Judge or Jury? a legal conundrum

Abstract

Jury trials have long been a cornerstone of common law and one of the essential liberties of a free country. There are times when the accused can elect for their case to be heard by a single judge or a jury and they will naturally make the decision that they feel will maximise their chance of an acquittal. In a non-jury trial, a judge has the responsibility for interpreting the relevant laws and, on occasions in higher level cases of importance, there may be a panel of judges, usually 3, 5, 7 or even 9. There are many points of view on the best option for the defendant and these are discussed at length. But there is also a scientific approach and the first part of this paper deals with the change in a probability of a decision based on the size of the judicial panel, along with whether it is in the best interests of an accused to elect a smaller panel or the largest possible. The second part considers the switch to unanimous rather than majority verdicts in cases and just who benefits.

Headnote

Abstract

Jury trials have long been a cornerstone of common law and one of the essential liberties of a free country. There are times when the accused can elect for their case to be heard by a single judge or a jury and they will naturally make the decision that they feel will maximise their chance of an acquittal. In a non-jury trial, a judge has the responsibility for interpreting the relevant laws and, on occasions in higher level cases of importance, there may be a panel of judges, usually 3, 5, 7 or even 9. There are many points of view on the best option for the defendant and these are discussed at length. But there is also a scientific approach and the first part of this paper deals with the change in a probability of a decision based on the size of the judicial panel, along with whether it is in the best interests of an accused to elect a smaller panel or the largest possible. The second part considers the switch to unanimous rather than majority verdicts in cases and just who benefits.

Keywords: jury, judge, law, probability, verdict

1.Introduction

A jury plays an important role in criminal justice procedures and provides legitimacy for the legal system. Members are chosen to represent a fair crosssection of the community and its verdict may be viewed as the product of fair consideration. They are also seen as representing community standards and deciders of what a reasonable person would be expected to conclude. At the end of a jury trial, the jury retires to deliberate their verdict in the jury room. They may ask a question of a judge during this period, but in most cases only delivers their verdict.

In cases without a jury, a judge is the sole determinant of fact. They must consider all the evidence without passing judgment until all sides of the story are heard. A judge must be seen as fair and unbiased, as well as having an excellent knowledge of the law. In many cases there may be a defendant who is on trial for a breach of the law, and it is the judge who decides what sentence, if any, to give to an offender who is found guilty.

A judge must hear submissions from the prosecution and defence, satisfy themselves about the facts of the case and apply the law. They must also abide by any relevant sentencing principles when determining the appropriate sentence. If an offender is sentenced to prison, a judge must state their reasons for the sentence in open court and make sure these reasons are recorded and explain the sentence to the offender who must consent to the order and agree to comply with it.

2.Judge or Jury?

Courtroom procedures vary from country to country and even between courts. For example, in the USA the highest court is the Supreme Court, first assembled in 1790, and there are nine Supreme Court justices. This figure was set by Congress and has varied from 5 to 10, although there have been nine justices since 1869. In this court, at the conclusion of oral arguments, a case is submitted for decision and this is made by a majority vote of the justices. For a case to be heard there must be a quorum of at least six Justices (Supreme Court USA).

Also in the USA, a jury is not required to provide any explanation for its verdict or reveal any information about how they arrived at their decisions. Most criminal cases in the USA end in dismissals or guilty pleas. If a case does go to trial, and the defendant does not exercise the right to a jury trial, it will be decided by a judge. Each year there are an estimated 150,000 jury trials taking place in state courts, with a further 10,000 in federal courts.

An evaluation of the behaviour of juries can be made by comparing their decisions with those made by judges. An extensive study by Kalven and Zeisel (1966) involved 3,576 trial questionnaires filled out by 55 trial judges throughout the US. The trial judges were asked how the jury decided a case, how they would have decided the same case in the absence of a jury, and the reasons for their disagreements with the jury. It found that that in only 9 per cent of the cases the judge was critical of the jury's performance, even though they gave a different verdict than the judge would have given in 19 per cent of the cases. Overall, in 78 percent of the cases, the judge and jury agreed on the verdict. When there was disagreement, the judge would have convicted when the jury acquitted in 19 percent of the cases, while the jury convicted when the judge would have acquitted in 3 percent of the cases. This imbalance indicates that a jury may well be more lenient than a single judge.

In Australia, a study revealed that in 2009 there were only 53 judge-only trials in the largest state of NSW out of a total of 575, or about 10%. The acquittal rate for judge-only trials was just 17.3% - far lower than the acquittal rate for jury trials of 43.8%. However, by 2014, judge-only trials had become much more commonplace in the state, accounting for a quarter of all trials. And by then the acquittal rate was much more even, with 33.3% for judge-alone and 35.2% for jury trials (Holmes & Nedim, 2018). A study (Clough et al., 2019) into the practices of Australian and New Zealand judges found that the most striking development in this field in the previous ten years is the extent to which judges and policy makers now accept that some jurors have difficulty understanding jury instructions and other communications from the court during a criminal trial. Trial by jury is fundamental to the justice system in Australia. Juries comprise members of the public who make evidencebased decisions about their fellow citizens in criminal trials in all Australian states and territories.

The effectiveness of juries is reliant on their understanding of the judge's instructions to them. This research study, by the Centre for Forensic Behavioural Science at Swinbourne University, included a survey of almost 200 criminal trial judges from Australia and New Zealand about their practices with juries.

It determined that between 2010 and 2011 in the state of Victoria, 136 retrials, or 10% of appeals, were ordered because the jurors misunderstood the judge's directions. Appeals and retrials are very expensive and add to the trauma experienced by victims of crime and their families. Their research revealed that different approaches to directing the jury significantly improves their capacity to apply the judge's instructions (Spivak et al., 2020).

Subject to a set of conditions, a defendant or prosecutor may apply for a District or Supreme Court trial to be tried by a judge alone, this being referred to as a 'trial by judge order'. In some Australian states (NSW, South Australia, the ACT, Queensland and Western Australia), a person accused of a serious crime may select a judge only trial, or a bench trial by a panel of judges if the case is complicated and dependent on complex evidence. The defendant will naturally want to maximise their chances of acquittal, although the choice isn't always obvious as it depends on many factors. For example, suppose they feel they have a strong case with, say, a 90% chance of convincing a judge of their innocence, would they be better off with a single judge or trying their luck with a panel of three judges? And what are the chances that at least one of a jury of twelve would be adamant they are innocent?

These probabilities are explored in the next section, but it instructive to examine what practitioners suggest from their own experiences. In an interview (Sutton, 2013), the former chair of the NSW Law Society's Criminal Law Committee is quoted as declaring "if the issues in the case are so technical they would be hard for a jury to understand and with lots of expert witnesses, then the accused's legal team or the prosecution may opt for a judge only trial."

Sutton (2013) added that another reason may be that the accused is unlikely to get a fair trial because the case has been covered in the media and it would be in their interest to have a judge only trial, because otherwise there may be a retrial. If the accused opposes it and opts to be tried by a jury of their peers, then the judge will allow a jury trial. "In these circumstances, by their training a judge is less likely to be swayed by what has been reported in the media although a judge "might be perceived as being elite" and less in touch with grassroots issues and the community", maintaining that jury trials were still the preferred system in all Australian states as "this ensures community participation in the administration of criminal law". She concluded with it is "fundamental to the age-old thing that our guilt or innocence is judged by our peers rather than someone who might not be in touch with what the ordinary community is thinking."

Another to be interviewed was an eminent barrister and former Senior Crown Prosecutor who was of the view that a judge only trial can increase a guilty person's chance of acquittal in certain circumstances. He stated that "if I have a really sound case at law, I'd want a judge, and if I have a case running on the vibe, I'd want a jury." In jury selection, both the prosecution and the defence get the chance to reject candidates on the grounds they may be prejudiced against the accused. He believed that most jurors will not reveal that they looked at the case on the internet, but felt that they do so later on. "It's only natural for them to be inquisitive and we all know in reality this is what they do, so you have to take that into account when making the choice between a judge or jury trial." Also, juries are swayed by many different factors which are not always logical or reasonable. These include physical appearance, religious beliefs and race or ethnicity.

The barrister's view was that, if the prosecution had an "extremely weak" case against the accused, they should opt for a judge only. He stated that "It may be a weak circumstantial case, or a case dependent on a single identification witness. I have found that, over the years, the common experience is a judge is trained as a lawyer and by his training and experience finds it relatively easy to decide whether a person is guilty or not guilty beyond reasonable doubt. In the case of a jury trial, judges are almost excluded from explaining to juries what reasonable doubt [means]. Judges understand the phrase, [juries] don't."

A defence lawyer may opt for a jury trial when their client has major public support or sympathy. The other case in which a jury trial is the best choice is when the case is overwhelmingly strong against the accused. "When the accused is guilty but insists on a plea of not guilty, we always go before a jury because there is a chance we might just get lucky." Jury trials tend to be longer and more drawn out, because the jury must be absented from the courtroom whenever legal argument or prejudicial evidence is to be heard. Juries can also take longer to deliberate on their verdict and in this sense a judge only trial is shorter and more efficient. There are other considerations. Suppose you are the defendant in a high profile case and scandalous things have been said about you on social media. Are you likely to get a fairer assessment on your innocence than a jury of twelve people selected from the community?

In another point of view, Nedim (2014), if a defendant facing a criminal matter in the district or Supreme court, they will most often be tried in front of a jury. Although it is not possible to choose who is going to be on the jury at any trial, the legal representation for both sides has the option of requesting that up to three individual jurors be removed. Nedim (2014) also argues that advocates of jury trials generally state the benefits of having a group of people decide rather than putting the responsibility in the hands of a single person. They conclude that it reduces the chance that a single person's bias or prejudices could influence the outcome. Moreover, a jury trial can more accurately reflect the views of the community and society as the jury is taken from a sample of members of the public. On the other hand, a single judge may be out of touch with the views of regular society, and their decision may not reflect the values of the community as a whole. When a judge delivers their verdict, they will generally provide reasons for their decision.

So, when might a trial by a single judge be preferable for the defendant? There are several scenarios, including, for example:

* The process of a trial by jury means that jury deliberations are secret, and they do not have to provide any reasons for making their decision. Knowing the reasons why a judge decided on a guilty verdict makes it easier for a defendant to appeal and makes the process more transparent.

* In cases where there is a great deal of media attention, especially if it is unfavourable, it is possible that potential jurors will be prejudiced against the defendant, and a single judge may provide a better chance of acquittal.

* If you are dealing with a complex or potentially lengthy matter, a judge-alone trial may also be better as a judge will have a better understanding of the legal complexities involved.

3. A Panel of Judges

A question of interest is whether an applicant who appears before a court has a better chance of success if they are facing a single judge or a panel of judges. The answer is not straight forward and depends on several factors and reasonable assumptions. The first of these is that the judges act independently - that is, listen to and weigh up the evidence before coming to a decision. Although at the end of the day there are decisions that may be written jointly if the judges agree, the decisionmaking process must be independent or the whole process will fail. In some courts there will be a judge who will have the reputation as a 'dissenter' as their conclusion often disagrees with that of their colleagues.

Depending on the case being heard, some defendants will have a strong chance of success while others have a weaker case. Bear in mind that the defendant knows if they are actually guilty or not. Lawyers are often able to give their client a figure, based on the history of similar cases, that they will be successful an individual judge based on that judge's history with them.

4. A Statistical Model

We will consider the case where an applicant to the court is assessed as having a probability p of a successful outcome with any particular judge and that this probability is the same for each judge (who hears the same evidence) and that the judicial decisions are independent. A successful outcome may mean acquittal or a very light sentence.

In this case statistics can be used to estimate the overall probability of a successful outcome for a defendant based on varying size panel of judges. In general, when cases are heard by a panel there is usually an odd number so that a clear majority verdict can be obtained. This is the scenario considered here, with up to a maximum of nine judges on the bench to include the US Supreme Court scenario.

For an applicant to be successful in a panel of 3 judges there must be either 2 or 3 in their favour; for 5 judges there must be 3 or more; for 7 judges 4 or more and 9 judges 5 or more. These calculations are easily performed using a binomial distribution and a statistical computer program. The resulting probabilities (to two decimal places) of a favourable decision for selected values of p and varying panel sizes are shown in Table 1.

So, for example, if a lawyer feels that their client has a fairly strong case and there is a 70% chance that a single judge would deliver a favourable verdict, from Table 1 this would rise to 78% chance for at least 2 of 3 judges and 90% for at least 3 out of 5 judges. In general, if the chance of success with an individual judge is estimated at above 0.50 (that is, more likely to win than lose), then the more judges on the panel the more likely that the applicant will have a successful outcome.

On the other hand, if the client's case is somewhat weak and there is, say, a 30% chance that a single judge would deliver a favourable verdict, from Table 1 this would decrease to 22% chance for at least 2 of 3 judges and 16% for at least 3 out of 5 judges. In general, if the chance of success with an individual judge is estimated at below 0.50 (that is, less likely to win than lose), then the more judges on the panel the less likely that the applicant will have a favourable outcome.

If the chance of success is estimated at exactly 0.50 (that is, an even money bet) with any particular judge, then it doesn't matter how many judges are on the panel as the overall probability of a majority verdict remains the same at 0.50. It follows that an optimal strategy, if given the choice of the number of judges on the panel, is to select a high number if you feel your case is strong and have it heard by a single judge if your case has less than a 50-50 chance of success.

5.Juries

The size of juries in criminal cases varies from country to country and even from state to state within those countries. In Australia there are juries of size 12 where a unanimous verdict is required and up to 15 jurors can be empanelled if a trial is expected to last longer than three months. In NSW, for example, the requirements of a unanimous jury of 12 were amended in 2006 to allow for a majority verdict of 11 jurors in criminal trials in certain circumstances (Jury Act 1977, section 55F). A defendant charged with an indictable offence in New South Wales has a right to trial by jury may elect to be tried by a judge alone (Criminal Procedure Act 1986, section 132). Majority verdicts in civil cases are also allowed for now under the Jury Act 1977, section 57.

In the UK, which also has 12 jurors, a majority verdict of 10-2 is sufficient for a conviction. In Scotland however, a jury in a criminal trial consists of 15 jurors, which is thought to be the largest in the world. Curiously though, a Scottish jury can convict or acquit on a simple majority. Indeed, an accused can be sentenced to life on the basis of an 8-7 vote (Scottish Government, 2021). If fewer than eight jurors declare a guilty verdict then the accused is acquitted, so a hung jury is an impossibility in Scottish criminal law. One study (Uhlig, 2001) concluded that a jury of 12 people was ineffective because a few jurors ended up dominating the discussion, and that 7 was a better number because more people feel comfortable speaking, and they have an easier time reaching a unanimous decision.

Juries are subject to strict rules about their behaviour during the trial, particularly the use of information. In fact, they are usually instructed to avoid learning about the case from any source (such as the media) other than the trial and to not attempt to conduct their own investigations (such as independently visiting the crime scene). To avoid instances such as this, juries may be sequestered for the deliberation phase or even for the entire trial.

A jury decision to acquit is treated as inviolable, while jury decisions to convict may be, and often are, overturned. The sanctity of the jury's decision to acquit is reinforced by the fact that, by way of contrast, if a defendant is acquitted by a judge, that decision can be appealed in limited circumstances (Albrechtsen, 2022).

In the United States, juries are also entitled, when asked to do so by a judge in their jury instructions, to make factual findings on particular aggravating circumstances which will be used to elevate the defendant's sentence, if the defendant is convicted. The issue of whether juries correctly understand the law in death penalty trials was examined by selecting a random sample of over 200 jurors in such trials (Stoots- Fonberg, 2003). It concluded that that comprehension is low when jurors are only exposed to instructions written by the State. However, when jurors were given a more detailed explanation of certain problematic terminology, their understanding increased significantly.

In most other legal systems based on the English tradition the judges retain sole responsibility for deciding sentences according to law. The exception is the award of damages in English law libel cases, although a judge is now obliged to make a recommendation to the jury as to the appropriate amount (Westcott, 2006).

So how do the chances differ of being convicted between countries? Some basic statistics can help us answer this question (Croucher, 2013) and the formulae are included for the mathematically inclined reader, although an understanding of them is not necessary to interpret the end result. We will consider three cases, namely:

* A 12-0 decision for conviction is necessary

* A 10-2, 11-1 or 12-0 decision is sufficient for a conviction

* An 8-7 decision or more is sufficient for a conviction

Once again, we will assume independence of thought by each juror (or although in practice it may be that some jurors can influence others). Define: Let p = the probability that an individual juror will deliver a verdict of not guilty.

It follows that

1- p = the probability that an individual juror will deliver a verdict of guilty

Of interest here is the probability, in terms of p, that each of the juries overall would find the defendant guilty. As the assumptions are met, using the binomial theorem we have:

A 12 - 0 decision of guilt is necessary to convict (US and Australia)

The probability of conviction = (1 - p)12

A 12 - 0, 11 - 1 or 10 -2 decision of guilt is necessary to convict (UK)

The probability of conviction = (1 - p)12 + 12p (1 - p)11 + 66p2(1 - p)10

A 15 - 0, 14 - 1, 13 - 2, 12 - 3, 11 - 4, 10 - 5, 9 - 6 or 8 - 7 decision of guilt is necessary to convict (Scotland)

The probability of conviction = £15Cr (I - p) rp15-r where r = 8 to 15

Even though it is clearly far easier to be convicted in Scotland, the magnitude of this difference is difficult to ascertain without appropriate calculations. Table 2 shows the probability (to three decimal places) that a defendant will be convicted under each system for varying values of p (the probability a juror will find the defendant not guilty).

For example, suppose there is an 70% chance that an individual juror will find the defendant guilty. Then p = 0.30 and so 1 - p = 0.70. From Table 2, the probability of a guilty verdict in a unanimous 12-person jury is 1.4%, in a 10-2 or more jury is 25.2% and in an 8-7 or more jury is 95%.

The differences between the three systems can be better seen through the visual display shown in Figure 1 where the rapid rise of the chance of a guilty verdict is seen, especially at the lower probabilities that an individual juror may vote not guilty.

In Figure 1 the stark contrast between the three systems can be seen. Under the 12-0 rule it is very difficult to obtain a guilty verdict and even if, for example, each juror feels there is a 90% chance of guilt, a conviction would only take place 28% of the time. But under the 10-2 rule this rises markedly to 89% and the 8-7 rule to essentially certainty.

6. Remarks

This paper has provided a guide on the effect of favourable outcomes for various legal situations that can affect not just individuals but a business that has been charged with a criminal offence. Further research could include a more in-depth study of the various models offered by a wider range of countries (e.g., New Zealand allows a conviction on a 10-1 or 11-1 verdict).

There is scope for more research when estimating the probability of acquittal in various scenarios. For example, the severity of charge may be a factor in deciding whether to opt for a judge only trial. However, there seems to be no evidence that the sentence imposed by a judge would be any different whether they personally made the verdict, or it was done by a jury. An exception to this might be if a judge privately disagreed with a jury verdict of guilty as, although they cannot overturn this, may be inclined to pronounce a more lenient sentence.

To conduct such an analysis is difficult as it cannot be known precisely is in the mind of a judge and they may be reluctant to be openly critical of a jury verdict. However, a separate study could be conducted on trials that are for serious crimes or where the possible sentence may be oppressive.

There are of course other factors that may come into play when determining an optimal strategy for a defendant. Among these is the ability and reputation of the legal counsel for the defendant and whether they are top class, legal aid (public defender) or somewhere in-between. The characteristics of the defendant, including ethnicity, gender and age may also play a part in the probability of acquittal. The composition of the jury, combined with these factors, can also have a profound effect on their decision. All of these elements can of course combine in quite complex ways.

References

7. References

Albrechtsen, J. (2022). Human factor means juries fallible but we defend system for democracy's sake. Weekend Australian, https://www.theaustralian.com.au/inquirer/human-factor-means-juries-fallible-but-we-defend-system-for-democracys-sake/news-storv/087b7b19d41e246c9a66756edd31ae6c

Clough, J., Spivak, B., Ogloff, J. R., Ruffles, J., Goodman-Delahunty, J., & Young, W. (2019). The jury project 10 years on: practices of Australian and New Zealand judges. Australasian Institute of Judicial Administration, Melbourne, VIC. https://research.monash.edu/files/271839943/270928892 oa.pdf

Croucher, J. S. (2013). The Probability of a guilty verdict in criminal trials. Journal of international management studies, 13(4), 107-112. https://doi.org/10.18374/UMS-13-4.13

Holmes, Z., & Nedim, U. (2018). When Can a Defendant be Granted a Judge-Alone Trial in NSW? Sydney Criminal Lawyers, https://www.sydneycriminallawyers.com.au/blog/when-can-a-defendant-be-granted-a-judge-alone-trial-in-nsw/

Kalven, H., & Zeisel, H. (1966). The american jury. Chicago, Ill: University of Chicago Press. https://www.oip.gov/ncirs/virtual-library/abstracts/american-iury

Nedim, U. (2014). Is it Better to Have a Jury Trial or a Judge-Alone Trial? Sydney Criminal lawyers. https://www.sydneycriminallawyers.com.au/blog/is-it-better-to-have-a-jury-trial-or-a-judge-alone-trial/

Scottish Government. (2021). Part 3: Jury Size. gov.scot<https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation /pages/4/

Spivak, B., Ogloff, J., Clough, J., Tinsley, Y., & Young, W. (2020). The Impact of Fact-Based Instructions on Juror Application of the Law: Results from a Trans-Tasman Field Study. Social Science Quarterly, 101(1), 346-361. https://doi.org/10.1111/ssqu.12722

Stoots-Fonberg, C. A. (2003). Misguided instructions: Do jurors accurately understand the law in death penalty trials? East Tennessee State University. https://dc.etsu.edu/etd/737

Sutton, C. (2013). Judge or jury? Your life depends on this decision. NewsComAu. https://www.news.com.au/national/1udge-or-1ury-your-life-depends-on-this-decision/news-story/88642a5ea34e22e7a7bc34eb4bc21351

Uhlig, R. (2001). Juries are 'too large for correct verdicts'. Telegraph Media Group Limited. https://www.telegraph.co.uk/news/uknews/1339399/iuries-are-too-large-for-correct-verdicts.html

Westcott, M. (2006). MajorityJury Verdicts in Criminal Trials. Queensland Parliamentary Library. https: / / documents.parliament.qld.gov.au/explore/researchpublications/researchbriefs/20 06/rbr200604.pdf