Why Judges & Juries Need (Some) Academics Professor Cheryl Thomas Director, UCL Jury Project Co-Director, UCL Judici

1. Why Judges & Juries Need (Some) Academics Professor Cheryl Thomas Director, UCL Jury Project Co-Director, UCL Judicial Institute UCL Faculty of Laws

2. How the Jury System has benefited from academic study

3. What Do We Know About Juries Here? In 2003 when Jury Project started • no research since 1992 (Zander Crown Court Study for Runciman Commission) What filled black hole? • Professional anecdote • High profile cases • Foreign research • Historic view of juries

4. UCL Jury Project Guiding Principle Research conducted only with actual juries at Crown Courts in England & Wales Multi-method approach 1. Large-scale analysis of actual jury verdicts 2. Surveys of jurors 3. Case simulation – with real juries at court 2 Reports 2007 Diversity & Fairness in Jury System 2010 Are Juries Fair?

5. What Do We Know Now Who does (and does not do) jury service Whether juries are: • fair • effective Whether juries understand: • jury process • judicial directions Whether media has impact

6. Myths Exposed (post Auld) • There is no mass avoidance of jury service: 85% of those summoned reply & vast majority serve • Jury pools are representative of local populations • High income earners have highest rate of service • Ethnic minorities, women and self-employed are not under-represented among serving jurors • Unemployed and retired are under-represented Reforms not needed to summoning system

7. Are Juries Racially Biased? Large number of juries saw an identical case (ABH) Only difference was the race of the defendant (Black, White or Asian defendants) Study run with large number of all-White & racially mixed juries at courts around the country FINDINGS: No Evidence of Racial Bias Verdicts didn’t differ No evidence of racial stereotyping Supported by analysis of all jury verdicts 2006-08

8. All Jury Verdicts 2006-08 No difference in conviction rates based on ethnicity (68,874 jury verdicts )

9. Myths about Jury Conviction Rates Exposed • Analysed all jury verdicts 2006-08 • 64% conviction rate • Offence, court, number of offences, ethnicity • Offence type was the key factor in difference in conviction rates

12. The Truth About Juries & Rape Cases Reality: Juries convict more often than acquit in rape • 55% conviction rate: 4,310 verdicts, all courts, 2 years • Home Office report (Kelly et al 2005) claimed juries acquit most often: 181 verdicts, few courts, short time Conclusion • Low conviction rate for rape (6%) is not due to juries.

13. Postcode Lottery in Jury Trials? Myth:Juries rarely convict defendants at certain courts (eg, Snaresbrook) Reality: Jury conviction rates by court range from 69%-53% So no courts where juries acquit more than convict (Snaresbrook = 65%)

14. Are Juries Effective Decision-Makers? Once sworn: • Rarely discharged (<1%) • Deliberate on 89% of charges Once they deliberate • Reach verdict over 99% time Hung juries – almost always: • on multiple charges • reach some verdict

15. Juror Understanding of Legal Directions Most jurors (68%) said legal directions were easy to understand But only 31% correctly identified bothkey questions after oral directions Written summaryof directions substantially improved comprehension

16. What Does It Mean? It does not mean most jurors didn’t understand legal instructions. Means they did not always see them in same legal terms used by judge. But written summary improves comprehension of specifics of law

17. Are Jurors Influenced by Media? The “fade factor” exists: Jurors mostly recall in-trial, not pre-trial, media reports But 1/3 in high profile cases recalled some pre-trial coverage And 20% of jurors on high profile cases who recalled media coverage said they found it hard to put it out of their mind

18. Juror Use of Internet Jurors use the internet to look for information about cases despite judicial directions against it More jurors said they saw information on internet during trial than admitted actually looking for it: • High profile cases: 26% saw - 12% looked • Standard cases: 13% saw - 5% looked Not primarily younger jurors: most jurors who looked on internet were over 30 (81% in high profile cases). What we still don’t know: • How are jurors using internet/social media? • What is most effective way to ensure jurors do not use internet inappropriately?

19. Do Jurors Understand the Process? Jury Deliberations & Improper Conduct • Almost all jurors (82%) felt jurors should not be allowed to speak about what occurs in jury deliberations • Most jurors (67%) wanted more information about how to conduct deliberations • Almost half (48%) were uncertain or did not know what to do about improper jury conduct

20. New UCL Jury Project Research • Preventing improper conduct (inc. internet) • Improving jury deliberations • Impact of special measures • Judicial directions on law • Insanity & fitness to plead • Contempt Research agenda devised after consultation with judges, HMCTS, and others

21. Where Academics Go WrongorWhy Academics Need Judges & Juries Most academics fail to consult judges, court service, legal community before: • identifying areas of research • determining methods for examining topics – that are most effective and also do not adversely impact the justice system

22. Jury Research Myths Myths about what can and cannot be explored with real juries have affected both the jury policy and research agenda Myth of S. 8 Contempt of Court Act 1981: it is a criminal offence to “Obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations”

23. Jury Research Misunderstandings Misunderstandings about how to address specific jury questions have led to misguided “jury research” Example being how to address whether juries are racially biased – belief was it was impossible because of s.8. But all s.8 prevents me from doing is asking juries that convicted black defendants whether they convicted him because he was black…. Not effective methodology

24. Jury Research Mistakes Mistakes about how to properly use jury research methodologies have produced questionable if not dangerous research findings Great rush to use case simulation – but outside of UCL Jury project case simulation is never done in this country with real juries: students, volunteers, etc. used instead

25. Most “jury research” is in fact not done with actual jurors not done with authentic and complete case materials not conducted at jury verdict level not conducted with large enough or representative sample sizes

26. Most researchers looking only to discover problems No attempt to test solutions “Merely to explain and understand is to fiddle while Rome burns.” Ronald V. Clarke

27. Why Does It Matter? Not just narrow points about methodology Real world impact • Challenges facing trial by jury in 21st century … including criminal law reforms based on little more than assumptions about how juries work • Jury Project showed proposed summoning reforms based on false assumptions • Danger that criminal law reforms are introduced that do not achieve ends or have counter-productive effect

28. Important questions in need of reliable research Evidence: complex, forensic, fraud, remote, virtual • Do juries understand complex evidence? • Do juries really defer to experts? • What is best way of presenting complex evidence to jury to ensure it is understood? • Is there a CSI effect? • How does visual presentation affect jurors? • How do jurors perceive “virtual” evidence?

29. What about Judges? Know even less about judges and courts No history of judicial studies in UK Shocking in 21stcentury The judiciary is the third branch of government, equal in importance to the legislature and executive in this country. Today, there is isn’t a single important social issue in our society that judges at some point aren’t asked to adjudicate. Yet in the UK the academic community has not really addressed the reality of judging or served the judiciary well with robust empirical research on the judicial process. The UCL Judicial Institute has been established to rectify this and create a home for world-leading scholarship on the judiciary

30. Danger of Lack of Study of Judges & Courts Same as with juries Myths will abound & Reform agendas will be set by • Unsubstantiated anecdote • Out of date perception of judges and courts • Perceptions based on media interest in certain issues But perhaps even more dangerous than lack of empirical study of juries • Juries have judiciary and public to defend them – judiciary lacks in-built public support and currently has little empirical evidence to help fight its corner

31. JI Approach • Empirical research as starting point for deeper understanding of judges, juries and courts • Research agenda devised in consultation with judges, practitioners and courts • Judges with role to play in academia Projects: Tribunal Decision-Making, UKSC Project

32. Academics & Practitioners: Friends or Foes? Reality is we are neither friend nor foe We’ve been strangers for far too long This is disservice not just to both professions but more importantly to the quality of justice