The provenance of what is proven: exploring (mock) jury deliberation in Scottish rape trials
| Published date | 01 June 2021 |
| Author | JAMES CHALMERS,FIONA LEVERICK,VANESSA E. MUNRO |
| Date | 01 June 2021 |
| DOI | http://doi.org/10.1111/jols.12287 |
DOI: ./jo ls.
ARTICLE
The provenance of what is proven: exploring
(mock) jury deliberation in Scottish rape trials
JAMES CHALMERS1FIONA LEVERICK1VANESSA E. MUNRO2
School of Law, University of Glasgow,
Stair Building, – The Square, Glasgow,
G QQ, Scotland
School of Law, University of Warwick,
Coventry, CV AL, England
Correspondingauthor
VanessaE. Munro, School of Law,Uni-
versityof Warwick, Coventry, CV AL,
England
Email:V.Munro@warwick.ac.uk
Abstract
This article presents findings from the largest research
study of the nature of mock jury deliberations in rape
cases undertaken in the UK to date – and the first such
study to be undertaken in the Scottish context. The
study found considerable evidence of the expression of
problematic attitudes towards rape complainers. These
included the belief that a ‘real’ rape victim would have
extensive external and internal injuries and would resist
attack by inflicting injuries on her attacker and shouting
for help, that even a short delay in reportinga rape is sus-
picious, and that false allegations of rape are commonly
made by women and difficult to refute. There was, how-
ever,also evidence that some jurors were willing to chal-
lenge these attitudes and that they often relied – explic-
itly or implicitly – on third-sector campaigns to do so.
The article concludes by drawing out the implications of
this research for policy and practice.
INTRODUCTION
In this article, we present findings from a major research study, which involved mock juries,
comprising individual participants, viewing a film of a simulated trial (for either rape or
assault) and then deliberating. The study,which wasconducted by the authors and Ipsos MORI
Scotland, independent of but funded by the Scottish Government, was the largest of its kind in
The main study is reported in R. Ormston et al., Scottish Jury Research: Findings from a Large Scale Mock Jury Study
() at <https://www.gov.scot/publications/scottish-jury-research-fingings-large-mock-jury-study-/>.
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution and reproduc-
tion in any medium, provided the original work is properly cited.
© The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of CardiffUniversity (CU)
wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
the UK to date.It was also the first to explore in a systematic way the approach taken by Scot-
tish (mock) jurors to key aspects of Scottish law and procedure, including decisions reached by
juries of people via simple majority,a second acquittal verdict (not proven), and a corroboration
requirement.
In previous work, we have reported on the impact of jury size, majority rules, and number of
verdicts, across both rape and assault trial juries.In this article, we examine the tone, content,
and outcome of discussions specifically within the juries that observed the rape trial. Aside
from the fact that juries without the not proven option at their disposal were more likely than
others to discuss the meaning of ‘reasonable doubt’, we found no significant differences across
rape deliberations as a result of variables relatingto jury size, majority rules, or number of verdicts
in terms of the amount or types of evidential issues discussed. However, we did find considerable
evidence of jurors expressing unfounded assumptions regarding how ‘real’ victims typically react
during and after a sexual assault. In what follows, we highlight the persistence of the view across
the rape juries that a lack of physical resistance is indicative of consent, and the extent to which
jurors asserted that rape allegations are ‘easy’ to make and frequently unfounded. Furthermore,
we explore – in the context of a corroboration requirement – the lack of clarity among jurors
as to whether evidence provided by a medical expert (which confirmed that the complainer’s
injuries were consistent with her account, but could also havebeen inflicted through other means,
including consensual sex) could adequately support the complainer’s testimony.
This discussion provides a substantial evidence base that builds on and affirms findings of pre-
vious studies that have used mock juries to evaluate the content of deliberations in rape cases.
It also goes beyond those findings by enabling reflection for the first time on distinctively Scot-
tish aspects, including the corroboration requirement and the not proven verdict, against a back-
ground of a number of high-profile public campaigns spearheaded by Rape Crisis Scotland and
designed to challenge misconceptions around sexual assault.
The article has four substantive parts. First, we situate our current focus on rape trial delibera-
tions within the broader frame of the overarchingproject on jury decision making. We also outline
briefly the distinctive dimensions of the Scottish legal and social context. Second, we set out our
Other large-scale simulation studies that have included deliberation as part of the research design have previouslybeen
carried out in the UK: see C. Thomas, Are Juries Fair?() i ( juries with participants, replicating an earlier study of
juries with participants); D. Willmott, ‘AnExamination of the Relationship between Juror Attitudes, Psychological
Constructs, and Verdict Decisions within Rape Trials’() PhD thesis, University of Huddersfield, (a student sample
of juries with participants and a community sample of nine juries with participants). See also C. Thomas, ‘The
st Century Jury: Contempt, Bias and the Impact of Jury Service’ [] Criminal Law Rev. , at (survey research
with jurors from discharged juries).
The corroboration requirement and the not proven verdict are explainedin more detail below.
Aside from the main project report (Ormston et al., op. cit., n. ), see J. Chalmers et al., ‘Three Distinctive Features,but
What Is the Difference? Key Findings from the Scottish Jury Project’ [] Criminal Law Rev..
Most notable are the three studies undertakenby Munro and co-authors. The first was reported in E. Finch and V. Munro,
‘Breaking Boundaries? Sexual Consent in the Jury Room’ () Legal Studies . For the second, see L. Ellison and
V.Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ () Brit. J. of Crim-
inology ; L. Ellison and V. Munro,‘ TurningMirrors into Windows: Assessing the Impact of (Mock) Juror Education
in Rape Trials’ () Brit. J. of Criminology ; L. Ellison and V. Munro, ‘A Strangerin the Bushes or an Elephant in
the Room? Critical Reflections upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ () New
Criminal Law Rev. . For the third, see L. Ellison and V. Munro, ‘Telling Tales: Exploring Narratives of Life and Law
within the (Mock) Jury Room’ () Legal Studies .
This is discussed in more detail below.
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