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PSYC*3020 Unit 8.doc

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University of Guelph
PSYC 3020
Dan Yarmey

Unit 8: The Trial Process Introduction - the trial is considered the central and most visible component of the criminal justice system - the typical scenario is: first the crime is committed, leading to an arrest by the police, a formal accusation is made, or the charges may be dropped - at the preliminary inquiry, the judge will decide whether there is enough evidence against the accused to go to trial - if there is, the individual with his or her attorney may decide to plea bargain, which means plead guilty as part of a deal negotiated by his or her lawyer, or decide to have a trial - at trial the defendant will be either acquitted and free to go or found guilty - if guilty, sentencing decisions are made by the trial judge - the guilty person may be sent to jail, be fined, put of probation, or given an alternative sentence Media Pretrial Publicity - a critical issue facing the courts is whether pretrial news reports and television coverage prejudice potentials jurors’ opinions - the more information prospective jurors have available about a case the more likely they are to assume that the accused is guilty, even when they claim to be impartial - most information about the defendant(s) in an impeding case is released by the police or from the prosecutor’s office which puts the accused in a negative light Read 8.1 in Course Reader 8.1: The Effects of Pretrial Publicity on Juror Verdicts: A Meta- Analytic Review - The effect of pretrial publicity (PTP) on juror verdicts was examined - In support of the hypothesis, subjects exposed to negative PTP were significantly more likely to judge the defendant guilty compared to subjects exposed to less or no negative PTP. - Greater effect sizes were produced in studies which included a pretrial verdict assessment, use of the potential juror pool as subjects, multiple points o f negative information included in the PTP, real PTP, crimes of murder, sexual abuse, or drugs, and greater length of time between PTP exposure and judgment. - In legal cases that achieve community- or nationwide notoriety, the attendant publicity is often massive - In such cases, two constitutional guarantees-the First Amend- ment right of freedom of the press and the Sixth Amendment right to a fair trial-often collide. - The question of whether pretrial publicity (PTP) about criminal cases has an effect on the ultimate outcome of the resulting trial may appear to be a 20th century phenomenon, but it actually has a long history. - Of course, the crux of the long-standing controversy about PTP effects is not merely that a potential juror possesses information about the case. - Instead, the question is whether the PTP will affect that juror's consideration of evidence and ultimate decision in the case he or she is selected to hear - Currently, courts at- tempt to gauge the likelihood that PTP has violated a defendant's rights and to apply appropriate judicial remedies to ameliorate a problem. - Over the past 30 years, empirical studies have also attempted to determine whether PTP affects juror verdicts - As other scholars have noted, laboratory studies have been criticized for lack of external validity, while naturalistic studies of real jurors and cases have not been able to link directly PTP prejudgment effects with final juror verdicts - What is common among the studies is the hypothesis that jurors exposed to negative pretrial publicity will produce higher percentages of guilty verdicts than jurors exposed to more neutral PTP. - Fortunately, the review technique of meta-analysis provides the means to de- fine, from a broader data base than the individual study, the presence or absence and magnitude of a PTP effect. - The purpose of meta-analysis is to identify any underlying pattern across studies, damping the noise of extraneous error components among individual studies - Thus, the goals of this meta-analysis are (a) to determine the effect, if any, of negative pretrial publicity upon jurors' judgments of defendant guilt, (b) if such an effect occurs, to identify the conditions under which the PTP effect is most likely to occur, (c) to examine the impact of methodological variations in the re- search, and (d) to identify areas for future research. Discussion PTPEffects -The data support the hypothesis that negative pretrial publicity significantly affects jurors' decisions about the culpability of the defendant. -Jurors exposed to publicity which presents negative information about the defendant and crime are more likely to judge the defendant as guilty than are jurors exposed to limited PTP. -Nonsupportive findings in past individual studies may have been due in part to the manner in which the independent and/or dependent variables were operationalized. -The data set addresses PTP effects on juror judgments at three points in the decision process. Of particular importance in change of venue motions is the jurors' prejudgment of the defendant at pretrial; the data show the greatest PTP effect at this point in time. -The second point of measurement (posttrial but before·jury deliberation) still revealed a significant impact of PTP, though with a reduced effect size. The third and final point- the final and postdeliberation ver- dict-is the ultimate issue in any case. Here, the data support the existence of continued PTP effects at this crucial time. -residents who recall greater amounts of PTP information are also more likely to prejudge the defendant as culpable for the crime compared to those residents who recall lesser amounts of information. The importance of this finding derives from its naturalistic research setting, which generates confidence that PTP has a noted effect on opinions in the real environment in which court cases are decided. LegalandPolicyImplications - the important question now is what might be done to safeguard the rights of a defendant in a case where documented negative PTP appears to be a significant problem. -The data in this project have not addressed directly the remediation of PTP effects; the few data sets available here suggest that proposed remedies of brief continuance of the case, expanded voir dire, judicial instruction, trial evidence, or jury deliberation do not provide an effective balance against the weight of PTP. -PTP effects survive attempts at jury selection, continuance, judicial instruction, trial evidence and jury deliberation -Change of venue and foreign venue thus appear to be the most logical solutions given appropriate cases, as they are both designed to avoid the use of jurors who have been exposed to problematic levels of PTP. However, judges have been resistant to grant- ing venue changes, no doubt due to the expense and inconvenience of moving a trial or importing jurors. UnderlyingMechanisms:AProposalforFurtherResearch -The negative impact of PTP is assumed to stem from PTP-generated juror beliefs. Elements of negative publicity retained over time become a basis for a later judgment of defendant culpability. The pretrial assessment of juror verdict tests most directly for juror beliefs stemming from PTP, uncomplicated by trial information or jury deliberation. Based on the data, we know that at this point in time PTP effects are strongest. -The components of PTP most strongly associated with guilty verdicts square reasonably well with established principles of persuasion and memory - Multiple indicators of a defendant's "guilt" (confession, prior record, incriminating evidence) produced an increased effect on juror judgments of guilt, perhaps due to the more comprehensive and convincing nature of the information -It is also possible that memory prompts from other content elements in the real-life news clips, such as the mention of locations or names familiar to the message recipient, helped to maintain memory -It is likewise reasonable to assume that distinctive information provided by specific, versus general, PTP is more easily retrieved when the juror is asked to consider a specific defendant -Thus, the moderator variables emerging from this meta-analysis are consistent with basic principles of social cognition. These PTP characteristics provide a context for a juror to encode and retain an image of a culpable defendant. -A further elaboration of how PTP and memory interact is provided by a line of recent work on the "story model" -This model provides a context for understanding the persistence of PTP effects, suggesting that negative publicity provides not just isolated fragments of information, but a belief framework about defendant culpability. This biased schema then directs the juror's attention and provides a filter through which subsequent evidence is perceived -Finally, the story model approach provides a vehicle to reflect on PTP remedies. PTP- induced schemas may have potent elements which conflict with those dictated by law and which are highly resistant to instructions to forget or ignore them Back to Course Manual - pretrial publicity is of concern because it often reveals information about the defendant which would not be allowed into trial - also, it shapes opinions of potential jurors before they hear trial evidence - Canada weighs the rights of the abused to a fair trial as more important than the right of free speech - very different in the US - opportunities for media publicity to have more biasing effects are greater in the US - e.g. compare the publicity in the O.J. Simpson case to the Paul Bernardo and Karla Homolka case - when pretrial media effects can be demonstrated to be prejudicial, the courts may be forced to postpone the trial, or move the case to another, presumably less informed, community (change of venue) - in the Bernardo case, the trial was moved from St.Catharines to Toronto Read Textbook Chapter 7 pg. 175-200 Chapter 7: Juries: Fact Finders - in Canada, the courts deal with both civil and criminal cases - criminal cases are those in which an act was allegedly committed as found in the Criminal Code of Canada - civil cases are those that involve a breach of contract or other claims of harm - the process, jury selection and decision rules for civil cases are different from criminal cases - civil cases can have fewer jurors (6-8) compared to criminal (12) - verdicts do not necessarily have to be unanimous in civil trials Jury Selection in Canada - differs by province, territory and county but there are commonalities TheCasesHeardbyJuries - in some cases defendants are given the option of a jury trial - there are 3 types of offences in Canada: (1) summary offences, (2) indictable offences, and (3) hybrid offences - summary offences involve a sentence of less than 6 months in prison and a fine of less than $2000, these are tried by judge alone, the defendant does not have a right to trial by jury - there are 3 categories of indictable offences: 1. Less serious indictable offences are heard by the judge sitting alone, these include theft, obtaining money or property by false pretences and failure to comply with a probation order 2. Highly serious indictable offences must be tried by judge and jury, these include treason, murder, and piracy, if the attorney general and the accused agree, the trial can proceed without a jury and the judge alone tries the case 3. For some indictable offences, the accused can choose whether the trial proceeds by the judge and jury or judge alone, there are indictable offences not listed such as robbery, arson, and sexual assault with a weapon - hybrid offences are a cross between indictable offences and summary offences, these are offences for which the maximum sentence is five or more years in prison if they proceed by indictment - if the Crown proceeds summarily, the max penalty is 6 months JurySelection JuriesAct- provincial and territorial legislation that outlines the eligibility criteria for jury service and how prospective jurors must be selected - differences in edibility across jurisdictions may include the minimum age to be a juror and the professions that keep individuals exempt from jury duty JurySummons- a court order that states a time and place to go for jury duty - receiving a jury summons does not guarantee that you will be a juror, it means that you are expected to show up prepared to be a juror - if you ignore a summons you may receive a fine or jail time - criminal trials have 12 person juries - if you are selected, you will be a juror unless one of the lawyers presented a challenge - there are 2 types of challenges lawyers can use to reject a potential jurors: (1) peremptory challenge and (2) challenge for cause - Crown and defence are allowed a limited number of peremptory challenges - they can use a challenge to reject jurors they believe are unlikely to reach a verdict in their favor, they do not need to provide reason for rejecting the juror - when using a challenge for cause, the lawyer must give a reason for rejecting the prospective juror - keep in mind lawyers have very limited information about prospective jurors CharacteristicsandResponsibilitiesofJuriesinCanada - there are 2 fundamental characteristics of juries: 1. Representativeness- composition that represent the community in which the crime occurred - any eligible person has the opportunity to be part of the jury - achieved through randomness 2. Impartiality - a lack of bias on the part of jurors, centers on three issues: (a) the juror must set aside any pre-existing biases, prejudices or attitudes and judge the case based solely on the admissible evidence (b) the juror must ignore any information that is not part of the admissible evidence (c) the juror has no connection to the defendant - media attention is a threat to impartiality Keeping Potential Jurors Impartial - before the case goes to trial, a preliminary hearing occurs in which the Crown presents the evidence against the defendant, here it is determined whether there is sufficient evidence for the case to proceed to trial - at this preliminary hearing, the judge typically places a ban on the media’s reporting of the evidence - details do get leaked in high-profile cases - 3 methods for increasing the likelihood of an impartial jury are: 1. ChangeofVenue- moving a trial to a community other than the one in which the crime occurred, there may be bias in the local community because of publicity, a heinous crime, and a small community in which many people know the victim/defendant - this is not granted often 2. Adjournment- delaying the trial until sometime in the future, allowing the biasing effect of any pretrial prejudicial information to be dissipated, major limitation of this is that not only can prospective jurors’ memories fade, so might those of the witnesses, this is very uncommon 3. ChallengeforCause- an option to reject biased jurors, must demonstrate reasonably partiality in the community, changes how the jury is selected - first, two individual are selected from the jury pool and are sworn to act as triers - a third person is selected as a prospective juror, the judge and lawyers question the prospective juror while the two triers listen to the answers provided - the triers then discuss the answers with each other to teach a unanimous decision as to whether the prospective juror is impartial - of the person is found to be impartial, then that person becomes the first member of the jury and replaces one of the triers - there are 3 issues to consider when evaluating the effectiveness of challenge for cause: (1) the process may be conducted in open court, where the jury pool can hear the questions the lawyers ask and the answers provided, they can hear answers that lead to positive or negative decisions and alter their answers according to whether they want to serve on the jury (2) prospective jurors may find it difficult to be honest when answering questions about bias that may put them in an unflattering light, and (3) prospective jurors must be aware of their biases and how their biases may influence their behaviour JuryFunctions - the main legal function of a jury is to apply the law, as provided by the judge, to the admissible evidence in the case and to render a verdict of guilt or innocence - there are 4 others jury functions: (1) to use the wisdom of 12 (rather than the wisdom of 1) to reach a verdict, (2) to act as the conscience of the community, (3) to protect against out-of-date laws, and (4) to increase knowledge about the justice system Ignoring the Law - the jury has a responsibility to apply the law as defined by the judge to the admissible evidence and to render a verdict JuryNullification- when the jury ignores the law and the evidence, rendering a verdict based on some other criteria, typically can occur when the case involves controversial issues such as abortion and euthanasia - juries may choose to ignore the law for a number of reasons e.g. they may believe the law is unfair given the circumstances of the case or the punishment accompanying a conviction is too harsh for the crime - nullification instructions may influence jury decision making producing both socially favourably (sympathetic) and socially unfavourably (prejudicial) verdicts How Do We Study Juror and Jury Behaviour? - there are 4 methodologies that have been used to gain understanding of juror and jury behaviour 1. Post-trialInterviews - actual Canadian jurors are not allowed to discuss what occurred in deliberations - can turn to the US or other countries who do not have this rule - main strength of this is high external validity - results may be more likely to generalize to the real world - weaknesses are that the jurors’ accounts may not be reliable, may recall details inaccurately, may forget critical aspects, may embellish or downplay elements - a cause-and-effect relationship cannot be established 2. Archives - records of trials can be reviewed - the strength of this is similar to post-trial interviews in that external validity is high - a similar weakness is the inability to establish cause-and-effect relationships - the researcher is also restricted to the data available in that the types of questions - unaware of how the information was collected and the reliability of it 3. Simulation - one of the most common methodologies - one of the major strengths is high internal validity, can reveal cause-and-effect - the control over the independent variables limits the external validity - participants are typically university students, may not be representative 4. FieldStudies - using actual jurors while they are serving on jury duty - the strength is high external validity - limitations are receiving approval from courts may be difficult, samples will likely be small and appropriate comparison groups may be too difficult - also can’t control for all confounding variables Reaching a Verdict - once the lawyers deliver their closing arguments, the judge provides the jury with the law that the must apply to the evidence to reach a verdict, then the jury makes its Deliberation- they discuss the evidence privately among themselves to reach a verdict that is then provided to the court ListeningtotheEvidence - 2 innovations have been proposed as aids for jurors while they listen to the evidence: 1. Note-Taking - may facilitate memory and understanding of the evidence, may be more attentive - disadvantages are they may exert influence when in deliberation, and if disagreements occur about the evidence, jurors will rely on those who took notes to clarify - research found that allowing jurors to take notes does not appear to pose major difficulties but does not have a significant impact on a juror’s memory 2. AskingQuestions - typically jurors don’t have many questions and they tend to be concerned with the meaning of key legal terms - research found that allowing jurors to ask questions does not appear to indicate that jurors’ questions are particularly harmful or helpful TheCSIEffect - jurors are more likely to convict a suspect if the procedures and techniques from television are use in real life DisregardingInadmissibleEvidence - often juries will hear inadmissible evidence when lawyers or witnesses make statements that are not allowed according to legal procedure - the judge tells the jury to disregard it - jurors will disregard the evidence when they are provided with a logical and legitimate reason for the judge’s decision to disregard it - some researchers have found that a judge’s instruction to disregard evidence simply makes the evidence more memorable - the backfire effect Judge’sInstructions - research has found that jurors do not remember, understand or accurately apply juges’ instructions - prospective jurors understood less than 50% of instructions - 4 reforms for judges’ instructions have been proposed: (1) rewriting instructions, (2) providing a written copy of the instructions to jurors, (3) providing jurors with pre and post-evidence instructions and (4) having lawyers clarify legal instruction during their presentation to the jury JuryDecision-MakingModels - 2 categories: 1. MathematicalModels- view jurors as conducting a set of mental calculations regarding the importance and strength of each piece of evidence - research has found that a mathematical approach was inconsistent with how jurors report that they reach verdicts - it may be difficult to partition evidence into discrete pieces of evidence that can be assigned a value 2. ExplanationModels- suggest that evidence is organized into a coherent whole e.g. the story model where jurors are active at understanding and processing the evidence, they elaborate and make causal connections creating a story structure, these story structures are then compared with each verdict option presented by the judge - jurors listening to the same evidence may construct different stories that are consistent with alternative verdicts - research has supported this model, finding that participants put evidence into a story format and different stories were related to different verdicts Deliberations - the jury is sequestered until the final verdict is reached, the jury is not allowed to talk to anyone outside of their 12 person panel Polarization- when individuals tend to become more extreme in their initial position following a group discussion LeniencyBias- when jurors move toward greater leniency during deliberations TheFinalVerdict HungJury- a jury that cannot reach a unanimous verdict, a mistrial is declared - in general, when a first verdict poll is taken, the final verdict tends to be consistent wiht the first poll in about 90% of cases - if 7 or fewer votes guilty, the jury will tend to render a not guilty verdict - if 10 or more jurors initially vote guilty, the final verdict will likely by guilty - if 8 or 9 initially vote guilty, the final verdict is unpredictable - there are 2 broad styles that juries tend to adopt when trying to reach a verdict: 1. VerdictDriven- tend to start the deliberation process by taking an initial verdict poll 2. EvidenceDriven- tend to start the deliberation process by discussing the evidence Predicting Verdicts - 6 types of variables have been studies: demographic variables, personality traits, attitudes, defendant characteristics, victim characteristics and expert testimony DemographicVariables - gender, race, socioeconomic status, and education of jurors RacialBias- the disparate treatment of racial out-groups - there is a small significant effect of racial bias, more likely to render guilty verdict and longer sentences for other-race defendants - when a defendant’s race was made salient, white juror bias toward a black defendant was reduced BlackSheepEffect- when evidence is strong, similarity between defendant and jury leads to punitiveness - in a study, black defendants who looked more stereotypical were more likely to be sentenced to death when there was a white victim - when predicting verdicts, only a small and inconsistent relation exists between juror demographic variables and jury verdicts PersonalityTraits - 2 traits have commonly been measured: authoritarianism and dogmatism - individuals high in authoritarianism tend to have right-wing political views and are conservative and rigid thinkers - individuals high in dogmatism also tend to be rigid and close-minded but without the political overtones found with authoritarianism - research found a moderate, positive relationship between authoritarianism and verdict such that those who score high on these traits tend to be more include to render guilty verdicts - prosecution bias - jurors who are extroverted and had high moral reasoning were found to be more persuasive - participants high in conscientiousness were more likely to be persuaded - participants high on openness were least likely to be persuaded - high levels of extroversion were more persuasive - being male wielded more influence than being female - taller extroverted male were even more persuasive than extroverted shorter males - personality traits seem more reliable for predicting verdicts that demographics Attitudes - in a study on rape myths, females often did not believe the defendant and voted him guilty more often than male jurors - feminist attitude more likely to not believe the defendant’s testimony - no group of attitudes or values has received sufficient investigation - one notable exception is attitudes toward capital punishment, those who support capital punishment are more likely to vote for conviction - attitudes that are case-specific seem to have more predictive power than general attitudes DefendantCharacteristic - a prior criminal record that contains one or more convictions = higher likelihood of guilty verdict - verdicts are more lenient for attractive defendants than unattractive - plain-looking defendants were more often found to be guilty when mock jurors did not deliberate, but when they did deliberate the attractive defendant was more likely to be found guilty - male defendants receive higher guilt ratings than female defendants VictimCharacteristics - particularly relevant in cases of sexual assault - before the 80s, a woman’s prior sexual history was admissible and could be used to infer her credibility and the likelihood she consented to sexual relations - in 1985, rape-shield provision were legislated which prevented lawyers from introducing a woman’s prior sexual history - in 1992, the rape shield provisions were amended, allowing inquiry into a woman’s sexual history at the judge’s discretion, only if it was relevant - jurors who heard that the victim and defendant had sexual intercourse in the past were less likely to find the alleged victim credible and believed she had consented, despite the judge’s cautionary instructions - no Canadian law addresses the issue of whether Muslim women should be allowed to testify wearing a veil that covers their entire face and body except their their eyes ExpertTestimony - no simple conclusion has emerged - when the expert testimony was more complex, the jury awarded higher damages when the expert was male - when the expert testimony was less complex, although not significantly so, the jury awarded higher damaged when the expert was female A Special Case of Expert Testimony on Battered Women’s Syndrome - Dr. Regina Schuller found that mock jurors who heard the expert testimony were more likely to believe the women’s account of what happened - those who had a weak belief in a just world were more lenient in their judgments and felt that the expert testimony was more relevant to the battered woman than those who had a strong belief in a just world - female mock jurors who had a weak belief in a just world were more likely to find the defendant not guilty Back to Course Manual TheDefendant’sCharacteristics - people who are more credible and attractive are more persuasive - jurors are subject to psychological effects, such as the similarity-attraction rule which influences their impressions of the defendant based on physical appearance, status and attitudes - attractive defendants receive less harsh treatment by the courts unless their attractiveness was used to facilitate the crime - defendants of the same race as jurors are less likely to be convicted and similarity in attitudes between jurors and defendants results in greater leniency Read 8.2 in Course Reader 8.2: Juror Sensitivity to the Cross-Race Effect - Black and White mock jurors' sensitivity to the cross-race effect was investigated by varying the race o f the eyewitness in a simulated murder trial o f a Black defendant. - Participants heard an audiotape of a trial after which they rendered a verdict and rated the credibility of the witnesses. - White participants found the prosecution witnesses (including the eyewitness) more credible, and the defense witness less credible, than did Black participants; they were also more likely to find the defendant guilty. - The Black eyewitness was perceived as more credible than was the White eyewitness, but eyewitness race had no effect on verdict. - Eyewitness identifications are one of the main factors that jurors use to formulate their verdicts, and misidentifications at the trial stage can mean the difference between imprisonment and freedom - mock jurors ten
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