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Can you ever trust a jury? Judges assume the public have misconceptions; new research suggests otherwise

New research suggests the general public agrees with this sign. Credit: Michael Candelori/NurPhoto via Getty Images

New research suggests the general public agrees with this sign. Credit: Michael Candelori/NurPhoto via Getty Images


December 14, 2020   6 mins

Are juries fair? Ten years ago, at the end of the court day in the Bar Mess at the Old Bailey, Professor Cheryl Thomas delivered the results of a mega-study into jurors’ decision-making. When she came to the question of conviction rates at different court centres, laughter erupted: every barrister knows that juries at Snaresbrook Crown Court — drawn from Hackney, Dagenham, Chigwell — love to let the villains off, whereas a Kingston-upon-Thames tribunal — from places like Barnes, Richmond and Epsom — will rarely award a defendant anything other than a silver medal. Awareness of this phenomenon goes back at least to the 1980s, when it was raised in parliament by the MP for Ilford South.

Except, of course, it turned out to be nonsense: for 2006-2008, the conviction rates for Snaresbrook and Kingston were within 1% of each other, either side of the national average of 63.9%. I suspect that this did little to dent the audience’s confidence in one of the profession’s most dearly held beliefs: arch references to Kingston juries still abound in London’s robing rooms.

But this was not the only surprise Professor Thomas delivered. The evidence, which came from analysis of over half a million criminal charges as well as a randomised trial with real jurors, strongly supported the proposition that white juries do not discriminate against black defendants. Indeed, it even appeared that a white defendant accused of a racially motivated crime is more likely to be convicted by a white jury than by a racially mixed one.

Those findings do not, of course, call into question the unfairnesses suffered by the non-white population upstream of trial — if anything they could be said to emphasise them, given that non-white people are over-represented in prisons. But they did allay the fears expressed in the Auld report of 2001, which made a recommendation (not subsequently implemented) that “Provision should be made to enable ethnic minority representation on juries where race is likely to be relevant to an important issue in the case”. Whether the findings have entrenched themselves in the public consciousness more generally, however, is another matter.

Last month, Professor Thomas — now an honorary QC — published the results of a new study, commissioned by the senior judiciary to investigate “rape myths”. Her conclusions are thoroughly at odds with received wisdom.

The idea that many people — and therefore many jurors — hold seriously wayward beliefs about this uniquely enraging crime is not new, and has solidified in recent years. It first became common in the early 2000s for judges to warn juries to approach with caution defence counsel’s arguments about, for instance, a lack of physical violence, or a delay in making a report. Such warnings were swiftly approved by the Court of Appeal and found their way into the “Bench Book” — the judges’ bible of approved jury directions.

The need for these warnings arose from a developing understanding that inaccurate assumptions about how rape allegations should be analysed are widespread among the public. The 2010 Bench Book pointed to “research by those who are expert in the subject”, much of which derived its data from surveys. One cited author concluded that “the crucial determinant of judgments about rape cases is the extent to which people subscribe to rape myths. Thus it tends to be attitudes rather than an unbiased evaluation of the facts which determine judgments in these cases.

And that message has grown louder in the decade since. In 2018 End Violence Against Women (EVAW) commissioned a YouGov poll and reported that “33% think that sex which happens without consent, but where there is no physical violence, isn’t really rape.” Horrifying to think that any jurors have that attitude, let alone a full third of them. No wonder, then, that judicial warnings have become more robust.

For example, on the question of inconsistencies (which is of course a way to get purchase on the evidence in any trial) 2010’s bench book includes the following direction for sexual offences: “The experience of the courts is that it is unwise to approach the issue of inconsistency with the assumption that a true account is always consistent, or that an inconsistent account is always untrue. It depends on the circumstances and the individual.” And concludes with, “If…you are sure that the essential parts of the complainant’s account are true, you will no doubt act on that conclusion. But, if you are left in doubt about the truthfulness of the complainant’s account, because the inconsistencies cannot be satisfactorily explained, you must find the defendant Not Guilty.

Fair enough. But the equivalent part of the 2020 version runs as follows: “Experience has shown that inconsistencies in accounts can happen whether a person is telling the truth or not”. And the line about doubt arising from inconsistencies that can’t be satisfactorily explained has disappeared.

Now, these are only short extracts, and much of the thrust is between-the-lines and therefore open to debate. But these warnings are not there primarily to help the defence. Some of them are felt to amount to a nudge in the other direction. Which might be fair — desperately needed even — if jurors believe rape myths. But it now looks like they don’t.

The UCL Jury Project surveyed almost 800 recently discharged jurors and found that “hardly any jurors believe what are often referred to as widespread myths and stereotypes about rape and sexual assault”. They don’t believe that rape must leave bruises, that a victim will always fight back, that dressing “provocatively” is inviting an assault, or that rapes will always be swiftly reported. But haven’t previous studies repeatedly found the precise opposite?

The reason for the disparity, the Professor suggests, is that her study involved actual jurors rather than members of the public. The jurors had heard trials of non-sexual as well as sexual offences, and of those approached 99% agreed to participate, which means a very low risk of selection bias. Something may be happening, she says, when a member of the public actually goes through the solemn process of sitting on a jury.

Another possible reason for the disparity, it seems to me, is that conclusions from other research don’t always accurately reflect the questions asked. Take the 2018 EVAW headline I mentioned. The small print reveals that the question, with which 33% of respondents disagreed, was, “Do you personally consider it to be rape if they don’t want to have sex but feel pressured to even though there was no other physical violence?” Leaving aside the confusing and redundant “other” (what was the first bit of violence again?) this is absolutely not identical to “Do you think that sex which happens without consent, but where there is no physical violence, isn’t really rape?” Indeed, the 2020 Bench Book even says, “reluctant but free agreement is not the same thing as submission and is still consent even if reluctantly given.”

But why does it matter? Aren’t judicial warnings a good idea just in case? Well, sometimes the defence’s arguments — about delays and injuries and intoxication and inconsistencies — are good arguments. And if the jurors aren’t prejudiced, then a warning about rape myths could easily be taken as a veiled encouragement to ignore a good point. And bad defence arguments? They’ll surely be counterproductive with a myth-free jury.

Shortly before Professor Thomas published her results the Crown Prosecution Service updated and expanded its list of rape myths, with a consultation on their accuracy and usefulness ongoing. Shortly after that, EVAW published another report, entitled “The Decriminalisation of Rape”. Under the heading “Obstacles to Conviction” is listed the very fact of trial by jury, and it goes on to state, “it has been widely accepted by criminal justice bodies that many members of the public continue to believe in long-standing myths and stereotypes relating to rape”. A lively public conversation seems inevitable — and desirable.

Also listed as an obstacle to conviction, interestingly, is the English “adversarial system” of criminal trials. Adversarial systems are having a bit of a moment: the software that creates those amazingly realistic faces of non-existent people, for instance, uses a type of Artificial Intelligence called a General Adversarial Network: progress is made by one algorithm trying to create something convincing, and another that tries to find the holes. This is very much not the tech equivalent of a continental inquisitorial magistrate. A bad defence point is best dealt with by a good prosecution point. It may turn out that the medieval jurists who designed our legal system were onto something.

And a similar process — a dialectic approach to enquiry more generally — is arguably a better route to the truth than any other. There has until now been very little questioning of the prevalence of rape myths among juries, and it’s not hard to see why: who wants to be “that guy”? But Professor Thomas’s research should be welcomed. Her methodology, and her conclusions, might turn out to be wrong. But they should not be ignored.


Adam King is a criminal barrister at QEB Hollis Whiteman.

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David Morley
David Morley
3 years ago

This does seem to be part of an ongoing debate, which was made explicit by brexit.

On the one hand are those who think that in general people know what they are doing, are fair, capable of objectivity and reason etc.

On the other there are those who think things would be better left to experts – or perhaps to a subset of people (basically people like themselves).

This tension is everywhere we look – in arguments over free speech, for example, between those who believe in free speech, and those who believe experts (or people like themselves) should define what can be said.

In order to further the “expert” agenda it is necessary to undermine the value of the common voice – by claiming it is prone to “myth” for example.

malx.friends
malx.friends
3 years ago
Reply to  David Morley

We have not overthrown the divine right of kings to fall down for the divine right of experts. – Harold MacMillan

marschalljones
marschalljones
3 years ago

Jury service being the only form of national service I have performed, I found it hugely instructive (served in Kingston too!). The article confirms my impressions of its value. Jurors sit there and listen to the whole case, which must give a different set of perceptions to members of the public served a summary. And seeing real people does have the effect of encouraging more serious thought

Gordon Black
Gordon Black
3 years ago
Reply to  marschalljones

You should have ended your last sentence ‘…amongst most jurers’.
i have served as a jurer in two Scottish trials,one murder and the other rape.
The verdicts were decided by majority, the split being male jurers against female jurers in both cases.
Scary stuff.

Muscleguy
Muscleguy
3 years ago
Reply to  Gordon Black

I served on a female majority jury in Scotland, metal theft being made an example of with an added charge of reckless endangerment added. There was no split by sex in terms of verdict.
There was in the choosing of a foreman, myself, the women decided I was to do it.

Anecdotes do not make good cases. Especially when we are discussing gold standard research. The plural of anecdote is not data remember.

Gordon Black
Gordon Black
3 years ago
Reply to  Muscleguy

I agree that anecdotes never make any kind of case. However, gold standard research into jury member voting decisions is impossible due to the legal mandate of forever secrecy about jury room business . Even our two anecdotes are borderline contempt of court in Scotland.

Muscleguy
Muscleguy
3 years ago
Reply to  Gordon Black

In our case the Sheriff noted the large majority of women on our jury and expressed his hope this would lead to a female foreperson. This was in open court. The matter was thus broached in the open.
My accession to the position of foreman was impossible without at least a majority of the women voting for me. I was persuaded by the Sheriff’s point and did not put myself forward for it.
I thus feel confident in being able to fend off any claim of being in contempt.

Annette Kralendijk
Annette Kralendijk
3 years ago
Reply to  Muscleguy

Sounds like the sheriff provided grounds for a mistrial if there was a conviction.

Blue Tev
Blue Tev
3 years ago

“End Violence Against Women”
Because men never face violence. It’s always, always, about the victims of cruel patriarchy.

Here is the funny bit.
If you ask EVAW about a (heterosexual) case where a man states he was coerced into sex, but there is no physical violence…would EVAW agree that the woman is guilty of rape and should be jailed.

It’s all about diluting the standards and concept of innocent until proven guilty, but only when it’s a woman complaining, and the potential rapist is not from certain categories, say Democrat president candidate or “Asian” gangs

graceeglow
graceeglow
3 years ago
Reply to  Blue Tev

I can’t speak for EVAW, but as a woman I am just as against violence towards men as I am towards women, in whatever way that presents. But what you are saying here is just the same as saying ‘all lives matter’ when the issue is racial violence towards BIPOC communities – it’s diverting from the actual issue at hand. Being unaccountable as individuals just perpetuates the societal issues. The statistics show that gender violence is a huge problem world wide, and if people could get past their own defensive privileges we could actually start to move things on from this rather stagnant and pointless hamster-wheel of an argument.

Annette Kralendijk
Annette Kralendijk
3 years ago
Reply to  Blue Tev

Rape is rape regardless of who commits it.

Simon Newman
Simon Newman
3 years ago

“the medieval jurists who designed our legal system” – It wasn’t designed, it evolved!

David Uzzaman
David Uzzaman
3 years ago
Reply to  Simon Newman

That in my mind is it’s principal virtue. A system that’s evolved over hundreds of years of literally “trial & error has got to be better than one coming out of the political system where grabbing a headline is as important as justice.

Alex Lekas
Alex Lekas
3 years ago

given that non-white people are over-represented in prisons
seems they are over-represented in the commission of crime, too, and in being victimized by it. Do those things not matter?

Muscleguy
Muscleguy
3 years ago
Reply to  Alex Lekas

Poor people are over-represented in crime statistics and in being victims of crime.
Non White people are more likely to be poor than Whites.
FTFY

David Morley
David Morley
3 years ago
Reply to  Muscleguy

“Non White people are more likely to be poor than Whites.”

Which country? And do you mean proportionally poorer or in absolute numbers?

Interestingly proneness to crime and violence does not seem to be related to poverty in a simple way. Different groups suffering similar levels of poverty appear to respond in different ways.

So far as I am aware there is no agreement on why – though cultural factors seem likely.

Tom Fox
Tom Fox
3 years ago
Reply to  David Morley

Proneness to violence is very likely to have biological causes albeit that these will be moderated by cultural conditioning. The biological influence on violence I am thinking of is testosterone. males have far higher levels of testosterone than females and are far more violent. If we are concerned that cultural influence may be a confounding variable, lets get rid of it by looking at aggression in animals. Male animals -especially entire male animals are far more aggressive than females. We habitually castrate male bovines except for breeding specimens because of this. The bull is far more likely to kill you than the cow and far more likely than the castrated bullock. So what has this to do with levels of violence in black and white men? Serum testosterone levels in black American college students are 20% higher on average than those of white college students. Incidentally, the rates of prostate cancer in black American men are twice those of white men.

Modern manners seek to discourage any consideration that people o different races are different and deny the very concept of race. In this they are hiding from the facts.

David Morley
David Morley
3 years ago
Reply to  Tom Fox

“Serum testosterone levels in black American college students are 20% higher on average than those of white college students.”

The figure I’ve heard is 15% – but in any case this is an uncomfortable idea for most people. We still have to explain why most of the people with such elevated levels of testosterone are not violent and do not commit crime.

Is this random, or are there social or cultural factors which account for it – and which could perhaps be replicated to reduce it.

The fact that the level of violence in societies, and ethnic groups, changes over time suggests this is the case.

Tom Fox
Tom Fox
3 years ago
Reply to  David Morley

I too have seen figures for the proportion of black American males testosterone being variously between 15% and 21% higher in different publications. One would expect some degree of variance, I suggest.

Well, the idea may be uncomfortable in a modern context, but I am more interested in the question of whether it is true. These days we see more and more a tendency to shut down areas of inquiry if they do not fit in with the modern zeitgeist. As far as scientific enquiry is concerned, such censorship of what may be studied and what may not is a complete disaster. This, to take an extreme example is exactly how Galileo’s work was suppressed. He was made to recant his theories and to promise never to do further research on his unacceptable ideas.

Of course you are right that most black men do not commit violence. It is the same in all parts of society that only a few people act with serious violence against others – however, the context of my point was the suggestion above that the number of black men dealt with by the justice system is a result of racism; presumably in the police for investigating them and in the legal hierarchy for prosecuting them and applying punishments. I contend that those so dealt with, are very much in jail for good reason. I have given a potential explanation of why on a population basis, black men are more likely to be involved in serious criminality and violence and stated that the same kinds of criminality can be seen among some of them in different cultures – particularly in Africa where there is a very high rate of homicide. Looking at crime and violence in African societies presumably removes the possibility that racism has polluted the data.

David Morley
David Morley
3 years ago
Reply to  Tom Fox

Tom – I agree with you on two points. Censoring ideas because they are uncomfortable is both wrong and unproductive. But I understand why people are concerned about raising the issue of innate racial differences. It has a bad history. David Reich is good on this.

Secondly I agree that we should not go automatically to racism as the only possible explanation.

I’m concerned that some theorising can lead to policies which are unfriendly to the population themselves – racist, or even eugenic policies. The capacity to hate people just for what they are is still there in our culture (I believe it is precisely visible in some feminism, and in hating on white men, but won’t labour it here).

Africa is so different in so many ways, I don’t think a clear comparison can be made.

It’s pure conjecture, but raised testosterone may be an adaptation for dealing with a harsh environment. Remove the environmental triggers then the response too may dwindle.

Tom Fox
Tom Fox
3 years ago
Reply to  David Morley

On the issue you raise about people’s differential reaction to poverty. It is always true that most poor people of any race manage to generally stay within the law. Those who behave in a violent and seriously criminal way are always the small minority. Those who seek to excuse criminality on the basis that the perpetrator was provoked into his behaviour by poverty, do a real disservice to the thousands of his contemporaries in the same or similar circumstances who strive to behave properly and succeed in doing so.

David George
David George
3 years ago
Reply to  Muscleguy

Good point Muscleguy.
Once you consider the common factors (ignoring race) leading to criminal propensity (fatherlessness, truancy, drug and alcohol abuse, lack of educational and work qualifications, mental health issues etc.) you find the true extent of the racial factor. The prima facia assumption that the criminal justice system is systemically racist is seriously exaggerated if not straight out wrong.
You can’t solve a problem if you’re wrong about it’s cause.

Tom Fox
Tom Fox
3 years ago
Reply to  David George

The assumption that so-called over representation of black people as defendants must mean that the police and the justice system is racist is deeply flawed. The possibility that black people, especially black men are on a population basis, inherently more violent is being ignored because of mistaken political assumptions. To test this hypothesis one could examine the crime rates in various African societies and by doing so, cancel out any influence of white racists. Take a look at the murder rates per hundred thousand in various African and European societies as a metric of how violent people are.

Africa homicides per hundred thousand 12.5
Europe homicides per hundred thousand 3
Asia homicides per hundred thousand 2.9.

Alan Thorpe
Alan Thorpe
3 years ago

I have only served on one jury which was for three weeks on a conspiracy to commit burglary case about 20 years ago. There were five black defendants and an all-white jury. I did not detect any racial prejudice. One member of the jury had a view from the start and did not participate much in the discussion. We took three days to reach a decision. My recollection is that most of us did not believe a lot of the evidence provided by the police and we felt there was evidence known by the legal teams that was being withheld from us. We were all aware that a guilty verdict would result in young men being sent to prison. In the end we found one not guilty and the others had all served prison sentences, so we didn’t feel too bad. A newspaper report I saw later when another member of the same gang was found and tried convinced me that we had made the right decision. Based on that I can only conclude that juries take their responsibilities seriously and are not biased.

Christopher Barclay
Christopher Barclay
3 years ago

The 2018 EVAW report repeatedly misrepresented the actual questions asked in the survey. Most surveys also miss a fundamental point: juries consist of 12 people not 1. Even if as many as 1 in 3 people have a tolerant view on rape, the probability of 10 out of 12 people having a tolerant view on rape is far smaller than 1 in 3.

The desire to take rape cases out of the hands of juries is motivated by a desire to intimidate men into silence as Julian Assange is finding. It should be resisted as should all steps towads a totalitarian state.

Mike Hearn
Mike Hearn
3 years ago

This is a good article! Fully agree with basically all of it. The fact that EVAW was doing manipulative surveys is no surprise at all, it sadly seems like a lot of feminist groups do that sort of thing. The big problem for a long time has been these groups claiming that “women can lie about being raped” is a myth that should be stamped out, even though there are quite a few data points and scholarly studies showing enormous rates of false claims. The false claim problem in this crime seems to be on a unique scale – who knows how many men have been wrongly put behind bars thanks to the justice system being steadily and systematically biased over time in favour of women? It’s good that jury trials exist, as they seem to be the only force that can reliably push back on emotionally manipulative claims by feminists that women must always be believed, regardless of how many inconsistencies there are in her story.

Charles Rense
Charles Rense
3 years ago

Juries should be judged on a perjury basis.