Our legal system and its judges and lawyers at once treat jurors as morons and geniuses.
Lay people must have been extremely puzzled this week as to why the murder trial of two young women students had to be aborted. Indeed, the episode adds strength to the view that we should scrap the jury system.
The two were being tried together. In the fourth week of the trial some evidence arose which caused the judge to abort the trial.
Bear in mind much of the trial time has been taken up with a ritual farce that goes on in criminal trials called the voir dire. This is where evidence is taken in the absence of the jury and the judge rules on whether it is admissible under our very strict rules of evidence. If the judge rules that it is admissible, the jury files back into the courtroom and the evidence is then taken a second time in their presence.
In the case this week, in absence of the jury, some evidence was taken about a possible motive for the murder.
The next bit gets a bit technical and I cannot put it into plain language without telling you the exact nature of the evidence.
I am not allowed to tell you the exact nature of the evidence because under our law journalists and their mates are allowed to know these things, but the ignorant masses can’t be trusted with them because they might become prejudiced by them and they might be called to serve on the jury later. The judge also can know the exact nature of the evidence because judges can’t be prejudiced. Jurors, however, are capable of great prejudice and are too dumb to be allowed to hear the evidence and be warned about the nature of the potential for prejudice, but at the same time are expected to engage the in super-human feat of being shunted from juryroom to court over several weeks while lawyers and the judge argue about which bits of evidence are admissible.
Now for the technicality. To avoid the problem of prejudicing a potential new jury (all of whom I’m sure are avid readers of this column) I’ll use a different example.
Two people are accused of robbing a bank are being tried jointly.
A witness is ready to give evidence about what Accused One told him about what Accused Two had told him (Accused One).
The evidence is what lawyers call hearsay evidence. It is not directly what a witness saw or heard but a second-hand report of what someone told the witness what he saw or heard. Usually hearsay evidence is not admissible unless it favours the accused. It is certainly not admissible if it would colour the jury’s view of an accused out of proportion to the tendency for the evidence to indicate guilt.
In the bank robbery trial, the witness says Accused One told him that Accused Two had told him (Accused One), I’m going broke I need the money, whereas the prosecution is saying they both did the crime for thrills. Accused One, however, is quite wealthy.
This evidence helps Accused One. It shows Accused Two could have acted alone for the money. The evidence could damn Accused Two who is now shown to have an independent reason for doing the robbery.
In a joint trial, the situation is impossible. If you allow the evidence to help One, Two cops the jury knowing about the possible motive.
In this week’s murder trial a similar thing happened and the judge had no option but to abandon the joint trial. Presumably at the new separate trials the jury in one trial will hear the evidence and be allowed to make a judgment bearing it in mind, while the other jury must make its judgment without that evidence.
Bizarre isn’t it?
In many single trials similar things happen. Lots of evidence that would help people form a view in matters of ordinary life are excluded from juries trying to form a view about criminal conduct. It’s called being fair to the accused. So fair, in fact, that great chunks of evidence get left out of trials on technicalities and it shows why so many trials with expensive lawyers result in acquittals, and often acquittals of people who would be confidently found guilty by ordinary people presented with all the evidence.
The fundamental trouble is that our evidence law is incompatible with our view of juries. If we are so concerned that juries are so easily prejudiced, why use juries at all. They are really far to fallible and fragile to be trusted with criminal justice.
Over the years there has been a dumbing down of juries because anyone with a professional career or business can easily get excluded.
Juries have been given too much favourable propaganda. The legal system makes it virtually impossible for open discussion on perverse jury decisions. For a start anyone acquitted can sue for defamation if you even hint the jury got it wrong. And the courts can impose fines and jail terms for those to seek jurors out to find out how they performed their task.
But without occasional examination of individual cases, it is difficult to expose faults, in the same way that, say, faults can be exposed in the medical profession or among demolitionists.
All we are left with is the sanctity of the jury. The pinnacle of British justice and the bastion of our freedom.
More likely, juries are well-meaning amateurs. Lawyers like them because they are often gullible and provide delays and duplications that cause higher costs. (Of course, lawyers detest the idea of semi-amateurs like real-estate agents making inroads into their conveyancing monopolies, but are happy to have rank amateurs deciding criminal guilt or innocence.)
The trouble with these well-meaning amateurs is they are told that when in doubt acquit, and any suggestion that too many guilty go free is met with the non sequitur, “”How can they be guilty if they have been acquitted by a jury?”
We should scrap juries and then we would not need the hugely technical and restrictive evidence rules that allow so much material to be withheld from the court.