jurors the nature of the case and type of evidence(whether it is circumstantial/direct/documentary/oral/ accomplice's evidence is led as the basis of prosecution case) the prosecution wishes to lead before the jury.
Once the opening address is concluded by prosecution counsel, each prosecution witness will be called in an order to be determined by the prosecution. Once all the prosecution witness are called to the witness stand and after chief examination by the prosecution, the defense counsel will cross examine each of those prosecution witnesses.
After all prosecution witnesses are cross examined and before the close of the prosecution's case, the statutory statement of the accused has to be put in evidence(section 219). Once the statutory statement is read in evidence, prosecution case closes.
Once prosecution case is closed, judge has the right to direct jury to return a verdict of not guilty under section 220(1), if he is of the view that there isn't sufficient evidence implicating the accused. The rationale of section 220(1) lies on the general understanding that the question over sufficiency of evidence is a question of law and not one of fact. This was held in Queen v. Kularatne 71 NLR 529 and Queen v. Pauline De Croos 71 NLR 169. Therefore judge may only direct the jury to discharge an accused, but cannot force to necessarily discharge. In the absence of sufficient evidence jury may at its discretion issue a verdict of not guilty, or it may opt to hear further evidence.
If there is sufficient evidence against the accused, judge will ask the accused whether he intends to call evidence on his own behalf as his defense. Then accused will be explained of his right to remain silent, or to make a dock statement, or to give evidence under oath, or call witnesses to prove his case.
If the accused elects to give evidence then the defense counsel will briefly summarize his defense and make a short statement. Thereafter defense witnesses will be called. After all defense witnesses are cross-examined, defense case will be closed. Prior to closing of defense case, the accused may invoke section 222 to call any person without summons being taken on him as an important witness for the defense, but only after obtaining the permission of the judge.
Provision has been made by section 223 for the prosecution to call witnesses in rebuttal where prosecution has been taken by surprise by a position taken by the defense. i.e. Where an accused takes up the defense of alibi that he was abroad at the time of the commission of the offence, if the alibi had not been taken originally by the accused in his statement to the police or during the preliminary inquiry or before the commencement of the trial , the prosecution can make an application under section 223 requesting to allow the prosecution to rebut the defense of alibi. On the permission of the court, the prosecution can call Controller of Immigration as a witness in rebuttal to produce the passport of the accused.
After prosecution and defense cases are laid before the jury, the jury trial is concluded. Then prosecution will address the jury a second time. In its address, prosecution would comment on evidence adduced before the judge and the jury, and make a plea to the jury to accept the evidence and do justice in the case. Prosecution counsel can explain to the jury what interpretation should be given to the evidence and the ingredients of offence/s concerned and whether a reasonable doubt exists in the defense case enabling the jury to reject the accused's version. Defense counsel would also address the jury in reply stating reasons as to why prosecution case should be rejected and whether defense case raises a reasonable doubt in the prosecution case.
Thereafter, judge makes his charge to the jury under section 229. In his charge to the jury, judge would sum up the evidence presented by both parties and lay down the law by which the jury is to be directed, focusing on the salient points of the case and legal interpretations that should be given to the evidence. Thus the jury trial process ends once judge lays down his charge to the jury.
Jury verdict.
After charge to jury is concluded and after receiving final directions from the judge, in terms of section 233, the jury will be invited to retire to consider their verdict in order to decide if the defendant is Guilty or Not Guilty of each of the charges against the defendant. Jury deliberations take place confidentially in a private room. Once jury deliberations are over jury will indicate to Registrar that they are ready to deliver the verdict. Then the foreman will be asked by Registrar whether all jurors are unanimous in their decision. It is the foreman who shall state the jury verdict to the court. In terms of section 234(2), where a non-unanimous verdict is reached by the jury, the judge can require the jury to retire for further consideration of their verdict. Unanimous verdicts are preffered in the first instance since unanimity is a safeguard against flawed convictions.
Section 235(1) requires verdict to be given on each of the charges specified in the indictment.
i.e Where the indictment contains charges of murder and attempted murder, jurors are required to give in their verdict the guilt or innocence in respect of each of the charges. Registrar will ask the foreman whether jury has reached a final verdict upon which all jurors are agreed and whether jury find the accused guilty of the first count of murder? If found guilty, foreman will say that the jury unanimously find the accused gulity of murder. On second count, if found innocent, foreman will say jury is unanimously agreed that the accused is not guilty.
Sectoin 235(1) allows a judge to pose any questions to the jury to merely understand the rationale of a jury verdict. However questions as to the accuracy of verdict should not be posed to the jury. Where a judge is at variance with a unanimous jury verdict, he can direct the jury to reconsider the verdict. But judge cannot force his view to be accepted by jury. Since jurors are the sole arbitrators of facts,the judge cannot challenge jury's verdict. Jury's findings of facts are considered final.
Where jury is not convinced by the directions of the judge, judge can either discharge the jury or record his dissent and accept the jury verdict. As explained above, judge cannot displace jury's findings, but judge retains sole authority over sentencing.
According to section 235(2), verdict returned after such reconsideration must be deemed as the true verdict. Queen v. Arnolis Appuhamy 70 NLR 256 held that the jury verdict should be one that is returned by the jury and not by the judge. Where jury returns a verdict of guilt of the offence of Culpable Homicide, judge may pose question to understand whether the foundation for such finding was based upon jury's knowledge of any mitigatory defenses such as grave and sudden provocation. In Karunadasa and another v. AG (1983) 2 SLR 22, where judge refused to accept jury's verdict of guilty on culpable homicide and directed jury to return a verdict of guilty of murder, it was held to be a misdirection.
What is a valid jury verdict?
According to section 209(2), there are three possible 'acceptable verdicts of jury'. A valid jury verdict must be either a unanimous verdict, or a majority verdict of 6-1 or 5-2. However a verdict of 4-3 is not acceptable.
Judge to decide sentencing.
Sentencing is a matter for the judge alone and the jury take no part in it.
Jurors visiting the scene of crime.
Jury's visit to scene of an offence is a rare occurrence, because jury trials usually commence after a lapse of a significant period of time after the commission of an offence. However, in terms of section 224, whenever the judge thinks fit that the jurors should visit the scene of crime or any other place in which any transaction material to the trial has allegedly taken place, he shall permit jurors to visit the place under the care of a court officer appointed by judge. This is to help jurors better determine their verdict. Visit to a crime scene will enable jurors to observe the scene themselves and determine whether descriptions given of the scene by prosecution and defense is true or not. It will also help them determine how acts of a crime might have transpired at the scene.
During the visit, it is the responsibility of the court officer to not allow any other person to converse with any juror except with the permission of the judge. Jurors must be conducted back to court immediately after visit to the scene of crime.
Can a juror be a witness?
According to section 225, where a juror has personal knowledge or acquaintance with any relevant fact of the case, he has the duty to inform the court of such acquaintance. After court is informed, such juror shall be sworn and can be examined like any other witness.
Jurors not to hold communications with anyone other than jurors.
According to section 227(2), priror to jurors are allowed to separate during the course of trial, they are sworn or affirmed not to communicate with any person other than a fellow juror about anything subject to trial. Breach of this undertaking shall be deemed to be a contempt of court.
However jurors shall not necessarily be kept together during any adjournment before the conclusion of judge's summing up to the jury. But it is open for the judge to keep the jury together where it is advisable in the interests of justice.
Jury not accountable?
Once of the major differences between a trial by jury and a bench trial is that in the latter, trial judge has to give reasons for the verdict. According to section 231, jurors do not however have to give reasons for their verdict, they just have to give a decision, not a written judgement. Jury verdict is a matter of math, counting how many in favor and how many against. Jury decisions are unreasoned and confidential. Therefore basis or factors underscoring jury's decision would not be very clear. However this is at odds with the principle of transparency and openness in a just society. The rationale in not revealing the reasoning behind jury verdicts may be to add a degree of finality to jury trials.
When a jury can be discharged?
Sections 215, 216 and 237 contain provisions relating to instances when a jury can be discharged. If any juror is prevented from attending court throughout the trial or absents himself and it is not possible to force his attendance or is unable to understand the language in which evidence is given or interpreted, judge may at his discretion replace such juror or discharge the entire jury and order a re-trial.
In terms of section 216, a judge may discharge a jury where an accused appears to be incapable of remaining at the bar due to an illness or if it is in the interests of justice to discharge the jury. For instance, where there are are several accused, only one accused is hospitalized for lengthy treatment, and trial cannot be adjourned for a few days as jury trials are conducted day to day, the jury will be discharged. Queen v. Podisingho 53 NLR 49, where a there were several accused and one accused felt critically ill, the continuance the jury trial of the remaining accused while issuing an order for the former to be tried by a new jury was upheld in appellate court. However a trial judge cannot discharge a jury in the interests of justice for the mere reason that he does not agree with the jury.( Queen v. Handy 61 NLR 265)
Also where bad character evidence is introduced before jury, jury can be discharged. This is because accidental/deliberate introduction of bad evidence can cause prejudice to the accused that he will no longer be presumed innocence in the minds of jurors. King v.Piloris Fernando 47 NLR 97, when bad character of the accused was accidentally introduced to judge and jury by a witness, the jury was discharged.
In accordance with section 239, when a jury is discharged, an accused may either be detained or granted bail, and a re- trial will be ordered.
Why defendants tend to forgo right to trial-by jury?
In contemporary Sri Lanka, jury trials almost never take place. The last well known jury trial dates back to 2016; When accused in Nadaraja Raviraj assassination case were tried before a special jury. Since then jury trials have almost faded into the past. Nevertheless, before 70s, jury remained one of the precious legal institutions in the country since its introduction in 1810.
Like i said before, jury trials are few and far between. Accused tend to forgo their right to trial by jury in favor of bench trials. This is because jury option might in certain instances be detrimental to an accused. One of the major reasons for preferring bench trials over juries is the negative attitude in the minds of the general public over how criminals are dealt with in courts and the increasing crime rate. This crime wave mindset of jurors is too risky and prejudicial to an accused. Jurors today are eager to take the role of a vigilante while serving as jurors. Therefore it takes little imagination for anyone to predict how a jury with this kind of prejudicial mindset would react towards a criminal defendant if they are called to decide someone's guilt or innocence.
In this internet age, inflated public opinions circulating on social media platforms largely influence the minds of jurors that media has a greater impact on the outcome of jury trials. Owing to this particularly challenging aspect of interplay between media and juries, today accused will resort to jury option only if their cases are quite sympathetic to the public eye. Nadaraja Raviraj assassination trial is an example in point, where the accused who were charged for murder of MP Nadaraja who was believed to be a sympathizer of LTTE, a jury of Sinhala speaking majority unhesitantly returned a verdict of not guilty. At that time the public identified accused as heroes who committed the murder for the benefit of the nation. Communal sentiments played a huge role in the outcome of this jury trial. This case highlights the twin problem of perverse acquittals and unwarranted loyalism in jurors in a multi-ethnic society. It also highlights the potential to misuse jury trials. Juries in terrorism related and highly politicized cases are often times more vulnerable to community sentiments and intimidation of sympathizers.
And also where the defense of an accused involves technicalities and is somewhat complex, a bench trial will be preferred over a jury trial. Because jurors do not have sufficient capacity as laymen to deal with such legal intricacies. While taking into account all the above concerns, it is solely up to the defense counsel to make a wise election as to the best mode of trial for a criminal defendant.
Food for thought.
As we know, Sri Lankan general public is not historically and culturally accustomed to citizen participation at the decision making level in any of the spheres, whether it be political, economic or judicial. Further, public is not sufficiently legally literate. To make matters a bit tricky, we do not own a homegrown jury system of our own. Since we live in a multicultural, multilingual and multiethnic society, it is doubtful whether we can overcome natural biases and prejudices through a completely alien jury system which is not acclimatized to our heterogeneity.
There is also an overwhelming insecurity among the public over increasing crimes. The realities of our information culture are such that much of the public opinion and perception of justice are significantly influenced by sensational media reports. Media has become both the investigators and judges themselves. So accused are inevitably wary of the consequences a jury trial may bring.
Owing to above factors, we can see a precipitous decline of use of jury trials in the country in recent decades. However diminishing jury trials are not a problem unique to Sri Lanka, it is a global phenomenon, bringing with it a corresponding decline in civic participation in the justice systems. It has reduced public confidence in the law in general. It has also deprived nations of a wealth of social capital and brought forth an embarrassing trend of law-defying public. To a nation living in a democratic backslide, juries are indeed worth saving. They are a perfect way to get back our lost democracy.
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