The photo above is of the first of several shocking steps in a process that ends with the production of the sausages some of us know and love. As with the sausage making process, if the general public knew how jury decisions often get reached it would be shocked, revolted, and terrified.
We don’t generally care much about the process by which jury verdicts are “produced” for the simple reason that we don’t think we’ll ever be in the dock. And I suspect we like to have faith in our justice system, which requires us to not know too much about how it works.
This week I attended an event organised by miscarriage of justice legal campaign charity Appeal. Speakers comprised miscarriage of justice victims, Andrew Malkinson, Winston Trew, and Dr David Sellu, and activist scholar professor Angela Allen-Bell. Researchers Nisha Waller and Naïma Sakande presented findings from their new paper DOUBT DISMISSED: Race, Juries & Wrongful Conviction.
According to Naïma Sakande, for seven centuries up until 57 years ago, jury trials in England had required uninanimous 12-0 verdicts. Then, in 1967, the home secretary at the time Roy Jenkins decided to allow majority verdicts. He did this as he was worried about jury nobbling, despite there being little evidence of such (see photo). Our current system is in stark contrast to that in the US, where felony cases must be decided by unanimous verdicts.
There is little research on whether the 1967 change led to more guilty verdicts and, by implication, more wrongful guilty verdicts. However, how could it not have? Before 1967, a 10-2 situation in favour of guilt during deliberation could have ended with a guilty, not guilty, or no verdict being returned. After 1967, it would only have been ‘guilty’. Andrew Malkinson, Winston Trew, and Dr David Sellu were all convicted by majority verdicts and the report that the researchers presented listed 54 others who were also wrongfully convicted by majority verdicts.
Dr David Sellu posed the question, what does reasonable doubt actually mean in percentage terms? We know that in civil cases, on the balance of probabilities means 50% but what about reasonable doubt in criminal trials? If a juror asks the judge what, precisely, reasonable doubt means, they are told it is up to them to decide.
According to this paper by the New Zealand Law Commission, “many jurors said that they, and the jury as a whole, were uncertain what beyond reasonable doubt meant. They generally thought in terms of percentages, and debated and disagreed with each other about the percentage certainty required for “beyond reasonable doubt”, variously interpreting it as 100 per cent, 95 per cent, 75 per cent, and even 50 per cent. Occasionally this produced profound misunderstandings about the standard of proof.”
It terrifies me that 12 being only 95% sure could deprive someone of their liberty, let alone 10 jurors being 50% sure. One-sided hypothesis tests in scientific studies tend to use 97.5%. If someone’s reputation or, worse, liberty, is at stake, surely the bar should be set higher than this. Think about the impact of getting it wrong, and perhaps you’d conclude it should be higher. 99% perhaps? To put that number it context, 1% chance of error is equivalent to a dart being thrown at random at one hundred playing cards on a wall and you, an innocent person, being put away for 20 years or more if it hits the one card marked “mistake” (for what it’s worth, the bar for me is 99.9%, or a 1 in a thousand chance of getting it wrong, but I have to say even that feels too low).
One of the speakers made a very valid argument against majority guilty verdicts, namely that they in themselves represented reasonable doubt. After all, 1 dissenter is 8% of a jury of 12. Where majority verdicts were returned, it was argued, they should automatically trigger greater scrutiny by the Criminal Cases Review Commission (CCRC).
Although, mathematically, 1 in 12 is 8%, in cases where an innocent person is on trial, one believer in innocence among 11 believers in guilt is so much more important than 8% (there is nonlinearity). They will generally have better critical thinking skills, have seen the holes in the prosecution’s evidence, and sometimes be able to bring others around to their view. There is also nonlinearity with respect to impact i.e. the impact of a wrongful conviction is so huge in comparison to the benefit of a correct verdict.
With majority verdicts, that one person has no importance whatsoever.
The English jurist William Blackstone famously wrote, “It is better that ten guilty persons escape, than that one innocent suffer.” It is a personal thing, but I’d rather a thousand guilty escape justice. Can you imagine anything worse that having your liberty and dignity taken from you if you did nothing wrong?
Laws prevent jurors being asked about how they came to their decision. Research on the subject is sparse and unenlightening given the lack of empirical data. Mock jury TV documentaries perhaps shed the most light on how jury verdicts are reached. I’m sure there are many juries that I would be happy to judge me, but my overwhelming feeling watching these programs was one of utter terror.
Jurors today must appraise far more complex evidence and statistics than did their predecessors. Scientific and medical experts who “were not there” explain to jurors the complexities in their field of expertise that allow them to testify as if they had been. Doctors acting as witnesses of fact, unlike other such witnesses, are allowed to opine, often on obscure branches of medicine. Are today’s jurors really equipped to deal with this?
I attended a workshop in January about the use of statistical tools in the criminal justice system. The small group meeting that I joined was about guidance for judges and jury members in relation to evidence containing statistics. The two eminently sensible ideas that came out of the discussion were 1) A decision tree based model to assist judges in accepting and questioning evidence; and 2) A video presentation that presents key concepts to juries in a simple manner to assist their understanding and thus interpretation of statistics.
Rex v Lucy Letby is a case in point.
The roster table with an uninterrupted line of X’s in Lucy Letby’s column that was shown to jurors was a statistical abhorrence. It purported to show that Lucy Letby was present for all the events, and would have been very compelling to jurors as evidence of her guilt. But there were at least 35 other events that were appraised by lead prosecution medical expert Dewi Evans that were not included in the table, so all it was really saying was that Lucy Letby was on duty when she was on duty. Judges, most of whom are not trained in statistics, should be given the tools to realise such constructs are deeply flawed, sometimes fatally, and thus to dismiss them as evidence.
As for the second suggestion about a video presentation to jurors about statistics, this may help them to appraise statistical evidence where the judge has not done that for them. And at the very least it might give those who need it some grounding in logic and common sense that form the bedrock of sound decision making.
The world today is far more complex than it was 700 years ago or even 50 years ago. Surely reform is warranted, whether with respect to juries or judges.
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