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Discussion: Juries Cannot Be Trusted to Decide Whether a Defendant Is Guilty

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Published: 18th Nov 2020

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 Juries cannot be trusted to decide whether a defendant is guilty

 Jury is considered as the battleground for the criminal process because it is used in most of the high-profile cases of fraud, murder, rape etc. The criminal process can be divided in two models described by Packer: ‘due process’ and the ‘crime control’ These models consist of challenging crime and allowing the right justice to be issued. Briefly, the ‘due process’ model was designed to make sure individuals had their rights portrayed and that they had a fair trial to defend themselves in court. In contrast, the ‘crime control’ model was established to try and ensure that weak criminal cases were dealt with quickly and “discarded at the earliest opportunity”[1]. This paper critically addresses the question whether juries can be trusted to decide if a defendant is guilty by collecting relevant facts and literature.

 There was no reliable evidence before the study conducted in 2010 by Cheryl Thomas: Are juries fair?[2] to maintain a verdict whether the juries are fair in their decisions, especially in England and Wales. The study shows that of all the criminal cases in England and Wales, juries only decide less than 1% of the cases where serious charges are alleged against the defendants such as fraud, rape etc., in the consequences of which defendant can lose his liberty. Therefore, the fairness of the jury members in their decision-making process holds fundamental significance to the criminal justice system. Anecdotal reports show that in most of the serious cases juries do not really understand the legal directions[3]. Additionally, Thomson case stimulation study[4] shows that almost 797 jurors took part in the study at Blackfriars, Winchester and Nottingham who were asked to rate at the Likert scale whether they fully understand the legal directions provided by the judge during trial. Same instructions were heard by all the jurors but 51% of them said that it was difficult to understand the legal directions, whereas 69% and 68% of the jurors at Blackfriars and Winchester felt that the instructions were somehow understandable and not so difficult.

 It has been noted that jury members do not necessarily have the legal background, thereby lack competency to understand the law in question involved in the case presented before the court. Judges are the one that help them understand the legal questions involved. In rape cases, consent is at the heart of such cases and involves inherent difficulties in determining whether the complainant has given his free and voluntarily consent or not. Even in cases, where the consent of the complainant is interpreted as free and voluntary, can also be confusing for the jurors where the same consent can be given after persuasion or reluctantly[5]. Therefore, it has been noticed that in most of the cases judges gives directions to the jurors regarding the right interpretation of consent, which is quite minimal and varies across different jurisdictions and has been widely considered as inadequate, thus criticized. This can be viewed as crime control model process. Jurors are reasonable people who sacrifice their day to attend court and listen to case facts. Deliberations can take days and be exhaustive. Thus, jurors are more likely to reach a guilty verdict in order to be freed from their jury duty, which would lead to a breach of Article 6 of the Human Rights Act (HRA)[6]: a right to a fair trial.

 In addition to this, in March 2009, several trials in an article of New York Times were revealed involving jurors accessing the internet during their process of deliberations and then blogged or twitted about their cases. One federal trial was collapsed after eight weeks when 9 jurors were found to have conducted their own research on the internet. After this, a significant number of appeals were brought before the court of competent jurisdictions. This can be more evident from the case of   Baker v. State (2018)[7], when one of the jurors sent google earth map of the crime scene to the trial judge alongside the additional research on the matter that happened on that night in question.

 While relying upon the jury trial in more serious cases, it is a well-established and known principle that while deliberations the jury members should not consider any kind of extraneous material in such cases[8](due process safeguard for the defendant). Three cases were considered by court of Appeal in which negligence on the jurors’ part pertaining to their act of conducting research on internet was the main issue. In Karakaya case[9], appealed on the grounds that one of the jury members downloaded a document on rape and then brought the same into the courtroom. It was determined from this case, that not only in rape cases but also in other cases where trail is conducted by jury, the two highly important principles are at great stake: bedrocks of the administration of criminal justice, and the rule of law. From this it can be argued that the principle of open justice that the trial judges, counsel, defendant and the public must be aware of all the evidential material that the jury is considering while deliberations. And secondly, both the defence and prosecution must have the fair and just opportunity to scrutinize the evidential material that the jury will consider in order to maintain its verdict. Moreover, judge LJ was also of the view that  jurors must not conduct their private research for gaining an insight in the case. In Karakaya[10] case the court was of the view that the two documents accessed by the juror (“The Feminist Position on Rape” and a document from website of rape crisis help line) eventually made the conviction unsafe for the defendant (due process safeguard). However, it has been argued that it is the duty of the judges to provide proper guidance to the jurors that they are obliged not to access any additional information and remains loyal to the oath that they have made till they retire and allow the common law to develop rather than amending Contempt of Court Act 1981[11] to allow research. Moreover, the major drawback of the internet research by jury in the view of Lord Steyn in R. v. Mirza[12] was:a system which forfeits its moral authority is not likely to survive intact.”

 Additionally, it is worthy to note that whatever happens in the deliberations should be kept secret. The jurors can be sent to jail for 2 years if they reveal any of the information or the details, including decisions in deliberations. While it has been argued by some of the legal experts, especially barrister Geoffrey Robertson QC, that through this secrecy the miscarriage of justice is covered up[13].

 ECHR[14] and HRA[15]grants the right of fair trial to everyone in United Kingdom. The decision of the court in Mirza case[16] which says that it is unacceptable to allow such kind of unjust and unfair decisions resulting in the conviction of defendants just to protect the jury system is alarming. At this instance, Haralambous goes with the opinion of Lord Steyn that juries must be investigated and condemns the complete refusal to investigate the deliberations of the jury members that could potentially deprive the defendant from his fundamental right of fair trial before the impartial tribunal because there is no exception to consider that jury is above the law[17]. This is a due process safeguard for the defendant.

 Moreover, it has been argued in various studies that gender, race etc. also affects the jury decisions regarding the acquittal and the conviction of the defendants (crime control model example, as it can be prejudicial).A study conducted by Cecilia Meyer and Chris L. Kleinke explains that the males believing in just world would access the victims of the rape cases more adversely as compared to the men with low believe. While the females with the high faith in the just world would be less negative to the victims in the rape cases as compared to those who have low faith.[18] It can be inheriting from this study that both men and women react differently to their own gender involved in the rape cases. Furthermore, the impact of race on the decisions of juries is quite hard to discover thus unpredictable owing to lack of relevant literature and research related to this specific issue. The Contempt of Court Act 1980[19] restricts to conduct coordinate examination into this matter. The only credible source available in this regard is of Hood, Shute and Seemungal report in 2003[20].

  Judicial rhetoric is of strong view that jurors should be as white as the paper[21] but practically the decisions of the jurors are influenced by their own beliefs, religion, perceptions, morality and ethnicity[22]. The Court of Appeal was of the view that jurors can draw motivation from their past experiences but does not in a way that it causes discriminatory effect[23]. Additionally, jurors should not also be biased because of the previous bad character of the defendant (due process safeguard for the defendant) as it can be prejudicial. In R v Campbell[24], Court of Appeal said throughout the trial that the jury can be trusted, until the judgement. In their opining the jurors have common sense and they can use it in some cases, which I disagree with.

 To conclude, the question whether the jury is trustable in determining if a defendant is guilty or not is critically discussed by considering several factors. It is noted that jurors are the people with no legal background therefore, according to the survey cited most of them faces difficulty in interpretation and understanding the legal concepts such as “consent” in rape cases. Additionally, the use of internet to research their own cases, and other influential factors such as race, gender etc. are some of the reason that can raise doubt on the decisions taken by the jury. Therefore, it is further concluded that juries cannot be trusted to decide whether a defendant is guilty or not. Moreover, they must be subject to reform such as appointing legal members injury.

 

Bibliography

Primary sources:

Conventions:

  • European Convention on Human Rights

Legislations:

  • Human Rights Act 1998
  • Contempt of Court Act 1981

Case law:

  • Karakaya v Regina [2005] EWCA Crim 346
  • Mylock v. Saladine (1764) 1 W. Bl. 480, per Lord Mansfield C.J
  • R v Mirza [2004] UKHL 2, 1 AC 1118
  • R. v. Mirza [2004] 2 WLR 201
  • R v Campbell [2007] EWCA Crim 1472
  • R. v. Smith (Lance) [2003] EWCA Crim 283, [2003] 1 W.L.R. 2229, at [37]; R. v. M [2004] EWCA Crim 1610, at [15]-[16].
  • Baker v. State, No. 18A-CR-1025, 2018 WL 6257066 (Ind. Ct. App. Nov. 30, 2018).

Secondary sources:

  • Herbert L. Packer, 'Two Models of The Criminal Process' (1964) 113 University of Pennsylvania Law Review.
  • Daly, G. & Pattenden, R. (2005) “Racial Bias and the English Criminal Trial Jury”. 64(3) Cambridge Law Journal 678
  • Ethnic Minorities in the Criminal Courts: Perceptions of Fairness and Equality of Treatment Research Series No. 2/03 (March 2003). 455-456
  • Gastil J, Burkhalter S and W BL, “Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse” (2020) 38 Small Group Research 337‌
  • Kleinke, and C. Mayer, (1990). Evaluation of Rape victim by Men and Women with High and Low Belief in a Just World. Psychology of Women Quarterly, 14(3), pp.343-353.
  • N. Haralambous, ‘Investigating Impropriety in Jury Deliberations: A Recipe for Disaster?’ (2004) 68 J Crim L 411. 417
  • NSW Criminal Law Review Division (CLRD) 2007. The law of consent and sexual assault: discussion paper. Sydney: NSW Attorney General's Department
  • Race Diversity and Jury Composition: Battering and Bolstering Legitimacy” (2003) 78 Chicago-Kent L. Rev. 1032, 1034.
  • Sommers, S. & Ellsworth, P. (2003) “How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research”. Chicago-Kent Law Review, Vol. 78, No. 3, 997
  • Thomas, Are Juries Fair (2010), Ch.3,p.40

[1] Herbert L. Packer, 'Two Models of The Criminal Process' (1964) 113 University of Pennsylvania Law Review

[2] Cheryl Thomas, Are Juries Fair? (2010), Ch.3,p.40.

[3] Sommers, S. & Ellsworth, P. (2003) “How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research”. Chicago-Kent Law Review, Vol. 78, No. 3, 997

[4] Ibid 2

[5] NSW Criminal Law Review Division (CLRD) 2007. The law of consent and sexual assault: discussion paper. Sydney: NSW Attorney General's Department

[6] Human Rights Act 1998

[7] Baker v. State, No. 18A-CR-1025, 2018 WL 6257066 (Ind. Ct. App. Nov. 30, 2018).

[8] Daly, G. & Pattenden, R. (2005) “Racial Bias and the English Criminal Trial Jury”. 64(3) Cambridge Law Journal 678

[9] Karakaya v Regina [2005] EWCA Crim 346

[10] Ibid 9

[11] Section 8 Contempt of Court Act 1981

[12]  R v Mirza [2004] 2 WLR 201

[13] J Gastil, S Burkhalter and Black L W, “Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse” (2020) 38 Small Group Research 337 accessed January 10, 2020.

[14] Article 6 of the European Convention on Human Rights

[15] Ibid 6

[16] R v Mirza [2004] UKHL 2, 1 AC 1118

[17] N. Haralambous, ‘Investigating Impropriety in Jury Deliberations: A Recipe for Disaster?’ (2004) 68 J Crim L 411. 417

[18] C. Kleinke, and C. Mayer, (1990). Evaluation of Rape victim by Men and Women with High and Low Belief in a Just World. Psychology of Women Quarterly, 14(3), pp.343-353.

[19] segment 8(1) of The Contempt of Court Act 1980

[20] Ethnic Minorities in the Criminal Courts: Perceptions of Fairness and Equality of Treatment Research Series No. 2/03 (March 2003). 455-456

[21] Mylock v. Saladine (1764) 1 W. Bl. 480, per Lord Mansfield C.J

[22] Race Diversity and Jury Composition: Battering and Bolstering Legitimacy” (2003) 78 Chicago-Kent L. Rev. 1032, 1034.

[23] R. v. Smith (Lance) [2003] EWCA Crim 283, [2003] 1 W.L.R. 2229, at [37]; R. v. M [2004] EWCA Crim 1610, at [15]-[16].

[24] R v Campbell [2007] EWCA Crim 1472

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