Jury Service in Digital Times

It’s only late in life—I’m in my sixties—that I find myself being summoned for jury service. Like all of us, I’ve seen innumerable court room dramas, in films and on television—fiction, docudramas and documentaries—and on three occasions I’ve been in the court room as a witness (I’ll come back to that). But only now, as a member of a jury, do I properly discover for myself that the courtroom is the setting for a very strange form of theatre. A trial is a staged event, and it’s the jury for whom this staging is ostensibly mounted. But it isn’t fiction. It consists in people telling stories, but the crime is not invented (except in political show trials). The set is always the same (although courtroom architecture varies); it follows a pre-ordained outline script; parts of it are doubtless rehearsed beforehand (separately from each other) but the ensemble delivery is always extempore—and unrepeatable. Another thing: it’s staged, yet it has no director. But there is a meta-narrative which authorises it: The Law. (Think Kafka. And Brecht.)

I arrive with an expectation that is quickly borne out—that being on a jury, the sense of performing a civic duty, of taking on such a responsibility, puts people into a civil frame of mind. Everyone entering the building passes through the same security gate and then goes their separate ways through doors that open off the large hallway. Jurors get taken up to the sizeable jury assembly room, with its anonymous decor (but at least it’s light and airy). This is a big modern building with a dozen court rooms. On the first morning, when juries are being selected, it’s crowded, but people hardly talk, not knowing each other, or do so very quietly. You have to pay attention to the periodic announcements, answering ‘yes’ when your name is called. The ushers who do the calling speak in friendly tones, as they do battle with a dodgy P.A. system. The selection process can take a long time, especially if there’s a long trial due, from which many jurors will have to be excused.

Here in the jury space, people feel equal and respectful of each other. There’s plenty of room to sit, in rows of airport-lounge seats facing each other, and a canteen with round tables, although the grub is abysmal—the worst institutional food I think I’ve ever encountered. (It’s run as a franchise, of course, which probably means, because the clientele is transient, that they can ignore the complaints; the court ushers discreetly invite you to bring your own packed lunch.) People check their smartphones, a few read real or electronic books, two or three are working on their laptops (but the wi-fi isn’t free). All perfectly normal. There are racks of magazines, and most curiously, a couple of tables, one at either end of the hall, where large jigsaw puzzles are laid out in various stages of completion. This is what I shall most remember about the scene, and most regret not being able to photograph. Whoever thought of putting out jigsaw puzzles is a minor genius. First you think, oh, that’s nice, what a relaxing and calming way to pass the time while waiting. Then you walk past later and someone else is sitting there with the puzzle a bit more advanced, and again the next time, and it becomes doubly symbolic: an icon of the nature of the truth that the jury establishes in reaching its verdict, and a metaphor for the task of the jury as a collective endeavour. But there’s a catch: the evidence the jury will hear may well have pieces missing. Indeed it’s probably inevitable. Witnesses may or may not tell the truth and nothing but the truth, but nobody tells the whole truth. There is always an excess, always stuff left over. The whole truth is impossible. How much this matters in practice, however, must surely depend on the kind of case being heard, and whether the missing pieces are essential to make sense of the picture as a whole, or of a significant detail.

The jury is an ideal social form, simultaneously an abstraction, and the instantiation of the idea of collective intelligence. What the juror is required to do is apply their individual judgement (which explicitly includes, in the judge’s words, their ‘life experience’) only to sink their ego into the anonymity of the group. If who-knows-what prejudices come into play in this process, the juror will still be absolved of the danger of making the wrong call. Miscarriages of justice are always possible, a liability of the system, because the truth is never knowable for absolute certain. The jury is sensibly instructed not to convict if they have doubts about the veracity of the evidence, they must be sure the prosecution case has been made, but the events you hear about all happened in the past, and the stories staged before the jury in the courtroom are all recounted in flashback. While the drama of the staging unfolds in the immediate present, like Rashomon or The Thin Blue Line (only not so elegantly).

To get from the jury assembly room to the courtroom you have to be guided through a rabbit warren of passages, doors with security locks and stairways, the bare walls alleviated slightly by pastel paintings of rural scenes of the kind you can buy on street stalls and usually find in cheap B&Bs. The usher tells you there’s another set of rabbit warrens just like this one on the other side. In other words, this is a building which is designed to funnel people through the imposing entrance and quickly divide them into different streams circulating through the building completely separate from each other and only meeting up in the courtrooms. This requires from the architects a special model of flow and control of passage which is similar to airports, including numerous internal thresholds which require a security code to pass through. The modern courthouse is the same kind of arrested space, or non-space, with the peculiarity that it removes you from the everyday world only to let the outside world back in through carefully controlled channels. The control is not just physical. The courtroom is a space which licences only certain forms of speech, which correspond to the required decorum.

The courtroom imposes this decorum partly through its spatial organisation and the fixed furniture which defines the spaces occupied by different people. This means that witnessing a trial as a participant is quite different from the way it is invariably constructed on film or television, because unlike their multiple camera positions and lenses, you can see it only from one fixed point of view. The courtroom where I find myself sitting is a simple modern design dominated by a calming shade of wood (although the acoustics could be improved considerably); all the court officers are equipped with computers (not to mention the Counsel’s ipad). At the start of the trial, the judge reminds the jury (apologising for her headmistressy tone) that we are forbidden to have recourse to the internet to research or discuss the trial in any way whatsoever. The second day abruptly brings back the forbidden, when mobile phone logs and email messages are presented as exhibits, and the following day, evidence is given from abroad by video link. I promptly wonder how many cases nowadays involve such things being presented in evidence, or what kinds of case might not do so. How many crimes are prosecuted nowadays without some kind of digital evidence, ranging from video surveillance to tweets? If I understand correctly, these are all presented under the rubric of legal documents, but this obscures their individually distinctive features. They are not quite the kind of primary evidence implied by labelling them with an exhibit number. The thing about the contents transmitted by digital media channels is precisely that they are mediated, but differently, depending on the platform through which they’re delivered. Each has its own form of packaging and its own ecology, and it’s dangerous to generalise.

As it happens, I have personal experience as a witness who once presented film footage in a court of law as evidence for the defence. We came away from filming the big Lewisham Anti-Nazi League demonstration of 13 August 1977 with shots, among other things, of arrests being made, and showed our footage to the Defence Committee. One shot clearly showed a policeman rushing towards a line of demonstrators standing their ground shouting, who then grabbed one of them by his frizzy hair, pulling him some distance to the open door of a police van, where he was bundled inside; the shot was a continuous pan back and forth, and the defendant was clearly not, as alleged, resisting arrest. We ended up in court showing the film in his defence. The only requirement was to show the footage unedited, and the only question I was asked was to confirm this. But it required a special projector (the double-headed kind usually only found in dubbing theatres, capable of running the separate sound track in synchronisation with the picture). I borrowed one from the college where I was then teaching. In the courtroom, the mise en scène was beautifully ironic—the only place where we could put the projector so that everyone could see the screen was by placing it in the witness box itself, while I stood to one side and reached over to turn it on. The film was taken as unimpeachable evidence of the arrest, with which the testimony of the arresting officer simply didn’t tally, and the result was a happy one. Since I hardly needed to watch the footage, I turned the projector on and looked at the policeman in question, who went white as a sheet. As soon as the projection came to an end, the magistrate looked round the courtroom and pronounced ‘Case dismissed’.

What counted here was only the ostensive or indexical content of the footage, not its aesthetic or iconic aspects. Certainly not the evidence it gave of, let’s say, excessive zeal on the part of the police. Only the particular and individual case in hand. The picture being clear, it was taken to be transparent. In this case I was happy to agree, but it isn’t always so. The assumption of transparency is nowadays widely regarded as erroneous, and not only by critical theorists within academia. Even as the media try to keep a tight lid on their selective partiality, society is imbued with a feeling that appearances are deceptive and the empirical isn’t what it used to be; the loss is part of the crisis of democracy, the democratic deficit. Does this not mean that the faith of a court of law in the objectivity of filmic evidence is naive? Is it the result of a certain disposition to believe so deeply ingrained that it’s taken for granted, and thereby escapes interrogation? What are the mechanisms by which the multiple nature of truth—literal, cultural, social, psychological, legal, consensual—is pinned down and fixed? These are issues that are all sharpened by the new digital media, which run the gamut from the immediacy of citizen journalist video, to that of the thin texts loaded with innuendo that characterise both texting and the tweet.

The problems of interpretation differ according to the form. With visual images the emphasis is still generally on the content. At any rate, the live video link, where you see and hear the witness in real time, is relatively unproblematic. Recorded video would need a date-and-time stamp. On the other hand, with a phone log which has date-and-time stamps but is stripped of verbal or texted content, the evidence provided is minimal (although I can imagine cases where it might be crucial). But as soon as you have a text to consider, either a text message or an email, attention is turned on the author. And then, with the minimal forms characteristic of digital writing, the problem becomes its opacity.

The issues raised by platforms like Twitter and Facebook are about a peculiar new form of public speech, which I leave aside here. Email, on the other hand, presents itself as individual and personal, but with certain peculiarities that make it quite different from old style postal correspondence. Digital duplication makes it an extensible form of interpersonal communication that allows for several types of message, from private correspondence, to round robins, discussion groups, publicity notices, and the personalisation of standard letters, including various infamous examples of spam. All of this occurs in the moment of transmission, but it also means that as a package of digital data, email is an inherently leaky medium, and the sender can never be certain where it might end up. (Not to mention sender errors: accidentally sending something to the wrong recipient is often the cause of much embarrassment, and sometimes worse.) Emails sent through institutional accounts often carry disclaimers or confidentiality notices. But email always has a source which ought to be traceable (except when deliberately evaded) because in order to send a digital message it has to have a digital label.

Nevertheless, emails are largely written in a somewhat informal style. Many people are careless about spelling (but then my aunt used to write long chatty letters home with practically no punctuation).  First name address is common, even between people who haven’t met. In texting, names get dropped altogether. In both forms, people often write things that wouldn’t previously be included in formal correspondence, from trivialities to indiscretions, as various politicians know to the cost of their reputations—or worse.  As a stripped down form of personal communication, email implies but hides the character of the relationship between writer and recipient (texting even more so). Personal emails where the sender and recipient know each other adopt a form of address that takes its cue from their real-world relationship (for example, close friends, colleagues and family members might drop the use of salutations and sign off in minimal ways). They may also be written, especially among the youth, in the new form of orthography evolved through texting which their elders may find difficult to read; and jurors who have regular contact with youth may well catch the subtexts better than the Counsel who reads them out. But an email is not, of course, meant to be spoken aloud, and what always remains elusive is on the one hand the voice of the writer, and on the other, the voice that the recipient hears in their head upon reading it. It may be obvious to the recipient that a message is meant ironically, for example, but not to an unintended reader.

The personal email is part of an extended dialogue of which this message is but a tiny fragment, a dialogue that is not only carried on textually or electronically. Meaning becomes fluid, references and allusions are made in jargon, or using shorthand known only to the correspondents. Other traits appear. Especially this, that as a textual form operating at a distance, people may well write things they wouldn’t or couldn’t say face to face even if they thought it. A film producer once said to me, ‘Michael, don’t expect me to say what I think just because you know I think it.’ But maybe someone struggling to break off a relationship uses a textual message to make an offensive remark they know will wound too deeply. If this possibility has always been true of letter writing, the immediacy and speed of email greatly multiplies this liability, including the risk of emotion going unchecked. As people say, never send off an email in anger.

In short, email introduces strange new kinds of polysemy and ambiguity. The problem for a jury is what is and isn’t obvious, and what new kinds of non-transparency are brought into play. The problem for Counsel is rather different: how to limit the meaning of the digital text to just the interpretation they want to fix on.

A jury is supposed to only concern itself with the facts of the case, and not speculate about the missing pieces of the puzzle. You are supposed to keep an open mind and not jump to conclusions before hearing all the evidence and the closing statements. This isn’t always easy. If the form of the trial is an unfolding drama, the structure of the narrative is made up of parallel and intersecting story lines. But narratives carry expectations, and raise active questions as they proceed, and we are culturally trained to respond to the prompts. (Not just culturally trained, of course. Also predisposed to certain notions by, let’s call it, our station in life.) We are prone to home in on a certain repertoire of plots comprising the generic forms of theatre, literature, opera, etc., filtered by the propensities of a century and more of mass culture, proclivities which have a dangerously normative effect, because reality is always much more messy. The format of the trial, being adversarial, begins by offering two competing master plots. Then it enacts these through the examination and cross-examination of witnesses, etc., which has the potential to expose holes and lapses in the best laid plots, but in the end is supposed to destabilise just one of them.

What if it doesn’t? The Scottish legal system makes provision for a third verdict: not proven, which is used where a jury is unconvinced that the defendant is innocent but the evidence of guilt is insufficient. This often happens, for example, in cases of rape, where the jury is inclined to believe the victim’s testimony, but other evidence is lacking. The defendant is legally innocent and walks free, but is often seen as morally guilty. This kind of verdict can solve a jury’s problem, where an English jury in such cases is obliged to return a verdict of Not Guilty, but it remains controversial.

The story telling doesn’t stop when the evidence is complete. You’re hearing a succession of stories which are supposed to all add up but quite possibly don’t. When the evidence is concluded you get three more tellings of the story in counsels’ final statements and the judge’s summing up. Then the jury retires, and everyone starts re-telling different bits of the stories they’ve been hearing. A small ritual is enacted when the judge sends the jury to deliberate. Up till then, every time you’re taken up to the courtroom, the usher simply instructs you to turn off your mobile phone. When you enter the deliberation room, you are required to surrender it, and any other electronic device you may have. The room itself is small and stark, and gets hot and stuffy quite rapidly. An inexplicable sign tells you that for health and safety reasons, the windows may not be opened.

Before starting jury service, I had a number conversations about the prospect with friends or relatives. Several, now too old, were all relieved they had never been summoned. Everyone expressed reluctance at the idea. A couple of people told me they had found a reason to be excused, one person even did so by responding to the summons saying that she wouldn’t under any circumstances want to send someone to prison. These are attitudes I broadly share, but I decided I didn’t want to get out of it (I just didn’t want to get stuck there for months, and went armed with a letter from the University saying I couldn’t be spared for longer than the minimum fortnight). I think I had two reasons. First, one can thoroughly disapprove of the political regime under which we live, and even understand The Law as an ideological state apparatus, but are you entitled to opt out of your civil obligations? Because The Law isn’t just an ideological apparatus, it also answers to a real social need for the administration of justice. Individual justice without social justice often isn’t justice, but the reverse is also true.

Second, out of intense curiosity. Dare I say the curiosity of the documentarist who wants to know what actually happens in such a place? Even if I could only run the camera in my head, I also arrived that morning in the expectation that whatever kind of case I was selected to hear, the experience would be enormously instructive. And so it was, but of course one is not allowed to say anything at all about the case itself. Nor anything of what went on among us in the deliberation room. I permit myself only to comment that here too my first expectation was again borne out, and everyone’s behaviour was a model of civility. It’s a relief to find that it’s possible in this fucked-up country.






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