Are Jury Trials Fair and is it Time to Scrap Them?
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
Trial by jury is for some the most important part of most justice systems; the right, should you be accused of a criminal offence, to be tried by your equals.
To others it is an expensive way of putting incredibly important decisions into the hands of 12 ordinary men and women who do not fully understand what is going on and would rather be at work. Questions about whether we should have a jury system and for which crimes ask what kind of justice system we want – they ask whether we trust judges or ordinary people not to make decisions based on prejudice, and whether the whole of society should be involved in dispensing justice.
A jury of your peers? Representativeness and cohesion
The idea of a jury trial is that you are being assessed by your ‘peers’; people from your community who judge you based on the morals of your society. Rather than leaving judgement to someone who doesn’t necessarily live in the ‘real world’ or an arbitrary State, the jury system should make sure that the law is applied in a way that fits with what society would expect. The law is full of terms such as ‘reasonable’ and ‘proportionate’, and it is left to representatives of society – the jury – to give that term an actual content that fits with our normal understanding of the terms and of acceptable behaviour. This of course assumes that if you get 12 people together to agree on what would be a ‘reasonable’ reaction to a certain situation, they will generally come to the same conclusion each time. Or, at least, that most juries would decide not to convict in those situations on which there is some disagreement. This all however assumes that there’s a consensus in society on what makes reasonable behaviour or what constitutes ‘really serious harm’, so that asking only 12 people will usually end in very similar results each time. Is this the case? In a country where we stress how important multiculturalism is, and where migration is relatively common, can we say that we trust any group of 12 people to represent the general consensus of the population on issues like these? Can we even say that there is a general consensus for them to represent? It’s also worth thinking about whether we can trust juries to make decisions which aren’t based on prejudice, whether that’s based on the defendant’s appearance or background or simply assuming that they’re guilty because they are being charged. Kasim Davey was jailed for being in contempt of court when he posted this online about his jury service:
“Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to F*** up a paedophile & now I’m within the law!”
At a time when sexual grooming and assault is very much a public issue, not to mention tensions about immigration, is it fair to assume that a juror will start a case completely open-minded about the person sat in front of them? Then again, we should always remember that the alternative is to put our trust in judges not to make the same mistakes – that is, possibly to trust only one person whose background may be far less ‘normal’ than the jury. Judges are at the end of the day still human, and may hold the same old-fashioned or illogical beliefs as anyone else – whether they realise it or not. They may be trained to check that they are not doing this, but prejudice can run deeply. A strong example of how difficult it might be to find a representative jury, or even to have a cohesive enough society to have a jury system at all, is that of South Africa. Juries were abolished in 1969 because the all-white jury system was seen to be prejudicial towards black people, but a mixed race jury would have been a political impossibility. Where a society is particularly divided, then, a fair jury might well be highly unlikely in reality. So perhaps in those countries where it is possible to organise relatively unbiased and cohesive juries we should allow them, if only to make the point that whatever differences there might be between members of society we can come together to dispense justice. It makes the conviction really mean something because the people are responsible for the conviction, rather than simply the State.
Engagement and quality justice
Even if we say that it is good for everyone to play a part in dispensing justice, there are always going to be questions about whether a jury will secure the fairest possible trial. This is a natural concern given that jury duty is compulsory, cases can go on for weeks or even months, and the law can be horrendously complicated. However much the barristers and judge may try to simplify things for juries, in the end it is the case that many complex trials will last a long time and deal with highly technical issues of fact and law. There is a reason you have to undergo so much training to be a barrister or judge! The jury that was dismissed in the Vicky Pryce case for having an inadequate understanding of the issues was roundly mocked as being too stupid to understand the issues at stake. However there are very definitely two different elements to consider. Firstly, are juries going to be able to understand the process and be able to engage with the information presented to them? It’s been argued that the apparently ignorant questions asked by the Vicky Pryce jury show them really trying to get to grip with complex issues, and that perhaps some of the questions were just the jurors making a point to one particularly stubborn person (such as whether you could only rely on evidence given in court). The jury is asked to determine questions of fact whereas the judge deals with questions of law, so the idea is that the jury only needs to understand the particular issues presented to them and on which they ought to be able to come to a decision. Then again “In 2010 a Ministry of Justice study found that only a third of jurors fully understand the judge’s directions. And in Nottingham nearly half admitted not understanding them at all” (see here). It’s difficult to know whether worrying about jurors’ intelligence is a bit too close to snobbery or a genuine concern, and perhaps this study suggests the latter. That may be taken simply as a sign that the legal system is too complex though; would we rather just leave justice to the middle class?
The second issues is however whether jurors want to engage fully in the process – they might be bored, or cross at having to miss work, or simply not care about real justice and are instead willing to let their prejudices decide their opinion before they begin. Firstly, this is why we have 12 jurors. If a couple of them are willing to spend a fraud trial doodling, then they will hopefully at least have the good grace to agree with the conclusion reached by their fellow jurors. Secondly, in fact jurors will on the whole get very involved in the issues at stake. If you ask someone who has done jury duty, they are likely to say that they found the deliberation process was actually full of very in-depth discussion and that the jury was very serious about reaching the proper verdict. It is difficult not to take things seriously when you know that you have to go back outside and tell the defendant and the victim (and/or their family) what you have decided. The questions asked in Vicky Pryce’s case might then be used to demonstrate just how clear the jury wanted to be on the meaning of the terms they were using. It’s important to remember that when we think about bored or confused jurors that many trials are dealt with in a few days, or shorter. We might have concerns about year-long fraud trials that deal with complex financial instruments, but this is far from the norm. We could always simply alter the trials that we have juries for – the law has for instance recently changed so that juries are less regularly used for defamation cases. And we don’t have juries for contract cases; our legal system really tries to limit juries to those cases where they are going to add to the fairness of the trial.
Fair trial in a modern era?
The arguments above are about as old as jury trials, and they seem not to have had too much of an influence on the fundamental principle that every person deserves a jury of his or her peers. However, technological changes are beginning to cause problems which might make us ask how well the jury system can work in the 21st century. [pullquote]We can only wonder how often a relatively low-level case is influenced by a juror or two quietly finding out that the defendant has a criminal record and simply making his or her decision based on that fact.[/pullquote]The traditional bar on jurors actively looking for information about a trial, or making their own investigations, comes under increasing strain now that the Internet makes it possible to look up at least some amount of any person’s history, or to find out fact-specific information about the case that might have been much harder to find out pre-Internet. Theodora Dallas was jailed for telling her fellow jurors that she had discovered online that the defendant had previously been convicted of rape. A retrial had to be ordered due to her activities too, which obviously also causes more resource consumption for the justice system. The UK has now specifically made it illegal for jurors to do extra research about a case online, demonstrating a concern both about the rules having previously been unclear and the fact that it is ever so tempting to do a bit of extra investigating online. A particular concern is high-profile cases – when wild speculation about well-known cases can be found online, it is obvious that jurors should not be paying attention to anything other than what is said in court. The reason for South Africa’s lack of a jury system has been explained above, but it is to be hoped that Oscar Pistorius being tried by a judge and two amici makes the process less worrisome as far as influence is concerned- those dealing with the case are professionals who really understand the importance of not looking up information about the trial online. We might ask whether Rolf Harris’s case in the UK has been treated quite so well; there is enough information online that there would obviously be a temptation for the jurors to take a look at some of it. These concerns are of course more a question of degree than anything; the newspapers will still be full of stories about current big cases and it has always been possible to get a message to a defendant one way or another. The ease with which jurors can now access information or post messages online without even thinking about it does however need consideration. Is it even possible to enforce such a strict ban? The well-known cases are ones where the juror tells their fellow jurors about their findings, or asks a suspicious number of questions; we can only wonder how often a relatively low-level case is influenced by a juror or two quietly finding out that the defendant has a criminal record and simply making his or her decision based on that fact.
At what price justice?
As always, practicalities can be as important as principles. We may well decide that in the vast majority of cases the use of a jury is an addition to the legal system and that it is good for society to collectively be involved in the administration of justice. However, it does take people out of their work for sustained periods and the system does cost money. In the UK jurors are not paid for their time off work by their employer, but they are able to claim expenses for travel and food (including £5.71 for lunch per day). Organising jury summonses obviously also costs money – in postage if nothing else! – and deliberation rooms make courts larger, therefore requiring larger premises (with higher land or rent costs) for courts. This might all sound like penny-pinching, and for many the cost of a jury system is irrelevant because the right to a jury trial is fundamental, but for those to whom the cost is an important factor in the debate we do have to ask what price we are willing to pay for this system. It is not uncommon to have to sit in court for two weeks without ever being called to sit on a case, not least because of the number of trials which are cancelled at short notice. It does have costs for the economy and the State, even though we might disagree about whether that’s a relevant factor in our assessment.
The big question – what is criminal justice about?
In almost every aspect of this debate is the balance between whether a set of trained professionals is more likely to reach the ‘right’ answer than a group of ‘ordinary’ individuals, or whether there is something more fundamental at stake about who is best placed to be in charge of justice. Some would say that the jury system is important because it emphasises the fact that the criminal law is about the State and society setting rules of conduct. Some elements of these rules (such as reasonableness) have to be applied by that society in order for them really to be fair, and to be an expression of society or the people rather than the government. It should not hold us to a standard that most might never reach, and a jury is a good way of testing that. Another aspect, very much part of the right to trial by jury being introduced in the Magna Carta, is that we should be (or at least were) worried about excessive State power. A jury should then prevent laws being enforced with which the population do not agree. Clive Ponting was cleared of breaching the Official Secrets Act when he acted as a crucial whistleblower during the Argentine crisis, despite a direction to the jury that they ought to convict him and the case being clearly made out. The fact that this case comes from 1985 might make us question how necessary it is for the people to constantly provide a check on state power, but if Edward Snowden has taught us anything it is that nobody should ever be complacent about the State. Jury service can be seen as a way of ensuring that society is involved in the administration of justice, and that we are well protected from the state.
The alternative starting point is that the ‘right’ answer is the one which a group of trained experts is more likely to reach. We are dealing with people’s lives here; whether life imprisonment, the work they can undertake in the future or even in some countries their life. Would you happily entrust your life to the first 12 people who pass you on a street on a Monday morning? Do we not want to make sure that the most skilled people we can persuade to take part in the criminal justice process should be the ones making these decisions? Is it enough for them to simply have a role in this process? We might say that the jury, even with their limited duties of deciding questions of fact, are given too much power – after all, they don’t have to explain the reasons for their decisions. Maybe it is enough that the police and prosecution service will make their decisions on who to prosecute, but that doesn’t prevent the danger of someone walking free against whom the State had made a watertight case. So some would say that when we are dealing with people’s lives, not just those of the accused but also all potential future victims, that we should always prioritise making that call correctly in light of the current law. You are unlikely to get two people who start from these two assumptions to ever agree on a model criminal law system, even if they might compromise on a jury panel made up mostly of ‘ordinary’ people with experts to guide them through the process. There are always going to be arguments about how desirable a system is which leaves crucial decisions to a small number of ‘ordinary’ (and therefore possibly bored, stupid, lazy or prejudiced) people. The alternative, however, can be just as easily stated in such derogatory terms – leaving those crucial decisions to a group overwhelmingly made up of white, middle-class Oxbridge- or at least university-educated men with no ‘real world’ experience (see a breakdown of the judicial demographics here). However, what is perhaps most important to remember is that the examples I have given will be well-known to anyone who has ever seriously looked at this issue with a UK perspective. In the majority of cases, the ‘twelve angry men’ are in fact a group of people representative of society who take their role in the administration of justice very seriously indeed.