By Professor J. Waddington
Fortunately, I have escaped the obligation of performing jury service, but I know many who have been less fortunate. The stories they tell of their experience hardly fosters confidence in this institution that enjoys such a position of unquestioned pre-eminence in the Common Law criminal trial. They tell of ignorant, utterly disengaged, deeply prejudiced people, often more anxious to escape the confines of the court and resume their lives than committed to doing justice. So, it came as no surprise to learn of the collapse of the trial of Vicky Pryce on charges of perverting the course of justice in the case of her former husband, Chris Huhne.
Yet, no system can be expected to free from failure, especially one that relies so heavily on the actions, attitudes, and beliefs of ordinary people thrown together to perform an extraordinary duty. That people feel somewhat bemused by the instruction to find guilt only when the evidence is ‘beyond reasonable doubt’ is hardly contemptible. How much doubt can reasonably be entertained? Was an accused identified by several witnesses at the scene and unknown twin of the defendant? Could be! Who knows? That doesn’t strike me as a ‘reasonable doubt’, but perhaps I demand too much. From where should this doubt arise from? Should it only be the doubts advanced by the defence in court? What about the doubts that jurors feel about the trustworthiness of the witnesses they have seen? What if the defence fails to raise doubts about the likelihood of a chain of circumstantial evidence, which seems utterly obvious to the Professor of Logic who finds herself in the jury box?
Systems have weaknesses and sometimes fail. We can draw too many conclusions from solitary incidents. As natural scientists are prone to remind those of us in the social sciences: “Anecdotes can never constitute ‘data’!” So we should not fixate on Vicky Pryce’s trial, but look for a more rigorous analysis. However, a former Lord Chancellor, Lord Hailsham, persuaded Parliament to enact legislation, the Contempt of Court Act 1981, section 8 of which stipulates that “it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.” Lord Hailsham was explicit in his wish to put jury deliberation beyond the scope of inquiring journalists and researchers. In other words, it is better to cloud the institutions of justice in ignorance than to allow even the most carefully managed research to reveal its workings.
All was not quite lost, because some researchers set up ‘mock juries’ who heard evidence and then came to a decision under the watchful eye of researchers. Of course, it is difficult, if not impossible, to replicate the jury’s perspective on the conduct of the trial; the demands that can be made on research participants is inevitably less than the compulsion under which a jury serves. However Professor Vanessa Munro and her collaborators, using this approach, recently completed research into how people reasoned about the guilt of men accused of rape. The results were fascinating and deserve greater prominence in public debate on the jury system. The researchers found that people viewed the evidence through the lens of their own unquestioned assumptions of how sexual intercourse normally occurs. They also impose upon victims responsibilities (such as evidence of physical resistance) that are now accepted as utterly unrealistic and were immune to the warnings to avoid such preconceptions issued by judges.
For me, what was really interesting was that the participants in this research were relying on their common sense, which is exactly what apologists for the jury system applaud. It seems to me whilst alternatives to the jury system are no more appealing, it would be better for us recognize that it is the least worst option, not the ‘jewel in the crown’ of the criminal trial, and begin the search for something rather better.
Professor J Waddington, BSc, MA, PhD is Professor of Social Policy, Director of the History and Governance Research Institute, The University of Wolverhampton. He is a general editor for Policing.
A leading policy and practice publication aimed at senior police officers, policy makers, and academics, Policing contains in-depth comment and critical analysis on a wide range of topics including current ACPO policy, police reform, political and legal developments, training and education, specialist operations, accountability, and human rights.
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Image credit: Symbol of law and justice in the empty courtroom, law and justice concept. Photo by VladimirCetinski, iStockphoto.