PSY328H5 Lecture Notes - Impulsivity, Headache, Interpol

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10 Apr 2014
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Jury Selection and the Challenge for Cause
Jury Functions
1. To use the wisdom of 12 to reach a verdict
-Notion of having regular community members who stand to make decisions of
whether the accused is guilty or not or liable or not
-Notion that 12 is a nice number and representative of those in the community
-There is use of random selection to ensure that the jury is not biased, since a biased
jury would not be representative
-However, want to pick people who do not have knowledge, interests, etc. in the
particular case
-Most cases are decided by the judge alone, but serious cases include juries in order to
avoid systematic bias – take decision-making out of the hands of a single person and
distribute the decision-making to more people
-However, both sides (defense and prosecution) are attempting to have jurors who are
biased towards their side take part. Consequently, don’t get jurors who are neutral, but
rather a split jury who are believed by the legal system to cancel each other out
2. To act as the conscience of the community
3. To protect against out of date laws
-Morgentaler: performed abortions when it was illegal, and it admitted it as well; jury
did not convict him TWICE which lead to a change in the laws around abortion –
struck down by the Supreme Court
4. To increase knowledge of the justice system
-It is a duty as a citizen to be called for jury duty
-Young people and students are rarely called though
Empanelling a Fair Jury – involves 2 things:
1. Representativeness
-Want jury to be representative of the community, but this is undermined by the way
people are chosen for jury duty
-Voter registration and enumeration lists; consensus; bias for age (older); homeowners
-Gender, race, socio-economic status?
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-Those with low SES are less likely to own a home, vote, etc. and thus less likely to be
called for jury duty
2. Impartiality
-Want people who are impartial
-Must not be biased, or if biased they must be able to set aside any bias and decide the
case on the evidence presented at trial alone
-We are all biased by our religion, culture, SES, upbringing, etc. and it is not
something we have conscious control over
-Legal fallacy
-Social psychology: not realistic for a person to actually put bias aside, even if they
say they can
Jury Selection – Canada vs. USA
-In Canada, most cases are judged without a jury
oMost are lower court cases, where there are no indictable or hybrid offences
oIn indictable/hybrid offences, you have a choice to have a jury
oMost people choose to have a jury EXCEPT drug, child molestation or
anything involving children, gang-related cases, etc. where people will have
biases against charge not defendant in particular
oAlthough we go by innocent until proven guilty, people generally feel that the
accused did it if a child is involved
oPeople feel a judge would be more fair without emotional aspect, despite other
legal workers believe judges are less lenient than jurors
oSummary conviction offences
-In Canada, there is a presumption that jurors are not biased and can be impartial
oCanadian bias that people are impartial.
-In the US, there is a presumption that jurors are inherently biased and must be
challenged
oIn the USA the presumption is opposite, and needs to be challenged.
oTo make a challenge in Canada is tough
-In Canada, jurors do not make decisions regarding sentencing (except making
recommendations regarding parole eligibility in murder cases)
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oIn many states, jurors make sentencing recommendations – not the case in
Canada except in the Faint Hope Clause (which is not used or applied very
often).
-In the US, there are long and personal challenges done by the lawyers and adjudicated
by the trial judge often involving jury consultants
oLawyers ask questions to potential jurors but judge makes decision of whether
person is biased or not – can challenge but judge does have this discretion
oTrial or aka jury consultants are a big business in USA – jury selection process
oAlthough there are people who help in Canada as well, it is not much of a
business since it is more limited
oUSA: can ask any questions they want, give out jury questionnaires
(empirically and psychologically validated).
oIn the OJ Simpson case, asked questions like income/salary, personal
questions, if they have been a victim of domestic violence or know someone,
if they ever had a run in with the law, etc. which are not directly related to jury
selection, but latitude given in states allows them to collect as much
information as possible.
-In Canada, the only information available to the lawyers is name, address, occupation,
demeanor and physical appearance (when you see them)
oIn Canada jury selection is a 3 hour process, and a challenge can turn it into
some days; much longer in US.
Trial Consultation
-Jury Selection
-Witness Preparation
oCan make suggestions about how to answer questions
oHow one should dress (look business-like or student-like)
oMake decisions based on research, including focus groups
Run mock trial, then ask jurors what they thought
Take notes from them and make decisions about how witness should
present self and answer, and whether accused should testify or not
-Theory of the case
oCan help decide whether insanity or self-defense should be claimed
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