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Addressing the Adversarial Deficit in Non-Jury Criminal Trials*

Published online by Cambridge University Press:  04 July 2014

John D. Jackson  and
Sean Doran
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Extract

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 645 - 689
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

**

Professor of Public Law, Queen's University, Belfast.

***

Reader in Law, Queen's University, Belfast.

References

1 Twining, , “Identification and Misidentification in Legal Processes: Redefining the Problem” in Lloyd-Bostock, and Clifford, (eds.), Evaluating Witness Evidence: Recent Psychological Research and New Perspectives (1983) 255, at 260 Google Scholar.

2 Davis, , “An Approach to Rules of Evidence in Non-Jury Cases” (1964) 50 A.B.A. J. 723 at 725 Google Scholar. The point is not a new one: see the anonymous letter to the Harvard Law Review in 1922 (36 Harv. L.R. 193)Google Scholar.

3 Stone, , “The Decline of Jury Trial and the Law of Evidence” (1947) 3 Res Judicata 144 (England)Google Scholar; Levin, and Cohen, , “The Exclusionary Rules in Non-Jury Criminal Cases” (1971) 119 U. Pa. L.R. 905 (United States)CrossRefGoogle Scholar.

4 Thayer, , A Preliminary Treatise on Evidence at Common Law (1898) 47, 266, 509 Google Scholar.

5 1 Wigmore (rev. Tillers, 4th ed., 1983) 1, 228-9.

6 See the Civil Evidence Act 1995; RSC Order 38.

7 Glasser, , “Civil Procedure and the Lawyers – The Adversary System and the Decline of the Orality Principle” (1993) 56 M.L.R. 307 CrossRefGoogle Scholar.

8 The Hart, W.G. Legal Workshop on Dispute Resolution: Civil Justice and its Alternatives (London: Institute of Advanced Legal Studies, July, 1992)Google Scholar. See the special issue of the Modern Law Review devoted to the workshop: (1993) 56 M.L.R. (May Issue). One contributor noted that the two striking features of the English trial -- “its climactic nature as a drama played out in one continuous session” and “the extent to which the proceedings are oral” -- have each undergone substantial change: Hoffmann, , “Changing Perspectives in Civil Litigation” (1993) 56 M.L.R. 297, at 304 CrossRefGoogle Scholar.

9 The Administration of Justice (Miscellaneous Provisions) Act 1933 limited the right to claim a jury in a civil action to cases of libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage on the application of any party. In all other cases the grant of a jury is at the discretion of the court. In the leading case of Ward v. James [1966] 1 Q.B. 273, the Court of Appeal stated that in actions for damages for personal injuries trial should be by judge alone.

10 Damaska, , “Atomistic and Holistic Evaluation of Evidence” in Clark, (ed.), Comparative and Private International Law: Essays in Honour of John Merryman (1990)Google Scholar.

11 In England, for example, the ability of defendants to opt for trial by jury has been eroded since the recommendation of the James Report in 1975 that a number of offences be transferred to the sole jurisdiction of magistrates (The Interdepartmental Committee on Criminal Business between the Crown Court and the Magistrates' Court, Cmnd. 6323, 1975). See section 15 of the Criminal Law Act 1977 and sections 37 and 39 of the Criminal Justice Act 1988.

12 In the United States, a number of commentators have noted the increasing use of bench trials: see White, , “A Proposal for Reform of the Plea Bargaining Process” (1971) 119 U. Pa. L.R. 439 CrossRefGoogle Scholar; Levin, , Urban Politics and the Criminal Courts (1977)Google Scholar; Schulhofer, , “Is Plea Bargaining Inevitable?” (1984) 97 Harv. L.R. 1037 CrossRefGoogle Scholar.

13 The name derives from the Commission, chaired by Lord Diplock in 1972, which proposed the adoption of this mode of trial: Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cmnd. 5185, 1972).

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16 The recommendation of the Royal Commission on Criminal Justice that the defendant's right to elect for jury trial in so-called either-way offences should be abolished (Cmnd. 2263, 1993, chapter 6, paras. 4-19) has been met with strong criticism (see, for example, the reaction of the Justice, Lord Chief: The Times, July 28, 1993)Google Scholar.

17 See, for example, Jacobs, , The Fabric of English Civil Justice (1990) 266 Google Scholar.

18 See Nobles, , Schiff, and Shaldon, , “The Inevitability of Crisis in Criminal Appeals” (1993) 21 Int'l J. of Sociology of L. 1 Google Scholar.

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24 Damaska, supra n. 22, at 12.

25 Ibid., at 15.

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28 Duff, , Trials and Punishments (1986) 142 Google Scholar.

29 Ibid., at 143.

30 Compare Fuller, who argues that “[t]he essence of the adversary system is that each side is accorded a participation in the decision that is reached, a participation that takes that form of presenting proofs and arguments.” (“The Adversary System” in Berman, (ed.), Talks in American Law (revised ed., 1971) 34, at 45.Google Scholar) See also Fuller, , “The Forms and Limits of Adjudication” (1978) 92 Harv. L.R. 353 CrossRefGoogle Scholar.

31 See Reddish, and Marshall, (1986) 95 Yale L.J. 455, at 491 Google Scholar.

32 Damaska, supra n. 21, at 561.

33 See, for example, “Brandstetter” (1991) H.R.L.J. 316 Google Scholar.

34 See Galligan, , Discretionary Powers: A Legal Study of Official Discretion (1986) 326–337 Google Scholar.

35 Duff, supra n. 28, at 119.

36 Damaska, supra n. 21, at 583.

37 Damaska, supra n. 22, at 104; Ashworth, , “Concepts of Criminal Justice” [1979] Crim. L.R. 412, at 414–415 Google Scholar.

38 Damaska, supra n. 21, at 514-525.

39 Zuckerman, , “Interlocutory Remedies in Search of Procedural Fairness” (1993) 56 M.L.R. 325 CrossRefGoogle Scholar.

40 Per Lord Donaldson MR in Davies v. Eli Lilly & Co [1987] 1 W.L.R. 428 at 431.

41 Note, “Improper Evidence in Nonjury Trials: Basis for Reversal?” (1965) 79 Harv. L.R. 407 CrossRefGoogle Scholar; see too dicta in English cases such as R. v. Kearley [1992] 2 All E.R. 345, at 366 and R. v. Blastland [1986] A.C. 41, at 54. Empirical evidence, however, suggests that juries are alert to the dangers of hearsay evidence: see Miene, , Park, and Borgida, , “Juror Decision Making and the Evaluation of Hearsay Evidence” (1992) 76 Minn. L.R. 683 Google Scholar; Kovera, , Park, and Penrod, , “Jurors' Perceptions of Eyewitness and Hearsay Evidence” (1992) 76 Minn. L.R. 703 Google Scholar.

42 Damaska, supra n. 22, at 137-138.

43 Judge Without Jury, 244.

44 Note, supra n. 41, at 413; Levin and Cohen, supra n. 3; 1 Wigmore, supra n. 5, at 194, 646.

45 State v. Hutchinson 260 Md 227, 271 A.2d 641, 644 (1970), quoted with approval in Levin and Cohen, supra n. 3, at 909.

46 Levin and Cohen, ibid., at 906.

47 Ibid., at 908; Davis, supra n. 2, at 1362-1363.

48 State v. Garcia, 97 Ariz 102, 397 P.2d 214 (1964).

49 Cf. Wong Sun v. US 371 US 491 (1963).

50 Levin and Cohen, supra n. 3, at 909.

51 Note, supra n. 41, at 409.

52 R. v. Brophy [1982] A.C. 476.

53 [1974] NI 181.

54 Ibid., at 212.

55 Note, supra n. 41, at 414.

56 Ibid., at 414-415.

57 Ibid., at 415.

58 Northern Ireland (Emergency Provisions) Act 1996, section 12.

59 Levin and Cohen, supra n. 3, at 918-919; Standing Advisory Commission on Human Rights for Northern Ireland, Tenth Report (1985) 73 Google Scholar; Fourteenth Report (1989) 103–104 Google Scholar.

60 Northern Ireland (Emergency Provisions) Act 1996, section 11(5) and (6) respectively.

61 For defence of this umpireal role, see Frankel, , “The Search for Truth: An Umpireal View” (1975) 123 U. Pa. L.R. 1031 CrossRefGoogle Scholar; Saltzburg, , “The Unnecessarily Expanding Role of the American Trial Judge” (1978) 63 Virginia L.R. 1 Google Scholar.

62 Jones v. National Coal Board [1947] 2 Q.B. 55, at 64.

63 One commentator has, however, argued that greater intervention is warranted: “In bench trials … a major role in the interrogation of witnesses should be taken by the judge who should explore the issues of importance to him to the extent he deems necessary for his own illumination”. ( Uviller, , “The Advocate, the Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea” (1975) 123 U. Pa. L.R. 1067, at 1069 [n. 1])Google Scholar.

64 R. v. Thompson [1977] NI 74, at 82.

65 Saltzburg, supra n. 61.

66 Langbein, , “The Criminal Trial Before the Lawyers” (1978) 45 U. Chic. L.R. 263 CrossRefGoogle Scholar.

67 3 Wigmore (rev. Chadbourn, 1970) 784.

68 See also Rule 614 of the Federal Rules of Evidence which permits the court of its own motion or at the suggestion of a party to call witnesses and to interrogate witnesses whether called by itself or by a party. On judicial notice, see Zuckerman, , The Principles of Criminal Evidence (1989)Google Scholar chapter 6. For the differences in nature between the power to question witnesses and the power to take judicial notice, see Saltzburg, supra n. 61, at 53 [n. 220].

69 US v. Cassiagnol, 420 F.2d 808 (4th Cir 1970), cert denied 397 US 1044.

70 US v. Kidding, 560 F.2d 1303, 1314 (7th Cir 1977).

71 In the United States references to the dangers of extensive and persistent questioning have been primarily aimed at the danger of appearing prejudiced before a jury (Pollard v. Fennell, 400 F.2d 421, 424 (4th Cir 1968) ) and judicial questioning is rarely considered prejudicial (US v. Kidding, 560 F.2d 1303 (7th Cir 1977)).

72 R. v. Hamilton [1969] Crim. L.R. 486; cf. R. v. Matthews and Matthews (1983) 78 Cr. App. R. 23 and R. v. Gunning (Unreported, July 7, 1980). See Doran, , “Descent to Avernus” (1989) 139 New Law Journal 1147 Google Scholar.

73 See Wolchover, , “Should Judges Sum Up on the Facts?” [1989] Crim. L.R. 781, at 792 Google Scholar.

74 Schulhofer, supra n. 12, at 1070-1073.

75 See generally Judge Without Jury, chapters 5-7.

76 Ibid., at 123-125, 196.

77 Ibid., at 179-196.

78 Ibid., at 186.

79 The guilty plea rate in Diplock cases is not significantly different from the rate in ordinary jury trials in Northern Ireland: see Judge Without Jury, 40.

80 Ibid., at 185-186.

81 Schulhofer, supra n. 12, at 1073.

82 Judge Without Jury, 200.

83 Ibid., at 195.

84 Research in England and Wales conducted for the Royal Commission on Criminal Justice showed that jurors were reluctant to ask questions during the trial: see Zander, and Henderson, , The Crown Court Study (1993)Google Scholar. See also Jackson, , Kilpatrick, and Harvey, , Called to Court: A Public View of Criminal Justice (1991) 126 Google Scholar.

85 See Kassin, and Wrightsman, , The American Jury on Trial (1988), chapter 3Google Scholar; Hans, and Vidmar, , Judging the Jury (1986), chapter 6CrossRefGoogle Scholar. English lawyers do not have the same opportunity to influence the selection of the jury. In a recent English study lawyers admitted that it was often difficult to gauge what transpired in jurors' minds: Rock, , The Social World of an English Crown Court (1993) 75-76, 86 Google Scholar. According to one barrister quoted in the study, “The problem for counsel whether you're prosecuting or defending is that he doesn't know what the jury is like” (76). See also Morison, and Leith, , The Barrister's World and the Nature of Law (1992) 152 Google Scholar: “It was accepted almost universally that ‘attempting to read a jury is a highly dangerous exercise, a most inexact science’.” Cf. Walter, , The Jury Summation as Speech Gender: An Ethnographic Study of What it Means to Those Who Use It (1988)CrossRefGoogle Scholar.

86 Hastie, Penrod and Pennington have argued (Inside the Jury (1983), chapter 8) that there are two contrasting styles of jury deliberation — the “verdict-driven” style and the “evidence-driven” style. The former is more adversarial, but there is less vigorous evaluation of the evidence. In either event, however, the individual views of each of the jurors have to be pooled together by means of deliberation in order to reach a collective verdict.

87 In Diplock cases in Northern Ireland, the judge is obliged to give a reasoned judgment in support of a conviction: Northern Ireland (Emergency Provisions) Act 1996, section 11(5). In bench trials in the United States, the judge may but is not required to give reasons for a decision: see Schulhofer, supra n. 12, at 1065.

88 This approach has been adopted in Diplock cases: Northern Ireland (Emergency Provisions) Act 1996, section 11(6).

89 See Damaska, supra n. 22, at 48-49: “There are few aspects of lower authorities' decision making that are accorded immunity from supervision: fact, law and logic are all fair game for scrutiny and possible correction”.

90 Broeder, (1954) (quoted in Chan, , Duff, , Findlay, and Howarth, , The Jury in Hong Kong (1990) City Polytechnic of Hong Kong Working Paper No. 1, 86)Google Scholar.

91 A considerable amount of attention has focused on the impact of mandatory instructions on the jury: see Charrow, & Charrow, , “Making Legal Language Understandable: A Psycholinguists Study of Jury Instructions” (1979) 79 Col. L.R. 1306 CrossRefGoogle Scholar. For an English perspective on the need for simplification of such instructions, see Griew, , “Summing Up the Law” [1989] Crim. L.R. 768 Google Scholar.

92 See Williams, , The Proof of Guilt (3rd ed., 1963) 309 Google Scholar: “It seems to be in the nature of a jury as a composite lay tribunal that it is unable to give a reasoned opinion”. It does not necessarily follow, however, that a jury system incorporating some method of conveying reasons could not be devised: see Lempert, , “A Jury For Japan?” (1992) 40 Am. J. of Comp. L. 37, at 51 [n.40]CrossRefGoogle Scholar.

93 Duff, supra n. 28, at 118.

94 See also Bayles (1990), supra n. 27, at 76: “One is more apt to accept a decision when reasons are given, even if one disagrees with them. One at least thinks that one's concern was not arbitrarily dismissed and that one received consideration”.

95 See Nobles, Schiff and Shaldon, supra n. 18.

96 Ibid., at 2: “The Court's primary concern is its reluctance to substitute its own judgment for that of the jury, when reassessing matters of fact”.

97 For discussion of this issue, see Gibbens, , “Appellate Review of Findings of Fact” (1992) 13 Advocates' Quarterly 445 (Canada)Google Scholar. For an interesting earlier analysis, see Goodhart, , “Appeals on Questions of Fact” (1955) 71 L.Q.R. 402 Google Scholar.

98 See Jackson, and Doran, , “Miscarriages of Justice: The Role of the Court of Appeal” in Standing Advisory Commission on Human Rights, Seventeenth Annual Report (1992), 275–280 Google Scholar. A notable exception to this trend was the Northern Ireland Court of Appeal's handling of the “supergrass” cases in the mid-1980s: see, generally, Greer, , “The Rise and Fall of the Northern Ireland Supergrass System” [1987] Crim. L.R. 663–670 Google Scholar.

99 The point is well made by the Supreme Court of Canada in Fletcher v. Manitoba Public Insurance Co. (1990) 74 DLR (4th) 636, 645 (cited in Gibbens, supra n. 97, at 447): “The very structure of our judicial system requires this deference to the trier of fact. Substantial resources are allocated to the process of adducing evidence at first instance and we entrust the crucial task of sorting through and weighing that evidence to the person best placed to accomplish it”.

100 The present authors have suggested a more “interventionist” approach by the appellate court in reviewing the factual findings of judges in Diplock cases in Northern Ireland: see Jackson and Doran, supra n. 98, at 267, 284-285.

101 Damaska, supra n. 22, at 49-50.

102 See Zuckerman, supra n. 68, at 125-134.

103 Although it may be that there is a qualitative difference in the task of convincing a single judge from that of convincing twelve jurors: see Schulhofer, supra n. 12, at 1065 [n.106].

104 See Williams, supra n. 92, at 303-304; Wolchover, supra n. 73, at 783-784.

105 Saltzburg, supra n. 61, at 22-23; Wolchover, ibid., at 784-786.

106 Saltzburg, supra n. 61, at 45.

107 R. v. Cocks (1976) 63 Cr. App. R. 79; and see R. v. Charles (1979) 68 Cr. App. R. 334.

108 See the Code of Conduct of the Bar, Annex H (“Standards Applicable to Criminal Cases”), para. 1.7; and see R. v. Donoghue (1988) 86 Cr. App. R. 267, 271-272. It would seem that defence counsel does not have such a duty: R. v. Cocks (1976) 63 Cr. App. R. 79, 82; R. v. Edwards (1983) 77 Cr. App. R. 5, 7.

109 The Law Commission, Corroboration of Evidence in Criminal Trials (Cm 1620, 1991), paras. 4.19-4.30.

110 See Valentine, , Criminal Procedure in Northern Ireland (1989), para. 8.05Google Scholar; Ryan, and Magee, , The Irish Criminal Process (1983) 362–363 Google Scholar.

111 Judge Without Jury, 193, 266-268.

112 Schulhofer, supra n. 12, at 1071.

113 Judge Without Jury, 259-260.

114 See Rawls, , A Theory of Justice (1972), chapter 4Google Scholar; but for Rawls' more recent views, see Political Liberalism (1993).

115 Uviller, supra n. 63, at 1075.

116 See the letter to The Times, 3 May 1982, quoted in Spencer and Flin, , The Evidence of Childråen (1990) 235 Google Scholar.