Herald on Juries

The Herald editorial:

It was once something of a common fallacy that juries got to hear every piece of evidence before reaching their verdict. Now, in increasingly startling circumstances, we know that routinely they do not. What they hear is the product of pre-trial hearings as the prosecution and the defence seek to tilt the balance of the pending courtroom proceedings in their favour. What jurors are told, and what they are not, can have a strong influence on their thinking. In that light, it is relatively unsurprising that two juries considering the case of David Bain arrived at different conclusions. And when material withheld from a jury is later made public, it is totally unsurprising that there will be widespread unease.

On the plus side, it also gives us lots of Tui bilboards!

The courts’ willingness to suppress certain evidence suggests an implicit mistrust of jury members’ acumen. Yet there is an essential contradiction in this approach. Juries are entrusted to assess a large amount of evidence about often complex or technical issues. Often, as in the 12-week sitting of the Bain retrial, this will involve dissecting the widely differing views of forensic and pathology experts. But the jury was not allowed to hear the school friend’s allegation of a “rape” plan because the Court of Appeal ruled it was too prejudicial against Mr Bain. Likewise, that jury was not trusted to assess the 111 call.

I very much weigh on the side of trust the jury. I would even let them know of previous offending – in an Internet age it is hard to keep this information secret anyway, and I say it is better to give the jury all teh info, but have a Judge explain what is and is not relevant.

After the retrial verdict, Chief Justice Elias said it would be “an extraordinary step” for the court to now keep its reasons for making any decision secret. She is right about that, but the consequence of a jury not fully in the picture is a public making its own judgment. Heavy lashings of suppression have produced a strong dose of distortion. Far better that juries hear every scrap of evidence and be trusted to reach the right decision.

I agree.