Beyond the legal barriers: Institutional gatekeeping and real jury research

Introduction

The public controversy surrounding the Vicky Pryce trial in the United Kingdom in early 2013 highlighted how little some countries know about how juries undertake their work, and how poorly what we do know is shared across jurisdictions. The Pryce jury was criticized for asking 10 questions that prompted the trial judge to describe the jury as having “fundamental deficits of understanding.” The prosecutor told the English court: “This is a jury which hasn’t, it appears, understood its function” (Greenwood, Allen, Gladdis, & Robinson, 2013). The keywords in his criticism are “it appears.” We do not actually know the extent to which juries understand their function. Instead, anecdote and populist invective has dominated the public debate. Significant barriers confront researchers who wish to investigate further in the United Kingdom, Australia and, with the possible exception of New Zealand, many other commonwealth countries.

Empirical jury research enriches our understanding of the jury trial process and enables jurisdictions to implement improvements that are based on a factual understanding of the issues in need of reform. The two most common methods of jury research are “mock” jury and “real” jury research. Both have their strengths and weaknesses and both are important to achieving a better understanding of the jury system. This article focuses on the barriers to conduct research with real juries that have stifled this kind of scholarship in commonwealth jurisdictions. In Australia, Canada, Eire and the United Kingdom, two sets of barriers stand in the way of real jury research—one legal and the other institutional.

The legal barriers have resulted in questioning jurors about their deliberations being prohibited in England and Wales, Scotland, and Canada. ¹ Consequently, proposals for jury reform in these countries tend to reflect disaster management, a reaction to a publicized jury trial mishap. Subsequent reform may be implemented without due consideration of its impact on the entire process or appropriate monitoring of its effectiveness. In recognition of these concerns, in 2012, the Law Commission raised the possibility of amending the law specifically to allow real jury research in England and Wales (Great Britain. Law Commission 2012, [4.62] 86).

Nevertheless, as Australian researchers have discovered, legislating to allow for real jury research will not in itself produce more jury research, as there are institutional barriers that also prevent such fact-finding. Many courts, government justice departments, and criminal justice agencies have their own complicated research and research ethics approval processes. As a result, even in those jurisdictions, such as Australia, where there are no legal impediments, institutional barriers have kept jury researchers at bay.

In this article, we examine the nature of the legal and institutional gates that block real jury research in commonwealth jurisdictions. As a result of the numerous barriers to conducting real jury research in commonwealth jurisdictions, most of the available real jury research has been conducted in the United States. However, the jury research experiences in the United States hold limited value for researchers in commonwealth countries due to differing jury rules and processes and the culture surrounding the legal system’s use of empirical research.

For example, US jurors are not prohibited from discussing their deliberation in public following verdict. The jurors in the 2013 racially charged George Zimmerman trial had secured book deals even before they had brought down their verdict. However, the concern that jurors will be motivated by fame and fortune to make public comments that will bring the legal system into disrepute, has fortified the decision of other jurisdictions to maintain a blanket ban on communicating with jurors in order to ensure that the jurors are motivated to perform their duties by the desire to come to the right verdict. Jury secrecy is a key reason relied upon to prevent greater access to real jurors for the purposes of research in commonwealth jurisdictions.

Furthermore, in contrast to commonwealth jurisdictions, social science research has been relied upon by lawyers in the United States for over a century, to make law, and determine fact and context (Monahan & Walker, 1991). Use of social science in the American justice system is not without controversy, but debate occurs at a more sophisticated level—not on whether but when and how it might be appropriate to take advantage of social science research in different circumstances (Diamond, 1997; Monahan & Walker, 2007; Ramsey & Kelly, 2004).

While jury rules and processes and the culture surrounding the use of empirical research in the United States differs in important respects from those applied in Australia, the United Kingdom, Eire, and Canada, these and other commonwealth jurisdictions do share some aspects of their legal cultures and court procedures. This has made law reform in one jurisdiction appear more relevant to law reform bodies in other commonwealth jurisdictions.

We begin this article by providing examples of the legal barriers that exist to prevent real jury research in three commonwealth jurisdictions—the first gate. We then go beyond the first gate and highlight the institutional barriers that exist, by reference to recent experience in Australia, and how the numerous gates might be opened to facilitate easier access to real jurors in Australia. The improvements to the Australian process that we suggest in this article, should also be of use to those jurisdictions currently contemplating lifting legal barriers to accessing real jurors.

The first gate—The legal barriers

Legal barriers to real jury research remain in many commonwealth jurisdictions including the United Kingdom, Eire, and Canada. The long journey toward lifting this barrier in the United Kingdom highlights legal and political antipathy toward allowing access to real jurors following verdict, for the purposes of research.

Section 8 of the Contempt of Court Act 1981 (CCA) in the United Kingdom makes it a criminal offence to “obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations.” While the House of Lords debate on the 1980 Contempt of Court Bill assured us that “academic or other researchers dealing with general issues about jury trials can safely pursue their legitimate studies of the jury system” (Elwyn-Jones, 1980, col. 669), the lack of jury studies over the last 30 years suggests that there has been an effective block on most real jury research in the United Kingdom and that part of the fault lies with this legislation.

For example, the Crown Court Study in the United Kingdom was undertaken for the 1993 Royal Commission on Criminal Justice. Michael Zander noted that although his team was allowed to survey jurors, they were not allowed to ask some questions, link jury responses to those of other respondents questioned about the same trials, or identify regional differences in responses (Royal Commission on Criminal Justice, 1993a, p. 5). Other academics have argued, apparently after discussions with legal advisors working in the Lord Chancellor’s Department, the Home Office, and the Senior Presiding Circuit Judge for London, that researchers are unable to ask jurors questions about actual cases (Matthews, Hancock, & Briggs, 2004). This interpretation of the law has been repeated by the Department for Constitutional Affairs, but has been disputed by Zander (Royal Commission on Criminal Justice, 1993a). In their submission to the Law Commission in 2013, Vanessa Munro and Louise Ellison acknowledged that researchers were able to resort to a range of methodologies such as “post-verdict questionnaires on matters other than deliberations, mock jury simulations, shadow juries and statistical analysis of verdicts” but there were, nevertheless, “a range of crucial research questions that cannot be addressed in a satisfactory and thorough manner under the current regime…” (quoted in Law Commission, 2013, pp. 97–98). In her report for the 2010 Ministry of Justice, Cheryl Thomas concluded that the legislation does not technically prevent real jury research from being conducted, but conceded that the legislation has created confusion about “what jury research can and cannot be conducted” in the United Kingdom and “has contributed to an information vacuum” (Thomas, 2010, p. 1).

Not surprisingly, there have been repeated proposals in the United Kingdom, by the Royal Commission in 1993, and a House of Commons Select Committee in 2004–2005 for changes to Section 8 that would encourage more research by clarifying the confusion surrounding legitimate real jury research (Robertshaw, 2001). The 1993 Royal Commission called for reform to allow research in the jury room “so that informed debate can take place rather than argument based only on surmise and anecdote” (Royal Commission on Criminal Justice, 1993b, p. 2). While in his 2001 review, Lord Justice Auld was against changing the legislation (Lord Chancellor’s Department, 2001), the Department for Constitutional Affairs in 2005 again canvassed a proposal to change the legislation (Department for Constitutional Affairs, 2005). Finally, the Law Commission in 2013 proposed that section 8 be reformed to allow approved academic research into jury deliberations subject to authorization by the relevant part of Her Majesty’s Courts and Tribunals Service and its Data Access Panel.

In Eire, the common law rule on jury secrecy has meant little information has been gathered in the area. One exception was a study by Rape Crisis Network Ireland, which reported on the composition and decisions of juries in rape trials and called for further research into the jury deliberative process (Rape Crisis Network Ireland, 2009). The Irish Law Reform Commission suggested in both 1991 and 1994 that maintaining a blanket ban on research was unwise. The Commission’s 2013 report advised that “carefully managed empirical research” might not breach the general rule on jury secrecy and called for researchers to explore jury representativeness, juror comprehension, and juror management and help enhance juror capacity and competence (Law Reform Commission, 2013, p. 130). There is certainly support for this among academics (Coen, 2010; Walsh, 2002).

In Canada, real jury research has been blocked by jury secrecy laws based both on the common law and section 649 of the Criminal Code, which penalizes jurors who disclose information about their deliberations. Some judges, including the Chief Justice have criticized the result. The Law Reform Commission of Canada has called for reform to allow research on juries. In 1980, it suggested the Chief Justice of any of Canada’s provinces should be allowed to authorize research in that jurisdiction as “Speaking to jurors about their deliberations after they have served on a jury could be an effective way of promoting understanding of the process of jury deliberations. Indeed it might be the only way” (Law Reform Commission of Canada, 1980, p. 143). While it may be possible for researchers to ask jurors about their general experiences (Chopra & Ogloff, 2000), most researchers in Canada are unwilling to take the risk, and so Comiskey (2010) concluded “the legal barrier preventing evidence of jurors’ actual inability to comprehend instructions remains strong and impenetrable” (p. 665).

It is tempting to believe reforms sought by the Law Commissions in the United Kingdom, Eire, and Canada might unleash a wave of research in the area. Unfortunately, experiences in Australia and other parts of the commonwealth suggest that even if jury secrecy laws were amended a second or third gate will be shut should jury researchers attempt to venture further.

Beyond the first gate—The institutional barriers

In Australia, since the 1980s, there has been explicit legislative provision in all but one jurisdiction for allowing real jury research as an exception to the jury secrecy rules. As head of the Department of Justice, the Attorney General in each jurisdiction (other than South Australia) can authorize jury research projects that question former jurors about their jury room experiences. However, the experiences of jury researchers in Australia over the last 25 years highlight a number of problems with the process for approval even where the law clearly allows such research.

Australia’s national research councils and institutions have agreed on a common National Statement on Ethical Conduct in Human Research. In addition, the research councils have developed a common national ethics application form, designed to avoid duplication of work for multicentre research and limit the opportunity costs associated with ethics review. Justice agencies have yet to adopt this approach and so every multijurisdiction project must complete local ethics forms for each approval required.

The Expert and Jury Project, with which we were involved, studied 55 criminal jury trials in New South Wales, Victoria, and Queensland during 2011–2012. Funded by the Australian Research Council, we surveyed and interviewed jurors about their perceptions of expert evidence presented in court. Juror survey and interview questions were developed in collaboration with our industry partners, the Australasian Institute of Judicial Administration, and the Australian and New Zealand Policing Advisory Agency (National Institute of Forensic Science). A total of 296 juror surveys were collected, and 115 of these jurors also participated in an interview. We also interviewed 40 trial judges, 103 counsel, and 79 experts from the same trials.

The 14 ethics applications required for the Expert and Jury Project had to occur sequentially so that when the first committee required amendments to the survey instrument, the ensuing applications could incorporate the changes. As Kevin Haggerty observed in Canada: “The more ethical roadblocks are installed for innovative and critical research, the more we risk homogenizing inquiry and narrowing vision, as scholars start to follow what they perceive as the path of least institutional resistance” (Haggerty, 2004, p. 412).

Two Attorney Generals attended to our request to undertake research promptly, one did not do so. Other than sending respectful reminders, there was little else we could do but wait, as any complaints risked triggering rejection of the project. Attorney Generals do not have to provide reasons for their rejection and rejections are not subject to review.

While in two jurisdictions the Attorney General’s approval was sufficient to cover all sections of the justice department other than the courts, in the third jurisdiction we encountered two further layers of ethics approval. If we wanted to interview the forensic experts employed by the police that gave evidence in the 55 trials, our project had to be approved by both the Police Research Coordinating Committee and the Police Human Research Ethics Committee.

Following Attorney General’s approval, approval of the courts was required. In the first jurisdiction, approval of the Chief Justice of the Court involved writing to the Chief Justice who responded with the Court approval. In the second jurisdiction, the legislation provided that researchers must apply to the court for approval. This involved the Department of Justice briefing a barrister and making a formal court application on behalf of the researchers. The judge hearing the matter was expected to approve the project without being able to clarify matters with the researchers or the court administrators, as neither stakeholders had a right of appearance. The court application was costly to both the researchers and the government and delayed the project. In the third jurisdiction, the Chief Justice referred the application to an internal committee with expertise in jury trials. This jury committee provided wise counsel to the project, which lead us to conclude that this process was the one most likely to lead to more effective research.

Approval of the Chief Judge of a court will not automatically result in jury access. Ethics approval from the courts requires researchers to obtain practical support from individual trial judges and the jury administrator of every court house. It is appropriate for trial judges to have discretion to withdraw their trial from a jury project on the basis of, for example, the jurors being particularly stressed. This happened on a few occasions in the Expert and Jury Project. However, there are examples where support has been withdrawn without a legitimate reason. Jury researchers are not in a position to ask for a reason if a trial judge or court administrator does not wish to facilitate the jury project. For example, in one jurisdiction, the Chief Executive Officer of the Supreme Court provided written support for Jane Goodman-Delahunty and Annie Cossins’ grant application to the Australian Research Council. However, when access to exiting jurors was eventually sought in practice, the jury administrator refused. Attempting to enforce the agreement would have been counterproductive as jury projects need ongoing support from court administrators. The ability of a trial judge or an administrator to block such research without having to articulate or defend his or her decision leaves researchers without a consistent, transparent, and fair process and ensures this environment remains inimical to investigation.

Several other practices have discouraged researchers from pursuing access to the jury room door. Government departments and courts may delay the decision to grant access to jurors rather than allowing the project to commence or rejecting the request outright. The executive and the judiciary can usually outlast researchers who rely on public funding and are likely to be subject to strict deadlines. In a study of Australian civil juries, Horan (2004) faced a 12-month delay of approval from one of the approving parties. The 14 ethics approvals required for the Expert and Jury Project took two years to secure. As approval is needed from an individual Attorney General rather than his or her department, projects are also subject to the electoral cycle. In one jurisdiction, we were able to obtain the Attorney General’s approval the day before his government went into a three-month caretaker mode prior to a State election. However, following the election, we also had to seek and receive assurance from the new government’s Attorney General that he would honor the approval given by his predecessor. As State and Territory governments serve three-to-four year terms, any comparative or longitudinal study may have to confront the vagaries of a politicized approval process.

Gatekeepers have the unfettered power to require amendments to the project. The validity and transferability of research results can be compromised when specific questions that form part of the jury survey are excised or access to juries restricted to a small sample size. Canadian Law Reform Commission researchers were given access to jurors in 1979. The Department of Justice, Chief Justice of the Trial Division of the Superior Court of the province, the local sheriff’s office, and the presiding judges approved the dissemination of approximately 500 pre- and postservice juror questionnaires. The lead researcher was nervous his work might be illegal and carefully constructed the questionnaires so they did not contravene the spirit of the legislation (Law Reform Commission of Canada, 1979). Even so, in one region, the superior court judge in British Columbia removed a question from the preservice questionnaire and distribution of the same survey in Vancouver was called off two days before it was to be administered until further adjustments could be made. If gatekeepers repeatedly compromise research design, a project may no longer seem worthwhile to the researcher.

Inconsistency in court approval of projects across jurisdictions also discourages real jury research. Initial enthusiasm for a project can wane, resulting in rejection of a project at a late stage without explanation . The 1979 Canadian Law Reform Commission jury project reported in relation to Quebec “the difficulties and time involved in obtaining approval of the superior court led to the project being abandoned.” When Chopra and Ogloff (2000) attempted to replicate this study, the project was abandoned when the Supreme Court of British Columbia would not approve access. Such extreme scenarios coupled with the uncertainty, delays, and funding pressures commonly experienced by contemporary jury researchers have left researchers reluctant to even look for access.

Why block access?

Drawing on Brusten (1981), Reece Walters outlined several reasons state agencies may offer or decline to allow researchers access to data. These explanations included constraints of resources, the potential for disruption to the department or clients of the department, or a desire to avoid scrutiny. Unfortunately, “the researcher will often be unable to deduce categorically the ‘real’ reasons for denied access” (Walters, 2003, p. 105).

When it comes to jury research, court policy is typically developed and resources allocated on an ad hoc basis. As a result, the judiciary may play an influential role and their decisions may be influenced by their work practices and orientations and also the strains of dealing with huge caseloads, ambiguous agency goals, and limited resources. Judges may also be wary of overstepping their role. For example, courts in Australia are placed in the unenviable position of being presented with a jury research project already approved by an Attorney General. They may feel obliged not to oppose the project even when jury administrators may be stretched too far by competing priorities.

One leading British jury researcher expressed concern that exposing the inner workings of the jury ‘“warts and all,” could lead to a damaging loss of confidence in the system through the mistaken impression that it was working badly when actually it was working perfectly well (Zander, 2005, 2013). However, the jury system has long been subject to ill-informed criticism, which tends to feed off particular infamous incidences of perceived poor jury performance. If we are to combat ill-conceived media criticism, we need to be better informed. If we are to improve the system, we need to know if and how it is failing and learn to communicate in a way that combats distortion of our findings. Although rarely easy, the need to disseminate research and combat media and political distortion is common across much sociolegal and criminological research and is not unique to jury researchers.

However, the prime purposes of jury secrecy are to protect jurors from outside influences and to protect the finality of a verdict. The importance of jury secrecy to jurors has been highlighted in a British study of real jurors. Eighty-two percent of jurors surveyed as part of Thomas’ (2010) study agreed with the proposition that jurors should not be allowed to speak about what happens in the deliberating room. This question appears to have been asked within the context of a series of questions about juror impropriety and topics such as juror use of the internet, which may have had an impact on how jurors answered this question. Of course, we would not have known what these jurors had thought if they had not been approached by researchers.

In court, unlike judges, jurors are not required to provide reasons for their decision. This insulates the jury decision from appeals. Contemporary trial judges are highly skilled and trained to provide judgments that are structured and expressed in a form expected by the appellate courts. Jurors cannot be expected to express their reasons in a manner that complies with the legal requirements. Further, jury verdicts may involve individual jurors reaching the same verdict in different ways. Jurors can also reach decisions that run counter to the evidence. They may refuse to apply the law when the result would be unjust. Requiring or even allowing jurors to verbalize their verdict may raise some difficult issues for the legitimacy of the verdict and the perception of a fair trial process. The traditional way of ensuring that the verdict is never publicly discussed is a blanket approach; prevent all research, rather than prevent research that views and/or analyses the jury’s deliberations.

Opening the gates

While it has been important to most contemporary legal systems that jury deliberations remain secret, it is also critical public institutions be open to public scrutiny. Where these two imperatives have been balanced against each other, jury secrecy has tended to trump public scrutiny. However, the weighting between these two imperatives needs to be reconsidered as does the assumption that public accountability necessarily poses a threat to jury integrity.

Indeed, we would argue that current attitudes toward real jury research pose a threat to the credibility of the justice system. If legal professionals insist on relying on judicial anecdote rather than systematic research, they run the risk of losing the confidence of the community in the face of media stories that directly contradict their claims. Secondhand judicial experience of the jury system was the closest thing to a factual understanding we had a century ago. However, a variety of empirical approaches can tell us more about jury trials.

For example, the highly influential New Zealand jury research project conducted in the 1990s featured data from interviews with real jurors (Young, Cameron, & Tinsley, 1999). This study showed that privacy of jurors and verdicts and the defendant’s right to a fair trial could be preserved while conducting worthwhile research. No Attorney General approval was required, but the study “was subject to very strict procedures to protect jury secrecy, and the oversight of an ethical committee” set up by the Courts (New Zealand Law Commission, 2001, p. 172). The researchers, Warren Young and Yvette Tinsley, observed that their project demonstrated two things to judges: “First, that many of the fears about research undermining public confidence in the jury system did not materialize. Second, the findings of the research could yield real benefits in improving jury trial practice” (personal communication, May 6, 2013). The New Zealand study certainly found it challenging to respond to the conventions that surround jury secrecy, but their research paved the way for numerous other jury research projects—four in New Zealand alone.

Many lawyers feel some discomfort when faced with social science research. The ability to undertake or interpret empirical research is not a mandatory part of law degrees—it plays no role in the requirements of the Australian Threshold Learning Outcomes, the British Subject Benchmark Statement, the UK Joint Statement issued by the Law Society and General Council of the Bar, the Scottish Accreditation Guidelines, nor the report of the Task Force on the Canadian Common Law Degree (Kift, Israel, & Field, 2010). Barristers are not required to review justice system research as part of their professional development. Partly as a result of this, there is a notable lack of reference to scientific literature in Australian, British, and Canadian court rooms. Some judges have made the express point of rejecting social science findings, particularly when based on simulations (Bornstein & McCabe, 2004–2005; Chopra & Ogloff, 2000). Cunliffe (2006) describes the Supreme Court of Canada’s approach toward social science evidence as sceptical, with a deep concern about reliability. This is not scepticism toward some research methodologies and findings, but appears as a professional antipathy to any empirical research. An Australian report on Judicial Directions produced by a team led by Mark Weinberg, a Victorian Supreme Court judge and former academic, sensibly relied upon psychological research to suggest ways to simplify judicial directions to juries (Weinberg, 2012). However, two senior counsel responded: “Based on our observation, we do not think that the ‘backfire’ effect or ‘overcorrection’ effect are as common as researchers would have it” (Weinberg, 2012, p. 349). It is difficult to imagine much credibility being offered to other criminal justice agencies who asked us to trust their instinct that, despite evidence to the contrary, there were no problems within their institutions and that therefore no further investigation would be warranted.

One pressing reason for changing policy relates to the impact of technology on our jury systems. First, the internet is exposing jurors to prejudicial publicity, and the right of the defendant to a fair trial has traditionally required jurors be ignorant of such information. New circumstances mean we can no longer isolate jurors from potentially prejudicial information, so we need to understand the impact of such information on jury decision making in order to evaluate whether the jury can still be entrusted to bring down just verdicts. Secondly, new technologies might also be used to improve the ability of jurors to understand information. For example, jurors can be asked to interpret CCTV footage or the jury may be given access to a three-dimensional virtual crime scene. We need to evaluate the impact of these new courtroom presentation techniques on the jury deliberation process in order to ensure that such technologies do not interfere with the defendant’s right to a fair trial.

Attitudes have started to change. For example, in the 2013 Pryce jury trial debate in the United Kingdom (Humphrys, MacDonald, & Wolf, 2013) Lord Macdonald, the former Director of Public Prosecutions, observed:

I think it is impossible for researchers to conduct any kind of examination at any time into what has gone on in jury rooms …. If you have a better understanding of that then perhaps it’s easier to frame directions to juries which they will follow and which they will understand …. we should allow a bit more research into the way juries go about their tasks.

As Cheryl Thomas argued, the case for jury research:

is especially strong in relation to juror comprehension of judicial instructions, including directions on the law, impropriety and internet use. It is incumbent on those responsible for the criminal justice system to ensure that jurors are fully equipped to fulfil this crucial role, and further empirical research with jurors at court can help achieve this (Thomas, 2010, p. 52).

We do not propose the gates be thrown wide open to jury research. The benefits of securing juror anonymity, finality of verdict, and the defendant’s right to a fair trial are valid reasons to protect jurors from the obligation to participate in research following their jury duty. Juror confidentiality and anonymity must be maintained, but this is no longer inconsistent with allowing researchers access to the jury system.

Recommendations for change

We need to change the culture that surrounds the review of jury research proposals. Researchers will not invest their time and money on a project that might contravene the law and so jury secrecy laws need to be changed in order to, at the very least, clarify the position of researchers. However, opening the gates of the jury deliberation room to researchers will not be achieved by simple legislative amendment. Gatekeepers should consider themselves as custodians of a system that needs to be constantly improved and where decisions are based on appropriate evidence. In such an environment, good projects should be encouraged and facilitated.

In focusing on the barriers that presently exist in Australia, we argue that several processes should be changed in order to ensure an institutional approval process that is rigorous but free from unnecessary barriers that currently exist. While our recommendations are specific to the Australian experience, they will help those other commonwealth jurisdictions who may be modifying or setting up real jury research approval processes avoid the pitfalls of the Australian experience.

Given the duplication of approval processes this article has highlighted, one way to make the system more time and cost effective is to follow the lead of New Zealand and remove the need for Attorney General approval. Court administrations are in a better position than political leaders to assess the benefits of evidence-based reform of the jury system. Our positive experience with the New South Wales Supreme Court jury committee encourages us to recommend jury research approval should not be invested in an individual, but should be made by an appropriately qualified committee. The jury research committee should be headed by an experienced jury trial judge who has an understanding of social science. The committee should contain people with appropriate research expertise as well as the court’s jury administrator. The obligation to assist with sanctioned research projects should be formally acknowledged as part of judges’ and administrators’ workload, and a Court jury research committee could oversee the implementation of research projects by court officials.

We need a research approval process that is fair, transparent, efficient, and consistent, and whose level of intervention is commensurate with risk. A jury committee that develops a precedent base of jury research proposal approvals and rejections would be more likely to produce consistent decisions. However, there is a danger that patterns of approved research will ossify. Instead, such a committee should work with the research community in the jurisdiction to develop clear and principled guidelines that will facilitate useful but also challenging work. In the case of federated jurisdictions, these guidelines should be developed at a national level to allow comparative work to be conducted across jurisdictions.

There are several issues for a Court’s jury research committee to make. These include is there merit in the research?; will the research be conducted with integrity, respect, and with a view to procedural and substantive justice?; and do the benefits of the research justify the risk? Current systems sometimes allow a decision on whether research is politically sensitive to be disguised as a response to one of these questions. Clear and appropriate guidelines and a transparent, effective, and accountable decision-making process should ensure that this confusion is avoided. Such guidelines should include a list of base requirements for all research proposals, such as the need for research to be conducted only with trial judge and juror consent and with the identity of jurors and the trial protected. Various research ethics guidelines such as the Australian National Statement on Ethical Conduct in Human Research (National Health and Medical Research Council, 2007, Rev. 2014), the Canadian Tri-Council Policy Statement (Canadian Institutes of Health Research, Natural Sciences and Engineering Research Council of Canada, & Social Sciences, and Humanities Research Council of Canada, 2010), and the Economic and Social Research Council’s Framework for Research Ethics in the United Kingdom (Economic and Social Research Council, 2010) review some or all of these concepts. For example, drawing on the language of the National Statement, for a proposal to have merit, it may be justifiable on the basis of its potential benefit to the improvement of our justice system, should be designed in a way that might achieve this, and be conducted by researchers with appropriate experience and expertise. Research conducted with integrity would need to be conducted honestly, with regard to general principles relating to the responsible conduct of research, and have results disseminated publicly, whether or not they reflect well on the institution that commissioned them.

The bureaucratic burden of applying for multiple approvals is discouraging worthwhile justice research projects from being instigated (Israel, 2015). Where decisions are to be made in relation to research ethics, committees should operate, as far as is practicable, according to externally recognized guidelines and should have proper reporting arrangements. While each jurisdiction may want or need to have its own jury research committee, each should operate within a national system and ought to be willing to give weight to the prior decisions of other committees on the same research. An appropriate ethics application form should be adopted nationally where it already exists, or developed where it does not. An addendum addressing matters specific to the particular institution could be added to the original research ethics approval form in order to address specific concerns.

Lawyers involved with approving jury research need to gain an appreciation of research methodologies so that they do not insist on amendments to survey instruments that undercut the validity or reliability of the work. In the short term, judicial training into evidence-based research is needed. In the long term, law schools need to expose their students to empirical research in law. Law schools should build on the existing traditions of involving social scientists in the teaching of a law degree.

Another long-term strategy for changing legal attitudes toward jury research is for the legal professions and researchers to reformulate their research relationship. It is in the interests of producing practical evidence-based law reform that long-term strategic alliances between research institutions and the court system be encouraged. Traditionally, the academic jury researcher approaches the court for access to juries to conduct a study the researcher has already devised. However, several more successful jury initiatives have succeeded because the judiciary were closely affiliated with the project from a very early stage. The Supreme Court of Japan Research and Training Institute’s early involvement with the introduction of a mixed jury in Japan is one such example of court affiliation with research (Katsuta, 2010). Having a sense of ownership over a project will encourage the judiciary to contribute to and support the researchers through the data collection phase as well as promoting an appreciation of how to interpret the research findings.

A more proactive stance among the judiciary could be complemented by a similar stance from court services, which could maintain a database of basic jury trial processes. Little is known empirically about the demographic profile of juries. Courts can easily and actively contribute to a greater factual understanding of our jury system by gathering and publishing statistics on jury composition obtained by modifying the jury questionnaires that are already in use (see, for example, the results of the first State-wide Juror Satisfaction Survey in 2013, published by the Supreme Court of Victoria (Juries Commissioner's Office, 2013)). This data can be made available in a redacted form for the court and researchers to consider when reviewing jury processes.

Monitoring jury reform should be a vital part of implementing reform. Assessing jury reform is becoming routine in other jurisdictions. For example, the Judicial Reform Committee of the Supreme Court of South Korea is evaluating the introduction of the mixed jury system into its jurisdiction (Park, 2010). However, reforms are rarely monitored when jury reform is introduced in commonwealth jury systems. If we are to ensure community confidence in our legal systems is maintained then law reform based on empirical research is imperative.

Conclusion

There is an important gap, a jury-shaped hole, in evidence-based practice in our criminal justice systems. In debating the Contempt of Court Bill in 1981, the Scottish Lord Advocate Lord Mackay argued in favour of a clause in the Bill that would allow external investigation as the jury “surely can stand up to properly conducted research” (Mackay, 1981, col. 374). There is limited value in preventing knowledge about a bad system being publicly available for debate. Protecting a faulty system from exposure to public consideration does not strengthen confidence in the justice system. If the jury system is poor, then jurors will share negative views directly with the community. Confidence in the system will be undermined regardless of secrecy rules. Legal systems should act proactively to improve the quality and legitimacy of its decision making before community confidence is dented by adverse juror experiences. The more likely result of a greater factual understanding of the jury system is greater efficiency. Reforms based on data are more likely to work and less likely to need further attention.

Today’s community demands a more evidence-based approach to legal decision making where facts prevail over lawyer anecdote. Jury secrecy needs to be redefined in order to keep up with the demands that contemporary circumstances are placing on trial by jury. Not only do we not need absolute secrecy in order to protect the jury, insistence on it may actually interfere with the evolution and maintenance of an effective jury system.

The common law justice system prides itself on offering justice that is procedurally fair. And yet, in relation to researching the jury system, the current approval processes are lacking in basic fairness and transparency. Clear guidelines need to detail how real jury research can be conducted without sacrificing jury secrecy and finality of verdict. This needs to be coupled with greater understanding of what jury researchers do, by those charged with running jury trials and reforming the jury system. The doors need to be opened on hidden gatekeeper processes.

The delivery of facts is at the heart of every criminal trial. Myth, anecdote, and hearsay are excluded from the evidence. If the legal system wants to continue to lay claim to operate in a fair and logical manner, empirical research must replace the dominance of myth, anecdote, and judicial hearsay in jury reform and replace them with facts. Assertions like “it appears that the Pryce jury has not understood its function” should be backed up or challenged by real research with real jurors.