TÍTULO I: PARTE GENERAL
CAPÍTULO 6.- FUNCIONAMIENTO, INSPECCIÓN Y VIGILANCIA
In chapter two I argued that while there are good reasons for retaining the jury as decision-makers in criminal trials, researchers have pointed to problems over whether they truly understand the legal terminology and/or the judicial instructions. In this section I explore communication in the trial more closely by breaking down the areas where I consider that things begin to become problematic for the jury. I explore the different ways in which Freire’s problem-posing could be integrated and will
demonstrate how, through integration of his methods, we could see a trial which has at its core liberating communication which gives potential for each person involved to understand by participating in the process. At the simplest of levels I suggest that if a dialogue which includes, or at least has scope to include, the jury were one of the main communication devices in the trial process this would make us more aware of what jurors do and do not understand as the trial is in progress. Indeed, I argue that unless there is a departure from the traditional norms of research, as well as a change in our understanding of the role of the jury, which is followed by innovations in future
research methods and responses, we will never really break boundaries in this area. If my ideas are embraced that would enable us to engage all of the trial participants and through that mutual engagement we would be able to see and hear at which points in the trial communication problems for the jury really do arise, as opposed to surmising
97 where they might arise and then, as is the case currently, deciding how to respond well after the point where the problem first arose.
As we have seen, there is a large body of research focused on juror understanding of legal terminology as well as significant numbers of projects focused on the impact that extra-legal influences may have on a jury.59 What I shall later demonstrate is that what
we have tended to see is that in the majority of the studies, once the problems have been identified, the response has generally been to implement some sort of method for teaching jurors to better understand the trial with suggestions tending to be centred on giving things to the jury in the form of glossaries, aides memoire or explanatory
pamphlets. Whilst I accept that this is important, equally I suggest that this focus on the actual or perceived problems may result in diverting attention away from how the information in the court is communicated between the legal professionals and the jury. Therefore, it may be an idea for the future to adapt the research methods in order to ensure that when the problems are being identified, not only do they include the jury as a part of the equation, but that they respond meaningfully to the clearly identified needs with those responses being direct and immediate and not, as is currently the case, retrospective and often one step removed from the initially identified problem.
To test Freire’s methods for enhancing understanding, I will first revisit those
approaches which have looked at jury understanding of certain concepts or language in isolation, and then assess the measures that have been proposed or adopted in
response. Second, I will move to look at a different approach to juror understanding which looks at how it is linked to narrative structure. This raises different sorts of issues in that it demands an exploration of the trial as narrative which then raises issues
59 As was discussed in for example, the rape trials studies carried out by Finch and Munro - Finch,
E. and Munro, V.E. (2006), ‘Breaking boundaries? Sexual consent in the jury room,’ Legal Studies, Vol.26, No.3, pp.303-320; Finch, E. and Munro, V.E. (2008), ‘Lifting the Veil: The Use of Focus Groups and Trial Simulations in Legal Research,’ Journal of Law and Society, Vol.35, pp.30-51; Finch, E. and Munro, V.E (1995), ’Juror stereotypes and blame attribution in rape cases involving intoxicants,’ British Journal of Criminology, Vol.45, pp.25-38 and for the influence of a defendants past convictions see Lloyd Bostock (2000), ‘The effect on juries of hearing about the defendants previous record: a simulation study,’ Criminal Law Review, Sept., pp.734-755.
98 of the problems which may arise with the delivery of competing narratives. I address this in section 3.6 below when I consider some of the early research carried out by Bennett and Feldman60 and Hastie, Penrod and Pennington61 as well as some more
recent analysis by scholars such as Peter Tiersma or Brooks and Gerwitz.62
My primary aim in this part of the chapter is to assess the possibility of integrating Freire’s pedagogy as a valuable response to the issues of understanding which the jury may face. In addition I am interested in testing Freire’s problem-posing and his
insistence on dialogue when we explore, in section 3.6.1, the story telling theories and the reliance on narrative in the trial more generally. Therefore, I am keen to test Freire’s problem-posing to see whether the dialogic element or, as Tiersma put it, the “turn-taking” element of a conversation, can affect the overall understanding.63
I have already acknowledged many of the studies which have been focused on, and attempted to solve, issues of juror understanding. However, I want now to argue that the central issue is less that of understanding than it is of communication. For
example, Kalven and Zeisel’s The American Jury assessed both the content and the timing of the judicial instructions by comparing the verdict of the jury with the verdict of the judge and measuring the jury’s performance against that of “the judge as a baseline.” 64 What we saw was that, in Kalven and Zeislel’s study, judge/juror
disagreements were not down to “juror incompetence or unwillingness to follow the law” but rather were due to confusion about the law and the evidence delivered in the
60 Bennett, W.L. and Feldman, M.S. (1981), Reconstructing Reality in the Courtroom: Justice and
Judgement in American Culture, New Brunswick, Rutgers University Press.
61 Hastie, R., Penrod, S.D. and Pennington, N. (1983), Inside the Jury, Harvard University Press,
Cambridge, Massachusetts and London, England; Hastie, R., Penrod, S.D. and Pennington, N. (2002), Inside the Juror, New Jersey, The Lawbook Exchange, Ltd.
62 Tiersma, P.M. (2000), Legal Language, University of Chicago Press, Chicago and London;
Brooks, P. and Gewirtz (1996), Law’s Stories: Narrative and Rhetoric in the Law, Yale University Press, New Haven and London.
63 Tiersma (2000) above n.62 chapter 9.
64 Kalven, H. and Zeisel, H. (1966), The American Jury, Boston , Toronto, Little, Brown and
99 trial. 65 This is a key point to consider but one that is easily overlooked when we
consider the current responses to the problems in many of the projects highlighted. Moreover, it demonstrates my point that if we were to shift our focus to the means of communication of the information rather than the minutiae of the words used we may be better placed to gauge juror participation overall. Before going on to explore how shifting the focus to the mode of communication can alter our perspective and our understanding of the jury, I shall look back briefly to the key themes of the research discussed in chapter two which demonstrate the core areas where there may be legitimate cause for concern.
One of the core themes discussed was jury understanding of judicial instructions and a key finding in many of the studies was that jurors do find this area problematic. I demonstrated this with reference to a number of studies which included the early work of Steele and Thornburg who found through comparison with other mock juries that jurors did struggle to understand the pattern judicial instructions.66 I also looked to the
New Zealand study which was focused on concerns over juror understanding of legal terminology, in which the focus was on developing as many ways as possible to aid the jury given the concern over their understanding of the legal terminology during the trial process. Their key recommendation was that when the jurors were perceived to have misunderstood complicated evidence, or when they could not recall large amounts of evidence, that the focus should not be placed on the content of the information, nor should the “blame” be placed on the jury, but rather they suggested that more focus should be placed on the judge or legal counsel to see if there were improvements which could be made in respect of their modes of communication.67 Additionally I looked to
Thomas’ 2010 study where we saw, again, that the jurors do interpret the instructions
65 Vidmar, N. and Hans, V. (2007), American Juries: the Verdict, Amherst, New York, Prometheus
Books, p.149.
66 cf. Strawn, D.U. and Buchanan, R.W. (1976), Jury Confusion: A Threat to Justice, 59, Judicature,
478; Strawn, D.U., Buchanan, R.W., Pryor, B. and Taylor, K.P. (1977), “Reaching and Verdict, Step by Step,” Judicature, 383, March.
67 Young, W., Cameron, N. and Tinsley, Y. (2001), New Zealand Law Commission, Report 69,
100 incorrectly and this concern was compounded by the fact that many of them did not actually consider their incorrect interpretations of the judicial instructions to be the case.68
What these studies highlight for me is that, first, we should be cautious of continuing to gauge juror competence, or assess their ability as fact-finders, by comparisons either with other mock jurors or judges. Second, it is not so much that we should be
continuing to focus on the language itself but rather that we should be focusing on the process of communication of that language. If we do not begin to shift our focus, both in terms of our understanding of the trial communication as well as our understanding of the current responses to juror understanding of judicial instructions, we may be in danger of missing out on the opportunity for clarifying juror understanding in a more holistic way. Indeed the majority of the solutions to be found currently are rooted in giving things to a jury with a view to enhancing their recall or improving their
understanding of the legal terminology but that is where I suggest that the research is lacking and where I propose ways to develop the field. I should also stress at this point that the existing trial communication and the current solutions to juror understanding are working on a “banking” style model whereas I propose moving more towards a problem-posing vision both of the communication during the trial as well as a possible solution where problems are identified. Therefore, I argue that our research methods need to be realigned in order to achieve the most in-depth understanding possible and our understanding of the role of the jury needs to be reshaped in order to expand our understanding of their limitations. I now expand on this in the following section as I advance some solutions to the problems faced by jurors.
68 Thomas, C. (2010), ‘Are juries fair’, Ministry of Justice Research Series, 1/10,
101