Having seen off God, Professor Dawkins turns his attention to another object of veneration, the jury, in the The New Statesman. He thinks that the requirement, as he sees it, of proof ‘beyond reasonable doubt’ for guilty verdicts, is at odds with what juries actually do when deliberating. The high standard of proof should leave no room for discussion, or for the forceful intervention of unusually persuasive jury members. Cases should speak for themselves. He says
“beyond reasonable doubt” is a hollow and empty phrase. If you defend the single-jury system as delivering a verdict “beyond reasonable doubt”, you are committed to the strong view, whether you like it or not, that two juries would always produce the same verdict. And when you put it like that, will anybody stand up and bet on 100 per cent concordance?
If you place such a bet, you are as good as saying that you wouldn’t bother to stay in court to hear the verdict, because the verdict should be obvious to anybody who had sat through the trial, including the judge and the lawyers on both sides. No suspense. No tenterhooks. There may be no practical alternative, but let’s not pretend. Our courtroom procedures make a mockery of “beyond reasonable doubt”.
He says he has been on three juries. Unless his experiences was from decades ago, he would have heard the Judge tell him that he could find the defendant guilty only if he was ‘sure’ of guilt. Judges have not used ‘beyond reasonable doubt’ to describe the standard of proof for a very long time – exactly because it invites pointless speculation about the percentage required. The requirement of being ‘sure’ is much easier to use as the standard of proof. We know when we are sure about something, without having to put a percentage on it; or more importantly, we definitely know when we are not sure. (In the bad old days there was a rural judge who gave the ‘fridge direction’: he would tell the jury that their decision was as important as other big events in their lives – such as whether to buy a fridge. Perhaps Professor Dawkins was in his court.) That was manipulative was patronising and unnecessary. Judges now do not qualify what is meant by sure. The official Crown Court ‘Bench Book’ (2010), which gives guidance for virtually every legal direction that a Judge has to give the jury, states that
The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. Further explanation is unwise.
If the jury are not sure they must find the defendant not guilty.
The point is that even people less smart than the Professor can be trusted to know whether they are sure of a defendant’s guilt, without a disquisition on what ‘sure’ means.
A jury trial is not a mathematical or scientific process. When deciding if some one has told the truth (the invariable key issue) we weigh up everything they have said for consistency and for reasonableness and for its fit with known facts about the case. All humans and their stories tend to be unreliable, even when they don’t deliberately set out to mislead. The criterion of judgment that makes the jury so valuable is human experience. A jury is not a computer which mechanically process information. A courageous jury will on (rare) occasions refuse to convict a technically guilty person if they think there is a gross unfairness about the prosecution: remember Clive Ponting’s alleged breach of the Official Secrets Act, and take heart from the jury that refused to convict William Penn, even when the Judge imprisoned them for failing to obey his directions to convict him. We should not eliminate the human dimension and the conscience verdict, for no appreciable gain. We have a Court of Appeal to deal with cases that have gone seriously wrong.
When entrusted with so great a decision, it is right that the jury should take all the time they need and scrutinise the evidence and arguments they have heard. 12 is a good number to even out differences between slower and faster individuals, men and women young and older, ethnically and socially diverse. In a long trial with masses of evidence you see them changing from 12 baffled-looking individuals at the start, into a powerful coalition of minds working together to answer the questions the trial gives them.
The process disgusts those who prize efficiency above all other virtues because it is slow, cumbersome and gives unpredictable results. But it has legitimacy. A group of citizens, not state appointees, decide whether other citizens have committed crimes. For all its imperfections and occasional failures (human, all too human), the jury system works well and has earned its place at the heart of our criminal justice system. It has always had powerful enemies and it is a shame to see the Great Debunker joining them.