Lay Jobs within the Legal Sector
Decision Makers:
Magistrates
Tribunal Members
Professional judges only account for around 10% of the judiciary.
95% of criminal cases are heard in a magistrates court.
Advice Givers:
Paralegals
Mediators
Chair of the Judicial Appointment Commission
Personal Support Unit
Participants:
Litigants
Spectators
Witnesses
Jury Duty
The Jury:
History of the Jury:
Use of the jury is first mentioned in 1215: the ‘legal judgement of his peers’. [1] This shifted the process of the trial away from ordeal (combat, fire etc.) and to an exchange between parties. Ordinary people (though then the gentry) decided over cases based on their own local knowledge.
Until the 18th century the jury had a very active role in trial. They were allowed to dispute evidence, challenge witnesses and use personal knowledge of the case.
By the mid-19th century, the selection for jury duty was opened to the wider general population. During this time the lawyer profession rose significantly, making the role of the jury more passive.
Bushel’s Case led the jury to be the sole trier of fact. In the case, the judge wanted the jury to come to a conclusion and threatened to lock them in the court until they came to a verdict he agreed with. On appeal, it was established that the judge could not interfere with the verdict of the jury.
Juries Today:
Randomly selected from the electoral roll.
12 are usually called.
Instructed to reach a unanimous verdict, but a majority can be accepted.
Used in Crown Court criminal trials.
Limited use in other types of civil and coroners court trials.
Statistics [2]:
< 1% of criminal trials have a jury.
< 1% of sworn juries are discharged.
30% of those who pleaded not guilty are acquitted by the jury.
96% of jurors found the experience ‘very interesting’ or ‘fairly interesting’.
Opinions on the use of the Jury:
The use of a jury is highly contested.
For:
Against:
Using a jury does not ensure a legally correct outcome.
Jurors are not specialists in understanding the legal background of the case. They have not had legal training and certain cases may therefore be too complex. However, this too may be a virtue.
Jurors may have personal biases or prejudices.
Jury trials are costly as the process is long and complex.
A jury has the power to rule contrary to the law.
Civic Function of Juries:
Transparency:
Jurors get to see the justice process.
A jury’s deliberation is not made public. Due to this, it could be argued that the jury actually makes the law less transparent.
Legitimacy:
Using a jury allows for the input of popular beliefs from the public. A jury promotes the democratic quality of justice by incorporating public ideas about both justice and fairness. [5]
Lawyers typically take a positivistic approach to the law, whereas a jury is more likely to align morality and law.
‘Although [lawyers] value liberty, they generally rate legality as far more precious; they are less afraid of tyranny than of arbitrariness, and provided that it is the lawgiver himself who is responsible for taking away men’s independence, they are more or less content’ [6]
Diversity:
A jury is more likely to be representative of the population due to random selection process than the professional judiciary.
‘The aristocracy [who make up the majority of senior judges] still has instincts and inclinations peculiar to itself.’ [7]
Education:
Jury duty gives the public experience of how justice is enacted and allows them to take responsibility for the justice that is served. If a significant number of lay people understand the justice system, they can better apply it to their lives.
A jury is ‘one of the most effective means of popular education at society’s disposal’. [8]
Regulation:
The jury ensures oversight of how justice is enacted by ordinary people. This makes the justice system ‘Republican’ in the sense that it puts power in the hands of those who are ruled. [9]
Jury Nullification:
Even if a jury finds guilt beyond reasonable doubt, they are still not required to convict. Nullification occurs when a jury return a ‘not guilty’ verdict despite their belief that the defendant is guilty of the crime they are charged with. The jury nullify the law because they believe it is either immoral or wrong in the circumstances of D.
Argument:
There are ongoing arguments as to whether juries should be allowed to nullify the law and whether they should be informed of this right.
Reasons for Nullification:
Prevents miscarriages of justice.
Saves good people from bad laws – the people have a check on the law.
Promotes the law to change and stay in line with current norms.
Provides feedback to lawmakers.
Allows for a measure of flexibility in the application of the law.
Reasons against Nullification:
Can lead to guilty people being acquitted.
Potentially biased.
Too much power to the jury.
Lack of transparency.
Outcome of trial too unpredictable.
Examples:
Capital Punishment:
Theft with a value over 1 shilling was a capital offence in the 19th century. Juries often found that the defendant had stolen but stated that the value was less than 1 shilling. This ensured that the criminal was punished but not executed.
‘pious perjury’ [10]
Acquittals:
A jury acquitted Clive Ponting, a civil servant who was convicted of leaking information contrary to the Official Secrets Act. Moral Justice.
A jury acquitted Extinction Rebellion protestors in 2021.
Racially Motivated Laws:
‘If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult…if you exercise [this power], you become part of a proud tradition of American jurors who helped make our laws fairer’ [11]
Jury Comprehension:
Juries do not have any specialist training. When juries strike it is often an indication that the case is too complex for them to resolve.
The Jubilee Line Corruption Trial focused on a complex fraud case. After 2 years at trial the jurors went on strike, causing the case to collapse. Evidence suggests that the jurors understood the complexities of the trial, but it was too lengthy. The trial was a waste of public money, totalling at around £60m.
Statistics [12]:
Over 90% of jurors said that it was ‘not at all difficult’ to understand the evidence in the case.
90% of prosecution and defence barristers think that the majority of jurors understand the evidence.
Over 90% of jurors thought the jury as a whole understood the evidence.
17% of juries included one or more members that either ‘only a few understood’ or ‘none of them understood’.
Over 50% of jurors perceived the judge’s directions as easy to understand.
31% actually understood the directions fully in the legal terms used.
Younger jurors are better at understanding legal instructions. Comprehension of directions declined as age increased.
Bias and Accuracy:
Since juries are not required to giver reasoning for their verdict, there remains debate as to the legal accuracy of the verdict and whether the jurors were biased.
The court and public are prohibited from knowing what happens in the deliberation room, so other means need to be used to research bias. [13]
Mock Trial Studies [14]:
No evidence of discrimination in all white and mixed juries against BME defendants has been found.
Women jurors more likely to convict pre-deliberation, but not post-deliberation.
Any bias that jurors admitted to in their survey was mediated by deliberation.
Deliberation reduced bias.
Accuracy Studies [15]:
Judges agreed with the jury’s verdict around 75% of the time. In cases where they disagreed, the jury were 7 times more likely to be lenient than the judge.
87% defense solicitors, 85% of judges, 83% prosecutors, 84% defense barristers, 78% police thought jury verdict ‘understandable in the light of the evidence’.
Democracy:
The jury’s decision is legitimised by the idea that the constitution respects the people.
‘I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.’ [16]
After participating in a trial, jurors are more likely to vote, volunteer, attend local meetings, engage in local politics and have confidence in the justice. [17]
‘in a community in which lawyers hold without question that a high rank in society which is naturally their due, their temper will be eminently conservative and will prove antidemocratic.’ [18]
‘Democratic government favours the political power of lawyers.’ [19] Therefore the jury act as a check / limit on this power.
Future of Juries:
Like the vanishing trial, there is a vanishing use of the jury.
Most civil cases do not have a jury where they previously would have.
A larger proportion of cases are in magistrates’ courts, where the jury cannot operate.
Other jurisdictions are introducing jury trials.
Resources:
References:
[1] Magna Carta (1215) [2] See Slides. [3] Patrick Delvin, Trial by Jury (1956) 164 [4] Simon Hoggart, ‘juries are smarter than lawyers suspect’ The Guardian (22 February 2013) [5] Alexis De Tocqueville, Democracy in America (1835) [6] Alexis De Tocqueville, Democracy in America (1835) [7] Alexis De Tocqueville, Democracy in America (1835) [8] Alexis De Tocqueville, Democracy in America (1835) [9] Alexis De Tocqueville, Democracy in America (1835) [10] William Blackstone [11] Paul Butler, ‘Jurors Need to Know That They Can Say No’ The New York Times (Washington, 20th December 2011) [12] Zander and Henderson, Crown Court Study: Understanding the Evidence (HM Stationary Office 1993); Cheryl Thomas, Are juries fair? (Ministry of Justice 2010) [13] Juries Act 1974 [14] Cheryl Thomas, Are juries fair? (Ministry of Justice 2010); David Tait, ‘Deliberating about terrorism: Prejudice and jury verdicts in a mock terrorism trial’ [2011] Australian and New Zealand Journal of Criminology 387-403 [15] Harry Kalven and Hans Zeisel, ‘The American Jury’ [1967] Washington and Lee Law Review vol 24, issue 1, art 18; Zander and Henderson, Crown Court Study: Understanding the Evidence (HM Stationary Office 1993) [16] Thomas Jefferson (1789) [17] John Gastil (2010) [18] Alexis De Tocqueville, Democracy in America (1835) [19] Alexis De Tocqueville, Democracy in America (1835)
Cases Mentioned:
Bushel’s Case (1670) 124 E.R. 1006
R v Mills and others (2005) ('Jubilee Line Corruption')
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