Should justice be a lottery?

I have just completed one week of jury duty. During that week we were deciding on one case. The case is now officially over. However, since we, the jury, couldn’t reach a verdict, the Crown will now decide if they want to repeat the case. I do not intend to talk about the case at all, I’d like to talk about my experience as a member of the jury.

Let me start from the beginning.

I went into this duty without any knowledge or preparation, except that I read a small brochure mostly about what I can claim and when I need to be where. I had some idea about how serous this duty was mostly because I work in the Voluntary Sector so I’ve met many people who have suffered a great deal due to lack of justice. However, I felt completely unprepared for the burden of responsibility I felt once I got into the courtroom and the hearing started. Not only did I find myself in a position of deciding a fate of a complete stranger, but I also felt I am taking direct part in delivering justice, something I consider the Holy Grail, the cornerstone and the main pillar of a peaceful and prosperous society.

There were three charges in total, all related, two smaller ones and one extremely big. After the hearing we retired into deliberating room. On the first day we only had an hour. In this hour we elected the foreman which was done on the grounds of how many notes the juror took. At the time, I thought nothing of it. I felt it didn’t matter as this person is only responsible for reading the verdict. I thought if the juror is not able to moderate our deliberation I could step in with that regardless whether I am the foreman or not. On the first day, I believed there might be a need for this as our conversation went all over the place and more than once we had a number of conversations going on at the same time. However, I decided I will see how we do the next day before I suggest that I moderate our deliberation. I happened to meet one of the jurors in the lift and I said that I wasn’t pleased about how the moderation was going and that I might suggest stepping in if it carries on like that. The juror said that perhaps I should suggest that either way. I said that I am a strict moderator and then we joked about my style of moderating. During this one hour on the first day we also decided to deal with charge number three first, as there was more evidence for this charge than the other two.

The next day the foreman started our deliberation with the suggestion that we deal with charges chronologically. This was accepted with smiles and nods. I didn’t say anything, mostly because I felt confused. The deliberation started, I accepted this change even though I believed it to be wrong. Soon, the conversation returned to evidence relating to charge three, as charge one was impossible to consider without considering charge three. At the point where the deliberation naturally went to evidence regarding charge three, I said that perhaps we should go back to the initial decision of dealing with charge three first as that’s what we were talking about anyway. No one said anything, but to me it was obvious they didn’t agree despite the fact that they themselves reverted the conversation to evidence related to charge three. At this point I believe they unwillingly accepted my suggestion. Later on this came up again; it was after we had vote on the questions given to us relating to charge three and when we were deciding on charge one. One of the jurors said “The charge one happened first, so this is why I thought dealing with that one first was a good idea.” There were some other comments before I gave my view on charge one and then I said “The only way I can make any decision relating to charge one is by looking at charge three.” I believe at this point others agreed and this issue was dealt with. However, I did wonder if there was a conversation about me while I was not present and if it had anything to do with my suggestion that I help with moderating.

I believe the moderation of our deliberation did not go well and I tried to help as much as I could. Few times I said that we have to go back to the topic and once I said “The chit-chat is fine, but we do have decisions to make.” I mean no disrespect to the foreman. I believe this juror had excellent intentions, they contributed, however I do think they didn’t know how to moderate. Moderation is not an easy task, especially when you also have to take part. I hope I didn’t not insult the juror with my stepping in and I hope they do understand that I had best intentions at heart.

At this point I’d also like to mention that a relationship between jurors developed very quickly. This was both positive and negative. Positive was that, generally speaking, it created a friendly and relaxed atmosphere, which was very much needed to balance out the burden of the task. On the other hand, it was negative, as it created a connotation that we should vote the same. I felt that for some jurors voting differently meant they had to make an excuse rather than an explanation.

With respect to charge three, despite the evidence, three jurors voted not guilty. From what they said before the voting and later on, I had the impression that one juror decided on the not guilty verdict because they did not believe the plaintiff (I will say more about this), second juror decided not guilty because they didn’t think the defendant realised that was the wrong thing to do, and the third juror couldn’t vote guilty because they need to be 100% certain which they were not.

At the very beginning of our deliberation we mentioned something about the 100% certainty. After the whole experience, I believe this is one of the key issues that perhaps needs to be addressed on social level: 100% certainty vs reasonable doubt. I believe no person should ever take part in jury duty unless they have a moderate idea of what this means. I’m not sure I understand what it means even now after the experience. I would certainly like to at least discuss this point, if nothing else I’d like to compare my view to other views.

With the vote of 9 guilty and 3 not guilty on charges one and three, we moved to the big charge, the charge two. I confess, I lost sleep over it. I examined myself over this more than I’ve done in many years. For me, it helped that we were not permitted to talk to anyone about it because I need silence when I have an internal turmoil I feel I need to sort out. I did wonder about other jurors. I can’t be certain, but I believe one juror mentioned they spoke to their partner.

I felt voting not guilty would be easy. However, it felt wrong. I couldn’t justify such a vote. On the other hand, voting guilty was very hard. It felt right because I could justify it, but voting that way… Eventually the time came to vote. I was shaking. I remember my hand wanted to go up, but I couldn’t let it. Another conversation with myself, asking other jurors for reasons which they failed to deliver, I found myself telling myself “Stop being a coward, you idiot”. I raised my hand to guilty. The moment my vote was taken I felt relieved. I felt I did the right thing. After that I was at peace with my decision. However, I realised that a decision like that took a lot of courage. It was only after I felt calm that I realised why it was so hard to vote ‘guilty’. It had nothing to do with the evidence. It had nothing to do with doubt. It was about saying, under oath and in court of Law that someone had done such a bad thing. For lesser offences it is much easier to cast your vote. However, for such a big offence… A lot of courage is required even if you are certain beyond reasonable doubt. And this is what frightened me. This means that those guilty of lesser offences are more likely to be found guilty than those who have done greater crimes. In my view reasonable doubt is a given – considering how many times scientific evidence was disputed and in time considered not so trustworthy, how can we ever be certain? Besides, why would it come to court if it is certain? If the evidence was unquestionable, there would be no need for a hearing. I don’t think I was the only one who felt like this. One juror changed their mind when we voted the second time. Their eyes watered as they did it, and they felt compelled to justify the change. The justification described that they felt the same way I did. A number of other jurors who maintained a not guilty vote kept repeating: I just can’t be sure.

I have wondered what they would say under different circumstances. For example if we were in a pub just gossiping about this case. I believe in those circumstances a number of other jurors would have decided that the defendant was guilty.

In this case, for this charge, persecution had plaintiff’s word as evidence. I explained to other members of the jury that my thinking was to check the validity of this evidence by looking at: 1. Defendant’s claim to innocence, 2. Plaintiff’s actions and 3. Possible motive for the plaintiff to claim this if it were not true. After some deliberation I believe we all agreed that plaintiff’s actions support the claims. In other words, plaintiff’s deeds and words went hand-in-hand. We also couldn’t find a motive why the plaintiff would claim this if it were not true. In fact, there was some evidence why the plaintiff would say this if it were true. We all agreed that the defendant was capable of such action. The question was: Just because they are capable did the defendant do it? We agreed that there were times when the defendant lied on important matters. We also agreed that in defendant’s mind some things that are wrong are not wrong, which would make it easier for the defendant to do such a deed. However, this wasn’t enough to conclude that the defendant’s claim is without doubt true. As a result, many jurors continued to have doubt about the plaintiff’s word. This doubt lead them to vote not guilty. When asked what would make them believe the plaintiff, the only answer given was ‘Scientific evidence’. I wondered why cases that depend on someone’s word even make it to court since no one can ever be certain who is telling the truth. One juror said that perhaps the defendant was lying because the defendant was afraid the truth would imply guilty even though the defendant was innocent, thereby justifying defendant’s lies even under oath and trusting the defendant more than the plaintiff.

As I mentioned earlier, one juror openly said that they did not believe the plaintiff from the very beginning. Initially the juror said that it was because the plaintiff did not show right emotions. After some deliberation, the juror said that they didn’t believe the plaintiff, because they just didn’t believe. Considering that this was the first evidence presented at the hearing, this juror viewed the rest of the hearing in this light and this showed during our deliberation. I believe it is vital to underline at the very beginning, before the hearing starts, that members of the jury must listen to evidence without making up their mind until everything is heard. In fact, if a person cannot help themselves but make up their mind so strongly after hearing just one piece of evidence, should they even be a member of the jury? Could someone with prejudice and subjective thinking be trusted to make a fair judgement? This particular juror at one point said ‘If (this) was said I could vote guilty’. What the juror required, two witnesses apart from the plaintiff claimed was said. Yet the juror maintained not guilty vote.

Another issue that struck me was the difference between excusing behaviour and calling it wrong. I believe one juror could excuse the defendant’s behaviour even though they agreed it was wrong on the grounds of defendant’s upbringing. This lead the juror to vote not guilty. During the deliberation a number of jurors tried to explain that just because the defendant did not realise the magnitude of the actions it do not make the defendant innocent, the juror seemed to fail to understand and maintained not guilty vote.  

Another juror said that they can’t vote guilty because they watch a lot of ‘prison break’. To balance it out I was trying to think of TV shows that are about someone guilty getting away with it and I couldn’t think of any. I remember thinking how insane it was that some poor person out there who might be a victim of a horrible crime may not see justice because I don’t watch that much TV.

In short, for me, deliberation was of some value but very limited since no one had sufficient knowledge of the law just to point out some explanations and we all just swapped views. It had some effect, at least for some jurors, so I wouldn’t call it a complete waste of time, but did very little for the outcome.

As far as the hearing in concerned, we all felt that more information should have been presented. I was confused about the statements that lawyers on both sides made to which the witnesses responded with ‘incorrect’. Are witnesses obliged to make a response to any statement a lawyer makes? If so, how much is a witness permitted to say about the statement?

Key piece of evidence delivered by the defence was not brought forward before the hearing to anyone. Persecution saw it at the same time we did. I could have checked the validity of this evidence myself and it was very difficult not to; however, I didn’t and I don’t think any other member of the jury did. While I do understand the need for the defence to have the right not to present all the information, I believe that that right was abused in this case and it prevented the truth. And since I saw my job being finding out the truth, I felt the defence prevented me from doing just that.

I think many members of the jury were very influenced when the defendant’s lawyer said: “My client didn’t need to be here. (my client) didn’t need to say anything at all. It was the job of the persecution to prove (the case). If you have any doubt they have, then you must find (my client) not guilty.” The judge later gave us written statement regarding this, however, these words were far more powerful and I believe they stuck in minds of a number of jurors.

Having experienced this duty, I feel justice deserves more. While I agree with the idea of having a jury, and I do agree that each person has contributed at least to some degree and in some way, I do not think this is the way to deliver justice. We should not leave something so vital to our society in the hands of inexperienced citizens who pretty much walked off the street and into the court. No one is able to do everything. There is a great difference between ‘opinion’ and ‘judgement’. This is not like ‘judging’ our neighbour’s behaviour with other neighbours at a local pub. While the idea that anyone can do jury duty sounds fine in theory, I think it is naïve to believe that in practice.

Anyhow, since the jury couldn’t reach a verdict the Crown has the opportunity repeat the hearing. This is a small consolation. However, I can’t help but wonder who will be the next jury. Will the plaintiff or the defendant be luckier next time? How did it come down to justice being a question of luck? What kind of society can we expect if justice is depending on ‘the names that come up’? At this point, if something happened to me, unless I had scientific evidence, I don’t think I would report the crime.

Considering the vital role justice plays for social peace and prosperity, is it worth considering educating the citizens from an early age about the jury duty? Would it help to make literature now to be sent to future members of jury? Perhaps testing would help? I believe even some experience in court might be at least a little helpful – for me, it was the first time in court. I have watched recordings of hearings, but I have never been in a court. I wish I had at least some idea of what to expect. Perhaps there should be a ‘shadow jury’? I don’t know, but I do know that what we are doing now is nowhere near enough. In my opinion, more must be done. Justice is as complex as it is valuable.

In the end, I’d like to point out that I thought we were very fairly treated. The staff are very pleasant. I thought it was very well organised.

Facilities need attention: Issue with lockers, toilets and such are quite important. Crown Court should not be worse than a school gym.

THE END