Why jury trials need a serious rethink – Part 3: Behind closed doors

By city_jumping

After all the lawyers and witnesses and experts have had their say, we send away our jury, with varying degrees of understanding of what they’ve been told and how much weight to put on it, to deliberate and reach a verdict.

The next problem is: what goes on in the deliberation room?

“Some animals are more equal than others”

Anyone who’s tried to organise anything that requires a large number of people to agree on one outcome – whether it’s a group holiday destination or, say, impeaching Trump – knows that there will always be some voices that are more dominant than others.  That might be ok (albeit less than ideal) when it comes to choosing between Greek islands for a hen do.  It’s certainly less so when you’re supposed to be agreeing on an objective truth, let alone one that fundamentally affects someone else’s life.

It’s naive to think that all twelve voices will be heard equally.  Whether intentionally or subconsciously, it’s easy to see how some views will carry more weight than others, whether because of the age, gender, education or experience of the individual.  Quieter or more timid jurors may feel anywhere between “encouraged” to “peer pressured” to simply “bullied” into making a decision.

Or they may be influenced by one or two particularly convincing or charismatic individuals – at the extreme, for example, while Obama was dismissed as a potential juror, it’s hard to believe that Oprah’s effect on her fellow jurors during a murder trial was just that of an average person off the street… Other respected or simply more eloquent individuals (whether because of their profession or other social standing) of less than celebrity status may well have a disproportionate amount of influence.

Or some jurors may simply cave in order to get things over with – whether because jury service is a huge financial strain for them, because the case is causing overwhelming stress, or any number of other reasons unrelated to the evidence they’ve seen.

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Triers of fact

A jury is supposed to reach a conclusion based on the evidence.  But what if, for any number of reasons – whether because they’ve misunderstood the evidence, because one side didn’t express the point clearly enough, or because the jury simply drifted off or ignored the argument – the jury bases its verdict on a completely impossible scenario or some irrational leap of logic?

For example, where the evidence shows that the defendant could not physically have been at the scene at the time the prosecution is claiming, but the jury decides to convict based on tenuous circumstantial evidence?  Or despite a judge’s instruction not to take certain facts/arguments they’ve heard into account, the jury is nonetheless (consciously or otherwise) swayed by those factors?

There’s no guarantee that the conclusion reached will be a reasonable one.

The first rule of Fight Club jury service is…

And even all the issues we’ve talked about so far wouldn’t be as devastating if either side could clearly identify and appeal any misunderstandings/misconduct in the jury process.

But jurors cannot, even after the trial, discuss what happened during their deliberations.  Unlike in the US, they cannot disclose how or why they arrived at their verdict.  No matter how surprising or impossible the outcome may seem – to either side – you can’t go picking apart what exactly happened in the jury room, however benign your intentions.  Good luck appealing a decision on the inclusion or exclusion of evidence that you can’t fully prove was material to the outcome, because you have no idea what the jury took into account and what they ignored.  Good luck raising a procedural issue, whether it’s a sleeping juror or potential discrimination, when you can’t definitively show that this had any impact on deliberations.

Sure, a judge may well be susceptible to similar flaws and biases.  But at least – in theory – you have a reasoned judgment to challenge, not the two-line conclusion.  There may be issues with the logic here too, but there’s also more accountability.

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What next?

I’m not saying that the answer is to abolish jury trials altogether and only use judges.  I can imagine that the likelihood of unconscious bias may well be higher when dealing with one single judge (drawn from a more homogenous set of individuals than the potential jury pool) compared to 12 jurors.  Besides, although judges have been trained in how to assess evidence and testimony (I mean, it’s literally their day job), one academic I discussed this with raised the concern that judges are more likely to be “case-hardened”, which can lead to a certain scepticism towards defendants, taking us back to a problem of (unconscious) bias.

So what’s the answer?  Answers on a postcard (or at least, in the comments below).  For my part, I can’t profess to have anything quite resembling a solution.  But – for what it’s worth – here are some thoughts on where we might start:

A more diverse jury pool?

One thing to try – in order to minimise selection bias – would be expanding the pool of people that can be called up (so it’s not just those on the electoral registers) and ensure that jurors are better compensated for service – whether directly or via employers.

A trained jury panel?

I’m not suggesting a “professional” jury as such – which would effectively lead to the same “case-hardening” issues that arise with judges.  But the idea of having some kind of training in the role and the kind of evidence and procedures they are dealing with is – to me, at least – an appealing one.  So how about, instead of minimum two-week stints, juries serve for longer periods – say 3 or 6 months?  Sufficient time, in any case, that would make providing some basic foundation on the nature of their role a justifiable investment.  I’d think I’d have more faith in verdicts reached by jurors with more than just a few lines of jury instructions to work off.

Of course, this is predicated on jurors being sufficiently compensated during this time (see point 1 – otherwise we’d run into practical and selection issues all over again).  Clearly, I don’t know how the economics of it all would work out in practice.  But at least the reduced jury turnover rates would minimise the huge amounts of admin that must be involved in calling up and processing new jury members every two weeks?  That, and the significant inefficiencies in the current system that leave potential jurors sitting around, sometimes for the entire period of their service, without being called up for a single case.  Optimistically, I’d hope that streamlining the current process would provide the resources to invest a bit more in improving the quality of jury trials.

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Question time?

Obviously, there are time constraints and there are sound reasons for not wanting a “free-for-all” in the court room.  But perhaps there should be a more systematic way of allowing juror questions, particularly after expert testimony, to minimise the risks of misunderstanding?  It could even be a maximum of two or three questions, pre-vetted by the judge – if necessary – to ensure they are relevant and seek only to clarify their understanding of the evidence.

Jury “judgments”?

One final (and very speculative) thought – in full appreciation that it is a long shot, and perhaps obviously fatally flawed in a way I haven’t quite thought through yet… In giving their verdict, would it be possible for the jury to set out, however briefly, on what basis they have reached this conclusion.  For example, if they were to find a defendant “guilty”, could they set out what they concluded happened?  “The defendant turned up at X location at Y time and shot Z“… or something along those lines, whatever the case may be?  Not so that any challenge would be made against the jurors themselves, but so that both sides have an indication of – in the event of a subsequent appeal on a procedural issue – what evidence or testimony was determinative?

Perhaps it will be difficult for the juries to agree on the exact set of facts – but isn’t that precisely what they are supposed to be doing?  On the one hand, if they are already doing it, setting it down in a couple of concrete sentences should not take that long.  If, on the other hand, that’s not how they are currently thinking – and are instead basing their decision on a vague notion of the defendant’s guilt or innocence – surely, at a minimum, this would encourage additional critical assessment of the facts?

And what if they all agree the defendant is guilty, but some believe it happened one way, and others believe it happened differently?  Well, to the extent that the irreconcilable ambiguity in itself isn’t sufficient to constitute “reasonable doubt”, I can’t see why the “judgment” couldn’t set out both (or however many there are), each in the alternative.

Perhaps this is going too far.  But, for my part, I don’t see why the ideal of having an open and transparent justice system suddenly stops when it comes to juries.

Maybe you have other suggestions, have picked up on (inevitably) some obvious flaws in mine, or think I’m being overly pessimistic about the system generally?  Whichever it is, I’d love to hear your thoughts!

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