Realpolitik (see also Political realism; from German: real “realistic”, “practical” or “actual”; and Politik “politics”) refers to politics or diplomacy based primarily on practical considerations, rather than ideological notions or moralistic premises. In this respect, it shares aspects of its philosophical approach with those of realism and pragmatism.
"Manchmal werden Leute den Wald vor lauter Bäumen nicht sehen."

Wednesday, 4 January 2012

031: Is jury service really 'stuck in the dark ages'?

Juror Joanne Fraill has recently conducted an interview with the Manchester Evening News regarding her recent imprisonment for contacting a defendant on Facebook. Fraill was sentenced in June to 8 months by a judge at the High Court in London for her contact with Jamie Sewart and also admitted to conducting an internet search on Ms Sewart's boyfriend Gary Knox, who was a co-defendant in the case during which time the jury had still been deliberating.

Realpolitik looks at the Fraill case, and questions whether jury service in its current form is an appropriate paradigm with which our judiciary should operate.

Fraill's comments in the M.E.N.
Source: Manchester Evening News, January 3 2012

While Fraill's intentions may have been innocent in contacting the defendant Sewart after a ruling upon her had been made, her actions resulted in the partial collapse of a still-running drugs trial. Surely regulations behind contacting other individuals involved in such cases are explained at the onset of proceedings? Therefore if so, we can assume that this woman would have been aware that her actions in contacting Sewart, while harmless in intention, were prohibited.

In this sense her claims that jury service is  "stuck in the dark ages" are not the issue, as regardless of whether she personally agreed to the rules or not she had been expected by the courts to abide by them during her service. Are her comments therefore a case of 'sour grapes' by a woman who had broken key rules and had been caught out - indeed she mentions that while others had done similar actions she had been used as an example - or does this case shed light on the issue of jury service in its present form as a means of trial and conviction?

While I am not entirely convinced that an imprisonment of 8 months is an adequate response to her actions, it is difficult to ascertain the significance of her actions and their effects on the collapse of the trial without knowing the details behind the case itself.

Optional vs Mandatory

Fraill has also commented suggesting that jury-service should no longer be mandatory, and that opt-out systems should be made available. Here we reach a difficult divide. Whilst it is understandable that the ability to opt out may be logistically prohibitive in that any number of jurors refusing to participate would unnecessarily delay proceedings, does forcing an individual to accept and attend jury service ensure the full co-operation and engagement with their role, something a truly fair and democratic judiciary system requires? Perhaps therefore an 'opt-in' system here would be more appropriate. Indeed an e-petition on madatory jury duty has been created in an attempt to spark government debate such a cause.

On the other hand, we can argue that allowing an 'opt-in' system would result in a significant decrease in the number of people eligible to be called up for jury duty, to the extent that people may be repeatedly called for service. This may over an extended period result in the total number of juries used unrepresentative of the country's population. Therefore the notion that the jury is assembled from 'a collection of your peers' becomes void. When locality and a fair radius within which potential jurors may be expected to travel to reach the court is factored into the equation, then this would further reduce the list of people from which a jury may be collated. In this sense, it makes more sense for jury duty to remain mandatory.

The Jury Itself

However there are wider issues regarding trial by jury. Trial by jury was abolished in India in 1960 - shortly followed by Pakistan - on the basis that jurors are too susceptible to media and public influence and that therefore a truly objective decision was not humanly possible. Psychological research into the susceptibility of eyewitness testimony sheds light on the fallible nature of human memory.

In the Stephen Lawrence trial resolved this morning when sentence is given, 18 years will have passed between events and decision. While DNA evidence remains useful - acknowledging accusations of cross-contamination - any eye witness reports may be highly susceptible to manipulation and distortion either by leading questioning, or the effects of time.

The following video illustrates these aforementioned issues. Whilst this is not an actual scientific experimentm it nevertheless demonstrates the fragile and malleable nature of human memory and the impact that such deficiencies may have on the accuracy of eyewitness testimony, evidence which the jury may find significant when debating a decision and drawing their conclusions.

Furthermore there are issues regarding the assumption that all jurors fully understand the statistical or scientific data upon which a prosecution or defense may lay their case. One example is the CSI Effect, whereby the exaggerated portrayal of significance or explanatory power of certain types of evidence leads to jurors either requiring more of these types of evidence to form a decision, or placing more weight during deliberation on these types of evidence in comparison to circumstantial evidence, than is perhaps deserved.

Misinterpretation of statistical evidence has previously led to wrongful conviction, suggesting that issues such as the CSI Effect hold some significance. One example as documented in a paper by Margaret Williams on Roy Meadows' interpretation of conditional probability demonstrates that the misinterpretation of statistical evidence may potentially hold dire consequences for those in defense.  Meadows had previously proposed the condition Munchausen's syndrome by proxy which claimed a pattern of behaviour in which care-givers may deliberately exaggerate, fabricate and/or induce physical, psychological, behavioural, and/or mental health problems in others. There is debate as to whether MSbP can be classed as a mental illness.

Over 200 women in the UK in the last two decades have been convicted of either murder or mistreatment of 1 or 2 of their infants who died without known cause in sudden infant death syndrome, or what is commonly referred to as 'cot death'. Meadows claimed that about 1/8400 children would die of cot death in any given year, and that this reduces to 1/1600 for two children, and 1/73m for three children. These figures have been criticised as they assume each occurrence of fatality is independent of the other, when in fact cot-death rates appear higher in families with genetic susceptibility - withheld from original defences -, where one carer is a smoker, and among babies sleeping face down. Meadows' key error was to assume the independence of each event, and his failure to recognise that in the case of cot deaths that the target is moved by selecting a family with two such fatalities for investigation.

It was due to Meadows' initial reports and the resulting misinterpretation of statistics by the jury that Sally Clark was imprisoned for the murder of her two sons in 1999, a conviction which was later overturned in 2003 by the Court of Appeal. Clark was later found dead as a result of acute alcohol intoxification in 2007, which her family claimed was due to her inability to cope with the false conviction, though coroners countered that no evidence pointed to intended suicide.


This raises key questions over the use of jury in criminal conviction, and would add weight to Fraill's comments that jury service and the way the courts operate currently are both outdated methods. Firstly, if indeed the jury is such a fallable paradigm, then perhaps the questions regarding 'opt-in' and 'opt-out' are academic? This begs the question of a suitable replacement, and in any democratic society even minor change should, in my opinion, be put to referendum and vote. - Sadly our poor voter turnout percentages for even general elections would likely prohibit any such movement. - On the other hand, is a court without the presence of a jury of peers really an appropriate solution in a democratic society? If not then we are faced with a difficult compromise, one which may lead as a by-product to further repetition of cases such as Joanne Fraill.

What are your thoughts? Join the debate.

- Realpolitik -

1 comment:

  1. My experience of jury service has left me with a jaundiced view of the system. People say that they feel privileged to 'serve', and that's how I felt when I received my summons. However, the experience left me feeling soiled, and I certainly do not regard it as a privilege.

    For a start I was over-awed and weighed down with the heavy responsibility of determining whether someone should lose their liberty based on the evidence presented in court. This was the feeling of nearly all those with whom I 'served'.

    Secondly, although I'm quite capable of making a decision as to what t.v. to buy based on evidence and others opinions, when it comes to deciding the guilt or innocence of someone based on such convoluted evidence as presented in court (and even sifting truth from fiction) the situation is more difficult - despite having 11 others to consult with.

    Then there is the emotional trauma. No one can really divorce themselves from their own prejudices be that race, creed, colour, environment, education etc. To do that requires practice, and is not a skill that someone suddenly develops when they get their summons to attend jury service.

    The system is not perfect, but I believe there is a way of making it better, and that is by having professional jurors - people who are specifically trained to examine evidence objectively in court; who can leave their prejudices outside; who can distance themselves from the media hype and political pressures; who can understand the complexities of cases and arrive at a more just verdict. At present all we have is a bunch of amateurs passing judgement on people who, in may cases, cannot be regarded as their 'peers'.

    If this is not an option, then perhaps a half-way solution could be that just one such professional juror sit on the jury with the amateurs to facilitate deliberations.

    When I entered that court for the first time to do my jury service I had no idea what it would be like. It would have helped me greatly if I had something more than just the literature that came with my summons. I guess a lot of people feel that way, and maybe even feel that it's the worst thing they had ever done because of that.

    Fear of the unknown, the awe and gravity of the occasion is no atmosphere in which to deliver a verdict that will affect another individual's life for ever.