In the November issue, a recent first-time juror offered a personal insight into how the process of a major fraud trial looks from the unique perspective of the jury room. In this concluding part 2 they offer some thoughts on how the system might be improved.

So… it’s easy to criticise the ancient and time-honoured jury system, and I should be clear that I am only querying its effectiveness in long and complex fraud trials, and asking how might it be improved (from the jury’s point of view). Perhaps that is rightly the job of others, but for what it’s worth I have some thoughts arising out of our direct experience. I offer them to be accepted, adapted or rejected out of hand.

Firstly, it would help if there were some modification to the adversarial structure of such cases. Might it not be possible for the jury, at the very start of the case, to be given a narrative, chronological account of the events with which the trial is concerned. Agreed in conference by both sides and delivered (after his or her own input) by the judge. Along the way the judge would indicate the points at which the jury would be hearing evidence, specifically marking those issues where each side would call evidence to put their own gloss on the facts as agreed. Thus, for instance, our database witness could have been dispensed with entirely. His only purpose was to establish the accuracy of the information extracted from the database by investigators – and if there’s to be no defence challenge to that, well we’ve just saved a full day of expensive court time.

Much of the evidence we heard was technical stuff about company structures, financial reporting, insolvency, liquidation – matters outside the day-to-day experience of any juror (unless the random draw throws up a retired accountant). We struggled to follow it. Perhaps, for trials like this, there could be a court-appointed forensic accountant to sit with the jury to answer questions. They would have to be specially trained. So that they were sure merely to answer factual questions and not to offer opinions or usurp the right of the 12 jurors alone to decide the verdict.

Then there’s an issue of time in the jury room. The case lasted the better part of three months during which time we heard a great deal of evidence. Yet until we officially ‘retired’ at the end of the proceedings in court, no time was specifically set aside for the jury to sit together and talk about what they’d heard. Quite properly we were told only to talk about the case ‘in the jury room, and when all 12 of you are together.’ But this was a strangely rare event. We had 20-minute breaks, and an hour for lunch. During which time there were invariably one or two people who were a) visiting the toilet, b) out getting some lunch or a coffee, or c) had stepped out for a cigarette. The times when we were all together were mostly limited to ten minutes or so either side of two o’clock while we were waiting to be called back into court, and then we would suddenly be asked to return to the courtroom. Does this matter? Are we supposed to be restricting ourselves to discussion about the case to the end, when we have heard all the evidence? Even if that were the case, wouldn’t it better if there were time set aside for the jury to review what they have heard each day to ensure that they have all understood it? That they are all considering the same evidence? It is not unheard of for jurors to lose concentration during some of the more arcane evidence. With, say, 20 minutes each day guaranteed to be available for discussion jurors will develop a better understanding of the issues and evidence as the case proceeds.

And so to the issue of being shuttled in and out of court. This happens regularly, without any explanation beyond ‘we (the court) had things to discuss’. It would have been helpful to know, not the detail, but whatever aspect of the case was being discussed. It was as though, while we struggled to place the pieces of the jigsaw, someone occasionally turned the lights off for a bit – for no apparent reason. I’m guessing here, but I imagine what was going on was the defence arguing that certain pieces of evidence should not go before the jury as being prejudicial rather than probative. It would have helped to know – especially if we were told that the discussion was about witness 13 on your list, from whom you will now not be hearing. But we were told nothing. The general effect is a bit like being treated like a child – yet we are the 12 people who are supposed to comprehend and retain the finer points of some complex financial dealings and come up with a ‘true’ (and hopefully correct) verdict.

Throughout the case all 12 of us scrupulously followed the judge’s admonition not to do any of our own research. The answers to questions we sent to the judge were not wildly helpful, mostly we were told there’s no evidence on that matter, and that we must judge the case only on the evidence before us. We asked, at one point, for clarification on the definition of fraud, and were given the wording from the Act, which we already had. We were told, ‘No Googling!’ So, of course, when it was all over, the first thing we did was to get straight onto the internet, and what we found was very interesting. Now it’s perfectly understandable that we were not allowed to hear about, for instance, similar cases involving a family member of the defendant. But he himself had been involved in civil cases over the same issues we were now considering and the judgements in those cases were very informative, including, for instance, photographic evidence that would have been very helpful to us. Surely matters that have already been considered in (another) court of law could be made available. We would have found it very helpful. For we 12 those judgements constituted, after the event, some useful pieces of the jigsaw. Jurors are sometimes required to set aside previous knowledge of a case (eg through newspaper coverage) and are trusted to do so. So if such ancillary judgements needed to come with caveats, so be it – our system relies on a jury’s ability to take caveats on board when considering its verdict.

My purpose in writing this has been to ask if it’s time to treat complex fraud cases quite differently. Or at least to find a way to supplement and assist a jury of lay people to fully understand the evidence before them. Without such modifications it seems to me that some cases will collapse because the jurors feel that their understanding of the evidence is insufficient to deliver the true verdict they promised.

The fact of strict prohibition against knowledge of jury deliberations is an ancient tenet of the system designed, in part, to prevent endless challenges on the grounds that the jury did not discuss this or that aspect of the case, or indeed made its decision on some basis unconnected to the evidence. Yet that black hole of understanding of how juries go about their business also means it’s impossible to tweak the system so as to improve the jury’s ability to decide the case on the basis of the evidence before them (as they swear to do), and that that evidence has been properly and fully understood. Our unanimous verdict is that it is time now to consider some tweaks.

Oh, and in case you’re wondering, we found the defendant guilty. The verdict was unanimous, we had made ourselves ‘sure’ of his guilt on the evidence before us, the incomplete jigsaw. More pieces, more clues on how they fitted together would have helped, but we could still see the overall picture. Try it for yourself, take a third of the pieces out of a completed jigsaw and stand back to look at the whole – the wheelhouse might be missing, but you can clearly identify The Fighting Temeraire. Can’t you? 

The author is a recent first-time juror who works in television.