By Dr Jacob Magri – Associate
“When you go to court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty”, Norm Crosby, an American comedian once said. But is this just a light-hearted statement or a stark look at reality? The jury system has always been a subject of debate. Several jurists have suggested it should be abolished altogether. If the jury were really made up of “twelve [nine – in Malta’s case] people who weren’t smart”, it would not be a system worth retaining. But if it were made up of people who are truly able to recognize their civic responsibility and do their best to pass a fair and impartial verdict, it would be a system doing honour to the administration of justice.
What separates these two scenarios is the jury selection process. It is this process which ultimately decides whether the individuals picked to serve as jurors are “smart” enough – to use Crosby’s colloquial term – to serve the administration of justice fairly and impartially.
In Malta’s case, a jury panel is comprised of a foreman juror and eight common jurors. For one to qualify for jury service he/she must be of age twenty-one years or more and must be a citizen of Malta and residing in Malta. These characteristics are coupled with adequate knowledge of the Maltese language, good character, i.e., a clean criminal record, and competence to serve as a juror. According to the Maltese Criminal Code, a person is not competent to serve as a juror if he is interdicted or incapacitated, is an undischarged bankrupt, is a person who, owing to any notorious physical or mental defect, is reputed to be unfit to serve as a juror, or if he is a person who is under trial for any crime, until the trial has terminated.
In practice, the preparation of jury lists starts off with something that is not provided for legislatively. The Commissioner would issue a memo to all the police districts directed to the Inspectors so that they choose various people who would be deemed fit to serve as jurors. Their suitability would be decided according to the qualifications established by law. Jury lists are prepared by what can be termed as a ‘jury commission’. This commission is made up of the Commissioner of Police, two Magistrates and the Registrar of Courts. The law states that every year in August, these members draw up, according to the best of their knowledge, two lists of persons: one of persons who are qualified and sufficiently competent to serve as jurors for the trial of Maltese speaking persons and one of those persons who have sufficient proficiency in the English language, as to be able to serve for the trial of English-speaking persons. From the entire number of persons shown on the said lists a further list is drawn up containing the names of persons competent to serve as foremen who must have the added qualification of having already served in a trial by jury before the Criminal Court.
After the lists are published in the Government Gazette in August, any person who
possesses the qualifications required by law to serve as a juror and who desires to be registered or to be struck off the list of jurors, may make an application to that effect before the Criminal Court. However, an application to be struck off at this stage is only upheld if one of the qualifications required by law is lacking. The Court proceeds summarily on the application and the registrar notes on the lists any corrections which the court may order.
As for the selection of jurors for a particular trial, every month, the registrar draws from the box forty names of common jurors and ten names of foremen from the sealed boxes. If amongst the names drawn, there are people who are disqualified, ineligible or dead, such names shall be taken as not having been drawn and fresh names are drawn in their place. These persons are then summoned by writ at least four days before the day of the trial. Any person who is not qualified or liable to serve or who has special reasons for asking the court to be exempted may do so by means of an application which has to be filed within four days of the person being summoned and if the court accepts the reasons, it orders the registrar to cancel the name of such persons and to have it replaced by another name.
As to the actual composition of the jury in any given trial, the names of the persons who would have been summoned to serve are to be written on separate ballots of parchment or paper equal in shape and size. The registrar reads aloud in court the
ballots bearing the names of the foremen and then puts them in one box. The same
procedure is followed for the names of ordinary jurors, but the ballots are put into a separate box. The registrar draws first the name of the person to serve as a foreman from the box of names containing the names of prospective foremen and then he shall proceed to draw eight names (or more, depending on whether the court orders the empanelling of supplementary jurors or not). The registrar then asks first the Attorney General or the accused whether they intend or not to challenge the juror. If any person whose name is drawn is challenged, exempted from serving or does not appear, other names will be drawn in the same order, until a foreman and eight ordinary jurors (plus any number of jurors which the court would have ordered to serve as supplementary jurors) are approved.
Under the Maltese system, challenges may either be for cause or peremptory. Challenges for cause may be exercised if there is a reason for wanting the juror removed from the panel. If the court approves the reason, the juror is removed, but if it is rejected, the person is admitted. The number of challenges for cause exercisable by either party is unlimited. In the case of peremptory challenges, however, the number of challenges is limited to three each to the Attorney General and the accused. If the accused are more than three, then each of the accused is allowed two challenges each.