- So, this is a new series. It's kicking off this academic year. And when I was asked to think about it, I thought, let's reimagine the law. Can we do better? So, I'm going to kick off this lecture series with a simple question. Do we need juries? For my whole career, I've practiced law in England and Wales, another Commonwealth jurisdictions, which use the English common law. Juries are often thought as the very essence of the institution of English law, just as the investigative magistrate is in French law. And jury trials are, well, how can I put it? A constant presence in our literature, in popular culture. Sorry about the feedback. I dunno why that's happening. I'm sure they'll fix it in a moment. But if you think about it, most members of the public, even those who've never come into contact with the legal system, will have some basic idea of what the jury is. And the institution of the jury has often been romanticized(attendee coughing) as a part of our national mythos, the right to trial by jury, the right to trial by one peers."Twelve Good Men and True" has historically been held up as a safeguard of an English man's liberty. Many defenders of the jury trial often quote those famous words in clause 39 of the Magna Carta. There's a copy of the Magna Carta. These words, "No free man shall be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled or deprived of his standing or in any other way, nor shall we proceed with force against him or send others to do so, except by the lawful judgment of his equals or by the law of the land." In fact, however, the use of jury trials in England and Wales today is rather limited. Juries today principally are used in criminal cases, but juries only decide a small proportion of criminal cases. Defendants charged with minor offenses, which we call summary only offenses, are often dealt with by magistrates. And defendants charged with more serious offenses, those tribal either way, can choose between magistrates and juries. And it's only in the most serious of offenses, indictable offenses, that there is a right to a trial by jury in the Crown Court. But even then, a large number of these indictable offenses are not in fact, dealt with a jury, because for instance, a defendant may well plead guilty prior to trial. In short, thousands of people every year are arrested, charged, and convicted without ever seeing a jury. Although juries were historically used in civil trials in England, the use of civil juries stays extremely limited. Many English civil lawyers go their entire careers without ever appearing before a jury. However, as a large proportion of my practice has involved actions involved in the police or deaths in custody, I have more experience of civil jury trials than most other lawyers do. Coroners, as I've mentioned in England and Wales, can summon juries for inquest. Most inquest take place without a jury. But a jury's required in certain cases, and I touched upon this in my first series. And if you haven't seen it, you can get it on, catch up. The task of the juries in most cases tend to relate to cases where principally, the death has been caused or contributed to by the actions of state agents, principally the police. The task of a coroner's jury, of course, is very different from the task of a jury at a criminal trial or civil trial. And in many ways, even more challenging. And as I said, I talked about coroners, juries in my previous lecture series. And we're not going to be looking at coroners today. I should mention at this stage that the Scottish legal system also uses juries, although they are numerous important differences between Scottish and English practice. And in this lecture, I'm only going to be concentrating on the English system. When we look beyond the UK to other parts of the Commonwealth, we see that the use of jury trials is inconsistent. Some Commonwealth jurisdiction such as India, Singapore, South Africa, have abolished juries altogether. Others, Hong Kong, only use them in very limited number of cases. And Australia. And however, in the Commonwealth, Caribbean, where I also practice, trial by jury continues to be used for the most serious criminal cases. The country associated, most associated with jury trials today is the United States where jury trials are used for both in criminal and civil cases, both at a federal and state level. The United States has retained a much wider use of jury trials than England, although practices vary from state to state. Importantly, American jury trials differ from English and most jury trials in significant ways. And we'll be exploring some of those ways later in this lecture. Finally, I should acknowledge that in some civil jurisdictions such as France, they do have a form of trial by jury. But as an English lawyer, I'm going to concentrate on common law juries. Now, jury trials are controversial subject. You speak to lawyers, many people are deeply attached to them as a safeguard of liberty and a bull walk against state power. However, others are skeptical. In recent decades, much of the criticism of juries is concentrated on the questions of bias. And many people are understandably concerned that when guilt or innocence are decided by 12 members of the public who can bring their own prejudices to the table, that is of concern. They treat juries, it's been said, some defendants less favorable than others. For example, you might reasonably expect or assume that an all White jury might harbor some biases against a Black defendant. We'll explore that later on. In fact, however, as we see, the evidence paints a mixed picture as to whether jury verdicts are racially biased or not. There is some evidence that they're not, and this is a key point in the David Lammy review of ethnic minorities in the criminal justice system. But the point is debated. Later in this lecture, we'll get to the evidence that Lammy relied on and the criticisms that others have made of it. But when it comes to the merits of a jury trial, bias is not the whole story. We don't just want to know whether juries are biased against particular groups. We also want to know whether they're getting it right. For instance, in criminal cases, whether they're convicting the guilty and acquitting the innocent. After all, a legal system that decided guilt or innocence by tossing a coin would also show no racial bias. But that doesn't mean that it gets to the right answers. And there is a much more difficult question to answer. We can measure empirically whether juries are more likely to convict members of particular groups, but we can't measure empirically whether juries are making the right decisions. To state the obvious, we don't have any objective measure of whether people are convicting(attendee sneezes) the people that who are actually being convicted or actually guilty, or whether they are actually acquitting people, who are innocent, because they are innocent. And unlike judges, juries don't have to give reasons for their decisions. So, we can't assess the quality of their reasoning. In answering this question however, however, we have to look at the alternatives to a jury trial. Even if juries are getting it wrong, it doesn't necessarily follow that professional judges or lay magistrates who also have their own biases, prejudices, and failings would be more likely to get it right. So, in today's lecture, we're going to tackle these questions head on. I'm going to divide the lecture into three parts. The first part, we're going to dive into how this jury system works in England and Wales. The second part, we'll examine the best available evidence about jury bias, and compare and contrast it with the evidence about judicial bias. And in the third part, we'll tackle the really difficult questions, are juries getting it right? Juries in England and Wales. As most people know, juries in England and Wales' on ancient tradition. Now, I don't have time to cover the whole history of the English jury, which is vast and complex. The role of the jury has changed substantially over the centuries. Historically, juries were used both in criminal and civil cases. And in criminal cases, there was a distinction between a grand jury, which decided whether that the accused should be indicted. And the petit jury, which actually tried the accused. They still have the system of grand juries in the United States. A landmark early case on the constitutional independence of the jury was the Bushel case in 1670. There, a jury had refused to convict two Quakers, William Penn, who went on to found Pennsylvania, and William Mead, for addressing an illegal religious assembly. The trial judge find the jury for contempt of court. The juror, William Bushel, challenged his fine before the Court of Common Pleas, which held that jurors were not fineable for returning a verdict contrary to the evidence. And this case is often cited as an early example of jury nullification where jurors protest an unjust law by acquitting a defendant. Didn't that happen recently with the statues being toppled and there was a court of appeal decision yesterday? While jury nullification has been a controversial subject, it remains the case today that a judge cannot direct a jury to convict a defendant and that jurors cannot be punished for deciding to acquit a defendant. However much, a judge might want to punish them. In the 20th century sought a significant erosion of the right to jury trials. The general right to a civil jury trial was removed in the early 20th century, except for some specific thoughts, malicious prosecution, liable false imprisonment. The general right to civil jury trial was removed and the list has been further eroded over time. So, today, there's only a right to a jury trial involving allegations of fraud and as I say, malicious prosecution, false imprisonment, and the like. Meanwhile, in criminal cases, the grand jury has been abolished all together. The Sex Disqualification Removal Act of 1919 allowed women to serve on juries for the first time. However, there were still property qualifications that meant that people with insufficient property could not serve on juries. The Property Qualification Act was finally abolished by the Juries Act 1974. And majority of verdicts were allowed for the first time by the Criminal Justice Act 1967, departing from the ancient rule that the verdict, the jury verdict had to be unanimous. And so, we come to the position today. Today, the vast majority of the English and Wales jury sit in criminal trials. And as such, for the focus of this lecture, we'll be on criminal trials. And as you may well know, the criminal jury in this jurisdiction consists of 12 people who are selected from the electoral register. And we're going to look at the process of jury selection later and see how this differs from our better known American counterparts. So, what does a jury actually do? In England and Wales, the role of the jury in a criminal trial is simply to find whether what the defendant is guilty or not guilty. The jury has no role in sentencing, which is entirely the province of the judge. The judge also exerts control over the proceedings in a number of different ways. The judge decides whether the evidence is admissible and therefore whether it should be put before a jury. The judge decides the directions on law to give to a jury and also sums up the evidence before the jury retire to reach their verdict. And jurors are subject to punishment for contempt if they act improperly, for example, discussing the case on social media or researching information about the case on the internet. It remains the case, however, that the judge cannot compel the jury to convict the defendant against their wishes. It is for the jury not the judge to decide upon the guilt. The juries, as it's been said in many criminal cases, are the judges of fact. And finally, we need to understand the alternatives, available alternatives to a jury trial. Most civil trials in England today are decided by either a professional judge sitting alone or occasionally with a professional judge sitting with expert assessors. Most criminal trials in the magistrates are decided either by a lay bench of magistrates who are volunteer from the local community and not legally qualified. And they're assisted by a legally qualified clerk. A minority of magistrate trials are decided by a professional judge who sits on his or her own alternatives. Now, we understand the role of the jury. What are the available alternatives to them? Let's turn our first key question. Are juries biased? And for this question, I'm going to focus on racial bias, not because it's the only form of bias, but it's the one that's been studied the most. The first thing that we want to look at in racial biases in jury selection, and in this regard, it's interesting to contrast the English and Wales system with the system in the US. So, jury selection, the practice of allowing peremptory challenges to jurors where either party can reject a certain number of jurors without providing cause was abolished in England and Wales by the Criminal Justice Act 1988. This contrast with the US system where peremptory challenges to jurors are still allowed in federal courts and in the courts of most states. And what I mean by that is in this country used to have three three preemptive challenges to a juror from the jury pool. They would come in and (chuckles) I remember when I was training, my supervisor would say,"Don't look that person." No rhyme or reason to it. Somebody could walked into court with a copy of the "Daily Mail" under his or her arm and they would be rejected or accepted depending on the case that you were dealing with. And nobody could challenge the pre... You had a right to preemptive challenges. Now, you can only challenge if there is a cause. So, for instance, if a juror, if you know that a juror is biased in some way, knows a witness or knows the defendant. Although the crown retains a traditional right to stand by a juror, the attorney general guidelines on use of standby powers made it clear that it was only to be used exceptionally and only in national security or in terrorism cases. So, that in practice, the use of that power is rare. Compare that with the American experience. So, as I've just indicated today in this country, this jurisdiction, parties have less ability to influence the composition of the jury than in an American jury trial. However, both the prosecution defendant, as I say, do have the right to challenge for cause. And a judge does has a discretion to stand a juror down, for example, if there is an appearance of bias or because a juror may not be competent to serve. Up until the late 1980s, English judges did occasionally use their discretion to discharge jurors in such a way to ensure that juries were multiracial. However, the court of appeal in a case called Ford in 1989 held that a judge had no power to do so. So, a defendant of color has no right to be tried by a racially represented or racially representative jury. So, let's look at bias in jury selection. In the United States, this is a familiar subject in its 2021 report, Race and the Jury, illegal discrimination and jury selection. The Equal Justice Initiative highlights data from a range of American federal and state courts shown evidence of disparity in all stages of jury selection. Many American jury pools underrepresent people of color. And both peremptory challenges and challenges for cause are often used disproportionately to exclude Black jurors and jurors of color. Although racial discrimination in jury selection is theoretically illegal, the Equal Justice Initiative argues that the legal tests laid down by the appellate courts have made it difficult to prove racial bias, and there continues to be a massive race disparity at every stage in the process. It also reviews evidence from the American studies suggesting that all White juries are biased against Black defendants. But as we have seen, we can't just read those findings across to England and Wales, and assume that they apply here, because our juries are very different. That brings me on to Professor Cheryl Thomas. So, let's turn to the English data or data. We're going to look at Cheryl Thomas' 2007 study,"Diversity and Fairness in the Jury System". For the purposes of discussing this study, I'm going to adopt Thomas' own terminology when discussing race, including the use of the umbrella term, Black and minority ethnic. Not a term that I would use, but that's the term that she uses, in order to accurately represent what the study shows. I should say that this study approached the question of jury diversity and fairness in a number of ways. It has a number of interesting findings, which I can't cover comprehensively in this lecture, but I'm going to highlight a few headline points that are important for our purposes. Now, Thomas studied all stages of the jury selection process in her study of 84 Crown Courts. In all but two courts, there were no statistically significant difference between the proportion of Black and minority ethnic jurors summoned, and Black and minority(attendee coughing) ethnic population in the court catchment area. There was also no evidence of disparity when broken down by ethnic group. However, she did highlight that for the majority of Crown Courts in the country, the Black and minority ethnic population in the court catchment area is below 10%, which means in practice there is little likelihood of Black or minority ethnic jurors serving on juries at these courts. In other words, all White juries tend to happen in at these courts, not because the selection process is bias, but simply because of the demographics of the local population. She also highlighted however, that some courts with an overall low population of Black and minority ethnic people did have high concentrations of ethnic minorities in some parts of their catchment areas. So, in these areas, a person of color might well end up being tried by an all White jury, not because the summons in process was biased, but again because the overall demographics of the court catchment area. Among those who didn't respond to jury summonses, she didn't find evidence that the courts with a higher Black and minority ethnic population had a higher non-response rate. So, there was no evidence that people of color were any less likely to respond to a jury summons. She decided to look at who were actually being selected to serve on juries as opposed to being disqualified or excused. And she found that in most of the 84 Crown Courts, the proportion of Black and minority ethnic people serving on juries was generally consistent with the proportion of Black and minority ethnic people in the court's catchment area. There are only three Crown Courts where minority, Black, and ethnic people were significantly underrepresented. In addition to analyzing the jury selection process, she also carried out a case simulation study using real jurors summons to Blackfriars Crown Court, selected in the same manner that a real jury would be selected. The case which was based on a real case, involved a male defendant accused of punching a male victim in the face after confrontation outside a bar. The case was won in which the real life had resulted in a hung jury. The facts of the case were kept the same in each simulation, but the race of the defendant and the victim were varied, Black, White, or Asian. And in some simulations, the defendant was charged simply with assault occasion and actual bodily harm. While in others, he was charged with racially aggravated actual bodily harm. Thomas found that in the 54 separate jury decisions in the study, outcomes for defendants were remarkably similar regardless of race, whether Asian, Black, or White. The defendants were almost always found not guilty by a majority verdict or the outcome was a hung verdict. So, there were some racial disparities which that emerged in relation to how individual jurors voted, but these did not result in any racial disparity in the overall jury verdict. Thomas carried out a second study in 2010 entitled, "Are Juries Fair?" And in this study, Thomas ran the same case simulation, but this time, at two courts with a mostly White catchment area, Nottingham and Winchester. And she found that the all White juries in this study were not more likely to convict a Black or minority ethnic person than a White defendant. And this held true for both Black and Asian defendant. Interestingly, she also found in Nottingham a relatively more racially diverse area, jurors had more difficulty reaching a verdict when a case involved a Black or minority ethnic defendant or victim as opposed to when it involved only White participants. But the same was not true in Winchester, a less diverse area. Another interest in finding was that jurors in Nottingham were significantly more likely to convict the White defendant when he was accused of assaulting a Black or minority ethnic victim than when he was accused of assaulting a White victim. But again, no similar pattern was seen in Winchester. Paul was in here. This methodology has two obvious limitations. Firstly, it's possible that jurors who know that they are participating in a study might be less inclined to display racial bias than jurors in a real case whose deliberations are secret. Secondly, Thomas' case simulation concerns a case that resulted in a hung jury in real life, meaning that it may not be representative of most cases that come before the courts. That said, Thomas' 2010 study also carried out a large scale analysis of jury verdicts. She looked at all cases in all Crown Courts in England and Welstrom the 1st of October, 2006, so the 31st of March, 2008, including over half a million charges. The data showed that White and Asian defendants both had a 63% jury conviction rate while Black defendants had a 67% jury conviction rate. And Thomas described these as a small difference, although it was notable that Black defendants were slightly more likely to be convicted. That brings me onto the Lammy review. That's David Lammy, MP. For the Lammy review, Thomas' research was updated with an analysis of 390,000 jury decisions between 2006 and 2014. And again, this found a very similar conviction rate across the ethnic groups, White, Black, Asian, mixed race defendants were all convicted at rates of between 66 to 68%. David Lammy was very enthusiastic about this and his report calls juries, quote,"A success story for our justice system." The Lammy review contrasted juries with judges and magistrates. Lammy cites 2016 study by Hopkins et al, which looked at racial disparity in the Crown Court judges sentencing decisions. And Hopkins et al, found that under similar criminal circumstances, the odds of imprisonment for Black, Asian, and Chinese, and other offenders was higher than for White offenders. The disparity varied a lot between different offense types. It was particularly high for drug offenses where Black and minority ethnic offenders were 240% more likely to be sent to prison. Let me repeat that. 240% more likely to be sent to prison than White offenders. Although the data was limited, Lammy review also found racial disparities in the magistrate court's verdicts. In particular, Black and minority ethnic women were more likely to be found guilty than White women. So, Lammy's conclusions about jury trials were overwhelmingly positive. However, his approach to the issue has been criticized, which I'll come to. One powerful criticism is this. We know that there's a massive racial disproportionality in terms of who ends up in the criminal justice system to start with. Black people are more likely to end up before a jury than White people. As Thomas' self highlighted in their 2007 study, Black people from 2006 to 2008 made up 14% of all jury verdicts compared to being only making up 3% of the population. We could reasonably infer from this that Black people are more likely to be falsely accused of crimes than White people. And therefore, we might expect a genuinely fair trial process to have a lower than average conviction rate for Black defendants rather than a slightly higher one. Lee Bridges in his work argues that the Lammy reviews approach, quote,"Carries an implication that those making decisions at later stages in the process have no role or responsibility for seeking to redress unfair treatment of particular groups at earliest stages." There's also evidence that Black and minority ethnic defendants are more likely to plead not guilty than White defendants. And also, more likely to be committed to the Crown Court for trial if charged with an offense that is tribal either way. This again complicates the picture, because arguably, Thomas and Lammy are not comparing like with like. So, more research is needed in the subject. At this stage, we can't be certain to what extent racial bias affects jury verdicts. However, we can probably set least there is more evidence of racial bias on the part of judges and magistrates than the part of juries. But it's also important to note that racial bias isn't the only kind of bias. For example, it's often alleged that jury's gender biases affect the outcomes of rape trials. In her 2010 study, Thomas argued that there were misconceptions in this area, point to the fact that other serious offenses have lower conviction rates than rape. But her study certainly isn't conclusive on this question, nor do we know the extent, to what extent juries are bias against LGBT people. For instance, we don't know how the current waiver hostility towards transgender people in the UK might affect jury behavior in cases with transgender defendants or victims. But again, we shouldn't assume without evidence that professional judges are any less biased than juries. So, are juries getting the right answers? Bias is not the only question we're interested in. As I said earlier, when a tribunal is biased on the basis of race, that's not the same question as whether it's getting the answers right. The law reports reveal an instance in 1995 where a jury attempted to communicate with one of the victims of the offense with a Ouija board. And in another 1736 where the jury decided their verdict by hustling half a pens into a hat. To state the obvious, neither of these methods is racist, but both of them are unreliable. As I explained at the beginning of this lecture, there is no straightforward way to measure empirically whether juries are getting the right answers. We have data on how many people are aquitting and convicted. But to state the obvious, we don't have data on how many people are actually guilty or actually innocent. And unlike judges, juries don't give reasons for their decisions. They don't explain what they've made of the evidence or how they've reached their conclusions. So, when we're faced with a jury verdict, we don't know whether they've understood the law or the evidence properly or whether their reasons make sense or whether their reasons are based on false assumptions, nor do we know whether they fully understood the judge's legal directions. Thomas' 2010 study, which we've looked at earlier, also investigated whether the jurors in her case simulations understood the legal directions that they were given. She found that while most jurors thought the judge's legal instructions were easy to understand, a majority in fact did not completely understand them in the terms used by the judge in his or her instructions. For that matter, we don't know whether juror's base their decisions on whether they found council more attractive or whether they want to get their deliberations over with and just go to the pub. In her 2017 Blackstone lecture, Lady Justice Hallett recounted a 2003 fraud case at Suffolk Crown Court where, quote, " A female juror sent to prosecuting counsel a bottle of champagne and an invitation to a dinner date with the question,'What does a lady need to do to get your attention,'" end quote. Another concern is whether juries are influenced by the unattractive facts of a particular case. For example, a jury might be thought to be more likely to judge or be influenced by adverse publicity in a case involving a high-profile case or defendant. In a case involving graphic sexual abuse, abuse of a child, the juror's feelings of disgust may influence their decision-making, or a jury might be unimpressed by defendant who's relying on a technical defense to escape liability for the acts, which the jury disapproves of. All these arguments are raised by Professor Penny Darbyshire who in a 2014 article, makes a powerful argument that defendants ought to be able to opt for a bench trial as well as a jury trial, as they can in some other common law jurisdictions. So, let's consider the alternatives. So, there are some reasons to be concerned about the rigor of jury decision-making. And it's very difficult to investigate these concerns empirically. However, in this regard, we need to keep in mind that we're not comparing trial by jury with trial by oracle. We're not looking at whether juries are perfect, we're looking at whether they're better than the alternatives that we have. A professional judge sitting with expert assessors or a bench of lay magistrates. In many trials, the trier of fact, whether it be a jury or judge or a bench of magistrates, has to assess the credibility of witnesses and decide between competing versions of events. Where witnesses give different accounts, the trier of fact has to decide who is mistaken or who is lying. And the way that juries currently are expected to perform this task is not particularly effective. For example, we, lawyers, are trained to look at inconsistencies between a person's evidence in court and their previous statements. And to use those inconsistencies in cross examination to show that a person is lying, the assumption is an inconsistent account is more likely to be a lie. But in fact, we know this is not in all cases true. There's an excellent article by Hilary Evans Cameron,"Refugee status determinations and the limits of memory", which summarizes a large amount of empirical research on this topic. She shows that human memory for temporal information such as the exact date something happened, how often it happened, the order in which it happened, how long it took, is extremely poor. For the most part, we reconstruct that kind of information by inference, estimation, and guesswork rather than actually remembering it. Our memory for this kind of information is poor, even for unusual personal events. When we have experienced repeated similar events, we're bad at remembering each individual instance. And internal inconsistencies are a normal feature of the human memory. True stories are just as inconsistent as false ones. Interestingly, Cameron shows that hyperthymesia, remembering more rather than less over time, is also a normal feature of human memory. These issues are exacerbated in the case of mental health conditions. Many people who come before the courts have experienced trauma, traumatic events in their lives and have conditions such as post-traumatic stress disorder or PTSD, and depression, which significantly affects memory and concentration. Similarly, the courts have traditionally placed a lot of emphasis on the value of seeing and hearing witnesses give evidence, judging their credibility, not by what they say, but by their demeanor. But we know that this too is unreliable. For example, some people with PTSD may experience disassociation when recalling traumatic events which may cause 'em to appear distracted, detached, or unwilling to cooperate. Likewise is evidence that autistic people may be more likely to be wrongly judged as deceptive or lacking in credibility. A person's demeanor may also be affected by their cultural background. So, it's very risky to assume that you can tell whether someone is lying by the way they behave when being questioned. However, it's important to understand that these problems are not specific to juries. You may have noticed in the title of Cameron's article, she's not writing about jury trials, but about refugee status determinations, which are carried out not by juries, but by civil servants and professional judges. And indeed, Cameron highlights research showing that in distinguishing truth from falsehood, professional such as judges and police officers don't perform any better than lay people. In short, professional judges are certainly not immune from making false assumptions about memory and demeanor. Judges are not trained in psychology or psychiatry, but in law and legal education. By itself, does not give you special insight into human nature. So, we shouldn't assume that judges are any better at getting the answers right than juries. One problem here is that English criminal law is traditionally very resistant to the idea of admitting psychological or psychiatric expert evidence to help juries decide on credibility. The traditional view is that such evidence is inadmissible in a criminal trial, because it amounts to jury oath-helping, and that is for the jury, not the experts, to decide whether the witness is telling the truth, applying their common sense and experience. But the problems we've seen is that most people's assumptions about what makes truthful witness are in fact, wrong. In some criminal cases, expert psychological and psychiatric evidence has been held admissible, because it's relevant as to how a witness' or defendant's medical condition, which is outside the normal experience of a jury. And that might affect the inferences to be drawn from their behavior as to the state of mind. And expert evidence has also been admitted to show that a confession is unreliable because of the suggestibility of the accused. And in some cases, it's been acknowledged that expert evidence could be admissible where a defendant witness' mental condition is likely to affect the way that they give evidence. But it remains the case that psychological and psychiatric evidence are not admissible or matters considered to be within the range, experience, and knowledge of the jury. For example, safe in relation to the reliability of confessions, evidence about mild intellectual impairment is generally not admissible where a defendant's IQ is over 69. This arbitrary rule appears to be based on the judicial unsigned assumption that the effect of mild intellectual impairment on a person's evidence or behavior will be within the experience of a jury. This illustrates a problem with the English jury trial. But it's a problem that would not be solved by replacing jurors with professional judges. It can only be solved by changing the approach to the admissibility of evidence. Should we replace jury with juries with artificial intelligence? (laughs) We could consider one of the more outlandish ideas that has been floated, replacing juries with artificial intelligence. Now, I should say I'm not an AI expert, but I would have very grave concerns about whether a such a system could ever genuinely be fair or just. An AI system is only as good as the beta we humans feed into it. And data sets on which AI systems are trained are often inadvertently in part, biases, and it will have profound effects on decision-making. For example, a 2021 article in the "New York Times" highlighted an instant where Google's photos automatically sorted photographs of a Black man into a folder marked gorilla. Similarly, the article quotes a Black computer expert, Deborah Raji, who was working on a content moderation system designed to remove pornography from social networks. She noticed that the system was being trained to distinguish pornography from non-pornography by comparing anodyne stock photographs with images of online pornography sites. Because the people in the stock photographs are mainly White, and the people in the pornographic images were not, the system was unconsciously being trained to identify images of Black people as pornography. Another Black computer expert found that the racial recognition systems, her workplace did not recognize her face, but when she wore a White mask, it did. Now, none of this is to say that artificial intelligence isn't useful, but it doesn't always remove human biases from decision-making. Sometimes, it replicates it and exacerbates them. And given what we have already learned about how people make false assumptions, for example, about witness' credibility, we can see the same false assumptions could well affect an AI-based courtroom. For instance, an AI trained to analyze a person's body language might well-misidentify a person with autism or PTSD as a liar because their body language might not match the programmers expectations as to how a truthful witness ought to behave. In this scenario, we wouldn't have eliminated our human biases, we would simply have automated them. So, let me conclude. I want to wrap up by saying this. To an extent, the jury is still out on juries. We don't really know with any certainty whether racial bias is a significant factor in jury decision-making. Although Thomas' research is often held up as proven that juries are race-blind, there are really good reasons to question this conclusion, nor do we know with any certainty whether juries are getting the answers right, a question which is very difficult to test empirically. But before throwing out the institution of trial by jury, we should keep in mind that trial by professional judges is not necessarily a better alternative. A legal education does not give a person the wisdom of Solomon. And while we don't know to what extent juries are racially biased, there is good evidence that judges are. Nor should we subscribe to gimmicks such as replacing juries with artificial intelligence. It may well be that the key to reducing bias and improving the rigor in our justice system lies in changes to the trial process and the rules of evidence, rather than replacing trial by jury. Thank you.(attendees clapping)- Must a judge in all circumstances accept the jury's decision?- Yeah. The answer is it depends. When a jury have quite clearly misunderstood... What I've known judges to do is to call the jury back in, give them further directions. Sometimes, those directions might be in writing, ask for personal, that jury, are the instructions clear? If you've got any problems with that, please let me know. And then, send the jury out. But as I've said in the lecture, a fundamental premise of our jury system, a judge cannot refuse to take a jury's decision just because the judge disagrees with it or may think it's wrong. And as we've seen, as I said and touched upon earlier on in this lecture, we can see recently in the toppling of the Colston statue that the jury acquitted. And yesterday, we had a decision, the Court of Appeals saying that a crime was committed.- So, you made a good case for knowing more about what goes on in court, using data to make decisions. So, let me put it to you that we perhaps ought to be recording in some way what happens in the jury room, so that we would be able to analyze in retrospect whether the jury was talking bollocks or not.(attendees laughing)(everybody laughing)- Yeah, one way... What we don't want to do, we don't want to impede jury deliberations. We've all seen the... Well, I say we've all seen. Those of us of a certain age have seen the film "12 Angry Men". Yeah? If you haven't seen it, it's a film that's really, I would really recommend that you watch, because it just gives you an insight even though it's a dramatized insight as to what possibly goes on in a jury room. And we wouldn't want to have, say, cameras affecting that process where people can honestly say what they feel. Because if you think about it, using that film as an example, if people didn't honestly say what they felt, then it would've been very difficult. Was the main character Henry Fonda, if I remember rightly?- [Attendee 1] Yeah.- To unpick what was wrong and persuade or attempt to persuade the juror against it. But what I would say in relation to your question as to whether a jury is conquers is perhaps we could move to a system whereby we require juries to provide reasoned decisions. So, that's not affecting how they're deliberating, but we have an understanding once they've deliberated. And interestingly, what's often argued is, oh, well, that's putting too much of a burden on juries. But however, in the jurisdiction of the coroners, juries regularly provide written reasons in their verdicts.'Cause the coroner's juries verdict to the conclusion is quite detailed, and juries are able to do that. And the only difference between a coroner's jury and a criminal jury is a difference in arithmetic. You have 11 jurors on a inquest where you have a mandatory 12 jurors in a criminal court. So, arithmetic has got nothing to do with it.- It is a question about finding out what happens in the jury's room. Maybe not, as I understand it, they're completely closed. You're not allowed to know what goes on in that.- Absolutely. That's absolutely correct.- And it just seems that the importance of what happens in there is like, not necessarily with respect to particular case, but even to be able to find out what happens in there for the purposes of research. It just seems... What would be the cons to being able to do that? Not in a particular case where the judge gets to say, I disagree with you or whatever.- Yeah. (sighs) Yeah, I understand it and it's a great question, and I think, the rationale is, is that sanctity, preserving that sanctity in the jury room, so jurors can deliberate and come to the conclusions. And I question that.- [Attendee 2] It's often a medical research.- Yeah, I question that, because you never know. For we know that unless you have a juror who brings some improper conduct to the judge's attention, you will never know. There are cases where you have whistle blows on juries who bring improper conduct. But those cases are rare. And even when they do happen, lawyers and the judges are very much... There's a lot of confusion as to what they should be doing about it.- Leslie, let's take one question from the back, please.- [Attendee 3] Thank you. That was brilliant. Okay, here we go. The question is, it seems to me that I recall there was some evidence. We've got the barrister strike going on, and the whole background to that is, of course, the underfunding, the chronic underfunding of the criminal justice system. And one of the tricks that the conservative government was trying to pull was to suggest if we had a smaller jury pool, we could speed things along, because it has nothing to do with the total incompetence, the fact that the G4 can't get this right guy between Willingham and Wakefield, because they're not capable of doing that, even though he's in imprison to deliver him to the right court. But actually, there are too many members of the public in there slowing things down. And if I remember rightly, there was some pretty strong evidence. Now, I can't remember if it was Thomas or Lammy, that if you interfere with the numbers when you go down to, I think, the statutory minimum is nine- Yes.- for a decision. That actually, you then start to see racial bias creeping back into the jury in a similar way to professional judges. Any thoughts on that side?- Yeah. And I think, think if you just look at the maths, that would seem to be logical and make sense, because the smaller the pool of decision-making, the more likely that if they do have any biases, those biases will not be counteracted by those without those biases. So, that would make perfect logical sense to me.- [Attendee 4] Hello. I've been done for(indistinct) couple of times and been called for jury service three times. The last time, they said they're going to charge me 1,000 pound. And I told the police, I'm not coming into the police station. As a ex-Abdasa governor, I would say, they need more come to be well-trained, anybody deciding. And I'm making a judgment on me, because I study someone, and if I am not doing anything ungodly, then I don't want nobody who I don't know about coming and judging me.- Well, you've raised an interesting issue. I was speaking to a colleague of mine who mentioned, who works in the Australian jurisdiction, mentioned that the indigenous people there have real problems, because they tend to have all White jurors. And so, what they have, they have the choice of a bench trial, a judge only trial. And I understand that. So, let me just come back to this picture that I had up earlier, which I just think says it all. Imagine this. Imagine instead of 12 White men, you had 12 Black men sitting there. Would you say that those were your peers? Now, I pose that question to you knowing that I'm talking to a diverse audience tonight. But that's the point. Looking at that picture, would you say you were being tried by 12 of your peers? Now, put yourself in the shoes of a young indigenous person of color facing more White jury. That's the issue. I think, we're going to leave it there.- [Mediator] Yeah.(attendees laughing) Ladies and gentlemen, Professor Thomas.(attendees clapping)