Abstract
Indigenous peoples in Australia, the United States and Canada are significantly overrepresented as defendants in criminal trials and yet vastly underrepresented on juries in criminal trials. This means that all-white juries mostly determine the guilt of Indigenous defendants or white defendants responsible for harming Indigenous victims. In this article, we explore cases in which Indigenous defendants have perceived that an all-white jury’s prejudice against Indigenous people would prevent them receiving a fair trial. It focuses on Indigenous defendants (often facing charges in relation to protesting against white racism) challenging the array of all-white juries. Across these cases, Australian courts rely on formal notions of fairness in jury selection to dismiss the Indigenous defendant’s perception of bias and foreclose an inquiry into the potential prejudices of white jurors. We compare the Australian judicial ‘colour-blindness’ towards all-white juries with that of the United States and Canada. We argue that the tendency for courts in the United States and Canada to question jurors on their biases provides useful lessons for Australian judiciaries, including in relation to the impending trials of Indigenous defendants in Kalgoorlie, Western Australia, accused of committing crimes in response to white racist violence. Nonetheless, across all jurisdictions where there is a challenge to the array based on racial composition, courts consistently uphold all-white juries. We suggest that the judicial view of the racial neutrality of white jury selection misapprehends the substantive biases in jury selection and the injustice perceived by defendants in having a white jury adjudicate an alleged crime that is committed in circumstances involving protest against white prejudice.
Highlights
Indigenous people are significantly overrepresented as defendants in criminal trials and in prisons and yet vastly underrepresented on juries in criminal trials in Australia, the United States and Canada
Because Australian courts, rather than the victims of racism, have claimed to be the authority on what racism looks like, they do not pursue inquiries into why the Indigenous defendant perceives bias when presented with an all‐white jury and how this may relate to racial divisions outside the courtroom
It has been widely stated that a ‘trial is won or lost when the jury is selected’ because ‘jurors bring to the courtroom biases and predispositions which largely determine the outcome of the case’ (Covington 1985: 576, quoted in Lee 2015: 847). This reflects the sentiment of Indigenous defendants and Indigenous victims of white perpetrators when their trials are adjudicated by an all‐white jury
Summary
Indigenous people are significantly overrepresented as defendants in criminal trials and in prisons and yet vastly underrepresented on juries in criminal trials in Australia, the United States and Canada. The following sections demonstrate the perception among Indigenous defendants that they will not receive a fair trial where the panel of peers comprises white persons, where the alleged crime pertains to a response to white racism Their challenges to the array of all‐white juries pivot on the idea that there will be prejudice among these jurors, where racial divides and tensions are relevant to the charges they face. The second section outlines the judicial reasoning in dismissing Indigenous challenges to all‐ white juries in leading Australian cases, based on formal equality in jury selection and empanelment We argue that this approach overlooks the structural barriers that preclude the empanelment of Indigenous jurors (notably the higher proportion of Indigenous people who have a criminal record and the under‐representation of Indigenous people on electoral rolls) (Goldflam 2011a: 37; Horan 2008: 32).
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More From: International Journal for Crime, Justice and Social Democracy
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