tag:theconversation.com,2011:/us/topics/trial-by-jury-3501/articlesTrial by jury – The Conversation2020-01-21T19:03:15Ztag:theconversation.com,2011:article/1301272020-01-21T19:03:15Z2020-01-21T19:03:15ZJuries need to be told how they’re allowed to use the internet to ensure fair trials<figure><img src="https://images.theconversation.com/files/311026/original/file-20200121-144966-1h80wm7.jpg?ixlib=rb-1.1.0&rect=5%2C1%2C992%2C679&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We can't stop jurors accessing the internet, but we can educate them and encourage self-regulation. </span> <span class="attribution"><span class="source">from www.shutterstock.com</span></span></figcaption></figure><p>Juries are supposed to consider evidence without influence or bias from the outside world. However, the <a href="https://www.consultancy.com.au/news/616/9-out-of-10-australian-citizens-now-own-a-smartphone">widespread access to and use of the internet and social media</a> threatens to undermine this, with significant consequences for our criminal justice system and those within it.</p>
<p>Given courts cannot effectively police smart-phone use they must adapt to it. This week the <a href="https://www.utas.edu.au/law-reform">Tasmania Law Reform Institute</a> completed its <a href="https://cdn.theconversation.com/static_files/files/842/Jurors_and_Social_Media_FR_A4_04_secure.pdf?1579503016">year long inquiry</a> into courts and the information age, and has recommendations as to how they can adapt.</p>
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Read more:
<a href="https://theconversation.com/jurors-and-social-media-is-there-a-solution-15921">Jurors and social media: is there a solution?</a>
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<h2>The right to a fair & unbiased trial by your peers</h2>
<p>An accused person’s right to a fair trial is the most fundamental principle of our criminal justice system. It is a phrase that describes a system that affords an accused person many protections. That system relies on jurors being impartial and returning a verdict that is based solely on the evidence that is presented within the courtroom. </p>
<p>In the past this was readily easy to achieve. Juror communications during trial hours and even after them could be controlled. News about the trial was generally a local affair, and even when it attracted national attention, the journalists needed to be in the court’s jurisdiction to report, so they and their employers were subject to the court’s authority. </p>
<p>The shift in the way people access news, information and communications in the modern age has changed this reality. </p>
<p>Almost every Australian has access to the internet via their smartphone or other devices, social media use is habitual among much of our population, and the internet is a ubiquitous source of information for most people. </p>
<p>Jurors are no different – in fact, they represent the wider Australian community these statistics describe. While jurors’ smart phones are removed from them during trial, they cannot be before or after the trial period, nor at the beginning or end of the day. As a result jurors may intentionally, or simply by habit seek out or communicate information about the trial.</p>
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Read more:
<a href="https://theconversation.com/all-about-juries-why-do-we-actually-need-them-and-can-they-get-it-wrong-112703">All about juries: why do we actually need them and can they get it 'wrong'?</a>
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<h2>Use and misuse of social media</h2>
<p>Between 2018 and 2020 the Tasmanian Law Reform Institute conducted an inquiry into juror misuse of the internet and social media during trials. The institute concluded there is likely to be a high, but unquantifiable and undetectable level of misuse. </p>
<p>However, there is evidence across Australian jurisdictions that jurors have used their internet connected devices to:</p>
<ul>
<li><p>research legal terms or concepts or other information relevant to the trial. A West Australian juror in a drug-related trial obtained information online about <a href="https://www.watoday.com.au/national/western-australia/calls-to-overhaul-wa-jury-system-after-juror-dismissed-for-facebook-post-20161012-gs0wwa.html">methylamphetamine production</a></p></li>
<li><p>research the accused, witnesses, victims, lawyers or the judge. Two South Australian jurors sitting in a blackmail trial against multiple defendants conducted online searches about the accused which disclosed <a href="https://www.abc.net.au/news/2016-06-22/jurors-fined-for-contempt-of-court/7533472">past outlaw motorcycle gang affiliations</a></p></li>
<li><p>communicate with people involved in the trial. Multiple New South Wales jurors on a long-running fraud trial <a href="https://www.dailytelegraph.com.au/jury-getting-off-their-facebooks/news-story/26e2549a7d9063ae9dae0e2a27683dce">became Facebook friends</a>, sharing posts such as a digitally altered photo of one of the jurors wearing a judge’s wig</p></li>
<li><p>publish material about the trial on the internet or social media. A NSW juror sitting in a sexual offending trial posted on Facebook <a href="https://www.smh.com.au/national/nsw/facebook-post-sparks-probe-into-jury-conduct-in-sex-crime-trial-20190414-p51dz4.html">the day before the guilty verdict was returned</a>: “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” This post was accompanied with a photograph that showed images of rooms and implements by which lawful executions are carried out.</p></li>
</ul>
<p>Misuse is under-reported. In those few instance where reports are made, fellow jurors, rather than court officers, tend to be the ones who raise the issue. Indeed, it is an important part of their role.</p>
<p>While jurors across Australia are currently told not to conduct online research, wilful disobedience is only part of the problem. It can also involve unintentional acts by jurors who believe they are doing the right thing. </p>
<p>For instance, jurors accessing online news, entertainment or social media sites can be passively influenced by information relevant to the trial. Jurors often misunderstand their role and conduct independent research in the genuine belief their actions are in the pursuit of “fairness” or discovering the truth. </p>
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<a href="https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/311027/original/file-20200121-144971-ymz6of.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&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">What jurors see online could affect their choice in the courtroom.</span>
<span class="attribution"><span class="source">from www.shutterstock.com</span></span>
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<h2>Educate, inform & encourage self-regulation</h2>
<p>The law reform institute ultimately concluded it is impossible for, and beyond the capacity of courts to completely police juror internet use. It has thus recommended not reforming the law, but rather strengthening and standardising juror education and directions. These recommendations are divided across two stages of jury selection, as part of an overall strategy:</p>
<ul>
<li><p>pre-selection: prospective jurors should receive improved training and information about the role of the juror and the risks of internet use</p></li>
<li><p>post-selection: once a jury has been selected, judges need to explain to jurors what dangers arise from using the internet to access and publish on social media, seeking information about the case, parties, court officers, lawyers, and self-conducted research into legal concepts or sentences. The report has recommended the court adopt minimum standard directions, but also have the flexibility to make specific directions relevant to any particular trial.</p></li>
</ul>
<p>The report recommended certain current practices and laws should remain unchanged, including:</p>
<ul>
<li><p>removing phones from jurors while they are in court (even though the effect is limited it avoids juror distraction)</p></li>
<li><p>leaving contempt (punishment) laws in place for those jurors who intentionally ignore court training and directions. That might include monetary fines and, in severe cases, imprisonment.</p></li>
</ul>
<p>This process is aimed at encouraging self-regulation among jurors, by educating them how to curtail their internet use and why it’s so important.</p>
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Read more:
<a href="https://theconversation.com/trial-by-social-media-why-we-need-to-properly-educate-juries-13547">Trial by social media: why we need to properly educate juries</a>
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<p class="fine-print"><em><span>Jemma Holt receives funding from the Law Foundation of Tasmania. </span></em></p><p class="fine-print"><em><span>Brendan Gogarty receives funding from Law Foundation of Tasmania. </span></em></p>Does a fair trial exist in the social media age? The Tasmanian Law Reform Institute has released recommendations around juries and their smart devices.Jemma Holt, Research Fellow/ Acting Executive Officer (Research), Tasmania Law Reform Institute, University of TasmaniaBrendan Gogarty, Senior Lecturer / Clinical Director / Director (Acting) Tas Law Reform Institue, University of TasmaniaLicensed 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>
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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>
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<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>
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<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>
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<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>
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<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>
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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>
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<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/941032018-04-16T05:35:22Z2018-04-16T05:35:22ZTrial by judge alone may not be the answer to giving high-profile defendants a fair hearing<figure><img src="https://images.theconversation.com/files/212538/original/file-20180329-189816-1uqqu3m.jpg?ixlib=rb-1.1.0&rect=0%2C576%2C5000%2C3839&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prejudice is increasingly difficult to remove from jurors.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/human-hand-through-mobile-phones-screen-634788806?src=XRyvqx5f9wuBWab_12CaFA-1-58">Shutterstock</a></span></figcaption></figure><p>In April 2013, Adrian Bayley <a href="http://www.abc.net.au/news/2013-04-05/adrian-bayley-pleads-guilty-to-jill-meagher-murder/4611058">pleaded guilty</a> to Jill Meagher’s murder. As the case was the subject of heavy media coverage, there would have been few Australians who were not well aware of it.</p>
<p>It’s worth pondering, then, what might have happened had – as was possible – Bayley pleaded not guilty. Would it have been possible to empanel a jury that could bring a fair mind to the assessment of Bayley’s guilt? If not, what ought to have been done?</p>
<p>Bayley’s case is hardly unique. Delivering a High Court judgment in 2012 on the appeal of Queensland surgeon Jayant Patel (dubbed “Dr Death”) against manslaughter convictions, justice Dyson Heydon <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2012/29.html">observed</a>: </p>
<blockquote>
<p>It is difficult to imagine there could be many speakers of English living in Australia, even parts of Australia outside Queensland, in the years before the trial who had not been exposed to the massively unfavourable publicity that [Patel] received during these events. It was inflammatory, derisive and bitter.</p>
</blockquote>
<p>Though the likes of Bayley and Patel are unlikely to attract sympathy, we should nonetheless give serious thought to the challenges involved in ensuring such defendants are able to be tried fairly. </p>
<p>The law insists any accused is entitled to test the charges against them before an impartial tribunal. This is one of the core values of our system of justice; it ought to be jealously protected.</p>
<p>The problems high-profile defendants pose are hardly new. But they are more pressing today than ever.</p>
<h2>Prejudice in the modern courtroom</h2>
<p>In an age of search engines and social media, the likelihood of prospective jurors being exposed to prejudicial publicity in the lead-up to a trial has never been greater. </p>
<p>Modern conditions have also cast doubt on the efficacy of traditional mechanisms – such as a change of trial venue, or the rules <a href="http://www.unswlawjournal.unsw.edu.au/article/scum-of-the-earth-an-analysis-of-prejudicial-twitter-conversations-during-the-baden-clay-murder-trial/">relating to <em>sub judice</em> contempt</a> – for controlling such publicity and managing its impact.</p>
<p>There is also strong evidence that suggests such publicity can have a meaningful effect. A <a href="https://link.springer.com/article/10.1023/A:1022325019080">1999 meta-analysis of 44 empirical tests</a>, involving a total of 5,755 subjects, concluded that:</p>
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<p>… the data support the hypothesis that negative pretrial publicity significantly affects jurors’ decisions about the culpability of the defendant.</p>
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Read more:
<a href="https://theconversation.com/why-the-public-isnt-allowed-to-know-specifics-about-the-george-pell-case-93651">Why the public isn't allowed to know specifics about the George Pell case</a>
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<p>Faced with these difficulties, some have suggested that notorious defendants ought to, in some cases, be tried by judge alone, rather than before a jury. This course of action is not available in all parts of Australia. Where such trials are available, the conditions under which they are permitted vary. </p>
<p>There are two primary models used, with some jurisdictions blending elements of the two. The first allows trial by judge alone if the accused requests it. The second utilises an “interests of justice” test and allows trial by judge alone at the judge’s discretion.</p>
<h2>Judicial prejudice warrants further research</h2>
<p>The appeal of a trial by judge alone in such cases is founded upon the great confidence <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1982/31.html">the law has</a> in judges’ capabilities.</p>
<p>This conviction is deeply held. Yet when I and two other researchers <a href="http://journals.sagepub.com/doi/full/10.1177/1365712718765548">examined</a> whether this belief was empirically supported, a complex picture emerged. </p>
<p>In short, there is little clear empirical evidence to suggest judges are significantly more capable than jurors of putting prejudicial information to one side in decision-making. Despite having examined several empirical studies conducted over a considerable span of years, we were unable to identify a firm foundation for the overwhelming confidence in judges’ superior capabilities.</p>
<p>Two qualifications must immediately be made. </p>
<p>First, this conclusion does not call into question the integrity, commitment or diligence of either judges or jurors. To say both judges and jurors may similarly struggle with the impact of prejudicial publicity is not to say that trials of notorious defendants, whether conducted before a jury or by judge alone, are anything less than fair.</p>
<p>Second, it must be stressed there remains a real need for further research on this subject. The main conclusion we arrived at is that the assumptions that underlie the widespread faith in trial by judge alone merit continued investigation. </p>
<p>It is possible that further research may yield more decisive and satisfying answers than are currently available. If it leads to the conclusion the judiciary is more capable than jurors of ignoring prejudicial publicity, this may act as an impetus for the expansion of the availability of trial by judge alone. </p>
<p>Whatever the outcome of further investigation, we cannot afford any delay in carrying it out. The continuing growth and reach of social media means the problem of prolific, prejudicial online publicity is not one that will disappear with time. It is likely to become more – not less – crucial to find ways to moderate the effects of prejudicial publicity.</p><img src="https://counter.theconversation.com/content/94103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Eldridge 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>The problems high-profile defendants pose in receiving a fair trial are hardly new. But they are more pressing today than ever.John Eldridge, Lecturer, Sydney Law School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/884322018-04-03T10:28:17Z2018-04-03T10:28:17ZFive punishments past and present for jurors who fall foul of the law<figure><img src="https://images.theconversation.com/files/200392/original/file-20171221-15864-ynl7j5.jpg?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="http://www.shutterstock.com">www.shutterstock.com</a></span></figcaption></figure><p>Jurors in England and Wales have come under repeated criticism in recent years for the ways they’ve carried out their duties. In late March, a jury member at Carlisle Crown Court <a href="http://www.bbc.co.uk/news/uk-england-cumbria-43490590">was fined £1,000</a> for playing on his phone during a trial in what the judge described as “blatant contempt of court”. In November 2017, a jury was <a href="http://www.bbc.co.uk/news/uk-england-wiltshire-42100936">dismissed</a> at Winchester Crown Court after what one newspaper described as <a href="http://www.telegraph.co.uk/news/2017/11/23/parachute-trial-jury-discharged-failing-reach-verdict/">“an extraordinary row”</a> between judge and jury. Some jurors have <a href="http://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">even been imprisoned</a> for carrying out illicit research into the case before them.</p>
<p>In the past there were a number of ways to punish jurors – some of which still stand today. </p>
<h2>Attaint</h2>
<p>In medieval England, if it was suspected that a jury of 12 had returned an inaccurate verdict in a civil trial, the case could be reheard by a 24-strong jury. If the second jury disagreed with the first jury’s verdict, the first jury would be punished. This procedure was <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">called the attaint</a>.</p>
<p>Initially, punishment under the attaint meant imprisonment and the destruction of the jurors’ homes and lands, although by the end of the 15th century this had been replaced with perpetual infamy and a fine. The attaint never seems to have been used on criminal juries, and by the end of the 16th century it seems to have stopped being used even in civil trials. The system was formally abolished in 1825.</p>
<h2>Embracery</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=933&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=933&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=933&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Vaughan: he argued jurors shouldn’t be punished just because a judge disagree with them.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/b/b3/John_Vaughan_%281603-1674%29%2C_follower_of_John_Michael_Wright.jpg">Sotheby's via Wikimedia Commons.</a></span>
</figcaption>
</figure>
<p>Chief Justice Vaughan famously <a href="https://en.wikipedia.org/wiki/Bushel%27s_Case">ruled</a> in 1670 that jurors could not be punished simply for returning a verdict which the trial judge disagreed with. He was happy to punish jurors in some circumstances, however, having convicted two jurors of “embracery” the previous year. </p>
<p>Embracery occurred where threats or bribes were used in order to encourage jurors to return a favourable verdict. It was an offence both to try to “embrace” a juror and to be “embraced” when actually serving as a juror. </p>
<p>One embracer was convicted as late as 1975, although the Court of Appeal complained that a simple charge of contempt of court would have been better. This stopped any further prosecutions for embracery, and the offence was <a href="https://www.legislation.gov.uk/ukpga/2010/23/section/17">formally abolished in 2010</a>.</p>
<h2>Perverting the course of justice</h2>
<p>Perverting the course of justice as a juror is a broader offence than embracery, but it works in a similar way. It’s possible both for the person interfering with a jury, and for a juror who accepts a bribe or is otherwise compromised, to be punished. The offence still exists today, but prosecutions of jurors for perverting the course of justice have always been rare. </p>
<p>As recently as 2011, the Court of Appeal <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/1629.html">made reference</a> to the option of prosecuting jurors under this offence where a juror had been communicating with a defendant, but judges seemed satisfied with the more conventional charge of contempt of court made against the juror. </p>
<h2>Contempt of court – and new offences</h2>
<p>Contempt of court is a broadly defined offence, consisting essentially of anything which undermines the authority of the court. A famous example of jurors punished for contempt came in 1670, when several jurors – including their foreman, Edward Bushel – were imprisoned for refusing to convict a pair of Quaker preachers. The Court of Common Pleas, ruling in Bushel’s case, held that juror punishment in these circumstances was unlawful. But the fact that judges could not longer punish jurors simply for returning verdicts with which the judges disagreed doesn’t mean that jurors are completely protected from contempt proceedings today. </p>
<p>In recent years, several jurors have <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871">been imprisoned for contempt</a> after disobeying clear judicial instructions not to go online in order to find additional evidence in the cases they are trying.</p>
<p>In 2015, four <a href="http://www.legislation.gov.uk/ukpga/2015/2/part/3/crossheading/juries-and-members-of-the-court-martial/enacted">new criminal offences were created</a> relating to independent research done by jurors. These new offences were intended to “send a message” to potential jurors that the government takes juror misconduct very seriously. It is now a criminal offence – triable by jury – for anyone acting as a juror to:</p>
<ul>
<li>Research the case they are trying as a juror.</li>
<li>Disclose the product of any such research to a fellow juror.</li>
<li>Act in any other way which demonstrates an intention to reach a conclusion based on something other than the evidence presented in court.</li>
<li>Solicit or disclose the details of the jury’s deliberations to people who were not on the jury.</li>
</ul>
<p>In September 2017, the foreman of a jury <a href="https://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">was sentenced to four months’</a> imprisonment after going online to research some of the details of the case he was trying. </p>
<h2>Rebukes from the bench</h2>
<p>Beyond these formal kinds of punishment which are still possible, it’s also possible for judges to simply rebuke their jurors. In 1917, a group of jurors were kept in a state of <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">virtual imprisonment</a> after a falling out with their judge. They were told they would never serve on another jury, but that they must still report for jury service for several weeks, on pain of punishment under the contempt laws if they failed to attend. </p>
<p>In the case in November 2017, the jury at Winchester Crown Court was warned that they should not bully each other during their deliberations. Before they were discharged, they <a href="https://www.theguardian.com/uk-news/2017/nov/23/jury-dismissed-in-trial-of-man-emile-cilliers-accused-of-tampering-with-wifes-parachute">wrote a note</a> to the court, complaining that: </p>
<blockquote>
<p>Collectively we feel we have had no opportunity to defend ourselves and our integrity which has further implications on us personally and professionally.</p>
</blockquote>
<p>But while these jurors might feel slighted, at least they did not have to face formal sanctions. As the trial judge explained to them, it was his responsibility to keep an eye on any misconduct, and to find some way to “flush it out”.</p><img src="https://counter.theconversation.com/content/88432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>K Crosby has previously received funding relevant to this article from the Society of Legal Scholars. </span></em></p>A history of how jurors have faced trial themselves for getting it wrong, or slipping up in court.K Crosby, Senior Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/797122017-06-20T01:34:38Z2017-06-20T01:34:38ZWill guilty verdict in teen texting suicide case lead to new laws on end-of-life issues?<figure><img src="https://images.theconversation.com/files/174586/original/file-20170619-22108-1iz4y2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michelle Carter after being found guilty of involuntary manslaughter.</span> <span class="attribution"><span class="source">AP/ Glenn C. Silva</span></span></figcaption></figure><p>In Massachusetts, a 17-year-old girl named Michelle Carter repeatedly urged her boyfriend, who had a history of mental illness, to kill himself. And <a href="http://www.bostonglobe.com/metro/2017/06/16/michelle-carter-guilty-suicide-testing-trial/To0pxezEP0hArZdX8k0DtN/story.html">then, he did</a>.</p>
<p>As Conrad Roy III sat in his truck in 2014 and was overcome by carbon monoxide, he had second thoughts. With everything going as planned, he got scared, opened the door and got out. That’s when Carter sent him <a href="http://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-12043.html">a text message</a> that said, as she recounted later to a friend: “I fucking told him to get back in… because I knew he would do it all over again the next day and I couldn’t have him live the way he was living anymore. I couldn’t do it I wouldn’t let him.”</p>
<p>After reading Carter’s message, 18-year-old Roy, who’d been receiving Carter’s text messages throughout the evening urging him to go ahead with his suicide plan, got back into the truck and breathed his last.</p>
<p>A tragedy? Of course. An atrocious and cold-hearted action by Carter? Obviously. Morally contemptible? By almost any ethical standard. </p>
<p>But as a law professor and defense attorney, I note two additional questions that come to my mind. First, was it criminal? And second, what are the implications for the judge’s verdict finding Carter guilty of manslaughter?</p>
<h2>Words alone?</h2>
<p>Massachusetts does not have a law specifically outlawing one person encouraging another to commit suicide. Some have criticized the verdict on that ground. But the common law (that is, the law developed over time by judges) of homicide in the Commonwealth of Massachusetts has <a href="http://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-12043.html">recognized for 200 years</a> that what Carter did was a crime.</p>
<p>In 1816, <a href="http://www.wsc.mass.edu/mhj/pdfs/murder%20by%20counseling.pdf">George Bowen</a>, described at the time as a “hardened and abandoned wretch” serving time in the Northampton jail for petty larceny, convinced a prisoner in the cell next to his to kill himself, one day before the prisoner’s scheduled execution. Bowen was placed on trial for murder. Isaac Parker, the chief justice of the Supreme Judicial Court, instructed the jury that if they were convinced beyond a reasonable doubt that Bowen’s words “procure[d] the death” of his prison neighbor, then they should return a guilty verdict. Bowen’s jury acquitted him. But the legal principle remained, a point recognized by the <a href="https://supreme.justia.com/cases/federal/us/521/702/case.html">United States Supreme Court in 1997</a> when it relied on the Bowen decision in a case holding that there is no constitutional right to assisted suicide. </p>
<p>In 2016, when Michelle Carter’s lawyers challenged the manslaughter indictment against her, Justice Parker’s successors upheld the notion that someone’s words alone can be the deciding factor in a homicide case if they are uttered in a context that makes them reckless and wanton, and actually cause another’s death.</p>
<p>The judge in the Carter case, who decided the case once she chose to have a trial without a jury, found exactly that. He concluded that the evidence showed Carter’s words actually caused Conrad’s suicide that night, and that she uttered them with a reckless and wanton disregard for their probable consequence. The guilty verdict, for all the controversy over whether words alone can kill, was well within the mainstream of Massachusetts law.</p>
<p>But what is more troubling are the implications of the verdict. </p>
<h2>End-of-life advice</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=410&fit=crop&dpr=1 600w, https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=410&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=410&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=515&fit=crop&dpr=1 754w, https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=515&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/174584/original/file-20170619-22108-1e5i185.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=515&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">California lawmakers hear testimony on proposed legislation allowing doctors to prescribe life-ending medication to terminally ill patients in 2015.</span>
<span class="attribution"><span class="source">AP Photo/Rich Pedroncelli, File</span></span>
</figcaption>
</figure>
<p>Of course, the judge’s actions decided only the case before him. But now the genie is out of the bottle. Who else might find the engine of the criminal justice system bearing down on him or her because of words less morally bankrupt than Michelle Carter’s? </p>
<p>Do doctors <a href="https://scholar.google.com/scholar_case?case=15777514628045960849&hl=en&as_sdt=6&as_vis=1&oi=scholarr">advising patients</a> about <a href="http://law.justia.com/cases/new-mexico/supreme-court/2016/35-478.html">end-of-life</a> decisions have to worry about criminal prosecution if a patient stops taking medicine and dies as a result? Will family members have to urge their terminal relatives to do everything in their power to stay alive, lest they be prosecuted on the same theory as Carter’s?</p>
<p>In practical terms, such prosecutions will be possible only when the authorities find out about them. Unless you leave a trail of emails and text messages behind, you’re less likely to be found out. But that is not solace enough. A criminal law that is broad enough to encompass behavior that should not be punished can create unwarranted fear. And no one seriously contends that doctors or relatives counseling mature adults close to death should have to act in the shadow of a potential homicide prosecution.</p>
<p>We could just depend on the good sense of our elected prosecutors to stay their hand in such cases. But those who responsibly participate in end-of-life decisions by others should not have to rely on the discretion of people who are in the business of administering our system of punishment. </p>
<p>The <a href="http://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-12043.html">Massachusetts Supreme Judicial Court’s opinion</a> allowing the Carter case to go to trial gave a subtle hint that it would not look kindly on an extension of its ruling to these kinds of cases. The opinion took pains to point out that what Carter did was substantively different from the situation of “a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life.”</p>
<p>But this kind of limiting language in a court’s opinion is simply dicta, or nonbinding. To provide a concrete and meaningful limit to the principle on which Carter was convicted would require legislative action, certainly in Massachusetts where the Carter verdict will have the most impact.</p>
<p>Perhaps it is now time for the Commonwealth’s laws to address this issue directly, eliminating all doubts about whether “words can kill,” and providing a safe harbor for those whose soothing words seek to make a dying person’s last days more tranquil. Massachusetts’ reaction to this tragic case can be a model for the nation.</p><img src="https://counter.theconversation.com/content/79712/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rossman 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>When do words at an end-of-life decision constitute a crime? A law professor explains why lawmakers should act to clear up the gray area that remains.David Rossman, Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/672542016-10-27T14:47:53Z2016-10-27T14:47:53ZWhy eyewitnesses give false evidence – and how we can stop them<p>In October 2004, a rumour of a gang fight circulated on an east London estate and a large crowd of around 50 young people gathered to take part. During the melee, one youth received a fatal blow from a sharp object and the attackers fled on their bicycles. This tragedy left one young man dead and another, Sam Hallam, <a href="http://news.bbc.co.uk/1/hi/england/london/4463530.stm">convicted of murder</a> – wrongly, as it later turned out.</p>
<p>Eyewitness evidence lay at the heart of this case. One witness picked Hallam out of a police lineup while another identified him in an interview. Yet both these testimonies were later shown to be false and eventually – after seven years in prison – Sam Hallam had his conviction quashed and <a href="http://www.bbc.co.uk/news/uk-england-london-18102336">he was released</a>. For all the importance of eyewitness testimony to the justice system, witnesses can and do get things wrong. Understanding exactly why could help us reduce the chances of further miscarriages of justice.</p>
<p>One obvious reason why witnesses make mistakes is that the conditions of an event may not produce very strong memories. The Hallam case provides a good example of such poor conditions: the incident unfolded rapidly, a weapon was involved, it was distressing and some of the perpetrators had the hoods of their hoodies pulled up to hide their faces. These so-called <a href="http://law.jrank.org/pages/1157/Eyewitness-Identification-Psychological-Aspects-distinction-between-estimator-variables-system-variables.html">estimator variables</a> can affect how reliable a witness’s memory is.</p>
<p>Memories can also be influenced by other people, for example if a witness discusses the event with someone else afterwards, <a href="http://cdp.sagepub.com/content/18/3/174.abstract">particularly other witnesses</a>. <a href="https://www.judiciary.gov.uk/judgments/sam-hallam-judgment-17052012/">For example</a>, Witness 1 in the Hallam case initially told police that they had seen a black man brandishing a baseball bat at the scene of the incident. Despite this, they then picked out the white male they knew as Hallam from an identification parade. In cross-examination, the witness later admitted that they selected Hallam after they had <a href="http://www.independent.co.uk/news/uk/crime/sam-hallam-i-need-time-to-recover-from-the-last-seven-years-man-jailed-for-murder-has-conviction-7764000.html">heard a rumour</a> that he was involved.</p>
<p>Similarly, Witness 2 gave a detailed description of the baseball bat in their first interview but made no mention of having seen Hallam at the scene until a second interview. It turned out this was only after the rumour that Hallam was involved circulated.</p>
<p>Leading questions from interviewers can also plant the <a href="https://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?language=en">seeds of a false memory</a> in witnesses’ minds. For example, when Witness 1 picked Hallam out of the police lineup, this was mistakenly treated as evidence that they had identified him as holding the baseball bat. It appears that two leading questions from the interviewing officers <a href="http://www.thelawpages.com/court-cases/Sam-Hallam-8230-1.law">contributed to this misunderstanding</a>. </p>
<p>This can happen when investigators have become biased against a particular suspect and focus on a single theory that fits with or confirms the evidence at hand, rather than considering alternative possibilities. On top of this, the <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1559-1816.2007.00175.x/abstract">expectations and motivation</a> of an interviewer to get information can alter the perception and weight that is given to a witness statement. </p>
<h2>Innocent until proven guilty?</h2>
<p>Investigator bias may have also played a part in the wrongful conviction of Barry George for the <a href="http://news.bbc.co.uk/1/hi/uk/7536815.stm">murder of TV presenter Jill Dando</a>. Once again, eyewitness evidence supporting the hypothesis that George was responsible played a primary role <a href="http://netk.net.au/UK/George.asp">in court</a>. The poor quality of the eyewitness evidence presented at trial was overlooked.</p>
<p>For example, a couple of witnesses had learned where the suspect was positioned in the lineup. They were also allowed to give evidence in the form of a partial identification, despite the fact that that they had <a href="https://www.theguardian.com/media/2002/jul/16/broadcasting.jilldando">failed to identify George</a> in a formal video identification procedure. When witnesses talk to each other they may come to agree on what they saw, and research shows <a href="http://onlinelibrary.wiley.com/doi/10.1002/acp.1037/abstract">feedback from other witnesses</a> can inflate their confidence in court. </p>
<p>These cases remind us that the principle that every suspect should be <a href="http://defensewiki.ibj.org/index.php/Presumption_of_Innocence">presumed innocent</a> until proven guilty should apply at all stages of criminal proceedings. The burden of proving a suspect’s guilt is on the prosecuting team, who have a responsibility to <a href="https://www.fairtrials.org/about-us/the-right-to-a-fair-trial/the-presumption-of-innocence/">ensure a fair trial</a> and that means following procedures to reduce mistaken eyewitness identifications.</p>
<p>Specifically, investigators and lawyers have the responsibility to make sure individual witnesses do not come into contact with each other. But more than this, investigators should consider theories and evidence that may lead them to conclude the suspect is innocent. And where problems with eyewitness evidence do occur, the jury in the trial should be alerted. Without such safeguards, evidence based on eyewitness errors will continue to make its way into trials and more serious miscarriages of justice will occur.</p><img src="https://counter.theconversation.com/content/67254/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amina Memon has received funding from ESRC, Nuffield and Leverhulme Trust. They are a trustee for the Centre for the Study of Emotion and the Law, on the project advisory for Asylum Aid and research and ethics board for Freedom from Torture. </span></em></p>Your memory of an event can be manipulated – and miscarriages of justice can follow.Amina Memon, Professor of Psychology, Royal Holloway University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/662302016-10-11T18:03:21Z2016-10-11T18:03:21ZThe verdict is out: Ghana’s jury system needs urgent reform<figure><img src="https://images.theconversation.com/files/140732/original/image-20161006-14709-o1n2h9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Independence Square in Accra, Ghana. The country is indeed free but must improve at delivering justice.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In 1872 Mark Twain wrote that juries were “the most ingenious and infallible agency for defeating justice that human wisdom could <a href="http://www.classicreader.com/book/1407/49/">contrive</a>”. More than 140 years later his statement unfortunately holds true for Ghana. </p>
<p>Ghana is one of only a handful of African countries that still use juries. Prior to British colonialisation criminal offenders were usually judged and punished by local chiefs and their advisers. The jury system was introduced under British <a href="https://www.britannica.com/topic/jury">colonial rule</a> and is still used for the prosecution of the most serious criminal offences.</p>
<p>Ghanaian juries are composed of seven individuals randomly selected from a list composed mainly, if not exclusively, of civil servants. Their responsibility is to decide, based on evidence presented in court, whether a defendant is guilty of the offence for which they have been charged. They are not involved in sentencing.</p>
<p>A key argument in support of the jury system is that it is a valued form of <a href="https://www.theguardian.com/commentisfree/2010/feb/21/juries-work-best-research">citizen participation</a> in democracies. Supporters argue that juries minimise state oppression by having an unbiased group of one’s peers, instead of a judge, decide the fate of an accused person. </p>
<p>Unfortunately, the jury system in Ghana faces serious challenges. Inefficiency, infringement of human rights and wasteful use of resources results in a bad deal for everyone – the accused, the victim, the courts and society.</p>
<h2>Why the system is flawed</h2>
<p>There are a number of reasons why the jury system doesn’t work well in Ghana. </p>
<p>The main one is the alarming frequency with which criminal cases are adjourned due to the <a href="http://ghanabar.org/statementb.php">absence</a> of one or more jury members. This significantly delays the trial process, often while the accused is on remand. </p>
<p>Ghana has <a href="http://www.parliament.gh/assets/file/Acts%202016/CRIMINAL%20PROCEDURE%20CODE.pdf">provision</a> for a fine or imprisonment to be applied to jury members who fail to attend court without a “reasonable excuse”. But this is rarely, if ever, applied. </p>
<p>Where non-attendance is persistent, as it often is, an absent juror can either be replaced or the entire jury discharged. In either case the law requires the trial to commence afresh, no matter how far along it has progressed. This obviously causes significant inconvenience for all involved. It also has implications for the right to a fair trial and the right to trial within a reasonable time as guaranteed by Ghana’s <a href="http://www.ghana.gov.gh/images/documents/constitution_ghana.pdf">constitution</a>. </p>
<p>One option would be for trials to continue with the judge acting alone. Alternatively, trials could continue with the remaining jurors. In England and Wales for example, although 12 individuals are initially assigned to a jury, the law permits the <a href="http://www.legislation.gov.uk/ukpga/1974/23/section/16">trial to continue</a> with as few as nine members.</p>
<p>Also of concern is the anecdotal evidence that jurors sit in several cases during the same period of service or are selected for jury duty several times in a short time frame. These individuals are known as “<a href="http://ghanabar.org/statementb.php">professional jurors</a>”. It is not unreasonable to assume that their effectiveness could be compromised because of “juror fatigue”. </p>
<p>There are also problems with restrictions on who can serve on a jury. </p>
<p>In Ghana, the Criminal Procedure Code prevents a significant number of individuals from serving on a jury, mainly professionals and high-ranking civil servants. This effectively reduces the pool of potential jurors who are capable of understanding the gravity and nature of criminal court proceedings. This is worrying for a country with a <a href="http://www.statsghana.gov.gh/docfiles/glss5_report.pdf">40% literacy rate in rural areas</a>. The literacy rate in <a href="http://www.statsghana.gov.gh/docfiles/glss5_report.pdf">urban areas</a> is higher at 70% but still poses a problem. </p>
<p>The current law also bars those below the age of 25 and those above the age of 60 from being jurors. This too unnecessarily excludes a useful segment of society from the jury pool. </p>
<p>In addition, jury selection is complicated by the fact that outside Ghana’s large cities – Accra, Kumasi and Sekondi-Takoradi – the country is made up of many small villages and towns. The comparatively small local populations, in conjunction with the small pool of eligible jurors, means that those selected often reside or work in the same vicinity as the defendant. This heightens the chance that a juror will either know, or know someone who knows, the defendant. This may undermine impartiality. </p>
<h2>What needs to be done</h2>
<p>It is crucial that these problems are adequately addressed. This should include legislative and administrative reforms. </p>
<p>Some solutions, for example, could include:</p>
<ul>
<li><p>allowing jury trials to be converted to bench trials in restricted circumstances,</p></li>
<li><p>widening the category of eligible jurors, </p></li>
<li><p>imposing sanctions for unwarranted jury absenteeism, and </p></li>
<li><p>repealing the requirement for a re-trial due to discharge of a juror.</p></li>
</ul>
<p>These steps would considerably assist in modernising the Ghanaian jury system in criminal cases. It would also, importantly, minimise the negative impact that jury trials are having on the rights of the accused.</p>
<p>The changes would bring the jury system in line with international standards of good governance and contribute to increasing the legitimacy of the criminal justice system and the public’s respect for it. </p>
<p>Some have advocated for the <a href="http://www.edition.myjoyonline.com/pages/news/201008/50266.php">abolition</a> of jury trials in Ghana. This may be worth exploring. But if it is to be retained it must operate in a way that seeks to achieve the optimal level of justice. </p>
<p>Ghana needs faster, safer and less expensive criminal verdicts. This must be done urgently, as every day the status quo is maintained is another day that justice and constitutional rights are whittled away.</p><img src="https://counter.theconversation.com/content/66230/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julia Selman Ayetey has been involved in projects funded by local and central government in England & Wales. She is a lawyer qualified to practice in England & Wales as well as Ghana. </span></em></p>A key argument in support of the jury system is that it is a valued form of citizen participation in democracies. But the system has led to human rights abuses in Ghana.Julia Selman Ayetey, Lecturer in Law and Criminologist, University of Cape CoastLicensed 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/229102014-02-07T17:08:04Z2014-02-07T17:08:04ZJournalism in the dock: the prosecution rests<figure><img src="https://images.theconversation.com/files/40924/original/m4dprw49-1391699221.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Andy Coulson: out of town on key dates in prosecution evidence.</span> <span class="attribution"><span class="source">Jonathan Brady/PA Wire</span></span></figcaption></figure><p>The phone hacking trial which began on 28 October, has entered the final phase of the prosecution case. <a href="http://www.bbc.co.uk/news/uk-24351068">On trial</a> along with five others are Rebekah Brooks, former chief executive of News International, former editor of the News of the World and The Sun; and Andy Coulson, the prime minister’s former communications chief and, before that, editor of the News of the World. </p>
<p>Brooks is charged with conspiracy to intercept communications by listening to mobile phone messages, plus two further counts of allegedly making corrupt payments to public officials and two final accusations that she allegedly conspired to pervert the course of justice by removing and concealing evidence. Coulson is charged with conspiracy to hack phones and conspiracy to commit misconduct in a public place.</p>
<p>As the prosecution case drew to a close, the judge in proceedings, Mr Justice Saunders, warned the court that the <a href="http://uk.reuters.com/article/2013/10/29/uk-britain-hacking-idUKBRE99S11720131029">trial </a> may run to seven months. <a href="http://www.theguardian.com/uk-news/2014/feb/04/rebekah-brooks-andy-coulson-phone-hacking-trial-verdict">Speaking to the jury</a> he said: “The worst-case scenario which you have to be prepared for … we estimate that the latest time you are going to go out to consider your verdict will be the middle of May.”</p>
<p>So, with the defence teams not due to begin their arguments until 17 February, let’s examine the final weeks of prosecution.</p>
<h2>Jiffy bags and videos</h2>
<p>Reconvening on the first Monday of the new year, the court’s initial focus was on allegations that Brooks, her husband Charlie, her former personal assistant, Cheryl Carter, and News International’s security chief Mark Hanna were part of a conspiracy to prevent police from gaining access to seven boxes of documents and computer equipment removed from News International buildings in the days after the closure of the News of the World. </p>
<p>The court was told that Carter allegedly <a href="http://www.bbc.co.uk/news/uk-24962471">took part</a> in a plan to permanently remove Rebekah Brooks’ journalistic records from the company’s archives. According to <a href="http://www.thedrum.com/opinion/2014/01/08/cfo-unjogged-memory-and-more-budgets">Carter</a>, the seven boxes of documents merely contained “some shit” she wanted to get out of the way.</p>
<p>On 14 January, the court heard that on 17 July 2011, when Rebekah Brooks was arrested, she was in <a href="http://www.thedrum.com/opinion/2014/01/14/texts-drives-and-video-tapes">“constant communication”</a> with her husband and Hanna. The jury was shown CCTV footage of Hanna and a security contractor, Mark Sandell, arriving at Brooks’ apartment that afternoon. Then the court saw footage of Hanna and Charlie Brooks meeting in the apartment’s underground car park before Hanna left with a jiffy bag, a laptop computer and a brown bag. A recording shown to the jury in the previous day’s proceedings appeared to show Brooks leaving a jiffy bag in the car park. Later, Robert Hernandez, a security guard colleague of Hanna’s told the court that after the final edition of the News of the World was published on 10 July, the two went for drink. In the early hours of the morning Hernandez says his boss told him he had <a href="http://www.bbc.co.uk/news/uk-25813319">“dug a hole in his garden and burned stuff”</a>.</p>
<p>Jiffy bags became something of a theme in the opening weeks. In an episode which appeared to delight all sections of the press, the court was told that a holdall in which evidence was allegedly hidden from police by Charlie Brooks contained pornographic paraphernalia including seven DVDs and a magazine called Lesbian Lovers. </p>
<p>Fernando Nascimento, a cleaner who found the holdall in the car park of Brooks’ London home, was asked about contents by his barrister, Neil Saunders. <a href="http://www.telegraph.co.uk/news/uknews/phone-hacking/10575305/Hacking-trial-Charlie-Brooks-hid-holdall-containing-porn-from-police.html">The Telegraph</a> reported that Nascimento, who had said he found two laptops, an iPad and some paperwork inside the bin bag, was shown a photograph of a Jiffy bag which was also found inside. He denied opening the Jiffy bag, and Mr Saunders said: “If you had opened it, you wouldn’t have forgotten.”</p>
<p>However, Jonathan Laidlaw QC, for Mrs Brooks, said it was “wrong” to claim equipment had been removed “prior to and since” her arrest and that computers taken by police from the Brooks’ house were not in use when she quit News International. </p>
<p>DC Alan Pritchard said police had not recovered equipment with “relevant activity” from the time that Mrs Brooks resigned as CEO in 2011. But, Pritchard told the court, some “computers, iPads and phones” of Mr and Mrs Brooks <a href="http://www.bbc.co.uk/news/uk-25839961">had never been recovered.</a></p>
<h2>Law and order</h2>
<p>On Monday 27 January, events returned to the key theme of phone hacking as actor <a href="http://uk.reuters.com/article/2014/01/27/uk-britain-hacking-judelaw-idUKBREA0Q0K520140127">Jude Law</a> was called to the stand. In scenes worthy of many a court room drama, Law spoke of how the media had accumulated an “<a href="http://www.telegraph.co.uk/news/uknews/phone-hacking/10599015/Jude-Law-Media-had-unhealthy-amount-of-information-about-me.html">unhealthy amount of information</a>” about his life and relationships. </p>
<p>Timothy Langdale QC, for Andy Coulson, gave the actor the name of someone from his family whom he said had been paid by the newspaper to supply information. In a highly unusual move, Langdale wrote down the name of the relative on a piece of paper and passed it to Law in the witness box. <a href="http://www.independent.co.uk/news/uk/crime/jude-law-tells-phonehacking-trial-he-didnt-know-family-member-sold-his-stories-9088231.html">The Independent</a> reported:</p>
<blockquote>
<p>When Law opened the folded piece of paper, and read its contents, he displayed no specific reaction.</p>
</blockquote>
<h2>Salmon and eggs</h2>
<p>Despite this theatre, the appearance of Law was the calm before the storm of explosive assertions made by former News of the World reporter, Dan Evans. Evans, who has admitted hacking mobile phones, told of how he was recruited from the Sunday Mirror to the News of the World at a series of informal interviews, culminating with a breakfast meeting with Coulson at which he told Coulson, over smoked salmon and scrambled eggs, that he could get stories “cheaply” through the “stuff with phones” without the expense of an investigation. </p>
<p>Shortly after this meeting he was informed: <a href="http://www.thedrum.com/opinion/2014/01/27/phone-hacking-trial-journalist-admits-intercepting-voicemails">“You’ve got the job.”</a> Pressed on whether he had hacked the phones of various contacts at the News of the World, Evans stated that this had been an almost daily occurrence and he had accessed voicemails <a href="http://www.bbc.co.uk/news/uk-25917344">more than 1,000 times. </a></p>
<p>Evans indicated that his relationship with Coulson was a close one and that his editor was familiar with phone hacking methods. After listening to a voicemail message on Bond actor Daniel Craig’s phone left by actress Sienna Miller, Evans reported that Coulson exclaimed, “brilliant!” Evans <a href="http://www.theguardian.com/uk-news/2014/jan/28/andy-coulson-sienna-miller-phone-hacking-trial">then alleged</a> that Coulson ordered him to make a replica tape, put it in a Jiffy bag, and send it to the front gate at the News of the World’s offices in Wapping, east London. Evans alleged that Coulson said security staff at the front gate “would then ring up and say this has been sent in anonymously”. He told the jury that a colleague collected the Jiffy bag and came back to the office, expressing mock surprise.</p>
<p>Challenged by Langdale that Coulson was not even in London that day, Evans said that even if this was the case, certain facts were clear in his mind. To this Langley suggested this was <a href="http://www.thedrum.com/opinion/2014/01/30/phone-hacking-trial-coulson-miller-and-groucho-club">“just another example of you changing your story when new facts are put to you”. </a></p>
<p>By the time the sixth day of Evans’ evidence finished on February 3, he had painted an ugly picture of tabloid journalism where he alleged quotes were fabricated and newspapers took calculated risks over whether they would be sued or not. Speaking of the News of the World, <a href="http://www.thedrum.com/opinion/2014/01/30/phone-hacking-trial-evans-changes-evidence-and-bringing-it">he said</a>: “This is a tabloid newspaper. It might come as a shock but not every quote is nailed on truth, especially when the word source is used … I have to sanitise it, clean it up, it’s tabloid fluff.”</p>
<p>As the prosecution case drew to close on 5 February, the jury heard of two final significant pieces of evidence. It was alleged that senior executives at News International considered giving publicist Max Clifford a £200,000 annual contract in exchange for abandoning a civil phone-hacking damages claim. At a meeting of executives it was apparently suggested that Brooks could even meet Clifford with the cash. A memo of the discussion was referred to by prosecutor Andrew Edis QC, <a href="http://www.independent.co.uk/news/uk/crime/hacking-trial-rebekah-brooks-had-200000-deal-to-silence-max-clifford-9107744.html">it said</a>: “We either get something in writing or she could physically turn up with the cash to see him.”</p>
<p>And then, in final submissions before the close of the prosecution’s case before resumption on February 17, came a startling piece of evidence: it was alleged that Glenn Mulcaire, the private investigator employed by the News of the World jailed in 2007 for intercepting voicemails, had hacked the phones of <a href="http://fothom.wordpress.com/indexed-evidence/breaking-news/">Brookes 44 times and Coulson 21</a>. No one, it seems, was exempt.</p>
<p>The case continues…</p><img src="https://counter.theconversation.com/content/22910/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Jewell 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>The phone hacking trial which began on 28 October, has entered the final phase of the prosecution case. On trial along with five others are Rebekah Brooks, former chief executive of News International…John Jewell, Director of Undergraduate Studies, School of Journalism, Media and Cultural Studies, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/226062014-01-30T15:50:13Z2014-01-30T15:50:13ZKnox case has put the Italian legal system on trial in the US<figure><img src="https://images.theconversation.com/files/40209/original/czzdmknw-1391087298.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amanda Knox in the hands of the Italian police.</span> <span class="attribution"><span class="source">Antonio Calanni/AP</span></span></figcaption></figure><p>Amanda Knox has faced three verdicts in six years over a case in which it was alleged she was part of a brutal knife attack on Meredeth Kercher in Perugia in 2007 that resulted in her death. Although Knox maintains her innocence, the Italian prosecution case against her continues and a guilty verdict has been <a href="http://www.theguardian.com/world/2014/jan/30/amanda-knox-raffaele-sollecito-lose-meredith-kercher-murder-appeal">reinstated</a>.</p>
<p>Why? It is in part down to the results of the American’s previous criminal procedures. In 2009, the jury that presided over Ms Knox’s initial trial unanimously <a href="http://edition.cnn.com/2009/CRIME/12/04/italy.knox.trial/">found her guilty</a> of homicide, sexual violence, staging a crime scene, and criminal defamation. But in 2011, Knox <a href="http://www.csmonitor.com/World/Latest-News-Wires/2011/1003/Amanda-Knox-appeal-successful-to-be-set-free-immediately">successfully appealed</a> and won release from prison. In a report explaining its decision, the appellate court cited a <a href="http://edition.cnn.com/2011/12/15/world/europe/italy-amanda-knox/">lack of evidence</a>. Many in the United States believed this spectacular reversal of fortune to be the final word in the Knox case. However, another chapter had yet to be written. </p>
<p>In March 2013, Italy’s highest court, the Court of Cassation, <a href="http://www.huffingtonpost.com/2013/06/18/amanda-knox-retrial_n_3459985.html">granted</a> a prosecution appeal requesting that the 2011 appellate verdict be set aside. In rendering its decision, the court ordered that a tribunal in Florence re-hear Knox’s appeal to correct procedural errors made by the court that presided over her first appeal two years earlier.</p>
<p>Throughout all this, Amanda Knox has received strong support from the media in her home country. In fact, the outcome of her 2009 trial led to intense criticism from journalists in the US, who blamed the young woman’s fate on rampant anti-Americanism, media bias, an allegedly corrupt prosecutor, and the Italian justice system itself. In 2011, <a href="http://edition.cnn.com/TRANSCRIPTS/1308/18/cotc.02.html">reporters contended</a> that the prosecution had presented only two pieces of evidence against Knox and her co-accused, Raffaele Sollecito: a knife that contained Knox’s DNA on the handle and purportedly also Kercher’s on the blade, and a bra clasp belonging to the victim that tested positive for Sollecito’s DNA. </p>
<p>Sollecito was originally convicted along with Knox but both were acquitted completely on appeal before the reinstatement. A third person, Ivorian Rudy Guede remains in prison, convicted of the murder.</p>
<p>The American media proclaimed both pieces of evidence contaminated. Finally, a flurry of claims regarding the violation of Knox’s right to <a href="http://www.foxnews.com/world/2013/09/30/amanda-knox-retrial-begins-monday-in-italy/">double jeopardy</a> followed the Court of Cassation’s 2013 decision. Above all, much of the American coverage of Knox’s case ironically contends that she only fell under suspicion to begin with because of salacious media reporting. But what of the American coverage itself? In many instances, American media scrutiny of the Knox case has cast the Italian authorities and the nation’s justice system as the villains in what is unquestionably a very complex narrative. </p>
<h2>Italy in the spotlight</h2>
<p>In 2010, I reviewed more than 400 news reports on the Knox case dating from November 2007 to March of 2010 to examine how the American media represented both the proceedings and, in particular, Italy itself. </p>
<p>I sorted each news report into one of three categories: neutral, unfavourable to Italy, and favourable to Italy. To receive a classification of neutral, all news reports needed to present representatives to explain both sides of the case. Neutral reports also required factually accurate information, and could not withhold salient details about the case from their audiences. Finally, any report relying upon stereotypical characterisations or inflammatory language about Italy could not receive a score of neutral. Similarly, reports were categorised as favourable to Italy if they presented only the prosecution’s side of the argument without considering the defence’s, or if they gave an inaccurate or incomplete view of the evidence. </p>
<p>Of the 409 items I considered, 251 were classified as neutral while 158 received a score of unfavourable. None fell into the category of favourable to Italy.</p>
<p>In fact, although most of the coverage did prove neutral, it was surprising to note how often American journalists did pick a side. And none of them ever seemed to side with the Italian authorities that prosecuted Knox. One recurring theme in this respect was a tendency to present experts on forensic science or law who attempted to discredit the case against Amanda Knox without any effort at presenting the viewpoints of competing experts. </p>
<p>In one instance, a CNN report quoted Anne Bremner, a spokesperson for an advocacy group known as the friends of Amanda Knox, who referred to the evidence collection techniques as “<a href="http://edition.cnn.com/2009/CRIME/11/04/italy.amanda.knox.evidence/index.html?iref=24hours">Fellini forensics</a>”. Although Bremner never explained exactly what this phrase meant, since it evoked the name of acclaimed director Federico Fellini who was known for films that mixed realism and fantasy, the phrase was obviously derisory.</p>
<p>American coverage of the case often failed to report significant points of evidence against the defendant to its audience. In an <a href="http://transcripts.cnn.com/TRANSCRIPTS/0912/07/lkl.01.html">October 2009 interview</a> with CNN’s Larry King, Amanda Knox’s mother Edda Mellas stated that there was no evidence of Knox’s presence in the room where the murder took place. This is technically true, but it has been claimed that this fails to account for the presence of DNA evidence in other locations throughout the residence. The prosecution contends this places Knox in the apartment at the time of the murder. </p>
<p>But perhaps most regrettable of all is a reliance on stereotypical portrayals of Italians to effectively discredit their system of justice. Much of the American coverage spoke of “an ancient Italian code of <a href="http://opinionator.blogs.nytimes.com/2009/12/02/amanda-knox-revisited/?_php=true&_type=blogs&_r=0">saving face</a>”, which allegedly led to Knox’s conviction. Nina Burleigh, who <a href="http://www.amazon.co.uk/The-Fatal-Gift-Beauty-Trials/dp/0307588599">wrote a book</a> on the Knox case and frequently contributed reports and commentary on the proceedings to American cable news networks, blamed Italian attitudes towards women for Knox’s predicament, even though she was one of three defendants accused of the crime – the other two being male. None of these arguments seemed to address the larger question of whether or not Knox was likely to have participated in Meredith Kercher’s death.</p>
<p>Today, more than six years after the murder, the answer to that question still remains unclear. Was Amanda Knox the victim of a tragic miscarriage of justice in 2009? Although the ruling in Florence was meant to determine Amanda Knox’s guilt or innocence in the matter, the case will not end here. And in the United States it is Italy and its justice system that seems to actually be on trial.</p><img src="https://counter.theconversation.com/content/22606/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Annunziato 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>Amanda Knox has faced three verdicts in six years over a case in which it was alleged she was part of a brutal knife attack on Meredeth Kercher in Perugia in 2007 that resulted in her death. Although Knox…Sarah Annunziato, Lecturer, Italian studies, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/197342013-10-31T15:17:29Z2013-10-31T15:17:29ZComputer-generated images influence trial results<figure><img src="https://images.theconversation.com/files/34181/original/6fbvq3hy-1383227589.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Animated evidence is often used in court but is it reliable?</span> <span class="attribution"><span class="source">Gareth Norris</span></span></figcaption></figure><p>Recent cases involving the use of computer generated images as evidence in courtrooms have shown the powerful impact they can have on jury decision making. But studies show that jurors can be unduly influenced by these images and videos. </p>
<p>The case over the murder of British student Meredith Kercher is a particularly high-profile example that highlights the way in which computer-generated exhibits can be used to “fit” the evidence. The successful appeal of Amanda Knox and her co-defendant Raffaele Sollecito called the validity of the graphic animated sequence used in the trial into question since it was based on flawed forensic evidence in the first place. The case showed the importance of having reliable forensic evidence to support the content of an animation before deciding to use it in a trial. </p>
<h2>What are the rules here?</h2>
<p>One of the surprising issues to arise in debates on the admissibility of computer generated exhibits is that there are very few formal guidelines on appearance, content and style. In the US, where they are more frequently used, standards set a range of guidelines for the acceptance of expert, technical and scientific evidence. However, even in the US, the judge generally decides what is and isn’t admissible. This means that there is substantial variability in the acceptance of computer-generated material at trial.</p>
<p>This raises a number of concerns. I have demonstrated that by manipulating often minute and discrete variables in these images and videos that they can exert wildly different results. This suggests that the variation in presentation styles and technology used will undoubtedly create problems for jurors and other legal decision makers.</p>
<h2>Easily swayed</h2>
<p>Alongside the ambiguity over the legal standards of animated evidence, there has been relatively little empirical examination of the potential impact using evidence of this kind might have on trial results when compared to other ways of offering evidence to a jury.</p>
<p>One early experimental <a href="http://web.williams.edu/Psychology/Faculty/Kassin/files/kassin_dunn_1997.pdf">study</a>, presented participants with a number of hypothetical scenarios based around an equivocal suicide. The overall premise under investigation was whether the deceased had fallen or jumped from a roof of a building. This was established by looking at the distance of the body from the edge of the building. If the body was found at between five and ten feet, it is more likely the person might have slipped and fallen. A longer distance of around 20-25 feet would suggest they had jumped.</p>
<p>Participants were shown computer-generated images that either supported or contradicted the premise that the deceased had fallen. They either showed the body as landing near or far away from the building. Of most concern in this case was the fact that a significant number of participants believed that a falling object – in this case a human who had fallen – could land 20-25 feet from a building when the computer-generated evidence suggested that this is what had happened. Ultimately, this led to the suggestion that people are poor intuitive physicists and easily influenced by computer generated images.</p>
<p>The study did also show, however, that when the physical evidence was congruent with the animated sequence, the video evidence served to improve juror decision accuracy. This implies that, when used correctly, animated evidence can be useful. </p>
<h2>Depends which way you look at it</h2>
<p>There is also evidence that juries might react differently to animated evidence depending on the perspective from which it is presented. </p>
<p>In my own <a href="http://www.bywhau.co.uk">research</a>, manipulating the “angle of view” in an animated vehicle accident demonstrated stark differences in culpability judgements. When participants were presented with an animation of a car crash that depicted the situation from overhead, they were more likely to conclude that the driver of one car was at fault. If the animation was presented with an in-car perspective, they appeared more likely to conclude the other driver was at fault.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=147&fit=crop&dpr=1 600w, https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=147&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=147&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=185&fit=crop&dpr=1 754w, https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=185&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/34182/original/5q4j2w4f-1383227698.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=185&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Animated evidence can be presented from different perspectives.</span>
<span class="attribution"><span class="source">Gareth Norris</span></span>
</figcaption>
</figure>
<p>With more sophisticated VR evidence – where jurors can take on an interactive “first-person” role – understanding the potential psychological impact of this technology is vitally important to ensure fairness and proportionality.</p>
<h2>Lessons to learn</h2>
<p>At a basic level, jurors and other legal decision makers must be made aware that these exhibits are merely a representation of one potential sequence of events. Clearly, the vivid and easily compressible nature of these demonstrations can be linked to hypothesised models of jury decision making and could – in some circumstances – encroach upon the ultimate issue and extend beyond their intended probative value.</p>
<p>Psychological theories and research methodologies have a great deal to offer the courts and legal profession in relation to CGE. Just as it seems incredible that we would have once put a child witness in a courtroom or introduced relatively unqualified “experts” to offer advice, so it may also be that we allowed sophisticated techniques of persuasion to form part of legal trials without any real safeguards or guidelines in place.</p><img src="https://counter.theconversation.com/content/19734/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gareth Norris 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>Recent cases involving the use of computer generated images as evidence in courtrooms have shown the powerful impact they can have on jury decision making. But studies show that jurors can be unduly influenced…Gareth Norris, Lecturer, Department of Law and Criminology, Aberystwyth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/159212013-07-30T20:24:52Z2013-07-30T20:24:52ZJurors and social media: is there a solution?<figure><img src="https://images.theconversation.com/files/27208/original/7qk4bj56-1373421606.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Whilst there are only a few instances of jurors taking to social media to discuss court cases, experts argue it is 'the elephant in the room'.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><blockquote>
<p>actually excited for jury duty tomorrow…it’s gonna be fun to tell the defendant they’re GUILTY :P - <a href="http://news.smh.com.au/breaking-news-technology/judge-punishes-michigan-juror-for-facebook-post-20100902-14rul.html">Facebook post, 2010</a>
<br>
Guilty guilty…I will not be swayed. Practicing [sic] for jury duty. - <a href="http://www.nbcwashington.com/news/local/Prospective-Juror-Tweets-Self-Out-of-Levy-Murder-Trial-105553253.html">Twitter post, 2010</a></p>
</blockquote>
<p>These are just two examples from the United States of jurors apparently prejudging the outcome of a criminal trial and communicating that fact on social media. </p>
<p>In 2010, a juror in Victoria posted on Facebook that <a href="http://www.theage.com.au/national/noshow-juror-in-hot-water-over-stupid-actions-20100416-skli.html">“everyone’s guilty”</a>. The conduct was discovered early on in the trial and the jury was discharged, with the juror referred to Victoria Police for breaching the <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/ja200097/">Juries Act (2000)</a>.</p>
<p>But is social media use by jurors really that much of a problem? And what provisions can be put in place to ensure the continued fairness of the justice system?</p>
<h2>Current data</h2>
<p>There is no clear data on the use of social media by Australian jurors during trial and deliberations, although it has been <a href="http://www.lawyersweekly.com.au/wig-chamber/news/jurors-need-social-media-education">described</a> as “the elephant in the room”. </p>
<p>There are <a href="http://www.afr.com/p/technology/facebook_new_australian_ceo_sees_SL8h2QiWOOPlAfMwJo1kCP">over 12 million</a> active Facebook accounts in Australia, and over two million <a href="http://www.afr.com/p/national/no_twitter_marketing_revolution_BV8dd7LFLHWl7Pf2zTeNpM">Twitter</a> and four million <a href="http://www.brw.com.au/p/business/million_members_places_counting_Igi7nirJjn6NfV7KexTv0H">LinkedIn</a> users. </p>
<p>With so many social media users in Australia and the availability of mobile internet, it is easy for people to instantly access their social media accounts anytime or anywhere. Over 45,000 Australians are estimated to perform jury service each year, and as such it is highly likely that many jurors are social networkers.</p>
<h2>What are the impacts?</h2>
<p>There are four main ways jurors may use social media inappropriately. They can publish or distribute information about the trial; they can learn information about the case from a source outside of the court - which could increase applications to stay permanently the prosecution of criminal charges, and applications to terminate trials already underway.</p>
<p>In addition, jurors <a href="http://abcnews.go.com/blogs/technology/2011/08/facebook-mistake-texas-juror-tried-to-friend-defendant/">can contact</a> parties, witnesses, lawyers or the judge in the trial; and discuss the merits of the case or seek opinions from other people.</p>
<p>At stake is the defendant’s right to a fair trial and confidence in the administration of justice. The cost implications are also significant: it is estimated that there were in excess of 4300 jury trials in Australia in 2011-12, and based on costs in NSW, the national cost of jury trials would be over A$240 million.</p>
<h2>What can be done about it?</h2>
<p>In cases where courts detect instances of inappropriate social media use by jurors, they may elect to dismiss the juror or jury panel, or find the juror guilty of an offence. However, a <a href="http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/sclj_item_07_social_media_and_the_law_attachment_a.pdf">recent report</a> commissioned by the Standing Council on Law and Justice found that: </p>
<blockquote>
<p>…the apparent reluctance of courts to refer cases of juror research for prosecution is perhaps indicative of a view that jurors should not be punished where they are genuinely trying to do their best.</p>
</blockquote>
<p>In this context, prevention is certainly better than the cure. The report recommended that there should exist “don’t research” directions for jurors, and that these directions should specifically refer to social media, explaining why jurors should refrain from doing their own research and the consequences of doing so. </p>
<p>The report also recommended research be undertaken with jurors as to the form of guidelines “most likely to be taken seriously”. Finally, they recommended that jurors receive training when they are empanelled.</p>
<p>In addition, our <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291302">research</a> advocates exploring options to make it easier for jurors to notify the courts about their fellow jurors’ social media activity, ensuring ongoing judicial education about the issue and possible responses to it, and requiring jurors to sign a document promising not to use social media to discuss the trial or deliberations. On the last recommendation, it is noted that:</p>
<blockquote>
<p>…jurors may take the instructions more seriously and they may be more likely to remember them if they see them in writing and promise to uphold them.</p>
</blockquote>
<p>We do not support removing electronic devices from jurors as already occurs in some jurisdictions. This measure may cause people to be less willing to serve on juries. A more nuanced approach is required, which recognises that jurors may use social media for some things but not others.</p>
<p>Overall, social networking by jurors provides a novel challenge to the administration of justice and can have a significant impact on a defendant’s right to a fair trial. As technology changes and social media sites grow in popularity, courts will continue to face the challenge of adopting new rules to address the problems created by such technology. </p>
<p>The courts need to find the appropriate balance between protecting the administration of justice and respecting jurors’ privacy, personal rights and freedom of information, as well as ensuring that members of the public are not dissuaded from participating in a vital part of the justice system.</p>
<hr>
<p><em>This article was co-authored with Jessica Lee, BCom LLB(Hons), of Legal Aid ACT.</em></p><img src="https://counter.theconversation.com/content/15921/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorana Bartels receives funding from the Australian Research Council.</span></em></p>actually excited for jury duty tomorrow…it’s gonna be fun to tell the defendant they’re GUILTY :P - Facebook post, 2010 Guilty guilty…I will not be swayed. Practicing [sic] for jury duty. - Twitter post…Lorana Bartels, Assistant Professor, School of Law and Justice, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/140722013-05-22T20:41:25Z2013-05-22T20:41:25ZCovert recordings as evidence in court: the return of police ‘verballing’?<figure><img src="https://images.theconversation.com/files/23403/original/9gy3npr8-1368073158.jpg?ixlib=rb-1.1.0&rect=0%2C77%2C1000%2C700&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is it reasonable to expect juries to spend the time needed to check police transcripts against the audio when lawyers themselves do not?</span> <span class="attribution"><span class="source">Shutterstock/Everett Collection</span></span></figcaption></figure><p>Today, we take it for granted that police interviews with suspects will be electronically recorded and independently transcribed. That hasn’t always been the case. Police were once <a href="http://en.wikipedia.org/wiki/Ray_%22Gunner%22_Kelly">allowed to testify</a> – with no evidence other than their own notes – that a suspect had made a “verbal confession”, with courts liable to accept the officer’s word against that of the defendant.</p>
<p>During the 1990s, reforms aiming to prevent this kind of “verballing” (and false accusations of verballing), were brought on by widely publicised investigations such as the <a href="http://www.pic.nsw.gov.au/Report.aspx?ReportId=100">Wood Royal Commission</a>.</p>
<p>What is not so well-known is that at around the same time, other reforms were inadvertently giving police a new way to “put words in suspects’ mouths” – this time without even needing a conscious intention to do so. </p>
<p>The context was the increasing use of legally obtained covert recordings from listening devices or telephone intercepts. These can provide valuable evidence not available by other means. However, uncontrollable conditions mean their audio quality is often very poor, to the extent no-one can make out what is said – except police working on the case.</p>
<p>For this reason, the law now allows police to present transcripts of indistinct audio they have listened to many times - in the role of a so-called “ad hoc expert”. </p>
<p>But police have no real expertise in transcription, so their transcripts are often inaccurate, incomplete or otherwise unreliable.</p>
<p>To guard against unreliable transcripts influencing juries, legal practice requires the judge to caution that the real evidence is the audio, and the jury should rely on their own ears to determine what is said, using the transcript only as an aid.</p>
<p>But is this a sufficient safeguard? Long-established findings from the science of phonetics suggest it is unrealistic to expect a jury to resist the “priming” effect of an inaccurate transcript.</p>
<p>This was confirmed by a <a href="https://www.equinoxpub.com/journals/index.php/IJSLL/article/view/11212">2011 experiment</a> using the “disputed utterance” from a real murder trial. Participants played the audio repeatedly, while evidence from the case was gradually revealed to them. At a certain point, the (inaccurate) police transcript was suggested.</p>
<p>The graph below shows how easy it is for listeners to be influenced by an inaccurate transcript and, crucially, how hard it is to “unhear” words once they have been “heard”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=359&fit=crop&dpr=1 600w, https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=359&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=359&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/23964/original/gmjg8czx-1368700571.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Graph One.</span>
<span class="attribution"><span class="source">Helen Fraser</span></span>
</figcaption>
</figure>
<p>At first, virtually no-one heard anything like the police transcript, but as soon as it was suggested, one-third confidently “heard” the suggested words. More importantly, many continued to “hear” the words, even after being told that experts on both sides agreed those words had never been spoken.</p>
<p><a href="http://forensictranscription.com.au/">Recent experiments</a> take these results further, using an excerpt from a long, barely audible conversation used in another murder trial, and again priming participants with an inaccurate police transcript. </p>
<p>One finding, graphed below, is that when participants were encouraged to listen carefully and critically to the audio, almost all who had accepted the police transcript when it was suggested now rejected it. The police transcript is not only inaccurate, but implausible.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=359&fit=crop&dpr=1 600w, https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=359&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=359&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=451&fit=crop&dpr=1 754w, https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=451&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/23385/original/2x63ntvp-1368058258.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=451&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Graph Two.</span>
<span class="attribution"><span class="source">Helen Fraser</span></span>
</figcaption>
</figure>
<p>This raises the question: why was the manifest inaccuracy of this police transcript not picked up by either the defence or prosecution – before it was admitted as evidence for a jury to evaluate?</p>
<p>Part of the answer is suggested by another finding shown in the graph above. Those who knew the context of the case were more likely to agree with the inaccurate transcript, and less likely to reject it when an alternative was suggested, than those who heard the recording “cold”.</p>
<p>Perhaps it is not just juries who can be “primed” by an inaccurate transcript. </p>
<p>Lawyers involved in a case, whether for prosecution or defence, always know the context. Of course, in principle, they should check the audio and its transcription critically, as they do other evidence, and if necessary send it for evaluation by an independent expert. However, there are reasons why they might be inclined simply to accept the police version.</p>
<p>Listening carefully to lengthy, barely audible recordings is unpleasant and time-consuming. Participants in the experiments spent at least ten minutes listening to a 14-second excerpt. At that rate it would take around 20 hours to critique the transcript of the entire half-hour recording.</p>
<p>It is surely understandable, then, if lawyers accept the assurance - offered by the law itself - that police “ad hoc expertise” means the transcript is likely reliable, and in any case the jury will be cautioned to listen carefully to the audio, using the transcript only as an aid. </p>
<p>The problem is that the law on this topic is unsound. Police are experts in solving crimes, not in transcription – and can themselves be unconsciously “primed” by their knowledge of the case. And surely it can hardly be reasonable to expect juries to spend the time needed to check police transcripts against the audio, when lawyers do not?</p>
<p>It is important to emphasise that none of this constitutes criticism of individuals in the law and law enforcement professions. </p>
<p>Reliable, unbiased evidence is best achieved not by the will of individuals but by the design of the system. That is why medical science (for example) has developed a system of double-blind analysis of experimental results.</p>
<p>The stakes in criminal trials are no less high than those in medical trials. Law reform is urgently required to make it far harder than it currently is for inaccurate and misleading transcripts to be accepted as reliable evidence.</p>
<p>In the meantime, it is up to individuals to prevent this new form of “verballing”, by making themselves aware of how commonly police transcripts are inaccurate, and how easily inaccurate transcripts can “prime” listeners to “hear” words that were never spoken.</p>
<hr>
<p><em>For an opportunity to hear the audio discussed above under experimental conditions (takes ten minutes and is completely anonymous) click <a href="https://qasiatrial.asia.qualtrics.com/SE/?SID=SV_cU4dChD447wDj7L">here</a>. For more information on the subject, click <a href="http://forensictranscription.com.au">here</a>.</em></p><img src="https://counter.theconversation.com/content/14072/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Fraser 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>Today, we take it for granted that police interviews with suspects will be electronically recorded and independently transcribed. That hasn’t always been the case. Police were once allowed to testify…Helen Fraser, Adjunct Senior Lecturer in Law (forensic science), UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/85542012-08-01T04:50:28Z2012-08-01T04:50:28ZTwelve good men (and women)? Lloyd Rayney and the problem with jury trials<figure><img src="https://images.theconversation.com/files/13666/original/h3jzsgd4-1343712289.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lloyd Rayney is accused of murdering his estranged wife Coryne and has opted for a judge only trial.</span> <span class="attribution"><span class="source">AAP/WA Supreme Court</span></span></figcaption></figure><p>It is no surprise that <a href="http://www.abc.net.au/lateline/content/2012/s3547104.htm">Lloyd Rayney</a> has chosen to have a judge sitting alone try the case against him rather than exercising his right to trial before a jury. </p>
<p>Past media speculation, the high profile of the victim and accused as members of the Western Australian justice system, police and DPP comments that there is no other suspect, the forensic focus on the family home, and the public image of Mrs Rayney as model mother fed a doubt that a representative jury would come to the trial with minds clear of predisposition or prejudice.</p>
<p>Although there is no suggestion that a local judge would be incapable of putting aside any predispositions they too might hold, the Court appointed former Northern Territory chief justice Brian Martin, to try the case. This was to ensure that not only would justice be done, but it also would be seen to be done.</p>
<p>However, this raises the question of whether the accused should have the option to choose his or her method of trial, or should that privilege belong to the people?</p>
<h2>Whose is the right to trial by jury?</h2>
<p>In granting the accused the right to choose between trial by judge alone or by a jury of their peers, the [Criminal Procedure Act](http://www.austlii.edu.au/au/legis/wa/consol_act/cpa2004188/ 20040 (WA), section 118(4) says, the court can make such an order “if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.”</p>
<p>That the court does so with some trepidation is evident in section 119 (10), which requires the sitting judge to apply as closely as possible the same principles that would apply to a trial before a jury. </p>
<p>This way lies the path to democracy. Or does it?</p>
<h2>The community vs the accused</h2>
<p>The community regards its involvement in the jury system as its right. Its preference for jury trial over that of trial by judge alone is universal and, apparently, increasing. </p>
<p>The jury is the community’s representative in the system to see that justice is done. Justice will be done to the community’s satisfaction only if verdicts and sentences reflect its values, or, expressing it more cynically, they reflect the prevailing standards that pass for values.</p>
<p>If one purpose of the representative jury is to guard against an arbitrary verdict of guilty, another is to ensure that a judge sitting alone does not arbitrarily acquit a guilty accused. Therefore, the philosophical question is whether the right to jury trial belongs primarily to the community or to the accused.</p>
<h2>The historical record</h2>
<p>The ancient tradition of the jury as the bulwark of democracy is too easily misunderstood as having existed always to safeguard the rights of the individual. History tells us otherwise.</p>
<p>Briefly, the Crown in the Middle Ages wanted a representative jury, but it wanted to define representativeness in its own image. And, the dilemma of definition still troubles the justice system today.</p>
<p>The reality is that through the Middle Ages, the justice system and the jury system that serviced it were manipulated to fulfil the Crown’s needs during successive eras of changing social conditions. As conditions changed through the epochs, so did the jury’s representative nature. But always it was tailored to suit contemporary needs of the Crown. We are still doing that, as attempts to reform the jury selection process attest.</p>
<h2>The chequered history of reasonable doubt</h2>
<p>However, we should be wary of investing the myth with more substance than it deserves. Take, for example, the hallowed principle of “beyond reasonable doubt.” Judges love to cite it (although with a great deal of caution when directing the jury) as the prisoner’s surety that the jury will only find him or her guilty if they know deep in their consciences that he or she “did it.” The problem is, “beyond reasonable doubt” is a principle with a doubtful provenance.</p>
<p>In the thirteenth-century England when “reasonable doubt” was born, it served a less noble purpose than that which we attribute to it today. Then, English people lived under both royal and ecclesiastical authority. They thought fearfully about the potential for eternal damnation if, sitting in judgment on another, they sent an innocent person to death. Legal historian James Whitman says, “For Christians living in an age of fear and trembling, any ‘doubtful’ act was full of danger”. Therefore, jurors did not want to convict, even when the evidence of guilt seemed overwhelming.</p>
<p>To overcome this timidity, we had the birth of a golden rule of law – satisfaction of guilt “beyond reasonable doubt.” However, unlike later when Blackstone uttered his famous dictum that “it is better that ten guilty persons escape than that one innocent suffer,” at it’s birth, the aim was to get more guilty verdicts by assuring jurors that God did not expect them always to be absolutely certain. It was a “rule bound up with the fate of those who sat in judgment.”</p>
<p>Beyond reasonable doubt allowed a bit of latitude in interpreting the biblical admonition “judge not lest ye be judged.” Judges dreaded their responsibility so much that they avoided entering verdicts if at all possible, or else sought to diminish their personal responsibility by embracing the old aphorism of safety in numbers, that is, through the unanimous decision of the jury.</p>
<p>In unanimity lay the spurious logic that God must have determined it to be so. If one has a tinge of guilt that perhaps the accused is after all innocent, the opportunity still lies to rationalise one’s personal guilt in the idea of collective guilt.</p>
<h2>A truly representative jury?</h2>
<p>There might have been an injustice; however, as Hannah Arendt says, when the collective does nothing to right an injustice, we can subsequently wring our hands and say “we are all guilty,” but, as she says, “when we are all guilty no one is.” That sentiment might be comforting in a new, “enlightened” age. Whether it stands scrutiny by omniscient God is unknowable — or unthinkable?</p>
<p>But in trying to maintain the truly representative jury in the mythologised form of it as a bastion of democracy in a diverse modern society, we might instead reveal a need to question the relevance of the myth. </p>
<p>We meed more research to assure all community members that the jury still delivers substantive truth in justice. In the meantime, the justice system must work with what it has got.</p><img src="https://counter.theconversation.com/content/8554/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Fisher 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>It is no surprise that Lloyd Rayney has chosen to have a judge sitting alone try the case against him rather than exercising his right to trial before a jury. Past media speculation, the high profile of…Eric Fisher, PhD candidate, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.