PSYCH 3CC3 Lecture 6: Jurors
19 Jun 2018
School
Department
Course
Professor
Jury Selection
Mostly occurs in the US.
-
Jurors are questioned by defense and prosecutor to determine their beliefs,
values and ideals and to essentially identify the jurors they do/don't want in
terms of how they'd affect the case.
-
Challenges:
Preemptory challenge - removing a juror without a reason.
○
Cause - removing the juror because they know the juror, victim, judge,
etc.
○
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Pretrial Publicity
Mainly an issue in the US because in Canada, judges are able to post a ban on
the release of information in high profile cases.
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Concerns that this influences the beliefs of jurors.
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Jury Decision-Making
How do jurors use evidence to come to a verdict?
Decision-making models
○
Evaluation of evidence
○
Other factors
○
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Jury Instructions
How well are they understood?
Current research shows that jurors don't totally understand the
instructions they've been given.
○
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Can comprehension be improved?
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Harrisburg Seven (1972)
The Harrisburg 7 were very involved in protesting against the draft.
Burned draft cards, rallied, etc.
○
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Administration accused them of …
Conspiracy to destroy draft board records.
○
Conspiracy to kidnap Henry Kissinger
○
Conspiracy to bomb D.C. heating tunnels
○
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Because this was a federal issue, they chose to charge them in Harrisburg,
Pennsylvania because it's an extremely conservative area.
They were hoping that the jurors in this area would be more likely to find
them guilty.
○
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Jay Schulman and Bruce Sails, forensic psychologists, offered to help
They told the defense who to remove from the jury.
○
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Because of these recommendations, it ended up being a hung jury.
10 not guilty, 2 guilty
○
Those 2 people would've been removed from the jury had a few different
questions been asked.
○
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Because it was a hung jury, the government could've opted to try them again,
but they didn't.
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Schulman and Sails ended up creating a jury selection firm > National Jury
Project
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National Jury Project Consulting
California v. Robert Blake (murder)
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California v. Calvin Broadus (aka Snoop Dogg) (murder)
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California v. Joe Hunt (aka Billionaire Boys Club; murder charges)
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California v. Erik and Lyle Menendez (murder)
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California v. Hootan Roozrokh, M.D. (doctor charged with hastening the death
of a patient in order to harvest organs for transplantation)
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State of Colorado v. Kobe Bryant (rape)
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Commonwealth of Massachusetts v. Louise Woodward ("Nanny murder" case)
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People v. Al Mateiry (male date rape)
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Georgia v. Jamil Al Amin (formerly H. Rap Brown; capital murder case)
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Donald Vinson
Creator of DecisionQuest - specializes in customized trial consulting, strategic
graphics, presentation technology services and social media analysis.
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Vinson and Company - provides services designed to help attorneys with
questions that arise during trials.
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O.J. Simpson Case
Joe-Ellen Demetrius advised the defense on jury selection, performed surveys
Determined that black women heavily support O.J. and dislike Marcia
Clark (prosecuting attorney).
○
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Vinson actually gave this same information to the prosecution for free, but they
did not take his advice.
-
From there, the prosecution determined that the best jurors would be …
Young
○
Blue collar
○
Black women
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Less educated
○
Low SES
○
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Final jury had …
1 black man
○
1 latino man
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2 white men
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8 black women
○
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O.J. was tried and acquitted.
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Civil Cases
Lots of money at stake in civil cases so it's worth the money to get a jury
consultant firm to help.
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You'll have better odds and retain money.
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Advantages of Jury Research
Usually starts with mock jurors and see how mock trials turns out with them -
find out a bunch of information.
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Shows questions jurors want answered. 1.
Early identification of problems in case2.
Indicates how jurors see the case3.
Prepares the ground for mediation4.
Case might not need to even go to trial.
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Mediate settlement based on what mock jurors thought was a fair settlement
(see next point).
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Provides realistic damage assessments.5.
Indicates graphics needed6.
Jury Research Often Comes Up With Racial Biases
Not very prevalent in Canada
-
Very prevalent in Southern states.
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In US, prosecutors/judges are elected officials.
Therefore, they match voters - usually white people.
§
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Case in Caddo Parish, Louisiana - had to throw out verdict because only 1
black person jury.
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Bull (2016 -present)
Bull is a drama inspired by the early career of Dr. Phil McGraw, the founder of
one of the most prolific trial consulting firms of all time (Courtroom Sciences
Inc.).
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Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he
combines psychology, human intuition and high-tech data to learn what makes
jurors, attorneys, witness and the accused tick.
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Jury Research Methods
Mock juries1.
Presented with trial evidence beforehand; verdicts noted
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Shadow juries2.
Sit in court each day, provide feedback to attorneys.
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Like mock jury, but fewer individuals
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Community surveys 3.
Identify undesirable jurors
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Post-trial Questions4.
Illegal in Canada
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Ask jurors after the trial how/why they came to their verdict.
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Juror Demographics and Verdicts
Socioeconomic Status (SES)1.
Mixed results; no clear relationship
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Education2.
Mixed results; no clear relationship
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Age, gender3.
Mixed results; no clear relationship
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Race-ethnicity, religion4.
Mixed results; no clear relationship
-
Note: although none of these seem to impact jury decision making, effects may
depend of the type of crime.
Juror Personality and Verdicts
Authoritarianism1.
Authoritarianism: like fascism; belief in importance of powerful individuals
where everyone should be obedient.
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F-scale (fascism scale)
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Right-wing Authoritarianism Scale (RWA)
# of same statement as F-scale
-
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Authoritarianism and verdicts
More ready to convict
Bias for people in authority - so if the government has tried
someone for a crime, it must be because it was worthwhile
§
-
Better recall of prosecution than defense evidence
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Recommend longer sentences
E.g., Donald Trump suggested death penalty for drug dealers
§
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More punitive toward low-status defendants
Look down on people of lower status than themselves.
§
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Effect small - large in real juries than mock juries
Expect the lab results to produce more dramatic results, but this
isn't the case - very interesting.
§
-
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Dogmatism2.
Related to RWA - basically RWA without the prejudice
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True of individuals who have strong beliefs that aren't necessarily supported by
the evidence; closed to alternative explanations
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Biggest difference:
RWA is very highly correlated with prejudices.
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But dogmatic individuals don't necessarily show these prejudices.
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Racial, ethnic, religious prejudice is missing from these individuals …
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Can be right wing or left.
-
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Dogmatism and verdicts
High = more likely to convict
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High = more punitive after conviction
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Not all studies find this …
Inconsistency because dogmatic people show these tendencies in
only certain types of crimes, trials, people, etc.
§
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Locus of Control: Internal vs External3.
Individual's tendency to believe that the outcomes of an individual's behaviour
are primarily due to their own internal factors (i.e., personality, actions, etc.) vs
being primarily due to external factors (i.e., circumstances, contexts, events,
etc.)
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External:
E.g., In world affairs, most of us are the victims of forces we can neither
understand nor control.
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E.g., Many of the unhappy things in people's lives are due to bad luck.
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More left-wing
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Internal:
E.g., By taking an active part in political and social affairs, the people can
control world events.
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E.g., People's misfortunes arise from the mistakes they make.
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More right-wing
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Sosi (1974): Drunk driving case
Internals:
Recommend harsher punishments
§
View defendant as more responsible
Discounted mediating circumstances□
§
No relation between locus of control and perceived guilt
Still relied on evidence for decision of guilt or innocence, once
they've decided, then we see their bias.
□
§
-
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Phares and Wilson (1972): Auto accident case
Internals:
Defendant more responsible, but only when actions ambiguous and
injuries high.
§
No difference when defendant clearly at fault, or injuries less
severe.
§
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Just World Beliefs: High vs Low4.
Individuals high in JWBs believe everything should turn out as it should; people
get what they deserve.
-
Gerbassi et al (1977): real/mock homicide cases
High JWB:
Less favourable impression of defendant
§
Recommend harsher punishment
§
Effect stronger in women - opposite of expectation
§
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Often see this belief demonstrated in rape cases - victim blaming
-
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Zuckerman and Gerbassi (1975): mock rape case
High JWB:
Victim held more responsible
§
Victims of high moral character less responsible than those of
questionable moral character
§
We see this still today …
§
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Juror Bias Scale
22 statements, 5-point scale.
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Two subscales:
Probability of Commission
Bias towards seeing guilt in the defendant prior to trial.
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E.g., "a suspect who runs from the police most probably committed
the crime."
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E.g., "generally, the police only make an arrest when they are sure
about who committed the crime."
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1.
Reasonable Doubt
Reasonable doubt isn't defined by law; it's up to the juror/judge to
determine it.
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"If a majority of the evidence - but not all of it - suggests the
defendant committed the crime, then the jury should vote not
guilty." - traditional definition.
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"Circumstantial evidence is too weak to use in court." - again,
demonstrates belief in reasonable doubt.
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2.
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Kassin and Wrightsman (1983):
Correlation (r = 0.30) between scale scores and verdicts (~ 10% of
variance in verdicts can be attributed to differences in the scores on
variability scales)
○
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Penrod and Cutler (1987):
Correlation (r = 0.60) between subscale scores - what is being measured?
○
Scores on both scales are highly correlated - are they just measuring the
same thing?
○
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Meyers and Lecci (1998):
Probability of commission scale measures two things:
Confidence in the justice system
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Cynicism toward some aspect of the justice system
-
○
How can you separate the two? What do you want to get at?
○
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Pretrial Publicity (PTP)
Widely known that PTP has a negative effect.
-
Studies now ask - what is it about PTP that has an effect? What kind of PTP has
an effect?
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Imrich et al (1995):
Survey 14 US papers over 8-weeks for crime stories
○
Rates the extent to which these stories were negatively prejudicial
towards the defendant.
○
27% of stories prejudicial to defendant; negative because it's typically
prosecutors and police leaking the information
○
Most about character, presumed guilt
○
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Tans and Chafee (1966): mock trials
Looking at the kinds of things in PTP that might impact jurors.
○
Crime seriousness
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Favourable/unfavourable DA statements
○
Defendant held or released
○
More of these negative elements of PTP = higher probability of guilt
verdict
○
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Kramer, Kerr and Carrol (1990)
Compared factual vs emotional PTP with or without delay (~ 12 days)
before trial.
○
Factual = actually dealt with elements of the crime, or inadmissible
information
○
Emotional = e.g., told a few hours after bank robbery, a sick young woman
was his by the getaway car from the bank robbery (driver matched
defendant description too)
None actually confirm whether the defendant even did the robbery
in the first place, just elicited some emotional responses.
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○
Pre-deliberation, no verdict differences between the two groups
○
PTP increases probability of conviction after deliberation
○
Conviction 20% higher with emotional than factual PTP
Info that had no relevance to the guilt or innocence of the
defendant was more compelling.
-
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PTP - trial delay reduces effect of factual PTP
○
PTP-trial delay increases effect of emotional PTP
○
Instructions to ignore PTP had no effect on the effect of PTP
○
Hypothesis: PTP increases persuadability of 'acquitters' or increases
persuasiveness of 'convicters' - or both
Acquitters feel less strongly about the not-guilty verdicts.
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Convicters feel more strongly about their guilty verdict.
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○
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Steblay et al (1999): meta-analysis of 23 PTP studies
Negative PTP increases probability of conviction
○
Effects greater with jury pool members than students
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Larger effects with real PTP
○
Larger effects with murder, sexual abuse, drug cases
○
Larger effects when longer PTP - verdict delay
It might be the case that with the passage of time, your ability to
distinguish source of the information fades.
-
○
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Ruva and Guenther (2015)
Before viewing criminal trial, mock jurors given negative or unrelated pre-
trial publicity (PTP).
○
Compared with those given unrelated crime stories, jurors given negative
PTP more likely to:
Vote guilty
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Misremember trial testimony
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Rate defendant as lower in credibility
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Discuss ambiguous trial evidence in pro-prosecution manner
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Include PTP in discussion, though instructed to ignore
Impact of PTP doesn't diminish; instruction to ignore PTP are
often ignored anyways.
□
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Juror Decision Making
Orientation
Elect foreman: someone who will lead the group
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Discuss procedures
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Raise general trial issues
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1.
Jury Deliberations
Verdict Driven
30%
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Take poll, assess evidence for either side (argue verdicts)
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Assumes either guilty or not guilt
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Shortcomings: don't consider all of the evidence
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1.
Evidence Driven
70%
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Look at evidence (re: different verdicts), then take poll
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2.
2.
Open Conflict
Normative Influence
Jurors keep private opinion, but vote with the group to maintain
harmony
-
Might not actually change their opinions - just agreeing with the
group
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1.
Informational Influence
Jurors change minds based on arguments, evidence
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2.
3.
Reconciliation
How the weighting of evidence looks mathematically?
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There are different models for how juries reach their final decision.
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4.
Bayesian Model
Uses mathematics to show how jurors determine probability of guilty.
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Prior probability (Pprior)
Jurors come should come into trial with a prior probability of zero, but it
isn’t.
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Include:
Instructions re: presumption of innocence
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Attitudes towards justice system
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Attitudes towards defendants
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1.
New Evidence Item
E.g., witness, exhibits, arguments.
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2.
Probability Updating
When you get the new information, it's added multiplicatively
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Therefore, if the value ever reaches zero or one, it can never change
again.
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But this is unreasonable
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Once you reach certainty, you'll never change your mind.
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3.
Conviction Criterion (P*)
Compare your final probability to the conviction of guilt criterion.
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The criterion is beyond a reasonable doubt.
We don't know what P* is from person to person.
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4.
Utility Evaluation (Ppost v P*)
Compare
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5.
Decision6.
Algebraic Model
Initial Opinion ("Anchor")
Include:
Instructions re: presumption of innocence
§
Attitudes towards justice system
§
Attitudes towards defendants
§
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1.
New Evidence Item
E.g., witnesses, exhibits, argument
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2.
Opinion Adjustment Process
This time, the new evidence items are given different weights.
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(+) weight - innocence
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(-) weight - guilty
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3.
Conviction Criterion (Sbyd)
How certain does their opinion of guilt or innocence have to be?
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4.
O v Sbyd5.
Decision6.
Stochastic Model
So far, it looks like this model provides the best estimates because it accounts
for extra-evidentiary factors.
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Initial Opinion (Xe0)
Include:
Instructions re: presumption of innocence
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Attitudes towards justice system
-
Attitudes towards defendants
-
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1.
Evidence:
Includes:
Witnesses
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Exhibits
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Arguments
-
Extra-evidentiary factors
Know that jurors, despite being told not to, still use this
information.
□
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Adjust apparent weight of evidence for guilt (Xe1)
There's some randomness to this.
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Different factors affect it (e.g., hunger, mood, state, etc.)
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2.
Critical Event Occurs and Freezes opinion (Xfinal)
Similar to Bayesian model in that once the opinion reaches 1 or 0, you
cannot change the opinion.
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The "critical event" freezes the guilt at a certain value unchangeable by
presentation of further evidence.
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3.
Criterion for conviction (C )4.
Compares Final Opinion vs Criterion (C vs Xfinal)5.
Decision
Supposed to consider instructions re: standard of proof
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Severity of crimes
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Attitudes: justice system, defendants attractiveness and conduct
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Considers extra-evidentiary factors
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6.
Story Model
Not math
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Argues that people want to tell a story …
Defense wants the story to show innocence.
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Prosecution wants the story to show guilt.
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Jurors put story together in their head.
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Trial Evidence
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Knowledge re: Similar Events
Consider the events that you have hear about or experience, consider
their outcomes.
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Knowledge re: Story Structures
What makes a good story? Structure? Contents?
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Construct Stories
Constructed from trial evidence, knowledge re: similar events, knowledge
re: story structures
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You might construct multiple stories - consider which ones are plausible.
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Learn Verdict Categories
Based on: instructions on law, prior ideas about crime categories
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Match Accepted Story to Verdicts
Compare plausible stories with the potential verdicts
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Decision
Select the verdict if the fit is good.
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Story Acceptability and Credibility
Coverage - account for all evidence?
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Coherence
Consistency?
○
Plausibility?
○
Narrative Completeness?
○
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Uniqueness - only workable story?
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Juror's Evaluation of Evidence
Eyewitness testimony
Only eyewitness confidence affects jurors evaluation.
○
Overall, not good at evaluating.
○
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Hearsay evidence
Jurors good at discounting hearsay.
○
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Confessions
Jurors assign high weight to confessions, even those obtained under
coercion
○
True even when jurors instructed to ignore, and say they did so.
○
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Expert evidence
Jurors influenced even when concepts questionable.
○
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Extra-Evidentiary Factors
Defendant Attractiveness:
Attractive defendants less likely to be found guilty
○
Attractive defendants receive lighter punishments
○
Punishment may vary with type of offense:
Harsher on unattractive for robbery, rape and cheating
-
Harsher on attractive for negligent homicide, swindling
-
○
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Defendant Race:
No effect on verdicts
○
However …
Blacks harsher punishment for negligent homicide.
-
Whites harsher for white collar crimes (e.g., fraud and
embezzlement)
-
○
Maeder, Yamamoto and Saliba (2015):
Varied both defendant race (white, black, aboriginal) and physical
attractiveness for mock jurors in sexual assault trial.
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Gender …
Female jurors not influenced by defendant attractiveness.□
Male jurors more certain if defendants guilt when victim
unattractive.
□
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Race and attractiveness interact …
White defendant: attractive victims rated MORE responsible
than unattractive victims for assault.
□
Black defendant: attractive victims rated LESS responsible
than unattractive victims for assault.
□
Aboriginal defendant: no interaction between attractiveness
and victim responsibility.
□
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○
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Defendant SES:
Recall, for jurors, there's no distinct relationship between their SES and
their verdict.
○
But this is not the case for defendant SES …
○
Low SES = more convictions, harsher punishments
○
Effects small; not all studies find effects
○
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Defendant -Juror Interactions:
Fewer guilty verdicts for defendants similar to jurors.
○
No race bias in verdicts when race is salient (pointed out, talked about) in
trial.
○
When race not salient in trial:
White jurors harsher on Black defendants
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Black jurors more lenient on Black defendants
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○
RE: OJ Simpson trial
○
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Nuñez et al (2015): mock jurors viewed sentencing phase of capital murder trial, and
asked to decide sentence for defendant. Juror anger, sadness, fear assessed after
viewing:
Jurors report increased sadness, anger after viewing, but no increase in fear.
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Increased anger - but not increased sadness - increases likelihood of death
sentence.
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Effect moderated by importance attached to prosecution evidence and
argument.
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Inadmissible Evidence
Evidence revealed during trial, but later ruled as inadmissible.
Jurors told to ignore it after hearing it.
○
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Instructions to ignore ineffective, but proper instructions may work.
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Past criminal record - not allowed, not relevant unless shows a pattern.
Increases probability of guilty verdict, especially if past crimes were
similar.
○
Jurors cannot ignore it.
○
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Effect of inadmissible evidence depends:
More likely to be used if other evidence is weak.
○
More likely to be used in less serious crimes.
○
One reason for inadmissibility; less likely to be used if reason is not simple
legal 'technicality'.
○
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Comprehending Judicial Instructions
Extremely important; make take up an entire day
-
Research shows that jurors don't have a good understanding of judicial
instructions.
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Jackson (1992): surveyed all jurors in England and Wales over 2-week period.
Understanding of judge's instructions
65% -"All'
-
25% - "Most"
-
10% -"Some" or "None"
-
○
97% understood summing up
○
Most couldn't ignore inadmissible evidence - only 68% of jurors told to
disregard evidence had been able to do so.
○
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Reifman, Gusik and Ellsworth (1992): T/F questions re: law and duties of 140
Michigan jurors.
More accurate in understanding if instructed than if not.
○
More accurate if asked for help from judge.
○
More accurate after criminal than civil jury service.
○
Criminal jurors highest mean score still at chance (47.8%).
If you correct for guessing, it's even less (~25%)
-
○
Addresses by council are no help.
○
Two jurors were lawyers - scored 70%
○
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Young et al (2001): Questioned jurors in 48 New Zealand trials.
85% found judges instructions 'clear'
○
80% found judge's instructions 'helpful'
○
Jurors in 72% of trials misunderstood some relevant aspect of law related
to their case.
○
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Saxton (1998): questioned judges, lawyers, and jurors.
Self-reported understanding of instructions: 97% said they understood
○
Actual understanding of instructions:
74% for criminal jurors
-
58% for civil jurors
-
○
Overestimated the extent to which they understood instructions.
○
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Simulated Trials
Jones and Myers (1979): 62% correct, 72% correct when simplified
○
Rose and Ogloff (2001): ~ 60-70% correct
○
Diamond (1993): ~ 40% correct, ~ 68% when simplified
○
Ogloff (1998): ~ 60% not simplified
○
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Improving Comprehension of Judicial Instructions
"Plan language" instructions
Frank & Applegate (1998): Capital case, penalty phase
50% understanding for regular
-
68% understanding for simplified
-
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Elwork et al (1977): Negligence instructions (Michigan)
60% understanding for regular
-
81% understanding for simplified
-
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Jones & Myers (1979): Murder/manslaughter
62% understanding for regular
-
72% understanding for simplified
-
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Improving language helps, but not dramatically.
-
1.
Note-taking:
In Canada, at judge's discretion.
-
Concerns:
Note-takers more influential in deliberations?
-
Notes inaccurate or incomplete - focus on less important evidence?
-
Note-taking distraction on non-notetaking jurors?
-
Notes incomplete - more early, less late?
-
-
Heuer and Penrod (1988, 1994):
Found that notes were accurate and unbiased.
-
U.S. jurors took ~ 6 pages of accurate, unbiased notes per hour.
-
-
Penrod and Heuer (1997): reviewed note taking research.
Jurors can keep up with evidence
-
Note-taking not distracting to others
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Jurors' notes are accurate record of trial
-
Jurors' notes serve as memory aid
-
Jurors' notes do not distort their view of case
-
Jurors do not overemphasize noted evidence
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Note-takers do not have undue influence
-
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2.
Asking questions: at judge's discretion
At the discretion of the judge, jurors are allowed to pass questions to the
judge to be asked of the witness.
-
Penrod & Heuer (1997): reviewed research
Do not ask legally inappropriate questions.
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Jurors do not become advocates.
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Do not draw wrong inferences from objections.
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Questions promote understanding of facts, issues.
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Questions do not clearly help get to truth in case.
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Do not increase satisfaction with trial or verdict
-
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3.
Ogloff (1998): looking to see if there was a way to improve comprehension of judicial
instructions.
500 jury eligibile individuals shown 2.5 hour trial video based on actual case,
including judge's instructions.
-
Several strategies for improving comprehension tried:
Plain language instructions
-
Juror note-taking
-
Pre- and post-trial instructions
-
Written copies of judge's instructions
-
Decision-tree jury deliberation model
-
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None especially effective, though comprehension slightly increased by pre/post,
decision tree.
But, it's not all bad … jurors understand better in criminal trials than in
civil trials (criminal trials have more at stake)
-
Judge-Jury Agreement
Kalven and Zeisel (1966): Chicago Jury Project
75% agreement between judges and jury verdict
-
-
Saxton (1998): Wyoming
76% agreement in criminal trials
In the 25% of disagreement cases, most judges would've convicted
when the jury acquitted - leniency bias for jurors.
-
-
50% agreement in civil cases
V low
-
-
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Young et al (2001): New Zealand
50% agreement between judge and jury.
-
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Jurors are often very independent in their decisions.
-
Jury nullification:
This occurs when all of the facts of a criminal case have been proven
beyond a reasonable doubt and the jury still finds the defendant not
guilty.
-
E.g., Dr. Death, cases in the South where white people were hanging black
people in the streets
-
Jurors
Thursday, March 8, 2018
9:32 AM
Jury Selection
Mostly occurs in the US.
-
Jurors are questioned by defense and prosecutor to determine their beliefs,
values and ideals and to essentially identify the jurors they do/don't want in
terms of how they'd affect the case.
-
Challenges:
Preemptory challenge - removing a juror without a reason.
○
Cause - removing the juror because they know the juror, victim, judge,
etc.
○
-
Pretrial Publicity
Mainly an issue in the US because in Canada, judges are able to post a ban on
the release of information in high profile cases.
-
Concerns that this influences the beliefs of jurors.
-
Jury Decision-Making
How do jurors use evidence to come to a verdict?
Decision-making models
○
Evaluation of evidence
○
Other factors
○
-
Jury Instructions
How well are they understood?
Current research shows that jurors don't totally understand the
instructions they've been given.
○
-
Can comprehension be improved?
-
Harrisburg Seven (1972)
The Harrisburg 7 were very involved in protesting against the draft.
Burned draft cards, rallied, etc.
○
-
Administration accused them of …
Conspiracy to destroy draft board records.
○
Conspiracy to kidnap Henry Kissinger
○
Conspiracy to bomb D.C. heating tunnels
○
-
Because this was a federal issue, they chose to charge them in Harrisburg,
Pennsylvania because it's an extremely conservative area.
They were hoping that the jurors in this area would be more likely to find
them guilty.
○
-
Jay Schulman and Bruce Sails, forensic psychologists, offered to help
They told the defense who to remove from the jury.
○
-
Because of these recommendations, it ended up being a hung jury.
10 not guilty, 2 guilty
○
Those 2 people would've been removed from the jury had a few different
questions been asked.
○
-
Because it was a hung jury, the government could've opted to try them again,
but they didn't.
-
Schulman and Sails ended up creating a jury selection firm > National Jury
Project
-
National Jury Project Consulting
California v. Robert Blake (murder)
-
California v. Calvin Broadus (aka Snoop Dogg) (murder)
-
California v. Joe Hunt (aka Billionaire Boys Club; murder charges)
-
California v. Erik and Lyle Menendez (murder)
-
California v. Hootan Roozrokh, M.D. (doctor charged with hastening the death
of a patient in order to harvest organs for transplantation)
-
State of Colorado v. Kobe Bryant (rape)
-
Commonwealth of Massachusetts v. Louise Woodward ("Nanny murder" case)
-
People v. Al Mateiry (male date rape)
-
Georgia v. Jamil Al Amin (formerly H. Rap Brown; capital murder case)
-
Donald Vinson
Creator of DecisionQuest - specializes in customized trial consulting, strategic
graphics, presentation technology services and social media analysis.
-
Vinson and Company - provides services designed to help attorneys with
questions that arise during trials.
-
O.J. Simpson Case
Joe-Ellen Demetrius advised the defense on jury selection, performed surveys
Determined that black women heavily support O.J. and dislike Marcia
Clark (prosecuting attorney).
○
-
Vinson actually gave this same information to the prosecution for free, but they
did not take his advice.
-
From there, the prosecution determined that the best jurors would be …
Young
○
Blue collar
○
Black women
○
Less educated
○
Low SES
○
-
Final jury had …
1 black man
○
1 latino man
○
2 white men
○
8 black women
○
-
O.J. was tried and acquitted.
-
Civil Cases
Lots of money at stake in civil cases so it's worth the money to get a jury
consultant firm to help.
-
You'll have better odds and retain money.
-
Advantages of Jury Research
Usually starts with mock jurors and see how mock trials turns out with them -
find out a bunch of information.
-
Shows questions jurors want answered. 1.
Early identification of problems in case2.
Indicates how jurors see the case3.
Prepares the ground for mediation4.
Case might not need to even go to trial.
-
Mediate settlement based on what mock jurors thought was a fair settlement
(see next point).
-
Provides realistic damage assessments.5.
Indicates graphics needed6.
Jury Research Often Comes Up With Racial Biases
Not very prevalent in Canada
-
Very prevalent in Southern states.
-
In US, prosecutors/judges are elected officials.
Therefore, they match voters - usually white people.
§
-
Case in Caddo Parish, Louisiana - had to throw out verdict because only 1
black person jury.
-
Bull (2016 -present)
Bull is a drama inspired by the early career of Dr. Phil McGraw, the founder of
one of the most prolific trial consulting firms of all time (Courtroom Sciences
Inc.).
-
Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he
combines psychology, human intuition and high-tech data to learn what makes
jurors, attorneys, witness and the accused tick.
-
Jury Research Methods
Mock juries1.
Presented with trial evidence beforehand; verdicts noted
-
Shadow juries2.
Sit in court each day, provide feedback to attorneys.
-
Like mock jury, but fewer individuals
-
Community surveys 3.
Identify undesirable jurors
-
Post-trial Questions4.
Illegal in Canada
-
Ask jurors after the trial how/why they came to their verdict.
-
Juror Demographics and Verdicts
Socioeconomic Status (SES)1.
Mixed results; no clear relationship
-
Education2.
Mixed results; no clear relationship
-
Age, gender3.
Mixed results; no clear relationship
-
Race-ethnicity, religion4.
Mixed results; no clear relationship
-
Note: although none of these seem to impact jury decision making, effects may
depend of the type of crime.
Juror Personality and Verdicts
Authoritarianism1.
Authoritarianism: like fascism; belief in importance of powerful individuals
where everyone should be obedient.
-
F-scale (fascism scale)
-
Right-wing Authoritarianism Scale (RWA)
# of same statement as F-scale
-
-
Authoritarianism and verdicts
More ready to convict
Bias for people in authority - so if the government has tried
someone for a crime, it must be because it was worthwhile
§
-
Better recall of prosecution than defense evidence
-
Recommend longer sentences
E.g., Donald Trump suggested death penalty for drug dealers
§
-
More punitive toward low-status defendants
Look down on people of lower status than themselves.
§
-
Effect small - large in real juries than mock juries
Expect the lab results to produce more dramatic results, but this
isn't the case - very interesting.
§
-
-
Dogmatism2.
Related to RWA - basically RWA without the prejudice
-
True of individuals who have strong beliefs that aren't necessarily supported by
the evidence; closed to alternative explanations
-
Biggest difference:
RWA is very highly correlated with prejudices.
-
But dogmatic individuals don't necessarily show these prejudices.
-
Racial, ethnic, religious prejudice is missing from these individuals …
-
Can be right wing or left.
-
-
Dogmatism and verdicts
High = more likely to convict
-
High = more punitive after conviction
-
Not all studies find this …
Inconsistency because dogmatic people show these tendencies in
only certain types of crimes, trials, people, etc.
§
-
-
Locus of Control: Internal vs External3.
Individual's tendency to believe that the outcomes of an individual's behaviour
are primarily due to their own internal factors (i.e., personality, actions, etc.) vs
being primarily due to external factors (i.e., circumstances, contexts, events,
etc.)
-
External:
E.g., In world affairs, most of us are the victims of forces we can neither
understand nor control.
-
E.g., Many of the unhappy things in people's lives are due to bad luck.
-
More left-wing
-
-
Internal:
E.g., By taking an active part in political and social affairs, the people can
control world events.
-
E.g., People's misfortunes arise from the mistakes they make.
-
More right-wing
-
-
Sosi (1974): Drunk driving case
Internals:
Recommend harsher punishments
§
View defendant as more responsible
Discounted mediating circumstances□
§
No relation between locus of control and perceived guilt
Still relied on evidence for decision of guilt or innocence, once
they've decided, then we see their bias.
□
§
-
-
Phares and Wilson (1972): Auto accident case
Internals:
Defendant more responsible, but only when actions ambiguous and
injuries high.
§
No difference when defendant clearly at fault, or injuries less
severe.
§
-
-
Just World Beliefs: High vs Low4.
Individuals high in JWBs believe everything should turn out as it should; people
get what they deserve.
-
Gerbassi et al (1977): real/mock homicide cases
High JWB:
Less favourable impression of defendant
§
Recommend harsher punishment
§
Effect stronger in women - opposite of expectation
§
-
Often see this belief demonstrated in rape cases - victim blaming
-
-
Zuckerman and Gerbassi (1975): mock rape case
High JWB:
Victim held more responsible
§
Victims of high moral character less responsible than those of
questionable moral character
§
We see this still today …
§
-
-
Juror Bias Scale
22 statements, 5-point scale.
-
Two subscales:
Probability of Commission
Bias towards seeing guilt in the defendant prior to trial.
-
E.g., "a suspect who runs from the police most probably committed
the crime."
-
E.g., "generally, the police only make an arrest when they are sure
about who committed the crime."
-
1.
Reasonable Doubt
Reasonable doubt isn't defined by law; it's up to the juror/judge to
determine it.
-
"If a majority of the evidence - but not all of it - suggests the
defendant committed the crime, then the jury should vote not
guilty." - traditional definition.
-
"Circumstantial evidence is too weak to use in court." - again,
demonstrates belief in reasonable doubt.
-
2.
-
Kassin and Wrightsman (1983):
Correlation (r = 0.30) between scale scores and verdicts (~ 10% of
variance in verdicts can be attributed to differences in the scores on
variability scales)
○
-
Penrod and Cutler (1987):
Correlation (r = 0.60) between subscale scores - what is being measured?
○
Scores on both scales are highly correlated - are they just measuring the
same thing?
○
-
Meyers and Lecci (1998):
Probability of commission scale measures two things:
Confidence in the justice system
-
Cynicism toward some aspect of the justice system
-
○
How can you separate the two? What do you want to get at?
○
-
Pretrial Publicity (PTP)
Widely known that PTP has a negative effect.
-
Studies now ask - what is it about PTP that has an effect? What kind of PTP has
an effect?
-
Imrich et al (1995):
Survey 14 US papers over 8-weeks for crime stories
○
Rates the extent to which these stories were negatively prejudicial
towards the defendant.
○
27% of stories prejudicial to defendant; negative because it's typically
prosecutors and police leaking the information
○
Most about character, presumed guilt
○
-
Tans and Chafee (1966): mock trials
Looking at the kinds of things in PTP that might impact jurors.
○
Crime seriousness
○
Favourable/unfavourable DA statements
○
Defendant held or released
○
More of these negative elements of PTP = higher probability of guilt
verdict
○
-
Kramer, Kerr and Carrol (1990)
Compared factual vs emotional PTP with or without delay (~ 12 days)
before trial.
○
Factual = actually dealt with elements of the crime, or inadmissible
information
○
Emotional = e.g., told a few hours after bank robbery, a sick young woman
was his by the getaway car from the bank robbery (driver matched
defendant description too)
None actually confirm whether the defendant even did the robbery
in the first place, just elicited some emotional responses.
-
○
Pre-deliberation, no verdict differences between the two groups
○
PTP increases probability of conviction after deliberation
○
Conviction 20% higher with emotional than factual PTP
Info that had no relevance to the guilt or innocence of the
defendant was more compelling.
-
○
PTP - trial delay reduces effect of factual PTP
○
PTP-trial delay increases effect of emotional PTP
○
Instructions to ignore PTP had no effect on the effect of PTP
○
Hypothesis: PTP increases persuadability of 'acquitters' or increases
persuasiveness of 'convicters' - or both
Acquitters feel less strongly about the not-guilty verdicts.
-
Convicters feel more strongly about their guilty verdict.
-
○
-
Steblay et al (1999): meta-analysis of 23 PTP studies
Negative PTP increases probability of conviction
○
Effects greater with jury pool members than students
○
Larger effects with real PTP
○
Larger effects with murder, sexual abuse, drug cases
○
Larger effects when longer PTP - verdict delay
It might be the case that with the passage of time, your ability to
distinguish source of the information fades.
-
○
-
Ruva and Guenther (2015)
Before viewing criminal trial, mock jurors given negative or unrelated pre-
trial publicity (PTP).
○
Compared with those given unrelated crime stories, jurors given negative
PTP more likely to:
Vote guilty
-
Misremember trial testimony
-
Rate defendant as lower in credibility
-
Discuss ambiguous trial evidence in pro-prosecution manner
-
Include PTP in discussion, though instructed to ignore
Impact of PTP doesn't diminish; instruction to ignore PTP are
often ignored anyways.
□
-
○
-
Juror Decision Making
Orientation
Elect foreman: someone who will lead the group
-
Discuss procedures
-
Raise general trial issues
-
1.
Jury Deliberations
Verdict Driven
30%
-
Take poll, assess evidence for either side (argue verdicts)
-
Assumes either guilty or not guilt
-
Shortcomings: don't consider all of the evidence
-
1.
Evidence Driven
70%
-
Look at evidence (re: different verdicts), then take poll
-
2.
2.
Open Conflict
Normative Influence
Jurors keep private opinion, but vote with the group to maintain
harmony
-
Might not actually change their opinions - just agreeing with the
group
-
1.
Informational Influence
Jurors change minds based on arguments, evidence
-
2.
3.
Reconciliation
How the weighting of evidence looks mathematically?
-
There are different models for how juries reach their final decision.
-
4.
Bayesian Model
Uses mathematics to show how jurors determine probability of guilty.
-
Prior probability (Pprior)
Jurors come should come into trial with a prior probability of zero, but it
isn’t.
-
Include:
Instructions re: presumption of innocence
-
Attitudes towards justice system
-
Attitudes towards defendants
-
-
1.
New Evidence Item
E.g., witness, exhibits, arguments.
-
2.
Probability Updating
When you get the new information, it's added multiplicatively
-
Therefore, if the value ever reaches zero or one, it can never change
again.
-
But this is unreasonable
-
Once you reach certainty, you'll never change your mind.
-
3.
Conviction Criterion (P*)
Compare your final probability to the conviction of guilt criterion.
-
The criterion is beyond a reasonable doubt.
We don't know what P* is from person to person.
-
-
4.
Utility Evaluation (Ppost v P*)
Compare
-
5.
Decision6.
Algebraic Model
Initial Opinion ("Anchor")
Include:
Instructions re: presumption of innocence
§
Attitudes towards justice system
§
Attitudes towards defendants
§
-
1.
New Evidence Item
E.g., witnesses, exhibits, argument
-
2.
Opinion Adjustment Process
This time, the new evidence items are given different weights.
-
(+) weight - innocence
-
(-) weight - guilty
-
3.
Conviction Criterion (Sbyd)
How certain does their opinion of guilt or innocence have to be?
-
4.
O v Sbyd5.
Decision6.
Stochastic Model
So far, it looks like this model provides the best estimates because it accounts
for extra-evidentiary factors.
-
Initial Opinion (Xe0)
Include:
Instructions re: presumption of innocence
-
Attitudes towards justice system
-
Attitudes towards defendants
-
-
1.
Evidence:
Includes:
Witnesses
-
Exhibits
-
Arguments
-
Extra-evidentiary factors
Know that jurors, despite being told not to, still use this
information.
□
-
-
Adjust apparent weight of evidence for guilt (Xe1)
There's some randomness to this.
-
Different factors affect it (e.g., hunger, mood, state, etc.)
-
-
2.
Critical Event Occurs and Freezes opinion (Xfinal)
Similar to Bayesian model in that once the opinion reaches 1 or 0, you
cannot change the opinion.
-
The "critical event" freezes the guilt at a certain value unchangeable by
presentation of further evidence.
-
3.
Criterion for conviction (C )4.
Compares Final Opinion vs Criterion (C vs Xfinal)5.
Decision
Supposed to consider instructions re: standard of proof
-
Severity of crimes
-
Attitudes: justice system, defendants attractiveness and conduct
-
Considers extra-evidentiary factors
-
6.
Story Model
Not math
-
Argues that people want to tell a story …
Defense wants the story to show innocence.
-
Prosecution wants the story to show guilt.
-
Jurors put story together in their head.
-
-
Trial Evidence
-
Knowledge re: Similar Events
Consider the events that you have hear about or experience, consider
their outcomes.
-
-
Knowledge re: Story Structures
What makes a good story? Structure? Contents?
-
-
Construct Stories
Constructed from trial evidence, knowledge re: similar events, knowledge
re: story structures
-
You might construct multiple stories - consider which ones are plausible.
-
-
Learn Verdict Categories
Based on: instructions on law, prior ideas about crime categories
-
-
Match Accepted Story to Verdicts
Compare plausible stories with the potential verdicts
-
-
Decision
Select the verdict if the fit is good.
-
-
Story Acceptability and Credibility
Coverage - account for all evidence?
-
Coherence
Consistency?
○
Plausibility?
○
Narrative Completeness?
○
-
Uniqueness - only workable story?
-
Juror's Evaluation of Evidence
Eyewitness testimony
Only eyewitness confidence affects jurors evaluation.
○
Overall, not good at evaluating.
○
-
Hearsay evidence
Jurors good at discounting hearsay.
○
-
Confessions
Jurors assign high weight to confessions, even those obtained under
coercion
○
True even when jurors instructed to ignore, and say they did so.
○
-
Expert evidence
Jurors influenced even when concepts questionable.
○
-
Extra-Evidentiary Factors
Defendant Attractiveness:
Attractive defendants less likely to be found guilty
○
Attractive defendants receive lighter punishments
○
Punishment may vary with type of offense:
Harsher on unattractive for robbery, rape and cheating
-
Harsher on attractive for negligent homicide, swindling
-
○
-
Defendant Race:
No effect on verdicts
○
However …
Blacks harsher punishment for negligent homicide.
-
Whites harsher for white collar crimes (e.g., fraud and
embezzlement)
-
○
Maeder, Yamamoto and Saliba (2015):
Varied both defendant race (white, black, aboriginal) and physical
attractiveness for mock jurors in sexual assault trial.
-
Gender …
Female jurors not influenced by defendant attractiveness.□
Male jurors more certain if defendants guilt when victim
unattractive.
□
-
Race and attractiveness interact …
White defendant: attractive victims rated MORE responsible
than unattractive victims for assault.
□
Black defendant: attractive victims rated LESS responsible
than unattractive victims for assault.
□
Aboriginal defendant: no interaction between attractiveness
and victim responsibility.
□
-
○
-
Defendant SES:
Recall, for jurors, there's no distinct relationship between their SES and
their verdict.
○
But this is not the case for defendant SES …
○
Low SES = more convictions, harsher punishments
○
Effects small; not all studies find effects
○
-
Defendant -Juror Interactions:
Fewer guilty verdicts for defendants similar to jurors.
○
No race bias in verdicts when race is salient (pointed out, talked about) in
trial.
○
When race not salient in trial:
White jurors harsher on Black defendants
-
Black jurors more lenient on Black defendants
-
○
RE: OJ Simpson trial
○
-
Nuñez et al (2015): mock jurors viewed sentencing phase of capital murder trial, and
asked to decide sentence for defendant. Juror anger, sadness, fear assessed after
viewing:
Jurors report increased sadness, anger after viewing, but no increase in fear.
-
Increased anger - but not increased sadness - increases likelihood of death
sentence.
-
Effect moderated by importance attached to prosecution evidence and
argument.
-
Inadmissible Evidence
Evidence revealed during trial, but later ruled as inadmissible.
Jurors told to ignore it after hearing it.
○
-
Instructions to ignore ineffective, but proper instructions may work.
-
Past criminal record - not allowed, not relevant unless shows a pattern.
Increases probability of guilty verdict, especially if past crimes were
similar.
○
Jurors cannot ignore it.
○
-
Effect of inadmissible evidence depends:
More likely to be used if other evidence is weak.
○
More likely to be used in less serious crimes.
○
One reason for inadmissibility; less likely to be used if reason is not simple
legal 'technicality'.
○
-
Comprehending Judicial Instructions
Extremely important; make take up an entire day
-
Research shows that jurors don't have a good understanding of judicial
instructions.
-
Jackson (1992): surveyed all jurors in England and Wales over 2-week period.
Understanding of judge's instructions
65% -"All'
-
25% - "Most"
-
10% -"Some" or "None"
-
○
97% understood summing up
○
Most couldn't ignore inadmissible evidence - only 68% of jurors told to
disregard evidence had been able to do so.
○
-
Reifman, Gusik and Ellsworth (1992): T/F questions re: law and duties of 140
Michigan jurors.
More accurate in understanding if instructed than if not.
○
More accurate if asked for help from judge.
○
More accurate after criminal than civil jury service.
○
Criminal jurors highest mean score still at chance (47.8%).
If you correct for guessing, it's even less (~25%)
-
○
Addresses by council are no help.
○
Two jurors were lawyers - scored 70%
○
-
Young et al (2001): Questioned jurors in 48 New Zealand trials.
85% found judges instructions 'clear'
○
80% found judge's instructions 'helpful'
○
Jurors in 72% of trials misunderstood some relevant aspect of law related
to their case.
○
-
Saxton (1998): questioned judges, lawyers, and jurors.
Self-reported understanding of instructions: 97% said they understood
○
Actual understanding of instructions:
74% for criminal jurors
-
58% for civil jurors
-
○
Overestimated the extent to which they understood instructions.
○
-
Simulated Trials
Jones and Myers (1979): 62% correct, 72% correct when simplified
○
Rose and Ogloff (2001): ~ 60-70% correct
○
Diamond (1993): ~ 40% correct, ~ 68% when simplified
○
Ogloff (1998): ~ 60% not simplified
○
-
Improving Comprehension of Judicial Instructions
"Plan language" instructions
Frank & Applegate (1998): Capital case, penalty phase
50% understanding for regular
-
68% understanding for simplified
-
-
Elwork et al (1977): Negligence instructions (Michigan)
60% understanding for regular
-
81% understanding for simplified
-
-
Jones & Myers (1979): Murder/manslaughter
62% understanding for regular
-
72% understanding for simplified
-
-
Improving language helps, but not dramatically.
-
1.
Note-taking:
In Canada, at judge's discretion.
-
Concerns:
Note-takers more influential in deliberations?
-
Notes inaccurate or incomplete - focus on less important evidence?
-
Note-taking distraction on non-notetaking jurors?
-
Notes incomplete - more early, less late?
-
-
Heuer and Penrod (1988, 1994):
Found that notes were accurate and unbiased.
-
U.S. jurors took ~ 6 pages of accurate, unbiased notes per hour.
-
-
Penrod and Heuer (1997): reviewed note taking research.
Jurors can keep up with evidence
-
Note-taking not distracting to others
-
Jurors' notes are accurate record of trial
-
Jurors' notes serve as memory aid
-
Jurors' notes do not distort their view of case
-
Jurors do not overemphasize noted evidence
-
Note-takers do not have undue influence
-
-
2.
Asking questions: at judge's discretion
At the discretion of the judge, jurors are allowed to pass questions to the
judge to be asked of the witness.
-
Penrod & Heuer (1997): reviewed research
Do not ask legally inappropriate questions.
-
Jurors do not become advocates.
-
Do not draw wrong inferences from objections.
-
Questions promote understanding of facts, issues.
-
Questions do not clearly help get to truth in case.
-
Do not increase satisfaction with trial or verdict
-
-
3.
Ogloff (1998): looking to see if there was a way to improve comprehension of judicial
instructions.
500 jury eligibile individuals shown 2.5 hour trial video based on actual case,
including judge's instructions.
-
Several strategies for improving comprehension tried:
Plain language instructions
-
Juror note-taking
-
Pre- and post-trial instructions
-
Written copies of judge's instructions
-
Decision-tree jury deliberation model
-
-
None especially effective, though comprehension slightly increased by pre/post,
decision tree.
But, it's not all bad … jurors understand better in criminal trials than in
civil trials (criminal trials have more at stake)
-
Judge-Jury Agreement
Kalven and Zeisel (1966): Chicago Jury Project
75% agreement between judges and jury verdict
-
-
Saxton (1998): Wyoming
76% agreement in criminal trials
In the 25% of disagreement cases, most judges would've convicted
when the jury acquitted - leniency bias for jurors.
-
-
50% agreement in civil cases
V low
-
-
-
Young et al (2001): New Zealand
50% agreement between judge and jury.
-
-
Jurors are often very independent in their decisions.
-
Jury nullification:
This occurs when all of the facts of a criminal case have been proven
beyond a reasonable doubt and the jury still finds the defendant not
guilty.
-
E.g., Dr. Death, cases in the South where white people were hanging black
people in the streets
-
Jurors
Thursday, March 8, 2018 9:32 AM
Jury Selection
Mostly occurs in the US.
-
Jurors are questioned by defense and prosecutor to determine their beliefs,
values and ideals and to essentially identify the jurors they do/don't want in
terms of how they'd affect the case.
-
Challenges:
Preemptory challenge - removing a juror without a reason.
○
Cause - removing the juror because they know the juror, victim, judge,
etc.
○
-
Pretrial Publicity
Mainly an issue in the US because in Canada, judges are able to post a ban on
the release of information in high profile cases.
-
Concerns that this influences the beliefs of jurors.
-
Jury Decision-Making
How do jurors use evidence to come to a verdict?
Decision-making models
○
Evaluation of evidence
○
Other factors
○
-
Jury Instructions
How well are they understood?
Current research shows that jurors don't totally understand the
instructions they've been given.
○
-
Can comprehension be improved?
-
Harrisburg Seven (1972)
The Harrisburg 7 were very involved in protesting against the draft.
Burned draft cards, rallied, etc.
○
-
Administration accused them of …
Conspiracy to destroy draft board records.
○
Conspiracy to kidnap Henry Kissinger
○
Conspiracy to bomb D.C. heating tunnels
○
-
Because this was a federal issue, they chose to charge them in Harrisburg,
Pennsylvania because it's an extremely conservative area.
They were hoping that the jurors in this area would be more likely to find
them guilty.
○
-
Jay Schulman and Bruce Sails, forensic psychologists, offered to help
They told the defense who to remove from the jury.
○
-
Because of these recommendations, it ended up being a hung jury.
10 not guilty, 2 guilty
○
Those 2 people would've been removed from the jury had a few different
questions been asked.
○
-
Because it was a hung jury, the government could've opted to try them again,
but they didn't.
-
Schulman and Sails ended up creating a jury selection firm > National Jury
Project
-
National Jury Project Consulting
California v. Robert Blake (murder)
-
California v. Calvin Broadus (aka Snoop Dogg) (murder)
-
California v. Joe Hunt (aka Billionaire Boys Club; murder charges)
-
California v. Erik and Lyle Menendez (murder)
-
California v. Hootan Roozrokh, M.D. (doctor charged with hastening the death
of a patient in order to harvest organs for transplantation)
-
State of Colorado v. Kobe Bryant (rape)
-
Commonwealth of Massachusetts v. Louise Woodward ("Nanny murder" case)
-
People v. Al Mateiry (male date rape)
-
Georgia v. Jamil Al Amin (formerly H. Rap Brown; capital murder case)
-
Donald Vinson
Creator of DecisionQuest - specializes in customized trial consulting, strategic
graphics, presentation technology services and social media analysis.
-
Vinson and Company - provides services designed to help attorneys with
questions that arise during trials.
-
O.J. Simpson Case
Joe-Ellen Demetrius advised the defense on jury selection, performed surveys
Determined that black women heavily support O.J. and dislike Marcia
Clark (prosecuting attorney).
○
-
Vinson actually gave this same information to the prosecution for free, but they
did not take his advice.
-
From there, the prosecution determined that the best jurors would be …
Young
○
Blue collar
○
Black women
○
Less educated
○
Low SES
○
-
Final jury had …
1 black man
○
1 latino man
○
2 white men
○
8 black women
○
-
O.J. was tried and acquitted.
-
Civil Cases
Lots of money at stake in civil cases so it's worth the money to get a jury
consultant firm to help.
-
You'll have better odds and retain money.
-
Advantages of Jury Research
Usually starts with mock jurors and see how mock trials turns out with them -
find out a bunch of information.
-
Shows questions jurors want answered.
1.
Early identification of problems in case
2.
Indicates how jurors see the case
3.
Prepares the ground for mediation
4.
Case might not need to even go to trial.
-
Mediate settlement based on what mock jurors thought was a fair settlement
(see next point).
-
Provides realistic damage assessments.
5.
Indicates graphics needed
6.
Jury Research Often Comes Up With Racial Biases
Not very prevalent in Canada
-
Very prevalent in Southern states.
-
In US, prosecutors/judges are elected officials.
Therefore, they match voters - usually white people.
§
-
Case in Caddo Parish, Louisiana - had to throw out verdict because only 1
black person jury.
-
Bull (2016 -present)
Bull is a drama inspired by the early career of Dr. Phil McGraw, the founder of
one of the most prolific trial consulting firms of all time (Courtroom Sciences
Inc.).
-
Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he
combines psychology, human intuition and high-tech data to learn what makes
jurors, attorneys, witness and the accused tick.
-
Jury Research Methods
Mock juries1.
Presented with trial evidence beforehand; verdicts noted
-
Shadow juries2.
Sit in court each day, provide feedback to attorneys.
-
Like mock jury, but fewer individuals
-
Community surveys 3.
Identify undesirable jurors
-
Post-trial Questions4.
Illegal in Canada
-
Ask jurors after the trial how/why they came to their verdict.
-
Juror Demographics and Verdicts
Socioeconomic Status (SES)1.
Mixed results; no clear relationship
-
Education2.
Mixed results; no clear relationship
-
Age, gender3.
Mixed results; no clear relationship
-
Race-ethnicity, religion4.
Mixed results; no clear relationship
-
Note: although none of these seem to impact jury decision making, effects may
depend of the type of crime.
Juror Personality and Verdicts
Authoritarianism1.
Authoritarianism: like fascism; belief in importance of powerful individuals
where everyone should be obedient.
-
F-scale (fascism scale)
-
Right-wing Authoritarianism Scale (RWA)
# of same statement as F-scale
-
-
Authoritarianism and verdicts
More ready to convict
Bias for people in authority - so if the government has tried
someone for a crime, it must be because it was worthwhile
§
-
Better recall of prosecution than defense evidence
-
Recommend longer sentences
E.g., Donald Trump suggested death penalty for drug dealers
§
-
More punitive toward low-status defendants
Look down on people of lower status than themselves.
§
-
Effect small - large in real juries than mock juries
Expect the lab results to produce more dramatic results, but this
isn't the case - very interesting.
§
-
-
Dogmatism2.
Related to RWA - basically RWA without the prejudice
-
True of individuals who have strong beliefs that aren't necessarily supported by
the evidence; closed to alternative explanations
-
Biggest difference:
RWA is very highly correlated with prejudices.
-
But dogmatic individuals don't necessarily show these prejudices.
-
Racial, ethnic, religious prejudice is missing from these individuals …
-
Can be right wing or left.
-
-
Dogmatism and verdicts
High = more likely to convict
-
High = more punitive after conviction
-
Not all studies find this …
Inconsistency because dogmatic people show these tendencies in
only certain types of crimes, trials, people, etc.
§
-
-
Locus of Control: Internal vs External3.
Individual's tendency to believe that the outcomes of an individual's behaviour
are primarily due to their own internal factors (i.e., personality, actions, etc.) vs
being primarily due to external factors (i.e., circumstances, contexts, events,
etc.)
-
External:
E.g., In world affairs, most of us are the victims of forces we can neither
understand nor control.
-
E.g., Many of the unhappy things in people's lives are due to bad luck.
-
More left-wing
-
-
Internal:
E.g., By taking an active part in political and social affairs, the people can
control world events.
-
E.g., People's misfortunes arise from the mistakes they make.
-
More right-wing
-
-
Sosi (1974): Drunk driving case
Internals:
Recommend harsher punishments
§
View defendant as more responsible
Discounted mediating circumstances□
§
No relation between locus of control and perceived guilt
Still relied on evidence for decision of guilt or innocence, once
they've decided, then we see their bias.
□
§
-
-
Phares and Wilson (1972): Auto accident case
Internals:
Defendant more responsible, but only when actions ambiguous and
injuries high.
§
No difference when defendant clearly at fault, or injuries less
severe.
§
-
-
Just World Beliefs: High vs Low4.
Individuals high in JWBs believe everything should turn out as it should; people
get what they deserve.
-
Gerbassi et al (1977): real/mock homicide cases
High JWB:
Less favourable impression of defendant
§
Recommend harsher punishment
§
Effect stronger in women - opposite of expectation
§
-
Often see this belief demonstrated in rape cases - victim blaming
-
-
Zuckerman and Gerbassi (1975): mock rape case
High JWB:
Victim held more responsible
§
Victims of high moral character less responsible than those of
questionable moral character
§
We see this still today …
§
-
-
Juror Bias Scale
22 statements, 5-point scale.
-
Two subscales:
Probability of Commission
Bias towards seeing guilt in the defendant prior to trial.
-
E.g., "a suspect who runs from the police most probably committed
the crime."
-
E.g., "generally, the police only make an arrest when they are sure
about who committed the crime."
-
1.
Reasonable Doubt
Reasonable doubt isn't defined by law; it's up to the juror/judge to
determine it.
-
"If a majority of the evidence - but not all of it - suggests the
defendant committed the crime, then the jury should vote not
guilty." - traditional definition.
-
"Circumstantial evidence is too weak to use in court." - again,
demonstrates belief in reasonable doubt.
-
2.
-
Kassin and Wrightsman (1983):
Correlation (r = 0.30) between scale scores and verdicts (~ 10% of
variance in verdicts can be attributed to differences in the scores on
variability scales)
○
-
Penrod and Cutler (1987):
Correlation (r = 0.60) between subscale scores - what is being measured?
○
Scores on both scales are highly correlated - are they just measuring the
same thing?
○
-
Meyers and Lecci (1998):
Probability of commission scale measures two things:
Confidence in the justice system
-
Cynicism toward some aspect of the justice system
-
○
How can you separate the two? What do you want to get at?
○
-
Pretrial Publicity (PTP)
Widely known that PTP has a negative effect.
-
Studies now ask - what is it about PTP that has an effect? What kind of PTP has
an effect?
-
Imrich et al (1995):
Survey 14 US papers over 8-weeks for crime stories
○
Rates the extent to which these stories were negatively prejudicial
towards the defendant.
○
27% of stories prejudicial to defendant; negative because it's typically
prosecutors and police leaking the information
○
Most about character, presumed guilt
○
-
Tans and Chafee (1966): mock trials
Looking at the kinds of things in PTP that might impact jurors.
○
Crime seriousness
○
Favourable/unfavourable DA statements
○
Defendant held or released
○
More of these negative elements of PTP = higher probability of guilt
verdict
○
-
Kramer, Kerr and Carrol (1990)
Compared factual vs emotional PTP with or without delay (~ 12 days)
before trial.
○
Factual = actually dealt with elements of the crime, or inadmissible
information
○
Emotional = e.g., told a few hours after bank robbery, a sick young woman
was his by the getaway car from the bank robbery (driver matched
defendant description too)
None actually confirm whether the defendant even did the robbery
in the first place, just elicited some emotional responses.
-
○
Pre-deliberation, no verdict differences between the two groups
○
PTP increases probability of conviction after deliberation
○
Conviction 20% higher with emotional than factual PTP
Info that had no relevance to the guilt or innocence of the
defendant was more compelling.
-
○
PTP - trial delay reduces effect of factual PTP
○
PTP-trial delay increases effect of emotional PTP
○
Instructions to ignore PTP had no effect on the effect of PTP
○
Hypothesis: PTP increases persuadability of 'acquitters' or increases
persuasiveness of 'convicters' - or both
Acquitters feel less strongly about the not-guilty verdicts.
-
Convicters feel more strongly about their guilty verdict.
-
○
-
Steblay et al (1999): meta-analysis of 23 PTP studies
Negative PTP increases probability of conviction
○
Effects greater with jury pool members than students
○
Larger effects with real PTP
○
Larger effects with murder, sexual abuse, drug cases
○
Larger effects when longer PTP - verdict delay
It might be the case that with the passage of time, your ability to
distinguish source of the information fades.
-
○
-
Ruva and Guenther (2015)
Before viewing criminal trial, mock jurors given negative or unrelated pre-
trial publicity (PTP).
○
Compared with those given unrelated crime stories, jurors given negative
PTP more likely to:
Vote guilty
-
Misremember trial testimony
-
Rate defendant as lower in credibility
-
Discuss ambiguous trial evidence in pro-prosecution manner
-
Include PTP in discussion, though instructed to ignore
Impact of PTP doesn't diminish; instruction to ignore PTP are
often ignored anyways.
□
-
○
-
Juror Decision Making
Orientation
Elect foreman: someone who will lead the group
-
Discuss procedures
-
Raise general trial issues
-
1.
Jury Deliberations
Verdict Driven
30%
-
Take poll, assess evidence for either side (argue verdicts)
-
Assumes either guilty or not guilt
-
Shortcomings: don't consider all of the evidence
-
1.
Evidence Driven
70%
-
Look at evidence (re: different verdicts), then take poll
-
2.
2.
Open Conflict
Normative Influence
Jurors keep private opinion, but vote with the group to maintain
harmony
-
Might not actually change their opinions - just agreeing with the
group
-
1.
Informational Influence
Jurors change minds based on arguments, evidence
-
2.
3.
Reconciliation
How the weighting of evidence looks mathematically?
-
There are different models for how juries reach their final decision.
-
4.
Bayesian Model
Uses mathematics to show how jurors determine probability of guilty.
-
Prior probability (Pprior)
Jurors come should come into trial with a prior probability of zero, but it
isn’t.
-
Include:
Instructions re: presumption of innocence
-
Attitudes towards justice system
-
Attitudes towards defendants
-
-
1.
New Evidence Item
E.g., witness, exhibits, arguments.
-
2.
Probability Updating
When you get the new information, it's added multiplicatively
-
Therefore, if the value ever reaches zero or one, it can never change
again.
-
But this is unreasonable
-
Once you reach certainty, you'll never change your mind.
-
3.
Conviction Criterion (P*)
Compare your final probability to the conviction of guilt criterion.
-
The criterion is beyond a reasonable doubt.
We don't know what P* is from person to person.
-
-
4.
Utility Evaluation (Ppost v P*)
Compare
-
5.
Decision6.
Algebraic Model
Initial Opinion ("Anchor")
Include:
Instructions re: presumption of innocence
§
Attitudes towards justice system
§
Attitudes towards defendants
§
-
1.
New Evidence Item
E.g., witnesses, exhibits, argument
-
2.
Opinion Adjustment Process
This time, the new evidence items are given different weights.
-
(+) weight - innocence
-
(-) weight - guilty
-
3.
Conviction Criterion (Sbyd)
How certain does their opinion of guilt or innocence have to be?
-
4.
O v Sbyd5.
Decision6.
Stochastic Model
So far, it looks like this model provides the best estimates because it accounts
for extra-evidentiary factors.
-
Initial Opinion (Xe0)
Include:
Instructions re: presumption of innocence
-
Attitudes towards justice system
-
Attitudes towards defendants
-
-
1.
Evidence:
Includes:
Witnesses
-
Exhibits
-
Arguments
-
Extra-evidentiary factors
Know that jurors, despite being told not to, still use this
information.
□
-
-
Adjust apparent weight of evidence for guilt (Xe1)
There's some randomness to this.
-
Different factors affect it (e.g., hunger, mood, state, etc.)
-
-
2.
Critical Event Occurs and Freezes opinion (Xfinal)
Similar to Bayesian model in that once the opinion reaches 1 or 0, you
cannot change the opinion.
-
The "critical event" freezes the guilt at a certain value unchangeable by
presentation of further evidence.
-
3.
Criterion for conviction (C )4.
Compares Final Opinion vs Criterion (C vs Xfinal)5.
Decision
Supposed to consider instructions re: standard of proof
-
Severity of crimes
-
Attitudes: justice system, defendants attractiveness and conduct
-
Considers extra-evidentiary factors
-
6.
Story Model
Not math
-
Argues that people want to tell a story …
Defense wants the story to show innocence.
-
Prosecution wants the story to show guilt.
-
Jurors put story together in their head.
-
-
Trial Evidence
-
Knowledge re: Similar Events
Consider the events that you have hear about or experience, consider
their outcomes.
-
-
Knowledge re: Story Structures
What makes a good story? Structure? Contents?
-
-
Construct Stories
Constructed from trial evidence, knowledge re: similar events, knowledge
re: story structures
-
You might construct multiple stories - consider which ones are plausible.
-
-
Learn Verdict Categories
Based on: instructions on law, prior ideas about crime categories
-
-
Match Accepted Story to Verdicts
Compare plausible stories with the potential verdicts
-
-
Decision
Select the verdict if the fit is good.
-
-
Story Acceptability and Credibility
Coverage - account for all evidence?
-
Coherence
Consistency?
○
Plausibility?
○
Narrative Completeness?
○
-
Uniqueness - only workable story?
-
Juror's Evaluation of Evidence
Eyewitness testimony
Only eyewitness confidence affects jurors evaluation.
○
Overall, not good at evaluating.
○
-
Hearsay evidence
Jurors good at discounting hearsay.
○
-
Confessions
Jurors assign high weight to confessions, even those obtained under
coercion
○
True even when jurors instructed to ignore, and say they did so.
○
-
Expert evidence
Jurors influenced even when concepts questionable.
○
-
Extra-Evidentiary Factors
Defendant Attractiveness:
Attractive defendants less likely to be found guilty
○
Attractive defendants receive lighter punishments
○
Punishment may vary with type of offense:
Harsher on unattractive for robbery, rape and cheating
-
Harsher on attractive for negligent homicide, swindling
-
○
-
Defendant Race:
No effect on verdicts
○
However …
Blacks harsher punishment for negligent homicide.
-
Whites harsher for white collar crimes (e.g., fraud and
embezzlement)
-
○
Maeder, Yamamoto and Saliba (2015):
Varied both defendant race (white, black, aboriginal) and physical
attractiveness for mock jurors in sexual assault trial.
-
Gender …
Female jurors not influenced by defendant attractiveness.□
Male jurors more certain if defendants guilt when victim
unattractive.
□
-
Race and attractiveness interact …
White defendant: attractive victims rated MORE responsible
than unattractive victims for assault.
□
Black defendant: attractive victims rated LESS responsible
than unattractive victims for assault.
□
Aboriginal defendant: no interaction between attractiveness
and victim responsibility.
□
-
○
-
Defendant SES:
Recall, for jurors, there's no distinct relationship between their SES and
their verdict.
○
But this is not the case for defendant SES …
○
Low SES = more convictions, harsher punishments
○
Effects small; not all studies find effects
○
-
Defendant -Juror Interactions:
Fewer guilty verdicts for defendants similar to jurors.
○
No race bias in verdicts when race is salient (pointed out, talked about) in
trial.
○
When race not salient in trial:
White jurors harsher on Black defendants
-
Black jurors more lenient on Black defendants
-
○
RE: OJ Simpson trial
○
-
Nuñez et al (2015): mock jurors viewed sentencing phase of capital murder trial, and
asked to decide sentence for defendant. Juror anger, sadness, fear assessed after
viewing:
Jurors report increased sadness, anger after viewing, but no increase in fear.
-
Increased anger - but not increased sadness - increases likelihood of death
sentence.
-
Effect moderated by importance attached to prosecution evidence and
argument.
-
Inadmissible Evidence
Evidence revealed during trial, but later ruled as inadmissible.
Jurors told to ignore it after hearing it.
○
-
Instructions to ignore ineffective, but proper instructions may work.
-
Past criminal record - not allowed, not relevant unless shows a pattern.
Increases probability of guilty verdict, especially if past crimes were
similar.
○
Jurors cannot ignore it.
○
-
Effect of inadmissible evidence depends:
More likely to be used if other evidence is weak.
○
More likely to be used in less serious crimes.
○
One reason for inadmissibility; less likely to be used if reason is not simple
legal 'technicality'.
○
-
Comprehending Judicial Instructions
Extremely important; make take up an entire day
-
Research shows that jurors don't have a good understanding of judicial
instructions.
-
Jackson (1992): surveyed all jurors in England and Wales over 2-week period.
Understanding of judge's instructions
65% -"All'
-
25% - "Most"
-
10% -"Some" or "None"
-
○
97% understood summing up
○
Most couldn't ignore inadmissible evidence - only 68% of jurors told to
disregard evidence had been able to do so.
○
-
Reifman, Gusik and Ellsworth (1992): T/F questions re: law and duties of 140
Michigan jurors.
More accurate in understanding if instructed than if not.
○
More accurate if asked for help from judge.
○
More accurate after criminal than civil jury service.
○
Criminal jurors highest mean score still at chance (47.8%).
If you correct for guessing, it's even less (~25%)
-
○
Addresses by council are no help.
○
Two jurors were lawyers - scored 70%
○
-
Young et al (2001): Questioned jurors in 48 New Zealand trials.
85% found judges instructions 'clear'
○
80% found judge's instructions 'helpful'
○
Jurors in 72% of trials misunderstood some relevant aspect of law related
to their case.
○
-
Saxton (1998): questioned judges, lawyers, and jurors.
Self-reported understanding of instructions: 97% said they understood
○
Actual understanding of instructions:
74% for criminal jurors
-
58% for civil jurors
-
○
Overestimated the extent to which they understood instructions.
○
-
Simulated Trials
Jones and Myers (1979): 62% correct, 72% correct when simplified
○
Rose and Ogloff (2001): ~ 60-70% correct
○
Diamond (1993): ~ 40% correct, ~ 68% when simplified
○
Ogloff (1998): ~ 60% not simplified
○
-
Improving Comprehension of Judicial Instructions
"Plan language" instructions
Frank & Applegate (1998): Capital case, penalty phase
50% understanding for regular
-
68% understanding for simplified
-
-
Elwork et al (1977): Negligence instructions (Michigan)
60% understanding for regular
-
81% understanding for simplified
-
-
Jones & Myers (1979): Murder/manslaughter
62% understanding for regular
-
72% understanding for simplified
-
-
Improving language helps, but not dramatically.
-
1.
Note-taking:
In Canada, at judge's discretion.
-
Concerns:
Note-takers more influential in deliberations?
-
Notes inaccurate or incomplete - focus on less important evidence?
-
Note-taking distraction on non-notetaking jurors?
-
Notes incomplete - more early, less late?
-
-
Heuer and Penrod (1988, 1994):
Found that notes were accurate and unbiased.
-
U.S. jurors took ~ 6 pages of accurate, unbiased notes per hour.
-
-
Penrod and Heuer (1997): reviewed note taking research.
Jurors can keep up with evidence
-
Note-taking not distracting to others
-
Jurors' notes are accurate record of trial
-
Jurors' notes serve as memory aid
-
Jurors' notes do not distort their view of case
-
Jurors do not overemphasize noted evidence
-
Note-takers do not have undue influence
-
-
2.
Asking questions: at judge's discretion
At the discretion of the judge, jurors are allowed to pass questions to the
judge to be asked of the witness.
-
Penrod & Heuer (1997): reviewed research
Do not ask legally inappropriate questions.
-
Jurors do not become advocates.
-
Do not draw wrong inferences from objections.
-
Questions promote understanding of facts, issues.
-
Questions do not clearly help get to truth in case.
-
Do not increase satisfaction with trial or verdict
-
-
3.
Ogloff (1998): looking to see if there was a way to improve comprehension of judicial
instructions.
500 jury eligibile individuals shown 2.5 hour trial video based on actual case,
including judge's instructions.
-
Several strategies for improving comprehension tried:
Plain language instructions
-
Juror note-taking
-
Pre- and post-trial instructions
-
Written copies of judge's instructions
-
Decision-tree jury deliberation model
-
-
None especially effective, though comprehension slightly increased by pre/post,
decision tree.
But, it's not all bad … jurors understand better in criminal trials than in
civil trials (criminal trials have more at stake)
-
Judge-Jury Agreement
Kalven and Zeisel (1966): Chicago Jury Project
75% agreement between judges and jury verdict
-
-
Saxton (1998): Wyoming
76% agreement in criminal trials
In the 25% of disagreement cases, most judges would've convicted
when the jury acquitted - leniency bias for jurors.
-
-
50% agreement in civil cases
V low
-
-
-
Young et al (2001): New Zealand
50% agreement between judge and jury.
-
-
Jurors are often very independent in their decisions.
-
Jury nullification:
This occurs when all of the facts of a criminal case have been proven
beyond a reasonable doubt and the jury still finds the defendant not
guilty.
-
E.g., Dr. Death, cases in the South where white people were hanging black
people in the streets
-
Jurors
Thursday, March 8, 2018 9:32 AM
Document Summary
Jurors are questioned by defense and prosecutor to determine their beliefs, values and ideals and to essentially identify the jurors they do/don"t want in terms of how they"d affect the case. Preemptory challenge - removing a juror without a reason. Cause - removing the juror because they know the juror, victim, judge, etc. Mainly an issue in the us because in canada, judges are able to post a ban on the release of information in high profile cases. Concerns that this influences the beliefs of jurors. Current research shows that jurors don"t totally understand the instructions they"ve been given. The harrisburg 7 were very involved in protesting against the draft. Because this was a federal issue, they chose to charge them in harrisburg, They were hoping that the jurors in this area would be more likely to find them guilty. Jay schulman and bruce sails, forensic psychologists, offered to help. They told the defense who to remove from the jury.
