Wednesday, February 06, 2008

Some views on the Jury System

In the last post I commented that my Jury Service had ended, and someone has left a comment there asking me what I think of the Jury System and whether I think it is still right or worthwhile in our 'multi cultural' age, and the fact that majority voting now exists. I'd have to say that yes it is. The Jury I sat on was a very mixed one, and whilst there were people who were sometimes late, which got annoying, I don't think the value systems of the mixture of individuals was particularly relevant. That's not to say I think that there are not times when it can be.

On the point of majority verdicts, it is my understanding, based on what the judge I had said, that majority verdict are not particularly popular within the system. The verdict we were asked to reach was to be unanimous and a majority was only ever going to be accepted if we had been discussing things for "some time". I don't what that "some time" might have been I must admit, and perhaps other judges are different with their use of it, but I can understand why a majority verdict is sometimes considered acceptable. If a Jury deliberates for weeks on end and is split then it can become necessary to do so.

Whilst I was sitting around I was told about a trial someone knew of where a majority verdict was accepted but the Jury was directed to make sure that the majority was a certain minimum number, I think the person said the Judge would accept 10 people agreeing. I don't personally have a problem with that and it seems like it could be quite sensible in some cases. I was left with the understanding though that even when a majority is accepted it is not simply an automatic seven versus six which carries it.

For me personally the real difficulty with the Jury Trial comes with the advocacy system and the increased susceptibility of some people to weak and inconsistent argument. After all, it is the purpose of the prosecution to prove a case, whilst the defence has to prove nothing whatsoever. All the defence really has to do is sew seeds of doubt in the Jury's mind about the evidence. However this can often result inconsistent approach to doubt, where a defence will throw up doubt on one thing, and then throw up another doubt on something else which, when thought about for a moment actually contradicts the previous doubt.

If the defence has been lucky with the jury selection process then it will get people that fall for the trick. Think of the trick like this. If "Doubt A" is given as a possible alternative to the prosecution case; and then "Doubt B" is given later on. There are times when, if you accept "Doubt B" then you have to logically follow through and accept that "Doubt A" is an invalid one, or vice versa. If you see it happen, then by implication, it becomes clear that the defence is aware that it's own client's position is somewhat flaky, because it is unable to provide a consistent alternative explanation for the charges in question.

Here's a practical example, let's say you have a case where some guy has been accused of assault which he denies. In cross examination of a particular witness the defence throws up the possibility that the witness is really the guilty party, and lets say that is itself not an unreasonable suggestion given the circumstances of the case. Later on though the defence cross examines a medical person and throws up doubt on the injuries of the "victim", suggesting that there are innocent explanations for them. Now clearly, that secondary doubt is in direct contradiction to the first. The first accepts that the assault took place, whilst the second suggests it didn't. In a way you could say that this cast reasonable doubt upon the reasonable doubt being presented.

This is a clever trick by barristers to take, as I said, a "scatter gun" approach to doubt rather than constructing a plausible holistic alternative to the charge. Now I imagine a barrister will tell me that it is not the responsibility of the defence to be consistent, but to simply cast doubt on the evidence. The problem of course is that if their clients really were innocent, then the defence would and could be consistent in the doubts that it raised. After all, if a reasonable and plausible alternative explanation exists then a Jury must acquit.

It seems to me then, that this inconsistent approach to doubt that a defence might take exploits a flaw in the Jury System. Whether that flaw is so great that it is a condemnation of the system I'm not sure, but if you have 12 people chosen randomly that are unable to see the little bit of light footed argument for what it is, you could find quite a large number of guilty people acquitted. Of course, who is to say that in a system with just legal super-experts that such things could not happen as well. I'd say the probability of getting it wrong with 12 people rather than one judge is surely far less?

However, going back to my own Jury experience, it was, I think, a great one, simply because I was lucky enough to be at the Old Bailey and on a case that was relatively complex and also somewhat significant. But I can see problems with the Jury System in technicality, I can't deny that. There's also the problem of someone that just doesn't want to be there who may just agree with the majority to get out of the place. Having read the graffiti on the back of the toilet doors during my four weeks there I reckon that happens quite a lot.


Anonymous said...

Presumably you're in employment so your employer ensured that you didn't suffer financially from doing this. In effect, they subsidised the justice system by a random tax that just happened to fall on them this year.

And what about the other regulations? I know someone who spent ages waiting around to do jury service but couldn't take a laptop to work on because there was nowhere to store it and they weren't allowed to take it into the court, if they were called.

I have not done jury service myself but the more I speak to people sho have, the more it seems like random state theft of people's time and money. We have professional lawyers, judges and policemen - why not jurors? They could be trained in spotting inconsistent arguments (or chosen for their ability to do so). I can't help thinking that would produce a better and fairer system.

dizzy said...

My employer made up the difference on the loss of earning that the court pays.

Tom Paine said...

The jury is the last British institution in which I have faith. If juries were professional, they would be indoctrinated (ok, "trained", if you insist) and would self-select on the basis of being busybodies.

We had a civilised society BEFORE we had a democracy, on the basis very largely of habeas corpus and jury trial.

Athos said...

I know what you mean, Dizzy... the defence tried to convince me that all the weapons, door-reinforcements and loose cash had nothing to do with drug dealing at all, even though the defendant had pleaded guilty to all the dealing charges that didn't involve Class A drugs.

I think worse than 'wanting to get out of there' is the (arguably media-created) feeling that people would rather let a criminal go free than put an innocent man in jail.

Anonymous said...

I did it once and am also very much in favour, mainly because you get people who are on the whole anxious to establish truth and justice, and who mix attention to the evidence with a good dollop of common sense. You may get people who don't want to be there, and you may also get people who simply find it difficult to make that final judgement. But it is better to involve the public in justice for the sake of the public and their understanding of how courts work, and for the sake of justice.

David Boothroyd said...

Under the Criminal Justice Act 1967, the minimum figure for a majority verdict in England and Wales is always 10 (it can be 9 if one juror has been discharged). Judges do not have discretion to alter it.

Scots law is different; a majority verdict can be 8-7.

Trumpeter Lanfried said...

A majority verdict is never accepted until the jury have deliberated for at least two hours and five minutes. Even then, many judges, especially in a complex case, will choose to wait longer before accepting a majority verdict.

Majority, in this context, means at least 10 out of 12. Nothing less is acceptable.

I think there is a risk of unjust acquittals when an incoherent defence is put forward. I would favour a system under which defence counsel was obliged to state, at the beginning of the trial, precisely how he put his client's case. At the moment the defence can simply say, 'We are entitled to test and probe the prosecution evidence.' Not good enough, in my view.

Another problem: Unjust acquittals sometimes occur when prosecution witnesses, working from memory, depart from their original statements to the police. Such discrepancies may be insignificant, but the defendant can exploit them to the full. In civil cases the witness statements go in at the outset and this might be a better system.

Annie said...

Two things are irreplacable about juries. At the end of the day, if a jury feels a prosecution is wrong, either because of its application to an individual or because it feels the law itself is wrong, it can acquit no matter how overwhelming the evidence. That ability to deliver a perverse verdict is actually an enormous safeguard for any democracy. And while it may not be perfect, many trials are fundamentally about who you believe. And I'd much rather have a group of my peers deciding if I'm lying than "professionals".

But you're right Dizzy about the issues surrounding contradictory explanations. The problem is that the prosecution and the judge, in his summing up, ought to be drawing the attention of juries to those contradictions, but too often they don't.

Anonymous said...

This is a very interesting point, Dizzy, though your example doesn't work. It's quite possible that the first witness had caused the injury which, as the medical witness testifies, isn't - anyway - as serious as the prosecution has sought to make out. If these strands were thus tied together in a closeing argument, there'd be no inconsistency. Indeed, it would demolish the prosecution's case.

Anonymous said...

After two hours ten minutes of deliberation a judge is allowed to accept a majority verdict but this will never dip below 10-2.

another juror said...

I very much agree with 'tom paine'. You do get a real 'power to the people' feeling. I saw it as a small scale referendum i.e. 'Should this kid be punished?'
I was on a jury trial in the mid-blair era. As I'm not a LAB voter my General Election vote counted little. I was quite excited to be asked to vote in something where my vote would have meaning.
I shall now talk about what did shock me in the trial: The CPS and the Police were rubbish! From day 2 of the trial the main topic in the jury room concerned the ineptitude of the CPS barrister.
It got even worse however. There was a guy sitting at the back of the court the whole week (trial started on a monday) on the thursday the detective on the case was called. It turned out to be this guy at the back. Despite having been sitting there all week he wasn't prepared, he had to apologize for not having all his case notes etc. The jury were stunned. As taxpayers we were astonished that we'd payed this guy to do almost nothing all week, and when he did have something to do he got it all wrong.
The Judge however was excellent and rightly took the mick out of the CPS and the policeman. I think 'his honour' knew exactly what the jury were thinking and was somewhat embarrassed about the impression of the legal profession we were being given.

PSJ said...

"I don't what that "some time" might have been I must admit"

It's a couple of hours, or was in both the trials I was on which ended in a majority verdict (and both cases I was in the minority).

Pete Chown said...

If all twelve jury members are still serving, a majority verdict must be at least 10-2. Anything less than that is a mistrial. The Crown would have the choice of trying again by bringing a new case, or giving up. So you are right that a small majority won't do.

Anonymous said...

Interesting post.

Not sure what your point is around advocacy though. Its worth remembering that for a case to have got this far then the person involved is neither evidently guilty - if they were really strong evidence then they'd probably plead guilty to get a reduced penalty - nor clearly innocent: barring policy and QPS stupidity, even they don't bring trials if you're clearly innocent or there's insufficient proof. What you're then left with is those cases where there is some proof, but independent judgement needed to decide. Remarkably, the random jury remains a good way to decide this - forcing both sides to get their argument across, in however complex the case, to people as simply as possible.
Generally, thats remarkably useful: it stops Colonel Blimp characters forcing guilty verdicts down the throats of others, and stops the anarchy-minded from doing the reverse.

The only downside to it - from personal experience - is the awful administration and endless sitting around. I spent a week of nearly being called in a Crown Court through a succession of trials that were postponed or the chap pleaded guilty at the last minute etc.

Little Black Sambo said...

How much longer shall we be allowed to have trial by jury?

Anonymous said...

@ lbs. Not for much longer is my fear. Just as Parliamentary elections have become meaningless and have no bearing on the actions actually taken by the ruling elite, so I fear that Juries will be seen to get in the way of executive action by Justice System professionals.

Remember the mantra: modernise, modernise, modernise! The Jury System is so old it is archaic!

So let us forget that it was invented to curb the powers of arbitrary arrest and imprisonment previously exercised by the King and his Courtiers, and do away with it. After all, what do we have to fear these days?

Anonymous said...

The system is probably not perfect, but like democracy, it is maybe the least worst option ?

I like the fact that it is biased, if a little, in the guilty going free rather than innocent found guilty. Although I do not find your argument very good, because I assume that a prosecutor worth his salt would point out those discrepancies ?

Anonymous said...

Does any of this really matter?
Jury system is slow and ponderous, it is expensive and it does not stop crime.
Crime does not appear to diminish as the total number of trials goes up.
Or is it all just a pr thing for judges and lawyers.

verity justice said...

A very interesting and for the most part re-assuring range of comments.My fiance is the victim of a false historical allegation by his son who's angry that dad left. The investigatingg officer investigated(if that's what it can be called)from a standpoint of presumption of guilt, the CPS made a decision to prosecute from a pre-conceived notion of guilt with no evidence ber the "oral evidence" alone from the boy & his mother. The CPS are seriously flawed and will take a gamble to try to get conviction rates up. that's why there are 13,000 innocent men or men on remand for crimes they did not commit in prison as at 1 Aug 2009. I have blown holes in the material we have I hope the barrister will rip it to shreds and the jury will not be influenced by the one-sised reporting and witch hunt that is happening to men falsely accused of an offence by a young person with the intent to "fit dad/teacher or carer up" It's like playing russian roulette. I'm sad and sorry to say that the police and the CPS are out of control and the abuse of power that is going on boggles the mind. My fiance and I feel betrayed by the whole judicial system. We will never trust or respect the police or the judiciary and when this is all done with we are leaving this country, never to return.