In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last

*SPOILER ALERT: If you have not seen the end of The Trial: A Murder In The Family, don’t read on. Unless you’ve no intention of watching it, in which case do as you please.*

Last night, Channel 4’s The Trial: A Murder In The Family drew to a close. At the end of a five-day run showing edited highlights of the augmented reality trial of Simon Davis for the murder of his estranged wife Carla, the finale dragged us inside the emotional furnace of the jury room as the twelve jurors deliberated with a ferocity belying the academic nature of their task.

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The Trial: A Murder in the Family, Photograph by Channel 4

Despite the judge giving a majority direction – where instead of a unanimous verdict, a court can accept a verdict agreed by 10 of the 12 jurors – the factfinders remained aggressively deadlocked. Eight were unpersuaded of the prosecution case, influenced by the evidence pointing to the possibility that the culprit was in fact the deceased’s scorned boyfriend, Lewis Skinner, and dutifully voted Not Guilty; four were sufficiently sure to cast a ballot for Guilty. The jury were hung, in the legal lingo, and so were discharged. At some future date in that parallel universe, Mr Davis will be retried at Berkshire Crown Court, but for now he remains a free man.

And a lucky one, we learned. For, in a curious creative decision, the producers decided to “reveal” through dramatisation what had really happened: Just as prosecuting counsel Max Hill Q.C. had told the jury in his opening and closing speeches, the defendant had indeed attended the former matrimonial home and, upon learning of Carla’s decision to end the fledgling rekindling of their relationship and up sticks to Scotland, had strangled her with his bare hands. The big reveal, it was none-too-subtly implied, was that The Jury Got It Wrong. Lest we be in any doubt as to the editorial perspective, the episode closed with close-up shots of the burdened jurors, their individual verdicts stamped across the screen, before the following captions rose:

“On average, two women are killed by a partner or ex partner every week in England and Wales.”

and

“In this case eight jurors voted not guilty, four voted guilty.

All four guilty votes were cast by women.”

and finally

“Next year more than half a million of us will be called to decide the fate of a fellow citizen.”

The official Twitter account for the programme has since run polls, including asking viewers:

I’m still struggling to make sense of this all.

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

The concept as advertised was not to present a jury with an obviously guilty man, and see whether a jury rationally assessed the evidence to come to the “right answer”, or whether they were waylaid by bias.  That may well have made for a fascinating programme – but it wasn’t the stated purpose of this exercise. Rather, this aimed to present a typically complex and borderline case, and to offer a fly on the wall insight of a jury striving to reach its verdict.

And so much was right about The Trial. Authenticity was plainly its guiding principle. We had some of the country’s very best barristers, with a retired Crown Court judge, and police and expert witnesses played by real police officers and experts. The case and evidence were expertly crafted and balanced on a knife edge by David Etherington Q.C. and Max Hardy. The 12 jurors came laden with a typical breadth of life experiences, replete with the assumptions, cognitive biases and individual prejudices that afflict us all, and which their fellow jurors were quick to identify and challenge. The conditions enabled what in televisual terms comes pretty close to a scientific experiment.

But the ending took that claim to objective inquiry and violently throttled it. Because in the final episode, we suddenly were not interested in how the jury works, but whether they arrived at the right answer. And by “right answer”, the producers meant “truth”. Thus, not only was the bulk of the final episode frustratingly concentrated away from the jury deliberations and onto the reveal of the WhoDunnit, but it risked leaving the non-lawyer viewer with a wholly distorted view of the function of juries.

Because the dirty little secret that The Trial left out is this: Jury trial is not about finding the truth. It can’t be. The truth, in most cases, is indiscoverable. It does not arrive in the courtroom, packaged with a neatly tied bow, at the end of the case, for jurors to benchmark their performance. Even after a verdict, the legal imprimatur of Guilty or Not Guilty, we are still no closer to knowing whether the verdict is factually “true” than we were when the jury retired to deliberate. While we obviously want legal verdicts to correlate with the truth – the factually guilty always convicted and the factually innocent always acquitted – our system recognises that this is unachievable. There are in most criminal cases, as with most human interactions, simply too many complexities and information gaps for us to say with certainty whether someone definitely did or definitely did not do what the state alleges they did. If we were to require juries to find the truth of every case, we would inevitably require them to indulge in speculation and guesswork, with the appalling consequence that factually innocent people would be convicted on that basis.

So we don’t ask juries to guess at the truth. Instead, we present them with as much relevant evidence as we can, and ask them one question: Are you sure that this person is guilty? If yes, the state will take coercive action. If the jury is anything less than sure, they must acquit. Not guilty does not mean innocent. It means that the jury cannot be sure to the very high standard required that, on the available evidence, the defendant is guilty. This inevitably means that factually guilty people are acquitted. But it is the sacrifice our system makes to minimise the risk of the greater peril: a factually innocent person being convicted and punished.

This cornerstone of our justice system – the burden and standard of proof – was The Trial’s glaring omission. While the judge’s summing up and legal directions were understandably edited to the bare minimum, holding (even judges would concede) little televisual interest, would it have been too much to leave in a brief few seconds of the judge reminding the jury, and the viewers, of the essential basis of how to approach their task?

In the event, a number of the jurors disregarded the burden of proof, casting themselves as detectives trying to crack the case – trying to prove the culprit was more likely to have been Lewis – rather than confining themselves to the sole question: was the case against Simon Davis proved on the evidence?

The tragedy is that this case was the perfect vehicle for a considered treatment of the burden and standard of proof. Here we had a murder where the offender could only feasibly have been one of two men – Simon Davis or Lewis Skinner – but where the evidence was arguably insufficient to prove the case beyond doubt against either. The producers could have preserved the integrity of the concept by declining to give us the “answer”, instead explaining – perhaps through the to-camera interviews with the barristers and judge – how it is that our system allows a situation in which we know that the offender was one of two violent men but cannot convict either, and how such an outcome is not an indictment of a jury “failing” in its task, but reflective of the correct course where, regrettably, the evidence is simply not enough to safely convict anyone. This is the build of our system, the programme could have said. Here’s why we do it this way, and here’s what the professionals think. What do you think about it? 

But that line of contemplation was abandoned, the producers instead deciding to grasp for an unconvincing gotcha moment and invite us to lay blame at the jury’s door. As I’ve said, if the producers were looking all along to make a point about juries failing to convict in the face of overwhelming evidence, they could have done. They could have asked the barristers writing the case to devise a deliberately strong case, littered with tripwires and victim myths designed to test the jury’s integrity. But this factual matrix was intentionally blurry. After the reveal, the prosecutor Max Hill Q.C. tweeted:

For what it’s worth, I agree. The evidence of the witness Mullen who (wrongly, we infer) placed the violent Lewis Skinner near the murder scene gave the jury reasonable cause to doubt the prosecution case. To take a knife-edge case and conclude, from the fact that the jury were on a knife edge, that something is wrong is simply bizarre.

Finally, the decision to highlight the gender of the jurors who voted to convict, without saying more, leaves me very uncomfortable. What was the message? That if you, as a juror, are sitting on a case involving an allegation of domestic violence you should be more inclined to convict? I genuinely have no idea what other interpretation we are supposed to draw. If I were defending a man accused of domestic violence today, I would be very nervous about any of the jurors having seen last night’s finale.

In fact, if it were prejudices that The Trial was hoping to root out, fuller pickings were arguably to be found among those who chose to convict. One speculated over the interpretation of DNA evidence, despite being directed not to do so. The famous Cherry, the self-professed “witch” so proud of her unfailing “gut”, appeared determined to convict from Day 1. And of the four convictors, three had direct or indirect experience of domestic violence, which they were quick to overlay on the evidence of the instant case. The final interviews with these four jurors also left us in doubt as to how sure-footedly they stood by their verdicts. There was a distinct impression that some had deviated from “beyond reasonable doubt” to the civil standard of “probably did it”. In fact, it was those who returned not guilty verdicts, despite thinking that Simon Davis probably killed his wife, who were the ones being true to their oath and to their (fictional) public duty.

This denouement is is a shame because in so many ways this programme has been a revelation in legal programming. Matthew Scott’s review of the first episode stands true – it has been in numerous ways a force for good; a powerful and gripping show educating the public on the workings of a criminal court with far greater accuracy and aplomb than is achieved by most dramas. Those involved should rightly be proud.

But by appearing to abandon its stated premise in the final episode, I feel The Trial missed a glistening opportunity to probe at some of those deeper questions about the way we do justice. Is our faith in juries misconceived? Should we entrust our liberty to the Cherrys of this world? How loyal are juries to their oath to reach verdicts on the evidence? Are they able to faithfully follow the judge’s directions on the law? Do they need greater scrutiny, or even screening? Should we demand that juries supply reasons for their decisions, instead of a binary one or two word verdict? Is our commitment to individual liberty a roadblock to catching the guilty, or an immutable principle of which we ought to be louder and prouder?

While there was enough over the five nights to allow us to entertain such thoughts incidentally, it is a shame that at the last the producers swerved off-road, rather than facing the difficult, perhaps more interesting, questions head-on.