Why Judges & JuriesNeed (Some) Academics

Professor Cheryl ThomasDirector, UCL Jury Project

Co-Director, UCL Judicial InstituteUCL Faculty of Laws

How the Jury System

has benefited from academic study

In 2003 when Jury Project started• no research since 1992 (Zander

Crown Court Study for Runciman Commission)

What filled black hole?• Professional anecdote• High profile cases • Foreign research• Historic view of juries

What Do We Know About Juries Here?

Guiding PrincipleResearch conducted only with actual juries at

Crown Courts in England & Wales

Multi-method approach 1. Large-scale analysis of actual jury verdicts2. Surveys of jurors3. Case simulation – with real juries at court

2 Reports2007 Diversity & Fairness in Jury System2010 Are Juries Fair?

UCL Jury Project

Who does (and does not do) jury service

Whether juries are: • fair• effective

Whether juries understand: • jury process• judicial directions

Whether media has impact

What Do We Know Now

• There is no mass avoidance of jury service: 85% of those summoned reply & vast majority serve

• Jury pools are representative of local populations

• High income earners have highest rate of service

• Ethnic minorities, women and self-employed are not under-represented among serving jurors

• Unemployed and retired are under-represented

Reforms not needed to summoning system

Myths Exposed (post Auld)

Large number of juries saw an identical case (ABH)

Only difference was the race of the defendant (Black, White or Asian defendants)

Study run with large number of all-White & racially mixed juries at courts around the country

FINDINGS: No Evidence of Racial BiasVerdicts didn’t differNo evidence of racial stereotyping

Supported by analysis of all jury verdicts 2006-08

Are Juries Racially Biased?

No difference in conviction rates based on ethnicity (68,874 jury verdicts )

All Jury Verdicts 2006-08

Myths about Jury Conviction Rates

Exposed• Analysed all jury verdicts 2006-08• 64% conviction rate• Offence, court, number of offences, ethnicity• Offence type was the key factor in difference

in conviction rates

Threatening to kill

Common assault

Attempted murder

Manslaughter

GBH (s.18)

Unlawful wounding (s.20)

Handling stolen goods, Burg...

Murder

Falsely obtaining benefit, Co...

Conspiracy to rob

Money transfer by deception

Drug possession with intent t...

Death by dangerous driving

Making indecent photos of ch...

Low

est

Hig

he

st

36%

41%

47%

48%

48%

49%

73%

76%

77%

78%

79%

84%

85%

89%

Threatening to kill

Common assault

Attempted murder

Manslaughter

GBH (s.18)

Unlawful wounding (s.20)

Rape

Handling stolen goods, Burg...

Murder

Falsely obtaining benefit, Co...

Conspiracy to rob

Money transfer by deception

Drug possession with intent t...

Death by dangerous driving

Making indecent photos of ch...

Low

est

Hig

he

st

36%

41%

47%

48%

48%

49%

55%

73%

76%

77%

78%

79%

84%

85%

89%

Reality: Juries convict more often than acquit in rape

• 55% conviction rate: 4,310 verdicts, all courts, 2 years • Home Office report (Kelly et al 2005) claimed juries

acquit most often: 181 verdicts, few courts, short time

Conclusion• Low conviction rate for rape (6%) is not due to juries.

The Truth About Juries & Rape Cases

Myth: Juries rarely convict defendants at certain courts (eg, Snaresbrook)

Reality: Jury conviction rates by court range from 69%-53% So no courts where juries acquit more than convict (Snaresbrook = 65%)

Postcode Lottery in Jury Trials?

Are Juries Effective Decision-Makers?

Once sworn: • Rarely discharged (<1%)• Deliberate on 89% of charges

Once they deliberate• Reach verdict over 99% time

Hung juries – almost always: • on multiple charges• reach some verdict

Juror Understanding of Legal Directions

Most jurors (68%) said legal directions were easy to understand

But only 31% correctly identified both key questions after oral directions

Written summary of directions substantially improved comprehension

What Does It Mean? It does not mean most jurors didn’t understand legal instructions. Means they did not always see them in same legal terms used by judge.But written summary improves comprehension of specifics of law

The “fade factor” exists: Jurors mostly recall in-trial, not pre-trial, media

reports

But 1/3 in high profile cases recalled some pre-trial coverage

And 20% of jurors on high profile cases who recalled media coverage said they found it hard to put it out of their mind

Are Jurors Influenced by Media?

Jurors use the internet to look for information about cases despite judicial directions against it

More jurors said they saw information on internet during trial than admitted actually looking for it:

• High profile cases: 26% saw - 12% looked• Standard cases: 13% saw - 5% looked

Not primarily younger jurors: most jurors who looked on internet were over 30 (81% in high profile cases).

What we still don’t know: • How are jurors using internet/social media?

• What is most effective way to ensure jurors do not use internet inappropriately?

Juror Use of Internet

Do Jurors Understand the Process?

Jury Deliberations & Improper Conduct

• Almost all jurors (82%) felt jurors should not be allowed to speak about what occurs in jury deliberations

• Most jurors (67%) wanted more information about how to conduct deliberations

• Almost half (48%) were uncertain or did not know what to do about improper jury conduct

• Preventing improper conduct (inc. internet)• Improving jury deliberations• Impact of special measures• Judicial directions on law • Insanity & fitness to plead• Contempt

Research agenda devised after consultation with judges, HMCTS, and others

New UCL Jury Project Research

Where Academics Go Wrong

orWhy Academics Need Judges &

Juries

Most academics fail to consult judges, court service, legal community before: • identifying areas of research• determining methods for examining topics –

that are most effective and also do not adversely impact the justice system

Myths about what can and cannot be explored with real juries have affected both the jury policy and research agenda

Myth of S. 8 Contempt of Court Act 1981: it is a criminal offence to

“Obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations”

Jury Research Myths

Misunderstandings about how to address specific jury questions have led to misguided “jury research”

Example being how to address whether juries are racially biased – belief was it was impossible because of s.8.

But all s.8 prevents me from doing is asking juries that convicted black defendants whether they convicted him because he was black…. Not effective methodology

Jury Research Misunderstandings

Mistakes about how to properly use jury research methodologies have produced questionable if not dangerous research findings

Great rush to use case simulation – but outside of UCL Jury project case simulation is never done in this country with real juries: students, volunteers, etc. used instead

Jury Research Mistakes

Most “jury research” is in fact

not done with actual jurors not done with authentic and complete case materialsnot conducted at jury verdict levelnot conducted with large enough or representative sample sizes

No attempt to test solutions

“Merely to explain and understand is to fiddle while Rome burns.” Ronald V. Clarke

Most researchers looking

only to discover problems

Not just narrow points about methodology

Real world impact

• Challenges facing trial by jury in 21st century … including criminal law reforms based on little more than assumptions about how juries work

• Jury Project showed proposed summoning reforms based on false assumptions

• Danger that criminal law reforms are introduced that do not achieve ends or have counter-productive effect

Why Does It Matter?

• Do juries understand complex evidence?• Do juries really defer to experts?• What is best way of presenting complex evidence to jury to

ensure it is understood?• Is there a CSI effect?• How does visual presentation affect jurors?• How do jurors perceive “virtual” evidence?

Evidence: complex, forensic, fraud, remote, virtual

Important questions in need of reliable research

What about Judges?Know even less about judges and courtsNo history of judicial studies in UKShocking in 21st century

The judiciary is the third branch of government, equal in importance to the legislature and executive in this country.

Today, there is isn’t a single important social issue in our society that judges at some point aren’t asked to adjudicate.

Yet in the UK the academic community has not really addressed the reality of judging or served the judiciary well with robust empirical research on the judicial process.

The UCL Judicial Institute has been established to rectify this and create a home for world-leading scholarship on the judiciary

Danger of Lack of Study of Judges & Courts

Same as with juriesMyths will abound & Reform agendas will be set by • Unsubstantiated anecdote• Out of date perception of judges and courts• Perceptions based on media interest in certain issues

But perhaps even more dangerous than lack of empirical study of juries• Juries have judiciary and public to defend them –

judiciary lacks in-built public support and currently has little empirical evidence to help fight its corner

JI Approach• Empirical research as starting point for deeper

understanding of judges, juries and courts

• Research agenda devised in consultation with judges, practitioners and courts

• Judges with role to play in academia

Projects: Tribunal Decision-Making, UKSC Project

Academics & Practitioners:

Friends or Foes?

Reality is we are neither friend nor foe

We’ve been strangers for far too long

This is disservice not just to both professions but more importantly to the quality of justice