Serendipity has been momentous in the cause of pure research. So often researchers looking for one thing stumble across another of much more practical significance.
Let loose a few researchers in pure fields and who knows what they might come up with – usually things of more value than directed research.
This is of great interest to journalists because the journalists’ task is to report and comment upon new things. So research that serendipitously spits out new findings of great practical importance is news.
This sort of “news” is not especially time dependent, unlike disasters, political shifts, business events and the like which are only news at the time of happening. Research results — which usually reveal aspects of the world in a new way – will remain newsworthy so long as no-one else has published them to the world at large before you.
And so it was this week that some results of a study by the NSW Bureau of Crime Statistics and Research hit the news. The results had been publicly available for more than three months. The research was into jurors’ attitudes to evidence given by closed circuit television in juvenile sexual assault cases.
But the really interesting thing was an incidental finding which was on Page 12 of the bureau’s 20-page report. It was not until week that it was extracted and put on Page 1 by The Sydney Morning Herald.
You see, the bureau got an exemption from the general rule that you cannot talk to jurors in its quest to see the value of CCTV evidence. It was going to be useful to correlate those attitudes with findings of guilt, so jurors were also asked, almost pro-forma, what their finding was on guilt. The surveys were done immediately after trials. And guess what? A large number of jurors got the question on guilt wrong. Some thought they had acquitted when they had in fact found guilt and vice versa.
In all, 277 jurors from 25 trials were questioned and in only six cases did all jurors correctly state the verdict in the case they had tried. In one trial, 10 jurors reported reaching three different verdicts. Bizarrely, seven of them thought it was a hung jury, when they in fact acquitted.
In 40 per cent of cases, at least one juror said the finding was not guilty by direction of the judge, when the judge gave no such direction.
The question of what jurors think about CCTV is of little moment compared to finding that a lot of jurors have no idea what they are doing or what they have done.
These were all sexual assault cases. It seems that the judges’ warnings on it being “dangerous or unsafe” to convict if they found corroborating evidence unconvincing was seen as a hint or even an order from the judge to acquit.
The legal profession’s reaction to the findings was a bit odd. So ingrained is the belief in the jury system that the president of the NSW Bar Association, Michael Slattery, said he would have greeted the findings with disbelief if they had not come from the bureau which has such a good reputation for sound research.
“The legal profession’s view is that the jury system works very well,” he said.
Well, how can we know how it works? The law prevents us from finding out. We are not allowed to talk to jurors. This rare exemption to that rule gives us some clear evidence that jurors do not know what they are doing and shows that the jury system is probably defective.
We randomly select 12 people. Most people with good jobs, a business or children to look after can and often do get themselves excluded. So we are often left with people with low skills.
Juries do not have to give reasons for their decisions, so we have no idea whether their reasoning processes are sound. In these days of long and complex trials with defence counsel often taking every point however unmeritorious, is it any wonder that jurors are confused?
Most criminal cases in Australia are not dealt with by juries, but by a single magistrate. So there is nothing innately wrong or unfair about judge-alone trials. Bizarrely, we reserve the most serious and complex cases for juries, who unlike magistrates have no professional training or experience to deal with them.
We have had a lucky glimpse into the jury system. My guess is the bureau would not have been given been given permission to research the general question of the effectiveness of juries. It was allowed to research how they receive evidence on closed-circuit TV and only through serendipity do we find that many jurors do not know what they are doing.
Given that they system requires that all jurors agree, having only one incompetent juror is enough to wreck the process.
There is far too much unquestioning acceptance that the jury system is effective. Given the bureau’s findings and the high importance of criminal justice in society, every state and territory should launch research into whether juries are doing their job.
We have evidence-based quality control and best-practice guidelines in virtually every aspect of our lives, but when it comes to trying serious criminal matters we randomly select a few people off the street, expose them to days of information presented in a way that is quite alien to them, shut them in a room and tell them to make an immediate decision without giving any thought-out reasons.
You might entrust a jury to judge a song contest or reality TV show, but you wouldn’t run a hospital, mine, factory, school, building project or any other serious human endeavour that way. So why persist in the case of the criminal law?