For many of us, our impression of juries and how they work is likely to be based on a combination of 12 Angry Men and The Good Wife. Relatively few people actually get to experience jury service directly and witness the justice system in practice. Still fewer may be aware that the jury model we see most commonly on US and UK television differs substantially from the system in Scotland - and not only in the glamour of key players or the pithiness of the evidence presented. In fact, the Scottish jury system is unique in comparison with other English-language systems in three key respects. Scottish juries:
- Consist of 15 jurors rather than 12
- Are required to reach a simple majority (i.e. 8 out of 15), rather than a unanimous verdict
- Choose between 3 verdicts – uniquely, Scottish juries are able to return a verdict of ‘not proven’, in addition to the standard options of guilty and not guilty.
Today marks the publication of a major independent report that seeks to understand what impact these unique features have on jury decision-making. In other words, how does jury size, the majority required, and the number of verdicts available affect what verdict jurors arrive at, and the process by which they get there? The research was led by Ipsos MORI Scotland, with academics from the Universities of Glasgow and Warwick, and commissioned by the Scottish Government.
There will, rightly, be much discussion about the findings and what these mean for any potential future changes to the Scottish jury system – not least with respect to not proven. There is an ongoing debate about the impact of this verdict on outcomes for sexual offence trials, in particular. However, as a card-carrying research nerd, I think the methods are just as interesting; it’s certainly the most unusual and challenging project I’ve had the privilege of working on. So here are some brief reflections on how we attempted to get ‘inside the jury room’ to answer our research questions.
What happens in the jury room stays in the jury room
At this point you may be thinking ‘surely you filmed some actual juries or asked some actual jurors how they went about their role?’. That would indeed be the most obvious way of answering our research questions. But in most countries, that would also be illegal. In Scotland, the Contempt of Court Act 1981 prohibits the questioning of jurors who have participated in real criminal trials about their discussions during deliberation. Given this restriction, we set about trying to create as realistic a ‘mock jury’ experiment as we could. Running a mock jury involves recruiting members of the general public, asking them to act as jurors, watching them do so, and asking them questions about the process. There are numerous such studies around the world, but we had the privilege of constructing both the largest and arguably most realistic mock jury study ever run in the UK.
The mock jury
Over the course of several months in 2018, 863 members of the public (selected to represent the profile of adults in Scotland eligible for jury service) participated in 64 mock jury exercises in Edinburgh and Glasgow. The 64 juries varied in terms of: the number of jurors (12 vs. 15); the number of verdicts (i.e. whether not proven was available); and the majority required (unanimity or simple majority). Each mock juror: watched a one-hour fictional trial film (either a rape trial or an assault trial); completed a brief questionnaire to collect their initial view on the verdict; deliberated in their jury for up to 90 minutes; and then, after their jury returned a verdict (if able to do so), completed a final questionnaire, covering their ultimate view on the verdict, their views on the deliberation process, and their understanding of the ‘not proven’ verdict.
A unique experience
I could write several blogs on how we approached each element of this process. Filming the two fictional trials involved discussions I never expected to be having as a researcher (about wig fittings, whether anyone would spot members of the research team blurred out in the background of the film in the public gallery, and whether it mattered that the actor playing the accused had grown a beard since his audition tape). The project as a whole involved a massive amount of time, effort and expertise from more people than I’ve ever worked with on a single project – from our Judge, Lord Bonomy, to the security guards working overtime at the High Court in Edinburgh every Saturday for a month while we were filming, to staff at the mock jury venues who let us rearrange all their furniture to create our ‘jury rooms’. And of course, from our mock jurors themselves, who gave up four hours on a Saturday to help us answer these important questions. Of course, our mock jurors were all aware that they were not deciding on a real verdict in a real trial - although we took numerous steps to mitigate the impact of this (discussed in the report), it is an unavoidable limitation of mock jury research. However, the patience and seriousness with which the vast majority appeared to take the task they were given was evident when we reviewed the 50+ hours of footage – each jury deliberation was reviewed by two researchers independently of each other. I hope that some of them will read the findings with interest, and that they enjoyed the experience of participating as much as we enjoyed the process of running them.
- If you want to know more about what we found out, then read the full report here (only 60 pages and an excellent read!).