What can we learn from published jury research?: findings for the criminal courts review 2001

• Author: Penny Darbyshire
• Position: Reader in Law, Kingston University
• Pages: 71-88

WHAT CAN WE LEARN FROM

PUBLISHED JURY RESEARCH?:

FINDINGS FOR THE

CRIMINAL COURTS REVIEW 2001

PENNY DARBYSHIRE,*

WITH RESEARCH BY ANDY MAUGHAN AND ANGUS STEWART

Summary: Contrary to popular myth that “there is no jury

research”, there is a mass of work published throughout the

world and the English legal system could learn a lot from it,

in reshaping the jury system. Here I summarise findings

made by a Kingston team, commissioned by the Criminal

Courts Review, to analyse empirical research and personal

accounts of jury service and extrapolate lessons for the

English legal system.

I. INTRODUCTION

On commencing the Criminal Courts Review, Lord

Justice Auld asked whether s. 8 of the Contempt Act, 1981

should be repealed so as to permit research into the jury and

asked what we were likely to find if such research were

carried out. His call follows the clamour for the repeal of the

section to enable interviews to be carried out on “real”

English and Welsh jurors. Many legal commentators here

wrongly believe that s. 8 put a stop to all useful jury research.

When new work is published, such as that conducted for the

New Zealand Law Commission from 1998, it is received as a

revelation, as if it were the only such work, oblivious of the

fact that a search in sophisticated legal and or criminal justice

English language databases will reveal 3-5,000 pieces of jury

research or commentaries thereon. I studied the American

jury in great depth, while teaching at the University of

71 Judicial Studies Institute Journal [3:1

* Reader in Law, Kingston University. First published in the Criminal

Law Review [2001] pp. 970-979 and reprinted by kind permission of the

publisher, Sweet & Maxwell Limited.

California at Berkeley, in 1992-3 and became aware of this

mass of work, mostly by social scientists and experimental

psychologists, from the U.K., the U.S.A., Canada, New

Zealand, Australia, Spain and Russia. Consequently my

response to Auld L.J.’s questions was to suggest that before

we expend British taxpayers’ money in re-inventing the

wheel, we should attempt to summarise and examine this

mass of existing empirical data to see if there were lessons

we could learn for the restructuring of English jury

composition and the trial process.

The task almost overwhelmed us. We concentrated on

what seemed, from the literature, to be the most cited and

academically respected pieces. We excluded work of no

relevance, such as that applicable peculiarly to civil juries.

We omitted the mass of work produced by the multi-million

dollar American “trial support” industry, which feeds

information to trial lawyers selecting jurors in the elaborate

American “voir dire” system and devising trial tactics,

because much of this is not academically respected. We

completed the task in one month in autumn 2000, for its

delivery to Auld L.J. Some significant items from 2001 have

been added but we do not pretend to present an exhaustive

survey. Sources are not footnoted here, nor is our extensive

bibliography attached.1

We examined research on jury composition and the

representativeness of jury panels; how juror’s characteristics

affect deliberation and the verdict; the mental process of the

individual juror; the dynamics of deliberation; the timing and

effectiveness of instructions, verbal and written; tactics to

make jurors less passive, such as asking questions and

2003] What Can We Learn from Jury Research? 72

1 These can be obtained from the full report, “What Can the English

Legal System Learn from Jury Research Published up to 2000?”,

accessible online via the Criminal Courts Review website:

www.criminal-courts-review.org.uk or as the hard copy document,

published by Kingston University and available from

p.darbyshire@kingston.ac.uk.