I’ve just finished a stint of jury service in the Scottish High court - have a few questions on the rules and regs.
Is there such a thing as jury screening in Scotland or the UK at large? Where prospective jurors are examined by the prosecutor / defence lawyers according to some parameters? Here there was none - 15 names out of a hat, sit down, court in session. (Interestingly, there are no opening speeches in Scotland - the jury is sworn in and the first witness is wheeled out, game on). I’ve done service in England several years back on a far more serious case, and that was a similar process as I recall.
Is there such a thing as a character witness, or is that something you just see on the telly? Without going into specifics, the defence in this case called just one witness - the accused. Could a jury draw any negative inferences from the fact that no one was willing to come forward and act as a character witness? Or is that something that doesn’t happen in Scottish / English law?
It can be quite confusing for a juror when a witness is being cross-examined over something that appears to be a clear matter of fact e.g. ‘I put it to you that this employment you are describing is a fantasy’ ’ No, I worked there for 3 months’. Why are we having an argument about something that can clearly be established either way? A couple of analogous exchanges happened in the case, and it wasn’t clear to us why a witness couldn’t be hauled in to clear things up.
Finally, I was surprised that the judge didn’t offer any comment on the verdict ‘Not proven’ - (almost) unique to Scottish law. He was meticulous in laying out the law for us, but he didn’t really comment on the Bastard verdict. This is not a question as such, just an observation that ‘Not proven’ seems a terribly biscuit-arsed middle ground that really muddies the waters of jury deliberation. I’m sure the great minds of Scottish jurisprudence would be fascinated to hear my opinion on the matter (not), but it is interesting that we are out of step with the rest of the world’s major legal systems having this third verdict - awa’ ye gae and dinna dae it again.
Can’t comment on the specifically Scottish aspects, but with respect to character witnesses, I don’t think they’re that common. “He is not the kind of boy to do this kind of thing” is a pretty feeble refutation of prosecution evidence which shows that he did, in fact, do this kind of thing, and you won’t rely on it to secure an acquittal where you have anything more credible. The defence is more likely to bring on this evidence when they expect a conviction (or intend to plead guilty) in the hope that it will affect sentence.
In any event, even if you suspect or think that the defendant is of bad character, this is not evidence that he did what he is charged with. The world is full of people of less-than-stellar character, and most of them certainly did not commit this crime. You’ll need a lot more than that before you can convict him.
In short, character evidence – either way – has limited probative value on the matter of guilt.
Voir dire is not normally done in English courts (or Scottish ones either) as the jury is supposed to be a random selection of the citizens. It’s not unknown - I recall at the Jeremy Thorpe trial one of the counsel (can’t remember whether it was defence or prosecutor) asked each prospective juror whether he had read either of two books that had already been written about the case (The Pencourt File and The Thorpe Committal).
Jury vetting of prospective jurors’ criminal record is sometimes done, not often, and only on permission of the Director of Public Prosecutions.
Peremptory challenge of the type normal in US jurisprudence was abolished here some years ago and if you want to object to a juror you better have a solid reason for it, such as prior acquaintance or kinship.
I was called for Jury Service in the High Court in Edinburgh a few years for an apparently long and complicated case - so they called up twice as many potential jurors than usual, in the expectation that work commitments, etc. would mean that a higher number than usual would have legitimate reasons to be excused serving. As, indeed, I did have.
I’m sure, though, that the defender and prosecutor both had the option to say no to potential jurors they didn’t want on the jury. They seemed to go through the list pretty quickly initially, nodding at each other, or pausing and maybe shaking a head. No actual questioning that I remember, but, I think, by referring to a brief questionaire we had all filled in.
It was all a bit of a mess, with 60 (iirc) of us filling the court beforehand for the selection process - took all morning!
Actually, remembering the arguments here over the criminal and civil O.J. Simpson trials, I am personally of the opinion that “Not Proven” would be a useful verdict to have available in certain cases.
When the smoke has died down and the shouting is quiet, and the jury is left to sift trhough the testimony and arguments presented, they may very well find that:
The prosecution proved that someone committed the alleged offense at the time and place alleged;
The prosecution showed that there is a very good likelihood that that someone was in fact the defendant; but
The prosecution failed to show beyond reasonable doubt that the defendant did in fact commit the crime alleged at the place and time alleged.
In such a case the third verdict seems the appropriate one.
Jury nullification is not a formal component of the common law system. It’s more like an occasional byproduct. I’d be surprised if any judge mentioned it.
The prosecutor in Scotland is either the Procurator Fiscal or The Crown Office, more serious cases being the latter.
In a PF trial the citation will be “Thomson v. McDodgy”, Thomson being the name of the PF. In a Crown case the citation is “H.M.A. v. McDodgy”, standing for “Her / His Majesty’s Advocate”.
I haven’t done criminal work in the U.S., but from what I recall, I don’t think that character witnesses are too common here. The problem with character evidence is that it opens the door for the prosecutor to introduce the same to impeach the character witnesses testimony.
That’s not guilty. That’s why it’s not guilty rather than innocent. IF it isn’t proven they’re innocent until proven guilty. It’s very rare to have a juror peremptorarily dismissed, but not quite unknown: there was the Ricky Tomlinson trial, back when he was a militant socialist rather than a famous actor.
Most judges/courts have a definite hostility to jury nullification. The idea that juries can ignore the law to acquit is not an option they want to give the jury.
If Scotland is like much of the anglo-american system, you should not be reading anything in from an absence of testimony. You can only go by sworn testimony and evidence. Similarly, the accused has a right to not testify, and you should not read anything into it either.
However, if one fact is sworn testimony and the contrary is nothing but lawerly hot air - why believe the latter? If the guy sworn in says “I worked there 3 months” and the prosecutor asks “isn’t this fabrication?” and presents no evidence to back it up, I would then be inclined to doubt much of what the prosecutor says - all his explanations that lack hard evidence in closing arguments. “The defendant did this to get even…” Since your last statement wasn’t backed by evidence, why should I believe this assertion either?
Maybe the prosecutor is hoping you will believe the misleading insinuations of a “real lawyer” over the sworn testimony of an arrested and accused perp. If so, more the reason to stick it to him. Both sides should have done depositions and be ready to refute any issues with the other’s testimony. One thing I recall from an article by a trial lawyer was “Never ask a witness a question if you don’t know what the answer will be.”
I know my dad told me once that Scottish law still has some hangovers from the good old days that are very different from the real world. The one he liked was that you could go camp on someone’s land and they had to give you 24 hours to move on before it was trespassing…
I’m not sure that’s precisely how it was, but anyway common law rights of access have now been superseded by The Land Reform (Scotland) Act 2003. I think you can now camp pretty much anywhere as long as you’re not interfering with activities like farming etc.
My understanding - as a Scot, but not as a lawyer - is that “Not proven” has long since been depreciated by the Scottish legal system. Not something to be reformed out of existence, but equally not something anyone, least of all the judge, dangles in front of a jury unless they have to. Though, if that was the decision, the court still clearly has to abide by it.
I agree with bonzer; when I was growing up in the 60s & 70s and into the 1980s, the ‘third option’ was lauded as a good thing, as I recall, and a useful part of the legal system; more recently the tide has turned and informed opinion seems to be generally against it, although not so much as to discard it, just not use it much!
What he meant was that in England and the rest of the normal world (sorry, Scots joke there) if you are on someone’s land without permission, they can ask you to get off - now! He said in Scotland you had 24 hours to get off. Very handy if you were just camping around the countryside. Still the law?
So what does “not proven” do? Does it allow double jeopardy, or just put a label on someone “We think you likely did it but it’s not proven beyond reasonable doubt?” Any consequences from the verdict? I assume no sentence happens. It probably helps with civil liability trials afterwards.
But I don’t think that ever was the case, and anyway we’ve already mentioned the Land Reform (Scotland) Act 2003 which now governs rights of access. I think it was that the landowner could use ‘reasonable force’ to move you off the land (now, not in 24 hours’ time), but you could only be sued for being there if you actually damaged the land or property.
‘Not proven’ does currently prevent double jeopardy in Scotland, as it is effectively a ‘not guilty’ verdict. However the Scottish government is currently considering scrapping the double jeopardy rule, as has already happened in England and Wales (this is separate from any debates about the merits of ‘not proven’).
“We think you probably did it, but we’ll give you the benefit of the doubt”.
At one time there was a TV show called, IIRC, Murder Not Proven which dramatised cases from the [remote] past that had resulted in this uncommon verdict.
So basically use common sense, don’t take the piss, tidy up after yourself and you can walk and camp pretty much where you like. Note that the vast bulk of farmland that is popular with walkers and campers is wild land used for sheep grazing, not arable cropland.
