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The Trial: A Murder in the Family. A dangerous mix of drama and reality

Posted on 26th May 2017

So it ends. Over five nights I have diligently watched The Trial: A Murder in the Family. I have been informed. I have been entertained. I have been annoyed. And now that it has finished, I am angered.

Let’s start with the good things.

Firstly, it’s always good to see the criminal defence profession positively portrayed on television. The barristers John Ryder QC and Max Hill QC were well-chosen representatives of their respective sides and their styles contrasted nicely with each other. Ryder’s harrumphing theatricality contrasting effectively with Hill’s more understated and forensic, but no less devastating, approach. It is always a pleasure to see advocates of the highest calibre practicing their craft (sadly, since solicitors stopped getting paid to attend the Crown Court to assist trial counsel we don’t get to see it that often anymore).

Secondly, it was fascinating to see how the jury approached its task. Every jury advocate has always secretly wanted to place a hidden camera in the jury room to see what they are actually saying, rather than having to make do with the endless Kremlinology of guessing which way jurors are thinking by the way they are sitting or nodding their heads. One of the more alarming comments that springs to mind is “no comment implies guilt” (even though Simon Davis didn’t actually go full no comment – he submitted a prepared statement) and the amount of jurors who seemed to change their view from not guilty to guilty about the entire case after Simon Davis gave evidence is definitely food for thought.

Finally, the most interesting thing to observe was the degree to which the jurors brought their own life experiences to bear on the deliberations. It demonstrated that a wholly objective, dispassionate view of the evidence is largely impossible. People will always view the evidence through the prism of their own life experiences, but it was heartening that most of the jurors were careful in trying not to let their previous experiences influence their assessment of the evidence too much.

Now, the bad things.

This might be a complete failure of imagination on my part, but it wasn’t entirely clear what the programme was meant to be. As courtroom drama it didn’t particularly work because it wasn’t dramatic enough. As docudrama it didn’t work because it wasn’t realistic enough. It seemed to occupy an awkward no-man’s land between fiction and reality, which the programme-makers tried to address at the end by a tacked-on sequence that suggested that the entire programme was meant to be an anti-domestic violence polemic.

Whilst the programme purported to be a completely realistic, nuts-and-bolts recreation of a real murder case, the fact is that it was not. It was wholly artificial, the most artificial element being the jury itself. The jurors were apparently chosen at random from members of the public but they were not summonsed to be there as they would have been in real life. The programme had 12 seemingly intelligent and articulate people who were on the face of it happy to be there. In real life, jury service often comes as a massive inconvenience therefore you are bound to get some jurors who are not especially happy to be there and will simply “go with the flow” in order to be able to leave earlier. Had Simon Davis been tried in a real courtroom, it is entirely possible that the four guilty votes that resulted in the hung jury would have been such people, easily persuadable by the other eight to change their votes for a quiet life.

The most unrealistic element of the whole programme was however the big reveal at the end when jurors and viewers were shown, in no uncertain terms, that Simon Davis was in fact guilty. The point was made during the programme that the only person who knows the truth is the person who actually committed the murder and the programme should have stuck to that and left the issue of factual guilt unresolved. The jurors who voted not guilty did so because they had a reasonable doubt about Simon Davis’ guilt. Some even essentially said (and, for what it’s worth, so did I) that he probably did commit the murder, but they just weren’t sure. This was an entirely proper approach to take, one which held true to one of the fundamental pillars of our justice system – that the Crown must prove guilt beyond a reasonable doubt. The big reveal proved that they were wrong. Leaving aside that this almost never happens in real life (if anything, the reverse happens – jurors are proved wrong to have convicted because of new evidence, for instance DNA), what point were the programme-makers trying to make by ending things in this way? That juries get it wrong all the time? That those who respect the burden of proof are stupid? That there should be a lower standard of proof that would allow juries to convict on the balance of probabilities? That it is better for innocent men to go to prison than for guilty men to go free?

I shudder to think of the corrosive effect this programme might have on the jury system if it causes some jurors to err on the side of convicting even if they are unsure of guilt, just because they are afraid of being one of the eight jurors on this programme who acquitted only to ultimately be proven wrong.

If you want drama, watch Twelve Angry Men. If you want real-life, go and watch a real Crown Court trial. There is one happening near you every day of the week.

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