Transcript Law and Social Psychology Number of Jurors Why 12 Jurors? Based on the concept of a unanimous majority (England in the 14th.

Law and Social Psychology
Number of Jurors
Why 12 Jurors?
Based on the concept of a unanimous majority (England in the 14th century)
• Williams v. Florida (1970) Ruled that as few as 6 jurors is constitutional in some
cases
The performance of this role is not a function of the particular number of the body
that makes up the jury. To be sure, the number should probably be large enough to
promote group deliberation, free from outside attempts at intimidation, and to
provide a fair possibility for obtaining a representative cross-section of the
community. But we find little reason to think that these goals are in any meaningful
sense less likely to be achieved when the jury numbers six, than when it numbers
twelve – particularly if the requirement of unanimity is retained. And, certainly the
reliability of the jury as fact finder hardly seems likely to be a function of its
size (Williams v. Florida, 1970, pp.100-101)
• In two 1972 cases, the Supreme Court ruled that decision rules as small as 9 out of
12 was sufficient in some cases
*** States have the right to reduce the size of the juries and decision rule as long as
they are consistent with level noted by the Supreme Court
Group Dynamics at Work
Sample Pattern of Votes an Actual Jury*
1st vote – 2nd day (A.M.)
2nd vote – 2nd day (P.M.)
3rd vote – 2nd day (P.M.)
4th vote – 2nd day (late P.M.)
5th vote – 3rd day (A.M.)
6th vote – 3rd day (late P.M.)
7th vote – 5th day (A.M.)
8th vote – 5th day (A.M.)
9th vote – 5th day (late P.M.)
10th vote – 6th day (early A.M.)
11th vote – 6th day (A.M.)
12th vote – 6th day (A.M.)
No voting on 7th day
13th vote – 8th day (early A.M.)
5
9
11
8
7
9
10
10
9
9
10
11
7
3
1
4
5
3
2
2
3
3
2
1
12
0
*From Wrightsman, Psychology and the Legal System, 2nd edition
The Jury Pool and Representation Issues
Based on the Jury Service and Selection Act (1968)
Required Sources:
• Voter Registration Lists
Optimal Sources:
• Licensed Drivers
• People on Public Assistance
• Unemployment Lists
• Stratify the sample to issue more jury summons to traditionally underrepresented groups
* Representation is not required for every jury pool; the juries must be representative across
several years
• No agreement on the practical meaning of representativeness (e.g., Louisiana case where
underrepresentation of poor was not found to violate the JSSA
• Study of jury composition in US District Court in MA – Process discriminated against poor,
young, racial minorities, and those with little formal education
Jury Selection or Voir Dire
(Actually a process that excludes potential jurors)
Peremptory challenges: Excluding jurors without having to offer any
specific reasons (number is known in advance and varies by jurisdiction,
type of case, and severity of the charge)
Examples:
Death Penalty cases cases ---
Lesser felonies:
California = 26 challenges for each side
New York = 15 each side
Virginia = 4 to each side
WV = 2 for prosecution
HI, NH = 3 for defense
Federal Government felony cases = 6 for prosecution; 10 for defense
• For cause challenges: Exclusion of jurors for specific reasons such as being
biased, prejudiced against one of the parties, or having a relationship to one of the
parties that creates the appearance of bias:
For cause challenges are relatively rare: Estimate taken from 3 years of jury
selection in New Mexico --- 1/20 eliminated for cause
Peremptory Challenge Issues
What is the purpose of such challenges?
What reasons are used to challenge?
Who gets challenged?
Does its use result in fair and impartial juries?
Some purposes:
a) Eliminate those not sympathetic to one’s side or vice versa
b) Indoctrinate potential jurors
c) Create positive impressions about yourself and case
Juror Selection Approaches
One-Juror-Verdict Theory --- Stresses the importance of selecting one strong-willed,
verbal, and influential juror (one that will possibly become the foreperson)
What can predict this?
•
Social standing (Person’s position in society will mirror their role in the jury)
•
Juror’s opinions as to who was most influential
1) Male
2) Extraverted
3) Relatively taller than other jurors
Similarity-Leniency Hypothesis (those demographically or socially similar to a
defendant will be more lenient toward them
Black Sheep Effect (similarity, if embarrassing to a given group, may lead to harsher
treatment
First 12 Called --- Take the first twelve juror that are brought in
Information Used to Select Jurors
(Type and amount of questions are often impacted by the type of case involved, e.g.,
murder, sexual assault, child abuse, drug offense)
• Most Federal Courts – Judges question potential jurors
• Most Local Courts – Attorneys question potential jurors
Demographic information (e.g., gender, race, social economic status, age, religion,
occupation or occupational level, education, political affiliation)
Overall, a mixed and inconsistent relationship to eventual verdict
Personality Characteristics (e.g., authoritarianism, locus of control, just world
beliefs, Big 5 personality variables i.e., conscientiousness, agreeableness,
neuroticism, extraversion, openness to experience)
Jury Consultant Questionnaires (so-called “scientific jury selection’)
Females as Jurors
• Females not allowed on juries until 1898
• Before 1920, only 4 states allowed females to be jurors (Connecticut did not allow
females to be jurors until 1937!!!)
• In 1966, Mississippi Supreme Court said “The legislature has the right to exclude
women so that they may contribute their services as mothers, wives, and homemakers
and also to protect then from the filth, obscenity, and noxious atmosphere that so often
pervades a courtroom during a jury trial”
(In Hans & Vidmar, 1986, p. 53)
In 1975 (Taylor v. Louisiana), the Supreme Court ruled that juries could not be
restricted to males. It also made it illegal to pay men for service but not women, as
NY did at the time!
Attorney Stereotypes and Use of Implicit Personality Theories
• “I try to get a jury with little education but with much human emotion. The Irish are always
best for the defense. I don’t want a Scotsman, for he has too little human feelings; I don’t want
a Scandinavian, for he has too strong a respect for law as law. In general, I don’t want a
religious person, for he believes in sin and punishment. The defense should avoid rich men who
have a high regard for the law, as they make and use it. The smug and ultra-respectable think
they are the guardians of society, and they believe the law is for them.” --- Clarence Darrow
• “Cabinetmakers and accountants, the adage went, should be avoided because they require
everything in a case to fit together neatly. Carpenters, on the other hand, were said to be more
likely to accept the defendant’s case, since they are accustomed to making to do with available
materials. Like successful poker players and other gamblers, most criminal trial lawyers have
acquired some ‘superstitions’ in their attitude toward jury selection. A nationally known trial
lawyer once told me that he would not accept any left-handed jurors. Along with occupational
criteria, some of the old men of the trade thought that nationality played a critical role in jury
selection. According to the maxim, jurors of Southern European descent tended to be more
sympathetic to a defendant than did more exacting jurors from German or Scandinavian blood.
In all of my years of practice in Iowa, I have yet to encounter the ideal juror --- A Spanish
carpenter” (From Keith Mossman, 1973)
General Voir Dire Questions
Jury/ Court Experience --Have you ever served on a jury before, either in a criminal or a civil case, or as a member of a
grand jury, either in a federal or state court?
Have you ever been a witness?
Previous victim --- Have you or any members of your family or close friends ever been the
victims of this type of charge?
Beliefs & External Information --- Can you set aside any personal beliefs or feelings and any
knowledge you have obtained outside the court and decide this case solely on the evidence you
hear from the witness stand?
Bias --- Do you have any opinion at this time as to the defendant’s guilt or innocence?
Are you acquainted with the Defendant? If so, how?
Decision criteria --- Do you understand that all the elements of the crime must be proven
beyond a reasonable doubt and that if any element is not proven, would you then vote not
guilty?
Decision-making --- During deliberation, if you have formed an opinion, would it be difficult
for you to keep an open mind and listen to the opinion of others?
If a majority of other jurors reached a difference conclusion from you after considering the
evidence, would you be likely to change your opinion to conform to their simply because their
More General Voir Dire Questions
• What is your occupation? Who is your employer?
• What is your employment status (full-time, part-time)?
• What is the principal activity of the company where you work?
• What is your title or position?
• In your work, do you have management or supervisory responsibilities? (This is and
important questions in assessing leadership on the jury panel.)
• What are the occupations of your extended family members (Parents, brothers and
sisters)? This question is often overlooked, yet parents and siblings, especially those
living nearby, exert strong influences on jurors, certainly as important as a spouse’s.
• Have you ever been a member of a trade union?
• Have you ever owned your own business? If yes, please describe?
• Do any other adults live in your household?
• What is your marital status? Do you have children? (Get ages and occupations)
• What city do you live in?
• What other cities have you lived in for more than one year? (Questions about where a
juror has lived give you a sense of how narrow or wide a juror’s exposure to different
people has been.)
• Where did you grow up?
• What is your educational background? What was your major area of study?
• What type of volunteer work have you done? (This is especially important in personal
injury cases, from both plaintiff and defense perspectives.)
From Jury Research Institute (http://www.jri-inc.com/article11.htm)
Specific Voir Dire Questions --- Sexual Assault
• Do you, a relative, or a close friend have any special training, knowledge, education,
experience or expertise in the subject matter of sexual assault?
• Will you have any difficulty sitting and listening to testimony concerning matters of a
graphic sexual nature, and then discussing it with the other members of the jury?
• Is anyone uncomfortable hearing words like penis, vagina, penetration, and
ejaculation? Do you understand that I'm going to have to ask witnesses questions of a
graphic sexual nature? Does that make you uncomfortable? Does it make you view me
differently
• Does the emotional component of these charges give you feelings about sitting on this
case?
• What does rape/sexual assault mean to you?
• If the Judge gives you a definition that is different from your definition, do you have
any problem accepting that?
Specific Voir Dire Questions --- Sexual Assault (cont.)
• Is it ever okay to have sex with someone against his or her will?
• Assuming the answer to the previous question is no, follow up with scenarios that
might pull some bad jurors out of the closet, using common myths….
What if the woman
What if the woman
What if the woman
What if the woman
What if the woman
What if the woman
was wearing a really short skirt and high heels?
went on a date with the man?
had sex with the man on a previous occasion?
was making out with the man for a long time beforehand?
was really drunk?
had a reputation for sleeping around?
• In the context of your own life experience, do you think that consent or agreement is
something we should be free to do or not do, as we choose? Do you think we are also
free or should be free to change our minds if we have agreed to something? Basically,
it's up to us, isn't it?
• Do you understand that sexual assault can happen without the use of a weapon? Do
you agree or disagree that that can happen? Why or why not?
Specific Voir Dire Questions --- Sexual Assault (cont.)
Sympathetic Defendant
•
What does a rapist look like?
•
Can you tell a rapist just by looking at him?
•
Would you agree that some people who look unpleasant are actually really nice?
And, some people who look really nice are actually quite different when you get to
know them?
•
Suppose at the end of the case, I have not convinced you of the defendant's guilt,
but you look over at him and decide he looks like a rapist. Will you vote to convict
him based on his looks? (Answer should be NO).
•
So, if the opposite is true, you are convinced of his guilt, but he doesn't look like a
rapist…. Would you agree you must vote guilty?
•
If another juror said during deliberations that the defendant couldn't have done it
because he looks like such a nice guy, what will you say to him?
Specific Voir Dire Questions --- Sexual Assault (cont.)
• Is it ever okay to have sex with someone against his or her will?
• Assuming the answer to the previous question is no, follow up with scenarios
that might pull some bad jurors out of the closet, using common myths….
What if the woman
What if the woman
What if the woman
What if the woman
What if the woman
What if the woman
was wearing a really short skirt and high heels?
went on a date with the man?
had sex with the man on a previous occasion?
was making out with the man for a long time beforehand?
was really drunk?
had a reputation for sleeping around?
• In the context of your own life experience, do you think that consent or
agreement is something we should be free to do or not do, as we choose?
• Do you think we are also free or should be free to change our minds if we have
agreed to something? Basically, it's up to us, isn't it?
OJ Simpson Jury*
• All Democrats
• Two college graduates
• No one regularly read a newspaper
• 8/12 watched TV tabloid news programs
• Five had a family member with negative experience with law enforcement
• Five thought that the use of physical violence on a family member was
sometimes justified
• 9/12 thought Simpson was unlikely to have committed murder due to his
excellence at football
* Jeffrey Toobin (1996, Sept. 9). The Marsha Clark Verdict. The New Yorker, pp
58-71
Accuracy of Jury Selection
(Many lawyers and authors believe that trials can be won or lost during voir dire)
“Trial attorneys are acutely attuned to the nuances of human behavior, which enables
them to detect the minutest traces of bias or inability to reach an appropriate
decision.” (Former President of the American Trial Lawyer’s Association quoted in
Begam, 1977, p. 3)
Johnson & Haney (1994) examining voir dire processes of 4 trials in Santa Cruz
• Those excused by prosecutors held stronger pro defense attitudes
• Those excused by the defense held stronger pro prosecution attitudes
But, the overall attitudes of 12 randomly selected jurors possessed attitudes
not significantly different from those selected by voir dire
Role of Previous Jury Experience
• Overall, the more experience as a jury member, the greater likelihood of conviction
Accuracy of Jury Selection (cont.)
Analysis of 12 criminal trials in the U.S. District Court in Northern Illinois (Zeisel &
Diamond, 1978)
• In 3 out of 12 cases the actual verdicts were affected by the defense attorney’s use of
peremptory challenges
• Defense attorneys used more peremptory challenges than did the prosecution
(consistent with previous findings)
• Possible role of “active” representation of defense attorneys
“Scientific” Jury Selection Effectiveness
Investigated outcomes of 31 capital cases (Nietzel & Dillehay, 1986)
No use of jury consultants = 61% recommendation of death penalty
Use of jury consultants = 35% of death penalty verdict
(Due to small sample size, these % are not statistically significant)
“Scientific” Jury Selection Effectiveness (cont.)
•
Scientific selection appears to be most useful when demographic, personality, and
attitudinal factors are closely related to juror voting (e.g., death penalty cases)
•
“If a defendant has his or her life … at stake, the jury selection advantages conferred
by scientific selection techniques may well be worth the investment” (Fulero & Penrod,
1990, p. 2)
Outcomes are clouded by the possible effects of other variables such as:
a) presence of jury consultant
b) type of crime
c) attorney diligence
d) trial length/complexity
e) money
Do Jury Members Come To a Trial With a Blank Slate (Unbiased)?
Jury selection in Chicago ---
• Michael Jordan was being sued by film company for
alleging to have backed out of a movie deal (film company
lost money on the movie)
• After 5 hours of selection, only 3 jurors were selected; the
others admitted that their respect for Jordan would affect
their ability to be objective in the case
• Jury found in favor of Jordan; indeed, they awarded
money to Jordan ($50,000) concluding that the film
company did not abide by its monetary obligations
Prosecution-biased jurors vs. Defense-biased jurors
Use of attitude questionnaires:
“Any suspect that runs from the police probably committed the crime”
“Too many innocent people are wrongfully imprisoned”
Watch videos or read transcripts of simulated trials and then give a
verdict individually
Prosecution-biased jurors = 81% conviction rate
Defense-biased jurors= 53% conviction rate
Effect of Pretrial Publicity
--- Negative, emotional publicity
More guilty votes
--- Factual publicity
--- No publicity
•
Most likely to have an effect if public and is highly emotional in content
Meta analysis of pretrial publicity from 1966 to 1997 (Steblay, 1999)
•
Overall, those exposed to negative pretrial publicity = More likely to vote guilty
Effects were stronger when:
1) Participants were potential jurors rather than students
2) Many aspects of the crime and defendant were publicized
3) Publicity was real or true
4) Delay between publicity and trial was greater than 1 week
•
More negative effects in cases of drugs, sexual abuse, and murder versus
rape, embezzlement, armed robbery, and disorderly conduct
Effect of Pretrial Publicity (cont.)
How to reduce this problem?
1) Expanded voir dire process (eliminate those admitting they are biased by the publicity)
Negative, emotional publicity can still affect voting
2) Continuance (postpone trial to a later date)
3) Judges instructions to disregard information heard in the media (quite difficult to do)
4) “Imported” Jurors
5) Change of venue
•
Also, simply connecting a person’s name to a negative event can be problematic
“Sam Jones is not a member of a gang” --- Cognitively, links the person with the
negative event, even though it’s a denial
Jury Selection --- Death Qualification Procedure
Are jurors must willing to vote to impose the death
penalty in at least some cases?
Yes
(Death qualified
juror)
Attitudes
• Authoritarian, Conservative
Demographics
No
(Excusable juror)
Can have a general
objection to the
death penalty and
still be eligible to
serve
• White, Married, Homeowner, Greater $,
Republican
“Behavior”
• Make quicker decisions, less memory for
facts, less skeptical of witnesses, more
satisfaction with other jurors
Significant correlation between
attitudes toward death penalty
(in favor) and guilty verdict, e.g.,
the jurors are “conviction prone”
Beliefs About the Death Penalty and Perceptions of Crime and
Defendant Motives
Mock jurors watch film of the murder of a store clerk
Pro death penalty jurors (compared to those opposed to the death penalty):
1) Greater intent to murder the victim
2) Believed premeditation was present
3) Defendant would be a greater risk to society
Jury Decision Making --- The Story Model
(Pennington & Hastie)
Order of the evidence is presented in order of occurrence (“story
order”) versus “witness order”
Impacts how evidence if categorized and represented in memory
• Prosecution evidence given in story order and defense in witness
order = more likely to convict
• Defense evidence given in story order and prosecution evidence in
witness order = more likely to have innocent verdict
-- Some Rape Statistics -• The U.S. has one of the highest rates of rape among industrialized nations
• Estimate of 75 - 85 rapes per 100,000 annually (Butterfield, 1997)
•(This is 3x higher than England and 2x higher than France, Norway, Spain (e.g.,
Kutchinski, 1988)
--- National Women’s Study (1992)
• 683,000 females were raped in 1990; more than 6x as those reported to police
• Over 2/3 received no physical injuries; 24% had minor injuries; 4% had serious
injuries
• Estimate of 12.1 million females having been raped at least once in their lifetime
• Among rape victims, 61% were raped before age 18
•Rape victims are from all social classes, ethnic groups, and age ---High risk groups include:
• Children and adolescents (15% rapes of those younger than 12; ages 12 - 17, 29%)
(Butterfield, 1997)
• 1 - 12% of those over 50 years old have been raped
Rape Shield Laws
Type of Rape Shield Laws ---
• Legislative (“Radical”) --- Generally disallows evidence of a victim’s past
sexual history (some legislative exceptions that vary by state)
• “Judicial” (Moderate”) --- Generally disallows evidence of a victim’s past sexual
history but allows a judge to decide on the admissibility of this evidence
• Evidentiary --- Admissibility of a woman’s sexual history based on the purpose
for which the evidence is offered at trial
--- California & Delaware (To prove “consent it is not allowed; to prove credibility it
is allowed)
--- Nevada & Washington (To prove credibility it is not allowed; to prove consent it
is allowed)
Rape Shield Laws
Impact of admitting past sexual evidence on:
• Consent ratings
• Assessment of extent of harm to victim
• Verdict
Role of:
• Gender
• Rape-related Attitudes (e.g., Rape Myth Acceptance Scale scores)
Types of Items Included on the Rape Myth
Acceptance Scale
Three dimensions are assessed:
1) Acceptance of Interpersonal Violence
2) Sex-role Stereotyping
3) Adversarial Sexual Beliefs
• Women who dress provocatively deserve what they get
• Women have a secret desire to be raped
• It is okay for a guy to hold a woman down and force her to
have sex if she has led him on by allowing sexual touching.”
• Women say "no" when they mean “yes”
• Men who pay for all the expenses of a date deserve sex
-- Line Up -Composition
Instructions
a) Culprit is in the line-up (biased)
b) Culprit may or may not be present (unbiased)
Lineup Member
1
2
3
(culprit)
4
5
6
No choice
Culprit present
3%
13%
54%
3%
3%
3%
21%
Culprit removed
6%
38%
---
12%
7%
5%
32%
Line Up (cont.)
Sequential Presentation --- Present lineup members one at a time (not all at once)
• Simultaneous presentation = 39% chose innocent person
• Sequential presentation = 19% chose innocent person
Mug-shot-induced bias
View mug shots
View lineup
Memory for pictures shown or
guilty person from scene
• Recommended to insert “fillers” into the photo shots (one’s who generally match
the description offered by a witness)
• Ask how confident a witness is about their choice
• Avoid leading questions to the witness
Unbiased = “What can you tell me about the perpetrator?”
Biased = “Was the perpetrator wearing glasses?”
Eyewitness Testimony
• Yerkes-Dodson Law
Performance
Low
Average
Stress
High
Eyewitness Testimony (cont.)
• Weapons-Focus Effect
• Cross-race-identification process --- More accurate description of those of one’s
own racial group
Why?
Prejudice?
Lack of interracial contact?
Eyewitness Testimony
(witnesses overestimate the validity of eyewitness testimony)
• Power/Impact
Weak evidence
regarding a
store robbery
(owner killed)
% Guilty
verdict
No eyewitness
Eyewitness
18%
72%
Eyewitness with
vision problems:
• (20/400),
• Not wearing glasses
• Saw crime from a
distance
68%
Eyewitness Testimony (cont.)
Memory for facts:
Inaccurate: Witnesses use a comparison process, eliminating one person at a time
• More time spent thinking about who the culprit was
• Unclear to begin with, so used more time to make a decision
Accurate: Face just “popped out” --- no real process used to determine who was
the guilty person
Role of verbalization:
See a crime, then identify guilty party
1) Write a detailed description of the various aspects of the crime scene (38%)
2) Perform an unrelated task (64%)
Polygraph Test
Some Issues:
1) Accuracy
•
False positives (15%)
•
False negatives (15%)
2) Skill of the examiner (e.g., license, experience)
3) Reliability (e.g., agreement between scores and interpretation of examiners)
4) Validity (length of time of test -- 90 minute minimum, conclusions based solely
on the polygraph test results, types of questions asked
EPPA --- The Employee Polygraph Protection Act of 1988 prohibits most private
employers from using any lie detector tests either for pre-employment
screening or during the course of employment.
Other Issues
1) Perceived confidence of witness testimony
• More perceived confidence equates to the belief that testimony is
highly credible [confidence is not a reliable predictor of accuracy]
2) Answer latency of witnesses
•
Quicker answers are viewed as more credible
3) Detail of witness answers
•
More detailed is perceived as more accurate
Children As Witnesses
•
Greater accuracy if they are participants in an incident rather than observers
•
Children over 6 years of age can make accurate identification of those in
lineups
a) If the criminal is actually in the lineup
b) If the child had repeated contact with the accused
Judges Instructions
% Guilty
• Timing
•
Never received
63%
Received after evidence
59%
Received before evidence
37%
Complexity
More complex the instructions, the greater likelihood that they will not be
understood by jurors
Inadmissible Evidence
Murder case
Weak evidence
No guilty votes
Illegally attained testimony from a
wiretapped conversation implying guilt
(e.g., “I got the money to pay you off …
when you read the papers tomorrow
you’ll know what I mean”)
Why?
• Salience
• Psychological
reactance
• Relevant
information hard
to ignore
Overruled;
26% guilty
Objection
Sustained;
35% guilty
Sentencing Factors
1) Jurisdiction (e.g., state)
•
MI -- cocaine possession (> 650 grams) is punishable by life imprisonment
without parole
•
KY -- 5 -10 years with possible parole
2) Type of crime
3) Gender, race of victim and accused
•
Generally, more lenient sentencing for women
•
Black men in GA more than 2x more likely to go to jail as whites committing
the same crime
4) Degree of suffering by victim
•
Greater perceived victim suffering; harsher sentences
Sentencing Factors (cont.)
5) Judge (assignment of a given judge to a trial may be one of the most important
factors)
Example (from Autsin & Williams, 1977):
Scenario given to judges --“Debbie Jones, 18 years of age, appears in court. She was apprehended with her boyfriend in the apartment
of an acquaintance of theirs. There were 7 boys and girls present. Seven roaches or butts were found, none
in Debbie’s hands, and 10 used marijuana cigarettes were found in a bag on the coffee table. Debbie is
charged with ‘Possession of Marijuana.’ Is she guilty or not guilty? As charged or what?
Debbie has no previous record. She attends high school regularly as a senior. She does not appear
particularly apologetic for her alleged use of marijuana, but neither does she appear rebellious against the
‘establishment.’ Her father, in court with her, is branch manager of a national manufacturer of duplicating
equipment.”
Judges verdicts:
Sentences:
Not Guilty --- 29
Guilty --- 18
Probation --- 8
Fine --- 4
Fine and probation --- 3
Jail --- 3