Working Cooperatively with Other Criminal Justice Institutions

This chapter examines how the Criminal Cases Review Commission works with two members of the criminal justice system in conducting investigations: the police and the Court of Appeal. It analyses a variety of cases, including those rare cases where the Commission uses its powers — under section 19 of the Criminal Appeal Act 1995 — to appoint an investigating officer to carry out enquiries to assist in the exercise of any of its functions. The chapter shows how the Commission deals with the investigating officer in section 19 cases and how it incorporates the results of the investigation into its decision on whether or not to refer a case back to the Court. It also explores the Commission's decision frames when it manages a section 19 investigation and when it works for the Court on section 15 investigations. Finally, it looks at section 15 investigations that involved alleged jury bias or misconduct.

The New Impartial Jury Mandate

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not provide a standard for determining when evidence of partiality is sufficient to set aside a verdict but made clear that an otherwise procedurally adequate decision may fall to substantive deficiencies. This Article advances a structural theory of the Constitution’s impartial jury mandate, focusing on the interplay between its ex ante procedural and ex post substantive components. The Article argues that the mandate has traditionally taken shape as a collection of procedural guarantees because of a common law prohibition on reviewing the substance of jury deliberations. Peña-Rodriguez tosses this constraint, allowing judges for the first time to review the rationales upon which jurors base their verdicts. The Article then offers a novel approach for applying substantive impartiality more broadly by looking to the Equal Protection Clause’s tiers of scrutiny. It concludes that ex ante procedural rules and ex post substantive review can operate in conjunction to tease out undesirable, impermissible forms of jury bias, while still allowing for desirable, permissible forms of jury bias.

Implicit Jury Bias

The purpose of this chapter is to consider whether educational methods are—or could be—an effective way of tackling the implicit jury biases that threaten the fairness of trials. First, the chapter introduces the key ingredients of implicit bias, focusing particularly on their consequences for juries. It then reviews the efforts that have been made to use educational interventions to address implicit jury bias, as well as others that have been proposed. These existing and proposed interventions include jury orientation, jury instructions, expert testimony, individuation, and race salience. The chapter concludes by reviewing some of the primary obstacles to these kinds of efforts.

Jury Service for All? Analysing Lawyers as Jurors

Section 321 of and Sched. 33 to the Criminal Justice Act 2003 abolished many of the old restrictions on jury service eligibility previously contained in the Juries Act 1974. The result has been to widen significantly the pool of eligible jurors in criminal trials. This article addresses some of the implications of allowing lawyers, including members of the judiciary, to serve on juries, and considers the recent guidance issued to them in order that they perform their role as jurors appropriately. It will also reflect upon the Court of Appeal's recent ruling in R v Abdroikov and Others, which considers many of the pertinent issues, including the issue of jury bias.