Thursday, 28 February 2013

Why The Judicial System Is Flawed


The jury in the trial of Vicky Pryce has been discharged at Southwark Crown Court after failing to reach a majority verdict regarding whether she was coerced by the odious former Liberal Democrat MP Chris Huhne into accepting his speeding penalty points.  This has elicited a hugely overblown response about whether juries are, on the whole, fit for purpose.  This topic was brought up on last week’s Question Time, where the likes of Peter Hitchens and Michael Heseltine, among others, debated this issue.  The trouble is, they focused only on the things that probably aren’t making juries unfit for purpose (age, employment, academic qualifications), and ignored the things that do make them less fit than they should be. The most important thing about jurisprudence is justice.  Justice occurs when innocent people are acquitted and guilty people are convicted.  Anyone hoping for justice hopes that the system in place is most conducive to that outcome. 

I think there are primarily two things wrong with the judicial system – which means that if you were to find yourself on trial for a crime you didn’t commit, your hopes for a just outcome, in which the decisions made by the jury are consistent with the true facts surrounding the trial, would not be matched by the present system as well as could be expected. Were you to be an innocent person on trial, or a victim of crime sitting in the court hoping the person that offended against you was found guilty, you’d want everything about the system to bring about the highest probability that the right decisions are made.  Here’s why you don’t have that at the moment.

The first, and, I think, most important, it is unbelievably inefficient to shield the jury members from knowledge of relevant information, because it impairs their ability to judge the case with optimum effectiveness.  This issue should be redressed immediately – it is the biggest thing wrong with jurisprudence.  What I find ironic is that the argument against giving the jury all the background information (that such knowledge will potentially bias the jury) is precisely the reason they should be doing it, because any reasonable person should want all relevant information to be brought to bear in the courtroom.  At the very least, jurors should have the chance to decide whether this background information is relevant or not. 

If a man has been accused of threatening a neighbour with a shotgun, I’d want the jury to know whether he has a history of similar behaviour, what sort of person he is, what sort of record his lawyer has, and information of that kind.  The concept of shielding inquirers from information is alien to every other formal evidence-based system; the work of scientists, political groups, police officers and building surveyors would suffer immeasurably if they had part of their investigative data withheld from them, so why on earth should we do it in a court of law when justice and people’s futures are at stake?  At election time in politics we want the electorate to be as well informed as possible; in the biology lab we want the researchers to be apprised of as much information as possible.  It is truly unsatisfactory to expect (and wish for) members of the jury trying to get justice in the courts to remain ignorant of the important details, when many of those details are so relevant to the probability of the defendant’s guilt or innocence..

The compromised admissibility of evidence hinders in every way – and with some irony, the reason people give in support of it is an inversion of understanding the very thing we are trying to enhance – decisions based on explicit and accurate information.  Just like in science and police investigations, the information being omitted is important in building a clear probability perspective of the situation.  A man on trial accused of threatening behaviour with a shotgun is much more likely to be guilty if he has previously threatened 3 other people with a shot gun.  Yet the courts would rather you didn’t know this if you’re on that jury – which means the courts must favour a serial shotgun offender having a greater chance of being acquitted.  Apparently if you’re the sort of person who thinks this way it is frowned upon by the courts, because they don’t want juries to come into the courtroom with any biases.  I presume the courts must think that the police arrest civilians in a completely random fashion.

The second fault is less severe, but still an example of something that not is ideal – it’s to do with the configuration of the jury group.  The 12 jury members would be more efficient if they were made up of 3 groups of 4 rather than one group of 12.  The reason being, you want the conformity levels to be at a minimum – and there is a lot more conformity with one large group.  In a group of 12 you’ll almost always find a few more prominent members are able to influence the less prominent and less confident members.  In three groups of 4 this would diminish greatly, and each member would by and large be less pliable and more confident and competent in his or her involvement.  So, if you’re innocent, on trial, and desperate that the decisions made by the jury are consistent with the true facts, you’d be much better off with three groups of 4 than one group of 12.


So a trial in which the lawyers and the three groups of 4 jury members know all the background information is, I think, a much more efficient system than the one we currently have.  Only when we’ve sorted those two issues out should we start discussing comparably trivial issues like the age, employment and academic qualifications of jury members.  To focus on those and ignore the other two big flaws is a bit like turning up to a large house on fire and trying to retrieve all the furniture instead of trying to rescue the people trapped inside.

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