“Absolutely fundamental deficits in understanding”

Posted on February 25, 2013 by Yoram Gat

A British judge was very unhappy with the jury in a high-profile trial last week:

Vicky Pryce, the ex-wife of the disgraced cabinet minister Chris Huhne, faces a retrial next week over taking speeding points for him because a jury failed to reach a verdict, after suffering what the judge described as “absolutely fundamental deficits in understanding”.

The Guardian seemed to concur:

Mr Justice Sweeney discharged the panel of eight women and four men following more than 15 hours of deliberations, and a day after they submitted 10 questions that indicated they had not grasped the basics of their task,

but assembled a set of professionals defending the jury institution:

Commenting on the collapse of the trial, Richard Atkinson, chairman of Law Society’s criminal law committee, said: “The comments of the judge that this was unique in his 30 year career reflects my own experiences. I have not come across this before … [Juries] are a very good safeguard.”

[…]

Lord Macdonald, a former director of public prosecution, told BBC Radio 4’s Today programme: “I don’t believe this is a general problem but I do think we should allow a bit more research into the way juries go about their tasks … If you have a better understanding of that then perhaps it’s easier to frame directions to juries that they will follow and understand.”

Lord Woolf, a former lord chief justice, added: “I wouldn’t rush into doing anything, I would think about it … Some very carefully organised, responsible research may be a good thing, but it would have to be treated with great care.”

One of the leading academics who has carried out research into the way juries work agreed that the Pryce situation involved a complex case and a “very exceptional jury”. Prof Cheryl Thomas, of University College, London, said: “More than 99% of the time juries reach a verdict. A hung jury is extremely rare. There are very few lessons from this case.

“All the evidence I have from a decade of research is that the overwhelming majority take their job very seriously.”

A report by Prof Cheryl Thomas, of University College, London,

pointed out that in 2007 that then lord chief justice, “Lord Phillips, publicly called for legal directions to juries to be simplified” and suggested “restructuring jury trials to aid juror comprehension”.

Of great concern is “improper use of the internet by jurors”:

One of the main jury issues that has worried legal experts in the past year is the ease with which jurors can consult the internet and the danger online research presents in terms of undermining evidence in court.

Thomas’s current research, due to be published this spring, examines how to prevent improper use of the internet by jurors and how to improve their decision-making. She said: “There’s legitimate use of the internet: for example, how to get to court. But it can become a grey area. Is it illegal to look for information about the judge? No.

“Jurors get themselves into trouble when they actively research information about a defendant. They should also not be looking up information about the law or the issue [in the case]. It’s more tempting to disobey the rules … because of the internet.”

Filed under: Academia, Juries, Press |

12 Responses

keithsutherland, on February 25, 2013 at 7:01 am said:

The general point being that juries decided cases in a competent manner (99 times out of 100) if subject to careful direction and constraints on information input — to ensure that it is balanced and relevant. This would also be true in the judgment of legislative issues:

“Jurors get themselves into trouble when they actively research information . . . They should also not be looking up information about the law or the issue [in the case].”

In addition to the problem of balanced and relevant information there is also the issue of representative accuracy — the verdict should be the same, irrespective of which individuals are included in the sample as otherwise the verdict is unlikely to be accepted by everyone else.

This also gives rise to the interesting question of whether there should be an equivalent of contempt of court (for the media) in the case of legislative trials. There is a case for it, but I think it would be impossible to implement (unless the “trial” takes place in camera, with a sequestered jury), therefore a free-for-all might better establish balanced input, assuming a monopoly-free and diverse media.

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Harald Korneliussen, on February 25, 2013 at 7:36 am said:

From what I’ve read of the case, it seems like there was just one especially out-of-touch juror who refused to be intimidated, and it was the unanimity requirement which caused the breakdown.

When they submitted the more outrageous questions, it was probably not because they as a group had any doubts about the answer, but in order to be able to tell the dissenting juror “See? We told you so!”.

So, not a failure for the sort of institutions we advocate, but a reminder of how unreasonable the deceptively fair-sounding unanimity requirement is.

(The judge was willing to accept a 10/12 majority verdict, but that just takes one crazy dissenter and two people obstinately attached to the unanimity principle to stop – not much better.)

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peterstone, on February 25, 2013 at 2:30 pm said:

I’m confused. If the judge was willing to accept a 10-to-2 verdict, but no such verdict was obtained, that would seem to suggest more than one problematic juror. Harald, your speculations sound far-fetched to me. Usually, in cases with a single wingnut, the other jurors would be perfectly happy to see that juror go to hell. I cannot imagine it happening often that 2 jurors would say, well, your opinion may be nutty, but even though we’re allowed to reach a verdict with just 10 votes, I’m going to stand with the nutcase just because I love the unanimity rule so much.

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Yoram Gat, on February 25, 2013 at 6:16 pm said:

To me the point of the story is how letting the professionals (the judges, the lawyers, the press, the academics) set the rules and run the show allows them to box the allotted jurors in a situation where they can be used as puppets and played for fools.

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keithsutherland, on February 25, 2013 at 8:59 pm said:

So, in a criminal trial, the jurors should be allowed to make up their own rules? One group could find the defendant guilty and another one innocent, based on factors other than the evidence given in court. I’m glad you have chosen to illustrate the entirely arbitrary nature of decisions by allotted bodies with full powers in such a clear manner.

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Yoram Gat, on February 26, 2013 at 8:41 am said:

Must we deal with nonsense? The jurors “should be allowed to make up their own rules” in the same way that a judge today gets to make up his own the rules.

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keithsutherland, on February 26, 2013 at 9:16 am said:

The judge is charged with maintaining the rule of law. UK law requires that jurors only consider admissible evidence provided in court and the judge directs the jury accordingly. If juries make up their own rules then every jury will return a different verdict and the verdict will not represent the considered view of the whole community, merely the random whims and prejudices of the 12 persons selected.

The reason the fourth-century Athenians chose to establish legislative courts was in order to privilege the rule of laws, not men. Your proposal for allowing allotted juries to make up their own rules undermines this aim and contravenes the representative principle (as in the above example of trial juries), which presupposes consistency between juries.

Why do you refer to this as “nonsense”?

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Anonymous, on February 26, 2013 at 11:57 pm said:

This is nonsense because:

> The judge is charged with maintaining the rule of law.

The jury is, quite rightly, NOT obliged to uphold the rule of law:

http://en.wikipedia.org/wiki/Jury_nullification

The jury is obliged to deliver a verdict in good conscience – the law be damned.

To wit: would you find Rosa Parks guilty?

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keithsutherland, on February 27, 2013 at 6:03 am said:

The judge and jury have different roles. The judge is obliged to uphold the rule of law and directs the jury accordingly. If ALL members of the jury (or in exceptional cases the clear majority) decide that the law is unjust then they rightly acquit. In such cases this can often lead the legislature to change the law and for future judges to direct differently.

This is a natural part of the legislative process in a democracy, has nothing to do with the present case, and confirms that there was nothing nonsensical about the claim that the judge and jury have different roles to play. The jury in a nullification verdict are not making up the rules regarding the admissibility of evidence, they are taking an exceptional stand on a principle of justice. The exception, as always, proves the rule.

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keithsutherland, on February 27, 2013 at 7:43 am said:

P.S. The Rosa Parks equivalent in this case would be if the jury decided to reject Vicky Price’s defence on the basis that the law discriminates against husbands, same-sex civil partnerships and unmarried couples. And I’m surprised that the judge has not instructed the jury to convict on the basis that uniquely privileging wives contravenes the Human Rights Act.

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Anonymous, on February 27, 2013 at 10:18 pm said:

> there was nothing nonsensical about the claim that the judge and jury have different roles to play

However you make the that the role of the jury is to obey the judge. Otherwise the jury will “make up their own rules” and anarchy ensues.

This is a straw man fallacy.

I believe Yorams point to be that jury instructions may be used to influence the jury.

Interesting paper on the application of jury instructions:

Click to access Do%20Juries%20Apply%20the%20Law.pdf

In this case, it seems the prosecutor (Edis), when he realised there would be no verdict, sought to discharge the jury.

Instead of answering the juries questions, the judge lost patience & dismissed the jury.

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keithsutherland, on February 28, 2013 at 7:32 am said:

Arguments should be based on the general case, not the exception. Law is made by parliament, not judges or juries. If parliament is out of touch with public opinion then a unanimous verdict could well lead to a change in the law. But such a verdict has nothing to do with making up their own rules on the admissibility of evidence, it is a normative case for a change in the law, in this case (and in the Rosa parks case) to bring the law in line witha higher principle of equality.

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