There’s a neat little concept used in computer science and physics called the black box. It describes a system, for example a computer programme, where information is fed in at one end and a result is produced at the other. What makes it black is that no one knows what happens inside the system to produce that result.
During nearly a decade of reporting on the Irish courts it has often struck me that this is a perfect description of our jury system. Evidence is fed in at one end during the trial process, then a few hours or days later a verdict pops out. Under common law, nobody except for the jurors knows what happened in-between. We are not allowed to ask and they are not allowed to tell us.
The jury is an extremely odd institution. As professor of law Dermot Walsh puts it: "It is now unique in terms of being a crucially important decision-making institution within the public domain, while at the same time completely immune from research scrutiny..."
In other words we are happy to let jurors decide if someone goes to prison for a good chunk of their life while also remaining blissfully unaware of any biases, misconduct or misunderstandings that may have led to that decision.
Jury secrecy
There are some very good reasons for jury secrecy. Jurors should be able to deliberate with the confidence that their reasoning won’t be picked over by the public after the verdict. It’s also vital for all sides that cases end with some sort of finality. If the entire process were made public it would give rise to an endless round of appeals and, in some cases, public discussion.
There is also, presumably, little appetite in Ireland for the lurid jury press conferences that follow major criminal trials in the US, the most recent example occurring after the conviction of Molly and Tom Martens of the murder of Limerick man Jason Corbett.
But blanket secrecy also means no substantial research can take place into the jury system, leaving us dangerously ignorant of its problems. Take, for example, rape trials. Some studies suggest women are more likely to sympathise with rape victims while others state the opposite. The studies often contradict each other probably because they rely on examining verdicts rather than simply asking the jurors themselves.
We are, meanwhile, similarly clueless about the extent of undue influence on juries. Ireland has a non-jury special criminal court which deals with terrorism and organised crime. Its existence is justified by the presumption that jurors in these cases are at risk of intimidation. However, we have no idea how much real or perceived intimidation juries face – and no one is allowed to ask them. If we are going to deny the right to a jury trial to some of our citizens, the least we can do is make that decision on the back of solid research.
It's an open secret that lawyers and gardaí will often chat to jurors in the pub after a verdict comes in but this is no substitution for regulated, supervised research
The need for this research has become more urgent in recent years with the rise of the internet and social media. This year two major trials collapsed because of jurors conducting independent research on the defendants online. Some lawyers believe most jurors take to Google on day one of a trial but, again, we have no idea because we cannot ask them.
Following the evidence?
Then there’s the issue of complex white-collar crime cases such as the Anglo Irish Bank trials. How can we expect jurors to decide on hundred-day-long cases involving millions of documents when we’re not even sure they’re able to follow the evidence?
This is no criticism of the average juror. I’ve sat through most of these trials and, unlike jurors, I was allowed to conduct my own research. Yet I was often at sea when it came to following along. Frequently I was only saved by a quiet explanation from a brighter colleague or a lawyer during the coffee break.
It's an open secret that lawyers and gardaí will often chat to jurors in the pub after a verdict comes in but this is no substitution for regulated, supervised research. Such supervision could be carried out by the Judicial Council which we are promised will be soon established.
In 2013 the Law Reform Commission recommended jury research be permitted in strictly controlled circumstances but since then there has been no progress in the area. This may be down to traditionalism or bureaucratic inertia.
Or maybe it’s down to fear. The jury system works because people have faith that it works. If we find out it’s as flawed as other institutions, that faith could quickly disappear. Perhaps that explains why, instead of examining how the black box works, we are so keen to keep it firmly shut.
The jury system is often described as “the lamp that shows that freedom lives”. But unless we’re permitted to identify and fix its problems we have no right to use such a grand analogy.