Douglas J. Cusine: Mock trials no substitute for the real thing

My premise is that we should approach conclusions drawn from mock trials with caution, and governments, in particular, should be wary of concluding that what happens in these mock trials gives a reliable indication of what happens, or ought to happen, in “real” jury trials.

The obvious initial point is that in the UK at least, it is not permissible to make any inquiry into the workings of juries. As to how they reach decisions, how they decide what evidence is credible and reliable and what they do not, and whether body language played any part in an assessment of the evidence, we cannot say and it would be rash to use mock juries to inform our thinking on issues like that.

The second point is that even if the evidence and speeches are faithfully replicated in the mock trial, or even presented verbatim, it is very unlikely that the evidence will be given in the same way, far less an identical way to that in the original trial. At present, juries are directed that they can take account of the body language of both the witnesses and the accused. (I will return shortly to the recent research on body language.) The body language of the actors will not be the same and the actors may “ham” things up for effect, either knowingly or not. Thus, the mock trial is a far remove from the actual trial, and is not unlike two performances of a Shakespearean play, but with different actors.

I do not know whether this has been done, but the closest one could get to replicating the original trial would be to have 15 “mock” jurors sit throughout the trial, listening to and watching the witnesses and the speeches. (It might be best if the “mock” jurors spread themselves around the public benches and did not sit in the same places throughout, in case the “real” jury thought that they were being appraised.) In such a situation, the only thing the “mock” jurors would not see would be any facial expression of the accused. They might see body movement, but that might not be of any significance without any accompanying facial expression. Nowadays, it would be possible for a “mock” jury to see a televised version of the trial which would be better still. However, the more the “mock” trial differs from the real one, the less is the reliance that can be put on its findings, or any conclusions drawn therefrom.

In the latest research into body language, it is suggested, rather bizarrely in my view, that jurors should be directed to ignore body language. I say bizarrely, because we all frequently pay attention to body language. For example, a person who is approached in a pub by someone with an angry look might be persuaded to effect a swift exit. Teachers at whatever level will look to see if the pupils/students are “getting the message” and anyone addressing a jury will do the same. For example, the Moorov doctrine may be understood by lawyers, but it might seem complicated to jurors and if there is a look a puzzlement on the faces of the jurors, the judge might decide to repeat the directions in a slightly different way. Those who rely on lip-reading, are to some extent involving themselves in assessing body language. If that is correct, it would be absurd to disallow such evidence.

Mock trials with their attendant artificially should not be the basis for a direction to ignore body language. For example, if as happens, an accused is sniggering, or otherwise indicating disapproval of say, the Crown witnesses, that may be because the accused had lodged a defence of alibi which is supported by the testimony of witnesses who, in due course, will or may be called by the defence. The sniggering may be because the Crown witnesses are “all over the place” changing their testimony between evidence-in-chief, cross-examination and re-examination. In such a case, the jury may be understanding of the reaction of the accused, as they too may have formed the same opinion. However, an accused may be sniggering, despite the Crown witnesses seeming to be both credible and reliable and the jury may disapprove of this conduct. However, we are not in a position to know what weight, if any, jurors in real cases given to body language. Even if the accused was sniggering, the jury might disregard that, or attach very little weight to it. Such conduct may have been be a determining factor: we do not know. I suspect that if a direction were to be given that body language should be ignored, such a direction might itself be ignored. Furthermore, we may subconsciously be assessing body language and, in that event, the direction would be meaningless.

Mock trials are no substitute for the real thing and we just have to accept that until, if ever, research into the workings of real juries is allowed, we just have to speculate and speculating in this situation is a bit of a waste of time.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.