Jury independence and the general verdict : a genealogy

This thesis explores the historical relationship between the ‘general verdict’ of ‘guilty’ or ‘not guilty’ and ideas of jury independence. This relationship is often presented as natural or self-evident: because the reasons a jury has for reaching its verdict are hidden from sight, it is impossible to control a jury; and therefore the jury can deliver a verdict against the wishes either of the trial judge or of the government. What is generally overlooked in these accounts is the influence of the judge: that a jury’s verdict cannot be corrected after the fact says nothing about the ways in which the verdict is reached. This thesis, drawing upon the work of Michel Foucault, presents a history of the relationship between jury independence and the general verdict. It argues that the general verdict has only been understood as a guarantor of jury power since the second half of the seventeenth century; and that since the late eighteenth century this understanding has been consistently challenged by an alternative perspective, one which holds that judicial directions permit the trial judge to limit the otherwise free action of the jury. These competing perspectives are described in this thesis as ‘exclusionary’ and ‘inclusionary’ ideas of jury power. The former holds that the jury comes into the trial as a citizen, passes judgment upon the justice of the law, and then leaves, without being altered by his or her experiences at trial. The latter holds that ‘the juror’ is constructed within the courtroom by his or her experiences at trial. Having argued that the ‘inclusion thesis’ reasonably accurately describes the activities of the contemporary judges of England and Wales, this thesis goes on to ask whether there is any possibility for jury independence if the juror is constructed within a space set out by the judge. Drawing on the accounts of the jurors from the 2004 ricin terror trial, it concludes by suggesting that jurors may be able to achieve meaningful independence by claiming expertise as a juror. In this way, the most significant type of jury independence might come after the delivery of the verdict, rather than before.