Arthur Koestler, in Darkness at Noon, describes how the main character, Rubashov, in the midst of a sleep deprived series of interrogations was to realise that “powerlessness had as many grades as power; that defeat could become as vertiginous as victory, and that its depths were bottomless”. Of course none of us now lives at the mercy of the type of totalitarian regime that Koestler depicts. Nevertheless, the power of a judicial system is a curious thing even in free countries. It can be utterly life altering for those found guilty, reducing them in ways that can be shocking. With juries, it can achieve this with a moral legitimacy that makes it seem like an unstoppable force. Recently, I had a brief insight into this force as I spent roughly three weeks on a jury in the NSW District Court. Since most people will never be called to serve on a jury, I thought it might be interesting to document some observations. For the sake of keeping jury deliberations secret, I will be general in my reflections.

The first thing I noticed is that the summons I received was for “jury service”. I suppose it accurately describes the act of ordinary people being asked to serve on a jury. This is certainly how you are inducted into it on the first day as representatives of “the community” taking part in the judicial process. Despite being an Americanism, I think I prefer the more ominous sounding “jury duty” as a description of our duty towards our fellow citizens to serve as a check against the state stripping a fellow citizen’s liberties. It emphasises the seriousness of the matter and the consequences that are at stake, rather than the somewhat pleasanter idea of the community collaborating with the state.

Once the trial began, I noticed happily that people were generally conscientious. As the weight of what we were being asked to do took hold - we were on a serious criminal case - people solemnly started taking notes trying to process the evidence being presented. All too well, because the second thing I noticed is that as the trial went on it required lengthy periods of intense concentration without the modern distraction of a smartphone or TV. Unfortunately the initial burst of seriousness did wear off and what I saw was many people lacking the attention span to listen for long periods and take notes of witness evidence or even the judges instructions. Jurors would either not take notes altogether, or not not pay attention at all. Although this is mitigated somewhat as the transcripts of the trial were provided later, they did not tell us how the witness gave evidence, and these transcripts did not include the judge’s instructions.

Once in deliberation, jurors, it appeared to me, lacked the skills or had never practised the skills to assess evidence impartially. Deciding which evidence is relevant to the case, which to accept, and finally how much weight to put on it, requires careful, intense thought. And, this thought ought not be swayed by emotion, other than a feeling of the seriousness of the verdict. But, this is precisely not what I observed. Jurors became emotional when trying to explain how they had reached their conclusion. This usually took the form of jurors speaking as if it was their duty to advocate for the complainant or the accused.

I of course don’t want to downplay the difficulty with assessing evidence impartially. Beyond making what we might think of as first-order judgments using evidence to arrive at a conclusion about the facts, it also requires second-order judgements about how to treat evidence itself. It requires us to, at least implicitly, decide our own standards for when to accept different bits of evidence and how much weight to give them, and then to apply those standards consistently. It appeared to me that this was not something jurors were attentive to or even prepared to think about.

However, somewhat counterintuitively, I observed that jurors also very easily disregard photographic evidence. This baffled me. To me, a piece of evidence that shows, rather than recalls through the haze of memory, without tone, fear or favour, had to be given heavy weight for its corroborative power. Also, I thought, if anything, emotion would sway people towards photos of injuries more than other evidence. Rather than this, what I observed was people expecting more heinous injuries, more gore, more eye-watering detail than normal photographic evidence can provide. And, ultimately I don’t think all the blame for this can be placed at the feet of ordinary people. This is because people are desensitised to images of violence and injury. The culture industry floods us from adolescence with portrayals of injuries meant to thrill us rather than depict what they actually look like.

Alarming still was the way in which factors inside the courtroom were responsible for jurors reasoning poorly. It became clear to me that when the prosecution lacked hard corroborating evidence they submitted to the jury that what ultimately mattered was whether a particular witness’s evidence “rings true” in totality. Aside from being borderline pointless for reaching a verdict in most cases, the real issue is how it leads juries astray in reasoning. It leads to people reasoning from a hypothesis of guilt or innocence rather than assessing what the evidence leads them to conclude about the facts. Once a vague notion of trustworthiness is established, conflicting evidence that would normally carry more weight is easily discarded or explained away. People decide the facts based purely on crown or defence submissions, then reason how likely guilt is based on those hypotheses. Of course, as the judge makes clear, likelihood is not the same as beyond reasonable doubt, and the final submissions by the crown and the defence are not evidence, but merely explanations that each party puts forward. And, therefore ultimately irrelevant for reaching a verdict.

What is most disappointing about all this is that it is not as if jurors are left to their own devices once all the evidence is presented. Judges provide lengthy detailed instructions on key legal concepts like the presumption of innocence, the independence of each juror, guilt beyond reasonable doubt as different from probability. They also provide guidance on how jurors should ideally reason about the charges as independent allegations that are reflected in the elements. Unfortunately I observed many people ignore this guidance or simply not pay attention.

Once in a majority on a particular verdict I realised that people feel safe in a mob. Not because they could harangue those that didn’t agree with them. I used to think the mob was a place for the enthusiastic or the trenchant. But this is not necessarily the case. It is for those who want to feel comfortable and not entertain any form of self-doubt. Even this is not without reason since self-doubt is painful. To question oneself right to the core feels like a form of self-harm. Relatedly, I also observed that people are easily led by those who present to know more about the legal system than others like those who were previously police officers, correctional officers or previously on a jury. Not only are these people susceptible to be partial towards the prosecution, but also have voices that are given undue weight by other jurors.

So how might any of these issues I’ve described be solved? One idea that immediately came to mind was that former police officers, correctional officers, should be barred from serving on juries for life or far longer than the 3-5 years that is currently in force. This would, I think, rebalance the possible influence they might have on jury deliberations. Another idea is that all juries undertake a day or half day of training. This would help focus their minds and practice reasoning in a way necessary for jury deliberations.

I realise my observations are quite negative about my experience. Let me end then with why I still believe in jury trials. Early on in Darkness at Noon, when Rubashov is told that he should confess to the charges because after all the state has all the proofs, he responds, “If you have all the proofs, why do you need my confession?”. And that really is the heart of the matter. At its core the criminal trial is brought by the state with its vast amount of resources and head start in collecting evidence against a lone individual. It is then presented before a judge who is, despite all their expertise, a state employee. For all its faults a jury trial is the only real protection for the accused individual surrounded by the state’s guards, prosecutors, and judge. It inserts the hope of an independent verdict, and presses the state to actually prove the charges. We owe it to all members of our society to afford them that protection as we hope they will for us. After all, while you can just about guarantee you will never commit a crime, you cannot guarantee you won’t be accused of one.