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Lecture 7


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Stuart Kamenetsky

LECTURE 7 • CONTINUING FROM LECTURE 6 • Alfini & Sales,1982 • Were able to improve juror comprehension of judicial instructions by modifying the language (psycholinguistic theory) • Improve juror comprehension, if you just modify the language that you are using - don't have to use crazy language that doesn't make sense to anyone - just explain what you mean • There has been an attempt to simplify language used by judges in Canada (no studies) Models of jury decision making -knowing how people think can predict how they behave -can always prime to think a certain way -juries may use 1 of2 models to figure out verdict 1. Mathematical model (explanation-based) "mental" calculations are performed by jurors to weigh the strength of each piece of information and compare it to a decisional criteria for guilt. • Here's this part of the story, and add up all the negative things in and all the positive things, and if its higher than 0 it means they're innocent, if less than 0 that means its negative for them so guilty 2. The Story Model Pentington & Hastie (1986) - tested this The jurors engage in active comprehensive processes to organize and interpret evidence into a coherent whole or narrative story structure. • Probably more likely what people do • You start creating a story - they give you enough pieces to put together, as more and more evidence goes does this evidence fit what the defense or crown is saying • When the pieces all go together, there is usually only 1 story that fits all the puzzle pieces Jurors try to find the best fit between the story constructed and the verdict categories provided by the judge. Pentington & Hastie, 1988 Varied how trial evidence was presented, either witness by witness or in chronological, event based order. The easier it was to construct a story the more likely a verdict consistent with that story would be rendered. • They would have equal strength from the crown and defense, one would use story and one would use mathematical and the story model would win each way Jury Deliberations -different from individual juror deliberations -potential verdict may change when you start talking about it • Sequestering juries • Most final group verdicts reflect the initial verdict opinion majority - "majority rules" • Group Polarization • Leniency Bias • Normative vs. Informational influences • 12 member juries • Unanimous decisions Deliberations • A 12 person jury needed in Canada • However, can continue with no more than 2 members excused - 10 members • Number of Factors can contribute to decision making process • Need unanimous verdicts, or it's a mistrial or continue deliberations • In the states it depends on jurisdictions Polarization Effect (factor that contribute to decision making process) • individuals become more extreme in their initial position following a group discussion • originally, you're 70% sure they're guilty, then you deliberate and everyone else says guilty, you become 100% sure • even if not everyone agrees at the start, but at the end they do, you'll still have this effect Leniency Effect • Jurors move towards greater leniency • In most mock trials, when juror verdicts are split 50/50 a jury leans towards not guilty - air on the cautionary side • There is a rule than says you're not supposed to convict unless beyond a shadow of a doubt • In Kramer et al., ? • One exception to this: emotional inadmissible evidence - sway jurors to say guilty instead of not guilty • If you're not sure, you have to say not guilty - that's the rule Personality Traits • Those higher in authoritarianism have pro-prosecution bias • Other personality factors: prejudice, right wing, any kind of bias could sway people one way or another Demographic Variables • attractiveness, race, SES, education: people have stigmas against these groups • depending on how you relate to defendant could have interesting effects • Attractiveness • Meta analysis by Mazzella and Feingold (1994) • Physical/social attractiveness • Found that 1 of the greatest advantages you can have is being attractive on the stand - nice suit and tie, shaved, hair done, look presentable • Halo effect - attractiveness is good = good people aren't criminals • If attractive found guilty they will get a lesser sentence! • One case where attractiveness is not good -* if the crime is related to attractiveness - swindling crime - lose their looks to rob an old lady = more guilty! • Race - generic bias • Doesn't have too much of a direct effect nowadays • However there's an effect on sentence sometimes • Indirectly can have an effect if the witness is black vs. white - witness isn't believed sometimes - indirect prejudice • SES, education, gender, income • Disadvantage - why are you poor? Not hard working? • Usually lower SES is a disadvantage • What is the basic underlying (third variable effect) 3 whether the juror is also one of these things, and how strong the evidence is against this person which leads to the black sheep effect 3 • Similarity Principle Black Sheep Effect • When evidence is weak or ambiguous, similarity between defendant and juror can lead to leniency • If the evidence isn't very strong, not guilty - if similar, its extreme - in group member that people are trying to punish, so bending over backwards • If evidence is strong, someone just like you, more punishment - how can you prove you're not just like them by having overwhelming confidence in guilt! - want to distance self from them - they're not like me! Expert testimony • Use a gender that is stereotypically suitable for the crime • i.e. male crime 3 male expert - men are believed more because they must know something about that • self defense/battered women 3 female expert will be believed more Does Size Matter? • Canada requires a 12 member jury • USA can have as little as 6 • But does it really matter? YES! In contrast to 12 member juries • 6-member juries are less representative • Recall fewer aspects of the evidence • Spend less time deliberating - as a defendant want them to deliberate as much as possible because 1. Not sure = leniency effect, and if you are found guilty wouldn't you much rather have them deliberate for much longer • Less likely to declare themselves "hung" • Easier to sway with fewer members Sentencing, Parole and Psychology The Canadian System -overarching themes are what's important!!!! -know a few details about the overall theme • Sentencing: the judicial determination of a legal sanction upon a person convicted of an offense • You're convicted, you get punished, what's your punishment = your sentence • Crime = most common are summary offences, not indictable offences • Bill C-41 (1996) • Most comprehensive reform of the law of sentencing in Canadian history • Created 718 of the Criminal Code of Canada - the purposes and principles The Fundamental purpose • "of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of the following objectives:" • this is the fundamental purpose: 1 of 6 ways to do this: Reasons for Sentencing, Purposes − 1. to denounce unlawful conduct; don't do bad stuff − 2. to deter the offender and other persons from committing offences; general and specific deterrents - punished so you wont commit the same crime, and punishment so wont commit crimes in general 3. to separate offenders from society, where necessary; least restrictive facility - only if we have to! If can do some other thing to not put them in jail, it's the better option in the Canadian system because want to reintegrate people in society 4. to assist in rehabilitating offenders; 5. to provide reparations for harm done to victims or to the community; and 6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community; feel bad about it! Accept responsibility for what you did i.e. feel bad for it! • Phillion: didn't commit the crime and never felt bad for it and kept denying it when in front of parole board so they wouldn't let him go Problems? -WHICH ONE OF THE 6 DO YOU PICK? HOW DO YOU KNOW? -Sometimes you can do all, sometimes you can chose, depends! -judges can consider more than one goal, sometimes goals are incompatible -if it's a murder, you'll have to separate from society -problems need to be thought about when thinking about principles of sentencing • Sentencing Disparity Any difference in severity between the sentence that an offender receives from one judge on a particular occasion and what an identical offender with the identical crime would receive from either the same judge on a different occasion or a different judge on the same or different occasion If I'm a judge, and you come in front of me, you've committed a crime because of a situation in a situation and I give you 3 years Then I'm the same judge, and someone different comes in front of the, and they've got the exact same situation and stuff, and I give them 12 years, that's not fair - why would the judge do that Judges can be jaded by previous stuff! 2nd example - judge #1 gives 3 years, judge #2 gives 10 years - not fair either • Single most important problem with sentencing in Canada 2 Different Sources of Sentencing Disparity • Extra-legal factors from two major sources: can't use this − Systematic disparity − Unsystematic disparity Systematic disparity • Refers to consistent disagreement among judges about sentencing • Could stem from personality, philosophy, experience Unsystematic disparity • Refers to a given judge's inconsistency over occasions in judging similar cases • Could stem from mood, focusing on irrelevant stimuli • Evidence at hand needs to be the only thing!!! Not irrelevant stimuli McFatter (1986) & SENTENCING DISPARITY • Participants were 6 judges • 13 crime scenarios • Rated various aspects of crime • How severe the crime, sentence should be? • Returned two months later and repeated the procedure • Given a vignette • Best mock jury studies would try to mimic a real life case as much as possible • Offenders age, drug use, record • Looked at seriousness and recommended a sentence Results: • 1. good deal of agreement about severity of crime • pretty much all the judges agreed on severity • consistently handed down lenient for minor and harsh for more severe crimes • 2. However sentencing disparity! • mid range crimes ranged from probation to 25 years in prison • middle crimes is where we saw a lot of disparity • 3. Due to UNSYSTEMATIC DISPARITY (1 judge's inconsistency) • more so in time 2 than time 1 The Fundamental Principle know this • section 718.1 A of the Criminal Code "A sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender." - How serious is the offence & the degree of responsibility of the offender - certain factors to think about Big difference between Canada and US in general: the states does do this, and Canada doesn't always do this - the rule is how serious was the offence, who's the person who committed it - in the states its how serious is the offence In Canada its how serious and who did it! (repeat offender?) Sentencing Principles KNOW THESE 5 principles • 718.2 A court that imposes a sentence shall also take into consideration the following principles: • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender • this is considered 2 - mitigating/aggravating • Mitigating circumstance lower sentence • a circumstance that doesn't exonerate the person, but which reduces the penalty associated with the offence • Convicted of a crime, doesn't make it so their not guilty but makes it so they have a lesser sentence • Examples: • Confession, 1st time offence • aggravating circumstances: higher sentence • (i) evidence that the offence was motivated by bias, prejudice or hate b
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