This post showcases a poster presentation by PhD candidate David Lorimer
The poster follows at the end of the post. An abstract sets the scene and a note on methodology explains the basis of the work.
The 15 juror courtroom may be viewed as a self-compensating system with in-built safety mechanisms to accommodate attrition, diversity and even jury nobbling. The hung jury can be viewed as a de facto third verdict and Scotland’s not proven verdict is arguably a more sophisticated and empowering version of the ‘too close to call’ option in modern comparative jurisprudence – regardless of its historic evolution. In reality every coin has three surfaces.
The Scottish criminal jury is composed of 15 members compared to the 12 found in other common law jurisdictions. It requires a simple majority verdict which means conviction or acquittal by 8 or more as opposed to a unanimous verdict or qualified majority (usually 10 or more in other jurisdictions). This means that there are no ‘hung juries’ in Scotland. The Scottish system is therefore arguably more efficient but is it less fair? Does it ‘fly in the face of conviction beyond reasonable doubt’ as some commentators have suggested? Quantitative analysis carried out recently at Aberdeen University uses decision tree logic as a basis on which to develop and evaluate probabilities of conviction in both types of jury system. The results are presented graphically and provide a unique perspective on jury analysis, including the observation that the ‘rogue juror’ may be as much a numerical phenomenon as anything else. Consideration of the analysis raises a number of propositions:
The drivers for a ‘Not Proven’ vote or verdict may be closely related to those which lead to a hung jury, leading to the concept of the ‘Hung Juror’ (see below).
The simple majority may be a timely indication of how a Scots jury would ultimately vote if given a mandate to reach a unanimous or qualified majority verdict.
The option to vote ‘Not Proven’ in Scotland vents the pressure on the ‘Hung Juror’ to make a peer driven, biased or otherwise uneasy decision without compunction.
This blog post has been written by Diane Hoffmann, University of Maryland Carey School of Law.
I had the good fortune to spend most of the month of July and the first week in August teaching at the summer program in comparative law at the University of Aberdeen – a collaboration between the University of Baltimore and University of Maryland Schools of Law, in Baltimore, MD and the University of Aberdeen School of Law in Aberdeen, Scotland.
This trip was the realization of a long held aspiration for me. During my dozen years as Associate Dean at Maryland, it was my job to select the faculty member who would have the opportunity to teach and live in Aberdeen for the summer program. Sadly, I was unable to choose myself so had to wait until I stepped out of the Dean’s office and back to the faculty before I was able to put my hat into the ring of potential faculty members who might be selected for this unique opportunity. I was especially excited to be chosen this past year as Maryland faculty who have been to Aberdeen and taught in the program have had absolutely wonderful things to say about it. I was able to confirm these glowing assessments in 2009 when I had the opportunity, while in Europe for another reason, to visit my colleague from Maryland, Jana Singer, who was teaching at Aberdeen that summer. While there, I sat in on some of her classes, went to Edinburgh with the class, got a tour of Aberdeen, and had the pleasure of meeting Professor David Carey Miller, the “champion” and Director of the program in Aberdeen. It all looked like a fantastic experience for the students and faculty.
I was also excited by the prospect of teaching a Comparative Health Law course. At Maryland, I direct the Law & Health Care Program and have taught numerous health law courses ranging from our survey course on Health Care Law & Policy to specialized courses on End of Life Care and Health Care for the Poor. Although I have taught Comparative Health Law courses in recent years, I had not had the opportunity to focus on one other country and to have experts from that country come and lecture in the course. That was a big attraction of the Aberdeen course for me. Prior to the summer, I worked with then head of school, Anne-Michelle Slater and Dr Greg Gordon (the current head of school) to prepare for the course. I shared my vision of the course with them and Anne-Michelle and Greg identified a stellar group of guest speakers who could address health care law and policy in the U.K. and Scotland, more specifically.
The course focused on a comparison of four areas of health law and policy between the U.S. and the U.K./Scotland: health care systems, medical malpractice systems, allocation of scarce health care resources, and regulation of the beginning and end of life. Our guest speakers were able to speak to each of these areas of law. They included Peter Feldschreiber, a dually qualified physician and barrister from London who specializes in the regulation of pharmaceuticals and medical devices and who advises both EU and US health product companies on all aspects of European regulatory law; Neil MacLeod, a solicitor with the NHS litigation department in Scotland; Annie Sorbie and Edward Dove, both of whom specialize in health and medical law and have recently received faculty appointments at the University of Edinburgh; and Mr Scott Styles, a member of the faculty at University of Aberdeen, who, among other things, is an expert in medical ethics.
Each of these guest speakers added a great deal of excitement to our class discussions as they helped us to compare the “systems” in our home jurisdiction with that of the U.K./Scotland. Several current events also made the course come alive for the students and me. First, perhaps, is the advent of Brexit, which is provoking much uncertainty in the medical profession, regarding movement among the EU countries. One article in the news indicated that 84% of EU health professional workers in the U.K. would leave. Brexit has also raised anxiety in the pharmaceutical and medical device industries about what will be required in the UK in terms of new product approval and marketing authorizations and whether the UK will remain a part of the European Medicines Agency (EMA).
A second relevant event for the course was the case of Charlie Gard, the infant in the U.K. who had a rare terminal genetic disorder that left him blind, deaf and unable to breathe on his own. His doctors and the hospital where he was receiving care felt that his case was hopeless and they should not be required to continue to treat him. His parents, however, took the case to court fighting for the legal authority to place him on an experimental treatment plan. Each day there were new developments in the case including the Pope and President Trump offering to do whatever they could to help the parents in their quest to keep the child alive. The case offered the class a chance to consider both issues surrounding allocation of scarce medical resources and the law regarding end of life treatments.
The students enthusiastically met the challenge of debating the different aspects of health law and how they played out in the two different jurisdictions. Their keen interest in the issues under discussion made the class sessions lively and fun for me.
In addition to the class being a joy for me to teach, I enjoyed getting to know and working with some of the faculty and staff at Aberdeen, including Anne-Michelle Slater, Susan Stokeld, Greg Gordon and Carol Lawie (who kept everything going). They did a wonderful job organizing our trips to Fyvie Castle, the Town Hall in Aberdeen, as well as the High Court and Parliament in Edinburgh. The trip to Peterhead Prison and Museum was particularly impressive and informative, as we were able to compare side by side the old prison and the very new prison – a model for others in the country.
In addition to the academic side of my time in Aberdeen, I was also able to travel and see some of the sights in Scotland including the beautiful Cuillin Mountains on the Isle of Skye, the Dunnottar Castle in Stonehaven, Loch Ness outside of Inverness, and Balmoral Castle and the surrounding Cairngorms. I also was able to ride the train (via ScotRail) from Mallaig to Glasgow, touted in the tourist books as one of the most scenic train rides in Europe and a “must” experience for Harry Potter fans as it goes over the viaduct featured in the Harry Potter films. The scenery was spectacular and lived up to the hype. Another special experience was meeting a retired University of Aberdeen professor and his wife and going out to the lighthouse they own at Todhead. The views were absolutely “priceless.”
My time in Aberdeen was wonderful. At the farewell luncheon on the last day of the program, I said to the faculty and students that while Aberdeen is called the “Granite City” – a moniker that evokes a cold, hard place – I experienced the City as a very warm and welcoming place, one to which I hope to return in the not too distant future.
For the past four weeks, I taught a Comparative Crime and Punishment course at the University of Aberdeen. Teaching in the summer school was a very enjoyable and enriching experience for me and all of the students in the program. I know a lot of planning by University of Aberdeen staff and faculty, including Carol Lawie, Anne-Michelle Slater, Susan Stokeld, and many others, went into putting the summer session together, and it really showed. The sessions on law in the United Kingdom were very informative, whether the topics were violence reduction (in a talk by guest speaker Karyn McCluskey, the head of Scotland’s Violence Reduction Unit), the history of surveillance (in a lecture delivered by Dr. Philip Glover), or medical malpractice or the National Health Service (in discussions I sat in on as part of Prof. Diane Hoffmann’s Comparative Health Law class).
In the United States, I teach courses on civil procedure, contracts, capital punishment and international human rights law at the University of Baltimore School of Law. Over the course of the summer session in Aberdeen, everyone in the program got an introduction to Scots law, U.K. penal practices, and the City of Aberdeen courtesy of the Lord Provost and local residents. We got to do everything from visit the Scottish Parliament and the Faculty of Advocates in Edinburgh to tour the new prison and prison museum in Peterhead. Seeing the new prison and the old prison facility side-by-side was a particularly eye-opening experience for the American law students in the program. And the trip to the new prison and the Peterhead Prison Museum sparked lots of conversations and debate about America’s correctional system.
The students in the Comparative Crime and Punishment course had the chance to research and write papers on topics of their choice. After learning about the Scottish legal system and the difference between American and Scottish sheriffs, a number of the students chose to explore and write about the differences between American law and Scots law. One student chose to write about Scotland’s unique “not proven” verdict (especially after hearing a poster presentation by a Ph.D. student at the University of Aberdeen who highlighted the contrast between 15-person juries in Scotland and 12-person juries in the U.S.). Another student chose to write about the differences between policing in Scottish cities and in Baltimore, while another decided to explore Scotland’s corroboration rule compared to American rules of evidence.
Scotland is a beautiful place, and like many of my students, I got a chance to see lots of historic sites during my stay. A visit to Stonehaven and Dunnottar Castle was a particular highlight, and train, ferry, bus and taxi rides allowed me to experience the sights of Inverness and Urquhart Castle, the Isle of Skye and the Fairy Pools, and Glasgow’s impressive cathedral and city hall as well as its streetscapes. In Aberdeen itself, I really enjoyed spending time at the university’s impressive library and strolling through Stewart Park and St. Machar’s Cathedral. As part of the Aberdeen International Youth Festival, which coincided with the summer course, I also got to see a wonder concert involving a joint performance by an Icelandic choir and a choral group from Glasgow.
My time in Aberdeen could not have been more fulfilling or rewarding. The study of comparative law allows students and faculty members alike to gain new perspectives, and by meeting and hearing from new people who are experts on another country’s laws and practices, the opportunity for learning is amplified and increased exponentially. A visit to the Tolbooth Museum in Aberdeen–formerly a seventh-century jail–reminded me and other students who paid a visit of just how far we’ve come since the Scottish Enlightenment, which we also discussed at length as part of my course. In-class student participation was tremendous, and a lot of that is attributable to the intellectual atmosphere created by the chance to study abroad.
The Scottish tradition of coffee, tea and snacks between classes made time for additional conversation, and it also made the exchange of ideas particularly sociable and fun. And the closing lunch, with a bagpipe performance by a member of the law faculty, turned out to be a perfect way to end the course of study. The food, drink and celebratory remarks capped off a near perfect summer, with the only glitch I experienced during my whole time in Aberdeen being a seagull swooping down and snatching a big bite of a ham-and-cheese sandwich I’d been nonchalantly eating as I walked along King Street after class one day. Now I know why a sign on a little eatery near Aberdeen’s Union Street reads “Beware the Seagulls”!
One of the many things we learned outside of the classroom is that Aberdeen’s ancient motto is “Bon Accord” (French for “Good Agreement”). The city’s official toast, in fact, is “Happy to meet, sorry to part, happy to meet again – Bon Accord!” I was extremely pleased to meet everyone in Aberdeen and it was hard to say goodbye, but I know that I’ll see everyone again soon. There is already talk of a reunion of summer school alums in the works. In the meantime, I’ll carry my fond memories of Aberdeen with me as I head into a new semester of teaching at the University of Baltimore and the Georgetown University Law Center.
John Bessler is an Associate Professor at the University of Baltimore School of Law and an Adjunct Professor at the Georgetown University Law Center. He is the author or editor of multiple books on capital punishment, including most recently The Death Penalty as Torture: From the Dark Ages to Abolition (Durham, N.C.: Carolina Academic Press, 2017) and Justice Stephen Breyer’s Against the Death Penalty (Washington, D.C.: Brookings Institution Press, 2016).