legal decision making and restorative justice

bushells case

shall not be dismissed until we have a verdict that the court will accept’

trial by jury

The United States Constitution, the Juries Act 1974 in

England and the European Convention of Human Rights

underline the right for the criminally accused to a fair trial

by an impartial jury.

• The jury system is more than an instrument of justice or

constitution, it is ‘the lamp which shows that freedom

lives’ (Devlin, 1956, pg. 164).

the participant of lay people in the legal system and their collective widom are essential for

a transparent and

fair system of justice (Pyo, 2018).

• Judgement by the community

• Comprehensibility

• Civic participation

do the public support the jury?

Public opinion polls consistently show strong support for

trial by jury (ICM, 2007; Thomas, 2007) with over 80% of

the British public trusting a jury to come to the right

decision and consider trial by jury to be fairer than trial by

a judge (Bar Council, 2002).

role of jury

Judges have the power to direct juries to acquit

an accused where there is insufficient evidence

to convict them, however there is no

corresponding judicial power to instruct juries to

convict.

• Jury equity reflects the capacity of a jury to return

a verdict according to conscience. Delivering a

not guilt verdict despite a defendant having

clearly broke the law.

Will faithfully try the

defendant and give

a true verdict

according to the

evidence

jury selection

Under the Juries Act 1974, to qualify for jury service you

must be:

• registered to vote

• at least 18 years old, and under 76 years old, on the day

that you start your jury service

• resident in the UK, Channel Islands or the Isle of Man for at

least five years since their 13th birthday

• not disqualified from jury service.

Those who are disqualified for jury service are:

• Individuals subject to Mental Health Act 1983 or Mental

Capacity Act 2005

• Individuals currently on bail in criminal proceedings

• Individuals have been sentenced to life imprisonment,

imprisonment or detention for public protection, an

extended sentence five years or more prison or detention

• Individuals who within the last 10 years have served a

prison sentence, received a suspended sentence or had a

community order or other community sentence imposed on

them

juror vetting peremptory challenge

To request the exclusion of a potential

juror without the need for any reason or

explanation- can select people based on who will better support you narrative

• The right of peremptory challenge was

abolished altogether by the Criminal

Justice Act 1988.

• All jurisdictions in the United

States allow for peremptory challenges;

the number depends on the jurisdiction

and the type of case.

juror vetting challenge for cause

To request for a potential juror to be

removed from the juror pool when there

is considerable evidence indicating

there to be bias which prevents the juror

from remaining impartial.

• Voir dire - ‘to speak the truth’.

• Dexter et al. (1992): The questioning of

potential jurors reveals little about their

pre-existing biases

jury research mock jury

allows control of EV

generalisability to real juries limited

jury reaserch interviews with ex-jurors

large sample size with lots of info

cognitive biases of defendants

so jurors understand?

The challenge is meeting the contradictory needs; easy to

understand vs. thorough.

• Juror comprehension of judicial instructions ranges range

from 50 to 70 per cent (Devine, 2012).

• Using objective comprehension tests Reifman et al (1992)

found jurors understood fewer than half of the instructions

that they received at trial.

• Examining English jurors Thomas (2010) found 51% -

69% of jurors felt they were able to understand the

directions of law and when examined only 31%

understood the directions fully.

• For recognition of elements of procedural and substantive

law using a multiple-choice test (Severance et al., 1984)

and true-false questions (Reifman et al., 1992),

comprehension was approximately 70% and 41%,

respectively

do they understand beyond reasonable doubt

Ellsworth (1989) found that jurors were very clear

on the notion that they had to be convinced "beyond

a reasonable doubt" but, at the same time, none of

the jurors were able to define what reasonable

doubt meant

Kramer and Koening (1990) found only 25% of

jurors thought they should return a not guilty verdict

if they had any reasonable doubt.

remedies for juror understanding issues

written summaries of the information for they can digest and better understand the instructions

timing given information at different times

the big issue is CRITICAL THINKING which is hard to mediate

effect of evidence strength of jurors

• Evidentiary strength is probably the most important

determinants of juror’s verdicts (Devine, 2012).

• Devine et al. (2004) reported a correlation of .47 between

conviction and prosecution strength of evidence as rated

by attorneys in post-trial questionnaires.

• Garvey et al. (2004) in an analysis of the verdict of 3,000

jurors found the stronger the evidence against the

defendant the more likely the juror was to convict.

• Some studies have shown a 70% increase in conviction

rates as the evidence against the accused increases

(Devine et al., 2001).

• ‘Virtually all experts in the area agree that the

overwhelming majority of verdicts is decided by the

strength, quality, and presentation of the evidence’

(Kassin and Wrightsman, 1985)

liberation hypothesis

Proposes that jurors are more likely to deviate

from the facts of a case, and therefore allow their

decisions to be influenced by extra-evidential

factors when the evidence against the defendant

is less conclusive (Kalven & Zeisel, 1966),

• i.e. when jurors are ‘liberated’ from legal

constraints such as:

• convincing eyewitness testimony

• recovered firearm

• a clear injury

• The psychological underpinnings for the

the liberation hypothesis lie in dual-process theories

(Eagly and Chaiken, 1993; Petty and Cacioppo,

1986).

ie how do jurors decide when evidence less clear or ambiguous

what are the evidence review routes for clear vs ambiguous evidence

evidence review- clear evidence - central routes - deep processing that is focused on the quality of the evidence or arguments

evidence review-mabiou aor conflicting evidence-peripheral rotes- shallow processing - focus on non-evidentiary factors

pre-trial publicity effect

Meta-analysis (N = 44) on the topic reports a modest

positive relationship ( r = .16) between exposure to

negative PTP and judgments of guilt (Steblay et al.,

1999).

• Negative PTP causes jurors to form negative

impression of the defendant (Otto et al., 1994) and in

turn these impressions can have an extremely

detrimental effect on jury verdicts (Dexter et al., 1992;

Kramer et al., 1990; Otto et al., 1994)

• Hope et al (2004) found that exposure to negative PTP

causes pre-decisional distortion in which jurors

evaluate pro-prosecution evidence more favourably

than its actual probative value (i.e. confirmation bias).

• On the other hand, positive PTP makes jurors less

likely to convict (Ruva and McEvoy, 2008).

RACE IN THE

COURTROOM

Mock juror research has shown jurors to be increasingly

conviction prone, harsher and less likely to give the benefit of the

doubt towards a racial out-group defendant than a racial in-group

defendant (Desantts et al., 1997; Hymes et al., 1993; Lipton,

1983; Perez et al., 1993)

• This disparity appears to also persist at the group level, with

research reporting differences in decision-making according to

the racial composition of the jury. e.g. A mock jury were more

punitive towards an out-group Latino defendant as the proportion

of White jurors increased (Perez et al., 1993).

• Post-trial analyses of actual felony cases has confirmed this

(Daudistel et al., 19999) and analysis of capital cases also

confirms an apparent positive correlation between the number of

in-group jurors on a jury and the likelihood of an out-group

defendant receiving a death sentence (Bowers et al., 2001).

• Three meta-analyses on the topic have been conducted and

confirm a consistent impact of in-group bias on jury decision-

making (Mitchell et al., 2005; Sweeny et al., 1992)

8 more out-group defendants then in-group defendants being

convicted in one hundred otherwise identical cases (Kang, 2011)

models of juror DM- Mathematical approach

• Probability theory (Schum & Martin 1993);

• Algebraic theory (Anderson 1981)

• Stochastic processes (Kerr 1993

• Proposes that jurors engage in a series of mental

calculations in which they weigh up the relevance

and strength of each piece of evidence.

• These calculations translate into a score of the

defendant’s culpability, which can then be compared

to the individuals criterion needed to find the

defendant guilty.

• However, they do not correspond well with

subjective experience reported by jurors (Ellsworth

& Mauro, 1998; MacCoun, 1989; Pennington &

Hastie, 1981)

models of juror DM- explanatory approaches

• Heuristic-Systematic Model (Chen & Chaiken,

1999).

• Cognitive story model (Pennington & Hastie,

1993)

• Explanation approaches portray the juror as an active

decision-maker who interprets, evaluates, and

elaborates on the trial information, rather than as a

passive recipient who merely weighs each piece of

evidence.

• Pennington and Hastie’s (1986, 1992) "story" model

is considered the most widely adopted approach to

juror decision making.

cognitive story model

The Cognitive Story model assumes that jurors actively

construct explanations (or stories) for the evidence

presented to them and decide on the verdict accordingly.

• 3 stages

1. Story construction

2. Verdict representation

3. Story classification

• Empirical data show that jurors have a strong inclination to

construct stories out of the evidence (Pennington & Hastie;

1981; 1988).

• Participants who chose a guilty verdict created different

stories than those who chose the not guilty option

(Pennington & Hastie; 1981; 1988).

• Prosecution used a story-based strategy, jurors convicted

78% of the time this dropped to 31% when it was a witness

based approach (Pennington & Hastie; 1981; 1988)

jury decisions

verdict driven vs evidence driven

verdict driven

Verdict driven: take an early vote and then structure the

discussion around available verdict options, seeking to

identify the option that is most acceptable to jurors

early vote, often quicker less deliberation of evidence

evidence driven

Evidence driven: spend time evaluating the evidence and

attempting to discern the ‘‘truth’’ from conflicting facts. They

tend not to take frequent tallies and sometimes rely on a

final vote merely to formalize their evaluation of the

evidence.

evidence around evidence vs verdict driven

Ellsworth (1989) and Adler (1994) suggest that evidence-

driven deliberations promote more effective decision-

making because they are likely to be less divisive, facilitate

working together and produce more thoughtful discussion.

• 30–50 percent of juries adopt a deliberation style that

focuses on first choosing a verdict rather than

systematically reviewing the evidence presented (Hastie et

al. 1983; Ellsworth 1989; Sandys & Dillehay 1995).

jury vs judge

• Agree 75% of the time

• Disagree 25% of the time

• Juries more inclined to acquit than judges

Why is there a difference between judge and jury

‘Jury Sentiments’ accounting for half of the

disagreements in Kalven and Ziesel (1966). ie jurys more likely to be biased by information

• Evidence Evaluation: Presented with a 3rd party

defense witness jurors were 50% more likely

than judges to acquit (Eisenberg et al., 2005).

• Standard of Proof: Jury have a more stringent

view of proof beyond a reasonable doubt

(Eisenberg et al., 2005; Kalven and Ziesel,

1966).

• If you wanted to know the truth, the judge is the

one to consult; but if you want justice, ask the

jury

therapeutic jurisprudence

Therapeutic jurisprudence (TJ) is an interdisciplinary

approach to the law that seeks to promote the psychological

and emotional well-being of individuals involved in the legal

system.

focuses on-

Law as a social force

Beneficial (therapeutic) or Detrimental (Anti-therapeutic)

Legal rules, processes, policies, actors

Interdisciplinary

Encompasses many aspects of legal system

Imperative for Forensic practitioners and intervention providers

procedural justice

Procedural justice refers to the fairness and transparency of

the procedures used to make decisions and resolve disputes

in legal and other formal settings. The principles of

procedural justice aim to ensure that all parties involved in a

process feel that their rights have been respected and that

they have been treated with dignity and respect.

4 pillars of procedural justice

voice, transparency, fairness and impartiality

what is justice in this context of the 4 pillars

Justice is the first virtue of social institutions

• Justice denies that the loss of freedom for

some is made right by the greater good for

others.

• Does not allow for the sacrifices of a few to

outweigh the advantages enjoyed by the

many

• Equality in citizenship, rights, liberty

• Rights cannot be used for political bargaining

or in the calculus of social interests

justice within process how did the commuity judge fairness

people want a fair system even if they don’t like the outcome

Procedural Justice (Rawls, 1971, 2001;

Thibaut & Walker, 1975)

• The fairness of processes used by those in

positions of authority to reach specific outcomes

or decisions.

• Public attitudes towards authorities and how

they mete out justice (Tyler & Lind, 1992).

• Accounts for relational concerns:

• Neutrality

• Trustworthiness

• Standing & Status

the ideas about what procedural justice is- pure

PURE: No criterion for what constitutes a just

outcome other than the procedure itself

the ideas about what procedural justice is- imperfect

MPERFECT: Independent criterion for what

constitutes a fair outcome, but contains no

method that guarantees a fair outcome will be

achieved

the ideas about what procedural justice is- perfect

PERFECT:

• Contains an independent criterion for what

constitutes a fair outcome

• Contains a procedure that guarantees that the

fair outcome will be achieved

Therapeutic jurisprudence (TJ) is an

interdisciplinary method of legal scholarship that

aims to reform the law in order to positively

impact the psychological well-being of the

people who come into contact with the legal

process.

• TJ involves JUSTICE for all and encompasses

concepts of procedural justice.

• Should be part of the foundation for any legal or

forensic practitioner and help guide their

behaviour.

• The anti-therapeutic consequence of a legal

decision should be avoided.

• Where possible, a holistic solution should be

found that addresses the behavioral, emotional,

psychological, or situational issues of the

accused person without infringing on the legal

process or administration of justice

The Adversarial Legal System

• Characterized by an impartial decision maker who

evaluates contrasting presentations by adversaries to

a dispute, evaluates the merits of those

presentations, and renders a decision that distributes

a positive outcome to one party and a corresponding

negative outcome to the other (Thibaut & Walker,

1978; Van Koppen & Penrod, 2003).

The Inquisitorial Legal System

• Characterized by a decision maker who retains

substantial power to elicit evidence in an inquiry

aimed at discovering the true facts underlying a

dispute (Crombag, 2003; Damaska, 1973; Hayden &

Anderson, 1979

which is better inquisitroy or adversisal

Thibaut and Walker (1978)

• The inquisitorial procedure is optimal for resolving

disputes high in “cognitive conflict’” in which

arriving at the correct factual answer is of primary

importance.

• The adversarial procedure is optimal for disputes

high in “conflict of interest” in which the primary

objective is to allocate resources fairly among

litigants.

Sevier (2014)

• Participants exposed to an adversarial procedure

perceived it to produce verdicts that were more just

than they were accurate. The opposite was found for

those exposed to an inquisitorial procedure.

Lind, Thibaut, & Walker (1973)

• Participants in the adversarial condition transmitted to

the court nearly none of the facts they uncovered that

disfavored their client.

Thibaut et al. (1972)

• Judgments of decision makers in the inquisitorial

condition were influenced by the outcomes of similar

prior cases, whereas the judgments of decision makers

in the adversarial condition were not.

Murrie et al. (2009)

• An average difference of 5.8 points on the PCL-R

between opposing sexually violent predator (SVP)

evaluators in Texas.

The Criminal Justice System in England and

Wales operates to:

• Reduce crime and reoffending;

• To punish offenders;

• To protect the public;

• To provide victims with reparation;

• To increase public confidence,

• To ensure the system is fair and just

RESTORATIVE PRACTICES AND

THERAPEUTIC JURISPRUDENCE

The fundamental unifying hypothesis of restorative

practices is that:

“Human beings are happier, more cooperative and

productive, and more likely to make positive changes

in their behaviour when those in positions of authority

do things with them, rather than to them or for them.”

(Wachtel, 2013).

RESTORATIVE JUSTICE: FOUR “R’S” + 2 MORE

• A system of justice

that focuses on:

• Restoration for

the Victim

• Rehabilitation of

the Offender

• Reconciliation

between, Victims,

Offenders, and

Community

• Reintegration of

Offender into society

aims to resolve conflict and repair harm

aims of restorative justice for offender

Encourages accountability

• Opportunity to make reparation, or restitution

• Awareness of severity and impact of actions

• Less priority on punishment

• Acknowledges behaviour separate from personal

characteristics

aims of restorative justice for victim or conmmunity

Allows for voice/ impact

• Accounts for needs

• Focus on restoring well-

being/ trust

• Acknowledges loss

• Facilitates forgiveness

• Promotes sense of justice

restorative justice practive uk Victim-Offender Mediation (VOM) –

Facilitator assists the disputing parties to reach

an agreement where terms and outcomes are accepted by all parties (all decisions

made by disputants). Communication occurs either directly or through the facilitator

(indirectly).

restorative justice practice uk Victim-Offender Conferencing (VOC)

– Similar to VOM, but includes extended victim

supports and community representatives. Direct contact and mediated by the facilitator.

restorative justice practice uk- Community Conferencing

• Community Conferencing –Large scale conferencing used to resolve antisocial

behaviour by and individual or group that affects the whole community

restorative justice practice uk Victim-Offender Groups (VOG)

Victim-Offender Groups (VOG) – Groups of victim and offenders who meet for a set

number of sessions. All parties have been victims or perpetrators of the same crime

type

restorative justice practices uk referral order panels–

Young offender focused programme to help them become

more aware of the effects their behaviour has on their victims and the community

LIMITATIONS/ CRITIQUES OF RESTORATIVE JUSTICE

• Restorative justice procedures are viewed by some as a further form of victimization

(Pease, 2007)

• The condition of mutual consent is crucial otherwise RJ conferences are unethical – issue of

coercion and power imbalance (Feld,1999)

• Voluntary nature may mean that only those individuals who are more amenable to the

process to begin with take part so there may be a built-in bias in favor of positive results.

• Umbreit et al. (2003) point out that 40–60% of the victims and offenders who are asked to

participate in VOM agree to do so.

• Emphasis is on shaming more than reconciliation or reintegration – also what is meant by

community within RJ is not always clear.

• Only used with less serious crimes (assault & property) – it’s efficacy with more serious and

complex crimes is debatable (e.g. spousal abuse)