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Jury trials

16 May 2012 9 Comments

jury trials e1337175289935 150x150 Jury trialsWest Coast Surfer / Mood Board/Rex Features
By Edward Cole 

There appears to be an emerging consensus on Halsbury’s Law Exchange that jury trials are a good thing – see previous blogs here and here. This may be so, but the four mainstream arguments commonly advanced to support jury trials, and repeated in previous articles, do not stand serious scrutiny.

The first argument is that because jury trials have been part of our history since (at least) Magna Carta, they are at the core of our system of justice.

The fact that justice involved people like jurors since before the Norman conquest, and both Saxon law and other Gothic laws, as reflected in the various 6th and 7th century codes, knew of people fulfilling a similar function, is clearly indisputable. Of course, the right is mentioned in Magna Carta, and obviously, we still have juries in criminal trials today. Regrettably, for this argument, the similarities end there.

The function of a jury in medieval England and earlier was very different to a jury today. The purpose of a post-Norman jury, in the relatively undeveloped, uncodified, legal landscape, was twofold. First, it was, in part, to define what the law was, by reference to the norms of the local society and standards of behaviour. Secondly, it was to establish, by personal knowledge of a defendant, whether the defendant had committed the conduct complained of. So the function of an early jury was mixed. It was partly to determine the law, and partly to establish guilt, based on personal, prior knowledge. That was well suited a sparsely-populated, atomised network of small agrarian communities, where there were no professional judges and, until the high medieval period, very few accessible lawyers. Justice in manorial courts, or other local assemblies, was suited to that individual community, and the role of the jury in deciding where moral standards lay (both in criminal and civil law) was appropriate, efficient and necessary, and it functioned well. However, that system is utterly dissimilar to the role of the modern jury.

In the modern jury system, a group of strangers are asked whether a person did or did not commit certain acts. They do not bring a personal knowledge of the defendant and his character into the court. They are not required to comment on the law – it is expressly not part of their function. Their function is not, and should not be, to decide what the law is – it is simply to answer the question, “did the acts in the indictment take place as alleged?”

Accordingly, those who rely on the argument that the jury system has always been part of English justice, and praise it accordingly, deliberately downplay the huge void that separates a modern jury from its predecessors, and keeps silent that the jury as we know it is a comparatively young creature; as an independent body tolerably immune from judicial suggestion and other influence perhaps about 300 years old. Therefore, what we would recognise as a jury has not been present throughout our legal history. Further, juries were quietly dropped from most common-law courts. Can it be said that litigants no longer find justice there as a consequence? The civil courts seem to function with perfect ease and justice without them.

The second argument is that juries’ real world experience makes them much more reliable judges than, well, professional judges. It is often repeated that juries bring a bit of “The Real World” into the courtroom. What does this actually mean?

The job of a jury is, as should be well known, to decide, on the evidence, whether specific events took place. No more than that. They are not aggrandised by being given a despotic function, higher even than Parliament, and far more arbitrary than the span of any Chancellor’s foot, to decide whether a particular deed, established on the evidence before them, should attract criminal liability in the case.

It is often said, in mysterious tones, that juries bring “something extra”. Is that an ability to appreciate the facts? That’s rarely how it’s put. It’s more usual to praise jurors for “understanding” the “difficulties” of, for instance, “inner city life”. In other words, they are reluctant to convict, when they know incriminating facts are established, because they empathise with a defendant. If so, it is entirely out of place in the courtroom. If juries do decide that they have the ability to allow guilty people to go free, then the something extra that they bring is dangerous, undemocratic, and should be thoroughly unwelcome.

The third suggestion is that judges are not really independent, as they are employed by the state, but juries bring a little required independence.

This too is untrue. The independence of the judiciary was principally established and enshrined in the Bill of Rights. True, they are appointed by the Queen, and are paid by the government, but they are functionally independent, with fixed salaries and immune from dismissal. Private or more independent judges would, if our historical experience is anything to go by, be worse. The fact that they are effectively salaried employees, no longer able to exploit the inherent expense of the legal system to their own advantage as, perhaps a Richard Rich or an Eldon might have done, are long gone, and we should be thankful. The same is now, of course, true in the Magistrates’ court, reformed from the forebodingly named Police Court. However, this should not be confused with the lie that because judges (who are not born as middle aged conservative hanging-judges, but will have spent long careers at the bar defending criminals, and so will have more than enough experience of “the real world”, and probably more, in reality, though vicariously, than any juror) are not capable of deciding impartially whether given facts have taken place.

Consequently, it is suggested that three main reasons cited in support of jury trials: (i) their historical links to the past; (ii) that jurors bring something valuable with them into court; and (iii) that judges don’t have the independence to make honest decisions, are not, really, good reasons to support jury trials.

We in the blogosphere should not make the mistake of converting a defence counsel’s perfectly correct conclusion, so fulfilling a proper duty to do the best to his client in an adversarial system, that a jury will be more lenient than a judge, into the lie that a judge will reach a less honest result than a jury. It is true that juries reach more lenient results than judges. But the only way that can reasonably be rationalised is that juries let defendants escape criminal liability where the facts sufficient for conviction are established. If so, then it is not the judges that are at fault, and it is the law-abiding majority that suffer.

The fourth primary argument in favour of juries is that it is not possible to convert a jury’s function into a mathematical formula. That is a desperate, defensive line: it appears common sense that a group of people are not as likely to err as a single person. Sadly, that isn’t supported by statistics. That rather embarrassing statistical fact has long been recognised. In fact the very phrase that the role of the jury shouldn’t be analysed mathematically appears in (one of?) the first histories of jury trials: Forsyth, History of Trial by Jury (1874) has this to say, having set out several different formulations, and discovered that mathematical probabilities cannot defend jury decisions by improving their reliability – in fact adding nothing in terms of reliability over the opinion of a single person.

“… this, I think, shows the fallacy of attempting to draw any practical inferences from such calculations. No one can seriously believe that if there are twelve persons who are each as likely to be right as wrong, and eleven of them agree in the same opinion against one dissentient, the probability remains still as great that they are wrong as that they are right; and yet that is the consequence which flows from the above mathematical formulæ.”

In other words, “to hell with the evidence, we know what result we want, and we won’t be told otherwise!” Alternatively, because your instinctive opinion has been shown to be wrong by hard mathematics, you must be right because you knew what was right all along. That sort of argument is much more like faith than reason, which is the role of a court. Some have argued that statistical science is not relevant to the issue, or to the law. This is quite misguided. Statistics has a huge role to play in the law, as the Roy Meadows cases demonstrated. The fact that the statistics in jury cases are less-headline grabbing doesn’t mean that we shouldn’t analyse them critically. The mathematical fact is this: juries do not result in safer convictions by the laws of probability.

In addition to the above arguments, which address some of the positive arguments advanced in support of jury trials, there are some good reasons why jury trials should be restricted.

First, not all cases are suitable for trial by jury. In particular trials involving carousel fraud, and financial frauds, are beyond most jurors, both in terms of their complexity, and in terms of the time necessary to hear them. It would not be fair to remove a juror from their normal occupation for an extended period of time. A panel of experts, such as the experienced mariners at Trinity House used to try wet shipping cases, would be far more suited to the needs of financial and tax fraud trials. (It had, in fact, been recognised as early as Mansfield’s day that fraud was best tried in equity than at law, which demonstrates that this generation is merely reinventing the wheel in discovering the limitations of jurors).

Secondly, if juries were dispensed with in criminal trials, the rules of criminal evidence could be greatly streamlined. As judges are well used to discounting evidence they know to be of no probative value, the great amount of time devoted in criminal courts to rules of evidence would be vastly reduced, to more resemble civil evidence. The ability of the courts to deal with cases more quickly and efficiently, would be much appreciated given the great burden of cases. Additionally, legal fees would be more affordable, as less work would need to be devoted by counsel to rules of evidence. Perhaps more people, on the margins of being able to afford a private defence, could do so.

Thirdly, if the court system itself were not burdened with the provision of facilities for jurors, it would make a huge saving, which might be reinvested into something arguably more productive, like the reintroduction of universal legal aid.

There are doubtless many other reasons for ridding the criminal courts of jurors, and many in support of them. The aim of this post has been merely to question whether some of the most frequently articulated reasons for supporting the role of jurors are in fact good reasons for doing so.  Regrettably, it has concluded that they do not. 

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Related posts:

  1. Trial by jury: the importance of “ordinary” jurors
  2. Don’t scrap the jury!
  3. Rape trials: what needs to change?*
  4. Historic abuse trials: are memories reliable?
  5. Rape trials and post-traumatic stress disorder

9 Comments »

  • Chris said:

    I think Penny Darbyshire summed it up over a decade ago saying “The symbolic function of the jury far outweighs its practical significance.” [1991] Crim LR 740

    As for fraud, Levi’s The Investigation, Prosecution and Trial of Serious Fraud (at least the bit I’ve read from N.Padfield’s book on Criminal Justice) highlights the difficulties of any alternatives to a jury.

  • Karen Sosa said:

    Really enjoyed this, thanks for writing. Haven’t seen much in the way of strong, well-reasoned arguments against the jury system, and, as you demonstrate, there is certainly an argument to be made there.

  • HT said:

    There are no doubt a few practical benefits that would derive from scrapping juries. Chief among them would be lower costs, meaning funds could be directed to legal aid (though most likely simply lost in the morass of public spending). Yet Mr Cole seems not to have allowed for anything resembling symbolism, as one of the commentators has already observed.

    The jury is a respected part of the trial process, in the eyes of the majority of the public. Not simply for the demotic aspect it brings, nor even for entirely symbolic reasons, but for the fact that having 12 people make a decision after reviewing evidence enjoys public confidence. To be sure, the same could be said for civil trials, but it is not idle to suggest that criminal law attracts greater public concern and involves different considerations than civil law. There is no heavier burden in society than being labelled a criminal. Sharing the burden of imposing that condemnation amongst the different arms involved – judge, police, prosecutors and jury has some logical justification.

  • Graham Pressler said:

    This article provides some interesting insight into the history of juries and one important factor was the evidential burden. Until comparatively recently a defendant could not call evidence on his own behalf. There were also pretty gruesome forms of (in)justice in medieval times. But in practical terms, whilst juries and the system that supports them are cumbersome and costly, I would want to see evidence that they don’t work and (importantly) a workable and fair alternative. I am not convinced that judge alone in every case would be right. It might be better to offer an alternative such as lay assessors and preserve juries for the most serious cases- but allowing judge alone if the defendant chooses.

  • HT said:

    I suppose the “workable alternative” is simply a single judge; that works even for extremely complex commercial cases, or at least there is no call for a replacement.

    I would like to make two separate points. First, there may be some justification for experts not simply to provide witness evidence but to form part of the judging panel. Mr Cole mentions the Trinity House assessors who, whilst not sitting as judges, have a greater role in wet shipping cases than simply that of expert witnesses. In extremely technical IP cases judges are sometimes out of their depth scientifically so having a panel has some justification, and indeed specialist tribunals exist such as the Competition Appeal Tribunal which includes expert lay people.

    That, however, applies more to civil disputes. In the criminal sphere the need is less apparent. Complex fraud cases could be tried by judge alone, as they are in the Chancery Division, whilst the occasions requiring other forms of complex evidence (eg ballistics experts in firearms cases) are too few and far between to warrant specialist tribunals.

    Secondly, and in response to Mr Prossler, the problem is defining how juries “work”. One might say bluntly that the issue is whether or not juries have a good success rate in convicting the guilty and releasing the innocent. Despite high profile exceptions it seems that few innocent people are convicted (often conviction appeals succeed because of flaws in police work or the trial process; that is obviously not the same thing as saying that the defendant was innocent). Whether many guilty are going free because of juries I do not know. I am not sure either is easy to determine. So getting hard empirical data showing that “juries work” or not is not an easy task.

    Nor might it be the only answer. As mentioned several times on this thread, there is more to the jury system than simply trying the cases, and it is not simply sentimental to suggest that either. It instills public confidence in the system if people feel they are being tried by their “peers” (in the non-Magna Carta sense) and it is part of the sense of community that one has a civic duty to sit on a jury if called. These factors have built up over the roughly 300 years that juries have existed in the present form (give or take) and, whilst that might not be so long in the history of Western legal systems as Mr Cole sketches out, neither is it insignificant by any other measure.

  • Edward Cole said:

    Thank you all very much for your replies. To address some of the points raised in the comments above:

    @ Chris: Quite, it’s not a new discussion: Penny Darbyshire’s comment can be read both ways as regards how important juries are.

    @ Chris and HT: As regards fraud, the suggested alternative (perhaps the subject of a different post) was having experts on the tribunal. It works well in maritime law, which is another area of technical complexity where the acts of mariners are to be judged by the standards of other more experienced mariners. Professor Levi’s report (thank you for drawing my attention to it) actually exposes the many problems that juries face in financial fraud trails (e.g. the Blue Arrow case). He writes at length about an additional problem which I hadn’t touched upon – that a blue collar juror might be unlikely to convict for white collar crime (see p.120ff of the draft report, which is available online). Levi’s report, on balance, comes out as exposing numerous weaknesses in the jury system for that sort of trial, rather than its strengths. I don’t know what Padfield has to say about it, but would be interested to know what he concludes as a result.

    @HT: I agree the public probably have a strong confidence in juries. However, I suggest, they do so mainly because there are unaware of the statistical evidence which disproves their natural feeling, that a jury verdict must be more reliable than an individual’s decision. To allow something to continue as a result of its symbolic importance, when that symbolism is based on a mistake which can easily be disproved, is difficult to justify logically. As above, if they feel juries add anything more than a statistical check on wrong decisions (which they don’t), I’ve tried to argue what they add is undemocratic and inappropriate.

    I don’t think a sole judge in most criminal trials is necessarily the answer. If it’s possible to draw a historical trend, juries were abandoned in courts where there were sufficient judges to fulfil both functions. The situation of a sole judge, e.g. in the High Court is, historically, a comparative rarity. I agree it would appear to be wrong for Crown Court trials to be handled by a sole judge, but perhaps a panel of three would be a better system (CJ and 2 DJs? That might also provide valuable judicial experience, and would still be a cheaper system to run).

    In theory, prosecutors do not share that burden of convicting (though in practice many might feel more involved) – conceptually, they only put their case before the court. Of course finding someone a criminal is a huge burden. So is finding someone bankrupt, or dismissing someone’s civil claim so that they no longer have a livelihood, or separating a family. It’s wrong to say that civil judges don’t have an equal influence on individual’s lives than criminal judges do. Civil judges are able to cope with the burden of making difficult decisions.

    @ Graham Pressler and HT. Of course the history is much more complicated than it’s possible to write in a short blog post – I only hoped to demonstrate that the link with the past wasn’t as certain as it is often expressed (quite aside from the well-known argument that Magna Carta didn’t actually provide for jury trials, and it’s often mistranslated to make the connection more substantial, which I hoped to avoid having here). The restriction on a defendant being able to give evidence was a relic of the earlier system, and inappropriate where the defendant was a stranger to the jurors. Didn’t Marshall Hall conduct one of the first defences under the new rules?

    The evidence of whether juries are ‘working’ is very difficult to collect, as you rightly identify. The sense of ‘community involvement’ in the legal system is very important, and a good ‘alternative’ justification for the system. Anecdotally, however, jury service was something that professionals were keen to avoid actually doing, at least under the old rules, and I wonder how much an individual juror appreciates the duty once called – it might be that the reactions are so different that it’s impossible to generalise. And, of course, 300 years is still a long time, but it’s not such as to make a thing sacrosanct.

  • Mark Hough said:

    Parties come to court seeking vindication and validation. They have stories to tell. They want those stories told, more often than not, to their peers. A jury trial is supposed to be a communal event, appealing to common norms and expectations. When we permit judges to hijack the proceedings, we deprive juries of the right to police the conduct of the parties. We sideline jurors and implicitly tell them that the business of justice belongs in the hand of the wise man in the robe. It’s too important for ordinary folk. We have an evidence code. Let a judge decide what is and is not admissible. There are rules of procedure determining the order in which things should be done, and giving parties the right to discovery. These are all matters of law that must be decided by someone. Let the umpires make the call on procedural and evidentiary questions But when it comes time to deciding facts, let juries decide. I say let them also decide whether the law as charged ought to be applicable. Let juries nullify a law they find unfair or unjustly applied. Expecting questions of ordinary justice to be resolved by a non transparent system is simply naive. How many men and women suffer from the unjust application of a law is even noticed by lawmakers.

  • James Wilson said:

    In my experience the actual litigants in any particular case – civil or criminal – come to court for one thing only, which is to win their case. If they win they go away satisfied and if they lose they do not. The form of system is as nothing to them compared with the result.

    Secondly, if anything the jury system is a lot less transparent than the judge-only civil process. A civil judge must give full reasons for his or her decision; a jury gives no reasons and the privacy and secrecy of its deliberations is sacrosanct. There are many arguments in favour of juries, but “transparency” is not one of them.

    I would not, however, downplay the importance of juries in instilling public confidence in the system, which is reinforced by its now 300 year history. This is not a conclusive argument, but it is one that cannot be ignored.

    Further, it may not simply be a matter of choosing juries in their present form. I understand that the Cour d’assises in France are composed of a jury of 6 jurors and a panel of 3 active judges at first instance, and 9 jurors and 3 active judges on appeal. Perhaps a similar system here (though I see no need for a jury on appeal, if the right of appeal is limited in its present fashion in England & Wales) would address Mr Cole’s concerns about the flaws of juries whilst preserving the public confidence which derives from the demotic element they involve.

    Rather like Churchill said of democracy, we may end up concluding that juries are the worst system except for all the alternatives. But I express no final view, other than to observe that Mr Cole is right to raise the debate.

  • John H said:

    Well upholstered in his barristerial (if not baronial) chambers, Edward Cole draws on his metaphorical pipe and seeks to exclude the unwashed masses from his world of doctrinal legal purity. He seems to have an axe to grind at all events.

    His piece is a reminder of how, in an age when tabloids and renegade politicians tell us constantly of how the Human Rights Act (HRA) blights our lives, the reality is that protection of our rights is needed more than ever. As has been said before about the HRA, which of the rights would you like to lose?

    Mr Cole for his part would do away with the right to trial by jury – perhaps seeing his chance because it is not expressly provided by the HRA. This ancient right of our citizens is not something which can be discarded as a costly inconvenience. Perhaps Mr Cole would prefer us to return to the day sof ordeal by water or fire. That ancient process was banned by the Fourth Lateran Council in 1215 – the very same year that the Great Charter set in stone “judicium parium”.

    In most respects we have come a long way in the eight centuries since. We have even just about discovered that we might allow prisoners the right to a say in the society which imprisoned them and into which they are expected one day to reintegrate – though there remain some who would prefer prisoners to remain pariahs and denizens of an oubliette in what I imagine might be Mr Cole’s family seat.

    Perhaps, therefore, we should be grateful to the likes of Mr Cole for reminding us that we cannot take rights for granted, and that the price of liberty is indeed eternal vigilance.