13.5.3 Decision-making Processes in Juries
The task of decision-making for a jury is unenviable and compounded by the gravity of its importance. Nevertheless, it is necessary for the jury to evaluate the strength of evidence presented and make a decision (Vidmar, 2005). Psychological research into decision-making processes and juror ability suggests that social-cognitive factors may be influential, though there is the same concern about the applicability of analogue studies to the courts.
Jury members are more likely to be influenced by group processes activated during the deliberations that follow a trial, than by a single judge. Many studies have explored the impact on juror discussions of a range of factors including individual differences of jury members and the layout of the courtroom (see Hastie, Penrod, & Pennington, 1983 for a review). Group discussion tends to reinforce majority opinion. Meyers, Brashers and Hanner (2001) observed that the position the majority of mock jurors favoured prior to group discussion became the final verdict in approximately 90% of occasions. In such circumstances, there is a danger of group polarisation: groups make more extreme decisions in the direction of people’s initial judgments. Views, however, tend to polarise less if the case for the prosecution is strong; those in favour of acquittal initially can be persuaded to convict (Arce, Fariña, & Sabral, 1996).
Research in the United States has looked at the quality of deliberation (Gastil, Burkhalter, & Black, 2007). A study of 267 real jurors found that on all measures of deliberative quality (i.e. examination of the facts and judicial instructions; listening and debating opinions) jurors deliberated at a high level of competence. A study by Woolley, Chabris, Pentland, Hashmi and Malone (2010) investigated group performance originally focusing on the cumulative IQ levels of group members as a predictor of better group performance. What they found instead is that groups with higher numbers of more intelligent individuals did not actually do better, but groups with more women did. Further, Clark, Boccaccini, Caillouet and Chaplin, (2007) using the Five Factor Model (FFM) found, in a study of 285 real jurors that deliberated to a verdict, high levels of juror extraversion were associated with not guilty verdicts, especially in criminal cases. Such work suggests that we need to learn more about the interface between psychology and law, and the actual processes involved in jurors’ decision-making in groups.
One way in which jurors assess information is through story modelling. Legal commentators suggest storytelling is an everyday practice that organises information and guides interpretation and judgement processes (Findley & Sales, 2012) or represents a skilled display of communication that holds an audience, stimulates the senses, provokes their emotions, evokes and comments on aspects of reality, yet remains at a distance from it (Schrager, 2000). The latter shows why a story might be the choice of presenting information at trial.
One influential theory of jury deliberation places story-making as a central feature. Pennington and Hastie’s (1991) Story Model proposes that decision-making by juries involves an active, constructive comprehension process in which information is moulded into a coherent mental representation: the story (Pennington & Hastie, 1992). The jury applies a “goodness of fit” to the most acceptable version using principles of coverage, coherence, and uniqueness. This process is thought to occur for even the simplest discourse (Kintsch, 1988). Another model, the construction model applies knowledge structures to construct behavioural scenarios or hypotheses, which are then repeatedly tested for confirmation (Read, 1987).
Finkel and Groscup (1997) put forward a Common Sense Justice Model (CSJM) which notes people have very different conceptualisations of the law than that intended. When there are discrepancies between the law (i.e. the version of events provided by an advocate) and jurors’ common sense, it is unlikely that this person will use legal information when reaching a final verdict. Decisions will be based on jurors’ prior knowledge and expectations, for example, stereotypes of typical crime-related scenarios acquired through mass media, or drawing upon the availability heuristic. Such processes are likely to bias jury decision-making (Finkel, 1995). Case specific information may be used when jurors decide which story is most plausible. Smith (1991) has provided some empirical support for the CSJM. Participants were asked to write down features they thought were associated with different categories of crime (including robbery, assault and murder). In contrast with legally correct information, none of the frequently listed features were predictors of guilt when it came to verdict selection and that despite simple legal instruction on the correct decision process participants’ pre-existing knowledge influenced the outcome. Yet, in real cases, features held by jurors may be more complex and the decision process more flexible.
Green and Brock (2000) suggest that receiving and interpreting a story can cause one to become immersed or “transported” by its content (i.e. the Transportation Imagery Model). Through empathy for its protagonists and vivid mental imagery induced by plot, a story can cause a recipient to disconnect from the physical world and feel absorbed in the events of the narrative itself (Van Laer, De Ruyter, Visconti, & Wetzels, 2014). On this basis, jurors might exhibit changes in emotions, attitudes, intentions and beliefs. Indeed, research has indicated that those “transported” show more (1) story-consistent beliefs and favourable evaluations of story characters, (2) more truth in written narratives and (3) greater story acceptance (Green, Kass, Carrey, Herzig, Feeney, & Sabini, 2008).
In the United States and Australia, trial courts routinely admit visually presented gruesome evidence in the form of verbal accounts and photographs. Bright and Goodman-Delahunty (2006) found that mock jurors who were presented with visual evidence in the form of gruesome or neutral photographs resulted in significantly higher guilty verdicts than the conviction rate without photographic evidence. Those who saw gruesome evidence also reported higher levels of anger toward the defendant than those who saw no photographs. In respect of child witnesses, jurors have also been found to render more guilty verdicts, view the child as credible, and view the defendant as less credible, when the child is perceived to be more emotional (Cooper, Quas, & Cleveland, 2014). Emotion seems to have varying effects on individuals involved in the legal process, including on outcome.
Research on discourse comprehension suggests that story chains, units called episodes (see Trabasso & van den Broek, 1985), have a higher order structure both when considering the discourse itself and when considering the listener’s or reader’s mental representations of the discourse which attempt to apply meaning and thus plausibility to a series of statements or ideas. Therefore, these representations are as important for the interpreter of information as for the conveyer.
Regardless of the model adopted the resultant cognitive processing is central to decision-making and includes a range of relevant cognitions made up of scripts, schemas and heuristics. Schemata, for example, have been identified to explain how people comprehend and remember a spoken or written story. For juries in particular, it has been argued that sense is made of the evidence by constructing “their own stories of the case” (Wiener, et al., 2002, p. 120), with obvious opportunities for bias and misunderstanding. The notion that humans instinctively need to make sense of information is central to the argument, as this hypothesised process can account for jurors making critical and devastating mistakes of interpretation guiding judgement. Understanding juror comprehension remains at an early stage, but story modelling continues to lead much research. The potential disconnect of jurors from the legal process may lead some individuals to seek further information, such as from social media.
13.5.4 Juror Responsibilities
Concerns have been raised around juror access to the Internet during trials, which will have a role to play in forming and making judgements. A few cases illustrate the seriousness with which the courts are viewing the actions of jurors who do not uphold their duties. In 2011 Joanne Fraill admitted she had contacted the defendant via Facebook and was sentenced to eight months for contempt of court in orde
r to protect jury integrity (BBC News, 2011). In the same year, 19-year-old Matthew Banks was given a two-week sentence for pretending to be ill so that he could attend a theatre in place of serving as a jury member (The Guardian, 2011). More recently, Theodora Dallas, a university lecturer, received a six-month sentence for researching the defendant online whilst serving on the jury (The Guardian, 2012). Further, in the case of Dimas-Martinez v. Arkansas, USA, a death penalty was overturned due to a juror “tweeting” during a trial (The StandDown Texas Project, 2011). The judge Justice Donald Corbin wrote, “This court has recognized the importance that jurors not be allowed to post musings, thoughts or any other information about trials on any online forums, … The possibility for prejudice is simply too high…”.
According to preliminary research led by Thomas (2013) almost a quarter of jurors (23%) are unclear about the rules surrounding Internet use during a trial, which may create ideal conditions for “a ‘perfect storm’ of juror contempt” (p. 12). According to Thomas, it is important that jurors are educated and clear about the rules that apply to their conduct whilst serving on a jury, together with the potential individual penalties and impacts upon legal process that may ensue.
13.6 CONCLUSIONS
This chapter has highlighted psychological research on a number of important factors relevant to judicial processes. However, research into many issues is at an early stage and the translation into good practice must be cautious as a consequence. There are many issues, from the impact of demeanour and inconsistency in testimony to the quality and quantity of group discussion, where further exploration is warranted.
In some areas, however, results are much more clear-cut. It is clear that pre-trial publicity should be kept to a minimum, and recent concern has focussed on juror responsibilities and access to the Internet during trials. Nevertheless, given that information exists and influences both judges and jurists, there is a vital need to explore further theoretical bases and why biasing effects occur. The most jury-friendly legal directions also require further clarification in order that jurors can more accurately apply and comprehend information. Further, one might assume that decision- making for judges would be notably less difficult to achieve than for juries. However, anchored narrative work suggests that judges may need to develop critical reasoning and awareness skills, perhaps with the assistance of psychologists. Magistrate bias in decision-making is also evident, signifying research into influential court-culture is sorely needed. Small-group research points toward the requirement to learn more about the actual processes involved in jurors’ decision-making in groups with a focus on real-life studies.
Finally, the whole process of hearing evidence, processing information and making judgements in legal contexts is under-researched, but enough has emerged as to suggest that judicial decision-making can be prone to bias in some circumstances. Effective research on these topics will require input from and the cooperation of magistrates and judges in order to ask informed questions and where necessary, engineer change – witness familiarisation research and discussion of legal reform is evidence of such collaborations.
13.7 SUMMARY
Psychologists have identified a number of important factors relevant to judicial processes. Many issues are at an early stage of research or are based on unrealistic legal assumptions and as a consequence, the application of research findings to actual court practice must be cautious.
Further exploration is warranted in particular on the impact of inconsistency in testimony, the quality and quantity of group discussion, and the theoretical bases of informational influence and biasing effects upon judges and jurists. More jury-friendly legal directions are also required in order that jurors can more accurately apply and comprehend information and instructions.
The theory of anchored narratives suggests judges may need to develop critical reasoning and awareness skills, perhaps with help from psychologists.
Magistrate decision-making appears also to be influenced by extra-evidential factors, signifying the need for further research into court culture. Small-group research points toward the requirement to learn more about the actual processes involved in jurors’ decision-making in groups with a focus on real-life studies.
The process of hearing evidence, processing information and making judgements in legal contexts is under-researched. Effective research on these topics will require input from and the cooperation of magistrates and judges in order to ask informed questions and where necessary, assist in developing fairer and more effective procedures.
Early research shows witness familiarisation can be helpful, though justice systems should develop to best practices to assist witnesses to give of their best evidence to meet the aim of the trial.
ESSAY/DISCUSSION QUESTIONS
Discuss what psychological factors might influence evidence given in court.
Critically discuss the view that cross-examination is necessary to test witness accuracy and completeness.
Critically evaluate the effectiveness of judge and jury decision-making.
Evaluate how jury composition and legal understandings of jurors might influence the verdicts they reach.
ANNOTATED READING LIST
Ashworth, A. (2010). Sentencing and criminal justice. London: Weidenfeld and Nicholson. The aim of the book is to examine English sentencing law in its context, drawing not only upon legislation and the decisions of the courts but also upon the findings of research and on theoretical justifications for punishment.
Hannibal, M., & Mountford, L. (2002). The law of criminal and civil evidence: Principles and practice. Harlow: Pearson. This major introduction to the law of both criminal and civil evidence develops understanding of contemporary law in a practical and academic way.
Hastie, R. (Ed) (1994). Inside the juror: The psychology of juror decision-making. Cambridge: Cambridge University Press. Presents interesting aspects of juror decision-making that include facets drawn from social, cognitive and behavioural psychology and considers the validity of existing research.
Fariña, F., Novo, M., & Arce, R. (2003). Anchoring in judicial decision-making. Psychology in Spain, 7(1), 56-65.
This study reviews judicial judgements to assess impact of bias. Findings are discussed in terms of recommendations designed to mitigate bias.
Kaplan, M. F., & Martin, A. M. (2006). Understanding world jury systems through psychological research. New York: Psychology Press. Examines diverse jury systems in nations around the world and considers impact features upon jury selection, composition, functioning, processes and trial outcomes.
Wheatcroft, J. M., & Ellison, L. E. (2012) Evidence in Court: Witness preparation and cross-examination style effects on adult witness accuracy. Behavioral Sciences & the Law, 30, 821–840. This paper reports the detailed effects of the first study of its kind examining the effects of courtroom familiarisation.
Wrightsman, L. S. (1999). Judicial decision-making. Is psychology relevant? New York: Kluwer Academic/Plenum Publishers. This book examines decision-making by judges using contemporary concepts derived from a psychological viewpoint.
REFERENCES
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Airs, J., & Shaw, A. (1999). Jury excusal and deferral. Home Office Research Development and Statistics Directorate Report No. 102.
Alfini, J., Sales, B., & Elwork, A. (1982). Making jury instructions understandable. Charlottesville, VA: Michie.
Arce, R., Fariña, F., & Sobral, J. (1996). From jurors to jury decision-making: A non-model approach. In G. Davies, M. McMurran, C. Wilson , & S. Lloyd-Bostock (Eds.), Psychology, law and criminal justi
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Ashworth, A., & Hough, M. (1996). Sentencing and the climate of opinion. Criminal Law Review, 776–786.
Ashworth, A., Genders, E., Mansfield, G., Peay, J., & Player, E. (1984). Sentencing in the Crown Court: Report of an exploratory study. Oxford: Centre for Criminological Research.
BBC News UK (2010, November 19). Top judge says internet “could kill jury system”. Retrieved from http://www.bbc.co.uk/news/uk-11796648
BBC News UK (2011, June 16). Facebook juror sentenced to eight months for contempt. Retrieved from http://www.bbc.co.uk/news/uk-13798539
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Bar Council (2005). Guidance on witness preparation. London: Bar Council
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