Justice, Democracy and the Jury

James Gobert

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367026660
• eBook ISBN: 9780429676093
• Edition: 1
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

First published in 1997, this volume recognises that on trial in every criminal case heard by a jury is not only the defendant but the democratic premise that ordinary citizens are capable of sitting in judgement on that defendant. The jury is a quintessential democratic institution, the lay cog in a criminal justice machine dominated by lawyers, judges and police. Today, however, the jury finds itself under attack – on the right, for perverse verdicts, and, on the left, for miscarriages of justice. Justice, Democracy and the Jury is an attempt to place the jury within a historical, political and philosophical framework, and to analyse the decision-making processes at work on a jury. The book also examines whether the model of the jury can be adapted to other decision-making contexts and whether "citizens juries" can be used to revive a flagging democracy and to empower the people on issues of public concern.

1 Justice and the Jury

The dilemma for states which purport to subscribe to the rule of law is how to reconcile the requirements of the law with the demands of justice. The view which equates justice with law or sees justice implicit in law (Hobbes, 1914, ch. 30) is too simplistic. Obviously, society wants its laws to be just, and no legislature consciously sets out to enact a law which it knows is unjust (or so we would prefer to think). Nonetheless, many examples of unwise and unjust laws can be found. Even more commonplace are instances where the strict application of a just law to the facts of an individual case can lead to an unjust result. A just law, unjustly administered by police and prosecutors, presents yet a further danger. To avoid the latter, the legal system increasingly puts its faith in the objectivity provided by uniform rules and procedures. While these may help to guard against arbitrary decision-making, they may be powerless to prevent the injustice that can flow from laws that are themselves unjust or the application of just laws to inappropriate fact situations. Indeed, uniform procedures may inadvertently abet these kinds of injustice.

It does not follow that the state should go to the opposite extreme and issue a directive that justice be done in all cases without regard for law. If judges (or whoever was charged with adjudicating disputes) were to be left on their own to achieve the just result in each case, different decision-makers might reach different conclusions in similar fact situations. Yet not to treat like cases alike may itself violate a cardinal principle of justice. Thus rules of general application, enforced in a non-discriminatory manner, may be an integral part of justice. On the other hand, universally applicable rules and rational procedures do not by themselves guarantee just outcomes: strict adherence to legal rule can sometimes lead to results which would be widely regarded as unjust. The challenge is to achieve justice in the individual case while keeping faith with the rule of law. When there is tension between the two, however, which must yield? Who decides this question? Who should decide? This chapter, as well as Chapters 2 and 3, will examine the role of the jury, both in theory and in practice, with regard to these matters.

The discussion will centre primarily on trials in serious criminal cases, for several reasons. First is the practical point that the inquiry is intended to span the Anglo-American jury experience. However, in modern-day Britain, jury trials in civil cases are a rarity.¹ Even more rare is a jury trial in a case involving a minor criminal offence, jurisdiction in such cases largely having been transferred to juryless magistrates' courts (see Chapter 4). Serious criminal cases provide the primary common ground for an analysis of the role of juries in both the English and American criminal justice systems. Restricting the focus to such cases, however, suits my purposes. It is in these trials, where a conviction may mean an extended loss of liberty, and, in the United States, the possible loss of life, that moral culpability becomes a legitimate matter of legal concern and the case for jury decision-making becomes most compelling. One can be a supporter of the jury system without incurring the obligation to defend the proposition that juries are the only appropriate method for deciding all legal controversies. In the world of commerce, moral assessments may have to take a back seat to the security of contract, and, if this is so, the moral sentiment of the community which a jury brings to bear is of lesser relevance. In contrast, a criminal conviction for those serious crimes that at one time were known as malum in se, or wrong in themselves, is inescapably a judgement about moral blameworthiness. This judgement is the jury's responsibility, and it is no accident that it is in the criminal courts that the jury's powers have traditionally been the most far-reaching and unencumbered.² Although the British and American legal systems are dissimilar in many respects (for one thing, in the United States there is a written Constitution, and judges are able to strike down legislative enactments that violate its provisions whereas, in the United Kingdom, parliament occupies a more centrist and powerful position, and judges are inclined to defer to its authority), they share the common feature of entrusting the decision in serious criminal cases to twelve randomly selected men and women from the community - the jury.

The Conventional View of the Jury's Role

The conventional view of the jury's role is that it is engaged in a two-stage process. The first stage requires the jurors to determine the facts; in the second stage, the jury applies the law to those facts. The jury's determination of the facts is based on the evidence presented in court (as opposed to any independent knowledge that the jurors might have or might glean from the newspapers or other such sources). The law which the jury is to apply is that set out in the judge's directions.

The law, broadly conceived, consists of general rules of behaviour, promulgated pursuant to lawful authority, which govern those who live in the relevant jurisdiction. These rules restrict individual choice in respect of conduct which is prohibited. H.L.A. Hart offers a more refined vision, distinguishing between what he calls primary and secondary rules (Hart, 1961, ch. 5). Primary rules are rules of obligation, directed to the people, which inform them of what they can and cannot do.³ Secondary rules, in contrast, are directed to officials. Among the most important secondary rules are rules of change, which enable officials to amend the law, rules of adjudication, which provide guidance to those responsible for resolving disputes and rules of recognition, which direct decision-makers where to look in their search for primary rules.

It is possible to gain a measure of understanding of the jury's role, as conventionally seen, through Hart's concept of law. The criminal law consists of primary rules of obligation. When there has been a violation of one of these rules, a legal prosecution will be brought so that there can be an official determination of whether the person charged with committing that violation did in fact do so. In the Anglo-American criminal justice systems, the responsibility for this determination has been assigned to the jury. Although a jury is composed of twelve individuals randomly selected from the community, as a collective body, the jurors become an official organ of the state and, like other official bodies, will be guided by secondary rules. The rule of adjudication which governs the jury's proceedings instructs it to apply the law to the facts of the case. The relevant rule of recognition states that the law is to be found in the directions of the trial judge. The judge is perforce bound by a different rule of recognition which tells him or her to look at the enactments of the legislature and the decisions of higher courts to discover the law which is to be conveyed to the jury.

One of Hart's sternest critics has been Ronald Dworkin. Like Hart, Dworkin accepts the value of rules in the routine case. But where Hart is prepared to see the judge exercise discretion in cases where no clear rule applies, Dworkin asserts that there are non-rule standards - principles - which inform a judge's decision-making in such cases (Dworkin, 1986). Dworkin's analysis focuses on how judges decide hard cases. However, the idea of non-rule standards is a powerful one which also provides insight into how juries decide cases. For the jury a hard case is not that described by Dworkin - one where the rules of law seem to have run out - but rather one where the rule of law which seems to be applicable would lead to a verdict which conflicts with the jurors' sense of justice. To avoid the unjust result the jurors have to look, as does the Dworkinian judge, beyond the law to non-rule standards. Jurors and judges do not necessarily apply the same non-rule standards, but both are pushed to extend the scope of their inquiry beyond the four corners of the law.

The number of true hard cases may be only a small fraction of the criminal cases decided by juries.⁴ Their infrequency, however, does not detract from their significance; indeed, precisely the opposite. Hard cases provide a critical insight into the justification for the jury's very existence. There may, in any event, be more hard cases than is commonly estimated. Many never reach trial because the government agencies responsible for bringing a formal prosecution, anticipating an adverse jury verdict, prefer to have an unenforced law on the books (because of its presumed deterrent effect) than a law that has been rejected by a string of juries.

The term 'hard cases' is also somewhat misleading when applied to jury trials. It suggests two discrete categories of case when the reality is more likely to be a continuum. At one end may be the straightforward case where the law is clear and leads to a result that reasonable persons would accept as just and where, therefore, there is no tension between law and justice. At the opposite extreme is the case where the applicable rule of law would produce a result which would be widely condemned as unjust. In between, however, are a plethora of cases where the law tugs in one direction and considerations of justice in another. Such cases present the jury with a dilemma. Examining how it resolves that dilemma will further our understanding of the jury's true role within the criminal justice system.

First, however, it might be observed that even the conventional description of the jury's role in terms of determining the facts and applying the law is more complex than its simple statement might suggest. Modern jurors, unlike their ancestors, are not chosen because of their first-hand knowledge of the facts.⁵ Today's jurors must deduce the facts from the evidence, and they are beset by many obstacles in their efforts to do so (Frank, 1963). In a criminal trial, first the prosecution and then the defence will present its case. The testimony of two witnesses which bears on the same point may, as a result, be separated by days or even weeks. Within each side's case, moreover, evidence is not presented holistically but piecemeal. The order of the witnesses may not accord with the temporal sequence of events, and any given witness's testimony may relate only to a singular, and sometimes minor, aspect of the case. The jurors have to weave the disconnected pieces of information provided by the witnesses into a coherent whole - a challenge which is further complicated by the fact that it is not uncommon for witnesses to disagree. None of the witnesses, moreover, may be deliberately lying. Often two persons who see the same event have different recollections of it. Psychologists tell us that memories are faulty, and become more so the longer the interval between the event and the recounting of it (Loftus, 1979). Many months may intervene between the crime and the trial. Human beings are also suggestible. A subconscious tendency to identify with the party who has called a witness to testify may incline the witness to see 'the truth' in terms favourable to that side. In addition, nervousness, induced partly by the occasion, partly by the unfamiliar surroundings of the courtroom, and partly by cross-examination techniques designed to trip up the witness, can result in testimony that does not necessarily come across as what the witness intended. Furthermore, language contains its own limitations, and some witnesses may be relatively inarticulate. The jury's task is to assess the testimony of each witness (taking into account such factors as the witness's opportunity to observe, motivation to lie and general demeanour), piece together the credible evidence and, from that, construct an accurate picture of events.

The jury suffers from additional handicaps in its efforts to determine the facts. Sometimes it is not presented with all the relevant information. At one point in English history parties were not permitted to testify in their own behalf.⁶ This prohibition is no longer in force, but often a defendant will make a tactical decision not to testify because evidence that would otherwise be inadmissible, such as the defendant's criminal record, will be a permissible subject of cross-examination. In some instances, witnesses may not appear in court because the best efforts to locate them have failed. Indeed, the jury may never even learn of the existence of such witnesses. The knowledge of those witnesses who do testify may also not be presented in full. The scope of a witness's testimony will be shaped by the questioning of the lawyers and constricted by rules of evidence. So, for instance, the giving of opinions and the recounting of what others have said is generally not allowed (Tapper, 1995), although this evidence is of a sort that people routinely take into account in making decisions in their own lives. The reason that it is kept from the jurors is because of a judicial fear that they will give it more weight than it deserves. Whether or not this fear is well-founded, it complicates the jury's efforts to construct an accurate picture of the facts.

The second half of the jury's task, that of applying law to fact, is no easier. It requires that the jurors both understand what it is that the law requires and be able to apply its provisions correctly. To appreciate the difficulty of asking the jury to grasp the nuances of the law, one need only take note of the fact that it is not uncommon for eminent judges to disagree among themselves as to the meaning of a statute.⁷ The crash course in the law provided to the jurors by the trial judge may not only be inadequate, but may raise more questions than it answers. Judicial directions are usually crafted with the goal of stating the law accurately rather than making it comprehensible to the jurors. When a judge's directions stray from the approved language of precedents, the judge increases the risk of committing reversible error.⁸ That the judge's motivation is a desire to assist the jury in its understanding of the law provides no protection against a reversal. A jury, confronted by judicial directions couched in arcane language, may request clarification, but is likely to be met by a repetition of the original instruction or a restatement in jargon that is no more illuminating. Even assuming that the jurors understand the law, they must be able to apply it. Judges often disagree among themselves on the scope of a law's applicability.⁹ The requisite degree of fit between fact and law which the jury must find to exist is also difficult to pin down, and the mere statement that the proof must establish guilt beyond a reasonable doubt leaves unanswered the question of where the boundary lies between a reasonable doubt and the fact that absolute certainty is an illusion.

The indeterminacy of both fact and law, on the other hand, does enable the jury to introduce value judgements into the deliberation process without feeling guilty about doing so. Roscoe Pound was undoubtedly correct when he observed that the jury had the power to determine the facts in such a way as to lead to a different result from that which the legal rule, strictly applied, would require (Pound, 1966, p. 66). Whereas Pound gave little in the way of concrete example, Thomas Green provides numerous illustrations in his comprehensive historical study of the English jury (Green, 1985). In one case, a jury of inquest had established that a husband had come home at midday to find his wife in bed with another man, whom he then proceeded to kill. The trial jury, on the other hand, found that the victim had entered the defendant's home at night, rather than during the day, and, as a trespasser rather than as an invited guest of the defendant's wife. Furthermore, the trial jury found that the victim had attacked the defendant with a knife, and that the defendant, finding his escape blocked, had in desperation seized his hatchet and struck the victim a fatal blow. One might wonder at this revisionist account of events but the explanation lies in the limitations imposed by the then prevailing law of self-defence. By its findings of fact the trial jury was able to afford the defendant a defence of self-defence that would not otherwise have been available. Similarly, Green reports cases in which a jury determined that a defendant had been personally attacked although the evidence clearly indicated that it was a close relative who had been attacked (ibid., pp. 42-3). Again, the jury's purpose seems to have been to bring the facts within the legal strictures of self-defence.

Kalven and Zeisel (1966) offer a more refined version of Pound's thesis that the 'facts found [are] found in order to reach the result and are by no means necessarily the facts of the actual case' (Pound, 1966, p. 66). They suggest that juries resolve factual ambiguities to accord with their view of the equities of a case (Kalven and Zeisel, 1966, p. 165), In Kalven and Zeisel's scheme, factual ambiguity liberates jurors to introduce value judgements into the decision-making process. Jurors do not, as Pound seems to imply, simply reason from back to front, constructing a factual picture that allows them to reach the verdict that they desire. If Kalven and Zeisel are correct - and, unlike Pound, they offer a wealth of empirical evidence to support their position - then the phenomenon of verdicts contrary to the actual facts would not be as prevalent as Pound's thesis might suggest. Nonetheless, Kalven and Zeisel would not disagree with Pound that jurors are able to justify an acquittal by choosing not to believe the prosecution's witnesses, or by filling in gaps in the proo...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• 1 Justice and the Jury
• 2 Doing Justice
• 3 Judge versus Jury
• 4 Democracy and the Jury
• 5 Justice versus Democracy
• 6 The Selection and Training of Jurors
• 7 From the World of Law to the World at Large
• Bibliography
• Index
• Index of Authors Cited