07/05/2014 18:19 BST | Updated 07/07/2014 06:59 BST

Kris Maharaj Case: Most of Us Fail the Jurors' Test

Much has been made in recent months by populist politicians of the 'need' to convict more people for certain crimes. But what this hardline approach ignores is the troubling way in which we judge other people. The problem is illustrated by a study I have been conducting in recent months, using the facts of a Miami double murder case against my client Krishna 'Kris' Maharaj. The audiences have invariably been highly educated, book-festival types.


I begin my study by prejudicing them strongly in Kris' favour. I tell them that Kris, who is currently awaiting a fresh hearing, is patently innocent. I add that I have recently identified a number of members of the Colombian cartels who have admitted that they, not Kris, killed Derrick and Duane Moo Young in the Dupont Plaza Hotel, Miami on 16 October, 1986.

This should not come as too great a surprise, given the influence of drug money in Miami in the 1980s - in one year, almost a tenth of the city's police force was arrested or suspended for corruption. South Florida was awash in narco-dollars. If the money the Colombians had to launder each year was stacked up in dollar bills, it would have weighed more than the entire population of Washington DC.

I then warn them that I am going to use them as guinea pigs - I will lay out the relatively convincing case that was presented to Kris' jury in 1987, and then require everyone to vote either guilty or not guilty based on what they have heard. The point is to see whether people can perceive a reasonable doubt in the case that was presented. Of course, in this case there clearly was more than a hyper-technical doubt - the prosecution had the wrong person altogether.

I have thus far conducted this survey with some 453 people, spread over various presentations. The results have been rather worrying. Overall, 93% have voted guilty; only 31 people have voted to acquit.

How, I wonder, can people not begin to anticipate the revelations that have come to light in Kris' case since twelve Florida jurors convicted him and sentenced him to death? It's not rocket science. Last week, in Stratford, one member of the audience justified voting not guilty by cogently anticipating the problems at the original trial; the perjury by witnesses, the inconclusive expert testimony, the inept defence lawyer and, ultimately, an entirely different explanation for the crime.

When I practiced law in Louisiana, I conducted a similar survey of the state's judges, asking them to try to quantify what they meant by proof "beyond a reasonable doubt." The judges' assessments varied, but on average they aimed for 83% certainty of guilt. In other words, they aimed to get the answer wrong one time in six - and if you aim low, you tend to miss your target. Given that there are six million people facing the justice system in the US today, they planned to convict a million innocents.

My British audiences have tended to set the bar somewhat higher, but even an attempt to achieve 99% certainty would leave 60,000 innocent people on the wrong end of American justice. Ultimately, these British decision-makers fall woefully short of their stated goal.

I do not mean to be critical of my guinea pigs. I am grateful to everyone who has gone along with my project (and if it's any solace to the Brits, a recent audience of Belgians in Ghent fared even worse). But the results are clear - even with liberal and intelligent jurors drawn from such a pool, many fail to hold true to the judicial maxim that it is better that 99 guilty people should go free rather than one innocent person go to jail.