Methods of conveying information to jurors: evidence review

1. Introduction

This evidence review of methods of communicating information to jurors was commissioned following the Post-Corroboration Safeguards Review (2015), which noted that there may be "scope for clarifying and simplifying the language used in some aspects of jury directions, and varying the means of communicating these directions". ^[1] The Review also indicated support for improving the "quality and effectiveness of the information that is communicated to jurors". ^[2]

In this evidence review, we identify a number of ways in which methods of communicating with jurors might be improved and we assess the empirical evidence of their effectiveness and the extent to which they have been adopted in other jurisdictions. In this introductory chapter, we set out the remit and structure of the remaining sections of the review and briefly consider why juror communication might be a problem.

1.1 The Remit and Aims of the Evidence Review

The Specification of Requirements (the document in which the Scottish Government set out its requirements for this research) states that: ^[3]

Although no formal recommendations were made in relation to communications to the jury in the Safeguards Review, the Scottish Government is keen to explore which methods enhance the recall and understanding of information, including evidence and judicial directions communicated to jurors in criminal trials.

As such, the remit of this review is to identify methods by which the recall and understanding of evidence and directions might be enhanced, and to evaluate the empirical evidence relating to their effectiveness. An initial review of the literature indicated that there are eight relevant methods that have been subjected to at least some empirical testing, namely:

• Trial transcripts
• Juror note-taking
• Audio-visual and digital presentation methods (such as giving jurors tablets)
• Juror questions
• Pre-instruction
• Plain language directions
• Written directions
• Structured decision aids (such as routes to verdict)

Other suggestions have been made (such as having a trained facilitator present during deliberations to assist the jury) ^[4] but these have not been subject to empirical investigation so are not included in this review.

1.2 Why Should we be Concerned About Methods of Communicating Information to Jurors?

At present, the way in which a jury trial operates in Scotland is as follows. At the outset of the trial, jurors are normally given some brief preliminary directions by the trial judge on general matters (such as the different functions of the judge and jury, the presumption of innocence and the burden and standard of proof). A trial then proceeds directly to the evidence - there are no opening speeches from either the Crown or defence. Only after all the evidence has been led are jurors directed by the trial judge on the legal issues relating to the case. Trial judges do not summarise the evidence for juries. Some limited comment on the evidence may be made, but only to the extent that this is necessary for the jury to understand the legal issues to be determined. ^[5] In Scotland, jury directions are understood to be generally shorter than in some other jurisdictions, ^[6] where it is not uncommon for them to last several hours. ^[7] The total length of a jury trial in Scotland - including both the evidence and the directions - could be anything from a couple of hours to several weeks or months. The latest figures available suggest that the average jury trial lasted for five days in the High Court and two days in the Sheriff Court. ^[8] After hearing the evidence and the directions, jurors retire to deliberate and return a verdict.

All of this poses a number of challenges for jurors. Memory - both for the evidence and for the content of the directions - is likely to be a particular challenge, especially in a lengthy and/or complex case. The absence of specific preliminary directions or opening speeches means that jurors are not given any kind of organising framework before they hear the evidence, beyond the indictment and any special defence that has been lodged. This may affect jurors' ability - at the point at which they hear it - to understand how a particular piece of evidence fits into the overall picture. This may, in turn, have a detrimental effect on the degree of attention they devote to it and/or their memory of it. There may also be challenges in terms of comprehension. This might be in relation to particular types of evidence, such as complex scientific evidence ^[9] or in relation to understanding the legal tests that jurors are required to apply.

On the latter of these, a considerable body of research has assessed the extent to which juries comprehend legal directions and, as Comiskey puts it, this has "almost unanimously concluded that a jury's ability to comprehend [them] is poor and that there is room for considerable improvement". ^[10] It is not within the remit of this review to set out the findings of these studies in detail. ^[11] It is worth noting, however, that jurors think they understand legal concepts better than they actually do ^[12] and that confidence does not necessarily equate to accuracy. ^[13]

It has sometimes been suggested that we do not need to be particularly concerned about these challenges because the deliberation process itself acts as an effective method of improving memory and understanding. ^[14] The jury, by collectively pooling the individual memories of its members, may fill in any gaps in individual memory of the evidence and directions, and any errors in individuals' understanding will be corrected by other members of the group.

There is evidence to suggest that deliberation is effective at correcting errors relating to the evidence. In a highly realistic mock jury experiment in which 18 mock juries watched a 2.5 hour video of a mock homicide trial and then deliberated in groups of 12 for up to an hour, Ellsworth found that "none of the juries maintained an erroneous perception of an important fact after the hour of deliberation". ^[15] Dann et al, in a study involving 48 mock juries who deliberated in groups of eight with no time limit, found that deliberation significantly improved understanding of DNA evidence ^[16] and, in a later analysis, that those with the lowest initial levels of comprehension made the biggest gains following deliberation. ^[17]

Deliberation appears to be less effective, however, at improving comprehension of legal directions. In the mock jury study noted above, Ellsworth found that one fifth of all statements made by individual jurors about the law were "clearly, seriously wrong" ^[18] and that these were rarely corrected by other jurors. In a study that involved recording the deliberations of 50 juries in real civil trials, Diamond et al found that only 47 per cent of incorrect statements about the law made by jurors were corrected by other jury members. ^[19] This is perhaps unsurprising. Deliberation will be effective in this respect only if, as Diamond puts it, "a significant proportion of the jurors begin deliberations with correct information; otherwise, deliberation may simply reinforce the inaccuracies of the majority". ^[20] Ellsworth also found that, typically, the most forcefully expressed position about the law prevailed, whether or not it was correct. ^[21]

1.3 Jury Communications in Scotland

The extent to which the eight methods of enhancing recall and understanding of evidence and directions identified above appear to be presently used in Scottish jury trials is as follows. This text draws on the Judicial Institute for Scotland's Jury Manual and reported case-law, and has been reviewed by members of the judiciary.

1.3.1 Trial Transcripts

Trial proceedings are recorded but not routinely transcribed. A transcript can be requested by a party to the trial after it has concluded (to help, for example, in the preparation of an appeal), but jurors are not offered the option of requesting a full or partial transcript.

1.3.2 Juror Note-taking

Jurors are told in the information leaflet they are given that they may take notes if they wish, and that writing materials will be provided, ^[22] although it does not appear to be standard to re-emphasise this in the opening directions.

1.3.3 Audio-visual and Digital Presentation Methods

There is no evidence of the use of audio-visual presentation methods or of providing digital information to jurors on tablets.

1.3.4 Juror Questions

Jurors may (normally via the judge) ask questions during the course of the trial, but are not routinely informed of this possibility and it is rare for any juror to seek to ask a question. ^[23]

1.3.5 Pre-instruction

While jurors are given opening directions on general issues such as the standard of proof and their role in the case, no specific directions on the legal issues that form the subject of the charge are provided prior to the evidence being led. Jurors are, however, provided with a copy of the indictment and of any special defence that is being pled.

1.3.6 Plain Language Directions

The primary reference guide for trial judges in preparing their directions is the Jury Manual produced by the Judicial Institute of Scotland. The Jury Manual makes no reference to its contents having been assessed by a body such as the Plain English Campaign in terms of its comprehensibility. ^[24] That said, there is no evidence to suggest that Scottish jurors find directions unduly complex - this is not something that has ever been empirically tested.

1.3.7 Written Directions

It does not appear to be standard in Scotland to provide jurors with written directions (the possibility is not discussed in the Jury Manual), although individual trial judges may do this at their discretion and it is understood that written directions have been provided to jurors on occasion.

1.3.8 Structured Decision Aids (Routes to Verdict)

A route to verdict is a written aid that provides a series of primarily factual questions that gradually lead the jury to a legally justified verdict. Routes to verdict, in this sense, are not routinely used in Scotland, although the researchers understand that individual judges have occasionally chosen to employ them in specific cases where jurors will be required to consider a complex set of questions in their deliberations. Scottish courts do use the term "route to verdict", but with a different meaning. ^[25]

1.4 Outline of Structure

The remainder of the review is structured as follows. Chapter 2 focuses on the findings of the empirical studies covering the eight methods of improving jury communication identified above. Chapter 3 looks at the extent to which these methods of enhancing jury communication have been implemented in other jurisdictions. The research methods used, both in terms of the search strategy and how the empirical studies were evaluated, is included in an annex to the review.