Is the jury out? An author of a book on the system, makes the case for the defence
The remarkable list of questions passed to the judge in the Vicky Pryce case has prompted serious questions about whether 12 members of the public are really the best people to dispense justice. But what are the alternatives?
Thursday 21 February 2013
We shall probably never know why the jurors in the Vicky Pryce trial found it so hard to reach a verdict, even by a 10-to-two majority. To report or even discuss what goes on in the jury room is against the law. As for the eight women and four men who were so witheringly discharged by the judge on Wednesday, it is unlikely they will want to attract any more attention to themselves. Mr Justice Sweeney accused them of demonstrating “fundamental deficits of understanding”, the likes of which he’d not come across in 30 years of criminal trials. In other, less judicial words, they were very stupid indeed.
Certainly this jury must have tried everyone’s patience. On the face of it, the issue was straightforward: did Ms Pryce, while still married to Chris Huhne, willingly agree to take his speeding points or was she coerced into doing so? Yet after a stream of directions from the judge and more than three days of deliberation, which would be an unusually long time even in more complicated cases, the jury submitted a list of 10 questions that plainly struck the judge as shockingly naïve. Prosecuting counsel Andrew Edis, QC, was also provoked to comment: “This jury is struggling to understand their basic task.”
Well, as someone who has been on several juries and also written a book about the jury system, I must tell Andrew Edis, QC, that jurors often do struggle to understand their basic tasks. After all, they are ordinary members of the public drawn from widely different backgrounds, most of whom have not been inside a courtroom in their lives. Some may not have been born in this country. Others may never have passed an exam. Yet amazingly enough these unpaid, untrained, randomly picked, involuntary volunteers, who are suddenly required to pass judgment on a fellow citizen in sometimes very disturbing cases, nearly always rise to the occasion. A large majority of judges, lawyers and police agree that most jury verdicts are just, or at any rate reasonable, in light of the evidence. And only in about 1 per cent of trials do juries fail to reach a verdict.
No doubt Mr Justice Sweeney was right to consign this trial to that tiny percentage. The jurors themselves seem to have despaired of reaching a verdict. Yet perhaps he was ill-advised to dismiss them in the way he did, effectively branding them a bunch of nincompoops. This will have strengthened the hand of detractors of the jury system, who see it as time-wasting, expensive and too dependent on the feckless and ill-educated (though that criticism is out of date, now the professional classes, even judges, can no longer wriggle out of jury service). Worse, it could make first-time jurors even more nervous about going to court, if they fear they might be publicly derided for “fundamental deficits of understanding”.
The first difficulty for many jurors is taking responsibility for any decision at all that will seriously affect the stranger in the dock. We live in a society which discourages us from being judgmental. Yet here is the judge, alarmingly robed and wigged, insisting that not he, who knows the law backwards and can speak Latin, but you, an ordinary bloke off the street who doesn’t quite know the meaning of “the burden of proof” or “hearsay evidence”, must do the judging. The jury system is massively popular as a concept. But experienced up close, in the jury box, under the judge’s beetling eye, it can be daunting.
The fear of getting it wrong might be one explanation for Judge Sweeney’s indecisive jury having peppered him with so many questions. After all, since the defendant admitted taking her ex-husband’s speeding points, the verdict hung not on her actions but on her state of mind – not an easy matter to assess. Hence, maybe, the jury’s request for further guidance regarding what inferences they might draw from the evidence, how far they might speculate and what exactly the judge meant when he defined marital coercion, in not altogether quotidian English, as “her will was overborne”. These are the sorts of questions any jury might ask itself – though not usually put down in writing for the judge to answer. In this instance the jurors were perhaps too nervous, or punctilious, to settle matters for themselves.
The question that drew particular sneers from court reporters was: “Can you define what is reasonable doubt?” Actually, it is a reasonable question. When I was a juryman on an Old Bailey kidnap trial some years ago, we discussed it a good deal. After all, does “beyond reasonable doubt” mean “beyond a shadow of a doubt” or is it closer to “almost certainly”?
If you think about it, our system allows majority verdicts, yet a majority verdict is one which by definition has raised a reasonable doubt, an alternative theory. “I’m not asking anyone to accept it,” argues the eighth juror in the most famous of all jury dramas, Reginald Rose’s Twelve Angry Men. “I’m just saying that it’s possible.”
A high court judge I spoke to when researching The Juryman’s Tale said he used to explain to juries that what was meant was “a doubt for which you can give a reason”, but the much preferred present practice is for judges not to use the phrase at all. Instead they say: “You must be satisfied so that you are sure.” Defence lawyers, however, still adhere to reasonable doubt – which should tell us something about which side it might be thought to favour.
The doubts which paralysed the Pryce jury were not just about the facts. They were also about procedure, despite the judge’s best efforts to explain.
One of the most powerful reasons for believing in the jury system is that it compels the judge and the lawyers to address their words to ordinary people in ordinary language, which thereby includes not just the jury but also, more importantly, the defendant and the witnesses. One instance of deficient understanding should not undermine our faith in the jury system itself.
Trevor Grove is the author of ‘The Juryman’s Tale’ (Bloomsbury)
Trial and jury worldwide
There is no jury in South African courts. High Court cases are heard by a judge, or in the case of very serious crimes a judge and two experienced advocates or magistrates.
Members of the public can be selected to act as “saiban-in”, or lay judges, who work alongside professional judges to determine guilt and set sentences.
Everyone accused of a crime punishable by more than six months in jail has a right to a jury trial. However, unlike the UK, jurors can be vetted by both prosecution and defence.
Juries are only used for very serious crimes, in which nine jurors assist three investigating judges. The country is currently experimenting with the use of citizen jurors in trials for lesser offences.
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