The Scottish Verdict And Some Other Alternatives

The acquittal of Ewen Macdonald on Tuesday has reignited debate over whether we should adopt the “Scottish Verdict” as part of our criminal justice system.

I’m not a fan of Scottish innovations generally, particularly the kilt or the bagpipe. The sound of a highland bagpipe band can be most stirring, but when played badly the bagpipe is positively damaging to the health of those it is inflicted upon. If I am ever to face trial for murder, as Ewen Macdonald did, it will be because I went on a stabbing frenzy after enduring the searing noise of a lone bagpiping busker.

But the Scottish jury system deserves some consideration. Under Scottish law the jury has the power to deliver a “not proven” verdict, which is an acquittal but one which recognises that the jury were not convinced of the accused’s innocence.

Personally, I’d be in favour of giving juries more discretion to deliver verdicts that better fit their perception of the accused. However, I don’t see why we should have to limit ourselves to three verdicts like the Scottish do: guilty, not guilty and not proven. We can do better than that.

Let’s look at some possible additions to the current two options available to juries.

Guilty as sin

Criteria:  Under this verdict, the accused is so utterly, absurdly guilty that his or her continuing maintenance of innocence is an affront to all decent people.

Effect:  The effect of this verdict is that no appeal is allowed, and the accused’s lawyer is also to be tarred and feathered in a public place for allowing this insult to the justice system to continue in such a grotesque manner.

Quite guilty

Criteria:  Maybe the evidence isn’t quite all there, but we all know the bastard did it. Quite possibly the evidence is actually weak, but the guy’s body language shows he did it. Plus, the guy won’t even take the stand to testify in his own defence, which everyone knows means he’s a guilty son of a bitch, and don’t give me any of those legal niceties about the right to silence.

Effect:  Like a guilty verdict, but journalists, writers and former All Blacks will be permitted to make hay writing books about the case, and proclaiming the guilt or innocence of the person concerned.

Guilty because I don’t like him/her

Criteria:  For nailing someone the jury dislikes for no rational reason, such as the colour of their skin, their sexual preference, or their religion. For use when the evidence is weak but the accused must be punished for some offence they have caused to the jury.

Effect:  Like the Quite Guilty verdict, except that the accused is automatically entitled to one retrial in front of a more civilised group of jurors.

Not guilty but a villainous piece of work

Criteria:  Where the evidence doesn’t warrant a conviction, but where the jury aren’t convinced the accused is innocent of the crime, because the accused is such a nasty character.

Effect:  The same as an acquittal, except that the accused is to be taken to a public place, stripped down, and flogged before the news media.

Not guilty but there’s a stink about this chap that I don't like and I won’t have him in my club

Criteria:  Similar to Not Guilty but a Villainous Piece of Work, except that the accused is not quite as repulsive or loathsome.

Effect:  Like an acquittal, but the accused is barred from joining any golf clubs, church choirs, sports teams, or Rotary clubs for five years from the date of the verdict. The acquitted subject is also to be spoken about in whispers whenever the accused is amongst friends and work colleagues.

Not guilty and a pillar of the community

Criteria:  Where the accused is white, middle-aged and wealthy.

Effect:  An acquittal. The acquitted person writes a book detailing his experiences in prison awaiting trial, the most harrowing of which involved having to use 2-ply toiletpaper.

Not guilty due to being innocent, but with reservations

Criteria:  For use where it’s clear that the accused didn’t commit the crime, but where some moral flaw on the part of the accused (e.g. he/she is an ACT MP or likes UB40) prevents the jury from being overly sympathetic.

Effect: An acquittal and a declaration that the accused is innocent, but the accused still leaves the court with his/her head hanging in shame.

Not guilty due to being innocent, should never have been tried, has been the victim of a monstrous witch-hunt by the police and Crown, and is just like Jesus

Criteria:  For use whenever a celebrity is on trial.

Effect:  An acquittal, except that the accused must accept as many hugs, marriage proposals and autograph requests as the jury may demand.

Yuk Yuk Yuk Yuk Yuk!

Well nobody ever claimed the jury system was perfect. But even so…

A sexual abuse trial was aborted after a juror revealed he became aroused while listening to evidence from the alleged victims.

The elderly jury member was one of 12 people hearing a case in an Auckland Court this week about the sexual abuse of two teenage girls.

The Herald has been told the jury was sent home early on Monday after the man said he was distressed by what he had heard during the first day of evidence.

On Wednesday, Judge Mary Beth Sharp questioned the jurors about how they were coping.

It is understood she was told the male juror had confided to his fellow jurors that he had been sexually aroused by the victims' evidence but had coped on Tuesday by wearing a condom in the courtroom.

The man also told the other jurors his views on the trial in case he ended up being taken off the jury.

Having to be a juror in an awful case like that would be bad enough. But imagine if you were sat next to Granddad and he was busy grunting and gurning all the way through the trial. “This is powerful evidence, he must be really feeling it”, you’d be thinking. And you'd be so right.

I don’t know what puts my readers in their happy place, but I’ll warrant few would find much arousal in being in a courtroom listening to grim and painful testimony by two alleged abuse victims. Our elderly friend, however, is made of different stuff.

When he told his fellow jurors about his little issue, did he express his issue as a problem? Perhaps it was more along the lines of “cor blimey gov’ner, take a look at this big feller. He’s been standing like a statue all bleedin’ day. Just as well I’ve got me rubber coat on, eh? Ha ha!”

Sometimes I wish I could sit in a jury (my situation rules me out*), but then I hear a story like this and decide I’m perfectly okay with missing out on that particular experience.

All joking aside, this disturbed man’s fixation means the alleged victims have to give evidence all over again, because his behaviour aborted the trial. That at least is no laughing matter.

* No, it’s not because I’m behind bars. I’m a lawyer. Go on then, make the joke that it’s only a matter of time.

In The Jury Room

From the Dom Post:

The Court of Appeal has talked of jurors consulting a ouija board during a trial and leaving deliberations to have sex.

Another juror who left the jury room screaming that they would not go back was grabbed and drawn back into the room, according to three judges.

I often wonder what really goes on in the jury room. But I'm not eligible to serve as a juror because of my profession.

I always miss out on the fun.

More On That Acquittal

Here's a fact that many people seem unable to grasp about the acquittal of the "Waihopai Three":*

Jury verdicts do not have any precedent value.

It's quite a simple fact to grasp. Another jury could have just as easily found the trio guilty on all charges. There would be nothing stopping a jury from doing so if an identical case were being decided tomorrow.

* By "many people", I am referring to other people in the blogosphere (e.g. Kiwiblog). The verdicts are so fresh that the only hysterical responses to it I've seen are on the Internet.

Surprising Verdicts

The not guilty verdicts handed down to the Waihopai spy-base accused surprised me. I thought the case was desperately unwinnable for the accused.

But that was because I was thinking like a lawyer. Had a judge been deciding on the guilt or innocence of the accused I suspect the result would have been very different. Of course, jury trials don't get decided by lawyers or judges.

And that isn't a criticism of the jury system. The lawyer may shake his head in wonder, but juries exist to apply a "common touch" to the law. The jury represents the views of the community. The accused trio obviously convinced twelve members of the community that what they did was justified, and good on them for doing so.

However, the case raises some interesting questions. Will it empower protest groups to break the law? Or is this really just a one-off case whose facts were unique?

I expect many willl now call for the entire jury system to be abolished. Just like after the Bain case. We're a vindictive lot. We only ever complain when someone walks away.

UK Dispenses With Jury In Trial

After the David Bain trial the world seemed to go mad. It seemed everyone had an opinion on whether or not he'd done the deed. Except for me, it seemed - I still don't. A good number of people came to the conclusion that the acquittal was a monstrous injustice (perhaps forgetting the 13 years Bain had already served behind bars), and that we ought to do away with the jury system forthwith.

But there are some good reasons why we have a jury system for criminal trials. The notion of being tried by one's peers is an important one in our system. Judges may be legally trained, but like everyone they have prejudices. Judges tend to be drawn from the higher echelons of society, so may not always be the best judges of what goes on at the lower end.

And having someone in a position to determine what the decider of facts can consider may be important. Judges frequently make decisions on what evidence the jury may hear. If the judge is also to decide on the facts, how will a judge be able to put out of his or her mind the evidence they may have just ruled inadmissible?

In Britain this week, however, the first crown court criminal trial to take place without a jury in more than 400 years has just begun.

The background behind the case is highly unusual. The case involves four men accused of a £1.75m armed robbery.  But three previous jury trials have had to be aborted, following various illnesses, the loss of jurors, and allegations of jury tampering.

So the Court of Appeal has ruled that there will be no jury for the trial.

This ruling flies in the face of the principle that a person has the right to be tried before his/her peers, and is hugely controversial. But it remains to be seen whether this case is precedent-setting or a one-off.

In New Zealand the Crimes Act 1961 provides that everyone charged with an offence is entitled to trial by jury. There are some exceptions, where the accused may elect not to have a jury trial.

But until recently the right to dispense with a jury was the accused's prerogative. However, in 2008 the Crimes Act was amended so that the prosecution is now entitled to seek trial by judge alone where necessary due to the complexity or length of the case, or where there are reasonable grounds to believe the intimidation of jurors might occur.

So it seems we may be going in a similar direction.