Do jurors remember and understand legal tests?
Earlier this month, we (along with our co-researchers Rachel Ormston and Lorraine Murray of Ipsos MORI and Vanessa Munro of Warwick University) published the final report of a programme of research into the jury system funded by the Scottish Government. The main component of the research was a substantial mock jury study aimed at investigating (a) the difference the three unique features of the Scottish criminal jury (which has three verdicts, 15 members and makes decisions by a simple majority) make to juror verdict preferences and (b) the way in which jurors understand the not proven verdict. Our findings on these key research questions have been widely reported and the Scottish Government has committed to engaging in discussions about the possibility of reform. However, another aspect of the findings – those relating to juror memory and understanding of legal tests – has not attracted as much attention.
In our study, 64 mock juries composed of either 12 or 15 members watched a filmed rape or assault trial and then deliberated for up to 90 minutes (filmed, but without a researcher present) in an attempt to reach a verdict. Mock jury studies are sometimes criticised for their lack of realism. We took as many steps as we possibly could, however, to replicate the real trial experience. Our filmed trials involved professional actors in the roles of witnesses and advocates, with an senior judge (Lord Bonomy) giving legal directions, taken from the Judicial Institute’s Jury Manual to replicate the directions juries would hear in a real trial. The trials were filmed in a real courtroom and experienced legal practitioners advised on realism and wrote the closing speeches. The 864 jurors who sat on the juries were recruited from the general public to be representative of the Scottish population in terms of age, gender, education level and work status. The trials were each around an hour long – so admittedly shorter than most real trials – but in the context of juror memory and understanding of legal tests this is not a significant limitation. If anything, in a longer trial any difficulties are likely to be magnified, rather than reduced.
The jury deliberations were audio and video recorded, providing us with a rare window into the way in which jurors talk about and apply legal tests. There were some legal issues that were common to both of our trials – such as the burden and standard of proof and the corroboration requirement. Others were trial specific (such as the three-part test for self-defence that arose in the assault trial). Jurors were directed on these matters by the trial judge and were permitted to take notes if they wished. No other aids to memory or understanding were provided, as is standard in a Scottish criminal trial.
What, then, did we find? The answer is that jurors do not always recall legal tests accurately and are sometimes confused about the meaning of some legal tests.
The burden and standard of proof
In 14 of the 64 juries, jurors expressed the belief that the accused was required to prove his innocence. This directly contradicted the judge’s directions, which stated, “throughout the trial every accused is presumed innocent unless proved guilty. The accused is not required to prove his innocence.” It was challenged, with varying degrees of effectiveness, in eight of these.
None of our jurors referred directly to the definition of “beyond reasonable doubt” provided by the judge, which states:
…the Crown must establish guilt beyond reasonable doubt. That’s a doubt, arising from the evidence, based on reason, not on sympathy or prejudice, or on some fanciful doubt or theoretical speculation. It’s the sort of doubt that would make you pause or hesitate before taking an important decision in the practical conduct of your own lives. Proof beyond reasonable doubt is less than certainty, but it’s more than a suspicion of guilt, and more than a probability of guilt. This doesn’t mean that every fact has to be proved beyond reasonable doubt. What it means is that, looking at the evidence as a whole, you’ve to be satisfied of the guilt of the accused beyond reasonable doubt.
While there were occasional references to the idea that proof beyond reasonable doubt is something less than complete certainty, there were repeated examples of other jurors referring to the perceived need to be “100%” confident or similar, which runs contrary to the judge’s direction that proof beyond reasonable doubt “is less than certainty”.
The corroboration requirement
In the assault trial, jurors appeared to have fewer difficulties understanding the corroboration requirement. However, in 23 of the 32 rape trial juries, the erroneous belief was expressed that the forensic evidence provided by a doctor would have to unequivocally indicate rape before the jury could convict. The view was challenged by other jurors in 17 of these (although most commonly in an oblique way, by jurors querying how rape cases would ever be proved if this was the case).
The legal test for self-defence
In 14 of the 32 assault trial juries, the belief was expressed that self-defence does not operate as a defence to assault (that is, that the accused in the assault trial was automatically guilty simply because he had stabbed the complainer). This erroneous belief was challenged by other jurors on 10 of these occasions.
The legal test for self-defence is a three-part one, and all three elements need to be present in order to ground the defence (namely reasonable belief in imminent danger of attack, violence as a last resort, and use of no more than reasonable force to stop an attack). However, these were not always mentioned – of the 32 assault trial juries, 13 did not reference all three of them. Even when they were referenced, jurors often struggled to recollect each element clearly. There were very few juries where a juror was able to correctly recall the wording of all three elements of the test. Where this did happen, it was because one of the jurors had made written notes while the trial judge was speaking, but this was highly unusual.
What can we conclude?
We cannot know whether – or the extent to which – such misunderstandings influenced individual jurors’ views and it has to be said that there were no cases where the discussion and verdict expressly proceeded on the basis of a legal misunderstanding. It should also be said that jurors took their deliberations extremely seriously, weighing up the evidence and discussing it thoroughly even when they were easily able to reach a majority verdict. They sometimes brought their own life experience and understanding to the table, to help the jury assess the plausibility of the prosecution or defence case. However, the fact that jurors struggled to remember legal tests and that legal misunderstandings arose relatively frequently across the 64 juries suggests a need to consider whether jurors require additional guidance to aid their discussion.
Another strand of this research involved an evidence review on ways of improving communication with juries. This found that written directions and structured decision aids can be effective in improving memory and/or understanding. Written directions involve giving jurors a written copy of the judge’s directions in the case. There is a substantial body of evidence to suggest that this helps jurors to remember and understand legal tests. Such improvements in understanding tend, however, to be limited to improvements in simple comprehension. In other words, they help jurors to remember and accurately re-state legal directions. Structured decision aids (sometimes called ‘routes to verdict’) are documents that contain a series of primarily factual questions – which might be presented as written questions or in diagrammatic or flowchart form – that gradually lead jurors to a legally justified verdict. Evidence suggests that these are particularly effective at improving ‘applied’ comprehension – jurors’ ability to correctly apply legal tests to the evidence. The evidence review found that the use of structured decision aids is well-established in other jurisdictions, including England and Wales, Canada, New Zealand and some Australian states and territories. Maybe it is time to introduce them in Scotland?
~ James Chalmers and Fiona Leverick
Professor Chalmers is Regius Professor of Law at the School of Law
Professor Leverick is Professor of Criminal Law and Criminal Justice at the School of Law
