In a book review a decade ago, I mocked academics’ penchant for running experiments with “mock juries” — people told to pretend to be jurors at a fake trial:
For starters, most of the pretend jurors are psychology students, whose main resemblance to real jurors is that they, too, are forced to participate. Researchers lack Hollywood’s resources when it comes to simulating real trials and many therefore opt for paper summaries of the evidence. Even the best studies, which use representative participants and true-to-life scenarios, lack the two singular features of real trials: real evidence and real consequences.
SBS’s new foray into this field, The Jury: Death on the Staircase, meets quite a few of my concerns.
Its eponymous jury of “volunteers” is, like all modern TV shows, diverse in gender, sexuality, ethnicity, age and class. And the criminal case they watch is filmed like a courtroom drama, complete with a real courthouse, a crime scene visit, a dozen or so actors playing witnesses, lawyers and court officers, and realistic audio and photo exhibits. Most importantly, the script they perform is the transcript of an actual, unidentified trial.
All that’s really missing, of course, are real consequences. The SBS jury isn’t deciding anyone’s fate. Nor were any of the “jurors” tricked into thinking they are, unlike the oblivious hero of last year’s hilarious American show, Jury Duty. Rather, Australia’s second public broadcaster copied an English format that purports to put the jury system itself on trial.
The hook of both the English and Australian shows is whether different juries viewing the same evidence will reach the same verdict. Channel 4’s The Jury: Murder Trial actually empanelled two fake juries, each with a view of the fake courtroom but not each other. SBS wisely skipped that game-show gimmick, focusing instead on whether its fake jury would mimic the real one’s verdict, reached years earlier.
This is, to be clear, a silly test of the merits of the jury system, no matter the outcome. Consistent verdicts could just mean that the chosen case was a no-brainer, or biased people in the same direction. Inconsistent ones could mean the opposite.
But I still like the idea that the fake jury’s verdict will be judged against another’s. Unlike (ethically bound) academics, reality TV can expose their experimental subjects to public judgement. The fake jurors’ knowledge of that makes for a real consequence of sorts for their pretend decision-making.
As I write this review, that judgment is still to come. Three episodes in, the prosecution has just rested, and the producers have signalled their own verdict on some of the jurors. Anya, the Siberian sexologist who gets the most airtime, is clearly their favourite, while financial consultant Mish has been given the villain’s cut. Much like a Survivor contestant, Mish tried and failed to take charge of her group in the first episode. Ex-prison guard Craig and music graduate Tashi are surrogates for more and less tough takes on crime.
And then there’s the one who took regular smokos lying in a laneway staring at the sky, and who asked a guard whether he and the accused could meet up post-trial. No, he’s not a TV juror, but a real one from a recent NSW proceeding who got the boot, basically for being too weird. Reality is reliably stranger than reality TV.
The reviewers’ verdicts are in on England’s show, and many are thumbs down. One lawyer wrote: “The four-part series was so flawed, with authenticity sacrificed on the altar of drama and ratings, that it was potentially damaging to the public’s respect for the justice system.” She faulted the show’s details in minor ways (the prosecutor’s silly gown) and major ones (defence evidence preceding the prosecution.)
Other reviewers criticised the jurors, who were regularly likened to Big Brother contestants. The shows’ two juries naturally gave different verdicts, prompting condemnations of both the justice system (for the jury that differed from the real verdict) or the English (for the jury that didn’t).
I think Australia’s take reveals the real culprit: the case the English production chose to re-enact. England’s accused admitted that he struck his wife’s head repeatedly with an industrial hammer (after a fight about renovations) and that he was guilty of her manslaughter. The only question for his juries (one real, two fake) was whether he lost control because of a “justifiable sense of being seriously wronged.”
Such a trial could never happen at all in parts of Australia, where three states have completely abolished the “provocation” defence to murder, branding it an outdated relic that normalises domestic violence. Maybe the English producers wanted to shine a light on the same issue. Or maybe they somehow figured that asking strangers to judge the life of a dead, possibly mentally ill, woman would make for good television.
The Australian producers likewise chose an accused whose partner died with a head wound after they fought, but the local jurors are being asked a very different question: was this a killing at all? Even the prosecution experts concede that the deceased’s various injuries might have come from falling over, or down the eponymous staircase in their Sydney terrace, perhaps after a heart attack. The drama is about what happens when strangers decide how and why a seventy-one-year-old fell.
Is this good television? It clearly isn’t the stuff of Big Brother or a murder mystery, but there’s a lot for the jurors to talk about. Why did a neighbour hear a crash of pans forty minutes before the accused called 000? Why did the deceased sing between those events? Why was a metal juicer bowl found next to the body? Why did the accused tell the police that his head started spinning after his partner harangued him? Why wouldn’t he say how his partner fell?
If that doesn’t suffice (and perhaps it won’t for most), there’s the broader social drama of the couple, their street, the cops and nation. How did the couple meet? Was their relationship abusive? Was the accused hostile towards his (renovating) neighbours? Where they hostile towards the (also renovating) couple? Did the cops treat a newly bereaved man fairly? Did his Chinese ethnicity play a role? What to make of the deceased’s Italian brother? The accused’s friendly ex? The couple’s huge age difference?
To me, these details fascinate precisely because they’re not beats manufactured to engage me but complexities taken straight from a real case. When I watch the fake jury discuss these things, and debate their relevance, it’s easy to imagine the real jury doing the same a decade ago.
Like many, I’m a sucker for a courtroom drama. Glowing reviews have left me eagerly awaiting Clint Eastwood’s latest, Juror #2:
Eastwood’s sparely classical contribution to the genre is stripped of the slightest ounce of excess weight. The film demands close attention: gestures and facial expressions are charged.
But I won’t be watching Eastwood’s swansong to learn about real jurors. That’s not just because of the unlikely but stunning plot, in which a juror comes to suspect he’s the real killer.
I fell out of SBS’s experiment every time the fake jurors’ discussion moved from what they heard in the fake courtroom (from the real trial transcript) to what they saw (courtesy of the production.) I frowned as they saw significance in the layout of a Sydney terrace, subbing for the real couple’s Sydney home, on a fake crime scene visit. I winced when they repeatedly pondered the courtroom body language of the accused (actor Sky Dominic). These are details from the series, not the case.
I’m likely overly sensitive to this because I’ve been running my own version of The Jury: Death on the Staircase for two decades now. Every year, I spend ten weeks working through a real case with students at Melbourne Law School. The case I chose is yet another one where the accused’s partner was found dead with headwounds at the bottom of a steep staircase.
Thanks to a documentary first shown on SBS in 2005 (and now on Netflix), we can watch the real trial ourselves. We spend a class pondering whether the real accused faked tears, first on his call to the police and then in the courtroom. We even ponder the real crime scene, viewable in the movie version of The Handmaid’s Tale, which used the accused’s home as the fictional Commander’s mansion a decade before he called in the cops and then a documentary crew.
My main purpose in all of this is to teach future lawyers how to prepare for trials and apply the rules of evidence. So, my students will know about all the legal bits — the addresses, the arguments, the procedures, the rulings — that the SBS producers chose to leave out. My students might furrow their brows when the SBS jurors seem in the dark about what the prosecution alleged or what evidence was to come. Were the counsels’ opening addresses cut from the fake trial, or just from what we see on the screen?
But they’d also be familiar with the central jury-room drama so far: a clash on whether it’s OK to speculate about things like the couple’s sex life, or the police’s prejudice, or what happened just after the accused finished making some carrot juice. My students are taught to devise a “case theory” to fill gaps in the courtroom narrative. Lately, we’ve watched parts of a docudrama (starring Toni Collette, who also stars in Juror #2) that comes up with several ways to fill the gaps in my class’s case. It’s a key to not only preparing for trial but also deciding whether the prosecution case is plausible.
That’s why it’s unfortunate, I think, that some Australian judges, fearing jurors might puzzle out what lawyers are arguing about in their absence, caution jurors not to speculate about things not in evidence. Those judges should watch the SBS series to see how such directions confuse jurors, especially in a case built around circumstantial evidence
My other purpose in turning my evidence class into a courtroom drama is to turn each of my students into a mock juror, allowing each to run their own personal jury study. As a sidewind, I get to conduct a yearly experiment of my own, asking repeated “juries” of law students to render their fake verdict before I reveal the real one.
My (unscientific) finding matches what the English show found. Juries don’t consistently reach the same verdicts from the same evidence. For the case we watch, the year we watch seems to play a key role.
In 2005, the majority of my students voted to acquit the accused staircase killer. Over the next decade, they mostly shifted to a (soon-to-be-ditched) option for Scottish juries: not proven. And in recent years, the overwhelming majority would convict him.
What’s changed? My teaching? My students? Society? My guess is that a case that two decades ago would be seen as off-beat murder mystery and a decade back as about an egotistical liar is now seen as a familiar instance of domestic violence.
In my earlier review of jury studies, I noted an upside of mock juries: that “fake trials can be used to conduct interesting experiments,” by varying some of the details to see whether the verdict changed. If money were no object, the producers of The Jury: Death on the Staircase could rerun the trial with different details. I’d be interested to know whether the yet-to-be-disclosed fake jury verdict changes if the couple is opposite-sex (as in the English show and my course) rather than same-sex (as in SBS’s show.)
Here’s what SBS reports is the accused’s verdict on its staircase case:
They were using me like a guinea pig… or a scapegoat. It is just an abuse of human rights. It was like a game, some wealthy people try to have a bet. You know that sort of game, to see who is cleverer than the other. They don’t care who the person is who suffers for their political games. I was a puppet.
No, this isn’t actor Sky Dominic speaking. It’s the actual accused from the real case.
Don’t google it! That’s what SBS’s producers would tell their viewers, to avoid spoilers. That’s what I tell my law students throughout my course, for the same reason. And that’s what jurors are told every day in trials throughout Australia, for a different reason.
But I did. I wanted to see how easy it would be for the fake jurors to find the real case. Suffice to say, it was very easy. I used the obvious two-word search — the charged crime and the alleged murder weapon — and the real case was the top result.
Did the producers tell the fake jurors not to google? And did they obey? It’s not as if they’d face real consequences (these days, a potential prison sentence) if they did. But if they did google then SBS’s experiment will be ruined.
I won’t spoil the verdicts for you. Not in my class’s staircase case. And not in the Australian one. And, as I write, I don’t know the fake jurors’ verdict, which is two episodes away. But I am going to reveal a few things that jurors, and viewers, aren’t supposed to know.
When the real accused complained to SBS about being used as a “guinea pig,” he wasn’t talking about SBS’s jury experiment, which was years in the future. We don’t know what he thinks of the TV show, at least not yet.
Rather, the “game” he was talking about was his own trial. Actually, trials. His case made legal history, and not in a good way. Not only did several juries hear his case, but nearly twelve Supreme Court judges weighed in. And they split 7–4 on their own verdict.
How’s that for a test of the justice system? Presumably that’s one reason why the SBS crew chose this case for their show. If New South Wales’s judges couldn’t agree on the accused’s guilt, then surely the case would make for good television.
But reality is always more interesting. Whether you google, or choose to wait until episode five, you’ll definitely be (as they say on TV) shocked by all the twists. And saddened too.
Those watching the show so far have been left with a cliffhanger. In a twist, the jury were sent out to deliberate mid-trial, immediately after the prosecution rested its case.
This is a real Australian procedure, known as a “Prasad” direction, after a South Australian case. It allows a judge to invite a jury to end a trial right away if the prosecution has failed to prove the accused’s guilt.
But all lawyers (and surely the show’s producers) know that Prasad directions are no more. The High Court abolished them in 2019. Maybe the producers wanted to stay true to their chosen case, which was heard years earlier. Or perhaps they just couldn’t pass up the chance for some mid-season drama.
When the High Court’s ruling came out, I gave it a negative review at the time, arguing that the procedure could bring flawed prosecutions, especially in domestic homicides, to a merciful end. I was unconvinced by the court’s list of downsides to that process:
In summary, the jury are deprived of the benefit of addresses by counsel and the judge’s summing-up; provisional views about the acceptance of a witness’s evidence may be hard to displace; juries are often keen to register their independence and may react against perceived pressure to acquit; the practice is inherently more dangerous in a complex case or one with multiple accused; the prosecution or defence may not have the opportunity to correct a mistaken understanding of their case; and there is a danger, in a case in which the defence is contemplating not calling evidence, of asking the jury if they want to hear more.
So, I was interested to see how the fake jurors approached their mid-trial task. And was somewhat chastened to see that they were clearly confused by it, much as the High Court feared. While many were indeed uncertain about the accused’s guilt, they still wanted to hear more. Like them, I was left unsure what jurors in that position are meant to do.
I am sure, though, what will happen at the start of episode four. The show will go on, and so must the trial. I’ll be watching to the end. •
