Like many of my friends, I spent an admittedly unhealthy amount of time thinking about Steven Avery this past summer. The protagonist of Netflix’s ten-part documentary series, Making a Murderer, Avery was convicted of, and spent years serving time for, a rape that DNA evidence later proved he did not commit and was charged with murder two years after his release. The series focused not only on Avery’s murder trial but also his teenage nephew and alleged accomplice to the crime, Brendan Dassey.

As was no doubt the point of the series, Making a Murderer cast real doubt on the validity of the evidence used to convict both men of the later crime and raised serious questions as to the reliability of the Wisconsin criminal justice system.

But could ‘Making a Murderer’ happen in Australia?

The scary thing is, at least in my view, yes it could. A look at the similarities between the two criminal systems shows why this to be the case.

1. Use of Jury System

Just like in the USA, in NSW, jury trials still exist in criminal matters and civil trials, particularly defamation cases. It’s the jury’s job to determine guilt or innocence. The jurors are selected at random from the electoral role, and the 12 members ultimately have to decide unanimously if the accused is innocent or guilty, applying the criminal standard of ‘beyond reasonable doubt’. In essence, this puts the application of the ‘law’ into the jury’s hands.

2. Nature of Jurors

If you’re after a laugh, look up some articles listing excuses people have used to get out of jury duty. Needy cats and fear of public transport are just some of the reasons I’ve seen reported. Jury duty is not viewed in society as a particularly desirous role. Further, a number of classes of persons, and in particular professionals, are excluded from or ineligible for jury duty. For example, as a lawyer, I understand the burden and standard of proof, as well as the rules of evidence, and yet I’m not allowed to perform a role whose job it is to apply the burden and standard of proof to the admissible evidence.

3. Rules of Evidence

There are a number of complex rules of evidence which apply to the criminal justice system. ‘I object’ is commonly stated, with the presiding Judge often determining certain statements or pieces of evidence are inadmissible, and directing the jury as such. But if it’s been seen, it’s been seen, and who really knows what goes on in that Jury room?

4. The ‘Price’ of Justice

In Dassey’s case, his legal counsel was ultimately excused for failing to represent his client. Indeed, as the series showed, the very men appointed by the state to prove his innocence, actually took it upon themselves to prove his guilt. Unfortunately, good lawyers cost money, which not everybody has.

Scary stuff, right? So as both Avery and Dassey rot away in their cells, perhaps guilty, perhaps not, but at least having been exposed to a somewhat flawed system that put them there, one must ask how many Australian’s are in the same plight.

One thing I know for sure, if I’m ever committed of a crime (not that I would ever be guilty of one, of course), I’ll be doing everything in my power to have a Judge alone determine my fate.

What do you think? Tag us on Twitter @legalvision_au and let us know.

Emma Jervis
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