tag:theconversation.com,2011:/id/topics/jury-bias-28123/articlesJury bias – The Conversation2024-03-04T13:41:21Ztag:theconversation.com,2011:article/2248932024-03-04T13:41:21Z2024-03-04T13:41:21ZI run mock trials to research the legal system. The bias shown in Channel 4’s The Jury: Murder Trial is a very real problem<p>Channel 4 has billed its new reality show, Jury: Murder Trial, as a <a href="https://www.channel4.com/programmes/the-jury-murder-trial">“landmark experiment”</a>. A real-life murder trial is being re-staged in front of two juries of ordinary people to establish whether both groups will reach the same verdict. </p>
<p><a href="https://www.theguardian.com/tv-and-radio/2024/feb/26/the-jury-trial-review-surely-this-is-the-end-of-the-uk-legal-system-as-we-know-it">Some critics</a> have speculated that the show could cause the public to <a href="https://www.telegraph.co.uk/tv/2024/02/26/channel-4-jury-murder-trial-you-will-lose-faith-in-justice/">“lose all faith in the British justice system”</a>. That’s because the programme
has highlighted how personal experiences shape, and potentially bias, how jurors view the individual elements of a trial.</p>
<p>I was less surprised than these critics when I tuned into the show. That’s because, when researching jurors and juries, I do a similar thing with participants. I recruit jury-eligible members of the public and show them a mock trial. It’s usually filmed in a courtroom, with actors (and sometimes legal professionals) playing the relevant roles. I then ask the mock jury to reach a verdict. </p>
<p>In these experiments though, I will <a href="https://onlinelibrary.wiley.com/doi/full/10.1002/bsl.2568">manipulate certain factors</a> (for example, I may vary the verdicts which are available to jurors) and investigate how these manipulations influence verdicts. Alternatively, I may measure <a href="https://www.tandfonline.com/doi/full/10.1080/13218719.2021.1904450">certain beliefs</a> (whether the jurors, for example, have a bias towards the prosecution or the defence) and see if we can predict verdicts using these measures.</p>
<p>Based on <a href="https://journals.sagepub.com/doi/full/10.1177/00258024221080655">my research</a>, and that of <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jols.12287">other academics</a> interested in juror and jury decision making, it is clear that the UK’s jury system is far from perfect.</p>
<h2>How jurors use stories</h2>
<p>What was clear to me watching the programme was how jurors used stories to make sense of what was heard to them in court. They used personal experiences of previous altercations or instances of domestic violence in their own life, and there were clear instances of gendered biases against the victim throughout. </p>
<p>Interestingly, one of the key models in my field is the <a href="https://books.google.co.uk/books?hl=en&lr=&id=tfeRuhypTs4C&oi=fnd&pg=PA192&dq=story+model&ots=XxhyMXMc8J&sig=WkWN9oF4lCtMoicYJVbq6bznNbs&redir_esc=y#v=onepage&q=story%20model&f=false">story model</a>. This posits that jurors use the evidence in the trial, their own experiences and beliefs, knowledge of similar crimes and their understanding of what makes a complete story to <a href="https://books.google.co.uk/books?hl=en&lr=&id=tfeRuhypTs4C&oi=fnd&pg=PA192&dq=story+model&ots=XxhyMXMc8J&sig=WkWN9oF4lCtMoicYJVbq6bznNbs&redir_esc=y#v=onepage&q=story%20model&f=false">create narratives</a> surrounding the trial. </p>
<p>Then jurors select the best story (they may have created a number of competing stories) based on <a href="https://psycnet.apa.org/record/1992-21907-001">certainty principles</a>, such as how coherent the story is. Also, the more unique the story is, when compared to competing stories, the more confident the juror will be in their story.</p>
<p>Jurors will then learn about <a href="https://psycnet.apa.org/record/1992-21907-001">appropriate verdict categories</a> from the judge, although this may also be influenced by <a href="https://e-space.mmu.ac.uk/625313/1/JCJ%20Final%20accepted%20maunscript.pdf">their own pre-trial experiences</a> and knowledge. Verdicts that fit or match the chosen story are then the ones that are reached. For example, if a guilty verdict best matches the story, then a guilty verdict will be given. </p>
<p>It is perfectly reasonable for jurors to use stories to make sense of a trial – we are social creatures who use stories to make sense of our everyday lives after all. The problem is, what we do when we discover that sometimes, <a href="https://www.tandfonline.com/doi/pdf/10.1080/13218719.2021.1904450">jurors use problematic beliefs</a> to shape their stories.</p>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/00258024221080655">Research has shown</a> that many different types of biases influence juror decision making, including but not limited to racial biases and rape myths. <a href="https://journals.sagepub.com/doi/full/10.1177/1365712720923157">Rape myths</a> are false beliefs relating to the act of rape, and the accused and complainer in said trial types.</p>
<p>For example, <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jols.12287">research has found</a> that rape myths are mentioned in some mock jury deliberations, potentially influencing the joint jury narrative needed to reach a final verdict. </p>
<p>Another <a href="https://ojs.victoria.ac.nz/vuwlr/article/view/7128">study in New Zealand</a> found that in a post-trial interview, real jurors who sat on sexual assault trials commonly mentioned rape myths in their discussions, suggesting that rape myths may inform story construction and verdicts.</p>
<h2>What can be done</h2>
<p>There are several potential alternatives, such as <a href="https://www.rapecrisisscotland.org.uk/news/blog/why-we-support-single-judge-trials/#:%7E:text=There%20is%20no%20right%20to,is%20accountable%20for%20their%20decisions">judge-only trials</a>, or a mixed jury with legal professionals and laypersons. However, these solutions do not get rid of bias, as <a href="https://www.researchgate.net/publication/377775721_Are_legal_experts_better_decision_makers_than_jurors_A_psychological_evaluation_of_the_role_of_juries_in_the_21st_century">experts are as likely</a> to be infected by bias as lay people.</p>
<p>As there are several reliable and validated scales which help to measure biased and problematic beliefs, I believe that juror selection would be the best method to rid the courts of unwanted bias. </p>
<p>In <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9310652/">my own research</a>, I have found that I could measure how strongly jurors favoured the prosecution and defence using the pre-trial attitude questionnaire, and predict which verdict they were most likely to reach. </p>
<p>Those who favoured the prosecution were more likely to favour a guilty verdict and those who favoured the defence were more likely to reach an acquittal verdict. <a href="https://eprints.hud.ac.uk/id/eprint/34453/">Other researchers</a> have done similar work using rape-myth scales. </p>
<p>If jurors were selected based on validated measures, it would help to filter negative and problematic beliefs out of the system. </p>
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<img alt="" src="https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p class="fine-print"><em><span>Lee John Curley receives funding from the British Academy and the Leverhulme Trust. </span></em></p>As my research into jurors and jury decision making shows, our system is far from perfect.Lee John Curley, Lecturer in Psychology, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113222023-09-07T12:23:17Z2023-09-07T12:23:17ZDo unbiased jurors exist to serve at Trump’s trials in the age of social media?<figure><img src="https://images.theconversation.com/files/545628/original/file-20230830-15-zfgbw1.jpg?ixlib=rb-1.1.0&rect=41%2C16%2C5452%2C3574&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Can anyone say they haven't seen any news about Donald Trump and the 2020 election?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-jury-box-in-the-centennial-court-room-in-the-milwaukee-news-photo/456338404">Raymond Boyd/Getty Images</a></span></figcaption></figure><p>As trial dates approach for former President Donald Trump’s indictments, both he and prosecutors are already claiming it will be hard to secure an impartial jury. </p>
<p>Special counsel Jack Smith has said Trump’s public statements <a href="https://apnews.com/article/trump-justice-special-counsel-jan6-truth-social-9abe1cf490ddf44179b55327f1023358">risk contaminating the jury pool</a> for the charges he will face in a federal court in Washington, D.C., related to his efforts to overturn the results of the 2020 presidential election. </p>
<p>Trump has said that the <a href="https://www.nytimes.com/2023/08/03/us/trump-jan-6-jury-washington.html">jury pool is already biased</a> because
District of Columbia residents <a href="https://thehill.com/homenews/senate/4136627-trump-allies-argue-he-cant-get-fair-trial-from-obama-appointee-in-dc/">tend to vote with the Democratic Party</a>. They certainly remember what Jan. 6, 2021, was really like on the streets of their city. And few anywhere in the U.S. have been able to avoid exposure to news coverage, online posts or in-person discussion of the 2020 election, its aftermath and the investigations that have sprung from the invasion of the Capitol and efforts to overturn the election’s results. </p>
<p>Trump’s lawyers, and those prosecuting him, aren’t the only ones grappling with the problem of finding unbiased jurors in the age of social media.</p>
<p>In October 2021, jury selection for the trial of three men accused of murdering unarmed Black jogger Ahmaud Arbery took longer than usual because <a href="https://www.npr.org/2021/10/18/1047106255/ahmaud-arbery-case-trial">many prospective jurors were exposed to media reports</a> about Arbery’s death, including a graphic video of his killing taken by one of the defendants. The jury that was ultimately selected <a href="https://www.cnn.com/2021/11/24/us/ahmaud-arbery-killing-trial-wednesday-jury-deliberations/index.html">convicted the men</a>, who were later <a href="https://www.cnn.com/2022/01/07/us/ahmaud-arbery-sentencing-killers-mcmichael-bryan/index.html">sentenced to life in prison</a>.</p>
<h2>The Supreme Court weighs in</h2>
<p>The question of an impartial jury reached the Supreme Court most recently in 2021, in the case of <a href="https://www.scotusblog.com/case-files/cases/united-states-v-tsarnaev/">Dzhokhar Tsarnaev</a>, the lone surviving Boston Marathon bomber. Much of the <a href="https://www.cnbc.com/2021/10/13/boston-marathon-bomber-supreme-court-to-consider-death-sentence-for-dzhokhar-tsarnaev.html">news coverage focused on whether the court would uphold the death penalty</a> for Tsarnaev, but the case also presented a fundamental question for this era of ubiquitous social media: Is it possible to find unbiased citizens to serve on a jury in high-profile cases?</p>
<p>This question focuses on the <a href="https://glossophilia.org/2017/05/voir-dire-to-see-them-say-or-to-tell-the-truth/">voir dire</a> process, which employs a French term that roughly translates to “speak the truth.” Voir dire occurs before the start of trial, when lawyers or the judge, depending on the jurisdiction, question prospective jurors to determine whether they harbor any kind of bias or prejudice against one of the parties.</p>
<p><a href="https://www.cnn.com/2015/04/08/us/boston-marathon-bombing-trial/index.html">Tsarnaev was charged with 30 counts</a> related to the bombing of the marathon. The case had <a href="https://www.wbur.org/tag/dzhokhar-tsarnaev-trial">received widespread attention</a>, including online commentary about the defendant and pictures of him <a href="https://www.today.com/video/boston-bombing-suspect-drops-backpack-in-video-27008067930">carrying a bomb-laden backpack to the finish line</a>. Voir dire in his case was extensive, lasting 21 days and involving 1,373 prospective jurors, each of whom completed a 28-page questionnaire.</p>
<p>At some point during voir dire, Tsarnaev’s attorney wanted the judge to ask a two-part question to prospective jurors: First, whether they had seen media coverage of the case, and second, what specifically they had seen. The judge asked the first part of the question, but not the second. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of news cameras focused on the courthouse where the Tsarnaev trial was held." src="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">There was intense media focus on the crime and the subsequent trial; here, outside the courthouse on the first day of Dzhokhar Tsarnaev’s trial, May 4, 2015, in Boston.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-media-from-around-the-world-wait-outside-the-news-photo/465212542?adppopup=true">Scott Eisen/Getty Images</a></span>
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<h2>‘Does not suffice’</h2>
<p>Tsarnaev’s lawyers appealed the death penalty, saying in part that the trial judge should have asked what media coverage jurors had seen or read about the case to ensure a fair jury.</p>
<p>The 1st Circuit Court of Appeals <a href="https://www.wbur.org/news/2020/07/31/tsarnaev-death-sentence-overturned">found fault with the judge</a>, saying that asking the jurors “only whether they had read anything that might influence their opinion does not suffice,” because that sole question does not elicit “what, if anything, they have learned.” During the oral argument at the Supreme Court, <a href="https://www.scotusblog.com/2021/10/justices-appear-to-favor-reinstating-death-penalty-for-boston-marathon-bomber/">Justice Sonia Sotomayor noted that</a> “there was a whole lot of different publicity here.”</p>
<p>The Supreme Court ultimately ruled that “<a href="https://ballotpedia.org/United_States_v._Tsarnaev">the jury selection process was both eminently reasonable and wholly consistent</a>” with legal precedents, and upheld the death penalty sentence.</p>
<p>The court could have issued an opinion requiring lower courts to ask jurors more penetrating questions about their exposure to media accounts in high-profile cases.</p>
<p>Some lawyers believe that trial judges should be given a measure of flexibility and autonomy in <a href="https://www.law.cornell.edu/supremecourt/text/409/524">how they conduct voir dire</a>. Others wanted the Supreme Court to step in and <a href="https://www.law.cornell.edu/supremecourt/text/409/524">spell out exactly how voir dire should be conducted</a>. </p>
<p>Those favoring this latter approach pointed out that Tsarnaev was facing a death sentence and <a href="https://courses2.cit.cornell.edu/sociallaw/Tsarnaev/TsarnaevTrial.html">made four requests for a change of venue</a> to move the case from Boston because, his lawyers argued, it would be impossible to get unbiased jurors in the local area. As a <a href="https://udayton.edu/directory/law/hoffmeister_thaddeus.php">scholar of criminal law and juries</a>, I believe a strong argument could be made that any trial judge in this situation should have taken additional steps to uncover bias in prospective jurors. </p>
<p>Those on the other side believe that requiring more questions will unduly lengthen the voir dire process and encroach on juror privacy. Despite these misgivings, courts around the country are increasingly questioning jurors about <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">such topics as social media and their use of the internet</a>. </p>
<h2>Can’t unplug a juror</h2>
<p>There is a larger discussion currently happening in the legal community about whether courts in the digital age can find objective jurors.</p>
<p>Finding unbiased jurors in the pre-digital age, even in high-profile cases, was challenging but nothing like today. Once chosen, <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jurydeliberate/">jurors needed to maintain that unbiased status</a> and were told not to discuss the case with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, jurors might be <a href="https://law.jrank.org/pages/10160/Sequestration.html">sequestered</a>. </p>
<p>Today, that same approach won’t work.</p>
<p>Few jurors can go eight hours, much less a whole week, without using their smartphone or social media. Many people share aspects of their life with others in real time through social media, which is incompatible with jury service. In fact, being a juror makes their social media posts more interesting to others.</p>
<p>In Tsarnaev’s case, <a href="https://www.wbur.org/news/2019/12/11/dzhokhar-tsarnaev-death-sentence-appeal-boston">juror No. 138 had a running dialogue about the case on Facebook with his friends</a>.</p>
<p>Today’s jurors also have much more information available to them. By way of example, from April 4 to May 16, 2022, the Johnny Depp v. Amber Heard trial <a href="https://www.axios.com/2022/05/17/amber-heard-johnny-depp-trial-social-media">generated more social media interactions</a> per article than inflation, the Russian invasion of Ukraine, or the leak of the Supreme Court’s abortion decision. In the past, news stories about a crime or the defendant would have been difficult to discover or access. Now they are just a click away – or may even be included in notifications pushed to jurors’ phones.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Investigators in white suits examining the bombing scene at the Boston Marathon." src="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">On April 16, 2013, investigators examine the scene near the finish line of the Boston Marathon, one day after two blasts killed three and injured more than 260 people.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBostonMarathonBombing/6d6dd5e671c54c97b941413ef2c9d2e9/photo?Query=Tsarnaev%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=94&currentItemNo=0">AP Photo/Elise Amendola, File</a></span>
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<h2>Dealing with the connected juror</h2>
<p>Judges across the country take a variety of approaches to protect defendants from biased juries in the digital age. </p>
<p>Attorneys and judges will ask potential jurors questions. In addition, attorneys will investigate jurors to learn what they know about the case. This happens both in the courtroom at <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">voir dire and online</a>, where attorneys research jurors’ digital footprints, including social media posts. The question of how far to pry during voir dire was the main issue of concern in Tsarnaev’s case. </p>
<p>Once chosen, jurors are told to follow the court’s instructions, but the lure of social media can be all too tempting. Thus, courts impose penalties on jurors who <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ucollr83&div=13&id=&page=">are unable to follow the rules on seeking out information or discussing the case</a>. </p>
<p>These penalties include holding jurors in contempt of court, taking their devices or imposing sequestration, in which jurors are put up in hotels <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ucollr83&div=13&id=&page=">away from their family and devices</a>. The common theme with all penalties is that once imposed, they make citizens less inclined to want to serve as jurors.</p>
<h2>Question time</h2>
<p>Some legal experts believe that if jurors are given sufficient information about the case, they will be less inclined to violate court rules and go online to look for information or discuss the case. One way to improve the appropriate flow of information to jurors is <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/ucollr83&div=13&id=&page=">to allow them to ask questions during trial</a>.</p>
<p>Finally, there are calls to change jury instructions to fit the modern times. Since today’s jurors are so receptive to learning information online, they may have to be told why practices that they regularly use are prohibited while on jury duty. Those explanations could help jurors abide by the rules.</p>
<p>The jury, throughout its approximately 400-year history in America, has witnessed many changes in society. Through each one, the jury has adapted and survived. Thus, I believe it is highly likely the jury will weather the storm of the digital age.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/do-unbiased-jurors-exist-in-an-age-of-social-media-169125">article</a> originally published Oct. 15, 2021.</em></p><img src="https://counter.theconversation.com/content/211322/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thaddeus Hoffmeister does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s lawyers, and those prosecuting him, aren’t the only ones grappling with the problem of finding unbiased jurors in the age of social media.Thaddeus Hoffmeister, Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1927822022-11-24T16:58:46Z2022-11-24T16:58:46ZWhy do so many men get away with rape? Police officers, survivors, lawyers and prosecutors on the scandal that shames the justice system<figure><img src="https://images.theconversation.com/files/497370/original/file-20221125-15-y6dt0y.jpg?ixlib=rb-1.1.0&rect=24%2C98%2C4066%2C2614&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Trust in the ability of the police to investigate rape cases has been severely hampered by very public failings such as the murder of Sarah Everard.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-march-14-2021-1936029097">Shutterstock</a></span></figcaption></figure><blockquote>
<p>Today in England and Wales, an estimated 300 women will be raped. About 170 of those cases will be reported to the police. But only three are likely to make it to a court of law.</p>
</blockquote>
<p>Shadow home secretary Yvette Cooper’s <a href="https://hansard.parliament.uk/Commons/2022-05-11/debates/9711762D-D7FB-4A83-B43D-20F89F7A5DC7/PreventingCrimeAndDeliveringJustice">damning speech</a> on the crisis at the heart of our criminal justice system in May 2022 was echoed three months later by Dame Vera Bird, the outgoing victims’ commissioner for England and Wales. In <a href="https://www.theguardian.com/law/2022/sep/23/victims-commissioner-england-and-wales-dame-vera-baird-to-leave-post">her resignation letter</a>, Bird described a “catastrophic” period for the Crown Prosecution Service (CPS) during which rape convictions have dropped to a <a href="https://www.theguardian.com/society/2021/may/23/fewer-than-one-in-60-cases-lead-to-charge-in-england-and-wales">historic low</a>: </p>
<blockquote>
<p>As victims’ commissioner, I have shone a spotlight on the dire state of rape investigations and prosecutions … While the pandemic is abating, the criminal justice system has only sunk deeper into crisis.</p>
</blockquote>
<p>Despite initiatives such as the <a href="https://www.theguardian.com/society/2022/oct/24/operation-bluestone-inside-new-police-approach-to-tackling-rape">Operation Bluestone</a> pilot, which seeks to develop a new way of dealing with rape cases among police forces, the shocking reality is that in England and Wales today, perpetrators of one of the gravest violent crimes – which carries a maximum penalty of life imprisonment – are very unlikely to receive any punishment at all. Many police officers and lawyers agree with the suggestion that rape has effectively been “<a href="https://rcew.fra1.cdn.digitaloceanspaces.com/media/documents/c-decriminalisation-of-rape-report-cwj-evaw-imkaan-rcew-nov-2020.pdf">decriminalised</a>”.</p>
<p>As a former senior police detective, now criminologist, I regard the rate at which rape cases fall by the wayside at every stage of the criminal process as the greatest scandal facing our justice system. As public confidence continues to plummet, leading to ever-greater reluctance to report sexual assaults and rapes, I want to explain what’s going so badly wrong.</p>
<h2>A deeply disturbing attrition rate</h2>
<blockquote>
<p>The police investigation was shockingly bad at communicating anything with me. It left me feeling like they weren’t doing anything or didn’t care, and eventually after a year my case was closed for lack of evidence. I felt as though they didn’t even try. (Rape survivor’s account extracted from <a href="https://rcew.fra1.cdn.digitaloceanspaces.com/media/documents/c-decriminalisation-of-rape-report-cwj-evaw-imkaan-rcew-nov-2020.pdf">this report</a>.)</p>
</blockquote>
<p>It’s not true to say that rapists in England and Wales are walking free from court in droves, because the vast majority never see the inside of a court building. Indeed, most rapes, <a href="https://www.legislation.gov.uk/ukpga/2003/42/part/1/crossheading/rape">legally defined</a> as penetration with a penis without consent – the vast majority by men – are never even reported. Evidence from both the <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/sexualoffencesinenglandandwalesoverview/march2020">Office for National Statistics</a> and a <a href="https://rcew.fra1.cdn.digitaloceanspaces.com/media/documents/c-decriminalisation-of-rape-report-cwj-evaw-imkaan-rcew-nov-2020.pdf">coalition of rape survivor charities</a> suggests that only two in every ten women who are raped report the crime to the police.</p>
<p>The reasons for this horrendous statistic demand a story of their own. However, this article focuses on the 20% of rape offences that are reported in England and Wales – around 67,000 cases each year. Of these, police send only 10% through to the CPS seeking prosecution – compared with 60% in Scotland, where the prosecutor’s office has a closer relationship with the police and is held <a href="https://www.mygov.scot/police-investigation/the-decision-to-take-a-case-to-court">responsible for a successful investigation</a>, rather than working independently from the police.</p>
<p>The CPS typically agrees to prosecute half the cases it sees, meaning that in England and Wales, <a href="https://victimscommissioner.org.uk/news/the-distressing-truth-is-that-if-you-are-raped-in-britain-today-your-chances-of-seeing-justice-are-slim/">fewer than 2,500 rape complaints</a> (less than 5%) end up with someone being charged and taken to court, of which only 1,400 (around 2% of all reported cases) result in a guilty verdict – a disturbing attrition rate.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two protesters holding signs" src="https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496290/original/file-20221120-15-ash17g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters at a ‘kill the bill’ march against the UK policing bill in London, April 2021.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-england-uk-april-3-2021-1948882852">Shutterstock</a></span>
</figcaption>
</figure>
<p>In all parts of the UK, very few of the rape cases that are reported to the police are “stranger rapes” – yet these are invariably the ones that receive the most publicity. In fact, the vast majority of rape cases involve people in some kind of relationship – from a long-term partner or work colleague to a more fleeting acquaintance in a pub or a nightclub.</p>
<p>Unlike crimes such as burglary or car theft, where a suspect is typically never seen and has no direct contact with their victim, in some 90% of rape cases the <a href="https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/a-joint-thematic-inspection-of-the-police-and-crown-prosecution-services-response-to-rape-phase-one/#police-investigations">suspect is identified</a> – usually because the victim knows their assailant. You might imagine this would improve the prospects of a successful conviction but in fact, the reverse is true.</p>
<h2>An adversarial system</h2>
<p>There is no point discussing what can be done to improve the attrition rate in rape cases if we ignore the daunting “cliff face” that the adversarial criminal justice system presents when these cases reach a crown court.</p>
<p>There are very good reasons for this system of justice, which dates back to 1765 when English judge, Sir William Blackstone, published his influential <a href="https://avalon.law.yale.edu/18th_century/blackstone_bk4ch27.asp">Commentaries on the Laws of England</a>. These included a principle that remains the basis of the adversarial criminal justice system in England and Wales today:</p>
<blockquote>
<p>All presumptive evidence of felony should be admitted cautiously: for the law holds, it is better that ten guilty persons escape than that one innocent suffer.</p>
</blockquote>
<p>Most people would surely agree they don’t want a system that accepts miscarriages of justice as a consequence of fighting crime. But there are other consequences of this principle that are problematic, particularly in cases of rape.</p>
<p>In our adversarial system, the main job of the defence team is to represent their client. If the client tells them the victim is making things up, they will try very hard to muddy the waters, to cast the victim in a bad light, and to convince the jury that he or she may be lying to them. That is what they are paid to do.</p>
<p>The prospect of going through this process has consequences that ripple backwards to the very start of a criminal investigation – not least for the person who has been raped, at a time when they are likely to be enduring a deep and lasting trauma.</p>
<hr>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p><strong><em>This story is part of Conversation Insights</em></strong>
<br><em>The Insights team generates <a href="https://theconversation.com/uk/topics/insights-series-71218">long-form journalism</a> and is working with academics from different backgrounds who have been engaged in projects to tackle societal and scientific challenges.</em></p>
<hr>
<p>Everyone involved in each stage of a rape investigation and prosecution is aware of the hostile nature of the adversarial system, and what the person reporting the crime must endure if the case ends up in court. A consequence is that police officers and CPS lawyers can become despondent about the chances of their case ending with a successful outcome. According to a July 2021 <a href="https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/a-joint-thematic-inspection-of-the-police-and-crown-prosecution-services-response-to-rape-phase-one/">report</a> by the Police and CPS inspectorates:</p>
<blockquote>
<p>Many investigators and prosecutors told us that rape cases are ‘difficult to prosecute’. [They] were very aware of the criticism of low charge and conviction rates, and of high-profile cases that have failed. As a result, the approach adopted sometimes appeared to be more focused on thoroughly exploring the weaknesses in a case, as opposed to focusing on its strengths.</p>
</blockquote>
<h2>Everything in silos</h2>
<p>As a senior lecturer in police studies, I meet many serving detectives. For this article, I interviewed a dozen of them from four different English forces. Many appear demoralised and embarrassed that they are unable to investigate and detect more crime of all kinds.</p>
<p>Over the past decade, the policing system in England and Wales has been stripped of resources leading to prioritisation. One consequence is <a href="https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/police-response-to-burglary-robbery-and-theft-must-improve/">an increased reluctance</a> to investigate “volume crimes” such as burglary, which in turn means many officers have become generally deskilled at criminal investigation. A detective inspector complained to me: “I have people joining my team from uniform who have never been to court and never taken a case through from start to finish.”</p>
<p>According to another detective sergeant, “everything is in silos” in his police force as a result of being <a href="https://theconversation.com/police-officer-resignations-have-risen-by-72-in-the-last-year-we-asked-former-officers-why-188616">so short-staffed</a>:</p>
<blockquote>
<p>If a response officer arrests someone, they just do a verbal handover to a detective sergeant. They never investigate anything because they are so short-staffed on the shift, and are just going from job to job. There is a general lowering of investigation standards – as a workforce, we are completely deskilled.</p>
</blockquote>
<p>Because investigative skills are being lost and morale and expectations are so low – exacerbated by very public police failings ranging from the <a href="http://www.operationyewtree.com/about">Jimmy Savile</a> scandal to the murder of <a href="https://www.bbc.com/news/uk-58746108">Sarah Everard</a> by a serving Metropolitan Police officer – the ability of the police to investigate serious crimes such as rape has been severely hampered. I have heard several anecdotes from serving officers that lines of enquiry are not being followed, and that the search for evidence is less robust than it could be.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many protesters lying down in Parliament Square" src="https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=371&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=371&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=371&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=466&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=466&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496288/original/file-20221120-18-8focbn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=466&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters occupy London’s Parliament Square following the murder of Sarah Everard, March 2021.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-march-14-2021-1936029094">Shutterstock</a></span>
</figcaption>
</figure>
<p>In 2020, the victims’ commissioner reported that of <a href="https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/6/2021/12/Rape-Survivors-and-the-CJS_FINAL-v2.pdf">500 rape survivors surveyed</a>, many said police officers had “treated them sensitively and made them feel believed, comfortable and supported”. However, she also highlighted “many accounts of the opposite”:</p>
<blockquote>
<p>Officers who were insensitive and made the survivor feel disbelieved, judged and at fault. Some [victims] felt their experience was minimised or that police discouraged them from progressing their complaint.</p>
</blockquote>
<h2>Grooming of police investigators</h2>
<p>The vast majority of rape cases <a href="https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/a-joint-thematic-inspection-of-the-police-and-crown-prosecution-services-response-to-rape-phase-one/">get dropped</a> during the police investigation stage in England and Wales. Fewer than 10% of rapes reported to the police are sent on to the CPS for a charging decision. What happens during this police investigation stage so that, every year, around 52,000 rape cases fall by the wayside?</p>
<p>Many police forces have a group of detectives who are specially selected and trained to deal with sensitive crimes such as rape and domestic abuse. In my experience, the thoughtfulness, understanding and empathy towards victims that these detectives display is impressive and valuable.</p>
<p>However, most forces are not resourced well enough to provide this coverage 24/7. This means a rape survivor’s first contact with the police may be with a regular duty detective or, in smaller forces, a uniformed constable, to whom they will have to explain details of the most traumatic and embarrassing thing that has ever happened to them.</p>
<p><strong>Rape figures in England and Wales (year ending March 2020):</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=226&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=226&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=226&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=284&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=284&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490351/original/file-20221018-26-xuyb1b.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=284&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/a-joint-thematic-inspection-of-the-police-and-crown-prosecution-services-response-to-rape-phase-one/">Police and CPS inspectorates report</a></span>
</figcaption>
</figure>
<p>Many rape survivors withdraw their accusations during the police investigation stage, before any charges are brought. Their impressions of the first police officers they encounter can be critical to this decision, affecting their confidence about whether to persevere with the case.</p>
<p>According to one officer, her force (and likely many others) splits responsibilities in a rape case. While a specially trained group of officers deal with the victim and gather their evidence in a professional and empathetic way, that package of evidence is then handed over to a regular detective who is tasked with gathering other evidence, as well as arresting and interviewing the suspect. </p>
<p>Under this system, another detective described a phenomenon which he called “perpetrator grooming of police investigators”:</p>
<blockquote>
<p>This can happen when a force has a specialist rape team dealing with the victim, and regular CID who then interview the suspect. Because these latter officers rarely deal with the victim, they’re only hearing the suspect’s story all the time – and it is possible for a manipulative suspect to blame the victim and get an officer to feel sorry for them.</p>
</blockquote>
<p>The victims’ commissioner’s <a href="https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/6/2021/12/Rape-Survivors-and-the-CJS_FINAL-v2.pdf">report</a> also highlighted this risk. A rape survivor told her researchers:</p>
<blockquote>
<p>The officer said my partner’s messages after the rape [were] “a bit cheeky”. She said he was in love with me and didn’t realise that he had done wrong. It sounded like [the officer] sympathised with him.</p>
</blockquote>
<p>Police officers are human beings. While they should not exactly reflect a cross-section of society on account of their vetting, training and monitoring, there have been recent high-profile findings of officers in <a href="https://www.theguardian.com/uk-news/2022/oct/16/sack-sexist-and-racist-officers-met-police-report-rules">London’s Met Police</a> and <a href="https://www.bbc.co.uk/news/uk-wales-63616908">other</a> <a href="https://www.theguardian.com/uk-news/2022/nov/02/prevalent-predatory-misogynistic-culture-in-police-official-report-finds">forces</a> acting like misogynistic yobs – and worse.</p>
<p>In one case, the Independent Office for Police Conduct (IOPC) found 14 Met officers guilty of “multiple behavioural themes including toxic masculinity, misogyny and sexual harassment”. This <a href="https://www.policeconduct.gov.uk/sites/default/files/Operation%20Hotton%20Learning%20report%20-%20January%202022.pdf">report</a> is one of the most shocking things I have ever read about police behaviour.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters with a banner in front of a policeman" src="https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=353&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=353&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=353&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=444&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=444&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496446/original/file-20221121-11-5y8nov.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=444&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The damage to public confidence in the police, particularly in relation to rape cases, has been severe.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-14th-march-2021-protest-parliament-1935869995">Shutterstock</a></span>
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</figure>
<p>In July 2022, two other Met police officers were <a href="https://www.itv.com/news/london/2022-09-21/police-officers-guilty-of-sending-grossly-offensive-messages-with-wayne-couzens">convicted</a> of criminal conduct relating to sending grossly offensive racist and misogynistic WhatsApp texts, including threats to rape. These men were colleagues of Wayne Couzens, the serving Met officer who murdered Everard.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/making-public-sexual-harassment-a-crime-could-help-increase-reports-but-can-women-trust-police-to-follow-through-187722">Making public sexual harassment a crime could help increase reports – but can women trust police to follow through?</a>
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<p>Of course, the vast majority of police officers will have been appalled by such behaviour. But it’s also extremely unlikely that these are the only groups of officers writing messages like this in their WhatsApp groups. And while there are 43 separate police forces across England and Wales, few among the general public will differentiate between a media report on something happening in the Met Police and their own force. In short, the damage to public confidence in the police, particularly in relation to rape cases, has been severe and will take much work to reverse.</p>
<h2>A downward spiral of pessimism</h2>
<p>Even if a police detective has a highly professional and victim-focused approach, for altruistic reasons they may still dissuade a rape victim from going forward with their complaint. In 2021, the Police and CPS inspectorates <a href="https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/a-joint-thematic-inspection-of-the-police-and-crown-prosecution-services-response-to-rape-phase-one/#police-investigations">highlighted</a> a risk-averse attitude to taking rape cases all the way through to court. This could be for a number of reasons I describe as a “downward spiral of pessimism”.</p>
<ul>
<li><p>Police detectives anticipate how hard it will be to persuade the CPS to prosecute the case.</p></li>
<li><p>Even if it is prosecuted, they know how <a href="https://link.springer.com/book/10.1007/978-3-319-75674-5">difficult it will be to achieve a conviction in front of a jury</a>.</p></li>
<li><p>And they understand the pain and distress the victim is likely to have to go through, often because of legal requirements with which the police themselves will burden them.</p></li>
</ul>
<p>The victims’ commissioner’s <a href="https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/6/2021/12/Rape-Survivors-and-the-CJS_FINAL-v2.pdf">survey</a> of rape survivors includes numerous examples of investigating officers displaying a weary fatalism about the case’s chances:</p>
<blockquote>
<p>[The officers] were upfront and honest. They told me it will be his word against mine … Police discouraged me at first, outlining what I would have to go through in court in a very negative way.</p>
</blockquote>
<p>But there is another, less well understood reason for the officers’ widespread pessimism. On the few occasions that a rape allegation makes it all the way to a court room, the jury will often hear agreement from both parties that sex took place – but a dispute about whether consent was given. Detectives say consent is now the most common defence in rape cases – and the most difficult to disprove.</p>
<p>There has been a huge advance in DNA forensic technology since its <a href="https://aboutforensics.co.uk/colin-pitchfork/">first use in 1988</a>. And TV programmes such as <a href="https://www.imdb.com/title/tt0313043/">CSI Miami</a> have alerted would-be rapists that if there has been physical contact with the victim, their DNA will likely be found by police forensic examiners. So while DNA technology is undoubtedly a deterrent for some potential perpetrators, it has also driven more rapists to rely on the defence of consent rather than no physical contact at all, and this can be more problematic for police and prosecutors to disprove. Without clear physical evidence such as injuries to the victim or a mobile phone recording, the police may believe that the chance of a jury being able to convict in a case of “her word against his” is slim.</p>
<p>If there has been a delay in reporting a rape, this can add to a police officer’s doubts that there could be a successful outcome. A detective highlighted a case where the female victim didn’t report it at the time because the offender was a distant relative:</p>
<blockquote>
<p>[But] after a while she found out that he was in a relationship which gave him access to another young female, so she reported her rape to try and prevent another victim. My sergeant felt that because of the delay the jury may not convict so under the CPS guidelines, they didn’t think it was worthy of putting a file in asking for a charge.</p>
</blockquote>
<p>Once again, pessimistic police officers, not trained lawyers, are second-guessing what might happen in a jury room, or what a CPS lawyer will decide in their office when they apply the “reasonable prospect of conviction” tests to the evidence bundle the police have provided.</p>
<p>Adding to the complexity facing these officers, it’s important to acknowledge that a very small number of reports of rape presented to the police are false. Two specialist rape and domestic abuse investigators told me that many police officers find it risky to challenge a rape victim’s story, even if they have doubts, because of a perceived fear of criticism that they are not sufficiently “victim-focused”. This phenomenon was also highlighted by a defence barrister who had been defending a woman for the crime of wasting police time after a rape report was found to be false. The barrister said it should have been obvious that the story was made up, but the police had been reluctant to challenge the account.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victims-are-more-willing-to-report-rape-so-why-are-conviction-rates-still-woeful-92968">Victims are more willing to report rape, so why are conviction rates still woeful?</a>
</strong>
</em>
</p>
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<p>To many police officers, it can feel like a no-win situation. And the result, in England and Wales at least, is a systemic failure to see most rape reports through to the next stage of the criminal justice process, the crown prosecutor’s desk. Although an officer may have found absolutely no reason to doubt the victim’s word, they may still feel very pessimistic about the chance of a case making it all the way through to a guilty verdict.</p>
<p>(In Scotland, far fewer cases are stopped during the police investigation stage. This may contribute to greater confidence in the police and perhaps the criminal justice system as a whole, as evidenced by the latest <a href="https://www.rapecrisisscotland.org.uk/resources/RCS-Annual-report-2020-2021-web-pages.pdf">Rape Crisis Scotland Report</a> which indicates that some 70% of victims felt the police had been “supportive”.)</p>
<h2>To charge or not to charge?</h2>
<p>To understand what the phrase “a reasonable prospect of conviction” means in practice, I asked a former CPS chief crown prosecutor to explain how they make their decision whether or not to charge. He told me: “In theory, if it is more likely than not that a jury would convict given the evidence available, we should give them the opportunity to examine it.”</p>
<p>I then asked him to explain in percentage terms when a CPS lawyer would decide to prosecute a rape case:</p>
<blockquote>
<p>In theory, at 51% – that is what “more likely than not” means. But if you ask me what actually happens in practice, I expect most CPS lawyers, especially in a rape case where they know the victim will get a hard time, they probably set the bar at about a 75% chance of a conviction.</p>
</blockquote>
<p>He explained that CPS prosecutors can get criticism “from our own side” if too many cases are put through that are later withdrawn, either before or during a trial. He called this “a perverse incentive to not authorise a charge in rape cases”, since they are notoriously difficult to get through to conviction.</p>
<p>It is clear from interviewing police detectives that they always anticipate it will be hard to get a positive CPS charging decision. One detective sergeant said her local CPS was effectively asking the police to take responsibility for the judgment about whether a case was likely to succeed in court:</p>
<blockquote>
<p>The CPS asks us to tick a box on a form saying whether there is a realistic prospect of conviction. Often you could get an acting sergeant – who has never been to court, with no legal training – guessing what a jury might think of the victim and her credibility. They know the CPS will be picky so they decide not to send the decision to CPS. Psychologically, they feel they are less likely to be criticised for not sending a case than for sending a weak case and wasting everyone’s time.</p>
</blockquote>
<p>Again we see evidence of the “downward spiral of pessimism”, where each person is second-guessing what the next decision maker might do. But it gets worse. In her force (and this was also confirmed by an officer from another force), a detective sergeant explained:</p>
<blockquote>
<p>The CPS imposed a rule that they would only deal with charging decisions in a rape case if the police had sent a full file of evidence. It takes about 200 hours to prepare a full file, so when the sergeant has to tell a detective to spend all that time on a case … If they anticipate the CPS will reject it anyway, there is a lot of pressure to just tick a box on a form – “insufficient evidence” – and get rid of the problem that way.</p>
</blockquote>
<p>For other crimes, the police are allowed to send an “abbreviated” file to the CPS containing just the basic evidence, as long as they explain what other evidence will be available should they decide to run the case. Refusing to allow the police to do this in rape cases means that every statement must be taken, and potentially thousands of mobile phone messages must be examined, in advance of any CPS decision, at huge time-cost to an under-resourced police force.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protester hplding up a sign" src="https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=363&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=363&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=363&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=456&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=456&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496291/original/file-20221120-26-f5cgn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=456&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Many police officers and lawyers agree with the suggestion that rape has effectively been decriminalised.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-england-uk-april-3-2021-1948881106">Shutterstock</a></span>
</figcaption>
</figure>
<p>By treating rape differently to other serious crime types it seems that, in some parts of the country at least, risk-averse CPS officials may be discouraging police supervisors from sending evidence files for a charging decision. </p>
<p>Since the CPS only sees about 4,000 of the initial 67,000 cases in England and Wales each year, it is perhaps easy for them to deflect criticism and say the problem of rape attrition lies elsewhere. Yet one of the reasons the CPS was set up in 1985 was to decide if there is a “reasonable prospect of conviction” and take that decision-making role away from the police. </p>
<p>In the face of such disastrous overall statistics, it is surely incumbent on the CPS to reclaim this role in a way that reduces police workloads – while, in cases of rape in particular, building police confidence that all cases with a reasonable prospect will indeed be prosecuted. </p>
<h2>Why victims still don’t go ahead</h2>
<p>There are two main reasons why victims still decide not to proceed even when a case is evidentially strong. The first is the length of time the prosecution process will take, as this police sergeant highlighted:</p>
<blockquote>
<p>We have a lot of victims who want to retract their statements because the cases are taking too long. It can easily take over a year for a case to come to court and victims just want to move on. They don’t want the court cases dominating their lives.</p>
</blockquote>
<p>It’s not just police officers who lament the long delays in cases coming to court. A criminal barrister recently <a href="https://thesecretbarrister.com/2022/07/21/guest-post-by-joanna-hardy-susskind-attrition/">wrote</a>:</p>
<blockquote>
<p>I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years. Trial dates creep into 2023 – then, 2024.</p>
</blockquote>
<p>The UK government’s <a href="https://en.wikipedia.org/wiki/United_Kingdom_government_austerity_programme">austerity policies</a> from 2010 <a href="https://www.theguardian.com/books/2018/apr/28/secret-barrister-stories-law-review-justice-system">did not just affect the police side of the criminal justice system</a>. Over the following decade, 164 of 320 magistrates’ courts in England and Wales (51%) <a href="https://commonslibrary.parliament.uk/constituency-data-magistrates-court-closures/">were closed</a>. According to the <a href="https://www.lawsociety.org.uk/campaigns/court-reform/whats-changing/court-closures">Law Society</a>, by June 2021 these closures had contributed to a backlog of more than 386,000 cases in the magistrates’ courts and – because every serious case starts off with a brief hearing in a magistrates’ court – more than 58,000 delayed crown court cases, including many rape cases.</p>
<p>Of the few cases that end up going to court, for the first time the average duration between a rape offence occurring and the final verdict <a href="https://www.theguardian.com/society/2022/jan/31/1000-days-between-offence-and-case-completion-in-uk-data-shows">exceeded 1,000 days</a> in 2021. Yvette Cooper commented on these delays in her <a href="https://hansard.parliament.uk/Commons/2022-05-11/debates/9711762D-D7FB-4A83-B43D-20F89F7A5DC7/PreventingCrimeAndDeliveringJustice">speech</a> to parliament in May 2021:</p>
<blockquote>
<p>I was told about a horrendous rape case where the brave victim was strung out for so long and the court case was delayed so many times that she gave up because she could not bear it anymore. I have heard about police officers tearing their hair out over Crown Prosecution Service delays because they know that the victim will drop out if they cannot charge quickly.</p>
</blockquote>
<p>The second major disincentive for rape survivors to proceed, even when the CPS approves a prosecution, is the intrusiveness of the process – and this has been accentuated by the mobile phone revolution. In her final report, the outgoing victims’ commissioner <a href="https://victimscommissioner.org.uk/news/the-distressing-truth-is-that-if-you-are-raped-in-britain-today-your-chances-of-seeing-justice-are-slim/">highlighted</a> how rape campaigners coined the phrase “digital strip-search” to describe the police’s “routine requests” for a rape complainant to hand over their mobile phone almost immediately upon making a complaint.</p>
<p>Her comments followed the then-UK attorney general Suella Braverman <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1078194/AG_Guidelines_2022_Revision_Publication_Copy.pdf">issuing a directive in May 2022</a> which restated that, should a rape survivor take part in counselling before a criminal trial in England or Wales, any notes from these sessions may be examined by a police officer and possibly disclosed to the suspect’s lawyers to see if anything was said that could help their client’s defence.</p>
<p>Outrage over Braverman’s guidance led to 100 Labour MPs <a href="https://www.theguardian.com/society/2022/jun/17/female-labour-mps-call-on-pm-boris-johnson-scrap-rape-victim-therapy-guidance">writing</a> to the prime minister, Boris Johnson, warning that this could “cause many survivors to avoid seeking therapy, and make it more likely that cases will collapse when the prolonged stress of waiting for trials becomes too much”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters holding a banner" src="https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496292/original/file-20221120-18-vw5uwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Disclosure of personal material has become a controversial issue in rape cases.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-march-13-2021-1935457387">Shutterstock</a></span>
</figcaption>
</figure>
<p>In fact, there is nothing new in this legal requirement placed upon the police. The <a href="https://www.legislation.gov.uk/ukpga/1996/25/contents">Criminal Procedure and Investigations Act 1996</a> (CPIA) imposed an obligation on the police to pursue all reasonable lines of enquiry when undertaking a criminal investigation, whether these point towards or away from the suspect. If the police have any relevant material in their possession, or if they are aware that a third party holds relevant material, that material must be revealed to the CPS and then the defence team.</p>
<p>In the many cases of rape where the victim and defendant knew each other, any notes which may reveal the extent and nature of that relationship would be relevant for the defence team. In her 2022 guidelines, Braverman did not make counselling notes exempt from this process.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-so-many-rape-investigations-are-dropped-before-a-suspect-is-charged-111405">Why so many rape investigations are dropped before a suspect is charged</a>
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<p>A police officer has to make the initial judgment about what material is relevant – the law says this is anything which may assist the defence case or undermine the prosecution case. And the police are well aware that they will be heavily criticised if they contribute to a miscarriage of justice.</p>
<p>But they are also clear that under our adversarial system, their decision will be subject to heavy scrutiny in the crown court if the defence barrister asks if there is any material, such as mobile phone texts or counselling notes, which that officer decided was not relevant. Many officers therefore take a risk-averse view by revealing anything to the CPS which could remotely be construed as being of assistance to the defence. As a detective inspector put it:</p>
<blockquote>
<p>We seem to lose more cases because of [a lack of] disclosure than anything else. No one gets any prizes for causing a miscarriage of justice.</p>
</blockquote>
<h2>‘All my privacy was gone’</h2>
<p>In 1996, those drafting the CPIA legislation probably did not imagine that a quarter of a century later, everyone would be carrying around storage devices that can hold 120 gigabytes of written and photographic data.</p>
<p>It is clear from the victims’ commissioner’s <a href="https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/6/2021/12/Rape-Survivors-and-the-CJS_FINAL-v2.pdf">survey</a> of rape survivors that many are very confused and upset at the intrusion into their private lives caused by handing over their phone to the police:</p>
<blockquote>
<p>I was happy to provide my mobile phone for them to download all the vile messages that supported my assaults. The police said they would download all messages between me and my ex-husband, but they actually downloaded all of my phone – every message. All my privacy was gone.</p>
</blockquote>
<p>Several survivors said the request made them feel like they were under suspicion – that they were the criminal:</p>
<blockquote>
<p>I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist. [The police] had refused to take physical evidence – my clothing from the night of the attack – but wanted to investigate my private life.</p>
</blockquote>
<p>The victims’ commissioner <a href="https://victimscommissioner.org.uk/news/the-distressing-truth-is-that-if-you-are-raped-in-britain-today-your-chances-of-seeing-justice-are-slim/">stressed</a> that a complainant “cannot be coerced into handing over their private digital information by threatening that the investigation will be closed should they fail to comply”. However, when the case finally comes to court, a defence barrister may well still ask for this information. </p>
<p>In the case of student <a href="https://www.bbc.com/news/uk-england-london-42366629">Liam Allan</a>, for example, his trial collapsed in December 2017 after it emerged that police had not disclosed a download of the rape complainant’s phone that had been taken during the investigation. Once the judge ordered this to be examined, it became clear that there was evidence within the text messages that the complainant had not been truthful in her evidence in court, and the case was abandoned by the CPS.</p>
<p>The police understandably consider it a reasonable line of enquiry to explore whether there was any previous or current relationship between victim and suspect, and so they routinely ask for a download of the victim’s phone. But the amount of data they are presented with is enormous. I was told by one officer:</p>
<blockquote>
<p>It can take days to go through texts, WhatsApp messages and photographs, checking whether there has been any contact between the two parties, and any conflicting or supporting information relating to the rape report.</p>
</blockquote>
<h2>Inside the courtroom</h2>
<p>The crown court can seem a hostile environment for rape survivors. But most judges are well aware that if they fail to give the defendant every opportunity to clear themselves, the case will end up in the appeal court – and they may be criticised for their handling of the trial. Judges are, of course, cognisant of cases like Allan’s, who might have become a victim of a miscarriage of justice because his defence team was not provided with information from the victim’s phone which would have exonerated him.</p>
<p>The victims’ commissioner <a href="https://victimscommissioner.org.uk/news/the-distressing-truth-is-that-if-you-are-raped-in-britain-today-your-chances-of-seeing-justice-are-slim/">called upon</a> the government to “commit to free, independent legal advice for rape complainants … provided by a qualified lawyer who can counsel on matters affecting the victim’s human rights, such as disclosure”.</p>
<p>Excellent support and advice is already offered by organisations such as <a href="https://rapecrisis.org.uk/">Rape Crisis</a>, but I suggest there is merit in having an independent person, perhaps a lawyer or legal executive, appointed by the court to manage the disclosure issues around a victim’s private personal data – but this is a political issue that would require a law change, not just extra guidance.</p>
<p>If the UK’s system was based on the French “<a href="https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-systems.html">inquisitorial model</a>”, it would be possible for the court to appoint its own expert that each side must rely on. The problem of intruding into a rape survivor’s privacy could then be alleviated by having an independent, legally trained expert take possession of the victim’s phone downloads, diaries and counselling notes and then, without revealing any content, provide a report assessing their relevance for the police, CPS, defence lawyers, and ultimately the trial judge. If agreed by the judge this independent report would then be binding on all parties.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-tackling-rape-myths-among-jurors-could-help-increase-convictions-at-trial-123797">How tackling 'rape myths' among jurors could help increase convictions at trial</a>
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<p>In respect of certain sensitive material, such as the name of a police informant, trial judges already have <a href="https://www.cps.gov.uk/legal-guidance/disclosure-manual-chapter-13-making-pii-application">a role</a> in deciding whether it is in the public interest to disclose it to the defence team. So the principle in respect of a rape victim’s sensitive information is perhaps not that different – although expanding this system would require the Ministry of Justice to find additional budget to fund these experts.</p>
<p>Certainly, it is possible to make radical improvements to the criminal justice system when there is enough pressure to do so. In the late 1990s, for example, a system of trained, independent <a href="https://www.cps.gov.uk/legal-guidance/special-measures">intermediaries</a> was created to help vulnerable witnesses communicate with both the police and the courts.</p>
<h2>A criminal justice disaster</h2>
<p>Shamefully, the experience of rape victims whose cases actually reach the crown court is overwhelmingly negative. A <a href="https://rcew.fra1.cdn.digitaloceanspaces.com/media/documents/c-decriminalisation-of-rape-report-cwj-evaw-imkaan-rcew-nov-2020.pdf">report</a> by the Centre for Women’s Justice contains harrowing quotes from survivors who have survived being cross-examined under the adversarial system. One admitted that: </p>
<blockquote>
<p>Being cross-examined was as traumatic as the rape, except with the added humiliation of a jury and a public gallery.</p>
</blockquote>
<p>Potential attempts to reduce these stresses include the extension of <a href="https://www.cps.gov.uk/support-give-your-evidence-special-measures">video-recorded witness testimony</a> (common practice since 1991 for children and other vulnerable witnesses including rape survivors) to include the <a href="https://www.cps.gov.uk/sites/default/files/documents/publications/s28-NPCC-CPS-Protocol-2019.pdf">video cross-examination of witnesses</a> by both legal teams long before the case reaches court.</p>
<p>The advantage for survivors is that their role in the trial would be over much sooner, which would perhaps alleviate one of the key reasons so many drop out even when the CPS wishes to send their case to court. However, these plans have been repeatedly delayed since the recommendation was first made by the <a href="https://www.academia.edu/7573950/Progress_on_Pigot_Recent_Developments_Regarding_Pre_trial_Cross_examination_of_Vulnerable_Witnesses">Pigot Report</a> back in 1989. Currently there are only three pilot sites trialling such a scheme for the <a href="https://www.cps.gov.uk/legal-guidance/special-measures">witness category which includes adult rape survivors</a>.</p>
<p>Nor will this eradicate the long wait for the outcome of the trial itself. The Labour party has announced plans to <a href="https://www.theguardian.com/politics/2022/jul/26/labour-fast-track-rape-domestic-violence-cases-courts">prioritise</a> rape cases through the court system. But improving the courtroom process is far from a complete solution to our current rape crisis, of course, because few cases ever even reach a court.</p>
<p>The attrition rate at every stage, but particularly during the police investigation, should be regarded as a criminal justice disaster. It is so detrimental to public confidence that tinkering around the edges of a failing system is not enough. </p>
<p>As one detective constable said to me with a look of weary resignation: “I went on our rape team because I really thought I could make a difference to people’s lives. Yet we often seem to just let victims down and make things worse. It is so awful.”</p>
<blockquote>
<p>If you are affected by issues raised in this article and would like to talk to someone, <a href="https://rapecrisis.org.uk/get-help/">Rape Crisis England & Wales</a> and <a href="https://www.rapecrisisscotland.org.uk/">Rape Crisis Scotland</a> offer telephone helplines and a network of local support centres.</p>
<hr>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=112&fit=crop&dpr=1 600w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=112&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=112&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=140&fit=crop&dpr=1 754w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=140&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=140&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
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</figure>
<p><em>For you: more from our <a href="https://theconversation.com/uk/topics/insights-series-71218?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">Insights series</a>:</em></p>
<ul>
<li><p><em><a href="https://theconversation.com/uncharted-brain-decoding-dementia-introducing-a-new-podcast-series-193162?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">Uncharted Brain: Decoding Dementia – introducing a new podcast series</a></em></p></li>
<li><p><em><a href="https://theconversation.com/a-culture-of-silence-and-stigma-around-emotions-dominates-policing-officer-diaries-reveal-152657?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">A culture of silence and stigma around emotions dominates policing, officer diaries reveal</a></em></p></li>
<li><p><em><a href="https://theconversation.com/you-couldnt-leave-your-husband-it-wasnt-done-the-story-of-the-women-behind-the-first-domestic-violence-refuges-160895?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">‘You couldn’t leave your husband. It wasn’t done’ – the story of the women behind the first domestic violence refuges</a></em></p></li>
<li><p><em><a href="https://theconversation.com/abused-by-our-grown-up-children-mothers-open-up-about-this-little-understood-form-of-domestic-violence-170735?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">Abused by our grown-up children: mothers open up about this little-understood form of domestic violence</a></em></p></li>
</ul>
<p><em>To hear about new Insights articles, join the hundreds of thousands of people who value The Conversation’s evidence-based news. <a href="https://theconversation.com/uk/newsletters/the-daily-newsletter-2?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK"><strong>Subscribe to our newsletter</strong></a>.</em></p><img src="https://counter.theconversation.com/content/192782/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr John Fox is affiliated with the Labour Party (member, non-activist), the British Society of Criminology, and the Association of Child Protection Professionals.</span></em></p>In England and Wales perpetrators of one of the gravest violent crimes, which carries a maximum penalty of life imprisonment, are very unlikely to receive any punishment at allJohn Fox, Senior Lecturer in Police Studies, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1938432022-11-07T19:01:55Z2022-11-07T19:01:55ZCan juries still deliver justice in high-profile cases in the age of social media?<p>The recent <a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382">sudden end</a> to the Bruce Lehrmann trial last month raises again whether the jury is fit for purpose in a 21st century hyper-connected world.</p>
<p>That jury’s service in the Lehrmann case ended peremptorily after it was revealed to the judge that material downloaded from the internet (which was highly relevant to the case and not introduced as evidence) had been found in the jury room. A retrial has been <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-retrial-confirmed-for-2023-says-act-director-of-public-prosecutions-shane-drumgold/news-story/6012323f3d863985ce5a001f10a3a7eb">set for late February</a>. Lehrmann had been accused of raping former Liberal Party staffer Brittany Higgins, to which he pleaded not guilty. </p>
<p>The costs so far (to both parties and the court) could well exceed a million dollars.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1585497761771823104"}"></div></p>
<p>With easy access to the internet available to any juror who owns a mobile phone, is it conceivable that all jurors will abide by the strict instructions of a judge admonishing them to pay attention only to the evidence adduced in the trial?</p>
<p>Are instructions to jurors to avoid media sources meaningless given the accessibility of the internet?</p>
<p>These aren’t new questions. In 2005, <a href="https://www.parliament.nsw.gov.au/researchpapers/Documents/trial-by-jury-recent-developments/jury%20and%20index.pdf">a report</a> prepared for the NSW Parliamentary Library Research Service observed:</p>
<blockquote>
<p>Prominent cases in recent years […] have illustrated the legal problems that can occur when jurors, despite judicial instructions to confine their deliberations to the evidence before them, undertake their own research, discuss the case with non-jurors, or visit a place connected with the offence. The increasing amount of legal information available on the internet is a cause for particular concern. The Jury Amendment Act 2004 […] prohibits jurors from making inquiries about the accused or issues in the trial, except in the proper exercise of juror functions.</p>
</blockquote>
<p>But for all the warnings and threats of consequences, a juror may still stray down <a href="http://www.lawfoundation.net.au/ljf/site/templates/grants/$file/UNSW_Jury_Study_Hunter_2013.pdf">the path of private sleuth</a>. It’s easy to do and Australians have a voracious appetite for social media. In 2018 <a href="https://www.yellow.com.au/wp-content/uploads/2018/06/Yellow-Social-Media-Report-2018-Consumer.pdf">a survey reported</a> 62% of Australian adults use social media sites every day, and 34% use them more than five times a day.</p>
<p>This becomes particularly problematic when the eyes of the world are fixed on cases such as these.</p>
<p>The sudden and unexpected end to the Lehrmann trial prompts a more fundamental question: should we continue to persist with juries at all?</p>
<h2>Two sides</h2>
<p>There are two sides to the argument regarding retention of the jury.</p>
<p>On the one hand, juries have stood the test of time. The idea of being tried by one’s peers was entrenched by the <a href="https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial">Magna Carta of 1215</a>. Even though the jury as we know it didn’t crystallise until about 350 years ago and has been through a number of permutations since then, there would be few people who could argue against its symbolic legitimacy given its staying power.</p>
<p>Over that time, juries have been given sustained examination in Australia by the <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-48.pdf">New South Wales Law Reform Commission</a>, the Queensland <a href="https://www.ccc.qld.gov.au/sites/default/files/Docs/Publications/CJC/The-jury-system-in-criminal-trials-in-qld-Issues-paper-1991.pdf">Criminal Justice Commission</a>, the <a href="https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/jury_service/report_volume_1.pdf">Victorian Law Reform Committee</a>, and most recently by academics at <a href="https://cdn.csu.edu.au/__data/assets/pdf_file/0007/3452182/Jury-Reasoning-v2-NEW-BRANDING.pdf">Charles Sturt University</a>, to name a few. Juries have survived largely intact throughout this exercise.</p>
<p>On the other hand, there are doubts about their efficiency. Juries took a hit after the High Court decision <a href="https://theconversation.com/the-jury-may-be-out-on-the-jury-system-after-george-pells-successful-appeal-135814">in the George Pell appeal</a> where the judges, in allowing the appeal, ruled that no jury, properly instructed, could have reached a guilty verdict in his trial.</p>
<p>What’s more, it’s overstated to say that trial by jury is a fundamental bulwark of fairness in the criminal justice system. Indeed, 92% of criminal matters in Australia are dealt with in the <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">magistrates courts</a>, where there are no juries. Of the remaining 8% referred to the “superior” criminal courts (Supreme, District and County), more and more defendants are choosing “judge alone” trials (in jurisdictions where that option is available). For example, in NSW, <a href="https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-a-flawed-approach-to-criminal-justice-137397">up to a quarter of accused persons</a> are now electing to be tried without a jury.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1247405253315530753"}"></div></p>
<p>Other studies have highlighted how jurors <a href="https://www.sciencedirect.com/science/article/abs/pii/S0194659507000470">overrate DNA evidence</a> despite judicial directions, which may lead to <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:10533">far more jury convictions</a> than are warranted, and how jurors’ perceptions of guilt and innocence can be affected by the <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:44141">positioning of defendants</a> in the courtroom. <a href="https://espace.library.uq.edu.au/view/UQ:331175">Another study</a> found that although jurors report they understand directions, they often don’t appear to use those directions in arriving at a decision.</p>
<p>And finally, as the Lehrmann trial has illustrated, it’s not unusual for jurors to ignore or misunderstand the instructions that have been given to them.</p>
<p>But, what about the ability of juries to apply some of their own “commonsense” justice? True, there are examples of juries wielding their own commonsense stick. For example, a verdict that <a href="https://www.coursehero.com/file/p7dtm6g/R-v-R-1981-28-SASR-321-South-Australian-Supreme-Court-King-CJ-Jacobs-Zelling-JJ/">occurred in 1981</a> when a South Australian jury returned a verdict of not guilty for a woman who had been charged with the murder of her husband. The jury decided that the defence of provocation (only available to reduce murder to manslaughter) exonerated her, figuring that, in the time before the victim’s death, his severe and persistent abuse of his family had pushed his wife to breaking point.</p>
<p>There is, however, a contrary argument. Research has revealed that “commonsense” <a href="https://onlinelibrary.wiley.com/doi/epdf/10.1111/lapo.12181">comes with coded biases</a>, such that telling jurors to use their commonsense is futile, given it’s difficult (if not impossible) to erode such biases.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/juries-are-subject-to-all-kinds-of-biases-when-it-comes-to-deciding-on-a-trial-176721">Juries are subject to all kinds of biases when it comes to deciding on a trial</a>
</strong>
</em>
</p>
<hr>
<h2>Are there other options?</h2>
<p>One alternative to the jury is mixed judiciaries used in some European countries, where one may find a panel of judges or <a href="https://academic.oup.com/book/32863/chapter/275978049?login=true">a combination of judges and lay people</a>. But the common law world has never looked like following that lead.</p>
<p>Another alternative in use in Australia is a judge alone trial, although <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11">that option</a> isn’t always available, and by virtue of <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11">Section 80 of the Constitution</a> isn’t available in a trial of a serious federal offence. Indeed, there’s no guarantee that judges themselves are immune from social media influences. While there’s a widespread belief that judges are more capable than juries of putting <a href="https://chelmsfordlegal.com.au/trial-by-judge-alone-is-it-possible-and-if-so-is-it-preferable/">to one side their own prejudices</a>, the rules regarding sub judice contempt (discussing publicly a matter that is before a court in a manner that may influence the outcome) applies equally to judge alone and jury trials.</p>
<p>Adding to the policy confusion, there’s some evidence trials by judge alone do make a difference to the outcome. The NSW Bureau of Crime Statistics <a href="https://stacklaw.com.au/news/criminal-law/trial-by-jury-vs-trial-by-judge-alone-whats-the-difference/">examined NSW trials between 1993 and 2011</a> and found defendants were acquitted 55.4% of the time in a judge alone trial, compared to 29% in a jury trial. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1539801923070615552"}"></div></p>
<p>Another reform idea is to allow jurors to <a href="https://scholar.google.com/citations?view_op=view_citation&hl=en&user=dMsPrLwAAAAJ&citation_for_view=dMsPrLwAAAAJ:7PzlFSSx8tAC">raise questions with the judge</a> during breaks in the trial, including asking about things they may have “accidentally” come across on social media. A judge could send the jury out while the lawyers present to the judge how they think the questions should be handled and answered. However, this idea has yet to excite policymakers.</p>
<p>In the end, we must accept there are flaws in jury process. But finding acceptable alternatives has proved difficult, hence the reluctance of governments to abandon the status quo. Judges will continue to warn against private sleuthing, but one suspects that it will, from time to time, continue regardless.</p>
<p>One can only hope the disaster that befell the Lehrmann trial sends a salutary lesson to prospective jurors henceforth: listen to what the judge tells you, and during the course of the trial leave your favourite search engine alone.</p><img src="https://counter.theconversation.com/content/193843/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office holder in SA Labor.</span></em></p>In the end, we must accept there are flaws in jury processes. But finding alternatives has proved difficult, hence the reluctance of governments to abandon the status quo.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1767212022-02-28T13:58:03Z2022-02-28T13:58:03ZJuries are subject to all kinds of biases when it comes to deciding on a trial<figure><img src="https://images.theconversation.com/files/448402/original/file-20220224-52384-10gzp8f.jpg?ixlib=rb-1.1.0&rect=0%2C14%2C3325%2C1979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/twelve-jurors-sit-jury-box-court-1475824919">Varlamova Lydmila/Shutterstock</a></span></figcaption></figure><p>From <a href="https://www.imdb.com/title/tt0247082/">CSI</a> to <a href="https://www.nbc.com/law-order/about">Law and Order</a>, <a href="https://www.imdb.com/title/tt2303687/">Line of Duty</a> and <a href="https://www.imdb.com/title/tt0118401/">Midsomer Murders</a>, there is huge public fascination with crime and the criminal justice system. Especially when things come to a climactic ending and jurors decide on a defendent’s fate. But how much do jurors get it wrong? Will the jury convict an innocent person, or might they free a guilty person? </p>
<p>Ultimately, who committed the crime is often not easy to know, and jurors have to subjectively evaluate the evidence. But finding out what goes on inside the jury room and the <a href="https://theconversation.com/scotlands-not-proven-verdict-helps-juries-communicate-their-belief-of-guilt-when-lack-of-evidence-fails-to-convict-108286">biases</a> that might influence jurors themselves is of huge interest and importance. </p>
<p>As psychologists, we can delve into jury decision making, as it requires several different areas of psychological research (cognitive psychology, social psychology, and individual differences) to unlock the processes behind the decisions jurors reach. The aim of our <a href="https://www.researchgate.net/publication/358001463_Cognitive_and_human_factors_in_legal_layperson_decision_making_Sources_of_bias_in_juror_decision_making">recent review</a> was to bring together different areas of psychology to identify potential sources of bias that may influence how jurors make decisions.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/uPUMd89LqOA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>The big three biases</h2>
<p>We identified three main sources of bias: <a href="https://psycnet.apa.org/record/2008-10519-003">pre-trial bias</a>; <a href="https://oro.open.ac.uk/66827/1/faith-in-thy-threshold.pdf">cognitive bias</a> and <a href="https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704">bias originating from expert witnesses</a>. </p>
<p>A significant part of the research literature has highlighted that pre-trial biases can influence the judgments of jurors. In 2008 researchers developed the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.2008.00378.x">pre-trial juror attitude questionnaire</a> (PJAQ).</p>
<p>The scale measures biases that might influence juror decision making. For example, it measures biases such as racial biases and system confidence – how much faith (or not) the juror has in the criminal justice system. Through measuring these biases, we can get an indication into how strong a bias a person may have towards either the prosecution or defence. Interestingly, the PJAQ has often been shown to predict the verdict reached by jurors, with those who have a pro-prosecution bias reaching more guilty verdicts.</p>
<p>Due to pre-trial bias, some jurors are unable to take part in a criminal trial with an “innocent until proven guilty” <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.2008.00378.x">mindset</a>, even if they try. Jurors, like most humans, are not always rational, and may <a href="https://www.jstor.org/stable/1738360">struggle to process</a> and utilise all the available information in a reasoned manner.</p>
<p>This tendency often leads to biased decision making that can lead to errors. For example, <a href="https://www.jstor.org/stable/1738360">research</a> from 2001 found that jurors may favour particular verdicts as a trial progresses, despite being warned against doing this by a judge.</p>
<p>These preferences can lead to those jurors distorting the evidence against their preferred verdict or giving more weight to the evidence that favours their preference, a phenomenon known as <a href="https://journals.sagepub.com/doi/abs/10.1177/0025802418791062">confirmation bias</a>.</p>
<p>Jurors who enter the courtroom with a bias towards the prosecution are more likely to see the evidence from the prosecution’s perspective, and dismiss the evidence presented from the defence (and vice versa when jurors have a defence bias). So initial pre-trial biases interact with cognitive mechanisms (for example, thinking, perception, memory) to <a href="https://www.researchgate.net/publication/358001463_Cognitive_and_human_factors_in_legal_layperson_decision_making_Sources_of_bias_in_juror_decision_making">cause the effects of bias to snowball</a>. </p>
<p>Another origin of bias in jurors may come from “objective” and <a href="https://www.science.org/doi/epdf/10.1126/science.aat8443">scientific expert witnesses</a>. Researchers such as co-author Itiel Dror have <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1556-4029.14697">shown</a> that expert witnesses are far from objective decision makers and that irrelevant contextual information (provided, potentially, through the police) can bias their judgments and cause errors.</p>
<p>The diagram below shows the <a href="https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704">factors that might influence</a> a forensic expert’s analysis. Through presenting expert testimony, biased conclusions could end up influencing the jury. </p>
<figure class="align-center ">
<img alt="A graphic showing a pyramid shape representing the sources of juror bias in criminal trials." src="https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The biases that expert decision makers are subject to, from case-specific information to the effects of human and cognitive factors on their choices.</span>
<span class="attribution"><span class="source">Itiel Dror</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<h2>Balancing the bias</h2>
<p>We have made several recommendations in our review. First, we suggest a jury selection procedure, using measures like the PJAQ, where jurors with prejudicial biases are weeded out from the jury pool.</p>
<p>Second, such procedures could also be used to create a jury with a representative pool of biases. As fallible beings, humans are likely to always have some form of bias. If the most negative of biases, such as racial biases, are removed from the jury pool, other biases could be counteracted through a mix of jurors with different beliefs and biases – for example people with confidence in the criminal justice system vs. people with little faith in the system <a href="https://www.tandfonline.com/doi/abs/10.1080/1068316031000116283">deliberating with one another</a> – deliberating with one another. More research is needed though, as very little has been conducted on <a href="https://psycnet.apa.org/record/2017-09577-009">jury deliberations</a>.</p>
<p>A third suggestion is for the criminal justice system to tackle bias by protecting forensic experts from undue influences, so that powerful but biased expert evidence does not influence the jury. For example, an expert’s testimony may be biased if they knew about <a href="https://www.researchgate.net/publication/339135339_An_inconvenient_truth_More_rigorous_and_ecologically_valid_research_is_needed_to_properly_understand_cognitive_bias_in_forensic_decisions">another piece of unrelated evidence</a>, such as a confession, during analysis.</p>
<p>Methods of counteracting bias in forensic examiners include using expert witnesses not associated with either side of the <a href="https://www.science.org/doi/full/10.1126/science.aat8443">adversarial system</a>, and for labs to use techniques such as <a href="https://www.sciencedirect.com/science/article/pii/S2589871X21000310?via%3Dihub">Linear Sequential Unmasking</a> (LSU). </p>
<p>LSU is a technique where forensic experts analyse the information in a specific sequence in isolation from any other reference material. So, for example, first they would analyse the evidence at the crime scene such as fingerprints. But they would not have access at this point to any material pertaining to the “target” suspect, such as their fingerprints. The reference material would then be analysed and later compared to the evidence gathered. LSU ensures sequencing of the relevant contextual information so that the more objective and less biasing information is prioritised.</p>
<p>Bias is a significant issue in the criminal justice system and can lead to miscarriages of justice. Through researching the sources and effects, psychologists can aid the criminal justice system by helping those involved establish procedures that avoid the potential for bias to influence the process.</p><img src="https://counter.theconversation.com/content/176721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Finding out what goes on behind jury decisions and the biases that influence them is hugely important if the criminal justice system is to work properly.Lee John Curley, Lecturer in Psychology, The Open UniversityItiel Dror, Senior Cognitive Neuroscience Researcher, UCLJames Munro, Psychology Technical Lead (Teaching & Research) School of Psychology & Counselling Psychology, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1691252021-10-15T11:36:56Z2021-10-15T11:36:56ZDo unbiased jurors exist in an age of social media?<figure><img src="https://images.theconversation.com/files/426289/original/file-20211013-15-1y076ge.jpeg?ixlib=rb-1.1.0&rect=16%2C8%2C5477%2C3582&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is it possible to have a jury whose members are unbiased?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-jury-box-in-the-centennial-court-room-in-the-milwaukee-news-photo/456338404?adppopup=true">Raymond Boyd/Getty Images</a></span></figcaption></figure><p>Jury selection that began on Oct. 18, 2021, in the trial of three men accused of murdering unarmed Black jogger Ahmaud Arbery has been, <a href="https://www.npr.org/2021/10/18/1047106255/ahmaud-arbery-case-trial">according to an NPR report</a>, a “very painstaking process.” That’s because it’s been hard to find jurors who have not been exposed to media reports of Arbery’s death or a graphic video of his killing taken by one of the defendants. And that, it is feared, could bias them either for or against the defendants.</p>
<p>Lawyers on both sides of the Arbery case aren’t the only ones grappling with the problem of finding unbiased jurors in the age of social media.</p>
<p>The U.S. Supreme Court <a href="https://www.cnbc.com/2021/10/13/boston-marathon-bomber-supreme-court-to-consider-death-sentence-for-dzhokhar-tsarnaev.html">heard oral argument</a> on Oct. 13, 2021, in the case of <a href="https://www.scotusblog.com/case-files/cases/united-states-v-tsarnaev/">Dzokhar Tsarnaev</a>, the lone surviving Boston Marathon bomber. While much of the <a href="https://www.cnbc.com/2021/10/13/boston-marathon-bomber-supreme-court-to-consider-death-sentence-for-dzhokhar-tsarnaev.html">news coverage has focused on whether the court will uphold the death penalty</a> for Tsarnaev, the case also presents a fundamental question for this era: Is it possible to find unbiased citizens to serve on a jury in high-profile cases during an age of ubiquitous social media?</p>
<p>This aspect of the case focuses on the “<a href="https://dictionary.law.com/default.aspx?selected=2229">voir dire</a>” process, which employs a French term that roughly translates to “speak the truth.” Voir dire occurs before the start of trial, when lawyers or the judge, depending on the jurisdiction, question prospective jurors to determine whether they harbor any kind of bias or prejudice against one of the parties.</p>
<p><a href="https://www.cnn.com/2015/04/08/us/boston-marathon-bombing-trial/index.html">Tsarnaev was charged with 30 counts</a> related to the bombing of the marathon. The case had <a href="https://www.wbur.org/tag/dzhokhar-tsarnaev-trial">received widespread attention</a>, including online commentary about the defendant and pictures of him <a href="https://www.today.com/video/boston-bombing-suspect-drops-backpack-in-video-27008067930">carrying a bomb-laden backpack to the finish line</a>. Voir dire in his case was extensive, lasting 21 days and involving 1,373 prospective jurors, each of whom completed a 28-page questionnaire.</p>
<p>At some point during voir dire, Tsarnaev’s attorney wanted the judge to ask a two-part question to prospective jurors. First, whether they had seen media coverage of the case, and second, what specifically they had seen. The judge asked the first part of the question, but not the second. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of news cameras focused on the courthouse where the Tsarnaev trial was held." src="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">There was intense media focus on the crime and the subsequent trial; here, outside the courthouse on the first day of Dzhokhar Tsarnaev’s trial, May 4, 2015, in Boston.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-media-from-around-the-world-wait-outside-the-news-photo/465212542?adppopup=true">Scott Eisen/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘Does not suffice’</h2>
<p>Tsarnaev’s lawyers appealed the death penalty, saying in part that the trial judge should have asked what media coverage jurors had seen or read about the case to ensure a fair jury.</p>
<p>The First Circuit Court of Appeals <a href="https://www.wbur.org/news/2020/07/31/tsarnaev-death-sentence-overturned">found fault with the judge,</a> saying that asking the jurors “only whether they had read anything that might influence their opinion’ does not suffice,” because that sole question does not elicit “what, if anything, they have learned.” During the oral argument at the Supreme Court, <a href="https://www.scotusblog.com/2021/10/justices-appear-to-favor-reinstating-death-penalty-for-boston-marathon-bomber/">Justice Sonia Sotomayor noted that</a> “there was a whole lot of different publicity here.”</p>
<p><a href="https://ballotpedia.org/United_States_v._Tsarnaev">It is now up to the Supreme Court to decide who was correct</a>. </p>
<p>Since this appeal relates only to the <a href="https://www.wbur.org/news/2019/12/11/dzhokhar-tsarnaev-death-sentence-appeal-boston">death penalty sentence</a>, Tsarnaev’s guilty verdict and life sentence without parole remain in place. </p>
<p>The dilemma facing the Supreme Court is how prescriptive they want the voir dire process to be. It could issue an opinion requiring lower courts to ask jurors more penetrating questions about their exposure to media accounts in high-profile cases.</p>
<p>Some believe that trial judges should be given a measure of flexibility and autonomy in <a href="https://www.law.cornell.edu/supremecourt/text/409/524">how they conduct voir dire</a>. Others want the Supreme Court to step in and <a href="https://www.law.cornell.edu/supremecourt/text/409/524">spell out exactly how voir dire should be conducted</a>. </p>
<p>Those favoring this latter approach point out that Tsarnaev was facing a death sentence and <a href="https://courses2.cit.cornell.edu/sociallaw/Tsarnaev/TsarnaevTrial.html">made four requests for a change of venue</a> to move the case from Boston because, his lawyers argued, it would be impossible to get unbiased jurors in the local area. As a <a href="https://udayton.edu/directory/law/hoffmeister_thaddeus.php">scholar of criminal law and juries</a>, I believe a strong argument could be made that any trial judge in this situation should take additional steps to uncover bias in prospective jurors. </p>
<p>Those on the other side believe that requiring more questions will unduly lengthen the voir dire process and encroach on juror privacy. Despite these misgivings, courts around the country are increasingly questioning jurors about <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">such topics as social media and their use of the internet</a>. </p>
<h2>Can’t unplug a juror</h2>
<p>The issue confronting the Supreme Court here is part of a larger discussion about whether courts in the digital age can find objective jurors.</p>
<p>Finding unbiased jurors in the pre-digital age, even in high-profile cases, was not too difficult. Once chosen, <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jurydeliberate/">jurors needed to maintain that unbiased status</a> and were told not to discuss the case with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, jurors might be <a href="https://law.jrank.org/pages/10160/Sequestration.html">sequestered</a>. </p>
<p>Today, that same approach won’t work.</p>
<p>Few jurors can go eight hours, much less a whole week, without using their smartphone or social media. Many people share aspects of their life with others in real time through social media, which is incompatible with jury service. In fact, being a juror makes their social media posts more interesting to others.</p>
<p>In Tsarnaev’s case, the court of appeals’ opinion referenced <a href="https://www.wbur.org/news/2019/12/11/dzhokhar-tsarnaev-death-sentence-appeal-boston">juror #138, who had a running dialogue about the case on Facebook with his friends</a>.</p>
<p>Today’s jurors also have much more information available to them. Where news stories about a crime or the defendant would have been difficult to discover or access previously, they are now just a click away. This information does not disappear when out of the news cycle; it remains online and accessible. In fact, often the information is pushed to the juror or shows up in their news feed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Investigators in white suits examining the bombing scene at the Boston Marathon." src="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On April 16, 2013, investigators examine the scene near the finish line of the Boston Marathon, one day after two blasts killed three and injured more than 260 people.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBostonMarathonBombing/6d6dd5e671c54c97b941413ef2c9d2e9/photo?Query=Tsarnaev%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=94&currentItemNo=0">AP Photo/Elise Amendola, File</a></span>
</figcaption>
</figure>
<h2>Dealing with the connected juror</h2>
<p>Judges across the country take a variety of approaches to combat the negative influences of the digital age on the jury. </p>
<p>Attorneys and judges will ask potential jurors questions. In addition, attorneys will investigate jurors to learn what they know about the case. This happens both in the courtroom at <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">voir dire and online</a>, where attorneys research the juror’s digital footprint to include social media posts. The question of how far to pry during voir dire is the main issue of concern in Tsarnaev’s case. </p>
<p>Once chosen, jurors are told to follow the court’s instructions, but the lure of social media can be all too tempting. Thus, courts impose penalties on jurors who <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">are unable to follow the rules on seeking out information or discussing the case</a>. </p>
<p>These penalties include holding jurors in contempt of court, taking their devices or imposing sequestration, in which jurors are put up in hotels <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">away from their family and devices</a>. The common theme with all penalties is that once imposed, they make citizens less inclined to want to serve as jurors.</p>
<h2>Question time</h2>
<p>Some legal experts believe that if jurors are given sufficient information about the case, they will be less inclined to violate court rules and go online to look for information or discuss the case. One way to improve the appropriate flow of information to jurors is <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">to allow them to ask questions during trial</a>.</p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Finally, there are calls to change jury instructions to fit the modern times. Since today’s jurors are so receptive to learning information online, they have to be told why practices that they regularly use are prohibited while on jury duty.</p>
<p>The jury, throughout its approximately 400-year history in America, has witnessed many changes in society. Through each one, the jury has adapted and survived. Thus, I believe it is highly likely the jury will weather the storm of the digital age.</p>
<p><em>This is an updated version of an article originally published on Oct. 15, 2021.</em></p><img src="https://counter.theconversation.com/content/169125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thaddeus Hoffmeister does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A video of Ahmaud Arbery was widely seen and shared by the citizens who could be called on to judge the accused killers. The issue was recently argued before the Supreme Court.Thaddeus Hoffmeister, Law Professor, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1593302021-04-21T17:47:50Z2021-04-21T17:47:50ZChauvin conviction: 2 things to know about jury bias and 2 ways to reduce it<figure><img src="https://images.theconversation.com/files/396336/original/file-20210421-23-18f2ycc.jpeg?ixlib=rb-1.1.0&rect=8%2C8%2C5813%2C3861&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Atlanta, Ga., one person's sign reflects the actual verdicts that had just been delivered in the Derek Chauvin trial. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-march-through-the-streets-after-the-verdict-was-news-photo/1232429084?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p>Shortly after the guilty verdicts were revealed in former police officer Derek Chauvin’s trial for murdering George Floyd, <a href="https://www.reuters.com/world/us/chauvin-likely-appeal-claiming-trial-tainted-by-civil-settlement-media-coverage-2021-04-20/">legal experts suggested Chauvin will appeal</a>, arguing that his right to a fair trial was threatened by extensive pretrial publicity.</p>
<p><a href="https://www.youtube.com/watch?v=G9pssTNgK-g&feature=emb_title">Video of Derek Chauvin</a> with his knee on the neck of George Floyd for more than nine minutes was shared around the globe on social media and drew international outrage. The publicity around Floyd’s death will likely underlie any Chauvin appeal. To help place <a href="https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial">the jury’s unanimous decision on all three charges</a> in context, here are some important facts about juries.</p>
<h2>Pretrial publicity and other biases</h2>
<p>High-profile incidents of police killings often result in widespread pretrial publicity about the defendant and victim. The Derek Chauvin case was no exception. </p>
<p>I <a href="https://scholar.google.com/citations?hl=en&user=y3tF9rIAAAAJ">research</a> the prejudicial effects of pretrial publicity and other factors that influence jurors’ decisions. Information that comes out before the trial begins can elicit strong emotional reactions and <a href="https://doi.org/10.1007/978-3-319-75859-6_1">shape jurors’ judgments of credibility</a>.</p>
<p>The <a href="https://theconversation.com/being-skeptical-of-sources-is-a-journalists-job-but-it-doesnt-always-happen-when-those-sources-are-the-police-159173">police</a> often have the first chance to shape public opinion because they have staff experienced in making statements to the press – and the press is eager to get those statements. Unfortunately – though not uncommonly – early media attention on the death of George Floyd was <a href="https://www.startribune.com/mpls-police-still-haven-t-explained-misinformation-after-floyd-s-death/570970152/?refresh=true">based on inaccurate police statements that minimized the role of Derek Chauvin</a>.</p>
<p>Information provided by the news, including misleading information, can create opinions that are resistant to change. This happens especially when the <a href="https://theconversation.com/how-fake-news-gets-into-our-minds-and-what-you-can-do-to-resist-it-114921">information aligns with readers’ preexisting beliefs</a>. Furthermore, pretrial publicity that casts either the defendant or the <a href="https://theconversation.com/being-skeptical-of-sources-is-a-journalists-job-but-it-doesnt-always-happen-when-those-sources-are-the-police-159173">victim</a> in a negative light can lead jurors to interpret ambiguous trial evidence in ways that <a href="https://doi.org/10.1007/978-3-319-75859-6_1">support the slant of the information that came out before the trial began</a>. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/hdjBbfdRLkA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A video created by a committee of judges and attorneys to be shown to jurors that aims to highlight and combat the problems presented by unconscious bias.</span></figcaption>
</figure>
<p>For example, in an experiment, mock jurors were <a href="https://doi.org/10.1177/0093854811400823">more likely to convict a defendant when they were exposed to anti-defendant pretrial publicity</a> compared with those who did not receive this pretrial information. In contrast, exposure to pro-defendant pretrial publicity decreased the likelihood of mock jurors convicting. </p>
<p>The process of jury selection, formally called “voir dire,” does little to eliminate <a href="https://www.worldcat.org/title/on-the-effectiveness-of-voir-dire-in-criminal-cases-with-prejudicial-pretrial-publicity-an-empirical-study">jurors with biases that they are not consciously aware of</a> – known as implicit bias – regardless of whether those biases stem from pretrial information specific to the case or are deeper-seated biases associated with race or gender. </p>
<p>To address these implicit bias concerns, several courts across the country have developed safeguards, including <a href="https://www.washingtonpost.com/context/read-judge-s-instructions-to-derek-chauvin-trial-jurors/5b3517cb-bfa2-4dad-957e-11acfb2783f2/">special instructions</a> like those about implicit bias given in Chauvin’s trial and <a href="https://www.wawd.uscourts.gov/jury/unconscious-bias">educational videos</a> shown during jury selection. </p>
<p>However, there is <a href="https://osf.io/pgjwb/">little evidence</a> that these proposed remedies are effective.</p>
<h2>Public confidence in police</h2>
<p>In criminal trials, it is commonly believed that jurors grant police officers <a href="https://via.library.depaul.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1167&context=jsj">credibility by virtue of their job</a>. Jurors also grant police officers <a href="https://www.washingtonpost.com/nation/2021/04/04/when-police-kill-people-they-are-rarely-prosecuted-hard-convict/">much discretion when it comes to use of force</a>, even deadly force.</p>
<p>Yet, public confidence in the police is at record lows, <a href="https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx">especially among Black adults</a>. Frequent viral videos of police violence, <a href="https://www.usatoday.com/storytelling/storystack/2019-police-misconduct-investigations/">recent investigative reporting</a> exposing the extent of police misconduct and <a href="https://www.washingtonpost.com/nation/2021/04/04/when-police-kill-people-they-are-rarely-prosecuted-hard-convict/">few examples of police accountability</a> have likely all contributed to the decline in public confidence in policing. </p>
<p>More broadly, the way policing and issues of race are portrayed in the media has the potential to create <a href="https://www.wnycstudios.org/podcasts/otm/segments/crime-reporting-racial-bias">biases</a> that affect the impartiality of the jury pool. For example, Black male victims of police violence are often described in the news using <a href="https://www.doi.org/10.1080/10911359.2015.1129256">language that dehumanizes and criminalizes their behavior</a>.</p>
<h2>Race and racially diverse juries</h2>
<p>Two potential solutions exist for addressing implicit racial biases. </p>
<p>The first is making race a more explicit part of a trial. When attorneys call attention to the relevance of race in a case, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282686">especially when a case involves a Black male victim</a>, <a href="https://www.doi.org/10.1002/bsl.877">white jurors exhibit less racial bias</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Derek Chauvin listening to the jury's verdict in his trial." src="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Minneapolis police officer Derek Chauvin listens as the verdict is read in his trial for the 2020 death of George Floyd.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgeFloydOfficerTrial/1828d5e2f8d042f584b2677de7eff569/photo?Query=Derek%20AND%20Chauvin&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=now-24h&totalCount=366&currentItemNo=22">Court TV via AP, Pool</a></span>
</figcaption>
</figure>
<p>Another potential solution is to have racially diverse juries, like <a href="https://www.nytimes.com/2021/03/30/us/chauvin-trial-jurors.html">the one in Chauvin’s trial</a>. To avoid appearing prejudiced, white jurors become more careful in their contributions <a href="https://doi.org/10.1037/tps0000113">during deliberations with a racially diverse jury</a>. </p>
<p>Diversity offers the opportunity for many perspectives to enter the deliberation process, <a href="https://doi.org/10.1037/0022-3514.90.4.597">resulting in deliberations that are more thorough and accurately reflect the facts of the case</a>. Importantly, the public has more confidence in the verdicts of <a href="https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss3/6">racially diverse juries and views them as fairer</a>. </p>
<p>To increase the diversity and representativeness of juries, two changes could be made by courts. For example, the use of peremptory challenges – which attorneys can use to remove a juror without reason except to discriminate on the basis of race, ethnicity or sex – could be curtailed. Attorneys use these challenges more often to strike minority jurors, even <a href="https://psycnet.apa.org/record/2007-08609-003">though they claim it’s not a challenge based on race</a>.</p>
<p><a href="https://www.ncsc.org/services-and-experts/areas-of-expertise/jury-management">Efforts are also underway</a> in state courts to better manage the way jury pools are compiled and jurors are summoned to court. These efforts ensure jury pools reflect the demographics of the community from which they are drawn, ultimately translating to more diverse and representative juries.</p>
<p>Historically, juries <a href="https://www.wglt.org/post/wide-police-discretion-use-force-led-st-louis-officers-aquittal#stream/0">in American criminal courts give police officers wide discretion in their use of force</a>, up to and including deadly force. The outcome of the Chauvin trial provides some evidence that this wide-ranging discretion can be challenged.</p>
<p>[<em>Understand new developments in science, health and technology, each week.</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-understand">Subscribe to The Conversation’s science newsletter</a>.]</p><img src="https://counter.theconversation.com/content/159330/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Angela M. Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How does pretrial publicity affect jury verdicts? What kind of verdicts are made when the jury is racially diverse? An expert on juries answers questions raised in the wake of the Chauvin verdicts.Angela M. Jones, Assistant Professor, Criminal Justice and Criminology, Texas State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1266492019-11-08T19:43:10Z2019-11-08T19:43:10ZSenators’ silence suggests they may be taking their impeachment trial duty seriously<figure><img src="https://images.theconversation.com/files/300914/original/file-20191108-194669-1e071fy.jpg?ixlib=rb-1.1.0&rect=35%2C0%2C4000%2C2664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sen. Susan Collins is among the senators who have chosen to stay quiet about impeachment so far.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Impeachment/4a8abe50cf9f4f37b6e9e7ed4fa976ce/1/0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>Several Republican senators have taken a “<a href="https://www.politico.com/news/2019/10/24/senate-impeachment-silence-jurors-055852">vow of silence</a>” on the impeachment inquiry in the House of Representatives.</p>
<p>Maine Senator Susan Collins has described <a href="https://www.politico.com/news/2019/10/24/senate-impeachment-silence-jurors-055852">her position this way</a>: “I am very likely to be a juror so to make a predetermined decision on whether to convict a president of the United States does not fulfill one’s constitutional responsibilities.” </p>
<p>From a purely political standpoint, the senators’ choice is beneficial for both parties. The senators cannot find it easy to speak approvingly of the president’s opportunistic conduct with foreign countries, so silence is probably the most graceful position for the Republican Party.</p>
<p>The silence is also helpful from the Democratic Party’s perspective. Democrats would no doubt prefer that the senators just abandon Trump immediately, but that seems unlikely to happen. The silence at least preserves the possibility that they will convict Trump if and when the time comes.</p>
<p>That said, there is nothing requiring the senators to remain silent on the issues. No written law or rule instructs senators to take that approach. The <a href="https://www.law.cornell.edu/background/impeach/senaterules.pdf">Senate’s Rules on Impeachment Trials</a> do not address pretrial conduct at all. </p>
<p>The senators’ choice seems to stem instead from a decision to treat the impeachment proceeding much like a judicial trial. As a <a href="https://law.tamu.edu/faculty-staff/find-people/faculty-profiles/lynne-h-rambo">professor of Constitutional law</a>, I find that analogy quite apt. </p>
<h2>Constitution lays it out</h2>
<p>Under the <a href="https://www.archives.gov/founding-docs/constitution-transcript">Constitution</a>, the House of Representatives is granted the exclusive power to impeach – or bring charges against – officers of the United States, including the president.</p>
<p>Once articles of impeachment (charges) are passed by the House, they are brought to the Senate for trial. Members of the House are named “managers” of the impeachment and are responsible for bringing forth evidence to support the charges. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/300917/original/file-20191108-194665-11hbklq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice John Roberts would preside over an impeachment trial of the president.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Official_roberts_CJ.jpg">Steve Petteway/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>When the president is the impeached party, the chief justice of the United States must preside over the trial. Both the chief justice and all of the members of the Senate <a href="https://www.govinfo.gov/content/pkg/SMAN-113/html/SMAN-113-pg223.htm">take a special oath</a>, swearing that “in all things appertaining to the trial of the impeachment,” they “will do impartial justice according to the Constitution and laws.” </p>
<p>The president cannot be convicted and removed from office unless two-thirds of the senators vote for that outcome. </p>
<h2>Legal or political?</h2>
<p>This process is readily comparable to criminal proceedings in the courts. </p>
<p>In both, the charging function and the trying function are distinct and are carried out by different institutions. The House arrives at the specific charges, <a href="https://theconversation.com/founders-removal-from-office-is-not-the-only-purpose-of-impeachment-124254">votes to proceed</a> (much like a grand jury), and then presents to the Senate the evidence in favor of conviction (much like a prosecutor). The Senate simply listens to the evidence and votes, just as a jury would in a criminal proceeding. </p>
<p>Although some might argue that having the Senate decide the question renders impeachment trials a <a href="https://www.nationalreview.com/2019/10/impeachment-process-political-not-legal/">political rather than legal event</a>, the <a href="https://theconversation.com/founders-removal-from-office-is-not-the-only-purpose-of-impeachment-124254">history of the impeachment provisions</a> suggests otherwise. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=802&fit=crop&dpr=1 600w, https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=802&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=802&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1008&fit=crop&dpr=1 754w, https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1008&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/300915/original/file-20191108-194646-t5q3xf.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1008&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">James Madison at age 32, in 1783.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:James_Madison,_by_Charles_Willson_Peale,_1783.png">Charles Willson Peale/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>In <a href="http://www.americaslibrary.gov/aa/madison/aa_madison_father_1.html">James Madison</a>’s draft of the Constitution, he conferred the power to impeach the president on the House of Representatives, just as the Constitution reads now, but Madison had the Supreme Court, rather than the Senate, <a href="https://www.law.cornell.edu/constitution-conan/article-2/section-4/persons-subject-to-impeachment">conducting the trial</a>.</p>
<p>Ultimately Madison’s position was defeated not because a judicial proceeding was a bad idea, but because his framing colleagues worried that <a href="https://constitutioncenter.org/blog/what-the-founders-thought-about-impeachment-and-the-president">relying on the Supreme Court</a> raised several particular concerns. </p>
<p>Gouverneur Morris thought the justices might unduly favor the president, given that he would have appointed them. <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-65">Alexander Hamilton</a> thought the court was just too small a group for such a momentous decision, and also might be called into play later if the president were criminally prosecuted after his removal.</p>
<h2>Respecting the process</h2>
<p>Because impeachment gives rise to a proceeding akin to a criminal trial, the senators’ silence may not be required, but is appropriate.</p>
<p>In federal and state trials all over the country, courts routinely instruct jurors to refrain from drawing a conclusion – and refrain even from speaking with other jurors – until all the evidence is in. The “<a href="http://www.lb5.uscourts.gov/viewer/?/juryinstructions/Fifth/crim2015.pdf">pattern</a>” instructions the courts rely on usually include an instruction like this: “Do not discuss this case among yourselves until I have instructed you on the law and you
have gone to the jury room to make your decision at the end of the trial. Otherwise, without realizing it, you may start forming opinions before the trial is over.” </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/300916/original/file-20191108-194646-1hysg00.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rules governing federal and most state trials note the importance of keeping personal views private until all the evidence is in, and all the arguments are made.</span>
<span class="attribution"><a class="source" href="https://www.americanbar.org/products/inv/book/213341/">American Bar Association</a></span>
</figcaption>
</figure>
<p>Rule 2.10 of the <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_2/rule2_10judicialstatementsonpendingandimpendingcases/">Model Code of Judicial Conduct</a>, which has been adopted by the vast majority of states, directs judges not to commit publicly to stances on issues that may end up before them. </p>
<p>The idea is that when people publicly state a position, it is much harder for them to consider impartially evidence suggesting that their public position was wrong. Put simply, face-saving must not become more important than making an impartial decision.</p>
<p>There is some public cost to the senators’ choice to remain silent. To the extent that the senators decline to address the emerging impeachment issues, their constituents are unable to evaluate their oversight of the president. </p>
<p>That period of ambiguity, however, is brief. It will end the moment that each senator rises in the chamber and casts a vote to acquit or to convict.</p>
<p>So Republican senators are not legally required to remain silent in the face of becoming jurors, but their doing so in service to impartiality makes sense given the gravity of the proceeding.</p>
<p><a href="https://books.google.com/books?id=QpVfDwAAQBAJ&pg=PA108&lpg=PA108&dq=Raymond+Thornton+of+Arkansas,+voted+to+impeach+Richard+Nixon+in+1974&source=bl&ots=NoE1UHtAD_&sig=ACfU3U1_BM0ai-zlSturSm_Od5nsXFI7tg&hl=en&sa=X&ved=2ahUKEwiv3oqXidvlAhXukOAKHRTVBsMQ6AEwBHoECAkQAQ#v=onepage&q=Raymond%20Thornton%20of%20Arkansas%2C%20voted%20to%20impeach%20Richard%20Nixon%20in%201974&f=false">Democrat Raymond Thornton of Arkansas</a> voted to impeach President Richard Nixon in 1974. In an interview with a historian the year after the impeachment, Thornton <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1007&context=butler-hiltonhead">explained</a> his approach to the momentous responsibility he had faced.</p>
<p>“I wanted to get it right,” he said.</p>
<p>“I considered that this was most likely the most important task I would ever have in government and that my whole effort should be given to the study of it and to try to come up with an answer that was fair and right and which I could live with for the rest of my life.”</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/126649/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynne H. Rambo is affiliated with the Democratic Party to the extent of primary-election voting and donations to various candidates.</span></em></p>No written law or rule requires the senators to remain silent on the issues. But it’s probably a good idea, and a promising sign of fairness.Lynne H. Rambo, Professor of Law, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1127032019-03-06T19:12:10Z2019-03-06T19:12:10ZAll about juries: why do we actually need them and can they get it ‘wrong’?<figure><img src="https://images.theconversation.com/files/261986/original/file-20190304-92292-qa02j9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Juries force lawyers to talk in a language the lay person understands.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p>There has been <a href="https://www.afr.com/news/is-george-pell-innocent-20190227-h1bsub">some debate</a> over the recent conviction of George Pell, whose first trial ended with a hung jury, and the second a unanimous guilty verdict. People are questioning our justice system, the potential bias of the jury, and whether the initial hung verdict invalidates the second, unanimous one.</p>
<p>So, why should Australians trust 12 inexperienced people to sit in judgment on our most serious criminal trials, and get the verdict right?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-an-appeal-could-uphold-or-overturn-george-pells-conviction-112620">How an appeal could uphold or overturn George Pell's conviction</a>
</strong>
</em>
</p>
<hr>
<h2>The importance of juries</h2>
<p>Australian democracy is underpinned by citizen participation. Citizens have two mandatory obligations – voting and jury service.</p>
<p>Lay person participation in the legal system is considered central to a healthy democracy. Lawyers play a major role in making the laws in parliament. Judges then apply the laws. If juries weren’t used, lawyers would have a monopoly over the law. Lawyers have their own specialised language in which they communicate among themselves. Including juries in the legal system forces lawyers to use <a href="https://jade.io/article/67240">common language</a>.</p>
<p>It’s the collective wisdom of 12 that makes a jury. Jurors bring to the trial 12 times more life experience than a judge. Psychological research has <a href="http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862878945">established</a> that personal, subconscious biases can be identified and addressed in group discussion. </p>
<h2>How do juries work?</h2>
<p>Jurors are randomly selected from the Australian electoral roll. While each state or territory varies in its <a href="https://www.bing.com/videos/search?q=Victorian+jury+service+video&&view=detail&mid=D17B314053491C6A9E3ED17B314053491C6A9E3E&&FORM=VRDGAR">selection processes</a>, they share some common steps. Randomly selected citizens will receive a summons to attend court. Once the jurors arrive at the courthouse, they wait to be randomly chosen to go to a specific courtroom as part of a jury panel. </p>
<p>Once in the courtroom, a potential juror’s name (or allocated number) may be pulled out of a box. That potential juror can then either</p>
<ul>
<li><p>seek to be excused (because perhaps they know someone involved in the trial)</p></li>
<li><p>take a seat in the jury box, or</p></li>
<li><p>be removed from the jury by one of the parties to the case. This is known as the <a href="http://sites.thomsonreuters.com.au/journals/files/2010/10/j05_v034_CRIMLJ_pt03_horandelahunty_offprint.pdf">“peremptory challenge” process</a>. </p></li>
</ul>
<p>While it’s unusual for a prosecutor to “challenge” (deselect) a juror, some jurisdictions still allow for a defendant to “challenge” a juror based on the way they look and sometimes their name and occupation.</p>
<p>But a <a href="https://www.amazon.com/Stack-Sway-Science-Jury-Consulting/dp/0813342414">substantial body of US research</a> has highlighted that, based on such limited information, the peremptory challenge process is no better than a guessing game, as it’s not possible for a defendant to know whether a citizen is going to be favourable to their defence just based on what they look like and their occupation. </p>
<p>Some Australian jurisdictions have reduced the number of challenges a defendant can use. The <a href="http://sites.thomsonreuters.com.au/journals/files/2010/10/j05_v034_CRIMLJ_pt03_horandelahunty_offprint.pdf">UK has done away with</a> this process altogether as it interferes with the important perception that juries are fairly chosen and therefore represent the community.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=475&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=475&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=475&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=596&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=596&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=596&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A defendant has no way of knowing how a jury will vote based only on their age or occupation.</span>
<span class="attribution"><span class="source">from shutterstock.com</span></span>
</figcaption>
</figure>
<p>Several Australian <a href="https://journals.sagepub.com/doi/10.1177/1462474516660697">studies confirm</a> our juries reflect a cross-section of our community in terms of cultural mix, age and gender balance. Juries are more likely to be better educated than the ordinary member of the public. This may, in part, be a result of counsels’ preference for educated jurors when exercising their peremptory challenges.</p>
<h2>What about outside influence?</h2>
<p>Jurors are forbidden from having any prior intimate knowledge of the trial, from privately communicating with anyone involved in the trial and from doing their own research. Maintaining the impartiality of jurors <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2341436">has become problematic</a> in the digital age. </p>
<p>Last century, courts used to successfully make orders to suppress potentially prejudicial information (such as prior convictions). But the far reach of the internet means such suppression orders no longer work as they can’t prevent publication on overseas websites or social media that is accessed locally.</p>
<p>Jurors are told by the judge not to look at any media reports on their case. But jurors on trials of high profile defendants may not be able to avoid the barrage of negative pre-trial publicity. US <a href="https://link.springer.com/article/10.1023/A:1022325019080">research suggests</a> jurors who are exposed to negative publicity are significantly more likely to judge the defendant guilty compared to subjects exposed to less pre-trial publicity. </p>
<p>New South Wales, Queensland, the ACT, South Australia and Western Australia <a href="https://criminalcpd.net.au/wp-content/uploads/2016/09/Judge_alone_trials_in_NSW_peter_krisenthal.pdf">allow a defendant</a> to apply for trial by judge without a jury when prejudicial publicity is perceived to be significant. But there is <a href="https://theconversation.com/trial-by-judge-alone-may-not-be-the-answer-to-giving-high-profile-defendants-a-fair-hearing-94103">no research that confirms</a> a judge sitting alone without a jury is any better at resisting prejudicial publicity.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trial-by-judge-alone-may-not-be-the-answer-to-giving-high-profile-defendants-a-fair-hearing-94103">Trial by judge alone may not be the answer to giving high-profile defendants a fair hearing</a>
</strong>
</em>
</p>
<hr>
<h2>How do they reach a verdict, and what is a hung jury?</h2>
<p>A typical jury trial will take fewer than ten days. The jurors hear the evidence, listen to the arguments of both parties and are provided with instructions on the relevant law by the judge. It is then time to deliberate and decide whether the defendant is “guilty” or “not guilty” of the offences charged. No written reasons for the verdicts are required.</p>
<p>The vast <a href="https://www.bocsar.nsw.gov.au/Documents/CJB/cjb36.pdf">majority of juries</a> are able to reach their verdict unanimously. In some types of cases, agreement of 11 out of 12 jurors is an acceptable verdict. A hung jury occurs when a jury deliberates for several hours or days, but are unable to agree on a verdict. In the usual course, the same case will be presented to a new jury. </p>
<p>A 2000 study indicated <a href="http://classic.austlii.edu.au/au/journals/NSWCrimJustB/2002/3.pdf">hung juries occurred</a> in a small number (3-8%) of Australian trials. This study identified that longer trials, and jury trials in more culturally diverse city courts, may be more likely to attract a hung jury. </p>
<p>An initial hung verdict does not invalidate a second, unanimous one – it more likely means some of the jurors from the first trial were also in agreement with the final verdict.</p>
<h2>Do juries get it ‘right’?</h2>
<p>Jury secrecy means we have no accurate way of knowing whether juries are getting it “right”. Australian jurors are forbidden from discussing their deliberations with anyone, including why they came to a decision. </p>
<p>A few <a href="http://www.britsoccrim.org/volume4/004.pdf">overseas studies</a> have asked trial judges what verdict they would have come to in jury trials. A comparison between what the judges said and the real jury verdict reveals a high level of agreement between the two.</p>
<p>While scientifically we cannot confirm that specific jury verdicts are “correct”, the jury system is necessary for Australia’s justice system.</p><img src="https://counter.theconversation.com/content/112703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacqui Horan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A hung jury does not necessarily undermine a verdict in a subsequent trial – it more likely means some of the jurors from the first trial agreed with the final verdict.Jacqui Horan, Associate Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1004762018-09-05T12:17:20Z2018-09-05T12:17:20ZHow juror bias can be tackled to ensure fairer trials<figure><img src="https://images.theconversation.com/files/234942/original/file-20180904-45158-1ck0osl.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Juries_in_England_and_Wales#/media/File:The_Jury_by_John_Morgan.jpg">The Jury by John Morgan/Bucks County Museum</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>A microcosm of society, the jury room has always fascinated people: a variety of individuals from different backgrounds all working together to make a judgement on the fate of an individual.</p>
<p>These judgements are some of the biggest decisions a person will face in their lifetime, and can have serious consequences for both individuals on trial (such as when someone is wrongly imprisoned) and society (where the legal system fails to rehabilitate, deter or incarcerate guilty individuals).</p>
<p>Part of the fascination of juror decision-making relates to human fallibility, and the prejudices and biases that can have an impact on a verdict. Films such as 1957’s <a href="https://www.theguardian.com/culture/2013/nov/26/juror-view-twelve-angry-men">Twelve Angry Men</a> – where one man systematically dismantles the biases and assumptions of his fellow jurors – dramatically introduced this idea to popular culture. </p>
<p><a href="https://online.ndm.edu/news/analytics/what-is-decision-science/">Decision scientists</a> (like myself), legal scholars and forensic psychologists investigate juror decision processes and biases for two reasons: first to help reduce the number of inaccurate judgements that are made, and second, to make sure defendants are given a fair trial that is not blighted by bias. These two reasons may seem harmonious, but an accurate outcome (when a guilty defendant is given a guilty verdict) can be reached unfairly, and an inaccurate outcome (when a guilty defendant is given a not guilty verdict) can be reached fairly because of a lack of evidence. </p>
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</figure>
<h2>Bias and background</h2>
<p>Juror decision-making research investigates how individual jurors evaluate information and examines their pre-trial biases and the cognitive mechanisms behind the verdicts they reach. But jury decision-making research is more interested in the deliberation room, and the social processes that allow a verdict to be reached.</p>
<p>It is important to first investigate how individuals reach their verdict preferences before looking at social processes – in a similar manner to how biologists look at the effects of cancer on cells, before they investigate the effects of cancer on organs. </p>
<p><a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bsl.877">Previous juror decision-making research</a> has shown that a number of variables can have an impact on the verdict reached by a juror. For instance, factors such as race, gender and the socioeconomic status of the defendant can all have a biasing effect on decision-making. However, what if the actual process of making a decision is inherently biased? And that demographic differences relating to individuals involved in the case only exaggerate these biases? </p>
<h2>New Research</h2>
<p>Our <a href="http://journals.sagepub.com/doi/full/10.1177/0025802418791062">research</a> has shown that the mere process of making a decision can produce a bias. Over a series of experiments, we showed that sometimes jurors do not use all the information available to make a decision. We showed that verdicts favoured before all the information has been shown can lead to <a href="https://www.psychologytoday.com/gb/blog/science-choice/201504/what-is-confirmation-bias">confirmation bias</a> and <a href="https://www.ncbi.nlm.nih.gov/pubmed/15222805">pre-decisional distortion</a>.</p>
<p>Confirmation bias is when decision makers see evidence that chimes with their beliefs in a positive manner, and ignore evidence that does not; pre-decisional distortion is when the decision maker twists how they view a piece of evidence so that it aligns with their preconceived beliefs and expectations. </p>
<p>Our research has shown that jurors initially integrate information, encompassing both prosecution and defence evidence within their decision making. However, through integrating information, some jurors seem to reach a point (or a threshold) that allows them to have a pre-decisional preference in relation to the verdicts (that is, a leading verdict). This leading verdict can be dangerous, as it is the first time that the juror is able to develop a belief regarding the guilt of the suspect. </p>
<p>In the course of a trial, the formation of this belief is then challenged by competing beliefs. So, for example, a juror may initially favour the guilty verdict, then hear evidence from the defence that may make them reconsider their position. To to make it easier for jurors to decide on which verdict to choose, our research suggest that some jurors disregard and distort evidence that does not confirm their own beliefs, thus allowing the leading verdict to be favoured. </p>
<h2>The way forward</h2>
<p>These results have a number of implications in relation to the courtroom. First, the legal system should give a warning to jurors of the effects of pre-decisional preferences, as <a href="https://scholar.google.co.uk/scholar?hl=en&as_sdt=0%2C5&q=carlson+and+russo+2001&oq=carlson+and+ru#d=gs_qabs&p=&u=%23p%3DzHxzCbUyoOwJ">previous research</a> suggests that a warning of pre-decisional distortion can reduce the effects of cognitive biases. Second, future research should investigate the effects of <a href="https://www.gov.scot/Publications/2018/04/7953/2">decision aids</a> (tools that help individuals come to a decision) in reducing biases.</p>
<p>For example, “<a href="https://www.scottishlegal.com/article/blog-can-courts-improve-how-they-communicate-with-jurors-in-criminal-trials">a route to verdict</a>” is a method of presenting jurors with a sequence of questions aimed at allowing them to justify their verdict in a legal manner. Structured decision aids like this have been <a href="https://www.scottishlegal.com/article/blog-can-courts-improve-how-they-communicate-with-jurors-in-criminal-trials">shown to increase a jurors’ ability</a> to legally test the evidence presented to them. They could help persuade jurors to be critical of leading verdicts, thus decreasing instances of pre-decisional bias. However, the effects of these decision aids need to be tested. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=340&fit=crop&dpr=1 600w, https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=340&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=340&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=427&fit=crop&dpr=1 754w, https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=427&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/235010/original/file-20180905-45151-1bao611.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=427&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The 1930s Alabama courtroom scene of To Kill A Mockingbird, where an innocent black man is on trial for raping a white woman.</span>
<span class="attribution"><span class="source">Universal Pictures</span></span>
</figcaption>
</figure>
<p>Juror decision-making research has one huge flaw: legal scholars are not allowed access to the jurors during a trial. So what we know about jurors is based upon mock juror simulations, and may not necessarily extend to a real courtroom. But there are two ways juror research could go forward. First, the legal system could allow decision scientists access to the deliberation room, so that the juror decision process can be analysed. Second, more interdisciplinary research between lawyers and decision scientists should take place.</p>
<p>As the first option is unlikely, it seems that the second is the most viable. More cross talk between individuals who are experts in how people make decisions and experts in law should make juror experiments more realistic, and would provide researchers with more of an insight into the decision-making processes and biases of jurors. </p>
<p>This kind of interdisciplinary research would have a positive effect on the legal system as the courts would learn how to reduce bias through experimentation and research, which would help them deliver justice more fairly.</p><img src="https://counter.theconversation.com/content/100476/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee John Curley has received funding from the following organisations: Lothian Educational Trust; The Kirsten Scott Memorial Trust; The McGlashan Charitable Trust; The Santander Mobility Fund; and, the Scottish Ambulance Service. </span></em></p>It’s not just race, gender and socioeconomic status that affect juror bias; sometimes it’s the actual way people on juries assess evidence and make decisions.Lee John Curley, Teaching associate Psychology, Edinburgh Napier UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/885622018-01-08T19:35:57Z2018-01-08T19:35:57ZStereotypes in the courtroom can prejudice our justice system – here’s how that can be fixed<figure><img src="https://images.theconversation.com/files/197722/original/file-20171205-23047-1gzbsg.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">As an extra-legal factor stereotypes can undermine fairness.</span> <span class="attribution"><span class="source">UQx Crime101x The Psychology of Criminal Justice</span></span></figcaption></figure><p>In 2015, Canadian judge Robin Camp acquitted Alexander Scott for the rape of a woman at a party. <a href="http://www.news.com.au/lifestyle/real-life/wtf/canadian-federal-court-judge-robin-camp-under-review-for-shocking-remarks-to-alleged-rape-victim/news-story/350959d6eeca7ab6a4d01733099a1ebd">According to reports</a>, Camp questioned why the victim had not done more to resist the attack. He said:</p>
<blockquote>
<p>She knew she was drunk … Is not an onus on her to be more careful?</p>
</blockquote>
<p>Camp also noted the alleged victim’s lack of physical and verbal resistance, and her low socioeconomic status. Four law professors <a href="http://s3.documentcloud.org/documents/2510250/cjc-complaint-r-camp.pdf">subsequently filed a complaint</a> criticising the decision: they characterised it as being sexist and reflecting stereotypical thinking.</p>
<p>Stereotypes like these <a href="http://press.anu.edu.au/publications/new-directions-law-australia">have an undesirable influence</a> on decisions in the legal system. While they can have a functional influence on how we form impressions of others, stereotypes can undermine fairness. </p>
<h2>Stereotypes and thinking</h2>
<p>One useful way to think about a criminal trial is as a series of persuasive messages directed at the fact-finder. In many jurisdictions, the fact-finder is a judge, and for more serious matters it is a jury.</p>
<p>We can use research on persuasion to understand and counter the effect of stereotypes. It generally finds there are two ways in which persuasive messages can influence people. </p>
<p>These processes are described in the dual process models – specifically the <a href="http://www.unc.edu/%7Efbaum/teaching/articles/jpsp-1980-Chaiken.pdf">heuristic systematic</a> and the <a href="http://www.acrwebsite.org/search/view-conference-proceedings.aspx?Id=6329">elaboration likelihood</a> models.</p>
<p>According to these models, there are two modes of thinking. The central or systematic route involves careful deliberative thought. In contrast, the peripheral or heuristic route relies more on shortcuts and pre-existing knowledge – such as stereotypes. </p>
<p>While the central route sounds like the best way of making decisions, people can only use effort in their thinking when they have the motivation and ability to do so.</p>
<h2>What influences jurors?</h2>
<p>It is not just judges like Camp who are influenced by stereotypes in cases of sexual assault or rape: jurors’ perceptions are <a href="http://journals.sagepub.com/doi/full/10.1177/0886260513518843">also affected</a>.</p>
<p>Convictions for sexual assault are often dependent on circumstantial evidence, as there is <a href="https://www.researchgate.net/profile/Nina_Westera/publication/264384581_Promoting_pre-recorded_complainant_evidence_in_rape_trials_Psychological_and_practice_perspectives/links/53db04b40cf2e38c63397e55.pdf">typically little corroborating evidence</a>. This means jurors in these cases are likely to draw on their stereotypes to interpret what happened and who should be blamed.</p>
<p>Jurors are also often influenced by defendants’ characteristics, such as their <a href="http://www.sciencedirect.com/science/article/pii/0092656680900173">attractiveness</a>, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1559-1816.1994.tb01552.x/full">race</a>, and <a href="http://journals.sagepub.com/doi/abs/10.1177/0739986308315319">socioeconomic status</a>. Defendants are seen as <a href="http://www.tandfonline.com/doi/abs/10.1080/00224545.1988.9711362">more likely to be guilty</a> when they come from social categories that are stereotypically linked to the features of the particular crime they are alleged to have committed. </p>
<p>It is not just stereotypes about the defendant’s appearance that influence perceptions: those derived from courtroom design also affect how jurors decide a case. In one of <a href="http://onlinelibrary.wiley.com/doi/10.1111/jols.12033/full">our studies</a>, a defendant sitting at the bar table with his lawyer was seen as less likely to be guilty than a defendant who was sitting either in an open dock or glass-enclosed dock.</p>
<h2>Why stereotyping happens, and what can be done about it</h2>
<p><a href="http://trove.nla.gov.au/work/18680805">One assumption</a> as to why stereotypes exert such an effect is that perceivers want to use the least mental effort possible, and so use stereotypes to <a href="http://psycnet.apa.org/record/1991-18331-001">reduce the amount of effort required</a>. </p>
<p>However, <a href="http://psycnet.apa.org/record/1985-01256-001">there is evidence</a> that perceivers think more carefully about unexpected, or stereotype inconsistent, information. <a href="http://psycnet.apa.org/fulltext/2012-30280-001.html">Our research</a> suggests that stereotypes can actually be used to maximise the amount of information that is evaluated under taxing conditions.</p>
<p>Despite stereotypes being pervasive and often functional, in the justice system their influence on fact-finders can lead to unfair outcomes for both victims and the accused. This reduces confidence in the justice system and is undesirable for the community. </p>
<p>So, what changes can we make to reduce the negative effects of stereotypes?</p>
<p>One suggestion is that we should get rid of juries and have judge-only trials. But, as the Camp example shows, judges are sometimes also influenced by stereotypes. And research shows that judges, just like juries, have difficulty <a href="http://www.jstor.org/stable/4150614">ignoring inadmissible information</a> and stereotypes.</p>
<p>This is not a criticism of jurors or judges. Rather, it is a recognition that they are human. </p>
<p>Another possibility is to change how jurors are asked to do their job so that they rely less on stereotypes. One option could be to use structured question trails to instruct jurors, rather than the traditional way of giving verbal instructions.</p>
<p>We could also redesign courtrooms to remove elaborate docks, which can make stereotypes about the threat posed by the defendant. </p>
<p>Whatever strategy is decided upon, there is a real need for empirical evidence to inform law reform and practice. This will increase the chance that change will actually improve the fairness of the criminal justice system.</p>
<hr>
<p><em>This article is based on the author’s chapter in <a href="https://press.anu.edu.au/publications/new-directions-law-australia">New Directions for Law in Australia: Essays in Contemporary Law Reform</a>, published by ANU Press.</em></p><img src="https://counter.theconversation.com/content/88562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Blake McKimmie has received funding from The Australian Research Council and the Queensland Law Reform Commission. Industry partners, who provided funding and/or in-kind support, for some of the research were the NSW Department of Justice and Attorney General, the Western Australian Department of Justice and Attorney General, PTW Architects, Hassell Architects, Katsieris Origami, and ICE Design. </span></em></p>Stereotypes can undermine the fairness of criminal trials, but research can help us understand and counter the effect of stereotypes through law reform.Blake McKimmie, Associate Professor, School of Psychology, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/643822016-08-26T11:18:20Z2016-08-26T11:18:20ZVirtual reality robots could help teleport juries to crime scenes<figure><img src="https://images.theconversation.com/files/135515/original/image-20160825-6630-1afnzf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Juries are seldom allowed to visit crime scenes. There are exceptions, usually in difficult, high-profile murder cases such as the <a href="http://www.nytimes.com/1995/02/13/us/simpson-jury-is-taken-on-a-tour-of-the-crime-scene.html?pagewanted=all">O.J Simpson trial</a> in 1995 in the US and the <a href="http://news.bbc.co.uk/1/hi/uk/1323186.stm">Jill Dando murder trial</a> in 2001 in the UK. But asking jurors to become fact finders in this way comes with myriad problems, from possible biases to the logistical and security challenges of taking them to the crime scene.</p>
<p>A site visit by the <a href="http://www.dailymail.co.uk/news/article-45197/Dando-jurors-visit-crime-scene.html">Dando jury</a> needed a convoy of five vehicles to transport the jurors, lawyers, judge and their police escorts to the scene, passing through police barricades surrounded by neighbours, journalists and other spectators. It became a media spectacle. But rapidly progressing technology in imaging, robotics and artificial intelligence may be able to avoid these issues by virtually teleporting judges and jurors to crime scenes without even leaving the courtroom.</p>
<p>Such visits can help juries to assess the prosecution and defence cases. For example, in the murder trial of <a href="http://www.billboard.com/articles/news/1049990/phil-spector-jurors-visit-crime-scene">music producer Phil Spector</a> in 2007, the defence lawyers claimed a large fountain at the scene caused a witness to mishear Spector admit to the crime. By visiting the scene, the jury were able to judge how likely this was, as well as gaining a better understanding of how the sequence of events may have unfolded.</p>
<p>But when a jury visits a crime scene, it may not be in the same state as when the crime originally occurred. During the <a href="http://articles.chicagotribune.com/1995-02-15/news/9502150182_1_simpson-home-defense-attorney-carl-douglas-nicole-brown-simpson">Simpson trial</a>, for example, there were serious complaints regarding the scene being staged and items rearranged. And the longer the time after the crime has taken place, the greater the chance that things will have changed.</p>
<p>Courts have traditionally relied on forensic science units to produce visual evidence in court as an alternative to crime scene visits. Crime scene investigators (CSIs) <a href="http://bit.ly/2bkTcXg">gather and use evidence</a> to recreate the precise sequence of events that occurred during the course of a crime. Part of this reconstruction process is photography and sketching, with the latter still largely done by hand. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Virtual duty.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Photos give a limited picture of the crime scene, restricted by the photographer’s field of view and subject to their interpretation of the scene and the importance they place on different pieces of evidence. Video can capture more of the scene but is still limited in its field of view.</p>
<p>Sketches lay out the scene in a way that neither photographs nor videos can. They provide a general overview of the scene and the precise and relative location of evidence. But they also give an inherently less realistic representation of the crime scene, determined even more by the artist’s interpretation. Similarly, photos and videos can be turned into 3D computer animations but again are subjective, and <a href="http://www.jstor.org/stable/1394503">can even be tailored</a> to support the case of whichever side is presenting them.</p>
<h2>Immersive evidence</h2>
<p>However, new technology is now emerging that could enable CSIs to capture and relay a much more immersive and representative picture of crime scenes, using 3D imaging, panoramic videography, robotics and virtual reality. For example, <a href="https://blogs.staffs.ac.uk/archaeology/projects/digital-forensic-archaeology-dig-for-arch/">researchers at Staffordshire University</a>, led by Caroline Sturdy Colls, used green screens, video game software and the latest virtual reality headsets (such as the Oculus Rift and HTC Vive) to reproduce virtual crime scenes digitally.</p>
<p>Jurors could potentially take a walk around the 3D worlds rendered using the system, and examine vital details of the scene. Unlike an edited video created to sway the jury, this form of evidence would be a simple matter of documenting a scene. This, of course, relies on those gathering the data to objectively preserving the crime scene without staging or tampering.</p>
<p>One issue with 3D recreations and computer-generated virtual reality simulations is that they require expensive headsets, and top specification computers to work. The first generation of VR systems such as the HTC Vive (£759), PlayStation VR (£349.99) and Oculus Rift (£549) all come with hefty price tags and none of them work without an additional VR-ready computer or console.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=609&fit=crop&dpr=1 600w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=609&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=609&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=766&fit=crop&dpr=1 754w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=766&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=766&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Here to inspect your crime scene.</span>
<span class="attribution"><span class="source">Durham University</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>To overcome this issue, my colleagues and I at Durham University are developing a robot system inspired by NASA’s Curiosity Mars rover that could capture immersive video footage of crime scenes. This MABMAT takes 360° videos and photographs that can be played on any computer or smartphone with an appropriate app. With a basic adaptor headset such as the £10 <a href="https://vr.google.com/cardboard/">Google cardboard</a>, it can recreate a similar VR experience as above but at a fraction of the cost. It requires no rendering of 3D graphics, no powerful computers and captures the most accurate snapshot of the crime scene from every angle. Users can turn their heads, look up and down, or zoom in and out.</p>
<p>As well as helping juries in the courtroom, the system could allow investigators to revisit crime scenes as they were at the time of the initial forensic examination. Information could be captured in three ways. A CSI could set a predefined path for the rover to take, recording high definition video images in 360° as it goes. Or it could be controlled via a Bluetooth remote or a smartphone or tablet. Alternatively, the rover could use ultrasonic, motion and infrared sensors to navigate around a scene and take photos and video by itself.</p>
<p>The entire setup totals just £299, with costs set to go down even further in the future, due to affordable open-source robotics kits built around cheap computer systems such as Raspberry Pi and Arduino. Another development could be the use of <a href="https://get.google.com/tango/">Google’s Tango project</a>, which can render 3D images of scenes and terrain in real-time, potentially replacing crime-scene sketching. This would create an immersive experience with tracked motion, highlighting the precise distance between objects and relative position of the evidence at the scene.</p><img src="https://counter.theconversation.com/content/64382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mehzeb Chowdhury does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Using a robotic video camera to digitally recreate a crime scene could give juries greater insight without the logistical nightmare and potential bias of a physical visit.Mehzeb Chowdhury, PhD Researcher in Forensic Science & Criminal Investigations, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/600902016-06-09T12:29:47Z2016-06-09T12:29:47ZIs jury bias preventing justice for rape victims?<figure><img src="https://images.theconversation.com/files/125542/original/image-20160607-15028-2w0z6y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Billion Photos/Shutterstock</span></span></figcaption></figure><p>Former star athlete, Brock Turner, <a href="http://www.cosmopolitan.com/politics/news/a59569/stanford-rape-case-defense-attorneys/">has been sentenced</a> to six months in jail after what became known as the “Stanford sex assault case”. The length of Turner’s sentence along with his apparent lack of remorse led to public outcry and the <a href="https://news.vice.com/article/a-petition-to-remove-the-judge-in-the-stanford-rape-case-has-more-than-100000-signatures">launch of a petition</a> to remove the judge who gave the sentencing with many claiming it was too light and accusing him of bias.</p>
<p><a href="http://www.theguardian.com/law/2011/apr/11/judges-lenient-break">Research</a> has previously found that judges are more lenient at the start of the day and immediately after a scheduled break in court proceedings – such as after lunch – which suggests a level of bias in their decision making.</p>
<p>Now <a href="http://www.hud.ac.uk/news/2016/march/lowconvictionratesinrapetrialsresultofbiasofjurors.php">new research</a> shows how jurors – who are supposed to be a better option than a lone judge – <a href="http://www.independent.co.uk/student/istudents/the-stanford-rape-case-isn-t-the-first-of-its-kind-it-s-happening-in-the-uk-and-survivors-deserve-to-a7070746.html">could also be biased</a> when it comes to deciding a verdict.</p>
<p>We already know that personal characteristics of jurors may influence the verdicts they return. In 2002 a review of a number of studies found <a href="http://eprints.kingston.ac.uk/23/1/Darbyshire-P-23.pdf">juror’s gender, occupation, level of education and ethnicity</a> can all impact decisions made surrounding a defendant’s guilt in a case. Likewise, attitudes towards specific aspects of a case including the <a href="http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1016&context=christian_meissner">defendant’s race</a> <a href="https://www.researchgate.net/publication/232456577_Jury_selection_in_major_controlled_substance_trials_The_need_for_extended_voir_dire">involvement of drugs</a>, <a href="http://www.sciencedirect.com/science/article/pii/0092656692900526">mental health issues</a> and even a <a href="http://irv.sagepub.com/content/8/3/245.full.pdf+html">victim’s perceived attractiveness</a> have been shown to have some effect on the verdict jurors make.</p>
<p>To test the extent to which juror bias affects the fairness of decision making within rape cases, we recreated rape trials, with the participation of professional lawyers and actors. Members of the public and university students were invited to take on the role of “juror”. </p>
<p>The research saw 360 “jurors” within 30 mock jury panels, who observed a video recorded reconstruction from one of three differing rape trials that were reconstructed in a real courtroom with barristers and actors. The jurors were asked to reach a verdict after observing the video.</p>
<p>Analysis is ongoing, however <a href="http://www.hud.ac.uk/news/2016/march/lowconvictionratesinrapetrialsresultofbiasofjurors.php">results</a> so far suggest there is juror prejudice in rape cases where the victim already knew their attacker – and given that this is the majority of cases, it doesn’t bode well for conviction rates. </p>
<p>One trial observed by ten different mock juries, produced five guilty verdicts and five not guilty verdicts, based upon observing the exact same case evidence. This in itself suggests “juror characteristics” have an important impact on the ultimate verdict outcome.</p>
<h2>Rape on trial</h2>
<p>Despite many people assuming rape is committed by strangers lurking in a dark alleyway, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf">statistics show</a> the vast majority of rapes – around 90% – are committed by people already known to the victim. Of these, 56% are committed by a partner or ex-partner, making what’s termed “acquaintance” and “domestic” rapes much more prevalent than those committed by strangers. </p>
<p>This in itself adds to the difficulty of the jury’s job if a case reaches trial, as these disputed “sexual acts” tend to take place in private, resulting in little availability of witnesses or CCTV evidence. And unlike other crimes, DNA evidence in rape cases where the accused is known to the victim, is often of little value – demonstrating only that a sexual act happened, not whether this took place with consent. </p>
<p>Arguably even more damaging, are the negative attitudes jurors and society hold toward rape victims. A notion recently played out on BBC3 in the <a href="http://www.bbc.co.uk/mediacentre/proginfo/2015/44/sex-on-trial">Is this Rape? Sex on Trial</a> documentary – which saw the victim, rather than the defendant, come under the most scrutiny. </p>
<p>Substantial research has shown many people hold inaccurate beliefs around how a “real rape victim” behaves. Including beliefs around how the victim’s own actions may have “invited” unwanted sexual activity – such as flirtatious behaviour or provocative clothing. So much so, that judges now routinely warn jurors against drawing upon these <a href="http://rapecrisis.org.uk/mythsvsrealities.php">rape myths</a> when making decisions at trial.</p>
<p>However, the extent to which these instructions are taken into consideration remains questionable. Recent research showed that many jurors take little notice of these legal instructions in <a href="http://onlinelibrary.wiley.com/doi/10.1111/lest.12051/pdf">rape trial deliberations</a> and a 2010 UK government report found only <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf">31% of jurors actually understand legal directions</a> in full. </p>
<h2>Jury bias</h2>
<p>As part of our research, we also examined jurors psychological makeup by analysing their responses to attitudinal and personality assessments – to see whether these aspects also had any effect upon the verdicts jurors returned. </p>
<p>The results show that attitudes towards rape, interpersonal interactions – such as the need to be in control or included – and egocentricity (one aspect of a <a href="https://www.researchgate.net/publication/292881843_Introduction_and_validation_of_Psychopathic_Personality_Traits_Scale_PPTS_in_a_large_prison_sample">new measure of psychopathy</a>, all appear to be somewhat predictive of the verdicts jurors will choose. People who score highly on these tests appear to be more predisposed towards “not guilty” verdicts.</p>
<p>This means the attitudes and personality traits jurors bring with them to trial, appear to have a much more of an influence and biasing effect upon the collective verdict returned than has previously been accepted.</p>
<p>Under <a href="https://en.wikipedia.org/wiki/Peremptory_challenge">English law</a> it is rare for the courts to ask prospective jurors any questions to assess their suitability to make decisions in a case. In fact, jurors are allocated to cases by a process of random selection from the local electoral register and only excused from sitting as a juror when they fall outside the 18–70 age range, have a history of serious mental health issues or criminal convictions. Although, when they are picked some might be excused for having some agreed conflict with the case. </p>
<p>Though, this is different in the US, where extensive quizzing of jurors occurs – this is known as “voir dire” and it is a bit like a mini hearing. Though it has been argued this type of <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/chknt78&div=50&id=&page=">jury vetting is often ineffective at detecting juror bias</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The jury system is by no means flawless.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>The broad inclusion criteria in the UK is thought to ensure varied and representative members of the community are present within different cases. Yet with such a wide spectrum of people acting as jurors, comes a whole host of associated biases. Biases which bring this impartial assumption into question.</p>
<p>Our findings make a case for jury vetting – overturning centuries of tradition in England. Which in turn, will make for fairer verdict decisions, so that victims of rape will finally get the chance to see their perpetrators brought to justice.</p><img src="https://counter.theconversation.com/content/60090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic Willmott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A debate has erupted over the recent sentencing in the Stanford sexual assault case, with questions being asked over the judge’s bias, but could the same be said of jurors in other rape cases?Dominic Willmott, Doctoral Researcher in Forensic Psychology, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.