Last week, Vincent Tabak was found guilty of murdering Joanna Yeates at Bristol Crown Court. The result has been overshadowed somewhat by the news that the jury were not allowed to hear evidence that Tabak had viewed violent pornography (apparently both before and after the murder), had contacted sex workers and attempted to perform violent sexual acts in the past.
Whether the jury should have been told this has split legal commentators. Mathew Taylor agreed with the judge’s decision to withhold the evidence:
Had the jury been told that Vincent Tabak used pornography which involved “…images of men holding their hands around women’s necks during sex and photos of women tied up in car boots“, then asked to decide if he intended to kill, it is difficult to see how that fact could fail to colour their thinking.
By contrast, David Allan Green favours a presumption in favour of disclosing all potentially relevant evidence, arguing:
My own view, and this is entirely subjective, is that if one is to have juries, one should trust them, or not have them at all. If the evidence is relevant then it should be admitted to the jury. …criminal trials are sometimes more a contest of what evidence is put before a jury rather than an exercise in assessing evidence.
Interestingly, both these perspectives display significant scepticism of juries. I think this could be partly because these perspectives do not quite zero-in on the formal institutional function of a jury. By tradition, juries are meant to deliberate rationally and prudently over whether the evidence put before them proves someone to be guilty of a crime beyond reasonable doubt. This is not what juries actually do. You would not achieve this by selecting 12 random people without any expertise in weighing evidence to hear a case.
Instead, juries are important because they introduce a degree of uncertainty into a court system which is otherwise dominated by long-term professional agents who are frequently in a position to collude; namely judges, lawyers, the Crown Prosecution Service and the police (who often provide key evidence). By contrast, the jury is disinterested (sometimes uninterested) in the particular case at hand and any conveniences of the court. In fact, they can be very inconvenient. The jury keeps these permanent actors more honest. The public can be assured that, if these professionals, who debate evidence for a living, cannot walk a defendant past a jury to a conviction, then there is a good chance that there is something unsound about the evidence.
Miscarriages of justice are possible, even likely, under a jury system but they can be remedied through judicial appeals. And at least there is some citizen oversight of public officials in the criminal justice system.
So we should start exploring this question by accepting that juries are likely to be prejudicial and prone to sentimental arguments anyway. And with that in mind, it is not clear exactly what is gained by placing such a high bar as to what evidence is admissible in a case such as this. Tabak already admitted killing Yeates, so the question for the jury then became one about motivation for the crime. I think those images become relevant at that point. It was perfectly legitimate for the prosecution to show that this was a sexually motivated murder rather than a “panic” manslaughter. His interest in those images (if they were genuinely prior to the murder) could be used to indicate that motivation.
If we consider a parallel example, usually whether someone is in possession of a copy of the Koran is neither here nor there when they are charged with committing a violent act. The question is whether they committed the violent act, not what is on their bookshelf. But if the violent act is already admitted, and the question is now over what the motivation for the violent act was, then the Koran might turn out to be relevant if the prosecution is trying to claim that there was a political/religious motivation.
If it might be relevant, and especially if the basic facts of the matter (the killing) are already admitted, then it seems like it is a question for the jury to decide.
Now this might make it occasionally more difficult for civil libertarians who wish to keep freedom of expression (whether in the form of religious literature or violent pornography) fully protected. Defence counsels will have to make the effort to demonstrate that coming from a minority religious group, or having a minority sexual interest, doesn’t make you intrinsically more suspect or more deserving of punishment. But on the other hand, as civil libertarians, we aren’t in the business of making it easier for genuinely manipulative and cold-blooded murderers to paint their acts as any less evil than they were.
In the event, Tabak was found guilty of murder anyway and perhaps the withholding of the evidence makes the jury’s decision all the more powerful and secure. But in the long run, such decisions to withhold evidence show a lack of faith in an important check on a criminal justice system.
Some commentators now seem to want to make pornography share the blame for this evil act, along with Tabak. In doing so, they accidentally make common cause with many sex offenders who are only too keen to blame some life experience or access to sexual imagery for their subsequent crimes. The evidence that pornography plays any causal role in making people more likely to commit sex crimes is remarkably weak, considering the number of studies that have attempted to demonstrate such a connection. It is of course possible that people with a predilection for real violent sexual acts will also seek out images of those acts. But that has to be understood in the context of millions of law-abiding citizens being capable of looking at pornography without any harmful effects on them or those around them.