Of murder cases and hung juries

While we have all been focused on practicing good hygiene and physically distancing ourselves from each other and our institutions, like Nicodemus by night, the Government has presented to Parliament the Criminal Justice (Miscellaneous Provisions) Act 2020 (the “Bill”).

Among the most shocking amendments put forth, the Bill seeks to abolish the requirement for a unanimous jury verdict in cases of murder. If this Bill passes, an accused could now be found guilty of murder if only nine of 12 jurors vote to convict.

That lawmakers thought it appropriate to present the Bill without adequate public consultation or input from members of the legal profession is problematic; that they have piloted a bill that is likely to erode public confidence in the criminal justice system is even more so.

Without robust public engagement, we cannot know the pressing mischief that legislators were seeking to cure or the data they used to anchor their decisions. But, to the extent that this Bill was meant to address low conviction rates or decrease the frequency of hung juries in murder trials, empirical evidence tells us that passing this Bill will not do so.

Starting from a false premise

While it is true that the number of criminal convictions in Barbados has declined over the past 60 years, there is no evidence that this decline is a result of “hung juries” or juries that cannot agree upon a verdict after extended deliberations.

Rather, the evidence – including a 2012 UNDP study – shows that low conviction rates in Barbados are a function of systemic failings across the criminal justice system. Convictions are difficult to come by because of inordinate delays, an overwhelmed criminal bar, insufficient resources allocated to the police, prosecutors and courts, and lack of mechanisms that allow each sector of the criminal justice system to operate harmoniously.

These are not challenges that non-unanimous jury verdicts can cure. In fact, scientific studies show that there is not an appreciable increase in conviction rates when a non-unanimous verdict is permitted.

Moreover, an implicit premise of the Bill’s non-unanimous jury provision is that hung juries in murder trials are bad. To the contrary, the evidence reminds us that hung juries are often the result of thoughtful minorities, typically composed of more than two jurors, that spark robust debate and careful deliberations. There are even studies showing that in a substantial number of cases, judges would have come to the same conclusion as minority jurors. As such, hung juries often further the aims of justice rather than undermine them. Jurors who fail to reach a unanimous verdict might be the confirmation we need that the justice system is working as it should. In short, if we abolish jury unanimity we have very little to gain but much to lose.

What do we have to lose?

Firstly, requiring a unanimous jury in trials involving serious crimes is a safeguard against arbitrary law enforcement and overzealous prosecution. Here, in Barbados, where certain communities and certain people are over-policed and treated unfairly, where the Caribbean Court of Justice has openly questioned police procedure, such safeguards become even more important. When we give up unanimity, we erode that safeguard.

Furthermore, unanimity in jury verdicts is intimately related to questions of legitimacy. A unanimous verdict inspires confidence in the correctness of the decision to prosecute as well as the jury’s decision to convict. A 2010 victimisation study conducted in Barbados reveals that 73 per cent of people living here do not believe that the police treat people equally, 69 per cent do not believe the police deal with people fairly and 63 per cent do not believe that the police respect the rights of all citizens. The survey further reveals that most people feel that politically connected criminals and “powerful” criminals are likely to go free, and suspects who are poor are not likely to be treated fairly. Against this backdrop, confidence in the correctness of prosecutorial and jury decisions becomes even more important. When we give up unanimity, we erode the legitimacy of criminal justice decisions and public confidence in the system.

Finally, unanimity protects the juror’s right to fully and fairly participate in trials that require their service. Jurors process the evidence they are assessing according to their own lived experiences and unconscious understanding of what constitutes appropriate behaviour, makes a witness credible, and of societal norms. They assess the validity of their fellow jurors’ decisions in this way as well. As such, the research shows that jury deliberations are imbued with unconscious bias. Therefore, each juror should have an equal vote so they can bring to the attention of their fellow jurors information they may have missed or urge them to consider viewpoints that challenge unconscious stereotypes and taken-for-granted assumptions.

Evidence shows that when juries start deliberations knowing they do not need unanimity, deliberations end as soon as they reach the required minimum vote. But, to combat unconscious bias in decision-making, we need more robust debate and longer deliberations, not less. Whether it be jurors who are female, vernacular speaking, less affluent or others who have been traditionally marginalised, non-unanimous verdicts increase the likelihood that the majority will ignore valuable minority perspectives.

When we give up unanimity, we concede that some voices matter more than others. We give currency to the notion that we are all equal, but some are more equal than others. When we give up unanimity, we erode the connection and trust between government and the people.

The need for evidence-based policy

Abolishing the non-unanimous jury in murder trials is misguided. In piloting this Bill, the Government has written yet another chapter in a storied history of Caribbean governments fighting crime by employing ‘tough on crime’ rhetoric and performative policies intended to make people feel secure without actually making them secure. Evidence does not show any significant benefit to non-unanimous juries in murder trials. We need evidenced-based policies. And, if the real goal is ensuring that justice is done and also seen to be done, stacking the deck against the accused – when we are all distracted by the preservation of lives and livelihoods – does far more harm than it does any good.

Dr Janeille Zorina Matthews is a multi-disciplinary criminal justice scholar and attorney-at-law who teaches Criminal Law, Forensic Criminology and Legal Research and Writing at the University of the West Indies, Cave Hill campus.