Sunday, 7 March 2010

Good judgment need not be rational

I have commented before that juries might reach a unanimous verdict for a range of different reasons. Of the twelve people on the jury perhaps two think the defendant really is innocent, two think he is probably guilty but that his guilt has not been proved beyond reasonable doubt, two think him guilty but don't like the way the police investigated the matter, two think him guilty but don't want him to become a martyr for a cause they detest, two know he would be sent to prison if convicted and think that would be too harsh and two simply don't care so they go with the flow. We have a strict law against investigating or disclosing the workings of the jury room (although the occasional study is allowed). The cynical might suggest the law exists to prevent the lack of rational thought of the average jury being exposed to public knowledge, I prefer to look at it rather differently.

People are not entirely rational. Some are wholly irrational under all circumstances. All have personal opinions and emotions that affect their judgments. People come in all levels of analytical ability and all levels of balance between the weight they give their emotional and rational reactions to situations. Everyone who thinks about it for a second will understand that juries must always comprise a mix of people of differing intelligence, attitudes to the police, opinions about the type of offence the defendant is accused of committing and dozens of other qualities that will affect the decision they reach.

One reason we have juries to decide the guilt or otherwise of someone charged with a serious offence is because someone has to decide and it is thought better that it should be a random-ish cross-section of the public rather than a middle aged bloke in a wig. In the early 1990s I was involved in a series of trials concerning an organised fraud. It shed interesting light on the weight that should be given to a jury's verdict.

A property developer was building a load of new flats and houses just as the property market started to fall in 1989. Many developments are undertaken without sufficient capital to pay for the building of every unit. What you do is get some units finished as quickly as possible on one part of the site and market them. Some purchasers might have bought "off-plan" even before the places were built and the other units are marketed in the conventional way. This brings in money which is then used to complete the next tranche and so on until the whole development is completed. The developer will have spent a lot of money up-front buying the land, engaging architects, securing planning permission, arranging for the supply of utilities and paying for the creation of new road junctions so that the site can be entered and exited safely. The properties themselves also cost money to build. These costs can only be recovered by selling the new properties and it takes a lot of sales to cover them. The developer only makes a profit on the last tranche of properties, the first 75% or more just reimburse costs he has incurred.

The difficulty for the developer in my case was that the crash in the market meant he simply could not sell enough units for a high enough price to cover his costs. There were buyers at a price, but the price was not high enough. What he did was to find friends and relatives to act as bogus buyers. They applied for loans from finance companies that asked for few if any checks of their ability to pay. In order for the scam to work he not only needed helpful bogus buyers, he also needed the help of a mortgage broker who wouldn't ask any questions and a surveyor who would give generous valuations in a falling market. Once a sale was made the developer received the cash and the bogus buyers never repaid a penny. In due course numerous properties were repossessed and sold for a fraction of their purchase price just a year or so earlier.

The developer and several of his cohorts were prosecuted for conspiracy to defraud. They were also sued in the civil courts for the money they had extracted from the finance companies. The criminal trial came first. Some of the accused were convicted but not all. When the civil trial came to be heard the judge was faced with claims being made against alleged conspirators who had been acquitted after a lengthy criminal trial. On the first morning he asked how he could find against those who had been acquitted by a jury. The answer given was technically correct - the jury had to be satisfied beyond reasonable doubt whereas the judge in the civil claim only had to be satisfied on the balance of probabilities. Then the judge threw in the killer blow. He asked how he could know that the jury was satisfied of guilt on the balance of probabilities and acquitted only because the higher standard of proof required in a criminal court had not been met. Of course there was no answer to that. He took the view that it would be perverse of him to find, on the balance of probabilities, that someone had acted fraudulently if a jury had not been satisfied of that fact to that standard. Since acquittal did not establish that the jury was satisfied on the balance of probabilities he was not prepared to second-guess their judgment.

Interestingly, that judge had never been involved in a jury trial either in his years in practice at the Bar or in his time on the bench but that did not leave him with a sense that his judgment on issues of fact that will affect a person's whole life was better than that of twelve people picked off the electoral roll. He actually said that he saw no reason why his judgment on issues of fact should be any more accurate or any more just than one reached by a jury. In my experience that is a view held also by judges who deal only with criminal cases, indeed many have told me exactly that.

There is nothing to balance the emotions and opinions of a judge sitting alone other than his ability to leave such matters to one side and seek to be objective. All sorts of balancing factors apply to a jury of twelve people seeking to establish a unanimous verdict. And more, you might have identical jury trials a decade apart resulting in different verdicts because the general sway of public opinion has changed on a matter.

The danger with trial by judge alone is not just that it is only one person reaching an important decision but also that reaching just decisions almost always requires value judgments to be made and values in a dynamic society are never set in stone. It is more difficult for one person, who is obliged to give reasons for his or her decision, to reflect current values than it is for a dozen whose reasoning is not open to scrutiny.

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