on Juries
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In my jurisdiction (England and Wales) there is a legal prohibition on discussing what happens in the jury room. Which makes it tough to understand how juries come to conclusions.
Currently there is a TV mock trial which is attempting to promote discussion about this aspect of our legal system which is not normally seen.
As someone who has been on a jury in a criminal case, I can well believe that different selections of people on different days would give different results.
For me, I think the crux is that the judge gives instructions that conviction is based on the jury being "sure" - which I think they use as layman's language for reasonable doubt.
The problem is that the bar for being "sure" is difficult to assess for a person who is not trained in the law (or even other areas where one has to make judgements) - and of course the decision is going to dramatically impact another person's life.
I can only think of one circumstance where I would choose a jury trial. On the whole it seems like rolling a dice.
Currently there is a TV mock trial which is attempting to promote discussion about this aspect of our legal system which is not normally seen.
As someone who has been on a jury in a criminal case, I can well believe that different selections of people on different days would give different results.
For me, I think the crux is that the judge gives instructions that conviction is based on the jury being "sure" - which I think they use as layman's language for reasonable doubt.
The problem is that the bar for being "sure" is difficult to assess for a person who is not trained in the law (or even other areas where one has to make judgements) - and of course the decision is going to dramatically impact another person's life.
I can only think of one circumstance where I would choose a jury trial. On the whole it seems like rolling a dice.
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I've not yet served on a jury, though I've been called several times. On one occasion the Sheriff came out the first day to talk to all the potential jurors to explain in general what our role would be, what we could and couldn't say to people outside the jury, what opportunities we would have to get explanations of legal terms etc, with time to answer our questions. Which was very helpful, even though my name wasn't pulled from the hat for any of the trials that week. That didn't happen for the other two occasions at the Sheriff's Court nor my one time at the High Court - though it may have been something that was told just to those who were selected to sit on a jury (we didn't even get that far with the High Court as the trial we were called for didn't even happen).
For example if someone is charged with shoplifting but there is a lot of evidence he is on holiday in the Canaries, that would appear to be a reasonable doubt that he could not have done it in Liverpool. It seems unreasonable to come up with a complicated explanation of aliens transporting people around the planet to explain how he did do it.
The difficulty, it seems to me, is when the difference between reasonable/unreasonable doubt is not clear.
This guy has been identified as the thief by someone he knows well. But the defence say there was another person wearing similar clothing in the vicinity or something.
Maybe the jury thinks that on balance of probabilities this person likely was responsible. That's not good enough.
The law here on the point is clear - no explanation is to be given. And neither direction you quote from Dorothy Sayers would have been a correct statement of the law, at least here.
I'm not sure if this is a rhetorical question or if it is addressed to me.
But I can't discuss how the jury in my case came to a decision and therefore can't really talk about what would be reasonable for others who saw the same evidence.
All I can say is that the jury in the case I was on did their duty, carefully considered the evidence and came to a conclusion.
Interestingly there have been statements from the Justice on the UK Supreme Court discussing this (the whole thing about being "sure" and "reasonable doubt") so there would appear to be quite a difference in approach to Australia.
Again not an expert, I just found these things with a simple Google search.
The judge first of all asks the jury to come to a unanimous decision. The jury goes away for a time and then the judge calls them back and asks if there is consensus.
If there isn't the jury goes back and talks some more. Then the judge calls the jury back and says that if there isn't agreement within x time he will accept a majority verdict. I don't remember the numbers but maybe 10-2?
So in a theoretical discussion which doesn't resemble anything I've been involved in, there could have been hours of discussion and 3 people disagree with the majority for what everyone else thinks are dubious grounds.
It only takes one person to be persuaded to get a conviction. And in the reverse situation it only needs one person (if stuck at 10-2) to agree that the evidence is not enough.
If you have a person motivated by something nefarious, I can well see how a bad decision is made even if the majority are being conscientious.
As I understand it the jury has to decide first of all on the facts and then whether a crime was committed. They have help on the second part of this from the Court who advises on what the law states. When someone says "I was a victim once so will find them guilty" justice seems a long way away.
In North Carolina, we have pattern jury instructions. These are essentially scripts that cover pretty much every possible jury instruction that might be needed in a criminal or civil trial, and they are presumed to be a correct instruction on the law.
After the evidence and before closing arguments, the judge will confer with the attorneys—in court and on the record, but without the jury present—on instructing the jury. The judge will typically note the various pattern instructions she or he intends to give, based on the charges (criminal) or claims (civil), defenses, and the evidence. Lawyers for the parties may request additional instructions and/or object to any particular instruction being given.
The pattern instruction on “reasonable doubt” says:
Meanwhile, am I understanding correctly from this thread that jurors in England and Wales can never talk about what happened during jury deliberations? Here, jurors cannot discuss the case or their deliberations while the case is ongoing, but that prohibition doesn’t extend beyond their discharge as jurors. Typically, particularly in higher profile cases, when the judge discharges and thanks the jury, she or he will tell them that they may discuss the case with others, including lawyers or the media, if they choose to, but they are also entitled not to discuss it. (This is petit juries/trial juries. Grand juries may not discuss deliberations even after they are discharged.)
There are very serious consequences for revealing things that went on during the jury discussions. The consequences are made clear to jurors but exactly what can be said (in my experience at least) is not altogether clear.
I think it is correct that anything which is in the public record can be repeated (for example the case, the result, evidence in the trial what people wore, their demeanor etc) and that one was on that specific jury. Obviously the door was closed on the jury room and notes were destroyed so none of the jury discussions or notes are considered public information.
Generally speaking I find that people who have been on juries in E&W that I've met tend not to talk much about the specifics. In my situation the pool of potential jurors for cases is not particularly massive so there not an insignificant possibility that someone related to someone involved in the case could be found (which to be clear, is totally illegal and dangerous) so that's another good reason as a juror to avoid getting too far into the detail.
A neighbour of mine was on a jury and said to me that it would have been easier for them if they had known whether of not the accused had a criminal record .
I asked her, "Did their barrister say that they had never been convicted of anything?" She said "No" I then asked her, " If you had been the accused, wouldn't you have wanted the jury to know that you had never been convicted of anything and you were a person of good character? ". "I see what you mean", she said
One thing that was said in the jury room was, 'We're not going to feel good about this'. I don't.
I'm not sure you understand how a jury works. The jury is to decide the case in front of you, not influenced by the person's character or even if they've done things before.
If character comes into it at all, that is presumably only for the judge at sentancing.
This is true in Canada, too. There are preliminary conversations happening about how to help jurors deal with the post-trial emotional trauma of having sat on juries for brutal murder or abuse cases. How does a juror heal from what they have seen and heard when they must never talk, anywhere, about it?
I haven't followed the conversations enough to know where we're at with them.
But, yes, @Nick Tamen, you've understood correctly. I had no idea it was different in the US.
Oof. That's.. not how it is supposed to work
As I understand it, in Scottish courts there was once the option of "case not proven", a verdict which more or less insults everyone. I don't know if that is still available.
This statement is obvious nonsense - if the phrases were straightforward, there would be no interest in asking a clarifying question. Exactly how much doubt is "reasonable"?
The problem with posing that question, and the reason I suspect that Australian courts avoid trying to answer it, is that most people are exceptionally bad at assessing moderate-to-small sized risks.
Suppose we were to quantify "reasonable doubt". Where would you put the boundary? It's clearly, I think, not as rigorous a proof as five sigma, but you'd want more proof than two sigma. I might suggest three sigma as a starting point, meaning* that you had less than a 0.3% chance of being wrong.
That's all well and good - but juries aren't actually dealing with numeric data. Is a jury capable of measuring its degree of confidence at this level, given data which is a collection of eyewitness accounts from unreliable narrators? I don't think so, and so there's the problem of trying to specify what "reasonable" means.
*We can have a Bayesian vs frequentist statistics argument somewhere else, if you want.
That's right. And in the real world, that's exactly how it worked.
It was the lack of witness testimony. On either side. In the same very large family.
I think we must also have these in California, because I have heard the same things several times on different juries over the years. And lawyers here are allowed to discuss what "beyond a reasonable doubt" means in their closing statements; they usually take care to note that the familiar phrase "beyond a shadow of a doubt" is not what juries should be thinking of.
It's wild to me that jurors would be forbidden to discuss what happened in deliberations after the trial is over. It's hard enough not talking about the trial while it's going on.
https://www.cps.gov.uk/legal-guidance/bad-character-evidence
Again IANAL but it seems like there are narrow reasons why past convictions and character are introduced into a criminal court case in E&W.
Anyway, this seems like a bit of a tangent other than that juries don't customarily get to know about this stuff in order to come to a conclusion.
Though I should have said “it can be reversible error” rather than “it’s generally reversible error.” Assuming a defendant objected at trial, that defendant can argue on appeal that it was prejudicial error to allow testimony regarding past crimes/wrongs into evidence. The appellate court would first look at whether the testimony falls under one of the exceptions to the general rule that such evidence is inadmissible, or whether defendant “opened to the door” to the evidence. If the answer to those questions is “no,” the question is then whether the error was harmless—that is, whether the evidence of guilt was substantial enough that the evidence of past wrongs didn’t tip the scales—or whether it was prejudicial, meaning that there is a reasonable chance that but for the evidence of past wrongs, the jury might not have convicted. If it was prejudicial, the judgment must be reversed, and the case remanded for a new trial.
That would be an erroneous instruction in Canada and there’s a good chance that if the jury convicts the conviction would be reversed on appeal (ie the instruction would constitute reversible error). The model Canadian instructions say that BRD is higher than probable guilt, lower than absolute certainty, but closer to the latter than the former. They also approve the language of being “sure”.
There used to be a common instruction, usually given as advice rather than direction, that the jury should find the facts first and then apply the law but the Court of Appeal has recently said this is wrong because it could reverse the burden of proof. (You don’t need to find facts in the accused’s favour in order to acquit.) It also seems to invite a really unfocused fact-finding exercise that could easily lose track of the real issues.
Jury confidentiality rules are strict in Canada and persist post-verdict. It’s a black box model of the jury - you know virtually nothing about them when they’re selected, and they give you nothing but a verdict on the other end. A judge alone trial is available as of right for most offences (though not murder and some other offences historically considered to be among the most serious offences - it’s an old list and contains a number of offences that are now rarely prosecuted - including until recently “alarming the Queen” - an offence that was abolished in 2018).
It's still available, but I suspect not for much longer.
https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/preliminary-instructions/fundamental-principles/presumption-of-innocence-burden-of-proof-and-reasonable-doubt/
I think it’s about as helpful as it’s possible to be without overstepping and possibly giving an instruction that might not be appropriate for a particular case. Deciding whether BRD has been reached isn’t an algorithmic process, it arises out of a collective application of twelve people’s common sense and life experience to deciding whether the Crown has proved its case or whether the evidence (or lack thereof) leaves a reasonable possibility that the accused is not guilty.
We have a mixed or hybrid legal system made up of Roman-Dutch law, British common law and African customary law. The jury system was abolished in 1969, and cases are decided by a judge alone, sometimes assisted by two assessors. There is ongoing debate about returning to the trail by juries, but it's unlikely to happen any time soon.
In E&W generally I'd say that it feels like judges mostly make good decisions (for example in Appeals Courts, etc). I'm not sure there is a general feeling about juries.
Personally I would do away with juries because of the unpredictability and the bringing in of prejudices and ignorance. I include myself. But perhaps it is the worst solution except for all the rest.
There’s a practical reality here which is that deciding whether the Crown has made out its case beyond reasonable doubt isn’t ultimately a legal question and it’s not some thing where a single judge necessarily has an advantage over the collective wisdom of twelve non-legally-trained people. It depends on the case of course - if the case turns on some technical point of law most people are going to want to elect judge-alone. But if it’s really a question of what happened and who do you believe (if anyone) and what it all adds up to then a jury who has been properly instructed on the basic legal framework they need to work in may be in no worse position than a single judge.
As we're seeing with the juries throwing out prosecutions of climate protestors, they can be a safety valve against an authoritarian state. Conversely, they can be a vehicle for prejudice and authoritarian tendencies among the public, as seen in reluctance in some jurisdictions to convict murderous cops and/or soldiers, or greater willingness to convict or condemn to death people of colour.
As I said, in a high profile case, reporters may ask to talk with jurors, and jurors can and often do say “no.” Sometimes lawyers want to talk with jurors to get a sense of what went right/wrong, or maybe to explore possible improprieties, but that’s not the norm, at lease where I am. And occasionally universities or public interest groups will interview jurors as part of a study. But I think it’s safe to say the vast majority of jurors will never talk about the case with anyone other than family and friends.
All that said, my impression from what I’ve seen of jurors who do choose to describe their deliberations leads me to think that the task is usually taken quite seriously, and more often than not jurors are trying to make and are making rational decisions based on the evidence presented to them.
For a medical malpractice lawsuit, we took an initial informal poll that went 11-1 for the defendant, with one guy saying he just felt bad for the family of the woman who died and he knew the evidence didn't support the plaintiff's case. We didn't have to win him over; everyone just gave their reasons for their vote and he changed his. And then we still went over the instructions in detail to be sure we weren't screwing up.
On the jury for a man accused of attempted kidnapping, a threat to harm charge I don't remember the wording of, and felon in possession of a firearm, the discussion was heated and on some people's part very emotional -- the older men saw their own daughters in the girl who said this man had tried to get her into his car. We went round and round for hours, but that process allowed people to work through their emotions, talk about the testimony, what was consistent, what was believable, the items in evidence (and not - there was no gun), what we thought was relevant and what seemed like efforts on the prosecution's part to distract us. We found the guy not guilty on all charges.
If we hadn't been fortunate that way, we would probably have had to ask the judge to explain things.
"Prisoner at the bar, how do you plead? Guilty or not guilty?"
"How do I know until I've heard the evidence?"