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JURY DECISION-MAKING

Trial by jury is more than an instrument of justice and more than a wheel of constitution; it is the lamp that shows that freedom lives~ Lord Devlin (1953)

HOW IS A JURY SELECTED

if you can justify (only you can perform certain responsibilities of certain importance – ex: only child carer). (like WW2- if your job was vital for the war, you could be excused from service)

1. Names randomly selected from the electoral register

2. Must notify the court if they are unable to attend

3. Expectation is that the case will take two weeks (though if the case overruns, jurors are expected to remain)

4. Jurors informed in advance if the case is expected to overrun

JURY VETTING

if convictions are powerful (biased in one way or another- could be excused from participating).

5. Prosecution and defence are provided with juror list

6. Basic police check carried out as routine

7. More intensive vetting takes place only if prosecution or defence deem it necessary

8. Vetting may take the form of extensive background checks in matters pertinent to the nature of the case (e.g. political affiliations)

JURY SELECTION

– personal interests (ex. Friends with one of the witnesses) . done by case by case basis (if clark doesn’t feel that would bias, and the prosecution and defense are ok with it – could ..)

9. Group of 15 appropriate jurors assigned to a case

10. Court Clerk selects 12 at random to form the jury

11. Jurors must inform the Court of any personal interests

12. Such jurors may be replaced by one of the three ‘spares’

JURY TRIALS

13. Prosecution and defence are provided with juror list

14. Basic police check carried out as routine

15. More intensive vetting takes place only if prosecution or defence deem it necessary

16. Vetting may take the form of extensive background checks in matters pertinent to the nature of the case (e.g. political affiliations)

JURY DECISION MAKING

How can we study the decisions juries make?

17. Cannot study real juries

18. Jurors cannot discuss anything that takes place in the deliberation room

19. It is an offence for anyone to obtain, disclose or solicit any particulars of statements made, opinions expressed, argument advanced or vote cast by members of a jury in the course of their deliberations

Contempt of Court Act (1981)

Shadow juriesShadow jury – recruit 12 men and women using same selection criteria. They could sit in the public gallery. You take it to a different quiet location and let them deliberate.

Mock simulated jury – what we’re doing in this session . differences in pressures, motivations etc. (same with shadow)

20.

21. Mock ‘simulated’ juries

[pic]

Jurors asked to recall two specific, key issues

22. Almost 70% said the instructions were simple and easy to understand

23. Only 31% could correctly recall the two key issues

Only 48% could correctly recall the issues, even after being given a written summary of the judge’s direction– 70% said simple but only 31% could articulate the issues (murder and their defense was self-defense. – two issues). Need to question the instructions. In response to this – 2010 – Crown Court Benchbook published – Judges now take responsibility to craft directions that are specific to any given case (to make sure they’re accessible and understood). Jurors must not seek further information. If juror has any concerns they must disclose them to judge. Explain security arrangements (not allowed to visit scene of crime) . All to insure that the judge has the freedom of expression to make sure that these gaps in understanding can be closed a little. (harder if financial cases- without understanding).

24. -why not permitted to go out and do their own research – in court-important to have tests as to what evidence is admissible!. (we always know somebody who knows somebody who etc). Prosecuted for, for example, googling the defendant (no filter on the internet to make sure that what you’re reading is accurate).

Thomas (2010) Are juries fair? (link on ELE page)

Role play- Regina vs Blake -example – judge rejected appeal

Can’t go to trial twice with same evidence but if new evidence comes up…

Real case- nullified evidence- found not guilty. Motivation maybe needs to be taken into account

IN FAVOUR

25. Tried by your peers

26. Public support

27. Fact-finding is common sense, isn’t it?

28. Individual biases minimised by 12 people contributing

29. Unaccountable and so completely independent

30. Barometer of public conscience and moral values

31. Presence of jury ensures proceedings kept simple

32. No satisfactory alternative?

-tried by your peers (who are making the same kinds of decisions that you would, because they have the same circumstances)

-unaccountable- no one can influence your decision and have that power over you

-barometer of public conscience – moving away from letter of the law, and looking at conscience

-simple

33.

AGAINST

34. Juries are not representative and so ‘peer justice’ is a widely-shared illusion

35. Jury is largely ignorant of legal matters and so unable to weigh evidence or consider complex matters appropriately

36. Complex fraud cases particularly problematic (Roskill Report 1986)

37. Unable to consider more complex distinctions

38. E.g. between murder and manslaughter

39. Juries may be dominated by particular individuals

40. Juries acquit more defendants than magistrates

41. Jurors may be biased or tampered with

42. Unaccountability is undemocratic

Arguments against

-not representrative – systematic exclusion of certain people from juries

-ignorant of legal matters –

-unable to consider more complex distinctions - guilty – benevolently not intentionally (maybe should be other factors apart from actus reus and ….)

-dominated by particular individuals (ex: chris burgess may be biased but they will believe him because of his qualifications)

-acquit more defendants than magistrates

-may by biased or tampered with

o Devenport, J.L., Studebaker, C.A. & Penrod, S.D. (1999) Perspectives on jury decision-making: Cases with pretrial publicity and cases based on eyewitness identifications in Durso, F.T. (Ed) Handbook of applied cognition. (online)

ASSESSING THE EFFECTS OF PRETRIAL PUBLICITY

-pro-defendant bias is not of concern – trial process designed to provide a defendant with a fair trial and to decrease the change of erroneous conviction.

-bias against the defendant – could interefere with or remove the presumption of the defendant’s innocence before the trial has even begun. (moving trial to a different location)

-Opinion surveys- on jury-eligible individuals. (how many news sources they attend to and how often + asked to recall or recognize info about a particular case, to report opinion, and likelihood that defendant is guilty) –murder trial (Simon & Eimermann, 71) – 130 potential jurors – 2 month period from murder-articles in 13 days. – 100 jurors had read or heard something about the case. ¾ knew details of the crime. Of those, 65% favoured prosecution. 41% from those who could not recall details. Both about 70% though that defendant could receive fair trial in community.

-Nietzel (1983) – respondents in the venue country were more likely to know the defendant by name and to believe he/she was guilty than respondents from alternative countries. (larger bias)

King (1980)- the more they knew about a case, the more they were likely to consider the defendant guilty.

-Judical perspectives

voir dire (when they are selected and asked questions)

Irvin vs Dowd (1961) –first case where US Supreme Court struck down a state conviction on the grounds of prejudicial pretrial publicity. Out of 430 persons examined as potential jurors-268 were excused by the court because they had fixed opinions of Irvin’s guilt. 8/12 individuals who served as jurors, indicated sometime during voir dire a belief that Irvin was guilty.

Sheppard v Maxwell (66) “trial courts must take strong measures to ensure that the balance is never weighed against the accused”

o Hastie, R. (1993). Inside the juror, (chapter 1: Introduction, pp. 3-41) (online)

Most jurors have reached an appropriate verdict in a vtypical criminal trial before entering deliberation- good prediction of final verdict (Kalven, 66).

-imagining a mental life that is continually adjusted as the juror reasons about the implications of evidence and other information relevant to the judgment.

Stages –Bayesian probability theory model

1) adopting an initial degree or belief.

2) Identifying and comprehending units of info that will update the initial belief.

3) Comparing the final posterior probability to the threshold probability for conviction

But not valid.

o Memon, A., Vrij, A., & Bull, R. (2003) Jury decision making (chapter 8), in Psychology & Law, Chichester: Wiley. (online)

Trial by jury is much rarer in the UK than in the USA. (2% of criminal trials where accused pleads not guilty).

Methodology

-mock jurors- trial or part of a trial is presented to participants in a written form or by videotape. Advantage (high control over manipulating defendant, juror and case characteristics). Disadvantages (artifical, no consequences-motivation, individual-no deliberations => external validity)

-case studies & archival sources -> post hoc.

-post deliberation interviews & surveys of ex-jurors

-field experiment involving real juries (ecologically valid but cannot identify confound variables- lack of control)

JUROR CHARACTERISTICS

-Gender – mock juror research – females more likely to find rape defendant guilty (Ugwuegbu, 1979) -78% compared to 50%men .

-Age- higher proportion of not-guilty verdicts among youngest group (Sealy, 73), related to how much recall case facts (Darbyshire, 2000)

-Race- social desirability may lead to conceal bias – Texas(Daudistel, 99). Hispanic jurors recommended twice as long sentences for Anglo defendants as Hispanic defendants.

SOCIAL IDENTITY

-similarity-leniency hypothesis. Vs black-sheep effect

Taylor and Hosch (2002) – no evidence for either.

PRIOR CHARACTER

-if previous similar crime-more likely guilty. If previous conviction for dissimilar case-less likely to be guilty.

PRE-TRIAL PUBLICITY

Steblay (99) – metaanalysis –data from over 5700 participants. Exposed to negative PTP more likely to judge guilty.

Kovera (2002) – mock undergraduate jurors –watched a pro-defence rape trial reported they would need more evidence to convict a defendant of rape than pps who watched a pro-prosecution rape trial.

EVIDENCE

Inadmissible evidence and instructions to disregard – attempt to keep unwanted info out from mind Mkes the thoughts all the more persistent (Wegner, 92). Individual differences (Sommers, 2001) – mock jurors asked to disregard evidence from a wire-tap – only jurors with a “high need for cognition” managed to disregard- and overcorrected for bias- lower estimate of likelihood of guilt in inadmissible condition than a no-wire-tap control.

-alibi evidence – not if girlfriend or relative (Culhane, 2002).

AIDING JURIES

-struggle with legal jargon – simplify language.

LAWYER

-higher acquittal rates with male defence counsel (McGuire, 77).

=> numerous variables may influence juror perceptions and trial verdicts

In UK – increasing calls for the relaxation of the Contempt of Court Act to enable academic research on the jury deliberation process (Auld, 2001). –would provide us with better understanding

Effects of Defendant Attractiveness and Type of Crime on Juridic Judgment

1975 (Sigall) – Attractiveness x Offense interaction- beautiful female lost advantages of her good looks when she committed an attractiveness related crime. In this study they found opposite.

Jury nullification : a psycholegal perspective ( Mears, 98)

The English CJS works well enough. Blabla. There are times, however, when this does not work. If the law says that the defendant is guilty but for whatever reason, a conviction would result in moral injustice, the jury can and will act to prevent this: jury nullification.

Mears (96) – 50% of a sample of indiv polled in a mock euthanasia-type murder case choosing the nullifying verdict.

Considering jury nulligication: when may and should a jury reject the law to do justice (Weinstein, 93)

Recently, pro choice and pro life fources.

It is unlikely that 12 persons chosen at random from the community will at the same time be struck with a collective will to ignore a just law.

Jury nullification, rather than destroying the law, is necessary to protect it.

The police also exercise discretion by failing to arrest, ex – in possession of marijuana for private use.

The story model for juror decision making (Pennington, 93)

Proposes that central cognitive process in jury decision making is story construction .(evidence evaluation, representation of decision alternatives, reaching a decision through the classification of story into the best fitting verdict category:.

But evidence presentation is disconnected.

Believability of Expert and Lay Witnesses: Implications for Trial Consultation (Boccaccini, 2002)

Witness preparation to reduce anxiety and stress – because people interpret nonverbal beh associated with nervousness (little eye contact, fidgeting) as signs of deception.

Gruesome Evidence and Emotion: Anger, Blame and Jury Decision Making (Bright, 2006)

Mock jurors who saw gruesome photos, compared with those who saw no phos reported experiencing sign more intense emotional responses, including greater anger at defendant. Conviction rate was higher. -> it violates the defendant’s right to a fair trial, the jury’s role as impartial finders of fact and the defendant’s right to be considered innocent until proven guilty beyond reasonable doubt.

-> most common law countries permit exclusion of evidence that is determined to be more prejudicial than probative.

Gold vs platinum: Do jurors recognize the superiority and limitations of DNA evidence compared to other types of forensic evidence?

Both undergraduate students and repress jurors rated DNA as the most accurate and persuasive type of evidence. (regardless of whether the evidence was incriminating or exculpatory)

Asymmetric influence in mock jury deliberation: Jurors’ bias for leniency.

Leniency bias-> manifests in asymmetry effect = proacquittal factions are more influential than proconviction factions of comparable size.

Content and Perception of Deliberation in Western European Vs American Juries (Martin, 2003)

Jury research –American system 6-12 persons etc.

Most Western European Countries follow the escabinado system – laypersons and judges together decide verdict and sentence, under a non-unanimolus rule. (and only for criminal cases)

Experiment with Student Judicial Panel – escabinado and lay juries differed in their perception of deliberation but not in outcomes.

Calls to substitute experts for lay jurors or to just eliminate the jury totally (Munday, 93).

On racial diversity and group decision making (Sommers, 2006)

Whites cited more case facts, made fewer errors and were more amenable to discussion of racism when in diverse vs all-white groups. Whites in diverse groups were more lenient toward the black defendant.