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kevin donald · Joined: 29 Oct 2007 Posts: 196

The conviction of Brendan Dixon and Patrick Docherty was by majority of one with Colin Miller found not proven but in reality there was more evidence to convict Colin Miller than there was to convict the other men.

One member of the jury in the case took ill and could not finish the trial, Lord Hardie mentioned him in his summing up shaking his head with a wry smile saying that if his opinion had counted it would have been a not proven also for Dixon and Docherty

Its easy for members of the jury to duck their duty and try and get out of cases by pleading that they are ill im not saying this was the case in Kilmarnock though but it happens often in trials in Scotland

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Scotkaz

I had no idea this Majority matter dated back to the Sixteenth Century.

Seems a bit draconian then eh ?

Time for a review for sure.

Is it true that an 8-7 Majority would never be accepted in England ?

Angeline · Joined: 02 Oct 2008 Posts: 146

The English jury consists of only 12 jurors, and a maximum of 10 must vote one way or the other - there's no in between.

There has been talk, both in England and Scotland, of reducing the number of jurors (some suggestions have been as low as 6 jurors) - in Scotland, you could be sent to prison for life on the say-so of just 4 people!

I think it's David Barnheizer who refers to the jurors as "scapegoats" for the legal profession - if complex evidence later turns out to have "misled" the jury, the argument goes that lay people aren't clever enough to understand the evidence. If evidence at trial should, in reality, have been enough to exonerate the accused, the judges will claim it was "for the jury" to decided, etc etc.

Anyway, political changes over the last 10 years or so have made a complete mockery of trial by jury- the "close co-operation" between police, prosecutors, etc means that the trial has been constructed to virtually ensure a guilty verdict before it gets anywhere near a jury - it's why more and more defence lawyers are telling their clients to plead guilty - the case against them is virtually watertight in terms of law, truth be damned.

My other gripe used to be jurors not having to give reasons for their verdict. Then I found out that, in certain states in America, jurors were being instructed that a "reasonable doubt" had to be one they could articulate - literally, "give a reason for." Now there are fears that jurors are returning guilty verdicts for fear they will be asked to explain an acquittal.

"I don't think the evidence proved the case against him/her" could lead to questions about why they think that, and many are afraid they would not be able to explain in adequately legal or technical terms, so it's easier just to convict.

It really is time our legal system was dragged, kicking and screaming if need be, into the 21st century. Right now, we have no legal consensus on what "evidence" from, for example, mobile phones, computers, emails, etc actually is.

I know of one case where a man was convicted almost entirely on a series of deleted texts. Someone else told the court what these texts were supposed to have said (there is no other evidence apart from her word), the jury believed her, even though the timing of the alleged texts shows she has to be lying, and he got life.

The judge had no understanding of the workings of mobile phones, and seemed to proceed on the understanding that the "sent" time of a text was the same as the "opened" time of a text on the receiving phone, and failed completely to understand that texts showing as "read" could have been opened much later by police, when the guy was already in custody (which is what appears to have happened.)

The jury was presented with a "phone log" which they were led to believe was an official log from all of the phone companies involved. It wasn't - it was a log constructed by the police, and was missing several vital entries.

We simply haven't updated our legal system (or, indeed, our legal professionals) to keep up with advances in technology.)
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Pat A. Wertheim · Joined: 23 Apr 2007 Posts: 73 Location: USA

Being an American, I have never heard that a juror must be able to explain the "Reasonable doubt" in order to vote that way on a jury. Of course, there are 50 states and I doubt anyone is familiar with the rules in all 50. Still, I think such a rule would diminish a juror's right to decide and should be unconstitutional. That said, however, I can well believe that some individual judge or judges can tell the jury things that would never make it into law. In the trial of Alan McNamara in Manchester, for example, the judge instructed the jury something to the effect that if they believed the police to be liars, they should acquit Mr. McNamara; but if they believed the police to be honest, they must convict him. How could a defendant prevail if a jury of people who, in general, trust the police are given that as a formal instruction?

In the US, to the best of my knowledge, no jurisdiction has a majority verdict rule. All verdicts require a unanimous vote. If even a single juror holds out, the result is a hung jury and the prosecutor has to decide whether to go back for retrial. This leads to an occasional "stealth" juror who, for whatever personal agenda, allows him/herself to be seated on a jury with a predetermined verdict in mind and to hell with the evidence. The best known cases of those are the anti-death penalty activists who lie during jury selection in order to be seated, then hang the jury.

In essence, I like the majority verdict rule, but I'm not sure I like the specifics I have read about here. I would readily agree that 10-2 makes more sense than 8-7. It seems to me that a jury vote of 8-7 is proof in itself that there is "reasonable doubt."
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Angeline · Joined: 02 Oct 2008 Posts: 146

I found the references to the American cases in an article by Prof S Sheppard, University of Arkansas School of Law, entitled "Metamorphoses of Reasonable Doubt."

Discussing the way in which the meaning of "reasonable doubt" has changed over time, and refering to recent attempts to re-define it as "articulable doubt", he quotes instructions given to jurors in some cases:

Vargas v Keane "reasonable doubts as "a doubt for which you can give a reason if called upon to do so by a fellow juror in the jury room"

Humphrey v Cain "..a reasonable doubt is not a mere possible doubt...it is a serious doubt, for which you could give good reasons."

He goes on to say "the articulable doubt instruction is widespread, accepted in at least a dozen jurisdictions"

Sheppard does, indeed, argue that it is unconstitutional, but there are various legal arguments put forward (some have been accepted, others rejected) that it is not, in fact, unconstitutional, and merely a matter of clarification!!!

I no longer have the website address for this article, but I'm sure it'll be easy enough to find again - I'll post it when I get it.
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Pat A. Wertheim · Joined: 23 Apr 2007 Posts: 73 Location: USA

Angeline, please don't go to the trouble of looking it up for my sake. If Professor Sheppard thinks "at least a dozen jurisdictions" is "widespread," then he is either joking or he has lost touch with reality. There are hundreds of Federal court jurisdictions in the US, thousands of State courts, and literally tens of thousands of local courts. A mere "dozen" don't even count as a drop in the bucket. I agree with the sentiment, but I think Professor Sheppard was stretching things if he implied that any juror has ever been required to explain his/her "reasonable doubt." Asked, maybe, but required? I sincerely doubt it. Still, it is a way of helping define "reasonable doubt" so that jurors understand it is not the same as a vague feeling of doubt.
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Angeline · Joined: 02 Oct 2008 Posts: 146

I don't think this article referred to anyone being required to give a reason, the emphasis was more on the instructions leading to jurors fearing that they might be asked to give reasons.

I take your point about the thousands of courts, and I believe the article was only dealing with this instruction where it was given in serious cases.

However, even if it were allowed in only one dozen jurisdictions (the article doesn't stipulate how many dozens!), and was then used in just one dozen cases in each of those jurisdictions, we still have the potential for 144 miscarriages of justice, on the basis that the jury did not come to its verdict solely on the basis of the facts presented in court.

At its most innocent, it may be seen as a way of "defining" reasonable doubt, but, since the concept has never been defined on the basis that it is up to jurors, as judges of the facts, to decide what is or is not "reasonable," then starting to tinker with it may have far reaching consequences.

For example, a jury that is just not convinced that the evidence has proven the case for the prosecution might, under this instruction, begin to question whether or not that constitutes "reasonable" doubt, if they can't articulate exactly why they're not convinced. From what would, before, have been enough of a doubt to acquit (ie, just not being convinced), they may then shift position under the misunderstanding that their doubt does not meet the necessary criteria to be considered "reasonable."

I don't know exactly where I stand on this one - I just think it's an interesting area.
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Pat A. Wertheim · Joined: 23 Apr 2007 Posts: 73 Location: USA

Interesting, it is. You touch on the idea that while articulation may be a way to help pin down reasonable doubt, it might be too easily misunderstood or it might be intimidating to some jurors. Good points.
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Angeline · Joined: 02 Oct 2008 Posts: 146

Funnily enough, I read another article talking about juries in New Zealand, and the jurors there complained that there was too much confusion about what consitituted "reasonable" doubt, and they weren't given enough guidance!!!

It's one of those "taken for granted" areas - we all hear the term "beyond reasonable doubt" and think we know what it means, but for the vast majority of us, we are never actually asked to check our understanding or, harder still, apply the concept!
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John · Joined: 05 Nov 2009 Posts: 5

How many people in Scotland are serving extended sentences on the basis of majority verdicts?

Can it be justice that 8 jurors can send someone to prison whilst the other 7 have a siesta?