1. The Role of Questions Trails in Assisting Juror Comprehension Professor Jonathan Clough 10 th Annual Jury Research and Practice Conference Australian National University 8 February 2013

2. The ‘Supreme Test’ The ‘supreme test’ of a charge to the jury is that it should be ‘comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular acquaintance with the law.’ -per Lord Mackay 8 February 201310th Annual Jury Research and Practice Conference2

3. What do jurors comprehend?  Research has consistently found that jurors struggle to comprehend jury directions. –A 1999 New Zealand study found that while 85% of the jurors interviewed found the jury charge ‘clear’, and more than 80% found it ‘helpful’, in 73% of the cases studied at least some jurors displayed a misunderstanding of the law. –A 2010 UK study of 797 jurors found only 31% fully understood the directions (improving to 48% when provided with written directions). 8 February 2013310th Annual Jury Research and Practice Conference

4. What do jurors comprehend? A 2008 study of 1,225 jurors for the NSW BOCSAR found that jurors understood ‘beyond reasonable doubt’ to mean: –Sure the person is guilty (55.4%) –Almost sure the person is guilty (22.9%) –Very likely the person is guilty (11.6%) –Pretty likely the person is guilty (10.1%) 8 February 2013410th Annual Jury Research and Practice Conference

5. Acknowledging the Problem ‘Often, as a trial judge, I experienced concern about the capacity of jury members to follow and comply with the plethora of sometimes complicated instructions that I was obliged to give them.... It is not simply a question of the protraction of an already complex and costly process that is involved, but much more importantly the reliability of the jury verdict and the respect with which it is regarded in the community.’ – R v Yasso per Vincent JA 8 February 2013510th Annual Jury Research and Practice Conference

6. Challenges to Comprehension ‘We seem to have hit upon a system designed to ensure, in any but the simplest cases, that the path we require [the jury] to follow should be as obscure, as tortuous and as arduous as could possibly be devised.’ – Moses LJ 8 February 2013610th Annual Jury Research and Practice Conference

7. Challenges to Comprehension The experience of being a juror presents a number of challenges to comprehension:  Cognitive complexity  Organisation and Presentation of Information  Verbal Instructions  Sustaining Concentration  Pre-existing beliefs  Anxiety 8 February 2013710th Annual Jury Research and Practice Conference

8. Challenges to Comprehension There are a number of dimensions to ‘understanding’ including:  Recall  Comprehension  Application 8 February 201310th Annual Jury Research and Practice Conference8

9. Recommendations for Change  A number of reforms can assist juror comprehension: –Narrowing the issues in dispute –Preliminary directions on law and in-running –Note taking/access to transcript –Ability to ask questions –Length and complexity of jury directions –Provision of written materials 8 February 2013910th Annual Jury Research and Practice Conference

10. Question Trails  It may be that there is only so much that can be done to improve juror comprehension within the traditional framework of requiring jurors to apply the law to the facts.  The ‘fact-based’ or ‘question trail’ approach asks jurors a series of factual questions, placed in logical order and with accompanying evidentiary directions. 8 February 20131010th Annual Jury Research and Practice Conference

11. Question Trails ‘The Route to Verdict is a sequence of questions posed in a logical and necessary sequence. The jury should approach each question in turn as directed. They should reach a decision on the first question before they turn to the next, and so on. If they do, they will have addressed all the elements of the offence and the defence raised necessary to reach their verdict.’ –UK Crown Court Bench Book 8 February 20131110th Annual Jury Research and Practice Conference

12. Question Trail* 8 February 201312*VLRC, Jury Directions Final Report 2009

13. ‘Route to Verdict’* 8 February 201313* UK Crown Court Bench Book 2010

14. Question Trails  The idea of providing jurors with written factual questions is not new (Auld Review, 2001)  Related terms include ‘flow charts’, ‘decision- trees’, ‘jury checklists’, ‘fact-based directions’ and ‘route to verdict’.  Question trails are now: –routinely utilised in NZ (R v Dixon [2007] NZCA 398) –increasingly in the UK (King v R [2012] EWCA Crim 805) –proposed in the Jury Directions Bill 2012 (Vic) (‘integrated directions’). 8 February 20131410th Annual Jury Research and Practice Conference

15. Question Trails  Key features: –Written –Logically structured –Questions are phrased so as to require jurors to answer factual questions; the law is ‘embedded’. –Facilitates integration of legal definitions/directions –There is no one ‘correct’ approach 8 February 20131510th Annual Jury Research and Practice Conference

16. Question Trails  It is hypothesised that this fact-based approach plays to the jury’s strength; that is, on their ability to follow factual evidence and to make judgements about those facts.  By focusing on factual questions, it largely obviates the need for jurors to recall and understand the legal elements of the case.  There has been relatively little research on the effectiveness of Question Trails. 8 February 20131610th Annual Jury Research and Practice Conference

17. Asking the Right Questions  Clough, Ogloff and Monteleone, together with the Victorian Department of Justice, have been awarded ARC Linkage funding to conduct empirical research into methods of improving juror comprehension.  The research will evaluate standard, modified and question trail directions in two studies. 8 February 20131710th Annual Jury Research and Practice Conference

18. Simulated Study  80 mock juries will be used to evaluate four different conditions: –Standard –Modified –Modified with checklist –Modified with question trail  Jury comprehension will be tested individually and as a group.  Deliberations will be video-taped. 8 February 20131810th Annual Jury Research and Practice Conference

19. Field Study  50-60 trials in Victoria adopting traditional methods will be analysed and compared with trials in NZ adopting the Question Trail approach. –Trials will be analysed in terms of communication practices, material provided, length of deliberations, questions asked. –Judges will be interviewed to gain an understanding of judicial practice and views relating to juror comprehension. –Jurors will be interviewed post-verdict to gain an understanding of subjective and objective assessments of comprehension. 8 February 20131910th Annual Jury Research and Practice Conference

20. The Bigger Picture  Even if they improve comprehension, question trails cannot, of themselves, address all of the challenges to juror comprehension.  They should be seen in the context of reform of the trial process more broadly; e.g. Jury Directions Bill 2012 (Vic). 8 February 20132010th Annual Jury Research and Practice Conference

21. Questions? 8 February 20132110th Annual Jury Research and Practice Conference