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    "Courts, judges and barristers following the rules of evidence excel at finding the facts and applying the law to individual cases. They are good at adjudicating the rights and wrongs of past behaviour according to the law of the land." 

    Janet Albrechtsen, columnist The Australian. June 6, 2018 ... Read more flatulence ... 

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    « Perfidy in peacetime | Main | The Spry letters - round three »

    Jailing jurors who seek the truth

    Trial process trumps the search for truth ... Jurors promise to give a true verdict ... Lawyers and judges don't have to make promises about the "truth" ... The Theodora Dallas case and online research by jurors ... The confines of the adversarial criminal justice system ... Tulkinghorn opines 

    Jurors: searching for a true verdict

    IN July 2011, in the UK, Theodora Dallas, who was then a University of Bedfordshire psychology lecturer, served on a criminal jury.

    She had completed masters and doctoral degrees in the UK and been appointed, after a trial period, to the full time staff at Bedfordshire university. 

    The accused, Barry Medlock, was charged (together with two others) with causing grievous bodily harm with intent.

    The allegation was that the three men had subjected a victim to torture over an extended period, which left him scarred for life.

    Medlock was not alleged to be the worst of the three offenders. It was alleged against him that he obtained boiling water, which was used as a solvent for caustic soda.

    The soda was poured over the victim.

    On April 7, 2009 Medlock had been convicted of a different assault occasioning actual bodily harm. The prosecution, as it can in the UK, sought permission from the trial judge to introduce this evidence of bad character into the 2011 trial.

    In the 2009 trial Medlock and a co-accused had been charged with rape of Medlock's female partner.

    Theodora Dallas: online researchThe co-accused was convicted of rape. Medlock was acquitted of rape, but convicted of assault occasioning actual bodily harm.

    The trial judge and the lawyers in the 2011 case decided that they had to let the jury know something about the 2009 case.

    They told the jury this (and no more):

    "It was a prolonged assault on his then female partner and involved a younger male who played the major role. The defendant accepted that he joined in the assault and kicked his then partner causing her bruising." 

    Theodora decided to check the internet to find out the whole truth, despite warnings given to all jurors not to do their own internet research during trials.

    She discovered the rape aspect.  She told the other jurors. One was to later say that as soon as the word "rape" was spoken, "I could see the faces of the other jurors drop".

    This led, in January 2012, to Theodora receiving a six months jail sentence for contempt (to be released after serving three months) from a court comprised of the Lord Chief Justice of England, sitting with two other Justices. 

    See High Court decision 

    Theodora no longer has a job at the university.

    She was a victim of the clash between the desirability of having sensible, inquisitorial (truth seeking) trial procedure, and the barristerial lust for the enormous fees that can be generated by having "adversarial" procedures (including evidence exclusion).

    The latter turns criminal trials into long-winded, due process ridden, unpredictable affairs, where implementing the profession's concept of a "fair trial" (which is unfair to the victim) is deemed to be more important than having a truthful trial. 

    There are plenty of criminal defence legal aid lawyers in the UK who earn well over £100,000 a year from legal aid alone, thanks to the nonsenses of adversarial criminal procedure.

    These are not impoverished lawyers who work in community law centres. These are fat cat barristers.  

    Here is a small selection, courtesy of an article in the UK Telegraph in December last year entitled "Barristers rake in fortunes from Legal Aid". 

    Clockwise from top-left: John Charles Rees QC, Mark Milliken-Smith QC, Charles Bott QC, Rex Tedd QC, Leonard Smith QC and Balbir Singh

    Those six made £500,000 each. 

    A US assistant law professor, Caren Morrison, has written:

    "While the law defines a fair trial within a due process model that seeks to protect the individual from illegitimate conviction through procedural safeguards, 'due process' is not the jury's main concern. Ask any juror what his or her objective is, and the answer will be to come up with the right decision."

    Indeed, before the 2011 trial began, Theodora would have promised (as Australian jurors do) to give a "true verdict according to the evidence". 

    See juries in England and Wales 

    Jurors are the only "players" in the courtroom who have to promise anything involving truth.

    Their task is impossible, since they aren't given all the evidence and if they do go looking for some, independently, they'll get walloped.

    No one gets the lawyers to swear or affirm that they will tell only what they believe to be the truth. Even the judges promise only to "do right", with no mention of finding out the truth.

    See Australian CJ Gerard Brennan's speech 

    "Do right" is awfully vague, and it does not equate to "get it right".

    Scandinavian judges have to promise to do a lot of things, including to "get it right".

    For example in Sweden a judge promises (chapter 4 section 11) ... 

    "nor will I declare guilty one who is innocent, or innocent one who is guilty." 

    The legal profession can easily justify having a ban on independent jury internet research, but that is only because of the way adversarial trials are structured.

    If the evidence floodgates were thrown open, and frank discussion between judges, juries and lawyers took place, then jurors would say what "truth seeking" research they had done, and the judges would welcome relevant information from relevant sites, while identifying and explaining others that were likely to be leading them astray (for example, sites connected with the Fully Informed Jury Association). 

    Having a truth seeking process and letting fresh air in early on would make trials shorter, which is why the criminal lawyers don't want it.

    How would criminal defence lawyers attract clients if they explained their role in terms of helping the court to find out the truth?

    That's the last thing their clients want.

    Of course, the profession can point to "horror" cases of individual jurors having headed off into internet frolics of their own - the Fraill case being the leading example. 

    The need to stop the likes of Joanne Fraill should not be allowed to lead to people like Theodora (who was really only seeking relevant truth) being jailed.  

    Historically, in England, jurors were the fact finders. This article, by Professor Daniel Klerman, with its unpromising title of Was the jury ever self-informing? actually concludes that, yes, basically, it was.

    In a telling vignette, another legal academic says, of this early history of jury trials, that:

    "There are suggestions that a jury might go knocking on someone's door to question them." 

    See: A Social History of English Law by Alan Harding, Penguin Books, 1966, page 127. 

    Igor Judge LCJ: skilfully avoided the difficult questions

    Modern juries can now knock on the doors of the internet, and as Jacqueline Horan in The Age pointed out on January 11, quite a lot of them are going to do it, even if the trial judge tells them not to.

    Punishing Joanne Fraill was fair enough, but Theodora's case was very different.

    The failure to tell the jury about the rape amounted to contempt of jury.

    Contempt of court is an offence.

    Contempt of jury, by judges, isn't.

    The law is riddled with stuff that is bad when lay people do it, but OK when done by lawyers and judges.

    The judgment of the Lord Chief Justice supported his condemnation of Theodora by saying (at para 70): 

    "She skilfully avoided the difficult questions by finding refuge in carefully prepared answers." 

    That's pretty much what the Lord Chief Justice was up to, as well.

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