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PSY328H1 (64)


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University of Toronto St. George
William Huggon

Juries (6)  Used very rarely in Canada for only the most serious offences;  Only 1/3 of all charges are dealt with at trial, most are plead out; those that do proceed to trial, there is a choice between judge alone and a jury trial  Juries render a verdict, deciding which “reality” is true (crown vs. defence); sometimes asked to decide on a sentence, as well (2 degree murder – jury recommends when the defendant will be eligible for parole)  Juries are made of people; although decisions should not consider inadmissible evidence, they sometimes do; o Opening statements from lawyers may also be persuasive for elements other than their evidence  12 jurors, must come to unanimous verdict (CANADA); can only use facts of the case and laws provided by judge  Allows for the community to have their say, demonstrate conscience of community; symbolic significance; jury nullification is an important part of the law (legally guilty, but found not guilty)  Some jurisdictions in the US allow for 6-member juries; smaller juries are less likely to be “hung” (greater pressure of dissenting members) o Recall less evidence and are less representative of the community Mathematical Model:  Explanation based; mental calculation of the value of each piece of evidence and decide based on the summation of the evidence Story Model: (Pentington & Hastie)  Organise and interpret evidence to create a complete narrative; ex. Opening statements provide the edge pieces of the puzzle, and the evidence provides other pieces, but they have to fit the bigger picture  Vary presentation of evidence; used pieces that could be fit (a) the prosecutor’s story, (b) the defence’s story, or (c) both stories; asked to conclude a verdict; given surprise memory task; those rendering guilty verdicts performed better on the memory task and included items not originally in the task, but were inferred from the trial task o Order of presentation – the easier it is for the jury to construct a story, more likely the verdict will be consistent with that story  Defendants are more satisfied with the system (even if they go to jail) if they perceive fairness in the trial; R. v. Sherratt (1991): Characteristics of the jury  Representativeness: voter registration, enumeration lists, etc.; gender, race, SES? o Randomly selected; will not have all groups represented, but because it’s random, will be representative of the community as a whole o Public servants and lawyers are exempt  Impartiality: must be unbiased or able to set aside bias to decide case based on evidence alone o The jury is meaningless if they are not impartial; o R. v. Parks (1993) – two components of impartiality: attitudinal (prejudice) and behavioural (discrimination) o Presumption of impartiality: assume jury will follow their oath to only listen to the evidence with an open mind and decide the case fairly; Canada CC s649 – discussing deliberation is illegal  Extra-legal biases: encoding and combining information based on perception of the world and personal experience; can influence juries at any point during the trial process o Expectations – assumptions of the defendant; o Belief perseverance o Perception – what is being focused on o May ignore evidence that does not support pre-existing beliefs/attitudes Attitude to Behaviour Process (Fazio):  Lack of experience with the attitude object leads to employing heuristics;  Selectively attend to information that confirms/conforms to the heuristic;  Social norms can influence definitions of the situation and, therefore, the event; social norms are the trump card for attitudes Polarization Effect: Attitudes become more extreme following a group discussion; Leniency Effect: When jury is relatively evenly split, juries lean towards not guilty  Authoritarian personality traits have higher pro-prosecution bias;  The attractiveness (i.e. how well the defendant is dressed) can influence jury perception; Halo effect – attractive people are assumed to only do good things (except in cases of fraud or where attractiveness is used to commit the crime)  Lower SES at a disadvantage due to stereotypes and inability to obtain adequate counsel; similarity principle (if the jury can find similarities between the defendant and themselves, they may favour the defendant) o Black Sheep Effect: if evidence is ambiguous/weak, can lead to leniency (jury feels their group is being persecuted); if evidence is strong, can lead to greater punishment (jury members distance themselves from the defendant)  Gender biases exist regarding expert testimony, as well – male experts on murder are believed more; if the crime is stereotypical, the same-gendered expert is believed more  Only situation where CCC s.649 was ignored – R. v. Gilles – sexual relationship between defendant and jury member Sources of Bias:  Interest bias – direct interest/stake in the trial (e.g. relationship to a player in the trial); decision based on this interest, rather than evidence  Specific bias – base decision on information/attitude generated before the trial (e.g. pre-existing beliefs/attitudes, pre-trial publicity, etc.) o Kramer, Kerr & Carroll (1990) – negative pretrial publicity can bias the jury, especially if it includes emotional evidence o Factual non-admissible evidence – incriminating evidence that is inadmissible due to faulty police procedure o Emotional non-admissible evidence – unrelated to the case, but related to the defendant o If the judge doesn’t give reason for disregarding the evidence/information, it is difficult for the jury to do so o Boomerang/Backfire Effect – telling jury to disregard evidence makes them pay more attention to it o If the admissible evidence is strong, it is easier to disregard inadmissible evidence; less serious crime tends to make inadmissible evidence have a greater impact  Normative bias – community sentiment, beliefs, and norms rather than evidence  Generic bias – racism, sexism, etc.; verdict based on group membership, rather than evidence Remedies for Bias:  Publication bans – pretrial cannot be published until jury is selected;  Adjournment – rarely used; delay of trial (+ reduces impact of prejudicial information; - can forget other evidence, and emotional information may stick)  Change of Venue – if there is a probability of prejudice/partiality within the community;  Challenge for Cause – challenge jurors’ impartiality regarding specific issue; judge decides (a) whether the challenge is warranted, and (b) what questions can be asked  R. v. Parks – realistic probability of racial bias influencing performance as juror Sentencing (7) Purposes and Principles:  Fundamental principle – contribute to respect for the law and maintenance of a just, peaceful, and safe society o Denounce o Deter (specific and general) o Incapacitation (least restrictive possible) o Rehabilitation o Reparation o Promote a sense of responsibility in offenders  Sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender  Aggravating/mitigating circumstances: Factors that should increase or reduce the sentence; ex. Repeat offender versus first-time offender o Aggravating includes prejudice, abuse of position (e.g. teacher abusing student)  Sentence should be similar for similar offenders committing offences under similar circumstances (sentence consistency); notion of legal precedence o Sentence disparity = difference in severity of sentences among identical (similar) offenders; within judgments or among judges  Extra-legal factors contribute to SD; systematic disparity (disagreement among judges) and unsystematic disparity (inconsistency among decisions of the same judge across similar cases)  Consecutive sentences should not be unduly harsh/long  Deprivation of liberty must be as less restrictive as possible  If possible, all other possible sentences should be considered before imprisonment Possible Sentences:  Absolute/Conditional Discharge: o Priority is public safety, but must be in the best interest of the offender so long as public interest is not violated o Cannot be applied to offences carrying minimum sentences o Conditional = certain rules must be followed for a specified length of time; upon completion, the discharge becomes absolute o Absolute discharge means no conviction, but may be found guilty  Probation o Mandatory conditions – keep peace/good behaviour, appear before court when required, and notify court/PO of any change of name, address, employment/occupation o Stiff penalties for probation breaches; probation violation carries a sentence of up to 2 years in addition to the original sentence  Restitution o Financial restitution; cannot be applied to “pain and suffering” through criminal courts  Fines/Community Service o Fines are most frequently used sentence; o If fine is not paid, potential imprisonment (e.g. $5000 = 2 years); can work for community service (at the rate of minimum wage) to pay off  Conditional Sentence o Sentence served in the community; similar to conditional discharge, only carries a conviction (i.e. criminal record) o Alternative for offenders whose sentence is less than 2 years and is not a public threat o Violation of CS may result in imprisonment for the remainder of the sentence;  Intermittent Imprisonment o Only for sentence of less than 90 days; court specifies times when term will be served; o Must comply with conditions set in a probation order when not serving o Example: Small business owner, if imprisonment would mean the business is shut down and employees lose their jobs  Imprisonment o <2 years = provincial prison; >2 years = federal penitentiary  Long Term Offenders and Dangerous Offenders (split into sexual and nonsexual offenders) may receive more severe sentences  LTO – appropriate sentence of >2years; substantial risk of recidivism; reasonable possibility of risk to community o Receives sentence plus 10 years of supervision  DO – consistutes a danger to life, safety or physical/mental well being of others; subject to sentence of >10 years; o Pattern of unrestrained behaviour that is likely to cause danger o Pattern of aggressive behaviour with indifference to consequences of behaviour o Behaviour that is of such a brutal nature that it can be inferred that the offender’s future behaviour is unlikely to be inhibited by normal restraint Violence and Risk Assessment (8) Parole:  Continued supervision after release; must be eligible based on guidelines set by the National Parole Board;  Possible after 1/3 of sentence or 7 years (whichever comes first)  #1 priority of NPB decisions: Protection of society – both long and short term o Short term – undue risk to society o Long term – help the offender return to the community as a law-abiding citizen o Consider all available information o Offenders are given access to information regarding the decision, as they can reapply at a later date  Policies are different depending on type of offender: o Category 1 – serious offences, usually involving violence o Category 2 – less serious offenders  Primary Risk Assessment includes the categorization of offenders o Details of offence, criminal history, social problems, mental status, performance on earlier releases, relationships and employment o Probability of recidivism  Secondary Risk Assessment o Psychological/psychiatric assessments; opinions of professionals regarding risk to society o Information from victims o Treatment received o Understanding of seriousness and effects of the offence o Release plan shows control/support, realistic, and confirmed Risk Assessment: Identifies those likely to commit violence and develop interventions to reduce risk  Critical function: Violence prevention, not behaviour prediction  Evaluation includes characterisation of likelihood and interventions to reduce that likelihood Defining Violence:  Physical vs psychological  Actual harm vs intent  Instrumental vs reactive  Sexual vs non-sexual Dangerousness Risk Assessment Case by case Empirical data Vague Specific Stable trait (no empirical Changes over time evidence that it exists) Predicts violence Prevents violence Risk Factors: Static and Dynamic  Dispositional: (Static) o Reflect style o Gender (90% of violent crime committed by men o Age – inversely related to risk (aging out; theoretically related to impulse control o Psychopathy  Historical: (Static) o Previous antisocial/criminal behaviour o Conditional release, parole, and probation violation (already re-offended) o Delinquency (maladaptation to society) o Dysfunctional family environment (maladaptation to society) o Childhood physical/sexual abuse (may lead to cycle of abuse) o Age of onset (impulse control)  Contextual: (Dynamic) o Unemployment and lack of intimate relationships (maladaptation to society) o Access to weapons  Clinical: o Mental illness – schizophrenia and mania (usually a reducing factor, with the exception of some mental illnesses) o Substance abuse (impulse control)  Risk for sexual deviance: o Previous sexual deviance (paraphilias) o Sexual preference for children  #1 Risk of Violence: Psychopathy Types of Parole:  Temporary Absence: o First-time offenders are usually granted this, particularly if offence was minor o Can be escorted or unescorted o Designed for substance abuse programs, counselling, and technical training  Day Parole: o For participation in community-based activities o Must return at the end of the day o Performance used in full parole review  Full Parole: o Serve remainder of sentence in the community with supervision o Usually must have been granted and successfully completed temporary absences or day parole  Statutory Release: o Mandatory release after 2/3 of sentence; must follow conditions similar to probation and conditional release o Not qualified if have a life sentence  Those who have successfully completed all types of parole are less likely to reoffend than those who are granted mandatory release Risk Assessment and the Psychopath (9) Approaches to Risk Assessment:  Unstructured Clinical Judgement (outdated) o Professional discretion; lack of guidelines; lacks consistency o Before 1966, assumed professionals could assess risk well; no standard start point for assessment o Opinion based; basically guess work; assumption of professional expertise o Dr. James Grigson – charismatic, but unprofessional, even testifying about defendants he did not examine;  Randall Adams – sentenced to death based on having “sociopathic personality disorder”; later exonerated by DNA o Baxtrom detained beyond sentence expiry (R. v. Swain)  Similar to flipping a coin in the courtroom  Longitudinal study – need longer than 3-5 years  Poor definition of variables (i.e. “arrested for violence” does not define what “violence” is) o Steadman & Cocozza – followed 98 deemed too dangerous for release, only 20 were re-arrested, 7 of those were for violent offences o Thornberry & Jacoby – followed 400 deemed too dangerous for release, only 60 were re-arrested or hospitalised for a violent offence  Actuarial Prediction (opposite of UCJ) o Type of mechanical prediction; combination of pre-specified risk factors with a mathematical model o VRAG – 12 items, not equally weighted o Moved almost immediately to a modified version  Structured Professional Judgement (combination of first two) o Focuses on individuals and main causal factors; o Has flexibility o Independently scored by different psychiatrists  VRAG = Violence Risk Appraisal Guide o Positive score increases risk, negative score decreases risk; o Intact home is worth less than non-intact families o 1-3 = low risk; 4-6 = moderate risk; 7-9 = high risk; o For parole, those that score on the cusp on the categories are assessed for where the scores came from o SORAG = VRAG for sexual offences  Low base rate problem – because sample sizes are so small, base rates are very low o Low base rates lead to higher false positives (predicted not to reoffend, but do) Defining Psychopathy:  Dynamic definition, changing over time;  APD is vague and catches too many people; APD = lower level psychopaths o APD applies more to sociopaths; still has some conscience – score highly on the Hare PCL-R, but not high enough to be a full-blown psychopath; may not have all the genetic factors  DSM focuses on behaviour; affective and interpersonal features are important to describing psychopaths  Social maladaptation – psychopaths have anti-society orientation (understand society and can navigate within it); those that are maladapted don’t understand it  Genetic predisposition + abuse = psychopath; can have the genetic predisposition, but without the abuse, psychopathy doesn’t come to fruition (James Fallon) o Amygdala is over sensitive o Brain lesions;  Increased risk
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