Why jury trials need a serious rethink – Part 2: What happens in the court room…

By city_jumping

So, we’ve seated our (somewhat skewed) jury.  But can we nonetheless trust that they will be able to make an informed, impartial judgment?

Even with the best will in the world, it seems highly unlikely.

“Beyond reasonable doubt” 

Before we even get into how juries may assess the evidence itself, let’s look at the standard of proof.

Juries in a criminal case should only find a defendant guilty if they believe this beyond a reasonable doubt.  It’s simultaneously a very high, and pretty ambiguous, threshold – and not helped by judges in some cases refusing to give any further clarification of what this means.

In practice, a jury is presented with two versions of the story: the prosecution’s and the defence’s.  So, despite the actual standard of proof – and especially where there is no further guidance – it can be very tempting for a jury to weigh up the evidence on the basis of “which version do I believe more”?  Which basically takes you closer to a balance of probabilities.

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Confusion and misunderstanding

Cases are getting increasingly complicated, in (at least) two senses: scientific advances in forensic testing or other investigative methods, as well as potentially the crime itself (I’m thinking of cybercrime or use of other forms of technological fraud).  [I once sat in the public gallery during a terrorism trial in the Old Bailey, where a good part of the day was devoted to explaining how data was stored and the location of various servers.  Not the most fun day out.  I wonder how much the jury absorbed.]

With such complexity, the trial can also be fairly long and the jury may end up hearing hours of conflicting testimony from opposing expert witnesses.  Even assuming their best efforts (though it’s not unusual for jurors to fall asleep or simply zone out during parts of the trial – attempts to call a mistrial or appeal a conviction have been attempted on this basis, with very limited success), it’s a stretch to believe that each juror will be fully engaged and understand all the nuances of expert testimony.

It’s not helped by the use of jargon or industry-speak.  Take the term “consistent with”.  The number of cases (admittedly US ones, where jurors are allowed to talk about the case afterwords) where I’ve heard juries takes a testimony that some form of forensic evidence – whether hair, blood or even bite marks – is “consistent with” the defendant as meaning that the evidence conclusively points to the defendant, rather than its true meaning, i.e. that the defendant cannot be definitively excluded, is very worrying.  Especially in cases where that’s pretty much the only evidence – and in some of these cases, that often should leave room for reasonable doubt.  But it can only do so if properly understood.   

The problem is compounded by the limited ability of jurors to ask questions, or of the prosecution or defence to check that jurors understand the salient points.  Jurors can, in theory, pass questions to the judge – but it is then in the judge’s hands to decide if and how to deal with any such queries.

So, there’s no guarantee that – when going into the deliberation room – the jury has a complete grasp of the evidence that has been provided.

The “CSI effect”

The potential for confusion and misunderstanding may also be exacerbated by the “CSI effect”.  There have been a number of studies into the impact on juror behaviour of the increasingly prevalent forensic science-based TV dramas.

Research has shown that this aspect of popular culture can influence jurors in a number of ways, from assuming they have a thorough understanding of the science that they have seen on television (when they do not) to having unrealistic expectations of forensic evidence – and tending to acquit where such evidence is not available.

The ability of such an arbitrary factor (i.e. how much of a certain genre of TV a juror watches), well outside the bounds of the courtroom, to affect their ability to impartially assess evidence presented during a trial, is surely pretty concerning?  And that’s just one of the factors we know about.

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Unconscious bias

Which brings me to unconscious bias.  Even with a perfectly well-intentioned jury, there are so many factors that may insidiously influence the outcome.

Although the recent Lammy Report lauds juries’ apparent lack of bias with respect to race (with juries being consistent in their decision-making, irrespective of the ethnicity of the defendant), I have to confess, I think the jury system is far from able to eliminate unconscious bias.

First, even on the issue of race, studies have shown that jury bias (unconscious or otherwise) manifests more greatly in relation to the race of the victim, than the race of the defendant.  In the US for example (where, admittedly, such problems are of a wholly different order), it was found that the victim’s race rather than the defendant’s had a bigger impact on the jury.  Where the victim was white, the defendant was nearly five times more likely to get a death sentence than cases where the victim was black.  [Take note, all those who don’t understand why Black Lives Matter is a thing.]  I’d be curious to see whether unconscious racial bias could be excluded from the Lammy Report results once the victim’s race was factored in as well.

Second, unconscious bias – in my view – manifests most clearly when it comes to rape trials.  Whether it’s myths about what constitutes a “rape” (including, horrifyingly, people having notions of “legitimate rape“, as opposed to forms of rape that victims apparently shouldn’t make a fuss about), what a “rapist” looks like or how one would act, outdated and misogynist preconceptions of how victims should have behaved or any of the various methods of victim-blaming, bias on various levels can seep into the jury’s verdict.

Behind the closed doors of the jury room – there’s no way to tell how any number of these factors may have led to the verdict.  And what happens there, and after the trial, is riddled with another whole set of problems…  That’s for next time.

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