Jury trials - alternatives: evidence briefing

Footnotes

1. The recommendation is part of the Lady Dorrian Review. The report made six recommendations on the management of sexual offence cases, of which two referred to jury trials. Recommendation four suggests steps to enhance the quality of jury involvement. Recommendation five asks for consideration to be given to "developing a time-limited pilot of single judge rape trials to ascertain their effectiveness, how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way"`(p.118).

2. Elisabeth McDonald. (2022). In the Absence of a Jury. Canterbury University Press.

3. Research articles include studies that discuss (novel) research projects performed by the authors of the study. Review studies analyse and summarize research articles on a specific topic.

4. Page 117-118 of the Lady Dorrian Review.

5. Offit, A. (2021) Dismissing the Jury: Mixed Courts and Lay Participation in Norway. In S. Ivković, S. Diamond, V. Hans, & N. Marder (Eds.), Juries, Lay Judges, and Mixed Courts: A Global Perspective. p. 197-217. Cambridge: Cambridge University Press. doi:10.1017/9781108669290.004

6. See for example the BBC article: Lord Advocate Dorothy Bain suggestion to consider single judge trials

7. An example is Victoria State in Australia, where single judge trials (consented by accused) were introduced through amendments to the Criminal Procedure Acts 2009 in April 2020. However, the legislation was repealed in April 2021.

8. George, R. and Ferguson, S. (2021) Review into the Criminal Justice System response to adult rape and serious sexual offences across England and Wales. Research Report, HM Government.

9. Daly, E. (2021) Court Observations of English Rape and Sexual Assault Trials: An Intersectional Analysis. PhD Thesis, Anglia Ruskin University.

10. Elisabeth McDonald. (2022). In the Absence of a Jury. Canterbury University Press.

11. Chalmers, J., Leverick, F. and Munro, Vanessa (2021) Why the jury is, and should still be, out on rape deliberation. Criminal Law Review, 9 . p. 753-771

12. Thomas, C. (2020) The 21^st Century Jury: Contempt, Bias and the Impact of Jury Service. Criminal Law Review, 11, p. 987-1012

13. Goodman-Delahunty, J., Martschuk, N., Lee, E. and Cossins, A. (2021) Greater Knowledge Enhances Complainant Credibility and Increases Jury Convictions for Child Sexual Assault. Frontiers in Psychology, 12: 624331.

14. Dowds, E., McAlinden, A. and Killean, R. (2021) Putting sexual violence on trial – Challenges and future directions. In Killean, R., Dowds, E. and McAlinden, A (eds). Sexual Violence on Trial – Local and Comparative Perspectives. p. 258. London, Routledge. https://doi.org/10.4324/9780429356087

15. Burman, M. and Brindley, S. (2021) Challenges in the investigation and prosecution of rape and serious sexual offences in Scotland. In Killean, R., Dowds, E. and McAlinden, A (eds). Sexual Violence on Trial – Local and Comparative Perspectives. p. 254-255. London, Routledge. https://doi.org/10.4324/9780429356087

16. Hanlon, F. (2014). Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia. Journal of judicial administration 23, p. 137-157

17. Hanlon references Vicki Waye (2003) Judicial Fact-Finding: Trial by Judge Alone in Serious Criminal Cases. Melbourne University Law Review, 27, p. 423 – 457. The study send a survey to members of the Circuit Court in Eugene, Oregon and members of the District Court and Supreme Court of South Australia. It is however unclear how many judges participated.

18. Elisabeth McDonald. (2022). In the Absence of a Jury, p. 313. Canterbury University Press. Available at: In the absence of a jury (online)-G10.pdf (canterbury.ac.nz)

19. Ellison (1997) A Comparative Study of Rape Trials in Adversarial and Inquisitorial Criminal Justice Systems. PhD thesis, University of Leeds.

20. Dowds, E., McAlinden, A. and Killean, R. (2021) Putting sexual violence on trial – Challenges and future directions. In Killean, R., Dowds, E. and McAlinden, A (eds). Sexual Violence on Trial – Local and Comparative Perspectives. p. 254-255. London, Routledge. https://doi.org/10.4324/9780429356087

21. O'Leary, J. (2011). Twelve angry peers or one angry judge. An analysis of judge alone trials in Australia. Criminal Law Journal, 35, p. 154 - 169

22. Hanlon, F. (2014). Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia. Journal of judicial administration 23, p. 137-157

23. Breger, M.L. (2019). Making the invisible visible: exploring implicit bias, judicial diversity, and the bench trial. University of Richmond Law Review, 53, p. 1039 - 1083

24. Elisabeth McDonald. (2022). In the Absence of a Jury. Canterbury University Press.

25. Offit, A. (2021) Dismissing the Jury: Mixed Courts and Lay Participation in Norway. In S. Ivković, S. Diamond, V. Hans, & N. Marder (Eds.), Juries, Lay Judges, and Mixed Courts: A Global Perspective. p. 197-217. Cambridge: Cambridge University Press. doi:10.1017/9781108669290.004.

The study ran from July 2014 to July 2017 and included interviews with 20 prosecutors, 12 professional judges, 5 defence attorneys and 6 former lay decision-makers. It also included conversations with journalists, politicians and legal academics who contributed to the jury reform.

26. Mika Obara-Minnitt (2018) The Sacrifices behind the "Success" of Saiban-in Seido (Quasi-Jury System), available at ACS44_02Obara.indd (core.ac.uk)

27. Scottish Crime and Justice Survey 2019/20, available at: Scottish Crime and Justice Survey 2019/20: main findings - gov.scot (www.gov.scot)

28. Roberts, J.V. and Hough, M. (2011). Public Attitudes to the Criminal Jury: a Review of Recent Findings. The Howard Journal, 50, p. 247-261

29. It is unclear from the information provided by Roberts and Hough what the sampling method of this survey was.

30. Diamond, S.S. and Salerno, J.M. (2020) Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges. Louisiana Law Review, 81, p. 119-163

31. The sample included both professionals working in the civil justice and criminal justice system and included 173 judges, 70% state and 30% federal, and 1,282 attorneys, 63% who handle primarily civil cases, 33% who handle primarily criminal cases, and 4% who did not indicate whether they primarily handle civil or criminal cases.

32. George, R. and Ferguson, S. (2021) Review into the Criminal Justice System response to adult rape and serious sexual offences across England and Wales. Research Report, HM Government. Available at: Review into the Criminal Jutsice System response to adult rape and serious sexual offences across England and Wales (publishing.service.gov.uk)

33. Willmott, D, Boduszek, D., Debouska, A. and Hudspith, L. (2021). Jury decision-making in rape trials: an attitude problem? In: Crighton, D.A. and Towl,G.J. (eds), Forensic Psychology, Chapter 5. West-Sussex, Wiley, 3^rd edition

34. Waterhouse, G.F., Reynolds, A. and Egan, V. (2016). Myths and legends: The reality of rape offences reported to a UK police force. The European Journal o Psychology Applied to Legal Context, 8, p 1-10

35. Hanlon, F. (2014). Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia. Journal of judicial administration 23, p. 137-157

36. Sager, B.R., Wentzlof, C.A. and Stinson, P.M. 2021. Bench vs Jury Trials: Sentencing and Conviction Outcomes for Criminally Charged Police Officers. Criminal Justice Faculty Publications 121. Available at: "Bench vs. Jury Trials: Sentencing and Conviction Outcomes for Criminal" by Bethany R. Sager, Chloe Wentzlof et al. (bgsu.edu)

37. Givelber, D. and Farrell, A. (2008). Judges and Juries: The Defense Case and Differences in Aquittal Rates. Law and Social Inquiry, 33, p. 31 - 52

38. Goodman-Delahunty, J., Martschuk, N., Lee, E. and Cossins, A. (2021) Greater Knowledge Enhances Complainant Credibility and Increases Jury Convictions for Child Sexual Assault. Frontiers in Psychology, 12: 624331.

While the study looked at child sexual assault cases specifically, these cases encounter similar problems as adult rape cases, with misconceptions on delay in reporting, ability to resist assault and perceived credibility of the victim.