Trial By The Peerless (Part 2)

In a shocking break from my normal routine of struggling to find something to write about, I actually had a response to something! Please see the comment appended to my previous post. Since it seems impossible to provide a cogent reply without running afoul of this sites draconian character limits, I have responded herewith.

..

Hi James,

Many thanks for your response, as you noted I’m still banging the drum for a return to the 19^th century, but aside from general failure on that particular cause I’m otherwise well, I hope you are also.

I’ve had to split my response, since the original post was too long!

To take your points in turn;

The ability to distinguish justice from injustice is largely separate from IQ.

On the whole I would largely agree with this, as a standalone principle, and I am certainly not advocating the kind of testing that would screen out any save legal graduates. However, the anecdotal evidence I was indirectly responding to with this suggestion was of jurors for whom spoken and written English presented a significant challenge, for whatever reason. In the same way I would be completely unable to make a reasoned judgement on a trial presented to me entirely in Spanish, it seems unreasonable we are appointing juries without the necessary level of English to understand the topics placed before them. Likewise a systemic lack of knowledge into the roles played by the various components of a modern court system (for example the knowledge that a jury is responsible for coming to a ‘reasonable’ decision based on the evidence presented too it, or the presumption of innocence), seems to increase the likelihood of a decision based on considerations other than those laid down in our legal system.

The fraudster (alleged) being tested for his ability to commit fraud

While fully acknowledging the intentions behind this example, I would conjecture that we do in fact allow exactly this, should the defense choose to present it as evidence.  A defendant who could prove that for medical, physical or practical reasons he was incapable of committing the alleged crime would seem to have a significant defense.

People are people

I think this particular point may well be susceptible to various open ended arguments about how one defines “society” “community” and in particular “peer.” The particular point I was trying to convey here (quite possibly rather poorly) was that juries are largely selected on a geographical basis, which made sense historically because people in a particular geographical location would share many of the things which are usually used to define a community (language, history, social institutions etc). However, in today’s world of mass population movement, the spread of information technology and a near unprecedented level of information exchange, it is no longer reasonable (in my opinion) to automatically equate geographical location with common values and opinions.

Just to further this point I would suggest that as someone who spends a lot of time online (whether it’s writing a blog, reading articles, or gaming), and most of the rest of my time at work, the community I “live” in is in many ways made up of people all over the world. A significant portion of the colleagues I interact with on a daily basis live in India, China and Malaysia, yet for all my ‘global’ community, a trial by my peers would be drawn purely from the geographical district in which my internet connection happens to reside.

My other consideration would be that given the vast diversity of cultures throughout the globe and the vast array of topics on which those systems fundamentally disagree, it seems that even if ‘people are people’ those people come to fundamentally different conclusions on a wide range of topics based on their education, social, spiritual and economic upbringing. Whether it’s the death penalty, the role of women in society, the age at which an individual is considered ‘adult’, or even what rights are ascribed to an individual, people in communities all over the world have different norms. My request is to be tried by a community of people who share, where possible, a set of circumstances that in some way mirrors my own.  I should also point out that I make no attempt throughout this to ascribe any superiority to my views or moral opinions over anyone else’s. As I noted in the article, while I may disagree with others calling themselves my peers, I would not attempt to empathise (however much I may sympathise) with people from radically different backgrounds and cultures.

Precedent, Communities, and who qualifies

I acknowledge from a practical point this is a tricky one. At heart I feel one of the key problems here is a changing over time in the role of a jury (which I believe I mentioned). Once a jury had only the most basic guidance from legal codes, and was largely left to come up with what they felt was a “just” and “reasonable” decision. In the modern world the emphasis is often to decide on another’s state of mind, or to draw inferences as to motivations and actions for which there is no direct evidence. (In Ms Pryce’s trial the sole issue that should have been concerning the jury is whether she was placed in a situation such that she had no alternative but to accept what Chris Huhne wanted, this has very little to do with “justice” and is more pop –psychology).

We already allow judges to rule on the basis of ‘common sense’ and strict application of the law, in cases which do not carry jail sentences. Perhaps a solution may be to change the jury’s duty from deciding innocence or guilt to deciding sentencing? In this way it may be possible to return a jury’s role to that of “reasonable justice” based on shared community standards.

With regards to the issues of “who decides who your peers are” and “how long before you become British” I’m going to split this out into two responses.

Becoming British

The issue of immigration and the contribution of those not born in this country is one I’ve deliberately tried to avoid because it tends to rapidly descend into name calling and bigotry. That caveat given, I would argue that the institutions and traditions are more important than ancestry or geographical location. Becoming part of a community (in this case the particular brand of romanticised nationalism I ascribed too) is not a function of generations or family descendants, or even too which particular nation you belong. The fundamental commonality is belief in a national community. I would far sooner call the men and women I’ve had the honour of knowing from Spain, Sweden, Poland, Russia and elsewhere who still believe in the idea of a national identity part of my ‘community’ than a two hundredth generation native of the British Isles who is contemptuous of any ideal beyond personal fame and wealth.

Picking Peers

On this particular issue I am forced to acknowledge a practical difficulty. In part because any argument presented could immediately be twisted round to argue that habitual criminals should be tried by juries of other habitual criminals. This seems to therefore be self-defeating.

The professional jury may, in some way, counter this. Create a group of people who genuinely uphold the community standards against which you must choose to be judged if you wish to be part of the British community. Regardless of your race, religion, gender, age or anything else, if you are willing to have your actions judged by an independent jury who still give value to the notions of justice, duty, loyalty, dignity and genuine liberty then I would be willing to stand alongside you.

Is it a problem?

This is a difficult one also, since, by law, jury deliberations are secret. However, the Ministry of Justice (I cringe every-time I write that… its only one step away from MiniPax), did commission a study into how juries deliberate.  The full paper can be found here;

http://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf

Without regurgitating large sections of this, it does have some interesting conclusions.  The main thing I took away from it was that most juries struggle with legal direction (only 30% of jurors understand the legal directions given to them), but on the whole juries give relatively fair results (they don’t discriminate based on ethnicity, age or gender).  One thing that is touted as a strength in this paper, but which concerns me personally, is that juries are noticeably more effective where there is significant physical evidence (for example drug possession). If juries can only reliably rule on cases where there is overwhelming physical evidence they don’t seem to bring much to the table. Cases involving ‘state of mind’ or what a ‘reasonable’ person would do have conviction rates between 30-40%, compared with 53% on average, and 80% for the “strong evidence” crimes.

Purely from the anecdotal side of things, here a few examples;

R v Stephen Young on 2 counts of murder; a conviction was overturned when it was discovered four jurors had tried to summon the ghost of one of the victims using an Ouija board, and had been directed to vote guilty by the spirits of the victims.

An Australian drugs trial was abandoned after 3 months after it was found out that a number of the jurors where spending their time in court doing Sudoku because the evidence being given bored them.

A juror on a grievous bodily harm trial was discharged after asking for the defendant’s star sign and date of birth so he could use astrology to determine guilt.

On a personal note (this was a friend of a friend, but its someone I know by name if not an actual acquaintance), I know of at least one juror who had his family threatened if he didn’t return a not guilty vote, and another acquaintance served on a jury, and reported that they spend at significant period of time between each case having to explain the concepts of innocence and that the jury can’t deliver sentencing.

While I accept there is not a raft of evidence pointing to juries being incompetent, it also seems very little research has been done into this area. Maybe if more digging is done on this it would reveal that juries do not, on the whole, convict or acquit on the basis of laws, and if that is the case, and decisions are based on social norms and personal perception, my concerns about peer-groups becoming all the more pressing.

Thanks again for your post, it’s stimulating to actually have to formulate a response, and I hope you’re doing well!

Thanks

/Z