PSYCH & LAW CHAPTER 12

The Case of the Mitchell-Stans Conspiracy Trial: The Importance of Consistent Jury Selection Procedures

2 men were accused of conspiring 1. members of president Nixon cabinet 2. high profile position in administration and also testified in congressional water committee. judge insisted jury be sequestered. -jurors are put in secured hotel and allowed no communication - high tax pay -scientific jury selection bias jury pool defense requested to move elsewhere and have trial liberal jewish democrat worst possible juror member that reads the NY times paper was distinguished. 5-6 weeks jury trial estimated time 2nd phase of questions asked personal questions of their nature of military service and government affiliation political involvement and water gate scandal. 3 stages of questions. - many were dismissed or prejudiced to the case 50 were left. defense used all challenges prosecution only used 6 challenges. jury of peers was created. 95% of jury was the first few letters of alphabet which showed there was a problem in selection. trial proceeded lasted 10 weeks and not 5-6 one jurors became ill and trial took turn. new juror was biased and was republican made Nixon contribution. in favor of defense. prosecution should have denied him the right to be on jury. he influenced the whole jury. he would have the jury come to private bank and watch private movie. other jurors felt obliged to listen to him. he coerced them and had severel pieces of evidence which was damning to the jury. 12 angry men movie created 1 juror drastically altered the whole jury verdict

The History of the Jury

Ancient Romans: citizen judex system (sort of looked like our jury trial today) • Medieval England: • Trial by ordeal (like by drowning pool) if the accused sank, it was a determination of guilt. if not, would be pulled out for further investigation. • Champions (precursor to attorneys today) also trial by ordeal took place during church mass

The Case of Batson v. Kentucky (1986): Juror Race in Jury Selection

Batson at Trial ongoing tension of race. break-in women house that was burglarized stated black man steal purses and neighbor witnessed black man loitering outside of house for days. • Baton's Appeal Process • The Legacy of the Batson Decision • U.S. Supreme Court held that an opposing attorney could request a meaningful race-neutral explanation for a peremptory strike if suspected the strike was being used solely on the basis of race (a so-called Batson objection) • Subsequent U.S. Supreme Court cases clarified that the Batson objection applies to both sides and to gender ( J.E.B. v. Alabama ex rel. T.B., 1994), and also justified a prisoner to come back to court to argue for release on the basis of having been convicted by an illegally-formed jury (Miller-El v. Cockrell, 2003) J.E.B extended right of Batson to gender. 3x the serving time with prior history. Batson sentenced to 20 years in prison for criminal history. Supreme Court overturned ruling that he was denied right of jury of peers. Supreme Court ruled damaging and stigmatized. voir dire members were excluded on the basis of race.

Individual factors like race in jury selection

Batson v. Kentucky

Limitations on fact (non-expert) witnesses: • Potential unsuitable factors, such as age and capability • Veracity of eyewitness memory in an otherwise suitable witness • Age • Historic per se limitation excluding those younger than 14 (R. v. Love, historic case, 1687); 12 (Young v. Slaughterford, historic case, 1709); 9 and unsworn for still younger children ( R. v. Travers, historic case, 1726) UNTIL • Wheeler v. U.S. (1895): witness cannot be disqualified by reason of age alone • Rules for acceptance of eyewitness identification • Totality of the circumstances of suggestive practices (Stovall v. Denno, 1967); pretrial photo identification and at-trial identification will be set aside only if suggestive practices created substantial likelihood of irreparable misidentification ( Simmons v. U.S., 1968); substantial likelihood of misidentification (Foster v. California, 1969); identifications at the time of the crime essentially immune from challenge (Coleman v. Alabama, 1970) • Neil v. Biggers (1972): influential list of eyewitness identification accuracy factors: 1.Opportunity to view at time of crime 2.Attention 3.Accuracy of prior description 4.Level of certainty 5.Length of time between the crime and the identification

Case Law Regarding Eyewitness Testimony

"Produce/Have the Body"

Habeas corpus latin fir produce the body or have the body. legal document doing the detaining to produce the body of the detainee if he or she can be released from prison. new civil suit • Someone detained by the government (like a prisoner) files a civil lawsuit arguing that he or she is being illegally detained and should be set free, and a court may issue a document, a writ of habeas corpus, to have a hearing(s) to decide the matter • Similar but distinct from an appeal • In an appeal, you're basically arguing for a new trial • In a habeas corpus, you're basically arguing that even though a new trial may not be an option for various reasons, you should still be released regardless • Example where someone can make the same argument in two different cases • Batson v. Kentucky (1986): race-based juror exclusion justifies an appeal case • Miller-El v. Cockrell (2003): race-based juror exclusion also justifies a habeas corpus case

Access to "Discarded" Experts

If prosecution decides not to present the testimony of an expert it used (discards) • must turn over the results to the defense • If defense discards • the prosecution generally cannot then use that same expert in the case (e.g., U.S. v. Alvarez, federal appeals court, 1975; Illinois v. Knuckles, state supreme court, 1995) • Unless, in some jurisdictions, the defendant raises an issue about his/her mental state (U.S. ex rel Edney v. Smith, federal trial court, 1976; Buchannan v. Kentucky, 1987)

The Development of Expert Admissibility Criteria

Important early figures/events: • Hugo Munsterberg's (1908) On the Witness Stand • "Father of forensic psychology" unofficial title • Frye v. U.S. (1923) remains influential ruling became frye ruling general acceptance of field in the law to be allowed into evidence. • Influential standard for expert admissiblity

The Legacy of the Frye Standard

Issues with the Frye test • New science/technology? • Which field? • Federal Rules of Evidence (1987) emphasized a helpfulness standard rather than scientific acceptance in determining admissibility of expert testimony

The Admission of Experts on Eyewitness Testimony

Lack of congruence between social science findings (e.g., about the lack of importance of eyewitness certainty) and the law (e.g., eyewitness certainty as an indicator of accuracy in Biggers) • It's easier to believe that someone saw what they say they saw than the complicated process giving rise to inaccurate memories • The law has long relied on potentially faulty (eyewitness) testimony • Demjanjuk case: expert testimony in this area most commonly focuses on police procedure suggestibility, general psychological factors than can impact accuracy, and the functioning of human memory

Juror selection/scientific juror selection

Mitchell-Sans case

The Case of People v. LeGrand (2002): General Acceptance in a Field and a Misapplication of Expert Testimony

People v. LeGrand (state appellate court, 2002): • Facts • The judge discussed 4 phenomena contributing to eyewitness inaccuracies 1. Confidence-accuracy correlation: related at the time of the initial identification only 2. Post-event information: eyewitness testimony influence by what one saw and information they later received 3. Confidence malleability: confidence can be influenced by things other than accuracy 4. Weapon focus: victims tend to visually attend to perpetrator's weapon during a crime • Interestingly, the judge ruled that these 4 issues were not generally accepted within psychology

Individual Factors in Jury Selection

Race and Juries • Strauder v. West Virginia (1880): law that only Whites can be jurors is unconstitutional based on due process claws and 14th amendment race and ethnicity excluded by law. • Swain v. Alabama (1965): systematic use of peremptory challenges to prevent any African Americans jurors is unconstitutional systematic exclusion over period of time was shown. they should be allowed opportunities to join justice system of law

The Case of Kumho Tire Co. v. Carmichael (1999): Clarifying the Applicability of Daubert

Reaffirmed some prior matters and held that flexible Daubert standard may apply to non-scientific testimony (such as the use of "tests")

Frye, Daubert, and Kumho: Amending the Rules of Evidence

The Federal Rules of Evidence (Rule 702): A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case .

Juror Selection: Acceptance Through Attrition

The Jury Venire • A jury panel or pool (that is, everyone called in for potential jury duty) • The Voir Dire (to say the truth) literal translation is to learn to say • The jury formation process—actually more of an exclusion-based than selection- based process attorney wants to pick all the possible people they do not want, to get them excused • Strikes for cause (unlimited number, for demonstrated bias) commonly used first • Peremptory strikes (limited number, often do not need to state the reason for using one) request for exclusion is a challenge if voir dire member holds bias to be striked for cause. ultimate ruling by judge ex: voir dire is relative or friend of victim or defendant. • Scientific Jury Selection which voir dire will be most beneficial member during trial. someone employed in health field will be pro-defense like refuse to give death penalty. mental health worker will often be more on defense side with mental defect or injury. some mental health practitioners will help attorney in deciding which jury members will be more favorable or unfavorable their case. • Social science research testing prescientific jury selection assumption based on experience, intuition, and legal folklore • Serving as a consultant to attorneys about the implications of this research for their case • Harrisburg Seven case: famous early instance of scientific jury selection vietnam era -plan to kidnap presidential adviser. army of volunteers 1,000 phone interviews public will already be against defense would be unfounded. jury variables that would be beneficial for their case results: female democrat jury ended in mistrial. predicted heavy guilty verdict

Expert Testimony in the Context of Eyewitness Testimony

The law places great faith in eyewitness evidence • The accuracy (and fallibility factors) of eyewitness memory has long been studied by social scientists • There exists a major tension between the results of this social science research, and the law's favoring of eyewitness accounts

The Expert Witness and LeGrand: An Illustration of the Larger Issue

There are problems and limitations in the scientific literature concerning eyewitness testimony—as there are in all areas of research • Is this a valid reason to throw out all research evidence about the fallibility of eyewitness memory? • In LeGrand case, fault might be assigned to the judge, the experts, etc. • Rather than reliance on one or a few expert witnesses in a case to establish general acceptance, it has been suggested that scientific position/consensus documents should be created with wide input from the field, to be endorsed by leading professional organizations

The Admissibility of the DSM

U.S. v. Scholl (federal appeals court, 1999): • Allowed mental health professional to testify about the clinical components of a mental disorder • But disallowed the mental health professional from talking about content from the "associated clinical features" sections of the standard diagnostic text in the mental health field (the DSM) • Because the expert was unable to reference any research to support his connection between the associated clinical features of denial and distorted thinking and tax form Access to "Discarded" Experts falsification (the issue involved in the case)

The Legacy of Daubert

While not all states immediately switched from the Frye test to the Daubert approach, only about a fifth still adhere to Frye or some other standard • Daubert flaw: judges, while tasked with evaluating scientific procedures, are often not well trained in science • U.S. v. Hall (federal appeals court, 1996): distingushed between Newtonian science (Dabuert applied) and social science evidence (Daubert may apply)

• Fact witnesses (includes eyewitnesses) testify to firsthand knowledge -Generally cannot testify about secondhand knowledge (= "hearsay", which is typically inadmissible) • Expert witnesses can offer opinions about parties in a case or about scientific knowledge generally • Mental health expert testimony • has long had its critics • psychologists haven't been able to testify about diagnosis in federal court for all that long (Jenkins v. U.S., federal appeals court, 1962) did the defendant at the time of the crime know right from wrong • there are tensions between psychology and law on issues such as truth and certainty • concerns that mental health testimony is often used to excuse guilt • concerns that psychological science testimony is too persuasive (but a meta-analysis suggested that the average impact of expert testimony on verdicts across different studies was modest) • also from Hooker case: perception as hired guns, importance of credibility, and role in helping the judge or jury understand complicated issues lso from Hooker case: perception as hired guns

testimony of experts raised issue if they are too compelling? 50/50 split decision using or not using mental health expert and the way the case goes

A jury consists of twelve persons chosen to decide who has the better lawyer.

—Robert Frost

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. . . .

—Sixth Amendment to the U.S. Constitution

Trial by Jury: A Right or Requirement?

• Defendants often waive the right to a jury trial if they see a benefit to doing so (like if there are a lot of legal technicalities, or if aiming for predictability) • Ring v. Arizona The History of the Jury(2002): Only a jury can sentence a defendant to death; a judge alone cannot 6th amendment to constitution required jury not judge to determine if aggravating circumstances existed to sentence a defendant to death.

Admissibility of expert testimony

• Frye • Daubert and Kumho

The Case of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993): The Evolution of Qualifications for the Admissibility of Expert Testimony

• Held federal judges serve as gatekeepers for expert admissibility: must assess for relevance and reliability of expert's procedures (not opinions), and recommended (not required) consideration of 4 factors to do so: 1.Scientifically tested? 2.Critically reviewed by peers and published? 3.Known or potentially knowable rate of error of the technique? 4.Generally accepted in the relevant scientific community? • Functionally, this influential case (limited to federal courts) began the end of the use of the Frye test across the states too

Legal Reforms in Jury Selection and Process

• The American Jury system can be inefficient, ineffective, and contradictory • No evidence that improves truth-finding • No guidelines to standardize the process by which jurors gather, combine, and analyze relevant information toward making a decision • Legal technicalities can restrict or void useful pieces of information from jury consideration • Jurors are typically not allowed to ask questions • Discrimination and zealous advocacy • Reform suggestions include procedures to • help the jury (simplify and standardize language and concepts) • obtain more representative juries (penalize avoiders/non-respondents) • even our each side's resources (to increase fairness) ex: O.J Simpson case 16,000 objection were made and only 9,000 sustained.

The Required Number of Jurors

• The traditional number 12 comes from Scandinavia, England, and the idea of Jesus and his 12 Apostles • England later implemented • a right to jury trial (via the Magna Carta—basically a Constitution—of 1215) • perjury (the crime of lying as a witness) and having the jury learn about information from witnesses in court (via the Elizabethan Act of 1562) • Early America adopted much of what Europe did regarding juries, and the number of jurors in America was typically 12 historically • The U.S. Supreme Court decided that a 6-person jury was constitutional (Williams v. Florida, 1970) however, did not establish a minimum number of jurors and also the necessary minimum number if not requiring complete agreement on the verdict (Ballew v.Georgia, 1978) • Fewer than 6 jurors are allowable if require a unanimous verdict (Burch v. Louisiana, 1979)

Establishing a Definition of Expertise: Frye v. U.S. (1923)

•black man arrested for murder of woman. confessed multiple times during interrogation. days before trial frye claimed he was influenced by 1,000 award. blood pressure measure as lie detector test claimed this was defamation Williams Moulton Marston and question about the admissibility of his evidence from the use of the systolic blood pressure test as a lie detection technique • The evidence was excluded under what came to be known as the Frye general acceptance test for expert admissibility not recognized as scientific accepted standard