Juror No. 10: Well, do you believe his story?
No. 8: I don’t know whether I believe it or not. Maybe I don’t.
No. 7: So what’d you vote not guilty for?
No. 8: There were eleven votes for guilty. It’s not so easy for me to raise my hand and send a boy off to die without talking about it first.
So begins the dramatic core of Twelve Angry Men, a 1950s teledrama, and later a movie and a play, that tracks a New York jury debating a murder charge. Writer Reginald Rose specified a jury of twelve men — even though women were seated on New York juries by then — perhaps to ensure that the twelve-handed discussion remained believably angry. But not too angry, which is why he specified an all-white cast to debate the fate of the “boy” he coded as an unspecified minority.
When many of us recently watched the real deliberations of eight women and four men about an alleged rape in the national parliament building, we did it in the usual way: from outside a locked door. Only twelve people were allowed to know what was said or done in that Canberra jury room, and it remains a crime for any of them to reveal anything to anyone who is likely to tell the public.
Highly trusted confidants aside, the rest of us have very little to go on. Attendees at Rose’s fictitious courtroom in New York City heard the jurors ask to inspect two exhibits — the knife used in the killing and a floorplan of the apartment where it occurred — before the jury announced its verdict. But the real jury in Canberra neither asked about evidence nor delivered a verdict.
They said just two things in public. The first was on the morning of their third full day of deliberations, a Monday, when they asked their trial judge, ACT chief justice Lucy McCallum, about “time expectations.” Gone are the days when jurors were detained in the jury room and put up at city hotels until they reached agreement. Modern jurors simply commute to and from their homes like other court officers. That’s why McCallum answered, “There is no rush, no time limit. The only expectation is you remain true to your oath.”
Their second communication came the following afternoon. According to the chief justice’s summary, their note said that they were “unable to reach a unanimous verdict.” Like juries in New York but unlike most other Australian ones, Canberra juries don’t have the option of a majority vote. So McCallum, following a practice laid down by the High Court in 1993, told the jurors to persist a while longer but scrupulously avoided suggesting a consensus would be the best outcome.
She also embellished the national court’s script by sending them home to visit a gym or walk a dog. The jury dutifully spent the entire next day talking, before opting — fatefully — to sleep on things for at least one more night. “No one could suggest you’re not working extremely hard,” soothed their judge.
And that’s all we know. Nevertheless, I’ll venture a few educated guesses about what went on behind closed doors.
My first guess is that the Canberra jurors probably weren’t angry during those five or so days of deliberation. I say that because angry jurors often use communications with the judge to vent or try to resolve their differences. My optimistic reading of the Canberra jury’s relative silence is that their disagreement about the verdict was reasonably friendly.
My second guess is that emotions within the jury room would still have been very high. Except in the dullest or easiest of cases, jurors almost always describe their deliberations as intense experiences, sometimes shattering or even life-changing. There’s every reason to think that’s true of this particular case, which has prompted hard discussions everywhere. There’s no reason to think that #MeToo stops at the jury room door.
My final speculation is that all twelve jurors were probably gobsmacked when their deliberations were abruptly ended.
•••
Guard: Is there anything wrong, gentlemen? I heard some noise.
Foreman: No. There’s nothing wrong. [He points to the large diagram of the apartment.] You can take that back. We’re finished with it.
[The guard nods and takes the diagram. He looks curiously at some of the jurors and exits. The jurors still are silent. Some of them slowly begin to sit down. No. 3 still stands at the window. He turns around now. The jurors look at him.]
Three jurors switch their votes during Twelve Angry Men’s second act, which ends with No. 8 goading his main antagonist into attacking him. No. 3’s cry of “I’ll kill him!” — the very words the prosecution says prove the accused’s wish to murder his father — prompts two more jurors to switch sides, evening the vote. It also prompts the (imaginary) outside world’s only intrusion into the jury’s deliberations.
The sanctity of the jury room is no empty principle. It is enforced not just by physical restrictions on who can enter the room but also, for centuries, by rigid legal limits on what information can leave it. In 1785, England’s most celebrated chief judge, Lord Mansfield, famously refused to act on evidence that an evenly divided jury had reached its verdict by tossing a coin, declaring that doing so “would endanger every verdict.”
Two hundred and thirty years later, Australia’s High Court ordered a partial end to trial judges showing the prosecutor and defendant the complete text of notes sent from the jury room, ruling that they should omit any information about what votes had been cast. The nation’s top court ruled that keeping such details secret “enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room.”
The Canberra case illustrates the high stakes. Imagine if, after their fifth day of deliberations, word got out of how the numbers were falling. Such news would have instantly poisoned the ongoing trial — casting a shadow over every subsequent decision by the lawyers or judge — and could have derailed any future one. Likewise, if the content of the jury’s conversations had leaked, both current and future deliberations would be tainted.
Unsurprisingly, the ACT Supreme Court is scrupulous about jurors’ privacy. The chief justice opted to paraphrase the jury’s second note rather than read it out. Court officers responsible for jurors swear an oath that they will “not speak to any juror… concerning the issues before the court.” They also give jurors boxes for storing their documents. And, as McCallum revealed on what should have been the jury’s sixth day of deliberations, “routine tidying” is carried out by “three sheriff’s officers,” a number surely chosen to reduce individual officers’ temptation to snoop.
And yet, in perhaps the most closely watched trial in Canberra’s history, and at perhaps the most closely watched moment of the proceedings, all of these protections failed. At least three things went wrong on the Wednesday evening. First, an officer “accidentally bumped one juror’s document folder onto the floor.” Second, that same officer, while putting the box back on the chair it came from, looked, again seemingly accidentally, through the folder’s “clear front.” And third, presumably instinctively, the officer read some words visible inside.
Had any of these things been done deliberately, the officer would surely have lost their job and potentially their liberty. But McCallum assured the public that the officer acted “inadvertently.” She went further: “The conduct of the sheriff’s officers involved in this trial has been exemplary. They have worked in difficult circumstances. The court is fortunate indeed to be so well served.”
But the officer’s personal blamelessness does not absolve McCallum’s court. Why did any of the jurors’ folders have a “clear front”? How did “tidying” involve any contact with a juror’s folder, much less risk bumping it to the floor? Why weren’t officers instructed to leave fallen items where they lay? Indeed, why were any non-jurors “routinely” entering the jury room at all, rather than (say) leaving whatever tidying was needed to the twelve adults within?
Such questions could scarcely have escaped the jury’s attention on the final day of the trial, and will surely occur to future Canberra jurors too. My guess is that all of these questions are now being given urgent attention by McCallum, who only became the head of the ACT judiciary at the start of this year.
But her court was “fortunate” this time. The officer who read the words visible in the juror’s folder saw no tallies, no intimate reveals, no checklists, indeed nothing written by any of the jurors. And the officer not only resisted the temptation to read further or open the box, but instead quickly fessed up to what happened. (McCallum recorded her “gratitude for the courage, integrity and good sense displayed” not only by the officer but also by their two colleagues.)
Best of all, the series of accidents proved serendipitous. The officer happened to uncover the only category of jury room leak that modern courts are allowed to act on.
•••
[Juror no. 8 swiftly flicks open the blade of a switch knife and jams it into the table next to the first one. They are exactly alike. There are several gasps and everyone stares at the knife. There is a long silence.]
No. 3: (slowly amazed) What are you trying to do?
No. 10: (loudly) Yeah, what is this? Who do you think you are?
No. 5: Look at it! It’s the same knife!
Foreman: Quiet! Let’s be quiet.
[They quiet down.]
No. 4: Where did you get it?
No. 8: I got it last night in a little junk shop around the corner from the boy’s house. It cost two dollars.
Twelve Angry Men’s most memorable scene features two out of five instances of juror misconduct identified by Berkeley law professor Charles Weisselberg in an article he published on the movie’s fiftieth anniversary, titled “Good Film, Bad Jury.”
The fictitious jury’s first bad step is when No. 8 brings something into the jury room that isn’t part of the trial evidence. The Canberra sheriff’s officer’s glimpse revealed that a juror seemingly did the same, bringing “an academic paper” into a trial that otherwise consisted only of testimony, CCTV footage and clothing.
Safety concerns about knives aside, I’m not convinced these are bad acts on their own. Jurors are no longer excluded from their own homes while deliberating and are not required to enter the jury room naked. There’s no reason why they can’t inspect their own belongings at night and bring relevant items in to show to others. Given that Rose’s fictitious prosecutor claims that the murder weapon — identical to one the accused was seen purchasing that day — is unique, why couldn’t a juror check that claim against a knife he owns, and show the jurors if the comparison is revealing?
Rather, the problem is that the knife No. 8 jams into the table isn’t his own, or at least wasn’t until he sought it out and bought it the previous night. That was the second instance of misconduct on Weisselberg’s list. The ACT’s Jury Handbook tells jurors: “Do not make searches on line or visit any place relevant to the case.” No. 8 does the latter. And everyone assumes that a Canberra juror obtained that academic paper by doing the former, perhaps when they were meant to be walking a dog or lifting weights.
And that made Chief Justice McCallum angry. She pointed out that she gave “at least seventeen, and possibly more” warnings to jurors against conducting their own investigations. Most of those were end-of-day reminders in these terms: “Please don’t go googling Brittany Higgins or Bruce Lehrmann or any of the other people you have heard mentioned. Please don’t seek out publicity in relation to this case. For the reasons I explained before, it would be very unfair to the accused if you sought information outside what you are going to hear in evidence in these proceedings.”
But, as far as anyone knows, no juror did anything in this list. The academic paper in the juror’s folder would surely have been written years before the events that were the subject of the trial. It did not mention anyone in the trial, or any place in it, or anything written about it, and contained nothing that the jurors heard in evidence.
Rather, the juror was suspected of conducting some general research about the outside world, akin to a New York juror scanning the shelves of his neighbourhood “junk shop” for switchblade knives. In her opening remarks, the chief justice explained that that wasn’t allowed either.
“You should only be learning about this trial in this room in my presence,” she said. “So, if you find yourself getting curious and undertaking internet research or talking to people about their areas of expertise, think to yourself, ‘Well, Chief Justice McCallum isn’t here so I probably shouldn’t be doing this.’ That is not a bad way of testing what you should hear in this trial. You should only hear the evidence in this trial in my presence when it comes before you in this courtroom.”
McCallum concluded this explanation by saying, “I hope that makes sense.” But Twelve Angry Men demonstrates why it doesn’t.
•••
No. 8: Look at this. [No. 8 closes the knife, flicks it open, and changes the position of the knife so that he can stab over-handed.] Doesn’t it seem like an awkward way to handle a knife?
No. 3: What are you asking me for?
[No. 8 closes the blade and flicks it open, holds it ready to slash underhanded.]
No. 5: Wait a minute! What’s the matter with me? Give me that.
[He reaches out for the knife.]
No. 8: Have you ever seen a knife fight?
No. 5: Yes, I have.
No. 8: In the movies?
No. 5: In my backyard, on my stoop, in the vacant lot across the street, too many of them. Switch knives came with the neighbourhood where I lived. Funny I didn’t think of it before. I guess you try to forget those things. [Flicking the knife open.] Anyone who’s ever used a switch knife would never have stabbed downward. You don’t handle a switch knife that way. You use it underhanded.
Rose’s angry men never solve the murder mystery at the heart of the case, or even come close to doing so. No alternative suspect or motive or means or opportunity ever emerges. Rather, the teleplay charts how each of the twelve learns a little more about the courtroom trial they just watched by talking it over with others.
No. 5 teaches his fellow jurors how to fight with a switch knife (and also about assuming who grew up in a slum). No. 8 schools them about the US constitution’s fifth amendment. No. 3 monologues an unwitting lesson in being a terrible father, No. 7 in being a terrible fact-finder, No. 10, a terrible racist. Several speak of life next to a noisy train line.
After No. 8 uses some back-of-the-envelope maths and the apartment map to demonstrate that a witness downstairs couldn’t have heard or saw what he testified he did, No. 9 speculates that the lonely, elderly witness might have lied to make himself feel important. Asked where he got “that fantastic story,” he explains, “I speak from experience,” prompting a “long pause.” The script’s many silences are central to the drama.
Rose’s point isn’t subtle. Each of these lessons causes at least one juror to switch his vote. But McCallum wasn’t subtle either. None of this learning was to happen in her jury room: “You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.”
Professor Weisselberg would side with her. He rounded out the twelve angry men’s “buffet of misconduct” with No. 5’s “expert testimony about the use of switchblade knives” and No. 8’s calculations about trains and apartments.
But are the chief justice and the professor right? If the juror’s folder had simply contained the juror’s own notes about another juror’s reflections on the “consumption of alcohol,” or detailed a re-enactment of walking through a ministerial suite, would that also have required the trial’s premature end? What if the notes revealed that — as is surely possible — one or more of the Canberra jurors had described their own experiences of rape?
The sanctity of the jury room mostly stops us from considering these questions, but sometimes courts must confront them. In 1999, an English court was asked to judge a movie-like scenario in a mundane case about whether some tyres were stolen or legitimately purchased. The jury wrote the judge a note revealing that one of their number happened to be a “tyre specialist” who knew how to read a tyre’s serial code to determine when it was made. “May we take this into consideration?” they asked.
The question flummoxed their trial judge, who failed to get back to them before they found the accused guilty. But the Court of Appeal overturned that verdict, ruling that the jury should have been told to ignore their fellow juror’s insights. Here’s the judges’ valiant attempt to explain why:
It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background of a particular case to draw upon that specialised knowledge in interpreting the evidence. However that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.
Surely they were tempted to add, “I hope that makes sense.”
•••
No. 4: She did wear glasses. Funny. I never thought of it.
No. 8: Listen, she wasn’t wearing them in bed. That’s for sure. She testified that in the midst of her tossing and turning she rolled over and looked casually out the window. The murder was taking place as she looked out, and the lights went out a split second later. She couldn’t have had time to put on her glasses. Now maybe she honestly thought she saw the boy kill his father. I say that she saw only a blur.
No. 3: How do you know what she saw? Maybe she’s far-sighted.
[He looks around. No one answers.]
No. 3: (loudly) How does he know all these things?
[There is silence.]
No. 8: Does anyone think there still is not a reasonable doubt?
[He looks around the room, then squarely at No. 10. No. 10 looks down and shakes his head no.]
This exchange leaves Rose’s fictitious jury again split 11–1, this time in favour of “not guilty.” But Professor Weisselberg baulked at adding this discussion to the jury’s “buffet of misconduct,” explaining that “the jurors confront a lack of evidence on a key point, but they appropriately treat it as relevant to the existence of reasonable doubt.” Four professors at the same symposium condemned that discussion for a different reason: that the jury’s speculation about the witness’s eyesight was tendentious and didn’t account for her crystal-clear testimony.
When I first learned the topic of the academic article in the Canberra jury room — the prevalence of false allegations of rape — I felt the same way. Absolutely no one knows, or can know, how many or how few rape allegations are false. All we can ever know is that some allegations proceed to investigation, prosecution and, for a few, conviction, and most don’t. But there is no way to know whether most of those allegations are true or not. The rest is just guesswork, and such guesses mean little or nothing during a particular rape trial.
But then I read Chief Justice McCallum’s summary of the juror’s article: “It is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”
In short, the unidentified article teaches everyone, including jurors, why the issue of prevalence goes nowhere.
After questioning the juror in private, McCallum revealed that they gave “an explanation that the document was not used or relied upon by any juror.” Given the incentives to dissemble and the difficulty of checking, the chief justice responded to such claims about goings-on in the jury room with appropriate scepticism. It sufficed that the academic paper was present in the jury room and “could be deployed to support either side of the central issue in this case.”
Is it true, though, as she declared, that it is “neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any”? I’m sceptical. Here are my guesses about what may have happened behind closed doors.
My first guess is that the prevalence of false rape allegations was indeed discussed in the jury room, probably quite often. I say that because the same issue was raised by almost every person I spoke with about the Canberra case, and most other rape trials as well. Indeed, on the middle weekend of the jury’s deliberations, journalist Louise Milligan complained to the capital’s lawyers that “there are still a significant minority of people who continue to, automatically, assume (against all evidence in international research and tendered to royal commissions) that there are multitudes of false accusers.”
My second guess is that one or more jurors would have nominated a particular fraction of rape allegations as false, according to academic studies. I say this because googling “number of false rape allegations” immediately yields a claim that “a range of studies show approximately 5 per cent of rape allegations are proven false.” This claim is sourced to a “fact sheet” from Victoria Police and the Australian government’s Institute of Family Studies, created as a resource for police and legal practitioners about fifteen “rape myths.” The 5 per cent figure is cited to dispel the “myth” that “the rate of false allegations is high.”
My final speculation: that the juror who brought in the academic article may have done so to help teach their fellow jurors why such figures aren’t reliable enough to be used in a jury room.
•••
[No. 3 looks around at all of them for a long time. They sit silently, waiting for him to speak, and all of them despise him for his stubbornness. Then, suddenly, his face contorts as if he is about to cry, and he slams his fist down on the table.]
No. 3: (thundering) All right!
[No. 3 turns his back on them. There is silence for a moment and then the foreman goes to the door and knocks on it. It opens. The guard looks in and sees them all standing. The guard holds the door for them as they begin slowly to file out. No. 8 waits at the door as the others file past him. Finally he and No. 3 are the only ones left. No. 3 turns around and sees that they are alone. Slowly he moves toward the door. Then he stops at the table. He pulls the switch knife out of the table and walks over with it. He holds it in the approved knife fighter fashion and looks long and hard at No. 8, pointing the knife at his belly. No. 8 stares back. Then No. 3 turns the knife around. No. 8 takes it by the handle. No. 3 exits. No. 8 closes the knife, puts it away and taking a last look around the room, exits, closing the door. The camera moves in close on the littered table in the empty room, and we clearly see a slip of crumpled paper on which are scribbled the words “Not guilty.”]
That’s how Rose’s teleplay ends. The movie opts for a different ending, which you can watch on YouTube. Crucially, in that version, No. 8’s knife is left lying on the jury room table. In real life, it would have been swiftly discovered by a bailiff and would launch an inquiry into juror misconduct. If it was found quickly enough, it might have condemned the accused to a retrial and, perhaps, worse.
An observant journalist afforded a Canberra juror a final word, reporting that they “swore under their breath and put a hand to their head as it was announced they could not continue.” We can all guess that word. But who was their anger directed towards? The sheriff’s officer? The chief justice? Another juror? Themselves? On that question, the jury’s out. •
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