Jury trials - alternatives: evidence briefing

Annex II: Methods

An initial search on both Google Scholar and the Scottish Government Library Service, KandE, was conducted. KandE has access to an extensive range of online search engines and databases.

In order to supplement the Lady Dorrian Review, the initial search was limited to literature published since 2020. However this only gave limited relevant results and the period was extended to 2010. It included the following terms:

"rape", "sexual offence", "sexual offences" and "single judge", "judge alone", "judge only", "professional juror", "lay panel" OR "lay assessor", "judge panel", "panel of judges", "jury-less trial", "trial by judge".

The search was also complemented by a Scottish government library search. This search similarly revealed that there currently is very little research comparing jury trials and their alternatives. The most promising publication from this search was Elisabeth McDonald's "In the Absence of a Jury". This publication was read, and relevant references mentioned in this study were also added to the list.

Recommendations were asked from Professors James Chalmers, Fiona Leverick and Vanessa Munro. They were specifically asked for recommendations on pilots or cases where a switch was made from jury trials to an alternative mode of trial.

In their reply they mentioned the limited amount of research available on this topic, but suggested the book Juries, Lay Judges, and Mixed Courts – a Global Perspective, by Sanja Kutnjak Ivković and others.

An overview of the relevant literature included in this briefing can be found in the tables below. Initial relevance was determined by the study involving empirical analysis or practical examples of establishing alternatives to jury trials. However, this resulted in a very limited number of studies. In consultation with policy colleagues the scope was broadened to include literature that reflects on the challenges of different modes of trial and suggestions of criteria for changes to modes of trial. Specific searches were conducted looking at conviction rates and public confidence in the justice system. Attention was also given to countries that have a similar (adversarial) system to Scotland, and have used single judge trials. These include Australia, New Zealand, Canada and United States. Examples were also included of serious (sexual) offence proceedings in countries with different modes of trial, and studies were found focusing on Japan, Norway and The Netherlands. In total 24 studies were included in this briefing:

Literature on rape trials

Dowds et al (2021) Putting Sexual violence on trial In: Sexual Violence on Trial: Local and Comparative Perspectives

• Scope: Summary of recent developments in social and legal responses to sexual violence, comparing Northern Ireland context to other countries
• Relevance: Overview of challenges in system, but not specifically on mode of trial

Michele Burman and Sandy Brindley (2021) Challenges in the investigation and prosecution of rape and serious sexual offences in Scotland

• Scope: Overview of important themes in and research on prosecution of rape offences in Scotland
• Relevance: Overview of challenges, Scotland specific, but not specifically on mode of trial

Rachel George and Sophie Ferguson (2021) Review into the Criminal Justice System response to adult rape and serious sexual offences across England and Wales

• Scope: Research report for HM Government exploring experiences and views of the police, CPS, support services, solicitors, barristers, defence practitioners and judges on criminal justice system related to sexual offences
• Relevance: Overview of challenges in the system, but only briefly discusses views expressed on juries

Ellen Daly (2021) Court Observations of English Rape and Sexual Assault Trials: an Intersectional Analysis

• Scope: Study exploring the role of rape myths and cultural narratives in serious sexual offence trials in England
• Relevance: Reflection on rape myths and jury trial

James Chalmers et al (2021) Why the Jury Is, and Should Still be, Out on Rape Deliberation

• Scope: Discussion of arguments in favour of judge alone trials
• Relevance: Reflection on use of jury in sexual offence trials

Waterhouse et al (2016) Myths and legends: The reality of rape offences reported to a UK police force

• Scope: Looking at rape statistics and misconceptions
• Relevance: Rape statistics

Jane Goodman-Delahunty et al (2021) Greater Knowledge Enhances Complainant Credibility and Increases Jury Convictions for Child Sexual Assault

• Scope: Study in Australia where jury interventions (including expert witness or giving educative judicial direction) were tested in child sexual assault cases
• Relevance: Reflections on use of interventions to help jury overcome bias

Literature on justifications for jury/single judge trial

J Boersig et al. (2021) Accused Stripped of the power to elect to have trials before a jury of their peers

• Scope: Critique on the emergency COVID-19 response act in Australian Capital Territory that allowed judge-alone trials on election of the judge
• Relevance: Reflection on legitimacy of single judge trials

Felicity Gerry (2020) Jury is out: why shifting to judge-alone trials is a flawed approach to criminal justice

• Scope: Critique on judge alone trials
• Relevance: Reflections on jury and judge alone trial system (opinion piece)

Dominic Willmott et al (2018) The English Jury on Trial

• Scope: Discussing (early) results from mock jury rape trials and bias. Calls for reform but no abolishment of jury system
• Relevance: Reflections on jury system in rape trials

Julian Roberts and Mike Hough (2011) Public Attitudes to the Criminal Jury: a Review of Recent Findings

• Scope: Presenting overview of surveys in England and Wales that record public attitudes to the jury
• Relevance: Public attitudes statistics, with focus on jury trial

Literature assessing single judge trials

Elisabeth McDonald (2022) In the Absence of a Jury

• Scope: Comparative study between jury trial and single judge trials in New Zealand, with a focus on the complainers experience of the Justice process
• Relevance: Direct comparison between jury and single judge trials

Fiona Hanlon (2014) Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia

• Scope: Study of judge-alone trials in serious offences in Australia, looking at role and pressures on judge, impact of trial and trial procedure
• Relevance: Review of single judge trials, but not specific for sexual offences

Jodie O'Leary (2011) Twelve Angry Peers or One Angry Judge: An Analysis of Judge Alone Trials in Australia

• Scope: Examines reasons given for granting a single judge trial in Australia (and the difficulties with competing justifications)
• Relevance: Gives information on judge alone trials, but not specific for sexual offences

Don Read et al. (2006) An Archival Analysis of Actual Cases of Historic Child Sexual Abuse: A Comparison of Jury and Bench Trials

• Scope: Comparison between jury and single judge trial in Canada, with an analysis of different predictors of verdicts
• Relevance: Compares jury and singe judge trials, focuses on variables that can predict verdict

Shari Seidman Diamond and Jessica Salerno (2020) Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges

• Scope: Reflections on use of jury trials, including a survey of judges and attorneys in the United States
• Relevance: Reflection on use of jury trial, but not specific for sexual offences

Daniel Givelber and Amy Farrell (2008) Judges and Juries: The Defense Case and Differences in Aquittal Rates

• Scope: Study on the differences in giving a guilty verdict between jury and judge (presiding over jury trial) in the United States
• Relevance: Empirical data on jury trials in United States, but not specific for sexual offences

Melissa Breger (2019) Making the invisible visible: exploring implicit bias, judicial diversity, and the bench trial

• Scope: Study looking at implicit bias in single judge trials (in the United States)
• Relevance: Reflection on judge alone trials and implicit bias, but not specific for sexual offences

Bethany Sager et al (2021) Bench vs. Jury Trials: Sentencing and Conviction Outcomes for Criminally Charged Policy Officers (poster)

• Scope: Poster giving overview of study comparing conviction rates between bench and jury trials for criminally charged police officers in the United States
• Relevance: Empirical data on conviction rates in United States, but not of rape cases.

Literature on other modes of trial

Louise Elaine Ellison (1997) A Comparative Study of Rape Trials in Adversarial and Inquisitorial Criminal Justice Systems

• Scope: Comparative study between The Netherlands and England, with a focus on needs and interests of rape complainers
• Relevance: Direct comparison between two different mode of trials/justice systems

Anna Offit (2021) Dismissing the Jury: Mixed Courts and Lay Participation in Norway

In: Juries, Lay Judges and Mixed Courts: A Global Perspective

• Scope: Discussing the change in Norway from jury to mixed courts (lay and professional judges)
• Relevance: Considers a change in mode of trial, although not single judge trials. Not specific for sexual offences

Dimitri Vanoverbeke and Hiroshi Fukurai (2021) Lay Participation in the Criminal Trial in Japan A Decade of Activity and Its Sociopolitical Consequences

• Scope: Evaluation of the new Japanese system (introduced in 2009)
• Relevance: Provides empirical data but change is from judge only to lay participation. Not specific for sexual offences

Mika Obara-Minnitt (2018) The Sacrifices behind the "Success" of Saiban-in Seido (Quasi-Jury System)

• Scope: Reflections on the new Japanese system (introduced in 2009)
• Relevance: Provides empirical data but change is from judge only to lay participation. Not specific for sexual offences

Mark Levin and Virginia Tice (2009) Japan's New Citizen Judges: How Secrecy Imperils Judicial Reform

• Scope: Comparison of new Japanese judicial system with other systems around the world and challenges it faces
• Relevance: Compares modes of trials, but not specific for sexual offences. No empirical data