lecture 5: Selecting a Jury and Jury decision making

The challenge for cause question (R v. Parks)

" As the presiding judge will tell you, in deciding whether or not the prosecution has proven the charges against the accused beyond a reasonable doubt, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice, or partiality, be affected in any way by the fact that the accused is Black?"

challenge the potential juror

"Do you swear that the evidence to be given by you to this court and triers sworn in this challenge shall be the truth, the whole truth, and nothing but the truth, so help you God?"

swearing in the triers

"Do you swear that the evidence to be given by you to this court shall be the truth, the whole truth, and nothing but the truth, so help you God?" "Do you swear that you will well and truly try whether one of the jurors stands acceptable or unacceptable to try the accused, and a true verdict give according to the evidence, so help you God?" Call first potential juror

triers deliberate

"Triers, how do you find?" Peremptory Challenges* If acceptable, trier #1 rejoins jury pool and can be called as a juror still. The challenged juror becomes the next trier. Swear in juror #1. Swear in triers again. (process done in 1 day max, works well because its based on group decision rather than individual one))

Demographic variables (attractiveness, race, gender, SES, education, income)

1) Attractiveness: -meta analysis done by mazella and feingold (1994) -out of all the extralegal factors, attractiveness is the BIGGEST one that sways jury towards not guilty, or lesser sentence -due to the beautiful is good/halo effect - however when people do swindling (use attractiveness to commit crimes) this effect is reversed, and attractive defendants are more likely to be found guilty (black sheep effect) 2) lower SES is a disadvantage

Biases could influence Jurors based on

1) Expectations and beliefs (change the things we pay attention to) 2) Attention (what we pay attention to changes our perception) 3)Perception (how we interpret situations is based on our preconceived expectations and beliefs)

Strengths/Weaknesses of Jury

1. combines the wisdom of 12 (jury isn't totally representative of the population but they're randomly selected AND more people in jury removes bias so its as fair as it gets). 2. from community (hard to be impartial, especially in small communities when you'd know someone affected by case) 3. shows the conscience of the community a) serve as guardians against rigid laws b) symbolic significance ( eg. in the case of "compassionate homicide" jury believed father and still gave him second degree murder conviction but suggested sentence be lowered, but this was overturned)

challenge for cause

Allows jurors to be challenged to see if they would be impartial with respect to a particular issue. Must establish a reasonable inference of potential bias in the population. Judge decides if challenge is warranted and has final approval over any questions put to the jury. In canada, we are not allowed to put potential jury members on trial (but in states, its more intensive/invasive).

USA jury size vs. Canada

American juries can be as small as 6 people, whereas Canada has 12, size does matter though BECAUSE: 1) 6 member juries are less representative of the population than 12 2) recall fewer aspects of evidence 3) spend less time deliberating (deliberation should be long =fair) 4) less likely to declare themselves hung (b/c there is more pressure on a dissenting member to conform)

Publication Bans

Are usually just assumed in canada (have reasonable limits on freedom of media based on precedent from previous cases). Pre-trial info cannot be published UNTIL jury is selected, even after jury selection, minimal information is published. After case has begun, then full publicity avaliable.

Specific Bias

Based on attitudes/beliefs specific to that case; Pre-trial publicity, rumours, mass media effect etc. Base verdict on something that was heard before the trial (WASN'T in the trial) instead of evidence presented.

Normative Bias

Based on community sentiment; community hates child rapists (more than other communities) because of similar case in past. eg. Rafferty case in Woodstock Base verdict on community belief rather than evidence (revenge mindset, rather than fairness mindset)

which system is better?

CANADIAN! Our system works very well because decision is based on being correct and accurate, and this is based on a group decision rather than just your own opinion. Also, The Canadian one is FASTER, you get a more speedy and efficient trial for the defendant

Jury set up

Canadian system has 12 jurors who must reach a unanimous verdict (every person has to agree or the jury is hung). Trial can continue with no more than 2 members excused, but if less than 10 jurors, its a mistrial, and process starts again. Jurors can only use facts of the case, and laws given by Judge.

R v. Parks

Case where there was a black defendant, case about drug dealing, from Jamaica, charged with assaulting/shooting a white police officer. Challenge for cause was done (a juror would be racially biased, thus challenge for cause was successful), brought air of reality. In the case of R v. Williams (1998), there is native female defendant, and supreme court of canada reiterated the precedent.

Jury vs. Judge trials

Civil trials are most judge only trials. About 2/3 of criminal cases that go to court are resolved without a trial (plea guilty), but the remaining 1/3 are disposed by trial ( half of which use juries, half which use judge alone). With a charge of 5 years or more you have right to a jury.

The story model (pentington & hastie, 1986)

Especially used in adversarial systems; Jurors use the evidence to make a narrative story; then they see if whether the evidence from the guilty or innocent side best fits the overall story.

Extra-legal Biases could influence Jurors

Extra-legal biases= biases that should NOT be used to help decide a case. Exist based on how we perceive the world. Biases could influence jurors on many steps along the way to a verdict (ex. encoding, combining information)

Trier finds juror unacceptable

If triers find juror unacceptable or if either lawyer uses a peremptory challenge, the juror is excused back to the jury office. This challenged juror is free to be called for another jury pool later on.

Jury Selection Canada vs. USA

In Canada: -most cases are judged without a jury -there is presumption that jurors are NOT biased, and can be impartial (b/c of our laws and instructions) -only info available to lawyers is name, address, occupation, demeanor, and physical appearance. - don't allow jury consultants in court room -in challenge for cause, other jurors themselves decide whether a potential juror is biased or not In states: -presume that jurors are inherently BIASED and must be challenged -jurors might make decisions regarding sentencing -lawyers do long and personal challenges, which are adjudicated by trial Judge, often involving jury consultants - in challenge for cause, a judge decides if juror is biased/not

Kramer, Kerr, Carroll (1990) -PTP armed robbery study

In general, biased info (ptp) created MORE guilty verdicts than control. For factual PTP, effect only occurred directly after they saw the info, for cases 12 days later, there was NO EFFECT. For emotional PTP, there were more guilty verdicts regardless of time passed. We tend to remember emotional information better (deeply encoded).

polarization effect

Individuals become MORE extreme in their initial position after a group discussion. ex. Imagine that you're a juror who thinks X is guilty (you're 60-70% confident) and when you go into group discussion and realize everyone else also thinks X is guilty, you will have high confidence levels. ex. Talking to other people about an answer on the exam, and if you discover all 3 of you got the same answer, you'll be much more confident that its correct.

mathematical model

Its explanation based; jurors perform mental calculations to weigh the strength of each piece of info and compare it a decision criteria for guilt (weigh all the evidence and see if you've reached the threshold for guilty).

Presumption of Impartiality

Its the presumption in Canada that jurors will be listen to evidence with an open mind, be impartial and decide the case fairly. Why? b/c of LAW (publication bans exist in canada and are automatically given) and INSTRUCTIONS (jurors are instructed to swear in to be honest, asked to be unbiased, to maintain privacy of case, and to decide on case impartially; selling info about a case/ deliberation is a summary offence) In America, there is a presumption of partiality.

expert testimonies

Jurors are biased for or against expert testimonies depending on type of crime and gender of expert. ex. assume that because more males commit murders, a male expert would be more knowledgeable ex. because females defend themselves more often, a female expert is more knowledgeable in self- defence case.

Representativeness

Jurors are randomly selected; not actually all groups in community or specific peers; representative of wider community; The Statutory exemptions are: 1) people with extralegal knowledge due to their job eg. lawyers, police 2)people with civic duties to the community eg. doctors, firefighters Also, ex-criminals, and people under 18 are not selected, mentally ill people can be exempt (if duty interferes with treatment), relatives exempt due to interest bias, and job/student commitments could lead to exemptions from jury duty too.

leniency effect

Jurors move towards greater leniency. In most mock trials when juror verdicts are split 50/50, a jury leans towards NOT GUILTY (but emotionally biasing info about case can cause them to go opposite way).

Impartiality

Jurors must be impartial and representative of the larger community. Right to jury is meaningless without impartial jurors. Partiality has 2 parts: 1) attitudinal- are you prejudiced? (range from high to low prejudice on a continuum) 2) behavioural- can you control it? (discrimination)- people are able to control their prejudice if they are reminded to be impartial and this awareness of their behaviour is made salient eg. R v. Sherratt, R v. Parks

Function of the Jury

Jury is "fact finders". Their legal function is to render a verdict by determining which of the two contested "realities" are real (in adversarial system). Decisions are only based on admissable evidence (not supposed to use inadmissable evidence from inside or outside courtroom).

The 2 models of Jury decision Making

Mathematical model vs. story model

Adjournment

Most rarely used solution, delay of trial. Pros: time reduced impact of prejudicial information. cons:witnesses don't remember as much information; more witness confidence due to rehearsal; whether time actually reduces the impact of prejudicial information is forgotten (depends on type of info, emotional vs. factual)

Generic Bias

One that we're most familiar with from psychology. It can be racial or ethnic prejudice, sexual orientation prejudice, stereotype endorsement. Base verdict on group membership rather than evidence

When do we use Jury?

Only in most serious cases, like indictable offences

personality traits

People higher in authoritarianism have a pro-prosecution bias (causes them to vote guilty more often). Other personality traits are? Doubtful of justice system, prejudiced etc.

Interest Bias

Person has direct interest/stake in trial; they know the accused, lawyer, judge etc. Relationship to player in trial exists; conflict of interest b/c decision based on relationship rather than evidence.

Canada's Most famous partial juror

Peter Gill and 5 others were charged with 2 gang style killings and (1995). Gillian guess, who was one of 12 jurors, bumped into Gill outside of courtroom and began flirting in court, led to sexual relationship. Peter Gill was acquitted for that charge, and found not guilty. But later when they were seen partying together, police investigated them, and they were both sent to jail. This case set legal precedents because - it was first case of juror with sexual relations with defendant -only case where juror faced legal sanction -only case in Canada, where juror room discussions were made part of public record (b/c jurors became witnesses to Guess' crime)

4 remedies for Bias

Publication bans, adjournment, change of venue, challenge for cause.

Challenge for Cause Process

Select first two triers. Based on the answer to challenge for cause question(s), trier decides if juror is acceptable to unacceptable to sit in upcoming trial. Legally having a bias doesn't mean you're partial. Triers must be sworn in, potential must be asked challenge for cause question, triers deliberate, if juror unacceptable they're asked to leave. --> process not only removes jurors who are obviously prejudiced, but also sensitizes remaining jurors about their duty to be impartial.

What the jury doesn't do

Sentencing, BUT there is an exception with 2nd degree murder. Since the sentence for 2nd degree murder ranges from 10-25 years, the jury can suggest to the judge what a criminal's starting sentence should be (between 10-25 yrs). The judge doesn't have to listen.

Boomerang /Backfire effect (of being asked to ignore inadmissible evidence)

Sometimes just simply telling the jurors to disregard makes them pay even more attention to it e.g. just telling the kid not to run on the deck vs. actually explaining to them why not to run on the deck If given a GOOD REASON to ignore the information introduced, then jurors are more likely to ignore it

Fairness

The public has to think the trial was fair. Public's belief about how fair the legal system is, depends on how fair the legal procedures are. If the procedures seem fair, even defendants are more accepting of their fates.

Change of Venue

Usually have trial where crime occurred, but can change venue if it appears useful for justice. This is done if there is good chance of partiality in the community (eg. when community is too aware of case, and knows people involved personally). Why change? PTP and mass media effects, rumour and gossip. Studies show a positive correlation between amount of PTP and belief that accused in guilty.

Pentington & Hastie 1988

Varied how evidence was presented (either witness by witness, or in chronological/event based order). Result: the easier it was to construct a story, the more likely a verdict matching that story would be made. IV1= Crown prosecution's presentation of evidence IV2= the defense's presentation of evidence In the congruent trial, whoever had stronger evidence won out, but in incongruent trial, whichever side made a story more easily always WON b/c it made more sense to jurors)

Characteristics of the Jury, R v. sherratt (1991)

We are given a jury of one's peers, which is supposed to be: 1) representative of the community where crime took place (but the final 12 jurors may not be completely representative) 2)Impartial (must not be biased, and if biased, must be able to set aside bias and decide case based on evidence presented at trial only) If people are reminded not to act biased, and that they will be observed they are good at acting in neutral manner.

black sheep effect

When evidence is weak/ambiguous, similarity between defendant and juror can lead to extra leniency (you're really pissed off, and think finding X guilty is wrong). But when evidence is strong, can lead to greater punishment and less leniency ( you thought they were similar to you, but they obviously committed the crime, you want to distance yourself from them b/c you think they are terrible).

Summary offences

are minor crimes; can get a max of $5000 fine, and 2 years in prision

4 Sources of bias

interest bias, specific bias, normative bias, generic bias. Verdict is based on bias, rather than weighing of trial evidence .

indictable offences

more serious crimes (such as murder, treason, piracy etc, and in these most serious ones, the accused will be tried in a superior court before judge and jury)

Attitude to Behaviour Process Model (Fazio 1986)

see slide 24, lecture When we are biased towards something we fill in blanks with our preconceived beliefs. You activate attitudes to help you in the decision making process. Two motivations: 1) We want to be correct and accurate 2) we want to be liked by other people Two people could see the exact same thing but if they are biased slightly differently, they could come away with entirely different perceptions of it THEREFORE: If you have any extra-legal biases it could influence how you behave. Sometimes, we have a certain idea of what "victims" look like - for example, from TV, third party information. We can also activate social norms which changes the definition of the event and leads to LESSS biased behaviour (helps us be more correct/accurate).

hybrid offences

somewhere in between; called either way offences; crown has the option to proceed summarily (by judge) or by indictment (judge and jury).

Inadmissible evidence

unless there is a logical reason for ignoring inadmissible evidence, it will still impact the verdict. Inadmissible evidence has greater impact when crimes is LESS severe, and when overall evidence is weak (if strong evidence available, this info is ignored). Suppression is effortful and depletes cognitive resources (inhibitory resources), and inhibition impairs our ability to process.

third variable effect

what happens if the juror and the defendant have an interaction or find common ground? Similarity principle= if someone is similar to you for any kind of reason, you like them more