Legal Psych Exam 4

Complex Evidence effecting judgment (explain) 1) ■ Complex/technical evidence 2) ■ Credentials and presentation by expert witness 3) ■ No overpowering impact on jurors

*1) ■ Complex/technical evidence* ● Sometimes jurors are told not to consider evidence, and other times they are simply unable to fully understand the evidence. Jurors are often exposed to complex scientific and technical evidence, and that evidence is usually presented via expert testimony. *2) ■ Credentials and presentation by expert witness* An important piece of basic research here is elaboration likelihood model, which basically states that we are persuaded via two routes... *a trial is all about persuading the jury.. u want to persuade them to ur argument.* (1) A *central route* to persuasion is one in when the person is *persuaded or not* *based on the strength of the argument.* ● In order to use that route, u have to have the *motivation* to pay attention and have to have the *cognitive ability* to understand what ur saying... if u lack these, u switch over to the peripheral route (2) The *peripheral route* is when the person is *persuaded or not by peripheral cues* like the credibility of the source, the attractiveness of the source, the authority, if u like them or not ● Research shows that. lets bring in an expert and in one case I come in and give very complex terminology and have a degree from Harvard or from a very low level university... the jury is more likely to go along with me if I have a degree from Harvard and that's bc when I was very complex I made it so they couldn't understand what I was talking about, they didn't have the cognitive ability so they switch over to peripheral route and they look at the degree and trust that Harvard is better... if u use the basic terms, the degree doesn't matter anymore... the strength of the argument now matters... ● Therefore, *sometimes credentials matter* and *sometimes presentation matters* and they have an *interaction* and play off each other *3) ■ No overpowering impact on jurors* ● Expert witness testimony isn't overpowering esp if the expert witness testimony is contradicted by another witness or is properly cross examined, then the effect of the persuasiveness is significantly decreased. ● If its simple, direct/straightforward, repetitive, then expert witness testimony has the most effect ● OVERALL, The complexity of the message dictates of whether people look for other cues to be persuaded by... if its complex, they look for other cues. If its not complex, then they base it off the strength of the evidence. But in general, expert witness testimony isn't overpowering. Expert witness testimony is most effective when the argument is simple, direct, and repetitive.

*Clinical Versus Actuarial Risk Assesment* • Unstructured clinical judgment

*Clinical intuition, idiographic, qualitative approach* o (that is, it focuses on a specific *INDIVIDUAL*, and relies on *SUBJECTIVE JUDGMENTS* made by a clinical psych)—built on the *past professional experience of the clinician* o Intuitive approaches are sometimes referred to as unstructured clinical judgment bc *no rules specify* how a clinician should collect and combine info. o One weakness for the relative weakness of clinical prediction is the *lack of feedback* about success or failure. o Mental health experts also tend to *ignore base rate* info in making their risk predictions.

● Death Penalty as a Deterrent Deterrence Theory

*Deterrence theory* posits that potential murders will be restrained by possibility of execution But ■ Murders do not think rationally ■ Murderers usually under influence of substances ■ Murderers do not believe they will be caught and executed Deterrence theory not upheld ■ States with death penalty have higher rates of murder than those without the death penalty ■ Capital punishment does not suppress murder rate

SUPREME COURT DECISIONS -redefined our death penalty laws

*Furman v. Georgia (1972):* ●United States Supreme Court *unconstitutional as then administered* -it didnt say the death penalty itself was unconstitutional, just that as it was being used back then that it was unconstitutional -many came up with different reasons as to why they agreed but common was that the death penalty and how random the law was applied comparing diff cases and too much discretion between judge and juries *Gregg v. Georgia (1976):* ●Guided discretion; bifurcated proceedings -when jurors would go about determining the death sentence, there would be a capital proceeding. in any capital sentencing, theres 2 phases of bifurcated: *1) guilt phase* *2) penalty/ sentence phase* -these bifurcated proceedings were deemed away to reduce the discretion of freewillingly sentencing ppl to death -*penalty phase are now instructed to look at aggravated vs mitigating factors* *Atkins v. Virginia (2002):* ●*Eliminated death sentence for execution of mentally retarded prisoners in a 6-3 vote!!!!!!* -before, ur going to take someone that is mentally retarded and convict them of murder AND sentence them to death???? up until 2002? - it was a 6-3 vote... this is obscene. *Ring v. Arizona (2002):* ●Only jury can make decisions regarding capital punishment -before, in many cases, the jury would act as an "advisor" to the judge, or the judge alone would decide death alone. -it was deemed that the jury HAD to and not the judge *Roper v. Simmons (2005):* ●*Prohibits execution of juveniles* -before, imagine a 13 year old is convicted of first degree murder (brain hasnt even developed yet) and then sentence them to death...... *Kennedy v. Louisiana (2008):* ●*Prohibits execution for child rapist, unless child dies* -before, kennedy was sentenced to death for raping a minor, but supreme court said that was cruel punishment *Baze v. Rees (2008):* ● *Lethal injection does not inflect unnecessary or wanton pain* -before, many cases where the people said its cruel, and the supreme court maintained it saying its not cruel *Hurst v Florida (2016):* ● *Jury only plays advisory role so unconstitutional* -before, the judge didnt have to agree with the jury.. the supreme court said this violates Ring v Arizona

• Death penalty decision making Future dangerousness standard: Barefoot v. Estelle (1983) U.S. Supreme Court

*Future dangerousness standard:* ♣ Continuing danger to society ♣ (TX, OK, OR, VA, ID, WY) -Texas, Virginia,and Oklahoma all use future dangerousness as an integral part of their sentencing decision making ♣ Expert testimony on the future dangerousness standard is commonly provided by psychologists/ psychiatrists. • *Future dangerous standard*-- If the jury is going to sentence someone to death, there was must be a high likely that that person will be violent. The use of this testimony is controversial bc of the accuracy of our ability of being able to predict violence... part of it is phrasing the term "danger to society" • Psychologists and psychiatrists predictions are based off factors from society outside of prison so we are using that data and applying it to a different situation (prison) where it might not predict very well *Barefoot v. Estelle (1983) U.S. Supreme Court* • In the early case of Barefoot v. Estelle (1983), the Supreme Court *considered whether allowing such potentially inaccurate expert testimony was unconstitutional.* • Barefoot v. Estelle (1983)- A Texas jury found Barefoot guilty of capital murder because he had intentionally shot and killed a police officer. As a result, Barefoot was eligible for the death penalty. At his capital sentencing hearing, *two psychiatrists who had never interviewed Barefoot, testified that there was a "100% and absolute chance" that he would continue to be a danger...* • nothing is 100% and u shouldn't use that terminology esp when the data is weak. *He bolstered his claim with empirical research contained in an amicus curiae brief filed by the APA. The brief summarized the 5 existing studies on expert predictions of future danger, and highlighted the finding that such predictions were incorrect 2 out of 3 times.* • The *Supreme Court was not persuaded by Barefoot's arguments nor the American Psychiatric Association's brief.* The Court *held that banning expert testimony on future dangerousness was much like asking the courts to "disinvent the wheel"* (Barefoot v. Estelle, 1983). • Basically means theyd have to rechange how they do things... we have objective data showing we cannot predict violence well at all, but courts say well we don't want to change things... *this goes back to the theme that legal system is based off precedent and maintaining its way of doing things* and *science is based off science and constantly updating its ways of doing things..* this is where we see the *clash of the two cultures.* • The *Supreme Court also remained convinced that capital jurors were capable of recognizing the weaknesses of experts' predictions and were capable of taking those weaknesses into account.*

*Supreme Court Decisions* ● Methods ● Perception of strong public support for the death penalty ● Death penalty is costly

*Methods* ○ Lethal injections, gas, electrocution, hanging, firing squad ○ Executions are rare --only about 1% of people sentenced to death actually are executed *Perception of strong public support for the death penalty* ○ Influences decision-making of politicians ○ Occasionally used by the Supreme Court as an indicator of prevailing "standards of decency" among the American public -over 60% of people will favor death penalty.. but if u reword the question and say do you believe in someone sentencing to life in prison w out parole... then theres a drop in % of death penalty -- use this data in a bias way to maintain the death penalty -use this data as an indicator of "decency" among public.. if the public says its decent, then we will not abolish the death penalty. *Death penalty is costly* ○ Cali spends an estimated $137 mill per year to keep it, but would only need $11.5 mill if we just sentenced life in prison without parole ○ In Maryland, the cost of a capital trial (just the trial) is $1.9 mill more than a comparable murder case where the death penalty is not pursued ○ In sum, death is costly. More costly before, during, and after trial. -avg annual cost for an inmate in U.S. is about $47,000 a year -avg cost for a death penalty inmate is $175 a year -we spend about 177 mill dollars per year annually on the death penalty

SECOND STAGE OF DELIBERATION

*Open Conflict/ Informational influence/ Normative influence* • During the second phase—*open conflict*—differences in opinion among members of the jury become apparent and coalitions may form between members of the group. Often, the tone of the discussion becomes contentious, with each faction challenging how others interpret the evidence. Some jurors may even attack the character or integrity of jurors who disagree with them. • *The process of reaching a verdict through group deliberation is essentially a process of persuasion.* • Either all jurors (if the verdict must be unanimous) or a majority of jurors (if only a majority is required) must be persuaded to join with others. • Sometimes jurors are swayed through a process of *informational influence:* They *change their opinions* because other jurors make *compelling arguments.* • At other times, jurors do not really change their private views, but they do change their votes in response to *normative influence.* That is, they give in to *group pressure.* • When a strong majority is trying to persuade one or two "holdouts" to reach a unanimous verdict, group pressure can be intense. • Research on civil trials suggests a difference in the type of influence used during culpability and penalty decisions. Mock juries asked to make a more fact-based decision—whether or not a defendant should be held liable—tended to rely on informational influence in the form of factual arguments. • In contrast, mock juries asked to make a more subjective, value-laden decision (the amount of punitive damages) tended to rely on normative influence (Hans, 1992). Morality-based decisions—such as whether to sentence a defendant to life in prison or the death penalty—must rely on appeals to basic fairness and group values, whereas fact-based decisions can follow from logical analysis of evidence

FIRST STAGE OF DELIBERATION

*Orientation /Verdict-drive style/ Evidence-driven style* ● During the first phase—*orientation*— juries elect a foreperson, discuss procedures, and raise general issues. At the outset of deliberation, jurors tend to be confused about how to proceed. ● Some juries take a vote immediately to get a sense of where people stand, some juries postpone voting and begin by discussing the issues to be decided , and other juries begin by discussing each witness who testified at trial. Observations of the deliberation process suggest that about 30% of juries take a vote shortly after they begin deliberations and then orient their subsequent discussions around the verdict options. -This *verdict-driven style* of structuring the deliberation process tends to *encourage jurors to sort the evidence into two categories: supporting conviction or supporting acquittal.* -Other juries adopt an *evidence-driven style*, in which the first vote is postponed until after jurors have had a *careful, systematic discussion of the evidence*

• Risk management markers

*Post release adjustment/treatment* o Violence is also a function of how well the adjustment of a potentially violent person is managed after that person leaves a treatment facility. o Situational factors that occur after the release of a person from prison o If they get out of jail and If they have a job, support, they wont be as likely to commit an act of violence o All affect the outcome of violence -The general finding here is simple and logical: Stable, supportive post-release environments lower the risk of violence. To the degree that the person has adequate housing and is capable of managing basic necessities such as food and finances, the risk of violence is reduced. -Post-release treatment is also critical. Those at highest risk for violence require more intensive post-release supervision and treatment. Treatment plans after release must address the specific needs of each person. Release into an environment that includes easy access to guns or drugs lowers the barriers against violence. o A person's social environment can either encourage or discourage violence. Antisocial peers may entice a released patient into violent behavior while a supportive network of friends and relatives may keep violent tendencies in check. What appears to be critical is not the size of the social network but whether the people in that network are kind, sympathetic, and skilled at dealing with the person at risk (Estroff & Zimmer, 1994). The social network can harm as well as help; disappointment with family members or frequent arguments may elevate the risk of violence. The general level of stress created by less than optimal living situations increases the likelihood of violence; so does failure to continue taking medication or failure to continue therapy. Finally, lack of availability of follow-up care in the community contributes strongly to all of these problems.

*Racial Disparities And The Death Penalty* ● Pre-Civil War: "The Black Code"

*Prior to the Civil War,* the *behavior of blacks in the south was regulated* by a set of laws called the *Black Codes.* -Blacks could be executed for theft; whites could not, they would just pay a fine - The rape of a black woman was not considered a crime, but many black men were executed for allegedly raping white woman. -*race of offender and victim is best predictor of death penalty* ■ black defendants are more likely than white defendants to be charged with capital murder, and are more likely to be sentenced to death and executed. ■ The race of the victim is esp important. if the victim is white, prosecutors are more than twice as likely to seek a death sentence than if the victim is blacked, and blacks who kill whites are about 4x more likely to be charged with capital murder than blacks who kill blacks.

THIRD STAGE OF DELIBERATION

*Reconciliation/Hung Juries/Dynamite Charge* • Deliberations enter the third and final phase—*reconciliation*—when jurors reach a common understanding and agreement, or when one faction capitulates. During this final phase, attempts may be made to soothe hurt feelings and make everyone feel satisfied with the verdict. Of course, hung juries never make it to the reconciliation phase. *Hung Juries* ○ Those that cannot reach a unanimous verdict. *Dynamite Charge* ● A final note about *hung juries:* Sometimes a jury will pass a note to the judge saying that after hours or days of arduous deliberations, jurors still cannot reach a verdict—they are hopelessly deadlocked. -If the judge accepts the jury's judgment, a mistrial must be declared. -But, in most jurisdictions, *the judge has the option of using the dynamite charge.* This charge to the jury (also called the *"Allen charge" or the "shotgun instruction"*) is an *effort to break the deadlock.* The judge asks the jury "to reexamine your views and to seriously consider each other's arguments with a disposition to be convinced." -We might expect such an instruction to shift the balance toward normative influence and against the minority that is holding out against a strong majority. *Research suggests that this instruction causes jurors to feel coerced and may even mislead jurors into thinking that a hung jury is not a viable option*

• Historical predictors

*Static markers* (e.g., age, mental disorders) o For example, all 12 risk factors used in VRAG are best described as "static" because they do not change over time. o They are part of the person's history and they *cannot be changed through intervention.* o Markers in this category include past violent behavior, young age at first offense, early abuse of alcohol and/or other drugs, major mental disorder, psychopathy, early maladjustment at home or school, attempted or actual escapes from psychiatric facilities, and presence of a personality disorder. o *Research suggests that the most useful risk predictors are historical. Past behavior is often the strongest predictor of future behavior.* • *Psychopathy* o A distinctive, extreme form of antisocial disorder characterized by a lack of empathy for others and a lack of remorse for cruel behavior. o Although psychopaths tend to be glib and superficially charming, they also tend to be dishonest, manipulative, and unwilling to accept responsibility for their antisocial behavior.

• Actuarial Techniques

*Statistical use of risk factors, nomothetic, quantitative approach* o (that is, it is based on characteristics identified in research on large *GROUPS* of people, and it relies on *STATISTICS*).—built on the *findings of past research* o Early research led to a new generation of risk assessment research, and the development of new methods for predicting future risk. One of these methods, is the actuarial prediction, was soon foud to outperform clinical predictions of future violence in a number of comparisons. o Actuarial methods of prediction require that *relevant risk factors be systematically combined (typically using a statistical equation) to calculate an estimate of future violence.*

Unstructured clinical judgment Actuarial Prediction Guided professional judgment

*Unstructured clinical judgment* BASED ON: -the clinical experience and intuition of the clinician STENGTHS: -Idiographic, related to the specific individual being evaluated WEAKNESSES: -may be biased by clinician's beliefs and perceptions -tend to overpredict violence (false positives) -does not take into info account base rate of re-offense -generally, no follow up to provide feedback to clinician *Actuarial Prediction* BASED ON: -empirical research factors shown to be predictive in the population on which it is based STENGTHS: -based on large amounts of data collected over extended periods and statistics, eliminating subjective biases WEAKNESSES: -Nomothetic, may not generalize to the individual being evaluated -may rely too heavily on static factors -does not account for rare, dynamic, or risk management factors *Guided professional judgment* BASED ON: -A combination of clinical experience and empirically derived factors STENGTHS: -Based on empirically derived risk factors -Not based on a specific population, so avoids problems of generalizability -Can account for rare, dynamic, and risk management factors WEAKNESSES: -Because the clinician assigns weights and combines factors, may still be subject to clinicians biases

● Inadmissible evidence affecting judgment

- Jurors are told to ignore all types of inadmissible evidence (e.g., information that might be prejudicial) - Inadmissible information may come from witnesses or attorneys. Sustain (Overrule) ■ When one attorney calls out "objection" in response to a question or statement made by the opposing counsel or a witness, the judge must either sustain or overrule the objection. ■ If the judge sustains the objection, he or she will tell the jury to "disregard" the inadmissible statement (e.g., that a criminal defendant has a prior criminal record or that a civil defendant has a large insurance policy) ■ In other words, jurors are supposed to forget they ever heard it and not let it influence them. ■ Most attorneys are skeptical about whether jurors can disregard inadmissible evidence statements made during trial. As many attorneys say, "You can't unring a bell."

• Antisocial personality disorder

--One of the personality disorders, antisocial personality disorder, involves "a pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years." Rates of antisocial personality disorder in the general population are relatively low (.3% to 3.3%), but some estimate that the rate for prison inmates may be as high as 70%

1. What has research shown regarding the efficacy of actuarial prediction versus clinical prediction?

-The strategies used by psychologists to predict future violence range from clinical intuition to highly structured scientific approaches. -Intuitive approaches are sometimes referred to as unstructured clinical judgment because no rules specify how a clinician should collect and combine information. -Science-based approaches specify what information should be collected, and even sometimes how much weight to afford to each piece of information when making a prediction. -Although research shows that predictions based on more *scientific approaches* to risk assessment are not infallible, such methods clearly *produce more accurate predictions than those based on the subjective judgments of psychotherapists, judges, jurors, and prison administrators*

○ Expert Witnesses

-offer testimony based on specialized knowledge, training, or experience ■ for example, experts may testify about the meaning of DNA evidence based on the chemical analysis of blood, semen, skin, or saliva. ○ More generally, research on the impact of expert testimony has found that if an expert is effectively cross-examined, or if an expert's testimony is contradicted by the testimony of another expert, the impact of the testimony is weakened. ○ In addition, testimony that is clear, specific to the issues in the case, and somewhat repetitive appears to be most persuasive. ○ However, expert testimony is not accepted uncritically by jurors and does not appear to have an overpowering impact on verdicts. Indeed, in some cases, jurors regard it with special skepticism because they may perceive experts as "hired guns"

1. Define and outline the errors that lead to wrongful death sentencing.

-the most troubling form of error in capital cases is the wrongful conviction, imprisonment, and execution of an innocent person. -what makes these wrongful convictions esp disturbing is that most were caused by factors that are difficult for the legal system to detect. -The main causes for these miscarriages of justice were: *Police error* --Coerced or false confessions, sloppy or corrupt investigation *Incompetent attorneys* *Misleading jury instructions* *Prosecutorial misconduct* --Suppression of exculpatory evidence, overzealousness *Witness error* --Mistaken eyewitness identification, perjured testimony as well as various other errors, such as *misleading circumstantial evidence, forensic science errors, exculpatory evidence that is ruled inadmissible, insufficient attention to alibis, and pressure created by community outrage.*

In terms of frequency, it is noted in the text that fewer than _____ of murderers are executed.

1%

● 3 stages of deliberation

1) Orientation: verdict and evidence driven style ■ Why is it better to wait to take a vote? 2) Open conflict: informational and normative influence 3) Reconciliation: attempt to be satisfied with verdict -Hung Juries/Dynamite Charge

1. Discuss the reforms that have been proposed for jury instructions.

1) Simplify instructions to jury o Although these instructions are intended to be helpful, research has consistently demonstrated that jurors have great difficulty understanding them. This lack of comprehensibility is due to both the vagueness of the legal concepts and the poor quality of the writing. The instructions are packed with legal terminology and are written in a complex, convoluted style. o These clearer instructions led to clearer understanding among jurors. In studies comparing conventional legalistic instructions to simpler, rewritten instructions, the clearer instructions lead to significantly better understanding of crucial legal concepts. 2) Provide Pre-instructions to jury o Typically, jurors are not provided with instructions until the trial is over. One helpful innovation is to read instructions to jurors before the trial begins. The value of this procedure is that it allows jurors to evaluate the legal relevance of the evidence as they hear it. Preinstructions (read to jurors before the trial begins) appear to provide a schema that helps jurors to organize information presented at trial. 3) Allow jury discussion during trial

According to the text, as of 2013, _____ states and the federal government adopted sexually violent predator civil commitment laws (SVP laws).

20

According to a report completed by Gookin (2007), nearly _____ sex offenders have been incarcerated as a result of the SVP laws since 1990. Of that number, _____ have been released as of 2007.

4,500; 494

In a post verdict survey, it was discovered that _____ of jurors stated that they had adequate opportunities to express their views.

98%

1. Judy is a juror in a murder case. As each piece of evidence is presented, she mentally decides if it makes the defendant more or less guilty. What model is she displaying?

????

• Base rate • Base rate of re-offense

Base rate o Refers to the overall likelihood of an event or behavior in a given population o In this case, the base rate refers to the number of people in a particular population who actually become violent Base rate of re-offense o They were prone to overpredicting violent behavior o Unfortunately, research shows that even when clinicians are made aware of base rates, they still tend to ignore them and overpredict the likelihood of violence

Interestingly, research shows that, when mock jurors understand the instructions, there is no difference in the rate of death penalty recommendations based on race or ethnicity. However, when jurors do not fully comprehend the instructions, there is a clear bias against:

Black defendants.

Which of the following statements is CORRECT regarding research on inadmissible evidence? Which is INCORRECT? a) If the judge does not explain clearly why the evidence should be disregarded, jurors are less likely to ignore the evidence. b) Jurors are reluctant to disregard inadmissible evidence when they consider it useful. c) Judges' instructions to disregard inadmissible evidence have no effect on jurors' decisions. d) Jurors disregard inadmissible evidence when they consider it irrelevant or unfair.

CORRECT -Jurors disregard inadmissible evidence when they consider it irrelevant or unfair. -Jurors are reluctant to disregard inadmissible evidence when they consider it useful. -If the judge does not explain clearly why the evidence should be disregarded, jurors are less likely to ignore the evidence. INCORRECT -Judges' instructions to disregard inadmissible evidence have no effect on jurors' decisions.

SUPREME COURT DECISIONS ● Guided discretion /Penalty Phase

Constitutional challenges to the death penalty have been based on the *Eighth Amendment's* prohibition against *"cruel and unusual punishment"* or the *Fourteenth Amendment's* guarantee of *"equal protection"* under the law. -In *1972, in the case of Furman v. Georgia*, the Supreme Court ruled in a *5 to 4 decision* that *capital punishment*—as then administered—was *unconstitutional.* -However, the majority was deeply divided about why the death penalty should be considered unconstitutional. Each of the five justices in the majority wrote a separate opinion based on somewhat different reasoning. The points on which all five justices seemed to agree were that the penalty was *"wantonly and freakishly applied," that there was "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not," and that these problems were probably due to "the uncontrolled discretion of judges or juries."* -*The Furman decision did not rule out use of the death penalty in principle; it only prohibited the way it was being carried out at the time.* -Following the Furman decision, *many state legislatures redesigned their death penalty sentencing procedures* to address the concerns of the Court. --Specifically, they tried to *find ways of controlling the discretion of jurors in capital murder trials.* - In *1976, in Gregg v. Georgia* and its companion cases, the Supreme Court *rejected the idea of erasing all discretion by making death sentences mandatory for certain types of murder, but it approved a series of reforms designed to guide the discretion of jurors.* -Under these *guided discretion statutes,* defendants accused of capital murder are tried by juries in a *two-phase (bifurcated)* proceeding. 1) *Guilt is decided in the first phase.* If the defendant is found guilty of capital murder, 2) *the sentence (either death by execution or life in prison without the possibility of parole) is decided in the second penalty phase.* -As a further check against the *"unbridled discretion" of jurors,* *all death sentences are supposed to be reviewed by state supreme courts.* -*Executions resumed in 1977 when Gary Gilmore abandoned his appeals and was killed by a firing squad in Utah.*

• Danger to self or others • Gravely Disabled

Danger to self or others o If an individual is deemed to be a Danger to self or others as a result of a mental illness, every state has the provisions for hospitalizing that person against his or her will. Gravely Disabled o Many states allow for involuntary hospitalization of individuals who are gravely disabled. Such people are unable to arrange for their basic needs of food, shelter, or safety because of mental illness.

● Aggravating factors/Mitigating factors

During the *penalty phase* of a capital trial, jurors are typically instructed to *"weigh" those characteristics* of the *murder* and the *murderer* that *support a death sentence* (these are called *aggravating factors*) *against* those *characteristics* that *support a sentence of life imprisonment* (these are called *mitigating factors*). -*Aggravating* factors *increase* the *wrongfulness* of the defendant's actions or the harmful impact of the crime. -In contrast, *mitigating* factors *reduce* the defendant's *blameworthiness* and make *execution less appropriate* as a punishment (even though such factors do not justify or excuse the crime).

in 1972, the Supreme Court ruled the death penalty unconstitutional in _____. However, executions resumed in _____.

Furman v. Georgia; 1977

Which of the following is a result of Gregg v. Georgia (1976) and its companion cases? Which of the following is NOT a result? -The sentence of death was made mandatory for certain types of murder. - Bifurcated proceedings are used in all capital trials. - Jurors are instructed to weigh aggravating and mitigating factors.

IS a result - All death sentences are reviewed by state supreme courts NOT a result

• Impulsivity • Lack of responsiveness to treatment

Impulsivity o The inability to exert control over one's emotions, thoughts, and behaviors. o It can lead directly to violence, particularly when it is expressed as a lack of control over anger Lack of responsiveness to treatment o Some psychiatric patients may lack the ability to benefit from treatment, others may not be motivated to change, and some may deteriorate after release from an institution. Many ppl who are released from psychiatric institutions simply stop taking their medication

1. Describe the difference between involuntary civil commitment and criminal confinement. Provide an example of each.

It is important to recognize that these forms of civil confinement are based on different interests and operate very differently from criminal confinement. An important underpinning of civil confinement is the state's parens patriae power. As a result, civil confinements are defined not as punishment but as a means to help people who cannot care for themselves. Therefore, unlike criminal incarcerations where treatment and rehabilitation are considered minor goals, in civil commitment these interests are supposed to dominate. Involuntary civil commitment differs from criminal confinement in other important respects, including: (1) the *burden of proof necessary to confine someone* -(criminal trials require proof beyond a reasonable doubt while involuntary civil commitments use a lesser burden of proof—the clear and convincing evidence standard); (2) the *length of confinement* -(the length of criminal punishment is specified while civil confinement can continue indefinitely if the individual is deemed to still be a danger to himself or others); (3) the *reason for confinement* -(in criminal matters the defendant is charged for something he or she has done, while in involuntarily civil confinement the issue is what the person might do in the future).

*Agreement between Juries and Judges* 1. Discuss possible explanations found for agreement and disagreement rates between judges and jurors.

Judges should be impartial/no biases Research o Judges are influenced by bias as much as jurors o Judges have limited awareness of own decision making process o Safeguards are in place to neutralize bias of jurors but not for judges o Judges and juries have high agreement rate o Disagreement rate must be examined --the high agreement rates suggest that both juries and judges appear to be evaluating the evidence in similar ways and reaching similar conclusions. -- rates of disagreement were NOT higher in cases that judges rated as "difficult," but disagreement rates WERE higher in cases judges rated as "close." --these findings suggest that jury/judge disparities are likely due to reasonable differences of opinion in cases where the evidence does not clearly favor one side. --another explanation for the disparity between judges and jurors is prior experience. Experienced jurors tend to be more conviction prone... perhaps experience has a similar effect on judges.

*Jury Nullification* ● Jury Nullification (4)

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. ○ Can reject/nullify law ○ Represent moral conscience of community ○ Can be double-edged sword ○ Judges almost never inform juries of this right -juries deliberate in private and are not required to justify or explain the reasoning behind their verdicts. They also have the power to reject or "nullify" the law. That is, juries may base their verdicts on reasoning that ignores, disregards, or goes beyond the law. In part, this result is permitted bc juries are expected to represent the moral conscience of the community. That moral conscience may lead them to a different conclusion than the law predicts. Even if a defendant is technically guilty in the eyes of the law, he or she may be morally right. --jury nullification has become a double-edged sword. Sometimes, it enabled jurors to find a just verdict in defiance of the law. At other times, it has enabled jurors to ignore just laws in favor of prejudice.

*The Process of Jury Decision-Making* Mathematical Model Story Model

Mathematical Model ○ Mental meter moves toward guilty or not guilty verdict based on evidence ○ Meter can become "frozen" by strong evidence (such as a persuasive eyewitness) and further evidence does little to shift the juror's overall judgment Story Model ○ Stories constructed to make sense of evidence at trial ○ Useful in describing decision making in rape, murder, and sexual harassment trials ○ A story is defined as a causal chain of events. That is, initiating events cause characters to have psychological responses and to form goals that motivate actions, and then these actions lead to consequences. .

○ Moderate Reformers: ○ Radical Reformers:

Moderate Reformers: ■ Seem to believe we have a good system that could be better ■ This group tends to focus on ways of helping jurors do their job well. Suggestions include allowing jurors to take notes during trials, paying jurors more money for their time, reducing the amount of time jurors spend waiting around, rewriting jury instructions to improve comprehension, making jurors more comfortable while they wait for voir dire(e.g., provide internet access in the jury assembly room), and allowing jurors to ask questions of witnesses by handing written questions to the judge. Radical Reformers: ■ Seem to believe that jurors are incapable of doing the job well and that the jury system should be overhauled/abandoned. ■ This group calls for strict limits on the size of monetary awards, a further move away from unanimous decisions to majority-rule decisions, eliminating the use of juries in complex or technical cases, and simply replacing juries with judges or panels of judges.

• Why were the SVP laws enacted?

One reason states enacted SVP laws was the widespread belief that sex offenders are difficult to treat and that they will continue to commit sex crimes unless they are incapacitated. o One of the main reasons were bc society was not satisfied with the states ability to protect them from sexually violent offenders. o People have the idea that sexual predators have higher re-offense rates than other criminals... research doesn't really support this.. Re-offense rates not as large as widely believed, but did increase over time to 24% after 15 years. Actual rates may be inaccurate ♣ Many unreported sexual crimes ♣ Researchers can only example self-reports, arrests, and convictions Sexual reoffenses also affected by ♣ Group of offenders followed ♣ Length of time followed ♣ Offences included in analysis ♣ Group of offenders followed (offenders with different demographic characteristics have different rates of reoffense); -the people that get let out of prison are often the ones who are not as violent or as cruel as the ones that are kept in prison, so by default we're following people that are less likely to commit a future act of violence. And because they are a small percentage, its much harder to predict with accuracy whether they will commit or not, and so we lower the prevalency rate. ♣ Length of time followed (rates tend to increase if offenders are followed for longer periods of time); -for example, when u follow them for about 7 years the rates about 10%, but if u follow them for 15 years, now u get up to 24%... ♣ Offences included in analysis (sex offenders recommit nonsexual crimes at a much higher rate than they recommit sexual crimes).

o Police power o Parens Patriae power

Police power - The states authority to protect its citizens from dangerous individuals Parens Patriae power -to protect those not able to care for themselves - 'parent of the country'

• Predicting future criminal conduct

Psychologists and psychiatrists Controversy regarding accuracy Controversy regarding double jeopardy, ex post facto, substantive due process ♣ Along with questions about mental health practitioners' predictive accuracy, the Court was asked to decide if SVP laws violated the Constitution. ♣ Specifically, did SVP laws: • (1) create double punishment for the same crime (double jeopardy)? • (2) criminally punish individuals with a penalty that they did not know was a possibility when they committed the act (ex post facto)? or • (3) arbitrarily or unreasonably deprive individuals of their rights to freedom (substantive due process)?

1. Outline the impact of race in reference to sentencing defendants to death.

Racial Disparities and the Death Penalty Pre Civil War: *Black Codes* Between 1930 and 1967, 455 men were executed for rape -*89% were black* *1977 Coker V Georgia Supreme Court Case* -death penalty disproportionately severe for rape *Race has an impact at several stages in the legal process* ♣ African American defendants are more likely to be charged with capital murder and more likely to be sentenced to death and executed ♣ Race of victim influences prosecutor decision to seek death penalty ♣ 41% of prisoners on death row are African American *McClesky v. Kemp (1987) Supreme Court* -some unfairness is tolerable and inevitable bc discretion is inescapable in capital sentencing -to overturn death sentence bc of racial bias, evidence must prove that jurors acted with discriminatory purpose -critics suggest that legal standard for death penalty higher than what is needed to discrimination in housing or employment

1. What are the benefits having a larger jury compared to a smaller jury? (6)

Research on jury size: The courts got it wrong! Larger juries ■ Deliberate more ■ Recall evidence more accurately ■ Generate more arguments ■ Agree more on group performance ■ Provide broader representation of demographic groups ■ Are more likely to match larger community opinions

1. What impact do death qualified jurors have on decision making?

Research shows that *death qualification* affects both *who gets on the jury* and the *attitudes of jurors toward the defendant.* -Compared to jurors who are screened out by the process, death-qualified jurors are more likely to vote to convict the defendant. *Death-qualified jurors are not only more conviction-prone when deciding guilt, they also tend to be more receptive to aggravating factors and less receptive to mitigating factors during the penalty phase* - A second, more subtle effect occurs because *jurors try to make sense of the odd process of death qualification.* Jurors who answer a series of questions about their willingness to vote for a death sentence during voir dire often *infer that both defense attorneys and prosecutors anticipate a conviction and a death sentence.* Why else would they be asking about a death sentence before the trial even begins? *This effect works against the defendant.*

● McClesky v. Kemp (1987) Supreme Court Case

Some unfairness is tolerable and inevitable bc discretion is inescapable in capital sentencing ■ In the view of many social scientists, the majority of the Court (it was a 5 to 4 decision) was frustratingly unreceptive to this evidence. Although the justices were unable to offer any explanation for the striking racial disparities, they were unwilling to accept the research findings. The majority decision in McCleskey (written by Justice Powell) held that some unfairness is tolerable and inevitable because discretion is an inescapable aspect of capital sentencing. To overturn death sentence bc of racial bias, evidence must prove that jurors acted with discriminatory purpose ■ In addition, the Court held that any discrimination in McCleskey's case was not intentional and the defendant's attorney had failed to present, "evidence specific to his own case that would support an inference that racial consideration played a part in his sentence." Put differently, to overturn a death sentence because of racial bias, there would need to be strong evidence that jurors acted with "discriminatory purpose." Critics suggest that legal standard for death penalty higher than what is needed to discrimination in housing or employment ■ Some scholars have pointed out that this standard of proof is higher than the legal standard needed to demonstrate discrimination in housing or employment. Consequently, "a person denied housing or employment has more protection from racial discrimination than a person whose life is at stake" (Ellsworth & Mauro, 1998, p. 720).

When it comes to the financial cost of the death penalty, the following is true? and the following is NOT true? -Capital cases are more expensive at every stage of the legal process. -Money can be saved if a capital case defendant is eventually sentenced to life in prison. -States could save huge amounts of money by abolishing the death penalty. - Maintaining the death penalty is far more expensive than abandoning it.

TRUE -Capital cases are more expensive at every stage of the legal process. -States could save huge amounts of money by abolishing the death penalty. - Maintaining the death penalty is far more expensive than abandoning it. NOT TRUE. -Money can be saved if a capital case defendant is eventually sentenced to life in prison.

There are some important ways in which involuntary civil commitment is different from criminal confinement, as both currently exist. Which of the following is ? Which of the following is NOT one of these differences?

TRUE. -The length of confinement: indeterminate versus specified. -The burden of proof: clear and convincing evidence versus beyond a reasonable doubt. -The reason for confinement: punishment versus prevention of harm NOT a difference -The decision-making authority: court versus psychiatrists.

*Guided Professional Judgment Instruments*

Taking All three types of Markers into Account o Actuarial/guided professional ♣ Instruments= better predictions o Risk assessment tools ♣ Guide the decision making of clinicians ♣ Combine the accuracy of actuarial methods with flexibility of clinical decision making ♣ Example: HCR-20 is guided professional judgment approach • HCR-20 (Historical Clinical Risk Management Scheme-20) • It has received the most research attention to date

*Treatments to Reduce the Risk of Violence* 1. Outline the emphases of effective treatment to reduce the risk of violence. Treatment (2) Emphasis of Treatment (4)

Treatment ♣ Promote adjustment ♣ Improve public safety Emphasis of Treatment ♣ Assist in life domains ♣ Improve social skills ♣ Communicate with legal officials ♣ Step-down programs -Step down programs where people accomplish goals and let off the leash as they step thru the program

• Decision rules (unanimous or majority rule) o Unanimous verdict established in ? o Non-unanimous verdict established in o o o

Unanimous= fully in agreement o Unanimous verdict established in 14th century o Non-unanimous verdict established in 1970s in some situations o Unanimous verdicts more thorough but more hung juries o Non-unanimous verdicts save time and reduce hung juries o Dynamite charge/Allen charge/shotgun instruction to hung jury

Different factors come into play during the sentencing phase of a homicide case such as whether the sentence should be death or life in prison with no hope of parole. Circumstances that support the death sentence are called:

aggravating factors.

In Kansas v. Hendricks (1997), the Supreme Court ruled that sexually violent predator civil commitment laws did NOT violate double jeopardy. Double jeopardy means that:

an individual was punished two times for the same crime.

Actuarial instruments _____ clinical judgement in predicting violence, though scientists raised some concerns about _____.

clearly outperform; their generalizability

In Lockhart v. McCree (1986), the Supreme Court reviewed the research on death qualification and:

dismissed it as irrelevant and upheld the use of death-qualified juries.

Preinstructions given to a jury before the beginning of a trial appear to provide a useful schema that makes jurors:

evaluate evidence differently

In Gregg v. Georgia, and in companion cases, the Supreme Court set up a series of reforms. These reforms are referred to as:

guided discretion statutes.

Researchers have determined three broad categories of predictors of risk for future violent behavior:

historical, dynamic, and risk management markers.

Information released through pretrial publicity is often _____ at trial.

inadmissible

The process by which jurors change their opinions because of compelling arguments from other jurors is known as:

informational influence.

When told to not think about something, we often do the exact opposite and cannot get that thought out of our heads. This mental behavior is referred to as:

ironic processes.

At times, juries deliberately decide to ignore, disregard, or go beyond the law because to do otherwise would violate the moral conscience of the community. This action is known as:

jury nullification.

The lack of clear evidence often results in jurors considering other factors such as pretrial publicity and prior beliefs. This phenomenon is known as the _____

liberation hypothesis.

The purpose of the death penalty is seen as deterrence. However, many studies in the United States, as well as in other countries, have found _____ evidence to support the idea that capital punishment decreases the murder rate.

no clear

Graph of # of executions in the U.S., Texas, Virginia,and Oklahoma since 1976 Texas, Virginia,and Oklahoma all use future dangerousness as an integral part of their sentencing decision making statistics of total executions, of texas alone, combination of texas/virgina/oklahoma

o # of executions in the U.S. since 1976 o total executions is 1359 o texas alone- 508 o combine texas, virgina and okla, they account over half of the executions in the united states. o This shows how prevalent it is in just a few of our states

• Dynamic predictors

o *Fluctuating markers* (e.g., attitude, insight) o Moods, attitudes, and thought processes do not remain fixed over time and can be responsive to treatment. A major dynamic factor is lack of insight into oneself or others. People who become violent tend to have less awareness of their mental disorder and tend to lack awareness into the motives and behaviors of others. They also tend not to recognize their need for treatment. o *Psychiatric symptomatology* -will change over time and will predict different levels of violence ♣ Sometimes psychiatric symptoms are "active" in the sense that they are readily apparent in a person's thoughts and behavior. At other times, symptoms may be formant. ♣ Symptoms can sometimes be dampened by medication and some types of symptoms follow a cyclical pattern, waxing and waning over time. o *Threat/control override system* ♣ TCO symptoms refer to beliefs—common in schizophrenics—that other people or forces are controlling one's thoughts or implanting thoughts in one's mind -Symptoms will lead to paranoia.. when these thoughts are accompanied by voices, violence often follows. The paranoia beliefs override the system that we usually use to inhibit violence.. these are strong indicators of violence ♣ Paranoid schizo believe that other people want to do them harm. This perceived threat from others overrides self-control

• Generalizability/ Sexual Offending Risk Appraisal Guide (SORAG)

o Although few doubt that actuarial instruments outperform clinical predictions of future violence, a *number of concerns* have been raised about their use by mental health professionals in legal proceedings o First, the *generalizability* of actuarial instruments has been questioned. -*Generalizability* refers to how well these instruments perform outside the original population and outcome on which they were created. -- For example, since the VRAG was created based on Canadian offenders, it is an open question as to how well it predicts the violent behavior of offenders in the United States. Also, the VRAG was not specifically designed to predict sexual reoffenses. o However, because the risk factors differ somewhat for the two types of risk predictions, the creators of the VRAG developed a similar instrument, the *Sexual Offending Risk Appraisal Guide (SORAG)* specifically for predictions of sexual reoffending.

• Pedophile

o An individual who has "recurrent, intense... sexual urges or behaviors involving sexual activity with a prepubescent child or children (generally age 13 or younger)

• Leroy Hendricks

o At trial, he admitted that he could not control his urges to abuse children o When he was stressed, its even harder to control them o The only way to guarantee for him to not commit again would be for him to die

1. Outline the challenges of risk assessment. (4)

o Challenges of risk assessment ♣ Protect society ♣ Protect rights of possibly dangerous persons ♣ Accuracy of prediction ♣ Preventative detention is ethically problematic Protects society ♣ Society has a legitimate interest in being protected from violent individuals. Protects rights of possibly dangerous persons ♣ But those individuals have a right to be protected from harassment by authorities and from arbitrary arrest and detention based on mere suspicion. Accuracy of prediction ♣ many of the studies done show that the accuracy is very very weak. In general, our ability to predict is not as accurate as we would like. Preventative detention is ethically problematic ♣ When we say we just detain someone based upon having inaccurate information of whether they will be violent or not, and whether or not we will be able to treat them ♣ Detaining them with the notion that we THINK they will be violent / reoffend but we have no proof

*Sexualy Violent Predators and the Law* • Sexually violent predator civil commitment laws (SVP laws)

o Civil commitment of potentially dangerous sexual offenders o As of 2013, 20 states and federal government passed such laws o Nearly 4500 sex offenders committed under SVP since 1990, and only 494 released by 2007 o Leroy Hendricks: First to be held under SVP

1. Discuss the evidence showing that Deterrence Theory is ineffective, and how does it relate to the brutalization effect?

o Deterrence is a theory about psychological processes in the mind of the murderer. It posits that potential murderers will be restrained by the knowledge that they might be executed if they act on their desire to kill—that is, their fear of execution will stop them from killing... - There are several problems with this theory. First, there is no evidence that people engage in a rational weighing of costs and benefits before committing a murder. In fact, most murders are crimes of passion—the product of rage, jealousy, hatred, or fear (Costanzo, 1997). In addition, murderers are often under the influence of drugs or alcohol. Second, most murderers believe that they will not be put to death. And, they are right. As noted earlier, the probability that they will be executed is very low. Of course, many murderers believe they will not even be caught or that, if they are caught, they will not be convicted or sentenced to death. Third, it is not clear whether the prospect of being executed elicits more or less fear than the prospect of life in prison without parole. Life in prison without hope of release may be no less frightening than the remote possibility of being executed sometime in the distant future.

• Violence Risk Appraisal Guide (VRAG)

o During the past 20 years, several actuarial risk assessment devices have been constructed to improve predictive accuracy. These instruments were created using specific populations and were designed to predict specific outcomes. For example, the *Violence Risk Appraisal Guide (VRAG)* was created by Vernon Quinsey and his colleagues (1998) by following 618 Canadian men who had committed at least one serious violent offense. Approximately 30% of their sample eventually received a new criminal charge for a violent offense during the follow-up period. Researchers selected the 12 variables that best predicted those who reoffended. The final equation achieved approximately 75% accuracy in classifying the original sample into those who would and would not reoffend. Using similar methods, other researchers created instruments to predict sexual recidivism among sex offenders New actuarial instruments for assessing the risk of future sexual offending are being developed.

*Risk Assessment and the Law* • Preventative detention

o Holding someone in jail or hospital because he or she might become violent o Some argue this is ethically problematic

1. What reasoning led to the decision that SVP laws did not violate double jeopardy and ex post facto law?

o Kansas v. Hendricks (1997) (U.S. Supreme Court) o SPV laws did not violate double jeopardy and ex post constitutional concerns o Because laws imposed civil confinement rather than criminal punishment and that constitutional restrictions on punishment only applied to criminal matters o The Court also held that the Kansas SVP law did not violate substantive due process

1. What factors may lead to known rates of sexual offenses being inaccurate?

o Many unreported sexual crimes o Researchers can only example self-reports, arrests, and convictions

1. What has proven most effective in exonerating inmates on death row?

o Perhaps the most important recent development in the death penalty debate has been the use of DNA evidence to prove the innocence of people on death row. In 18 cases so far, some form of biological trace evidence (e.g., skin under the fingernails of a victim that fought against her killer, a semen stain on the panties of a victim of rape and murder) was used to identify the real murderer and to exclude the wrongly convicted person (innocence project, 2014). Although it is essential for prisoners on death row to have access to DNA testing that may exonerate them, DNA is only useful in a small minority of murder cases. To make use of DNA testing to prove guilt or innocence, biological evidence (e.g., blood, semen, saliva, skin) must be available. In most murder cases, biological evidence does not exist—either none was left at the scene or none was properly collected at the scene, or if it was collected, it was not preserved by police.

• SVP objectives- the basis of civil commitment laws is two fold

o Police power o Parens Patriae power

1. Discuss the issues around politicians who use simplistic polling data as evidence for Americans' support for the death penalty.

o Politicians and media pundits often note that Americans support the death penalty. When asked the simple question, "Are you in favor of the death penalty for a person convicted of murder?" just over 60% of Americans typically say "yes" (see Figure 17.1, Jones, 2013). So it is fair to say that, generally, Americans favor the death penalty. However, when asked about alternative punishments (e.g., life without the possibility of parole), American's support for capital punishment drops sharply. For example, in a national poll of registered voters, a clear majority of respondents (61%) preferred a punishment other than the death penalty for murderers. Although 33% favored the death penalty over all other options, 39% favored a sentence of life with no possibility of parole that included restitution to the victim's family, 13% favored life with no possibility of parole, and 9% favored life with the possibility of parole (Death Penalty Information Center, 2010). The perception of strong public support for the death penalty is important because it influences the decision-making of politicians, and because it is occasionally used by the Supreme Court as an indicator of prevailing "standards of decency" among the American public (Bessler, 2012).

*Jurors' Reactions to Risk Assessment Evidence* 1. Why have clinical predictions been shown to have a greater impact on jurors than actuarial predictions and guided professional judgment instruments?

o Research ♣ Clinical predictions had greater impact on jurors ♣ Jurors more likely to believe psychologists using professional judgment and expertise ♣ Clinical testimony easier to understand for jurors

1. What factors have led to the neglect of dynamic predictors and risk management markers?

o Taking All three types of Markers into Account ♣ They are more difficult to measure than historical factors ♣ They generally contribute less to accurate predictions than historical risk factors ♣ They are less well-studied than historical factors

• Involuntary civil commitment To hospitalize someone against his or her will, most states now require that:

o The civil rights movement in the U.S. also had important implications for which types of mentally ill patients could be committed, and for the procedures used to decide whether civil commitment was appropriate. States moved beyond allowing mentally ill persons to be involuntarily hospitalized based solely on a doctor's belief that they needed treatment. o To hospitalize someone against his or her will, most states now require that: ♣ 1. The person suffering from a severe mental disorder that substantially affects their functioning ♣ 2. If future dangerousness is a rationale for their commitment, a mental health professional must predict that the individual will likely cause significant harm to himself or herself or others in the near future.

1. From the perspective of the legal system, which outcome of risk assessment should the legal system worry about the most? Explain your answer.

o They should worry about the two forms of error (false positives and false negatives), especially focusing on decreasing their amount of false negatives (people predicted to be nonviolent who later become violent). This is important because they could potentially prevent violence from occurring if the predictions were accurate.

*Capital Punishment In Context* • Statistics

o U.S. one of few countries with death penalty o 32 states, federal government, military authorize use of death penalty o Four states responsible for 59% of all U.S. executions since 1976: TX, OK, FL, VA; only for aggravated murder o Texas accounts for 38% o Under federal law, capital crimes include treason, espionage, murder in government official, using WMD

Research shows that jurors find instructions given to them by the courts in capital murder trials difficult to understand and often confusing. As a result, their decisions are often influenced by:

prejudice and racial bias.

Scholars argue that it may be more productive to focus on _____ rather than on predicting _____.

prevention and management of violence; violent behavior

In Kansas v Crane (2002), the Supreme Court has clarified the Hendricks conditions for involuntary civil commitment of sexually violent predators. In addition to the mental illness and future danger requirements, the following condition was added:

serious difficulty controlling his or her urges.

According to extensive research, the best predictor of what the verdict will be is the _____ of relevant evidence.

strength

Members of a jury that appear to have a great deal of influence on the deliberation process are referred to as _____ jurors.

strong

Beliefs that other people or forces are controlling one's thoughts or implanting thoughts in one's mind are referred to as:

threat/control-override symptoms.

Predictions made by psychological experts regarding future violence are uniformly _____ by the courts.

upheld

Troy Davis and Officer Mark Macphail

• 1989 officer was working off the clock as a security guard, and there was a homeless person being harassed by an individual. Shortly after he was shot and killed.. Sevestor came forward and said it was Troy Davis. He fled the city bc he feared for his life but he turned himself in... he was sentenced to death. There was 9 eyewitnesses that identified him as the guy and 2 other witnesses said that Davis confessed to them... there was no physical evidence. *10 REASONS FOR INNOCENCE:* 1)) Of the 9 witnesses who appeared at Davis's 1991 trial who said they had seen Davis beating up a homeless man in a dispute over a bottle of beer and then shooting to death a police officer, Mark MacPhail, who was acting as a good samaritan, *7 have since recanted their evidence* 2)) 1 of those who recanted, Antoine Williams, subsequently *revealed they had no idea who shot the officer* and *that they were illiterate*-meaning they could not read the police statements they signed at the tie of the murder in 1989. *Others said they had falsely testified that they had overheard Davis confess to the murder* 3)) Many of those who retracted their evidence said that they had been *cajoled by police into testifying against Davis.* Some said they had been threatened with being put on trial themselves if they did not co-operate. 4)) of the 2 of the 9 key witnesses who have not changed their story publicly, 1 has kept silent for the past 20 years and refuses to talk, and the other is Sylvester Coles. Coles was the man who first came forward to police and implicated Davis as the killer.But over the past 20 years evidence has grown that *Cole himself may be the gunman and that he was fingering Davis to save his own skin.* 5)) In total, 9 people have come forward with evidence that implicates Coles. Most recently, on Monday the George of Board of Pardons and Paroles heard from Quiana Glover who told the panel in June 2009 that she had heard *Coles, who had been drinking heavily, confess to the murder of MacPhail.* 6)) Apart from the witness evidence, most of which has since been cast into doubt, there was *no forensic evidence gathered that links Davis to the killing* 7)) In particular, there is *no DNA evidence of any sort.* The human rights group the Constitution Project points out that *three-quarters of those prisoners who have been exonerated and declared innocent in the US were convicted at least in part of the basis of faulty eye witness testimony* 8)) *No gun was ever found connected to the murder.* --*Coles later admitted that he owned the same type of .38 calibre gun that had delivered the fatal bullets,* but that he had given it away to another man earlier on the night of the shooting. 9)) Higher courts in the US have repeatedly refused to grand Davis a retrial on the grounds that he failed to "prove his innocence." His supporters counter that where the ultimate penalty is at stake, *it should be for the courts to be beyond any reasonable doubt of his guilt.* --how does he prove his innocent anymore than the fact that theres no evidence to support this and that the main person pointing their finger (Coles) is likely the murderer? 10)) Even if u set aside the issue of Davis's innocence or guilt, *the manner of his execution is cruel and unnatural.* If the execution goes ahead as expected, *it would be the fourth scheduled execution date for this prisoner.* In 2008, he was given a stay just 90 minutes before he was set to die. Experts in death row say such *multiple experiences with imminent death is tantamount to torture*

1. How does instruction about jury nullification impact jurors' decisions?

• Despite periodic attempts to restrict or eliminate the power of juries to nullify, nullification remains intact. However, judges almost never tell jurors that they can disregard the law and follow their conscience when deciding on a verdict. This "don't tell" policy may be a reasonable compromise. In one of the few experimental investigations of the effect of informing jurors of their nullification powers, Irwin Horowitz compared juries exposed to several types of cases (I.A. Horowitz, 1988). In some conditions, either the judge or the defense attorney informed the jury that it could ignore the law if following the law would lead to an injustice. When juries were explicitly informed about their nullification powers, they were more lenient toward defendants in a case in which a nurse helped a cancer patient commit suicide and in a case in which a mentally impaired man illegally purchased a handgun. However, these same instructions increased the likelihood of conviction in a drunk-driving case where a pedestrian had been killed. The nullification instructions appeared to give jurors permission to treat sympathetic defendants more leniently and to treat unsympathetic defendants more harshly (I.A. Horowitz, Kerr, & Niedermeier, 2001). • One last point about nullification: Sometimes what appears to be disregard for the law may actually be the result of an inability to understand the law. As noted earlier, jurors do an admirable job of assimilating evidence and remembering it during deliberation. However, they do not understand judge's instructions very well, and deliberation with other jurors does not seem to improve their comprehension. The occasional jury decision that seems irrational can often be traced to the inadequacies of lawyers or witnesses and the confusing instructions provided by the court.

*Types of Risk Factors*

• Historical predictors • Dynamic predictors • Risk management markers

• Involuntary civil commitment • deinstitutionalization

• Involuntary civil commitment o Decision to place someone in a psychiatric facility against his or her will • We already touched on this when we talked about the SVP laws but really those laws are a subset of this broader involuntary civil commitment. • Back then, really u only needed a physician to civilly commit them with out their consent. U are kept there until the hospital determines u are no longer at risk to hurting other people --The number of people housed in mental asylums reached its peak in the mid-twentieth century. Several factors led to a steep decline in the population of mental hospitals thru out the last half of the twentieth century. The so-called *deinstitutionalization* of mentally ill patients was partly motivated by a humanitarian urge to help mental patients lead fuller, more satisfying lives beyond the confines of psychiatric hospitals. The hope was that former mental patients would be reintegrated into the community and would learn to function in the world at large. -However, deinstitutionalization was also partly motivated by the less than humanitarian desire to cut back on the financial cost of hospitalization for mentally ill patients. -• But the unfortunate side effect of deinstitutionalization was that they shut down tons of facilities and so they had no other place to put them except prison... an issue is that the facilities main goal was to provide treatment whereas the prisons main goal is to provide punishment. *Legislative reforms, legal challenges to hospitalization, and the advent of antipsychotic medications all gave strong momentum to the deinstitutionalization movement.* • States differ from state to state on the actual rules in getting someone involuntarily committed but generally they most have the two prongs o Mental disorder affecting functioning o Danger to self or others

*Methods and Outcomes of Risk Assessment*

• Outcomes-will the patient become violent or not? • (true predictions are sometimes called hits, and false predictions are sometimes called misses) True Positive ♣ When it is predicted that a person would become violent and then that person does become violent True Negative ♣ when a person who was predicted not to become violent turns out not to be violent. False Positive ♣ predictions of violence that do not come true False Negative ♣ people predicted to be nonviolent who later become violent

*Errors And Mistakes In Death Penalty* • Overview • Causes of error • Since 1900

• Overview o 68% of death sentences reversed due to errors at trial o at retrial, 82% given lesser punishment; 7% found not guilty • Causes of error o Incompetent attorneys ♣ Misleading jury instructions ♣ Prosecutorial misconduct (suppression of evidence or intimidation of witnesses) • Since 1900 o 416 people wrongfully convicted and sentenced to death: 23 executed o DNA evidence- 140 people exonerated

• Sexually Violent Predator civil commitment (SVP)

• Subtype of involuntary civil commitment • Another reason why these laws were enacted were bc people like Leroy Hendricks were never able to be involuntarily civilly committed. 1) Mental disorder affecting function o Pedophila is a mental disorder, but its not one where it impairs u to the point where u cant function in public o Its not like schizophrenia where u can detect it 2) Danger to self or others o Leroy was in prison for the past 10 years so he wasn't around any children so he wasn't at any risk in the near future to commit any act...this is the case with a lot of sexual predators. • The problem here is that they don't fall under these svp laws but they are at risk of harming others so what do we do with them? *Protection of community* *Kansas v. Hendricks (1997)* ♣ *Broadly defined sexual predator* ♣ *Supreme court determined parens patriae treatment largely unnecessary (1997)* o Broadly defined sexual predator o Bc of this definition is so broad and also personality disorder can apply to nearly all prisoners... (There are many personality disorders and about 2/3 of prisoners meet the personality disorder of antisocial personality). it is unfair to use that. Which basically violates due process but supreme court said it's the states right. He also argued at the time of his commitment that psychiatrists/psychologists agree there really is no treatment for pedophilia, so we put them away but we aren't treating them... the supreme court says that's unneccesary. o Basically supreme court says they can define mental disorder however they want and they do not have to have the intent to treat someone under the svp laws... makes the law very controversial. * Kansas v. Crane (2002) explained criteria to commit an individual under SVP laws* o Explained in detail and added one more prong to the criteria o Crane admitted at court that he could control his urges rather well (unlike leroy) ♣ Mental disorder affecting function ♣ Future Danger to self or others ♣ *Have serious difficulty controlling his/her urges.*

1. Outline the pros and cons of using HCR-20.

• The HCR-20 consists of a checklist of 20 items, 10 assessing "historical" risk factors, 5 assessing present "clinical" risk factors, and 5 assessing future "risk" factors. Each item is scored 0 (absent), 1 (possibly or partially present), or 2 (definitely present). Based on the scoring of the 20 items, the practitioner is supposed to offer a statement concerning whether the assessed individual is low, medium, or high risk (Webster, Douglas, Eaves, & Hart, 1997). Unlike an actuarial instrument, the clinician is not bound to weight the factors in any equation. The clinician can choose to give any amount of weight he or she deems appropriate to any item. • The factors included in the HCR-20 were not based on a specific population that was followed for an extended period of time. Instead, all are factors frequently identified in the research literature. This is an advantage. Because the HCR-20 was not constructed on a specific population, it does not face the same generalizability issues as actuarial instruments. Unlike an actuarial instrument, it also allows the clinician to include relevant dynamic, risk management, or rare risk factors in its prediction. Initial research has also suggested that the HCR-20 outperforms clinical predictions of future dangerousness (Douglas & Reeves, 2009; Douglas & Webster, 1999). • However, the *HCR-20's greatest strengths*—its *flexibility* and its *reliance on clinical decision making*—are also its *greatest weaknesses.* Clinicians using it might combine risk factors in an appealing but inaccurate manner and may be influenced by all the biases associated with clinicians' nonscientific predictions of risk. Yet, *research to date suggests that the HCR-20 and other guided professional judgment instruments outperform unstructured clinical judgment and achieve accuracy similar to actuarial instruments.* • There is little evidence that one particular risk assessment instrument or type of instrument (actuarial, guided professional judgment) outperforms any of the others on a consistent basis. ????

○ Impeachment Evidence

■ A related problem concerns the use of impeachment evidence—evidence meant to damage the credibility of a witness's statements. ■ Here, a defendant may sometimes be asked about prior dishonest conduct for the purpose of establishing the honesty of his or her current testimony. But, instead of using this info in the legally specified manner, research indicates that jurors use it to draw broader conclusions. They are likely to see past dishonest behavior as symptomatic of an enduring predisposition toward dishonest behavior. Here, as in other areas, jurors use a broader conception of justice. In life outside the courtroom, knowledge of a person's past behavior is a key determinant of how we interpret that person's current behavior. ■ It is unrealistic to expect jurors to ignore past convictions, especially if these convictions were for crimes similar to the one being considered at trial. --If the defendant is on the witness stand testifying, the prosecution may bring up evidence that impeaches evidence that shows they are not reliable, such as a past conviction. However, the prosecution cannot bring up that evidence if you don't take the stand.

● Complex Evidence effecting judgment (3)

■ Complex/technical evidence ■ Credentials and presentation by expert witness ■ No overpowering impact on jurors

○ Brutalization effect

■ Executions usually stimulate small increase in murders ■ Stronger for highly publicized executions

● Liberation Hypothesis

○ In most cases, verdicts are determined by strength of evidence bc evidence for conviction or acquittal is compelling ○ However, in cases where the evidence is ambiguous or close, jurors will be "liberated" from constraints of evidence ○ That is, when evidence is weak for guilt, the lack of evidence favoring the defense or prosecution forces jurors to base their decisions on factors such as prior beliefs, past experience, or even prejudice. ○ Is this ok? Give me reasons for and against.

○ Ironic Processes ○ Reactance Theory ○ Broad commonsense notions of justice

○ Ironic Processes ■ One explanation. ■ When we make an effort not to think about something, that thing often dominates our thoughts, especially when we are under stress and much of our mental capacity is already in use. ■ Anyone who has suffered from obsessive thoughts have experienced this effect. ○ Reactance Theory ■ Another explanation ■ According to this theory, people are motivated to maintain their freedom ■ Jurors may perceive the judge's admonition as a threat to their freedom to make a decision based on all the available evidence. Jurors may react to that threat by giving the inadmissible evidence greater weight than they would have otherwise. ○ Broad commonsense notions of justice ■ Third explanation ■ Jurors tend to rely on broad commonsense notions of justice. Even though a piece of info is legally inadmissible, if jurors believe that info will help them to reach the right decision, they are likely to use it.

- Research suggests that attorney's intuition is usually right—you cannot force jurors to forget what they just heard. Indeed, the judge's admonition may sometimes have the opposite of its intended effect—telling jurors to disregard a statement may actually cause jurors to give that statement extra weight - 3 Explanations can account for why this happens:

○ Ironic Processes ○ Reactance Theory ○ Broad commonsense notions of justice

1. Why do corporations get fined more than individuals? Explain the deep pockets hypothesis in detail.

○ Many have attributed this finding to the fact that corporations have more money—"deeper pockets," as it is commonly expressed. But researchers have found that the more important reason is that corporations are expected to behave more responsibly than individuals

*Jury Reform* ● Two reformer groups

○ Moderate Reformers: ○ Radical Reformers:

*The Effects of Biased Information* ● Pretrial publicity affecting judgment

○ Negative publicity affects judgment ○ Change of venue can be a remedy • Making a murder- when they held a press conference and said heres our case and all of our evidence... all of those lawyers watching now got a preconception to be against him already. • One way to remedy this is a change of venue. Usually the defense lawyer will urge the judge to change the venue of the trial.. if the murder took place in Alachua county they would try to get it to maybe Miami so the effect of publicity isn't as strong... its effective but problem is judges rarely allow this to happen

● Jurors ○ no ???? ; ○ ______ spectators ? ; ○ cannot ○ must ○ suspend?

○ No established relationships; no relationship after trial ○ Passive spectators in court; cannot question at trial ○ Cannot discuss with friends/family ○ Must absorb and store information ○ Suspend judgment until all evidence submitted Juries are unusual groups regulated by unusual rules. -First, juries are comprised of ppl who may have little in common and no established relationships. It is likely that the people who serve on a particular jury have never met before the trial. And, after the verdict, they may never see each other again. -Second, during the trial, jurors are relatively passive spectators of the courtroom proceedings. They are usually not allowed to question lawyers or witnesses, and they are not permitted to discuss the impending decision with friends or family. -Finally, jurors are expected to absorb information, store it up for later use in the deliberation room, and suspend final judgment until after all the evidence has been presented. -*The hope is that jurors will rely on the evidence, be guided by the law, and that any biases or misunderstandings will be counterbalanced or corrected during group deliberation.*

● Methods

○ Simplify instructions to jury ○ Provide Pre-instructions to jury ○ Allow jury discussion during trial

● Impact of evidence

○ Strength of evidence is best predictor of jury verdict ○The reassuring finding that verdict decisions are primarily based on relevant evidence does not mean that only evidence matters. In the study just described, some characteristics other than evidence strength—for example, severity of the charge against the defendant, negative pretrial publicity, and trial complexity—were modestly correlated with verdicts.

● Coker v.Georgia (1977)

○ Supreme Court held that the death penalty was disproportionately severe for the crime of rape. ○ Surprisingly, the shocking racial disparities in the imposition of the death penalty were not an explicit factor in the Court's decision. However, it may have been that research on racial disparity had an influence behind the scenes.

1. Discuss how juror decision making is affected by inadmissible evidence.

○ Sustained objections ○ Ironic processes ○ Reactance theory ○ Impeachable evidence

*The Group Dynamics of Jury Deliberations* ● Research ○ University of Chicago Jury Project of 1950s:

○ University of Chicago Jury Project of 1950s: Data never analyzed; Resulted in statuses banning observation or recording jury deliberations ○ As a result, research on jury deliberation comes from mock jurors or from interviews with real jurors after the case is concluded ● Controversial project where researchers recorded juries deliberating in several different civil trials.. the judges and lawyers of the trials agreed to the recording... but the media outcried it's the privacy of the jury and brought in the idea that researchers are communists. But the researchers said if we want to improve the legal system, we need to study this... as a result of this, the data was never analyzed. ● Now, research comes from mock juries or from interviews Problems with research based on mock juries/interviews? ♣ Mock juries aren't under the same pressure that real juries are ♣ Interviewing the juries afterwards- we get a biased sample. Biased bc not every jury is not willing to participate and also a bias bc what they choose to report and if they forget to mention things.

● Defendant characteristics affecting judgment (6)

○ Wealth, social status, gender, attractiveness do not appear to influence verdicts in any simple or straight forward way ■ Although some evidence suggests that jurors treat good-looking defendants more leniently and treat ugly defendants more harshly, the effect is weak ■ However, if a very attractive defendant uses his or her attractiveness to commit a crime—for example, if a handsome young man seduces rich, older women to steal their fortunes, jurors do take ○ Propensity of criminal behavior ■ Characteristics that seem relevant to a defendant's propensity (propensity) for criminal behavior, like gang membership, also raise the probability of conviction ○ Race ■ The defendant's race appears to interact with juror race in racially charged trials, and there is a small but reliable tendency for people to treat defendants of their own race more leniently ○ Moral character ■ If the moral character of the victim is significantly superior to that of the defendant, jurors tend to judge the defendant more harshly ■ For example, if a drug addict assaults and robs another drug addict outside a house where drugs are sold, he is likely to be treated less harshly than if he assaults and robs a physician outside her home. ○ Injured defendant ■ If the defendant is badly injured during the commission of the crime, jurors are more lenient. ○ Individual vs corporation ■ In civil trials, individuals who are sued tend to be ordered to pay lower damage awards than corporations that are sued for similar bad acts. Many have attributed this finding to the fact that corporations have more money—"deep pockets," as it is commonly expressed. ■ But researchers have found that more important reason is that corporations are expected to behave more responsibly than individuals. ● The group is expected to be well trained and to have checks and balances in place to guard against bad group judgment ■ Consequently, jurors hold them more accountable for the consequences of their decisions.

between 1930 and 1967,

● 455 men were executed for rape ○ 89% were black

*Research On Capital Murder Trials* ● Death Qualification

● Death Qualification ○ During voir dire jurors asked if they can vote for the death penalty as result of guilty plea ○ Death qualified jurors more likely to convict ■ Rehnquists quote ■ Prosecutors can use this to their advantage

● Strong Jurors and power of majority

● Key jurors or jury leader: jurors who seem likely to have a disproportionate influence on deliberation process ● Potential jurors judged to be "strong" are often well educated, articulate, and have high occupational status *Foreperson:* Jury leader; moderator ■ This is the leader of the jury. Although some research suggests the forepersons vote is more strongly predictive of outcome than the votes of other jury members, the juror selected as foreperson does not necessarily exert disproportionate influence on the verdict decision. ■ The role may be more that of a moderator and organizer than a leader and controller. *Leniency bias:* Acquittal more likely with tied or close votes ■ Although majorities usually prevail, what has been called the leniency bias is also at work in criminal trials. That is, in evenly split juries, or almost evenly split juries, where roughly half the jurors favor "guilty" on the initial vote and the other half favor "not guilty," it is much more likely that the final verdict will be "not guilty" ■ Under such conditions, the process of deliberation and the high standard of reasonable doubt seem to favor acquittal. ■ In the deliberation room, jurors who favor acquittal need only to create reasonable doubt, while jurors favoring conviction must find a way to remove nearly all doubt.

*The Death Penalty As A Deterrent To Murder*

● Largely because of a belief in deterrence, early forms of execution were gruesome, slow, and public. More terrifying executions were thought to be more powerful deterrents. And, if more people watched, more potential criminals would be deterred. Executions were festive public events.

● Penalty Phase

● Penalty Phase ○ Aggravating/ mitigating factors unclear to jurors ○ Jurors unclear how to weigh these factors