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25 May 2017

The Trial: A Murder in the Family (Part Four)

Episode Four of The Trial was one where emotional reactions, of all varieties, were placed front and centre, as we observed the jury’s reaction to the cross-examination of the defendant and closing speeches, and the beginning of their deliberations. The theme that emerged was – time and time again – the instincts, emotions, and gut feelings of the jurors playing a far greater part in their deliberations than any other element of this trial.

The first area where this was apparent was the way the jury assessed the body language and demeanour of different witnesses. One juror, speaking about the defendant, told us that she “can’t explain it, but I just think he’s telling the truth”. Later, in their deliberations, another juror replayed CCTV footage of Mr Skinner, and commented that this was the body language of someone with something on his mind.

The impact of body language on the thinking of the jury is particularly interesting in light of recent debates about whether witnesses’ faces should be visible when they give their evidence in court. Just last week, the Professor of Law at the University of Buckingham wrote an article in The Times suggesting that niqabs should be removed in the courtroom to allow for the proper testing of the evidence. This contrasts with the position Lord Neuberger, the President of the Supreme Court, took in 2015, when he said that the “cultural and social habits” of witnesses should be respected. Watching the weight that the jury in this programme is placing on the demeanour of witnesses provides an insight which should inform future consideration of this debate.

The other way the emotional reactions of the jurors came to the fore during this episode was in how their life experiences resulted in their vastly different reactions to the evidence. In answer to the questions posed in this blog after Episode Two, the individual experiences of jurors appears to be playing a far greater role in their deliberations than analysis of the evidence itself. The jury is divided. Those who have suffered, or know those who have been victims of, domestic violence, believe the defendant is guilty. Those who have suffered infidelity and the pain of relationship breakdown believe that the defendant’s behaviour (such as sending aggressive text messages) is consistent with innocence.

As a viewer, one gets the distinct impression that the jurors are each choosing to focus on the evidence which supports the conclusions they have already drawn. Those who believe the defendant to be innocent are focussing on the bad character of Mr Skinner; those who judge the defendant to be guilty are focussing on the testimony of his ex-wife that he “lashes out”. This is evidence used to justify instinct, not the other way around.

However, it was not only the emotional reactions of the jurors which this episode focussed on, but also those of counsel. Prosecution counsel Max Hill QC provoked the extreme ire of defence counsel John Ryder QC when, in his closing speech to the jury, he asked why the defence had not challenged the officer in the case, DS Blockley, about his decision to charge Mr Davis rather than Mr Skinner. This was despite the fact that both counsel had previously agreed that the question would not be asked. Knowing of this agreement, this approach appears underhand. However, whilst viewers may now be a little unimpressed with the prosecution, the only jury perspective we gained went in the opposite direction. One juror told us that Mr Ryder becoming “rattled” led him to change his mind, and begin to believe that the defendant may, in fact, be guilty. A sobering thought for all counsel who like to make their emotions clear in court.

This insight brings us to the most interesting question raised by this episode: What is really determining the jury’s verdict in this case? Is it the evidence? Or the performance of counsel? On the one hand, the jury are wise to the fact that Mr Ryder is an effective advocate trying to lead them to an acquittal (one of them commenting “a man could be as guilty as hell and that guy could get you out of it”). On the other hand, the jury spent significant time considering the point that Mr Mullen’s identification of Mr Skinner must be accurate because he got the clothing description correct – a point made in the defence closing speech, and a moment of advocacy which plainly had a significant impact.

Perhaps the true answer to this question is that it is neither. The emotional reactions of the jury are instinctive, inexplicable by logic, or by reference to a specific piece of evidence or point made by counsel. What we are watching unfold is instead the inherent power of the jury system, where twelve ordinary people somehow reach the right verdict by taking a global view of everything they have seen, in light of their own knowledge about the way that people act. What that result will be is still unclear. At the moment, opinions are so divergent that the judge may have to give a majority direction, allowing only ten of them to agree. If they cannot reach a majority decision, there will be a hung jury, and a possible retrial. It will be fascinating to watch whether the jury will be able to coalesce their instinctive, opposing, reactions into one unified verdict.

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