Topic 7 - juries

Sean "Diddy" Combs Trial - jury issues

charged w

- racketeering

- se trafficking

- transportation for prostituiont *only one he was charged for

- complex due to celebrity status and highliy publicised coverat

jury issues:

1. impartiality due to pre-triial publicity and celebrity status

2. jury diversity

3. shoudl prior familiarity disqualify a juror

how often are juries in canada?

Juries are not common in canada

Small portion of criminal cases go to trial → even smaller portion require a jury

Some offences require a jury, others provide the right to elect a trial by jury - for others not an option

Right to a jury trial - Canadian Charter, s.11 (b)(f) (how many ppl per jury_

12 ppl per jury

- 12 heads are better than 1!

You have the right to be tried by ur peers not just a judge

In theory

- juries must reach a unanimous verdict in canada (aside from civil trials)

- otherwise will be a hung jury

- In some states, a jury can be a majority jury

Jurors are assumed to be...

Jurors are assumed to be...

- blank slayes

- can withold a verdit unil all evidence is hear

- can recall all details of trial

- can evaluate evidence accordign to judges instruction

- Able to judge case only on evidence

Classes of offences in Canada

1. Summary offences

Less serious offences

Tried by JUDGE ALONE (no right to a jury)

Misdemeanor in us

Eg. Theft under 5k, DUI

2. Indictable offences

Most serious crimes, tried by JUDGE & JURY

Felony in US

Eg. Assault, murder, theft after 5k

3. Hybrid offences:

Crown decides whether to proceed summarily or by indictment

Eg. dangerous operation of motor vehicle and they have to decide was there any harm done

how are juries selected

- draw a list of potential jurors from votor registration

- 12 jurors + 2 alts selected in court from larger pool

juror eligability

- 18+

- canadian citizen

- language profficent

- no criminal conviction (unless pardoned)

- some occupations excused (eg member of legal system)

- can be excused due ot hardship

CCRF specifies that the jury must be

1. fair/representative

(jury should reflect wider community)

2. impartial

(jury can judge based on evidence alone)

*NOTE** - this applies to just the selection of jury pool not final 12 composition

R. v. Kokopenace case with jury challenge bc of lack of representativeness

indigenous person who challenges his case bc there wasn't an indigenous person on the jury

Supreme court ruled → We cannot expect every possible social group to be represented

Defendant not entitled to a perfect cross-section of society

- As long as selection was representative then its okay

- You just cannot exclude certain persons

Representativeness applies to only when compiling a jury (electoral rolls), but not its final selection

Jury composition and diversity

diverse juries do better - deliberate longer and discuss evidence in more depth and more accurately

why?

- consiver more diverse perspectives

barriers to having a diverse jury: indigenous ppl

Iacobucci report (2013) found first nations on reserve are very underrepresented on juryies

why?

- lo rates of return from mailouts

- practicle and cultural barriers

- mistrust in justice system

to fix:

- more htan just mailouts...

- inc time to repsond

Just desserts case - jury tampering

white victim and black defendent during a time in toronto with high racial tensions

- judge priotritizes juries that were more racially diverse but this was views as altering the jury as its dif from standard procedure

what is impartiality/impartial juror? and does it matter if a juror beleives they can stay impartial?

- indifferent bw prodecutor and defendent

- Partiality = "attitudinal + behavioral" component

- vs partial juror has preconceived bias

Doesn't matter if the juror believes they can stay impartial

Judicial instructions don't help!

example of case with partial jury (R v. parks)

- blakc man who killed white man in drug exchange

"Ask the jurors even if you are biased, are you ble to put that aside for the case?"

Assumes that people can accurately report their biases

.. lead to challenge for cause

what is challenge for cause

where a lawyer or prosecutor can question a jurors partiality

- if has specific reason can dismiss a juror during selection eg. an obvious bias, conflict of interest, or inability to be fai

eg. fan in the p-diddy trial

the word grooming in the jacob Hoggard case

judge said You weren't able to use the word "grooming in court at the time because the word had too much weight and would be biasing

what is Pre-trial Publicity ?

ex in the jacob hoegard case

= Any type of media that come before the trial

(incl. exposure to inadmissible info)

ex.

- confessions from his other victims

- past criminal record

- stories that put defendents character into question

- credibility of witness

Effects of pretrial publicity on verdicts meta analysis

- Exposure to prejudicial publicity increases guilty ratings

esp. If coverage is emotionally arousing

- Impact may be stronger after deliberation

Jurors talk about this publicity they shouldn't have

Eg. eaton centre shooter - it came out that he was a drug dealer before the trial

Effects of pretrial publicity eperiment

found mock jurors that were esposed led to...

- ↑ gultiy verdicts

- longer snetences

- lower defendent credibility

- mistaken beleive that PTP was trial evidence

Remedies for Partiality

1. delay trial (adjournment) - lets things calm down

2. change venue

3. challenge for cuase by JUDGE (bill c-75)

challenge for cause by judge

- what did it used to be (2)

- jurors used to be the ones to challnege for cause, would question each other "do u think ur racist, nah, alr let em stay"

- Peremptory challenges removed

They would Give u X number of people you can kick off the jury without any reason

Canadian examples where remedies were needed

R v. Pickton (2007) - serial murder case

• Massive media coverage in Vancouver

Abducted prostitutes killed them and fed them to his pigs

• Jury selection was extensive,

instructions emphasized ignoring media

There was a lot of publicity about him before,even books about them

but trial remained local

boomarang effect

when you have a juror judge a same-race defendent more harshly rather than show leniently

if:

- juror is a racial minority on the jury (of minority eg. only 1 black person on jury

- evidence of guilt is strong

why?

- black sheep effect - distance urself from them "black people arent liek him"

Juror personality traits

personality effects are small but meaningful, depending on case context

Authoritarian & Dogmatic jurors

→ more rigid, rule-oriented, proprosecution

• Higher authoritarianism/conservatism

→ more guilty verdicts

jury thinking styleeffects

• Rational processors → rely on logic, less bias

• Experiential processors → rely on emotion, more swayed by extralegal factors

(e.g., attractiveness)

• Extraverted jurors → more likely to acquit

Defendant Characteristics & Verdicts (which make them more guilty, lenient, mixed, ↑ attn)

make more guilty:

- criminal istory/prior conviction

- male and young (harsher in SA cases)

more lenient:

- attractive

mixed;

- highstatus (often perciev gult bc of victim control)

- highprofile case/famous defendent (affecty juror expectations)

↑ jury attention memory:

- sterotype incongruence/unusal traits

Victim Characteristics & Verdicts: sexual history

prior sexual activity --> lower perceived credibility

*think past consent = current consent

*victim blame even if judge instructs opposite

Victim Characteristics & Verdicts: reporting delays in SA

very short or very long delay in SA reporting --> ↑ perceived credibility

moderate delay (eg 10yr) --> jury favours defendent

Victim Characteristics & Verdicts: relgious veils/coverings

↑ credibility

Notes: Supreme Court (R. v. NS, 2012) ruled appropriateness of wearing a veil should be considered case-by-case.

where does research on juries come from (3kinds, which has most research)

1. archival research

2. post-trial research (intervier jurors after -NOT IN CANADA)

3. simulation/mock juries (**where most researcch comes from)

2 models of how jurys make descisions in deliberations

1. mathematical model

(mentally calc importance of each peice of evidence)

(innconsistent with jow jurors report how they reach verdicts)

2. story model

(studies show they put evidence into story format to understadn and process info)

(morelikely tan mathematical)

**however can lead to liberation hypothesis

what is the liberation hypothesis

when evidence is stron for both side jurors feel liberation to consider inadmissible/extralegal info

eg. victim or defendent characteristics, sterotypes, pre-trial publicity

3 types of innadmissible evidence (what is inadmissible evidence)

= irrelivent, overly prejudicial info

1. character evidence (their reputation eg "his neighbors hate him".but fair game if defendent bring up)

2. rape sheild evidence (new so victims secual history cannot be used to suggest consent or ruin their credibility eg. well she slept w him a few days before the alleged assult so..)

3. pretrial publicity (often contains innacurate or inadmissible content)

inadmissible evidence in jacob hoggards trial (4)

1. "highly prejudical labels" in front of jury eg. grooming, luring

2. psychologist testimony on trauma response

3. online allegations of him (anonymous)

4. the dact that he send a video of himself masterbating to the drummer (*even though he did this to both victims so shouldve been relevent)

What the judge says were inadmissible evident, and what is its actual impact on the jury

"the jury will disregard those remarks"

- study found that judge intructions are ineffective

- can even amplify effects (boomarang affect)

what does innadmissible evidence presented in trial have a boomarang effects

1. psychological reactance - juror wants their freedom of thought

2. ironic process phenomenon - eg " dpnt think of a white"

3. belief perseverance - beliefs persist even when disconfirmed

Compex expert evidence ( what is it, does it help)

- testimony from an expert

- hwoever can be confussing, complec and fulll of jargon

- leads to jurors relying on non-evidentory factors eg. the experts characteristics (gender, age, credentials, attractivness)

Juror comprehension & aids

Jurors do not remember, understand, or accurately apply instructions

• Reforms for judges' instructions

• Rewriting instructions

• Written copy of instructions

• Pre- and post-evidence instructions

• Lawyers clarifying instructions

what might help jurors remeber a trial

1. note taking (helful with limited downsides)(however the note taker could have undo influence on the whole jury)

2. asking questions (neither harmful for helpful)

Jury biases & group effects 2

1. leniency bias

(good bias for juries to assume innocence/ prefer aquital over wrongful conviction when the evidence is unclear)

-think resonable doubt standard

2. group polarization

( jury discussion sometimes only helps strengthens the groups initial leanign, so those who first though slightly guilyt feel strongly guilty after and vise versa)

final verdicts - what ussually predicts the verdict

• The first poll predicts the final decision!

80% of the time their initial idea is usually the final verdicts

2 approaches of jurys to get a verdict

1. verdict driven approach

(take a vote, take about evidence relating to law, shorter deliberation)

- verdicts 90% is consistent w/ first vote

- due to confirmation bias (deliberation becomes utrying to prove ur side)

2. evidence driven approach

(hold off on vote and discuss facts issues in the case first to get a credible story)

- longer deliberation

NOTE - we cant control what goes on in deliberation and in Canada we can't even know!!

What if a jury can't agree?

Hung Jury

- First Hung juries may receive exhortation to keep trying

**note - The judge has to be very careful with recharge instructions! Cant say its a public nuisance, or it costly → putting pressure on them to rush to find a verdicts

- Hung jury results in a mistrial

- Can end in judge only verdict or retrial w new jury

Hung Jury Example: Menendez Brothers •

First Trial: Ended in a hung jury - jurors couldn't reach a unanimous verdict •

Second Trial: Both convicted of first- degree murder

→ life in prison without parole

Juror Insight: Deliberations described as a "battle of the sexes," showing deep divisions over abuse claims

Juror Trauma

- jurors are eposes to horrific facts, evidence --> vicarious trauma eg. in paul pernardo case

- you arent able to talk to anyone about being a juror (illegial in canada including a therapist)

- finally gave some jury resources (psych after trial)

New Juror Support Program begun in 2017 (4 1-hour counselling sessions)

Pilot project in BC - jurors supporting jurors

Judge versus Jury (judge only cases) - are judges better at impartiality? how often do they agree on verdicts, whos more lenient?

foudn both judges and juries ....

- fail to disregard inadmissable evidence

- display heuristic errors (eg. influence by attroctivness)

• Kalven & Zeisel (1966) asked judges to render verdicts on cases decided by juries

• Judges and juries agreed roughly 75-80%

• Juries more lenient, esp. with lesser offences

Hockey Canada Trial - whyd the trial become Judge-Only (2)

- lawyer interacted w juror outside of court

- jurors beleive the defense lawyers were mocking them

Justice Maria Carrocia - the judge - what was he verdict and opinon

- "I do not find the evidence of E.M. to be either credible or reliable "

- The hockey boys took consent video while the victim was hammered asking her " you like this right" and she said yes

- "In my view, the complainant exaggerated her intoxication"

- "When speaking on the video, E.M. does not display any signs of intoxication ... she is not slurring her words and speaks clearly and coherently"