It’s an important question – after all, they have the capacity to literally change people’s lives. The short answer is – ‘we don’t know’. People generally trust that they do, lawyers generally believe that they do. Personally, I think they do – I think that they generally get it right. When clients talk about justice, I frequently remind them that they’re in a Court of Law, not a Court of Justice. Juries, however, are in a place that they can do justice and don’t have to apply the letter of the law. Most people would think that that’s a good thing.
But, what is my evidence for that? If we’re going to be honest – there isn’t any. They are a group of people who come together for the one case that they are involved with and, after delivering the coup de grace (to the trial at least) at the end, they go back to their daily lives.
We trust juries, and we may well be right to do so, but shouldn’t we check that they are in fact doing the job properly?
Why don’t we have more research?
The basic problem is s8 Contempt of Court Act 1981. This prohibits newspapers from interviewing jurors as to why they came to the decision that they did. It also, however, prohibits academics from researching juries and, even more surprisingly, the Court of Appeal aren’t allowed to properly address allegations from jurors that the jury was biased after the trial has finished.
There has been some good research done by Cheryl Thomas (with a good news summary from the Guardian here) and others as well, but I would argue that this is not sufficient, and still leaves questions unanswered. The impact of s8 looms large over any research. What can we do?
How can we do research?
If (when?) s8 is revised to allow research then this is obviously something that will help. We want to know, however, not just how juries work, but whether they get the verdict right.
This is obviously a pretty difficult area. If an academic could have full access to a jury’s deliberations, this will tell us whether they (or ‘it’, I’m never sure if a jury is ‘they’ or ‘it’) approached the task properly. It won’t be able to help us with the crucial question of whether the jury was correct.
We could ask the Judge and the lawyers if they agree with the verdict, but that is hardly foolproof. What about asking the Defendant? Again, you might not get a completely reliable answer …
Realistically, we will never know with any regularity whether juries give verdicts that are correct. We can, however, see if they are consistent. The advantage of that is that if juries are consistent then that should give us faith in the jury system. They may, of course, be consistently wrong, but this would be an important check.
A possible suggestion
One way we could do this is by the use of mock juries. These suffer, of course, from the problem that it’s never quite the same as using a real jury.
What I would do however is to get 24 random people and split them into two groups of 12 and then head down to the local Crown Court. They would swear the oath and sit in the public gallery in their group for the trial. When the jury comes into Court, the ‘shadow’ juries would as well. When the ‘real’ jury left for a point of law, so would the other groups. They would hear everything that the actualy jury heard, no more and no less. And when the jury went into retirement, so would they.
The point would not be to analyse how they came to their decision, that would be private, but rather whether different juries come to the same conclusion given the same conditions – evidence, advocacy and summing up. We would then be able to collect data from three juries (the real one and the two mock ones) as to whether they agreed – actually two sets of data comparing the two mock jurors and then adding in the real one. Further, because of majority verdicts, we will be able to make more comparisons at the ‘micro’ level in relation to jury numbers.
I haven’t done the sums as to how many times this would need to be done to have a statistically significant sample, but say this was done 100 times. If juries are as good as we claim (and hope) then wouldn’t we expect a near 100% level of agreement between the juries? What level of disparity is acceptable?
As I said, I do believe in juries, but there should be no sacred cows. We live in the modern world and, in the modern world, we should make decisions based on evidence. The research to date is very useful, but I would suggest that whilst we will never know for sure if juries get it right, if we at least know that they are consistent, this a huge step forward. If the evidence were to show that our two sets of mock juries differed in their verdicts in 50% of cases, then shouldn’t that give us huge cause for concern? This would seem a useful piece of quantative research that could give us some good insight into juries, whilst staying within the confines of the Contempt of Court Act.
Note – Apologies if this has already been done – I don’t think it has, but can’t claim omniscience in matters legal. If it hasn’t, and the MoJ want to fund it, I’m happy to crunch the numbers for them!