THE TRIAL – A BBC LOOK AT THE JURY SYSTEM



In May 2017 British television broadcast a five part series about a fictional murder case called The Trial. The witnesses were all actors. The judge and the barristers, however, were actually professionals in the British legal system. The judge was an experienced member of the bench and the two barristers well known barristers. The jury was made up of 12 members of the British public. The jury was aware that actors were involved as witnesses and that the case was fictional, but were asked to treat the case is if it were a real trial.

The case involved a man on trial for strangling his estranged wife. Jurors heard evidence that he was a volatile person. His former wife testified she divorced him because he had slapped her. The deceased sister and a friend recall him losing his temper and striking the deceased on occasions. The defendant had found her body but claimed that she was already dead when he arrived. The defense rested on the suggestion that the deceased boyfriend, she had become involved with during the estrangement, was likely responsible. He had a vague story about his whereabouts at the time of her death. The question was whether there was enough evidence, beyond a reasonable doubt, to convict.

The camera records discussions among the jurors during recess while the trial was going on, conferences between the barristers and their associates, reactions of jurors personally to evidence they heard and the deliberations in the jury room about the case when it was finally submitted to them. It records witness examinations and final summation by the barristers.

While brief, is interesting to observe the direct and cross-examination as well as summation style under the British system. One is also struck by the formality of the judge and barristers with wigs as well as their black gowns. The civility between the judge and counsel illustrates a stark difference to the often bad manners of American lawyers.

Watching and listening to the jurors deliberate at the end of the case is educational. After some deliberations,the jury reported it was unable to agree. The judge instructed that if they were unable to have a unanimous verdict, their verdict could be 10 of the 12 jurors. In the end, they were not able to agree. Four women found the defendant guilty. The other people, including every man on the jury, found him not guilty.

There was no voir dire and the jurors were selected from a list. The importance of voir dire is very apparent in jury deliberations when we learn the background of the people. Some would likely not have been allowed to serve had the information been known. During the discussions by the jurors about their verdict we see how past significant experiences dictate one’s attitude regarding issues they have to decide. People search for a similarity of such experiences with their current issue in order to help them reach a decision. One also observes in the discussion how personal values influence decisions. We see people responding to group dynamics and leaders vs followers in the deliberations.

My general reaction to the trial itself was that in this particular fact pattern the defense summation focused more on evidence pointing to the boyfriend rather than the law protecting the defendant. By that I mean the defense in this case was reasonable doubt. The defense barrister approached this in the brief summation by talking about elements which point to the boyfriend rather than the law regarding the legal principles involved for the defendant.

What do I mean by that? Well as a trial lawyer who did not have the criminal practice my reaction was that I would emphasize constitutional legal protections (1) The law presumes the defendant to be innocent. Before the prosecution offers any evidence or the defendant provides evidence, the jury must presume that this man is an innocent person being accused of a crime he did not commit. We start with the presumption this is an innocent man on trial for a crime he is not responsible for. (2) the burden of proving the case against the defendant is totally on the prosecution. The defendant can remain silent throughout the trial and offer no evidence whatsoever because it is totally up to the prosecution to provide enough evidence against him to remove any reasonable doubt. The defendant has no burden of proving anything. And (3) the principal issue in the case is not whether the defendant committed this crime. The principal issue in the case is testing whether the prosecution has presented sufficient evidence which leaves no reasonable doubt that the defendant is guilty. The jurors role is not to determine guilt or innocence, it is to measure the extent and quality of the prosecution’s evidence offered to remove any reasonable doubt about guilt. Their role is not to solve the case as to who committed the murder. The prosecution made that election when they charged this man with murder. The jurors role is instead to measure and weigh the evidence the prosecution chose to provide the jury. On a scale of justice does this evidence tip the scale to the point that there is no reasonable doubt about guilt?

It may seem to you that our law means that a guilty person might not be found guilty because the proof is less than proof beyond a reasonable doubt. You would be right. Our civilized system of justice recognizes this risk, but the other side of that concern is that an innocent person could be convicted and sent to prison. Our system of justice believes that it is better to risk a guilty person going free than an innocent person being imprisoned.

That means that as you sit there you may be strongly suspicious that this man committed the crime for which he is charged. It may appear to you that he is probably the culprit. You may think it is unlikely that anyone else was responsible. However, unless you can also say that you have no reasonable doubt about his guilt solely from the evidence offered in the case by the prosecution can you vote guilty.

I recommend you watch the program.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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