By Julian Savulescu and Anders Sandberg
Vicky Pryce, wife of disgraced ex-MP Chris Huhne, is back in court this week after the jury trying her case was discharged last week having failed to reach a verdict on her charges of perverting the course of justice. In 2003, Pryce accepted Huhne’s speeding points, but is claiming a defence of marital coercion. In 10 questions to the judge, the first jury showed an alarming and deep lack of understanding. Questions included:
“Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?”
They also showed the jury had apparently forgotten key concepts which were explained during the trial:
“Does this defence require violence or physical threats?”
“Can you define what is reasonable doubt?”
Following the jury’s discharge, the judge said the jury showed “absolutely fundamental deficits in understanding”, adding that he had never seen this in 30 years of presiding over criminal trials. In Pryce’s trial, the questions the jury asked after several days of deliberations raised alarm bells, but in another trial where a verdict was reached, we would never know what the standard of jury understanding or deliberation had been. Yet juries are asked to decide (in some countries) on matters of life or death.
The Pryce case may have been unusual, but in any trial, and particularly in complex fraud cases, juries are asked to juggle and compute vast amounts of information, and to retain it throughout the trial in order to make an informed decision at the end. We have argued in “The Memory of Jurors: Enhancing Trial Performance” and “Cognitive Enhancement in Courts” with Walter Sinnott-Armstrong, that cognitive enhancement, particularly memory enhancers should be made available to jurors. If this had been available in the Pryce case, would the jury have spent more time discussing the decision at hand, and less on (mis-)remembering the judge’s instructions on reasonable doubt or the definition of coercion? If we ask people to take on a civic duty we should offer them all the tools we have available to assist them in its completion.
One could argue that the role of the jury is not so much to be a perfect trier of fact as to represent the common public. So if a case is so convoluted that normal people even when trying cannot make sense of it, maybe their confusion should be accepted as a form of verdict (presumably to the favor of the defendant, in dubio pro reo). But an especially incompetent jury – like in this case – is not representative. So in order to have a fair trial it should be made competent enough – either by dismissal and getting a new jury, or if members enhance their cognition enough to do their roles. So even if one views juries as more representatives than fact trying-machines, it makes sense to favour improved cognition.
Trial by jury may be the best of the available judicial options. But it is clearly deeply limited and could do with a good bit of human enhancement. Imagine being an innocent defendant in a complex, tedious fraud case. What kind of jury would you rather be facing?
I don’t think people really want juries to be “representative”, they want them to be fair. I guess there’s an interesting analogy with government: we want government to be representative, up to a point, but mostly we want it to do a good job, in accordance with principles we get to decide. The reason it needs to be representative is that (for good reason) we don’t trust unelected, unaccountable officials (or kings) to govern in that way. We have learnt from bitter experience that, while some do, more or less, they generally don’t.
So coming back to jurors, the tradition of trial by jury can best be seen as a way of keeping the judicial system honest and reflective of the moral instincts of the population. But just as we want our government officials to be more expert than we are (just not totally unaccountable), so we should want our judicial procedures to be largely technocratic, just not totally unaccountable.
Against this perspective, while the priority of the authors seems to be to find an opportunity to advocate cognitive enhancement, a more immediately pertinent conclusion might be that juries could be used a lot more creatively than they currently are. For example, rather than jurors making the decisions, under the rather paternalistic guidance and tutelage of the judge, why not have the judges making the decisions, but under the scrutiny of jurors, who might have the power to overturn judges’ decisions, rather as parliaments have the power to overturn or otherwise vote on government decisions. What do people think of this idea? Has it been discussed or tried before? If not, I would have thought it could be interesting to disseminate it, with a view to piloting it somewhere. I can imagine that, while making judges mighty uncomfortable, it might be an improvement both on trial-by-ignorant-and-stupid-jurors and trial-by-unaccountable-judges.
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