Using trial. Finally, the jury is left with

Using psychological research
evidence, critically evaluate the idea that juries are an outdated institution.

 

1.INTRODUCTION

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In the United Kingdom and United States, the criminal justice system
employs an adversary system. Prosecution and defence present arguments,
evidence, question witnesses and propose a version of the facts of the case
under scrutiny. The process is monitored by a judge, who plays the role of
gatekeeper of the trial. Finally, the jury is left with the  task of deciding the defendant’s fate.

Bornstein and Greene (2011) argue that no other public institution entrusts and
gives a better opportunity to citizens to govern themselves and make important
decisions, in the interest of the general public. However, psychological
research on jury decision making has brought to light concerns with this
institution. It has been argued that members of the public do not have the
appropriate knowledge to make decision on criminal cases (Greene, 2009). In the
following paragraphs, it will be presented issues surrounding jury
decision-making. The present report will examine: problems with judicial
instruction; the effect of complexity and unfamiliarity with legal terms and notions;
group dynamics within juries and their impact in the deliberation processes;
the effect of exposure and judicial admonitions to inadmissible and stricken
evidence; exposure to negative pre-trial publicity. Finally, it will be
presented research on strength and positive aspects of juries and jury-decision
making.

 

2.ISSUES WITH JURY
DECISION-MAKING PROCESSES

2.1. Jury instructions

 

Jury instructions are an important aid to
jurors’ task. Before deliberation, judges have to instruct jurors on the procedures
and, more importantly, on the laws and regulations that are relevant for their
decisions. These instructions are aimed to aid jurors in evaluating the
evidence presented and whether it is consistent with the defendant’s charges
(Koch & Devine, 1999). Juries have to be instructed on principles such as
presumption of innocence until guilt is proven beyond reasonable doubt,
limiting instructions and joinder of charges. However, juries have low levels
of comprehension of these instructions (Rose & Ogloff, 2001). Jury
instructions are believed to intensify the complexity of jurors’ task (Heuer
& Penrod, 1994), due to the unfamiliarity and large quantity of the
information that they are presented with (Lieberman & Sales, 1997). Brewer,
Harvey & Sommers (2004) tested for level of comprehension of jury
instruction in a sample of law students and jury-eligible community sample.

Although students’ comprehension was higher than non-students (60% versus 47%),
findings emphasised the difficulties that jury instruction present to jurors,
regardless of level of expertise. This is problematic because jury instructions
are supposed to facilitate the work of the jury.

Researchers have highlighted the difficulties
that jurors have to understand conceptually what reasonable doubt is. Reasonable
doubt is a “..doubt based on reason, a doubt for which you can give a reason.

It is not a fanciful doubt, or a whimsical doubt, nor a doubt based on conjecture”
(Tanford, 1990; p.78). While it is established that juries must be instructed
to convict or acquit beyond reasonable doubt, it is not compulsory for judges
to explain what reasonable doubt means (Cohen, 1994). When interviewing jurors,
Ellsworth (1989) found that, while they stated to adhere to this standard, they
could not confidently define reasonable doubt.  Even when provided with definitions of
reasonable doubt, jurors understanding did not improve (Kramer & Koenig,
1990): when presented with cases where there was reasonable doubt, only 25%
returned a not guilty verdict. It suggests that juries have concerning difficulties
in appreciating these cardinal standard of the criminal justice system, which is
detrimental to the fairness and rigorousness of trials.

Juries also struggle with understanding and
applying limiting instructions. Judges give limiting instructions to indicate
how and for what purpose evidence can be used or not to deliberate. For
example, judges can indicate that certain evidence is admissible only to
evaluate the defendants’ credibility. Wissler & Saks (1985) asked mock
jurors to use information on prior criminal record of a defendant to assess
his/her credibility. Afterwards, they asked to give a verdict. While
credibility was not affected by presence or type of criminal record, verdicts
were significantly affected. Jurors convicted when defendant had history of
committing similar crime (75% of jurors), different type of crime (53%),
perjury (60%). Given the same case, without any information about the defendant’s
prior history, only 43% of the jurors returned a guilty verdict. These findings
suggest that jurors are not able to use correctly the information given and
that their verdicts often reflect more their personal views on the defendant’s
character, rather than the evidence deemed admissible for deliberation.

 

2.2.

Group decision making in juries

To understand jury decision making, it is
important to investigate whether verdicts are the result of collaborative or individual
contributions. It is an important issue to address in terms of how group performance
differs from individual, in terms of information recall and evidence
understanding. Cognitive psychology can give an insight in how jurors decide as
a group and whether deliberations are beneficial for the fairness of criminal
trials. Maki, Weigold & Arellano (2009) argued that, although group recall
tends to be better than individual performance, collaborative groups recall
fewer words, when compared to non-interacting groups. This “collaborative
inhibition” (Thorley & Dewhurst,2009) also results in greater false word
recognition. It could be argued that the deliberation stage, due to its
collaborative nature, could diminish jurors’ overall performance. It could lead
to issues around the appropriate use of evidence and, more importantly, in
verdicts.

Jurors often suggest to take an early vote
(Diamond & Casper, 1992). There are mix findings on the relationship
between pre-deliberation and post-deliberation verdicts. Davis et al. (1975)
compared pre-deliberation preferences to juries’ final verdict and found that
when 2/3 of the jurors’ initial preferences leaned towards a verdict, the jury
would return that verdict. More recently, Devine et al (2001) found that when
no more than 3/4 of jurors initially preferred a verdict, in 31% of the cases,
it resulted in a hung jury. These findings indicate the cardinal role that
deliberations have in jury verdicts. They provide minorities within juries to
speak up and to influence the group’s decisions. This is important, considering
how crucial deliberations are in the administration of justice. For example,
when comparing holdout jurors’ preference to judges indications, judges in 42%
of the cases sided with the minority (Diamond, Rose & Murphy, 2006). There
are grounds for judges to intervene in the case where unanimous verdict cannot
be reached. They could provide juries additional instructions and clarify legal
procedures that could obstacle jurors’ task.

Another issue to be considered in terms of
group dynamics, is the impact and influence of more confident jurors in
deliberations. Zarnoth and Sniezek (1997) found that self-reported confidence
was the strongest predictor of influence within an interacting group. Their
findings can be applied in the context of juries, which can be seen as
interacting collaborative, goal-driven groups. Zarnoth and Sniezek argued that
confident group members were more talkative, confrontational, diligent when
defending their opinions and more aggressive when questioning the opinions of
the other members of the group. As it is often advised that all jurors should
contribute in the deliberation processes (Salerno & Diamond, 2010), there
could be issues in the case of jurors with poor recall and memory. More
confident jurors could share inaccurate information with the juries.

Consequently, less confident jurors may be swayed and persuaded to accept the
position of the other jurors. It is important therefore to ask whether
deliberations are potentially counterproductive, if they foster false recall (Salerno
& Diamond, 2010).

2.3.

Inadmissible evidence

There is an expectation for jurors to base
their verdicts only on information deemed acceptable by the courtroom (Steblay,
Hosch, Culhone & McWethy, 2006). However, jurors perceptions often can be
altered by exposure to extra-legal evidence (Kassin & Sommers, 1997). For
example, Steblay and colleagues found that inadmissible evidence has a strong
influence in jurors’ deliberations. They conducted a meta-analysis of 48
studies on the effects of judge’s instructions on stricken evidence. They found
that jurors gave a guilty verdict in 46% of the cases. If the jurors received
judicial instruction the effect increased by 6% (52%). They argued that instructions
on inadmissible evidence increased the impact of it in jurors’ decision making
processes. The effect was particularly strong when reason was not given for
inadmissibility of certain evidence. Steblay and colleagues concluded that
jurors’ reluctance to disregard inadmissible evidence reflects the lack of
efficacy of judicial admonitions.

The effects presented in the paragraph above
can be explained cognitively, in terms of the saliency of these information in
the jurors’ minds (Wenzloff & Wegner, 2000). Jurors’ attention is drawn to
the inadmissible evidence because of the judicial admonitions. Saliency of
certain information seems to indicate cognitive differences between jurors.

These differences can be explained in terms of Need for Cognition (NC), a
propensity to engage in critical thinking and in demanding cognitive actions
(Cacioppo & Petty, 1982). A juror high in NC would pay closer attention to
the trial and deliberation, scrutinise the information presented and base
his/her decisions on the reliability and strength of the evidence presented. On
the other hand, jurors with low levels of NC may show little engagement and be
influenced by irrelevant and extra legal information.  Therefore, if the jury is admonished to
disregard some evidence as irrelevant, jurors with high NC will appreciate the
biasing nature of the inadmissible evidence and actively engage in correction
(Wegener, Kerr, Fleming, & Petty, 2000). On the other hand, jurors low in
NC could be distracted by the extra legal information and base their judgement
on them. Sommers and Kassin (2001) tested the effect of inadmissible evidence
(presented as unreliable vs. illegally obtained) on mock jurors’ performance,
controlling for participants’ level of NC. Jurors with high NC showed to
selectively comply to judicial admonitions and a tendency to correct for
perceived biases of the unreliable evidence. Sommers and Kassin concluded that
their findings revealed that jurors high in NC were motivated to reach a just
verdict, more so than individuals low in NC.

2.4.

Pre-trial publicity

Pre-trial publicity (PTP) adds to the many
difficulties that courts have to preserve fairness in a criminal trial. Under
the Freedom of Information Act 2000 (2000 c.36), the public has the right to
receive information held by public authorities. 
However, how information on criminal trials is disseminated and received
to the public is not under the control of courts regulations. Studebaker and
Penrod (2005) report that roughly 1/4 fourth of criminal cases that have media
coverage are affected by prejudicial PTP. They argued that the main concern with
PTP was that it affected  jurors’
perception of the character of the defendant and increased the likelihood of
conviction. Ruva, McEvoy and Bryant (2006) argued that exposure to PTP resulted
in jurors making errors in associating source memory information. They tested
the effect of PTP exposure (absent v. present) and collaboration (collaborative
v. independent jurors) on guilty rating, verdicts and length of sentences. The
found that jurors in the exposure condition were significantly more punitive
and that collaboration did not have an effect on jurors’ responses. It would
appear that exposure to PTP influenced jurors’ perception of the defendants’
credibility. However, group deliberation did not have a significant effect on post
deliberation verdicts, ratings and length of sentence. This suggests that even
when deliberating and appreciating the biasing nature of PTP, jurors’ decisions
is swayed by their knowledge of the case.

            Another issue related to PTP, is the effect of order effect to juries’
evaluations of evidence. Hope, Memon and McGeorge (2004) tested the effect of
exposure to negative PTP (N-PTP) on pre-decisional distortions on 116 U.K
university students. In line with the research presented, they also found that
participants exposed to N-PTP were significantly more likely to return guilty
verdicts. They argued that the order in which the evidence was presented,
together with the exposure to PTP, had a strong impact in juries’
pre-decisional distortion. Typically, prosecutions present first their
arguments and evidence against the defendants. Hope, Memon and McGeorge proposed
that juries’ evaluations carried a built-in pro-prosecution bias (p. 117). Exposure
to PTP and relatively late exposure to pro-defendant arguments and evidence
significantly contributed to jurors’ pro prosecution attitude.

3.POSITIVE
ASPECTS OF JURIES

In the previous section, it has been outlined
the main concerns with juries and jury decision-making in criminal trials. It
is evident from the psychological research presented that the task of the jury
is a complex and potentially stressful one. It is therefore important to ask
the question of whether juries, as an institution, are obsolete or if there is
room for improvement. Although there are many weaknesses with jury
decision-making, there are researchers who claim that the strengths of juries
outweigh the weaknesses (Bornstein & Greene, 2011)

In a study conducted with judges, attorneys and
jurors in 179 criminal jury trials, Devine, Buddenbaum, Houp, Studebaker and
Stalle (2009) found that the strength of evidence (SOE) presented to jurors
correlated from .48 to .62 with jury verdicts. When controlling for SOE, the
researchers found a significant, yet modest effect of extra evidentiary
information on verdicts. Extra evidentiary variables yielded stronger influences
only when SOE presented was rated as moderately strong. Devine and colleagues
concluded that juries base their decisions primarily on how strong and
compelling the evidence presented is, which is in line with the standards of
fairness and rigorousness of criminal proceedings and trials.

It has been shown that jurors take in account
the presence of aggravating/mitigating factors in their deliberations (Miller
& Bornstein, 2006). They show a strong tendency to be more punitive in
cases with high levels of aggravating factors, and more lenient when the case
presented high levels of mitigating factors. Miller and Bornstein tested also
the effect of religious appeals  (use of
Biblical appeal in closing arguments, conversion of defendant during period in
prison, defendant always been Christian, and control condition). They found no
significant differences in the high aggravating conditions, in terms of
verdicts. It could be argued that juries’ verdict confidence was primarily
influenced by the aggravating factors of the case, rather than the potential
impact of the extra-legal factors presented by the defence (e.g. religious
appeal).

It has been suggested that the main concern
with the use of members of the public to deliver verdicts in criminal trials,
is their lack of expertise and familiarity with criminal law and trials.

Eisenberg et al (2005) conducted a study on more than 300 criminal trials and
explored the rates of agreement between jury verdicts and judges’ verdict
preferences. They found that judge-jury agreement was over 70% of the cases
(ranging from 64 to 89%). They controlled for evidentiary strength, complexity
and legal complexity. They found moderate to small impact of these mediating
factors on level of agreement between juries and judges. It could be argued
that the idea that juries should be composed by experts, to ensure fairness and
unbiased deliberations, is potentially erroneous. On the contrary, the findings
reported by Eisenberg and colleagues suggest that level of expertise does not
predict significant differences in verdicts.

Finally, there is evidence that jurors actively
seek coherence when examining the evidence presented in trials (Carlson &
Russo, 2001). They base their evaluation of coherence, not only on their prior
beliefs and knowledge, but also on counsels’ opening arguments, jury
instructions and evidence presented (both admissible and inadmissible).

Although distortion of evidence does occur in favour of verdict preferences, a
study conducted by Carlson, Russo and Meloy (2001) showed that the
pre-decisional distortion of evidence can be eliminated, when jury instructions
and admonitions are given before presenting evidence that could bias the
jurors. This would elicit scrutiny and rigorous examination of the evidence.

4. CONCLUSION

As outlined in the previous paragraphs, there
are many complexities and concerns that need to be addressed when evaluating
the efficacy of using lay people in the criminal justice system. Researchers
have presented many issues with jury decision-making. The main concern is the
highly susceptible nature of non-experts to extra-legal factors and their
unfamiliarity with complex legal terms, concepts and procedures. However, the
psychological researcher mentioned in the last section (see section 3.) suggests
that there are valid reasons for entrusting members of the public with the task
of deliberating and giving verdicts in criminal trials. Juries have shown to be
able to rationally evaluate the evidence when they are given the tools and
instructions to understand that there is either pro-prosecution or pro-defence
biases. Therefore, courts could provide juries with preliminary instructions
and information on the legal matters they are going to take part in. It would
beneficial to allow for notes, questions and midtrial summaries in order to
facilitate and foster better recall of the evidence and witnesses observed  (Bornstein & Greene, 2011). Juries have
shown some difficulty in appreciating the importance of jury instructions and
judicial admonitions (Brewer, Harvey & Sommers, 2004; Steblay, Hosch,
Culhone & McWethy, 2006). This could be easily addressed by allowing for
debriefing from judges in the case of hung juries or stressful and complex
cases. A simplification of jury instructions and a clear explanation of the
admonitions could improve and facilitate the delivery of verdicts.

            The
present report has highlighted weaknesses as well as strengths that arise with
jury decision-making. The question is whether an adversary system is the best
way to deal with criminal trials. It is important to ask whether jury based
systems serve justice that focuses on finding the truth or resolving
controversies. More importantly, law makers should address the question of
whether the current system, as it stands, is susceptible to deception and
manipulation.