When I received a letter informing me I had been selected for jury service, a part of me looked forward to it. It would be one of those life experiences not everyone gets. It could be something to draw from, for a future novel, or a chance to right some wrong in the world, to carry out justice and perform civic duty.
Let me tell you a little about the trial. I can’t be too specific because I don’t want to fall foul of privacy laws or whatever else that keeps the wheels of justice turning.
The events on trial took place in the 1990s, between two family members, a man and a female child. As a grown woman, having largely moved on with her life, in the early 2010s she decided to bring the case to the police. Considering our trial was conducted in 2018, it should give you an idea of the timescale. From the alleged events to the trial itself, we’re talking in the region of 25 years.
We have to remember the alleged events began in a time before anyone could google images of child porn, and hardly anyone carried mobile phones. Our defendant has a clean criminal record, and was never arrested or questioned for anything. And now he’s on trial facing dozens of charges of rape, indecent assault, and gross indecency spanning nearly a decade.
What evidence do we have? Well, when we think of evidence, I think we tend to confuse or conflate it with proof. There was no definitive proof. No DNA, no CCTV, no eyewitnesses, and no records of movement to physically place either the defendant or complainant. We had police video statements, transcribed statements, principle examinations, cross-examinations, and a few written communications.
First I want to talk about the prosecution’s case. Some of the evidence gathering made me angry. The complainant’s video statement, made by police, was terrible. Here is the complainant, clearly distressed, being asked very intimate, personal details about an alleged incident, and we can barely hear her answers. Both video and sound quality were abysmal. Some footage was unusable, and they had to ditch it, and use a transcript. We’re not talking about dodgy 1970s technology here, we’re talking this very decade, and the people gathering evidence can’t operate a camera or position a microphone to a decent standard. Ironically, these videos are called A.B.E.s — Achieving Best Evidence.
Still with the prosecution, but being cross-examined, a police detective was eviscerated for failing to check the authenticity of a document. We were left stunned, asking ourselves, Why the hell wouldn’t they think of that? Later in the trial we were given a second copy of some evidence, as the first copy they gave us had pages missing. We were not impressed.
In short – overall, I didn’t think the prosecution had a great case.
But then neither did the defence.
They argued that the complainant was simply making all this up; she had created a series of accusations spanning years, and used the fog of time as a convenient excuse for not remembering certain details. Throughout her teenage years and into adult life, she told no one in authority, but then one day, a single communication triggered her plan into motion. A plan to destroy the defendant, which would also serve to exact revenge on a third party. Incidentally, this third party, universally agreed as a cruel figure themself, was never put on the stand.
Unfortunately for us, the trial came down to a timeless cliché: he said / she said.
As mentioned, evidence heard in a trial is not proof. If there was hard proof either way, I imagine there would never have been a trial. Aside from the key players and a few brief appearances from people who’d given police statements years ago, the evidence put before us was a collection of old statements, and photocopies of communications. No independent experts. No doctors, counsellors or therapists, no one to verify authenticity of questionable evidence, no one to give us clear, unbiased insight into any motives either the defendant or complainant may have had in the course of their lives. He said / she said.
So I guess that’s why We the Jury come in. I capitalise the phrase sarcastically because – I’m not gonna lie – I feel used by the system.
It only really hit me in the closing arguments. One barrister told us a little bit about why we have juries, and finished with something like “…it’s a system that works.” Light bulb moment. I thought to myself, Yeah, it works for YOU mate. You don’t have to decide.
As far (and as little) as I’m aware, judges, barristers and solicitors are all highly trained and educated. At a crown level, you’d expect them to be highly experienced and paid too. And they know things we don’t know; maybe it’s evidence that can’t be admitted because it was discovered too late, or maybe someone connected to the witnesses has a right to remain off the stand. Who knows. In any case, these veterans of Law present, scrutinise, and preside over evidence, then hand a hugely difficult decision-making process over to 12 randoms. They stuff our heads with a labyrinth of data, chuck us into a room, and expect us to decide the fate of total strangers.
If he’s guilty, she’s vindicated, and he goes to jail. If he’s not guilty, she’s a massive liar, and most likely both their reputations are screwed. It really, really sucks to be on a jury, and in the absence of definitive certainty, have to make that decision. So really, if there’s no absolute certainty, he should go free, right?
Well, the judge told us we had to consider all the evidence put before us, and only the evidence. We couldn’t speculate on matters not discussed. We had to leave our bias at the door. But we were also told to use our common sense, our own life experience to decide who we believe is telling the truth. If after seeing all the evidence (once again – not proof) you feel you can come to a decision beyond reasonable doubt, then go with that.
As we were told a few times, the burden of proof is on the prosecution. The defence is not required to prove anything. But I guess their best tactic is to cast doubt on everything, hoping for that crucial reasonable doubt. If this was a case of theft, and someone was accused of stealing a hundred quid, but in reality a police officer was lazy and didn’t check that it was actually ninety-nine quid… To me, there’s no reasonable doubt that the accused is a thief. A little detail like that is neither here nor there.
But this isn’t a case of theft. It’s about sex. So delving into my own life’s experience, I recall the first time I had sex. I remember the house, the address, the room in which it took place, and I can definitely remember who it was I had sex with. I don’t remember what the fucking bedspread looked like. And bear in mind there’s no trauma attached to my experience – we were two young consenting dirtbirds. If I have difficulty in remembering a tiny detail, is that reason enough to suggest none of it happened? (Incidentally there was no mention of a bedspread in the trial.) For me, reasonable doubt has to be bigger than wee details such as that.
Let’s come back to this case. In my life, I don’t think I’ve ever known anyone who’s concocted an elaborate, decade-long ruse to ensnare one family member in order to punish another. I can’t fathom who might engineer such a plan as suggested by the defence. Still, there are some deeply twisted and driven people out there. As the saying goes, Hell hath no fury like a woman scorned.
On the other hand, I can’t say I know anyone who’s a rapist. But from third-hand life experience (through press, history, media etc.) I can say confidently that rapists come in all shapes and sizes. Just because this guy appears squeaky clean doesn’t mean he is.
Yes, it’s possible the defendant committed none of the acts. It’s also possible he did. It’s possible the complainant made everything up. It’s possible she didn’t. It’s possible to put people on the moon, but some think it’s never happened. It’s possible I once stabbed a guy to death, and I’ve been getting away with it all these years, and it’s also possible I’m making that up. In a world where so many things are both possible and at the same unlikely, how do you decide what’s real? If you think about it, and argue enough, there’s a reasonable doubt for everything. There’s a doubt out there for all of us.
I know me. I’m never certain of anything. There’s always a .00001% chance that even the most obvious truth isn’t what I think it is. But being on a jury case like this isn’t about naked, pure truth – it’s about belief. What does my conscience tell me? In the absence of definitive proof, I had to decide which of these total strangers is being honest about events that happened when I was a teenager.
What keeps me on an even keel in a sea of uncertainties is a leap of faith. Though I’ve never been in space to see for myself, I believe the earth is spherical. Though I’ve never tasted arsenic, I believe it will kill me. Though I’ve never had to decide over a he said / she said rape trial, I think the best thing to do is go with what and who you believe is more believable.
To help me decide, I looked at the statistics of my life’s experiences, whether I’ve lived them, or seen them happen in the world around me. What have I seen more? What seems more likely?
– a teenager, who for years turned down multiple opportunities to alert authorities – if the alleged incidents even really occurred – had in fact, in her adult years, planted the seeds of a long-running tale to later destroy an innocent man and a third party
or
– a man with a clean criminal record had in fact a secret history of committing sexual abuse.
Leaving the courthouse for the last time, released from our oaths and affirmations, we passed by a prisoner van, a big white box on wheels with little black windows. I didn’t think much of it, as they were always driving in and out, but one my fellow jurors pointed to it and said “That could’ve been yer man’s ride home.”
To think, before the three-week trial, I was kinda looking forward to this. After sleepless nights wracked with anxiety, I felt like I hadn’t righted any wrongs in the world. I performed my civic duty and felt like I delivered nothing. Now I’m writing this to get it out of my head, and much of it I want to forget. I know far too much about these strangers, and now it’s over I don’t think I can even properly tell their stories.
We the Jury couldn’t agree a verdict. But I hope you can guess how I voted.
Leif Bodnarchuk 
This is the first time I have read someone else’s experience of jury duty. I sat on a jury for a robbery case in the 1990s. I, and others on the jury, agonised over my decision and the whole experience upset me terribly. If I got it wrong, I could be sending an innocent man to prison. On the other hand, if he had committed armed robbery, he should get his due deserts and be taken off the streets for our protection. It wasn’t a he said/ she said case but, even with hard evidence and witness testimony available it was surprising difficult to reach a decision on the information before us. There was also a lot of bullying going on in the jury room. A couple of “forceful” males picked on those they perceived to be the “weaker” members of the jury, particularly the women, and dismissed any reasonable arguments they made.
We found him guilty. Right up to the end I was worried that I had made the wrong decision on the evidence. That is, until my husband sat in the public gallery for the sentencing. The man had a stream of prior offences as long as your arm and had lifelong experience of our prison system so the chances of him being innocent in this case were very slim.
For what it’s worth, I am inclined to believe the complainant in your case. I do not believe that survivors of abuse make these things up and there are 1,001 reasons why they do not tell anyone, report abuse, put up a fight, scream etc etc – all the reasons why some people think a complainant in an abuse case cannot possibly be telling the truth. Would I have found the defendant guilty if I had been on the jury with you? That is a totally different question. I know I would have been overwhelmed by the responsibility.
Wow, that’s a good share. I’m glad to say there were no bullies in our room. Everyone respected the other’s feelings and reasons.
That’s good to hear Leif.
I was on a jury 30 years ago. It was also a rape case. The plaintiff (accuser) was in her early 30s, as was the defendant (accused). They’d met at a bar, had a few drinks, left the bar together, and that’s where their stories diverged. She claimed he raped her in his car. He claimed it was consensual sex. She reported the late night rape the following morning and the examination did prove she had sex with the defendant. This was also a “he said, she said” situation. The defendant seemed like a very smooth, slick, egotistic person. The plaintiff did put forth a believable scenario. However, there was absolutely no proof about what actually happened. We deliberated for a few hours and decided we could not convict someone without more proof. After the verdict, the judge came into the jury room and told us that there had been evidence withheld during the trial. The defendant was found to have a “rape kit” in the trunk (boot) of his vehicle (handcuffs, a blindfold, rope, and other items). The defendant’s lawyer (solicitor) had ensured that this evidence would not be available to the jury. Needless to say, we were all stunned, and wondered why the judge shared this information with us. Having this information available during the trial may have led to more questioning of the defendant by plaintiff’s counsel, and possibly could have led to a different verdict.
Holy shit that’s crazy.