by Trevor Grove
The judge then says ‘Yes, Mr (or Miss or Mrs) So-and-so …’ and prosecuting counsel opens the case, explaining what it is about and what the Crown will seek to prove. Then the first witness will be called. The thing to remember here is that the barristers are not giving evidence. They are merely eliciting it and commenting on it. The witnesses’ evidence is what is important, not the spin-doctoring-which lawyers invented long before politicians gave a name to it. Each witness, whether for the Crown or for the defence, undergoes an examination-in-chief first, conducted by the side for which he or she is appearing, then a cross-examination by the opposition, followed by a re-examination at the hands of the original inquisitor. You will soon get used to the pattern.
Fog will set in quite quickly. New evidence will start to jostle out the old. Take notes. If you are not an experienced note-taker, simply concentrate on jotting down the date of each day’s sitting, who is in the witness box and a few headlines that will jog your memory later: anything that strikes you as remarkable or unexpected.
The jury can ask any question it likes, more or less whenever it likes. The inquisitive jury is frowned upon by some judges, but effectively the court must be prepared to do what it can to help a jury in its task.
It is best if a question is put by the jury as a whole, perhaps after discussion during a break. You might wish to clarify something a witness has said, or you might want the witness to be asked something which counsel seems to have overlooked. In the latter case, it is a good idea to wait until the examination-in-chief and cross-examinations are completed, as nine times out of ten the question you are burning to ask will be put by one of the barristers. However, take care: don’t leave your question until after the witness has been released as it is unlikely he or she will be recalled to the stand just for your sake.
When you have agreed your question, it should be written down on a bit of paper: ‘My Lord/Your Honour: The jury would like to know etc etc’ Back in court, catch the usher’s attention and hand him the note. The usher will pass it to the judge. Proceedings will halt and the judge will then decide how to deal with your query, making sure that all counsel get a look at it.
This is also the procedure for asking for any special information the jury thinks could be helpful. For example, there might be video evidence that you would like to be shown, or you might want to visit the scene of the crime. This will be up to the judge, but if the jury favours some such an expedition, it is best to get the request in fairly early as these things take a while to organise.
A note to the judge is also the way to deal with emergencies arising from foolhardy lunchtime pints. The individual concerned will suffer some embarrassment but that cannot be helped. ‘My Lord, could the jury have a short break?’ is the usual formula. All the same, take care not to behave flippantly. A London judge once halted a trial after a juror had sent him a note brazenly saying: ‘When is it dinnertime?’
Closing speeches
When the last witness has departed, prosecuting counsel addresses the jury for the final time. Throughout the trial, the Crown’s job has been to present evidence to prove that the accused is guilty as charged. This closing speech is the opportunity to remind the jury of what the evidence was, explain why it is so damning and heap scorn on the defence’s attempts to discredit it.
When the prosecution has sat down, the defence counsel gets up. If there are several defendants, each barrister will speak in turn. Obviously their task is to persuade you that the prosecution evidence was flawed, that the defence’s own evidence was much more credible and that the Crown has not proved its case. Defence barristers in their closing speeches are liable to remind you repeatedly that the burden of proof falls on the prosecution and it is not the defence’s job to prove the defendant innocent. They will also remind you more than once, with solemn looks and wagging fingers, that to reach a guilty verdict you must be sure ‘beyond reasonable doubt’ – a phrase which will come back to haunt you.
In his workmanlike book Jury Service: A Practical Guide (Hale, 1983) Alan Jones, a retired barrister himself, offers some tips as to how to interpret a defence counsel’s closing speech:
Ask yourself, is he dealing with the evidence or does he restrict himself to criticising prosecuting counsel’s speech or talk in generalities such as the burden of proof, the wonderful legal system we have, how the jury system is admired worldwide … does he speak a long time … about miscarriages of justice?
These are all signs that he cannot think of anything to say on the facts, says Alan Jones: ‘In other words he thinks the defence case is hopeless.’
Hopeless or otherwise, the defence has one great advantage: it has the last word. Only the judge’s impartial summing-up remains to be heard.
The summing-up
The summing-up will usually address first the law, then the evidence. You will be reminded of exactly what the indictment means, what the prosecution needs to have proved to win its case, and what the defence needs to have done for you to be persuaded to acquit. Then the judge will probably go back over those bits of the evidence which seem to him important or which were most hotly disputed. He or she may be succinct, or ramble on for hours or even days. What seems important to Your Honour or My Lord may not seem so important to you. ‘But then, members of the jury, that is a matter entirely for you to decide …’
The judge will tell you to elect a foreman, if you have not done so already. He will tell you to reach a unanimous verdict. If after a certain time (which is not spelt out, though it will depend on the length and complexity of the case) you fail to do so, he will be prepared to consider a majority verdict. In that case you will be recalled to court for further instructions … Then the ushers take an oath to keep you in a ‘private and convenient place’ and off you go.
The deliberation
The usher has seen you to your jury room, told you how to summon food and drink, confiscated any mobile phones, wished you luck and – click – shut the door behind him. You are on your own. Panic. What happens now?
In cases that are going to run for several days, some judges suggest to juries that they elect a foreman early in the trial, which is an excellent idea. Any jury can do this off its own bat, without being encouraged to. If you have not got a foreman, however, now is the time to get one. There are no rules as to how to go about it. The most straightforward approach might be to let candidates volunteer, then have a secret ballot. Alan Jones makes the valuable point that one should not necessarily support the strongest personality: a chairman, not a leader, is what is wanted.
From then on, it is up to the foreman and the rest of the jury to decide how to proceed. In a short case with an open-and-shut feel about it, an immediate show of hands might be in order. Anything more complicated, however, should be approached with greater caution. Common sense tells you that forcing people to take an early stand could be dangerous: they might feel they had to defend it not out of conviction but for reasons of amour propre, or because they felt solidarity with others who had taken the same view.
My guess is that many jurors at the beginning of their deliberations feel more comfortable retaining an open mind for as long as possible. Listening to others – and more important, to themselves – is a good way of discovering what they really think. Strong opinions expressed too eagerly and too early will put backs up and probably lead to a resistance movement.
The longer the trial has been, the longer jurors will feel they should take to make up their minds. My advice is to take things easy, ramble over the evidence for a while, send for an exhibit or two. Then agree on a half-dozen key points and home in on them. Once there is a measure of agreement there, then one might move on to the charges themselves.
Inevitably if there is a split vote with a small dissenting minority there will be a temptation for the many to turn on the few. I don’t see how this can be avoided, but it is obviously desirable that there should be no bullying, which might be counter-productive anyway. The best person to win over
someone who is holding out is less likely to be the most formidable debater than someone who herself or himself has converted from that view.
Sometimes a deliberating jury will want something clarified – a point of law, or the exact words a witness said. Don’t hesitate about sending a note to the judge, who will usually call the jury back into court and answer the question in front of counsel and the defendants. When jurors are at loggerheads on a particular issue, this may be a good way of ending the tension, if only by releasing them from their fetid jury room for a short while.
If no unanimous verdict has been reached on all counts in the indictment(s) after several hours – or maybe days in a longer case – the jury will be brought into court and the judge will say that he is prepared to accept a majority verdict of ten to two.
At this point a jury that is already split ten-two or eleven-one might very well put its feet up for a few minutes just for the sake of decorum and then call the usher to announce that it has reached a majority verdict. That would be perfectly OK, but it is not very satisfying for the jury (nor possibly for the defendant, judge, barristers, police etc). A jury that has worked well together will want to be unanimous. So unless it is a Friday afternoon and everyone is yearning to get off to the pub, a conscientious jury might suggest a time limit within which to try to achieve unanimity.
The final round-the-table gathering of verdicts is a grave business if the jury is going to convict; less so I imagine in the case of an acquittal. One does not even care to speculate about the prevailing atmosphere in the event of a hung jury.
The verdict
The jurors’ duty is now almost done. It only remains for the foreman to deliver the verdicts in response to the clerk of the court’s questions. This can be a nerve-racking experience when a jury is finding someone guilty, even if it is only for a relatively minor offence. You are condemning this person on society’s behalf, marking him as a criminal, probably sending him to prison. There may no longer be a death penalty for the most serious crime of all, but a jury convicting a young man or woman of murder will know very well what is at stake.
The sentence
The jury does not have to be present for the sentencing, but in the event of a guilty verdict it would be an odd jury that did not want to be, even if it were held over to another day. Prior to the judge’s deciding what the sentence should be, prosecuting counsel and the police will disclose the prisoner’s antecedents. More often than not they will reveal a history of criminal behaviour and a string of prior convictions. This is a sweet moment for a jury that has agonised over finding a defendant guilty. The record suggests you have done the right thing after all.
After hearing the sentence, the jurymen and women in such a case will retire to the pub content that they have done their duty, but grumbling about why it all had to be so complicated, why the truth was arrived at in such a crablike fashion, why they could not have been told the man was a crook from the beginning.
No one will bother to explain to you that what you have been doing is upholding two great beliefs: the first is that anyone, whatever his character, must be held to be innocent until proved guilty; the second is that as a general rule in this country no court can put someone behind bars for longer than six months unless the defendant’s fellow-citizens have found him guilty.
You were the fellow-citizens. You found him guilty. Justice was done.
A Note on the Author
Trevor Grove grew up in Argentina but was educated
mainly in England. After Oxford University he became
a journalist, working for the Spectator, the London
Evening Standard, the Observer and the Daily Telegraph,
and was editor of the Sunday Telegraph. He lives in
London.
The names of the jurors in the case
R v. Korkolis and Others have been changed
This electronic edition published in 2012 by Bloomsbury Publishing Plc
First published 1998
Copyright © 1998 by Trevor Grove
This edition first published 2000
The moral right of the author has been asserted
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eISBN 978 1 4088 3755 9
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