PSY328H5 Lecture Notes - Lecture 6: Peremptory Challenge, Confirmation Bias, Penrod

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15 Feb 2018

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Jury Selection and the Challenge for Cause
Jury Functions
1. To use the wisdom of 12 to reach a verdict
2. To act as the conscience of the community
3. To protect against out of date laws
4. To increase knowledge of the justice system
Empanelling a Fair Jury
1) Representativeness
a. Voter registration and enumeration lists
i. Certain people are much more likely to vote than others (young people less likely to vote,
certain ethnicities are less likely to vote)
b. Gender, race, SES
2) Impartiality
a. Must not be biased (towards defendant or particular crime), or if biased they must be able to set
aside any bias and decide the case on the evidence presented at trial alone
Jury Selection Canada vs. USA
In Canada, most cases are judged without a jury
o Most cases are summary offences
o Most hybrid offences are mostly judged with a judge alone
o Even not all indictable offences are judged with a jury
The defendant has a choice to go to trial with judge alone or judge/jury
In Canada, there is a presumption that jurors are not biased and can be impartial
In the US there is a presumption that jurors are inherently biased and must be challenged
o They think you should challenge everyone because everyone is inherently biased
o Should take the time to make sure they don’t have these types of biases
In Canada, jurors do not make decisions regarding sentencing (except making recommendations
regarding parole eligibility in murder 2 cases)
In the US, there are long and personal challenges done by the lawyers and adjudicated by the trial judge
often involving jury consultants
o Canada’s jury selection is a lot faster because we assume people are impartial
o Voire dire and challenge for cause happens every time there’s a criminal proceeding where
there’s a jury, so it takes a really long time
In Canada, the only information available to the lawyers is name, address, occupation, demeanor and
physical appearance
Trial Consultation
Jury Selection
Witness preparation
Theory of the case
Cross examination techniques
Impact of pretrial publicity
Expert Testimony
Jury Selection
Mock trials
Focus groups
Questionnaire packages
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Data analysis
Voire dire (challenge for cause)
Effectiveness of Trial Consultants?
Olczak, Kaplan, & Penrod, (1991) in a challenge for cause, lawyers no better at detecting bias than
Videotape: lawyers performed worse than chance at detecting biased jurors
Moran, Cutler, & DeLisa (1994) trial consultation may account for 10-15% of variance and may be
marginally effective in equivocal cases
Sources of Bias
1) Interest bias
a. Anyone who has any interest in the trial/has anything to do with the trial in any way
b. Ex. A witness, connection to a defendant, connection to court staff, the judge, arresting officers,
c. The remedy you use for this is bringing the jury pool in and reading out the names of every
person involved in the case, and if anybody knows any of the people on the list, they are
d. Each side gets 12 peremptory challenges can exclude for no reason
2) Specific bias
a. You have info that is specific to the case a friend told you, you heard through the grapevine,
through the media
b. When people have been exposed to information, even if they weren’t paying attention, it creates
a schema that will begin to filter information and leads to confirmation bias
3) Normative bias
a. Based on what most people think
b. Community beliefs
c. Not necessarily about the accused person, it’s more about the crime in general
4) Generic bias
a. Most common type of bias
b. Any group that people can have a bias for/against such that they can’t hear the evidence is a fair
and impartial manner
c. Challenge for cause is used most for this type of bias
i. Racial bias, drug bias
Jurors are polled at the beginning of jury selection to ensure they have no connection to the case, or
know or have a relationship with anyone who has a connection with the case.
Remedies for Bias
Publication bans
o Quite rare because they are only for the highest priority cases
o Rare because it violates a section of the Charter
o In the US, they sequester the jury
Often they are allowed to go home on the weekends but are told they can’t watch the
news or anything, so it’s very unrealistic
o In the Bernardo case, there was a publication ban
Didn’t work because people could get TV signal from the US, and the internet was
available so people could get a lot of information about the case
o Robert Pickton case is an example of a successful publication ban
o Can’t try the case now because there is too much pretrial publicity, people won’t be impartial, so
they move the trial to a different date
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