On 8th May 2018, following the publication in the New Statesman magazine of an article by Jolyon Maugham QC, I wrote a short blogpost about the findings of a major jury research project in 2016/7 that was conducted by a psychologist, Dr Dominic Willmott. Never done before, the study examined scientifically the extent to which juries trying rape cases are affected by internal prejudices. This blogpost has now been updated and amplified by an article that I wrote for the Law Society Gazette on 21st December 2018.
You can read my article for the Law Society Gazette by clicking here. This is the first paragraph of my article:
“What if I told you that some jurors do not decide cases on the evidence that they hear, but instead on entrenched prejudices and stereotypes that they cannot shake? That as far as those jurors are concerned, the calling of evidence does nothing more than pay lip-service to the concept of a fair trial? Would you be shocked that people could be convicted and imprisoned on the basis of prejudiced and stereotyped jury attitudes? Except that it’s not defendants who are at risk; instead the biases operate against women complainants in rape cases.”
A: Initial reporting of the research findings
The research was reported initially in the world’s media, for example in the Global Legal Post, The Times. The research was raised in Parliament by Ann Coffey, MP, on 21st November 2018. You can listen to Ann Coffey speak here.
B: Previous articles
In his New Statesman article Jolyon Maugham QC describes it as an ‘epidemic’ that only 1.1 to 1.8% of rape victims see their rapist convicted [see FN1, below]. He says that a criminal justice system that produces these results is failing and he questions whether jury trial serves the public interest in rape cases. In reply, Francis Fitzgibbon QC argues that the research does not suggest there is anything “peculiar about rape trials that sets them apart from others” and he resists the temptation to change the rules of rape trials [see FN2]. Neither article, though, considered this research in the field of psychology on these very issues which suggests very strongly that Jolyan Maugham is right to be concerned.
C: Research before the Huddersfield Project
Previously, the role of inherent bias emerging from individual juror characteristics and psychological constructs themselves was less well documented. Such inherent biases included in the main the extent to which individuals held inaccurate and negative assumptions surrounding the crime of rape widely known as ‘rape myth acceptance’.
Finkel (1995) found that there were two types of “law” when it comes to jury deliberations: first there is the “black letter law” enacted by legislators; secondly there is the “law” that “reflects what ordinary people think is just and fair. It is embedded in the intuitive notions jurors bring with them .. when judging both a defendant and the law. It is what ordinary people think the law ought to be”.
Groscrup and Tallon (2006) summarise it in this way: “the two concepts come into conflict when jurors are asked to base their decisions on black letter law as against what they themselves understand as fair and just”.
Further, Vidmar (1997; 2003) characterized the concept of “generic prejudice” as existing where “the nature of the crime or the type of parties involved cause the juror to classify the case as having certain characteristics, thereby invoking stereotyped prejudices about anydefendant accused of the crime”; that it involves “the transfer of pre-existing prejudicial attitudes, beliefs, or stereotypes about categories of persons, entities or events to the trial setting in a legally appropriate manner”.
Hitherto there had been significantly less empirical work on the issue of generic prejudice of jurors in a criminal trial. That is a gap that the Huddersfield research aimed to fill.
D: Abstract from Dr Dominic Willmott’s research
Quotation from the abstract:
“These findings strongly support the assertion that within rape trials, juror decisions are directly related with the attitudes and psychological constructs jurors bring to trial. Evidence that a juror’s psycho-social make-up affects their interpretation of the evidence and ultimately predisposes them towards particular verdict decisions, gives rise to the possibility of needing to screen biased individuals out the jury trial process in the future. Whether change occurs or not to such historical English jury procedures, what can no longer be simply dismissed, is the role of individual juror bias upon trial outcomes within rape.”