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.