Jury Decision Making
Canada VS US: from lecture 5
• In Canada, most cases are judged without a jury
• In Canada, there is a presumption that jurors are not biased and can
• In the US there is a presumption that jurors are inherently biased and must
• In US, because of the system/rules, they are assumed to be biased -
information that may bias jury people can effect them because of rules
• In Canada, jurors do not make decisions regarding sentencing - except
sometimes for 2nd degree murder, they can suggest it
Challenge for Cause
• Legal mechanism in place to challenge jurors as to whether they would
be impartial with respect to a particular issue
• Particular issues: racial bias, sexual orientation, religion, anything that has
an air of reality of prejudice within the community
• Has to be proved to the judge or they won't allow challenge for cause
• Once its been proven once, you don't have to prove it again because
of stare decisis - precedence
• Must establish a reasonable inference of potential bias in the population
• Its in the community where the trial is taking place
• Judge decides whether a challenge is warranted and has final approval of
any questions to be put to the jury
• Defendant is_______, and you as their lawyer think that there's an air of
reality that there's potential bias and you ask for challenge for cause and
you give judge results from questionnaire that shows prejudice and the
judge doesn't prove it then defendant will definitely appeal!
R v. Williams: native defendant, not allowed challenge for cause - appealed and
other judge allowed it
Canada and USA Challenge for Cause - pretrial
• In the US, there are long and personal challenges done by the lawyers
and adjudicated by the trial judge often involving jury consultants
• Can ask huge questionnaires
• OJ Simpson Void' ire's lasted 8 months
• In Canada, the only information available to the lawyers is name,
address, occupation, demeanor and physical appearance
• Our isn't really a pretrial, its just a screening
• Simplicity vs efficiency Challenge for cause
• Jurors themselves responsible for decision as to whether the potential juror
is biased in Canada
• Other peers in the jury panel determine bias - regulating yourself -
make it more salient
• (Whereas it's the judge in American system) - person of authority
Challenge for cause
• Allowed on grounds of pretrial publicity
• Usually may be an adjournment, change of venue, but its along
the lines of "have you heard about this case"
• Sexual orientation
• HIV status
• Mental Disability
• Drug involvement
• Political or moral attitudes
• Police credibility
• Race or minority group status
-what are the biases - if there are biases are you able to tell me about it?
-even if not prejudice, you can talk about it - people feel uncomfortable
sometimes - there is stigma
• R. v. Parks (1993) - goes along really well with social psychology
• Its not just if the prejudice is there, but do you have the ability to ignore it or
• Ability to ignore:
• personal reasons
• external motivations - 2 biggest motivations: correct and looked upon
as good by our peers
• Partiality has TWO components:
R. v. Parks (1993), 24 C.R (4 ) 81
• Air of reality
• Ontario Court of Appeals took judicial notice that . . ."there is a realistic
possibility that a juror will be influenced in the performance of his or her judicial
duty on the basis of racial bias"
• Supreme Court of Canada reiterates this precedent in R. v. Williams (1998) Challenge for Cause
• Select first two "triers"
• On the basis of the potential juror's answer to the challenge for cause
question(s), the trier decides whether the potential juror is acceptable or
unacceptable to sit on the upcoming trial
• 2 people randomly selected, asked if biased or not, and are selected
to be triers
• 2 triers, judge, lawyers, audience
• potential juror asked question by lawyer, and 2 triers deliberate and
say if they allow them or not
• triers will not be jurors in the trial
• then 1St trier leaves, 2nd trier and 1St jury member are now the 2
deliberators for the new person that comes in to be deliberated on
• lawyer can use preemptory challenge - triers can agree or disagree
• Legally, having a bias does not necessarily indicate you are partial
• Or impartial
• There are 2 components to impartiality - attitude and behaviour
• Problem: people want to look good in front of this huge audience -
motivation to be liked and not look bad in front of peers
• Doesn't actually matter if they're lying or not, because they're
saying it to not look bad - they will try really hard to decide the
case only on the evidence at hand - bias disappears
Swearing in Triers - don't need to know the quotes for exam;
"Do you swear that the evidence to be given by you to this court shall be the truth,
the whole truth, and nothing but the truth, so help you God?"
"Do you swear that you will well and truly try whether one of the jurors stands
acceptable or unacceptable to try the accused, and a true verdict give according
to the evidence, so help you God?"
Call first potential juror: 2 potential triers sitting there
Challenge Potential Juror
"Do you swear that the evidence to be given by you to this court and triers sworn
in this challenge shall be the truth, the whole truth, and nothing but the truth, so
help you God?"
R. v. Parks: The Challenge for Cause Question
" As the presiding judge will tell you, in deciding whether or not the prosecution has
proven the charges against the accused beyond a reasonable doubt, a juror must
judge the evidence of the witnesses without bias, prejudice, or partiality (preamble).
Would your ability to judge the evidence in this case without bias, prejudice, or
partiality, be affected in any way by the fact that the accused is Black? (actual
−are you prejudice and can you not be?
−asking you point blank - very salient − very small amount of people who are high in prejudice don't care about
− most people who are biased, will act non biased, because they don't want to
-American system VERY different, long and less obvious questions
"Triers, how do you find?"
• Peremptory Challenges* for any reason, they don't have to say why, I don't
want that juror
• We're trying to get rid of bias but lawyers can remove jurors
• Skewing the jury
• We don't know if they are such a good idea
• Skewing the jury to make them act in an impartial way - good to have
a mix of high and low prejudice people to cancel each other out
• May cause jury to be a bit skewed - less so than the states though
• If acceptable, trier #1 rejoins jury pool and can be called as a juror still.
• Not for this trial, but for some other trial
• The challenged juror becomes the next trier.
• The 1st juror becomes the next trier
• Swear in juror #1.
• Swear in triers again.
• All the way until we have 12 people
• Every single time the swearing in process happens every time
• If triers find juror unacceptable or if either lawyer uses a peremptory
challenge, the juror is excused back to the jury office.
• This challenged juror is free to be called for another jury pool later on.
• Usually if you're not on a jury within 5ish days, you're usually let go
Challenge for Cause
R. v. Koh (1998)
-the process not only removes jurors who are forthright about the prejudices, it
sensitizes the remaining jurors about their duty to be impartial
-what does this sound like -* Fazio's MODE model - dual process model
-idea of your beliefs and endorsements of these beliefs
-if you endorse and know it as well - that's prejudice
-getting rid of people who endorse it
MODE model FAZIO
Slide 174 NOTES IN SLIDES FOR THIS
Characteristics of the Jury
A Jury of One's Peers
2) Impartiality Canada's most famous partial juror
-the case: murder trial
-if bail granted, you're walking around
-not sequestered until you get to deliberation
-both were wandering around
• Peter Gill and 5 others charged with 2 gang style killings in 1995
• Gillian Guess was one of the 12 jurors
• Ran into each other outside the courtroom
• Began flirting in court
• Led to sexual relationship
• All while still serving as a Juror! Strong armed all other jurors to find him not
guilty and everyone else guilty
• Set legal precedents
• First case of juror with sexual relations
• Only case where a juror faced criminal sanction
• Only case in Canadian law where jury room discussions made
part of public record!
-what about double jeopardy - loophole! He's not being charged for the same crime
because the 1St trial legally did not exist - because of the obstruction charges, the 1st
trial's judgment is thrown out - tried again as if not tried again
How does bias work?
"The essential feature of attitude is a preparation or readiness for response...not
behaviour, but the precondition of behaviour.
• Prejudice can lead to bias
• The behaviour element is called discrimination
• Stereotype, prejudice and bias are different things
• Just because you have bias doesn't mean you'll be discriminatory So in
out-group attitudes, bias (which can be caused by stereotypes or prejudices) is the
precondition for discrimination.
-attitude is the precondition for discrimination which is a behaviour
Not so long ago
• In 1958, Mr. Loving, a tall bricklayer from Virginia, married the love of his
life, Miss Jeter, in Washington, D.C.
• He was white. She was black.
• Mixed-race marriages were illegal in their home state of Virginia, just as they
were in many states in the South.
• When they returned home, she was arrested.
Discrimination because it's a behaviour - he did not get arrested - stems from bias
which stems from prejudice
Types of Bias
• Individual Discrimination − Racist feelings and discriminatory behaviours exhibited by an
individual- against an individual just because they're part of an out-group
• Institutional Discrimination
− Refers to discriminatory practices and policies in large institutions
(e.g. legal system, universities).
Discrimination going on and the courts agree with you
Examples include Apartheid in South Africa and the segregation laws
(separate schools for whites and blacks) in the United States during
the first half of the 20th century.
− Inequalities based solely on group membership
Institution Bias Still Here?
• Institutional bias is, to a large extent, no longer a major problem in
Canada because it is illegal.
• Section 15.1 of the Canadian Charter of Rights and Freedoms states: "Every
individual is equal before and under the law and has the right