Still Weigh(t)ing The Evidence

As feared by some of the Newsnight Review panel, 'The Verdict' is rapidly in danger of becoming an exercise in 'judging the celebrity' rather than judging rape trials which is what the programme was supposed to be about.

Stan Collymore has posted a vigorous defence of his position on the show and rebutting some of the allegations about his fitness to serve on a jury, despite the punching Ulrika Jonsson incident. He posts a list of the very specific disqualifications for jury service none of which include his misdemeanours or punishments.

He claims he is unbiased and purely sticking with the evidence. But therein lies the bias. In the show he admonished one of the other jury members saying words to the effect that this wasn't CSI. But that's exactly what he seems to think it is. He has focused solely on the provision of incontrovertible physical, tangible evidence which can be scientifically tested and proven. If my memory serves me, it could have been directed at Jeffrey Archer who was disappointed that there hadn't been some twist of the evidence, some sudden killer evidence that would point with certainty to one conclusion or another.

Luckily, on the same messageboard as Mr Collymore has posted his defence, a very perceptive poster has pointed out:

"Any personal judgments aside, levelled at you regarding your previous violence/sexual history, my main complaint simply centres around your seemingly vehement assertion that there was no way that the footballers were guilty. It seems that the only person who was actually approaching the case in the correct way was Sarah Payne. There is no way that at that stage of the trial any of you should be so sure either way, having only been presented with less than half a case.

Your experience/knowledge of other similar trials which never even made it to court are totally irrelevant, the fact is that THIS case apparently had made it to court which suggests that the CPS thought that there was sufficient evidence. As a member of a jury you should be keeping an open mind to hear all evidence and not make a decision after one day. In any event, in cases like this, if there is a lack of physical evidence the only thing jurors may have to go on is individual testimony and to dismiss this out of hand as not being 'real evidence' shows a lack of understanding.

The fact is, regardless of how anyone on a real jury may act/think, you've willingly put yourself in the position to be criticised for your views and decisions so unfortunately you may just have to take it on the chin...

I'd be interested to hear your comments Stan."

The italics are my emphasis since that is the problem here. Is his narrow understanding of what evidence is coloured by his desperation to exonerate somebody he empathises with? He reckons not but he seems to have made his mind up early on in the proceedings.

Consider this:

A woman is raped. She tries to resist but fears that putting up too much of a struggle will escalate the sexual violence of the rape into physical violence as well. Since she has been and feels overpowered she may engage in a passive resistance to get the assault over with and escape. Perhaps she will say or scream "No!" or perhaps she opens her mouth but nothing will come out. Or she may simply freeze altogether. The rape over, she flees. She spends the next hours, days, weeks even, drifting through her normal life in a numb torpor of the mind unable to comprehend what has happened. She tries to carry on as normal. If she pretends everything is normal she can pretend nothing out of the ordinary has happened to her. However, she has to wash and scrub her body and the clothes she was wearing to try to just forget the whole thing. She can't. She may even destroy the clothes. Eventually when the reality hits either she decides or someone persuades her to go to the police by which time all physical evidence is lost. Nothing remains but the memory and her witness to it, her personal testimony. If we apply Stan's test of what evidence is then no-one can be convicted of this crime. That is why, as Johann Hari puts the statistics in context, "A British man has to rape over 50 women before it becomes statistically probable he will be sent to prison."

With little or no conclusive physical evidence the jury are left with the personal testimony of each of the parties in the case. This case is littered with probables, possibly maybes and could haves. They then have to fall back on the consistency of the stories of all parties and witnesses.

Judge Neil Denison who is hearing the case in the programme pinpointed the difficulty at the heart of every British rape trial. "Rape tends to take place in private, with no witnesses, so it is word against word," he said. "The credibility of the complainant and the defendant is vital."

However, Jeffrey Archer was wrong to be disappointed. The prosecution did make an extremely telling point when examining James Greer, one of the accused. She demonstrated, using his own account of the night in question that when he had left the hotel room, scene of the alleged crime, he had not said where he was going. Thus, said the barrister for the prosecution, when the alleged rape victim placed him in the hotel room later as part of the rape, if she had not been telling the truth she would not have known where he was when he left the room and that if he was elsewhere she ran the risk of him having a cast-iron alibi which would undermine her case. We shall see if anyone picks up on that.

I was willing to give the programme the benefit of the doubt. Patsy Palmer and Jennifer Ellison are a disgrace for treating the whole thing so lightly.

It does make one question trial by a jury of 'ordinary' people (there were some of the same issues around prejudices and 'rape myths' in 'Consent' on Channel 4 which did use a non-celebrity jury). Some commenters around the messageboards and forums have questioned whether this is a softening up for the introduction of television cameras into the courtroom. However, wasn't trial by jury under review some years ago and proposals to do away with it in certain cases?

I hope the BBC will redeem the flaws and make a better researched follow-up programme showing how the evidence should have been evaluated by the jurors and how justice should be done. This is in the interests of the victims of rapists who walk free to strike again and to those who may have been falsely accused. Otherwise nothing much will have been learned except that celebrities often don't deserve the pedestal they are put on nor a place on a programme dealing with such an important, serious and sensitive subject.

Read all about it....
How can juries understand rape unless the full horror is explained to them?
Listen to Radio 4 podcast on 'How should a rape trial be handled on TV?'