Should we do trial by jury?

[Josquius]

Sheilbhs favourite journalist has an opinion.
What say you?

https://www.theguardian.com/commentisfree/2024/mar/01/pub-argument-love-island-the-jury-britain?CMP=Share_AndroidApp_Other

This article contains spoilers about the final episode of The Jury: Murder Trial

Should juries be abolished? Last night's Channel 4 docudrama of a real trial, The Jury: Murder Trial, opened with the question: "Can we trust our justice system?" The only answer any reasonable viewer could give was no.

This four-part series assembled two separate juries to pass judgment on a real-life case, re-enacted by actors speaking from the transcript of the original trial. The jurors knew already that the defendant had killed his wife. The issue was whether he was provoked beyond the bounds of "self-control". In other words, was it murder or manslaughter, a life sentence or two to three years in prison? At the end, the two juries reached opposing verdicts. Where lay justice?

I have served on juries three times, including as foreman on a case of attempted murder. In each case the time-wasting and theatricality was absurd. Money and time were pointlessly consumed, and in our murder case I had no doubt justice was not done. Many friends, most of whom had wriggled out of jury service, thought it was "frightfully good" for people like me to meet such "different" people in the jury room. They seemed to regard jury service as merely social therapy for the middle classes.

Jury trials are justice as play acting. They are presented as a binary argument with only one winner

The television programme was like a pub argument relocated to Love Island. The participants knew they were watching actors and were themselves "acting" as jurors. They duly hyped the emotion. But they did it well. Having volunteered, they were clearly an outspoken bunch. Most jurors in my experience tend to be relatively nervous and tight-lipped.


Jury rooms are dens of claustrophobia where strong personalities, chemistry and emotion inevitably get tangled. Reasoned debate is lost in the fug of who gets on with whom. In this series, what should have been a discussion of anger control under provocation became a battleground in which retributive justice was pitted against human sympathy. The format of the trial forced argument into a technical straitjacket: was it murder or manslaughter, with no nuance in between, and no summing up by the judge was shown.

Jurors inevitably turned to their personal experiences. It was intriguing how sympathy for the husband was expressed by older jurors who had seen similar marital crises. "I, too, remember being stressed out of myself," said more than one. Younger jurors, one aged 19, were more punitive. But there was little mention of criminal psychology, let alone retribution or rehabilitation. There was just a vague sense of "what does she deserve" and what does he.

Jurists sit round a table in The Jury: Murder Trial
'Jurors inevitably turned to their personal experiences' ... The Jury: Murder Trial. Photograph: Rob Parfitt/Channel 4
For all its heightened drama, what the programme revealed was the central failing of British justice. The courtroom trial is dominated by an unreal Socratic dichotomy of good and evil, represented by costumed barristers. At no point did experts in criminal behaviour sit round and discuss a middle ground, a sensible way forward to help the man, his family and society out of what had been a ghastly tragedy. Everyone had to be simply for him or against him.

The irony is that the only place where such discussion did half take place was in what amounted to an unchaired saloon bar shouting match: "I can't bear this"; "They're all screaming at me"; "I don't know if I'd want to be triied by a jury." I kept thinking: why is this not moved to open court? It might be of some service to justice if the judge at least got to hear all the arguments before his summing up. The concept of juries remaining blind as to their reasons is medieval.

Jury trials are justice as play acting, as if imitating the film 12 Angry Men. They are presented as a binary argument with only one winner. In my attempted murder case, the judge was so dismissive of the poor performance of the young prosecuting counsel he told us we should consider acquittal.

Courts need experts and judges, not amateurs from off the street

Nowadays disputes in serious criminal trials tend to turn on digital, chemical or financial evidence, and are vulnerable to identity bias. That is why civil, rape, terrorist and fraud trials rarely have juries. Goodness knows what juries will make of artificial intelligence cases. Other than in matters of personal judgment, such as defamation or hate crime, courts need experts and judges, not amateurs from off the street.

Jury trials are dying out across Europe in favour of the German practice of judges and lay assessors. In Britain, more are being tried by magistrates alone. There is no evidence of a resulting crime wave. Instead, England and Wales already send more people to prison than anywhere in western Europe. One country that famously sends far more people to prison than Britain is one even more attached to juries, the US.

In the US, jury trials have so crowded the court system that it is approaching breakdown. The result is that an estimated 90-95% of all criminal cases now avoid trial and go to plea bargaining. In other words, neither side airs its case in public or before lay magistrates, let alone tests it before a jury. There is simply a private negotiation between lawyers and a judge, often built round a half-hearted but heavily enforced admission of guilt.

The overstretched British court system has shown no similar inclination to go for streamlining. The justice system is so hidebound by tradition it will not even end the bifurcation of solicitors and barristers. This indefensible restrictive practice should have stopped long ago.

Britain's juries are a quaint medieval hangover, as once were lay constables. They should go. The best foreign practice should be studied and imitated. It took a recent television programme to end the subpostmaster scandal. Perhaps one should now serve to end the nonsense of juries.

- Simon de Jenkins, Lord of Counter-Britain

[Barrister]

So, I don't want to claim an appeal to authority here, but I have, you know, actually run jury trials  Hell I picked a jury about 2 weeks ago (only top have a guilty plea the first day of trial).  I might be the only Languisher who runs jury trials (unless AmScip shows up - CC is a civil lawyer whose experience I respect, but civil matters hardly ever go to juries, and as I understand it Gups and Sheilbh are generally not trial lawyers).

So the thing I love about juries - they take it so seriously.  Sometimes as us jaded trial lawyer (and jaded trial judges) we can start to be a bit glib about these things.  But juries play it completely straight.  I totally respect that.

But the thing is - they are so expensive!  For my recent jury selection we must have pulled about 200 regular citizens out of their everyday lives and forced them to come to court.  We then proceeded to pick 4 juries - 3 sex assaults, and then me with a residential B&E.  Those selected to serve on each jury then had to dedicate a week or more of their lives to the case.  Lots of people came forward to say how they couldn't afford to take a week off of work.  In Alberta ta least, a juror gets $50 per day plus food - which is almost certainly a lot less then whatever they earn at their jobs.  So juries wind up being heavily biased towards retirees and civil servants (who get paid their regular wage) - which isn't exactly a "jury of your peers".

So for the article itself - all are valid points.  But is it really any better a system then handing everything over to some random judge (who is just a lawyer with lots of experience)?  Having appeared in front of so many, many judges over the years, they all have their biases, idiosyncrasies and faults.  Is just throwing things in front of 12 random people really a worse way of doing things?

So - I had a trial about a month ago.  Judge alone, so not a jury.  Accused testified in his own defence.  I thought the Accused's story was ridiculous.  Judge convicted.  But the judge not only convicted the Accused, they labelled the Accused as "one of the top 5 liars they've ever seen", gave me a transcript of the Accused's testimony and suggested I investigate the Accused for perjury.

For legal reasons I won't go into - we'd never even consider a perjury charge.  But I never would have even thought to argue the Accused was lying - just that he was highly unreliable.

So should we have juries?  I'm on the fence.  I think there's something to be said for them, and handing matters to "expert" judges not necessarily much better.  But I also know the wait times for trials - it's a year or more.  So I don't know if the benefit we get from a jury is really worth the expense to the whole system.

And one other point - in my experience, juries are almost always only selected for sex assaults, and maybe murders.  When I showed up with my B&E trial it was highly unusual.

[grumbler]

Judgements by people are flawed.  Whether a judgement by 12 flawed people is better or worse than judgement by one flawed person is an interesting question, but that's not that kind of open-ended question that the author was interested in pursuing, ironically enough.  "We should avoid binary solution sets, so should we abolish juries or not?"

[Barrister]

So reading the original article again more closely - the author is making his judgment based on a Channel 4 re-creation of a real jury trial.

But that's the thing - it's not real.  They had apparently 2 juries, who came to different conclusions.  Lets put aside that the issue of murder vs manslaughter can be difficult.  But the jurors knew that what they were doing wasn't real - it wouldn't affect anyone's lives.  So inherently what they were doing was play-acting.

LIke I said earlier - what impresses me about real jury trials is how seriously they take it.  But that dynamic would be entirely missing in some TV re-enactment.

[crazy canuck]

BB is correct that I have never done a jury trial as a practising lawyer but as a judicial law clerk in the Supreme Court of British Columbia, I saw them in action from the judge's point of view, giving the instructions and answering the questions of the jurors. That was many years ago, so things may have changed, but I was also struck by how seriously the jurors took their responsibility.

[Admiral Yi]

I used to be gung ho about jury trials but the OJ case changed my mind.

[HVC]

Id prefer jury for criminal cases, but on higher complexity matters I find it odd to use juries.

[crazy canuck]

Id prefer jury for criminal cases, but on higher complexity matters I find it odd to use juries.

You will be happy to know that in non criminal cases the complexity of the issues in dispute is a ground for not proceeding with a jury trial. That and the cost are the two main reasons they are rarely used in civil trials in Canada.

[Barrister]

I used to be gung ho about jury trials but the OJ case changed my mind.

I mean (in particular in light of my job) - I think the OJ jury came to the wrong decision.

But do I think a judge alone would have come to the "right" decision? Not necessarily.

[Admiral Yi]

But do I think a judge alone would have come to the "right" decision? Not necessarily.

Are you aware of cases in which the judge fucked up the verdict to the same extent?

[Barrister]

But do I think a judge alone would have come to the "right" decision? Not necessarily.

Are you aware of cases in which the judge fucked up the verdict to the same extent?

Dude!

All the fucking time!

OJ was particularly difficult because the trial ran for weeks.  And remember of course that all 12 jurors agreed on the verdict.  That case happened a long time ago, and while I wasn't a lawyer yet and didn't watch every minute, I was very interested in the outcome.  But yeah - I do not think a judge alone was guaranteed to come to a different verdict.

[Admiral Yi]

But yeah - I do not think a judge alone was guaranteed to come to a different verdict.

Not exactly the question I asked.

What I'm looking for is some probability distribution of right vs. boneheaded verdicts.

[Barrister]

But yeah - I do not think a judge alone was guaranteed to come to a different verdict.

Not exactly the question I asked.

What I'm looking for is some probability distribution of right vs. boneheaded verdicts.

Almost impossible to say.

If we had some kind of iron-clad way of determining what the "right" verdict was - we'd use it.  Instead we're stuck with our imperfect trial system.  We got a rush of cases 20 years ago when DNA came available of proving that even earlier cases were decided wrongly, but that's been about it.

So when I say judges come to wrong decisions all the time - that's just my word as a, you know, the job I do.

[Admiral Yi]

Almost impossible to say.

If we had some kind of iron-clad way of determining what the "right" verdict was - we'd use it.  Instead we're stuck with our imperfect trial system.  We got a rush of cases 20 years ago when DNA came available of proving that even earlier cases were decided wrongly, but that's been about it.

So when I say judges come to wrong decisions all the time - that's just my word as a, you know, the job I do.

That's what I'm asking for.  Your personal opinion about relative frequency of boneheaded verdicts.

[The Brain]

What's the alternative to jury people visualize?