Psychology and the Law

The Psychology of the Jury

Plan for Today

• Jury selection

• Challenge for Cause

• The Psychology of the Jury

The Challenge for Cause

• Legal mechanism in place to challenge jurors as to whether they would be impartial with respect to a particular issue

• Must establish a reasonable inference of potential bias in the population

• Judge decides whether a challenge is warranted and has final approval of any questions to be put to the jury

R. v. Parks (1993), 24 C.R.(4th) 81.

• Ontario Court of Appeals took judicial notice that . . .“there is a realistic possibility that a juror will be influenced in the performance of his or her judicial duty on the basis of racial bias”

• Supreme Court of Canada reiterates this precedent in R. v. Williams (1998)

Challenge for Cause

• Select first two “triers”• On the basis of the potential juror’s answer

to the challenge for cause question(s), the trier decides whether the potential juror is acceptable or unacceptable to sit on the upcoming trial

• Legally, having a bias does not necessarily indicate you are partial

Swearing In the Triers

“Do you swear that the evidence to be given by you to this court shall be the truth, the whole truth, and nothing but the truth, so help you God?”

“Do you swear that you will well and truly try whether one of the jurors stands acceptable or unacceptable to try the accused, and a true verdict give according to the evidence, so help you God?”

Call first potential juror

Challenge the Potential Juror

“Do you swear that the evidence to be given by you to this court and triers sworn in this challenge shall be the truth, the whole truth, and nothing but the truth, so help you God?”

The Challenge for Cause Question (R. v. Parks)

“ As the presiding judge will tell you, in deciding whether or not the prosecution has proven the charges against the accused beyond a reasonable doubt, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice, or partiality, be affected in any way by the fact that the accused is Black?”

Triers Deliberate

“Triers, how do you find?”

• Peremptory Challenges*

• If acceptable, trier #1 rejoins jury pool and can be called as a juror still.

• The challenged juror becomes the next trier.

• Swear in juror #1.

• Swear in triers again.

Juror #1

“Do you swear that you shall well and truly try and a true deliberance make between our sovereign lady the Queen and the accused at bar whom you shall have in charge, and a true verdict give according to the evidence, so help you God?”

“Do you swear that you shall well and truly try whether one of the jurors stands acceptable or unacceptable to try the accused and a true verdict give according to the evidence, so help you God?”

Trier Unacceptable

• If triers find juror unacceptable or if either lawyer uses a peremptory challenge, the juror is excused back to the jury office.

• This challenged juror is free to be called for another jury pool later on.

Research

• Prejudice and Stereotyping: • Duncan (1976), Sager & Schofield (1980), Bargh,

Chen, and Burrows (1996)• Knowledge of stereotypes vs. personal beliefs

(Devine, 1989)• Automatic vs. controlled processes• (Fazio, Jackson, Dunton, and Williams (1995)• Ideas based on anecdotal evidence from observing

the Challenge for Cause during jury selection at the Superior Court of Justice (Toronto).

Prejudice in the Legal System

• United States: Field (1979), Klein & Creech (1982), Radelet & Pierce (1985)

• Canada: Avio (1988) Archival analysis

• Pfeifer & Ogloff (1991) jury instructions

• Bagby, Parker, Rector, & Kalemba (1994) - - bias against white defendant

• Motivation to conceal prejudice?

Methods of Study

1. Post trial interviews of juries

• Not in Canada (s. 649 C.C.C.)

• Common in the U.S.

• LaFree, Reskin, & Visher (1985)

• Problems of retrospective accounts

• May not appreciate or recognize factors that contributed to their verdict

Methods of Study

2. Archival Analysis

(Avio, 1988)

Useful tool for research

High in external validity

Not in control of data collection (bias)

These are correlational studies and therefore you can’t infer causation.

Methods of Study

3. Jury simulations

(Douglas, Lyon, & Ogloff, 1997)

Ensure manipulated variable is responsible for effects

Brief, less complex

Verdicts are hypothetical

Mock jurors

Look for converging evidence.

Models of Jury Decision Making

1. Mathematical model (explanation-based)

“mental” calculations are performed by jurors to weigh the strength of each piece of information and compare it to a decisional criteria for guilt.

Models of Jury Decision Making

2. The Story Model

Pentington & Hastie (1986)

The jurors engage in active comprehensive processes to organize and interpret evidence into a coherent whole or narrative story structure.

Jurors try to find the best fit between the story constructed and the verdict categories provided by the judge.

The Story Model

Pentington & Hastie, 1988

Varied how trial evidence was presented, either witness by witness or in chronological, event based order.

The easier it was to construct a story the more likely a verdict consistent with that story would be rendered.

Judicial Instructions

• Alfini & Sales, 1982

• Were able to improve juror comprehension of judicial instructions by modifying the language (psycholinguistic theory)

• There has been an attempt to simplify language used by judges in Canada (no studies)

Judicial Instructions

“Jurors will disregard the evidence.”Hastings (1998)s. 12 Canada Evidence Act – criminal record

can be used to assess credibility(Hans & Doob, 1976) – criminal record has

little impact on credibility but does improperly influence perceptions of guilt.

Judicial instructions do little to remedy this.

Judicial Instructions

• Research consistently shows the ineffectiveness of judicial instructions to disregard evidence later ruled to be inadmissible (Story model)

• The “boomerang” effect

Jury Deliberations

• Sequestering juries• Most final group verdicts reflect the initial verdict

opinion majority - “majority rules”• Group Polarization• Leniency Bias• Normative vs. Informational influences• 12 member juries• Unanimous decisions