Forensic Psyc Final

Three types of offences in Canada

Summary, indictable, and hybrid

Summary Offence

Involves a sentence of fewer than 6 months in prison and a fine of less than $2000

For some summary offences, the maximum sentence is

18 months

Summary offences are tried by

A judge alone

A defendant charged with a summary offence does not have a right to

A trial by jury

Three categories of indictable offences

Less serious, highly serious and other

A less serious indictable offence

Is heard by a judge sitting alone, includes theft (other than theft of cattle), obtaining money or property by false pretenses, and failure to comply with a probation order

A highly serious indictable offence

Must be tried by a judge and jury, includes treason, murder, and piracy

Under section 473 of the Criminal Code, if the attorney general and the accused agree

The trial can proceed without a jury and the judge alone tries the case

Other indictable offences

The accused can choose whether the trial proceeds by judge and jury or by the judge alone. Includes robbery, arson, and sexual assault with a weapon

Other indictable offences include those not listen under section

553 or 469 of the criminal code

When charged with an “other” indictable offence the defendant has the option to choose

To be tried by a provincial or territorial judge without a jury and without a preliminary inquiry, to have a preliminary inquiry and to be tried by a judge without a jury, or to have a preliminary inquiry and to be tried by a judge and jury

If a defendant of an “other” indictable offence doesn’t make a selection regarding trial proceedings

They will have a preliminary inquiry and be tried by a judge and jury

Hybrid Offences

A cross between indictable and summary offences, if proceed by indictment, the maximum sentence is 5+ years in prison

Regarding hybrid offences, if the Crown proceeds summarily, the maximum penalty is

6 months, or 18 months in some cases such as sexual assault

Regarding hybrid offences, the Crown attorney has the power to decide

Whether to proceed with the case as an indictable or summary offence

Regarding hybrid offences, if the Crown opts for a summary offence, the case is tried by

A judge alone, and the defendant does not have the right to a jury trial

The Juries Act

Provincial and territorial legislation that outlines the eligibility criteria for jury service and how prospective jurors must be selected. This legislation varies across jurisdictions, variations include the minimum age to be a juror and the professions that keep individuals exempt from jury duty

Prospective Jurors

Are randomly selected community members who receive a jury summons

Jury Summons

A court order that states a time and place to go for jury duty. Means you’re expected to show up, typically at the courthouse, prepared to be a juror

If you ignore a Jury Summons

May incur a severe legal penalty, such as a fine or jail time

If you are selected from a jury pool

You will be a juror unless one of the lawyers present a challenge to reject you as a potential juror

Canadian criminal trials have

12-person juries

Types of challenges lawyers can use to reject a potential juror

Peremptory challenge or challenge for cause

Peremptory challenge

Crown or defence can use this to reject jurors who they believe were unlikely to reach a verdict in their favour. When using, the lawyers do not need to provide a reason for rejecting a prospective juror

Bill C-75

Removed peremptory challenges

Challenge for Cause

A lawyer must give a reason for rejecting the prospective jurors

Under Bill-75, a challenge for cause is done by

The judge

Information Canadian lawyers have about prospective jurors

Is limited, includes names, addresses, occupation, and physical demeanour.

In 1991, the case R v. Sherrat, resulted in the Supreme Court of Canada indicating two fundamental characteristics of juries

A composition that represents the community in which the crime occurred (representativeness) and a lack of bias on the part of the jurors (impartiality)

Representativeness of Juries

Achieved through randomness, a composition that represents the community in which the crime occurred. Must allow any possible eligible person from the community the opportunity to be part of the jury

Representativeness of juries is achieved through random selection most commonly through sources such as

A community’s telephone directory or voter registry

How the Juries Act impacts representativeness

Lists exemptions for those who cannot serve on a jury, thus limiting the representativeness of the jury pool

The Crown or defence can challenge the composition of the jury by arguing

That is does not represent the community on some characteristic

Representativeness of the jury can apply to

The community and the defendant

R v. Nepoose (1991) represents a case where

The jury for her trial was successfully challenged for having too few women

Key issues with Indigenous representation in jury trials

Those living on reserves are not part of municipal assessment lists that can be used to identify possible jurors, particularly in Ontario

Retired Supreme Court Justice, Frank Iacobucci

Made 17 recommendations to increase Indigenous representation in juries, such as using health record databases and allowing those living on reserves to volunteer for jury duty

In 2018, the Ontario government implemented changes based on Iacobucci’s recommendations such as

Increasing the period to complete juror questionnaires from 5 days to 30, and removed intimidating language regarding non-compliance; created a new division within the Ministry of Attorney General (the Indigenous Justice Division); created the Indigenous Justice Group; funded studies to improve services for Indigenous language speakers; increased the number of First Nation liaisons and expanded the Indigenous Courtworker Program; and allowed the creation of volunteer juror lists in Thunder Bay and Kenora

The Indigenous Justice Group in Ontario

Provides advice to the attorney general on judicial issues impacting Indigenous Peoples in Ontario

Assistant Deputy Attorney General o f Indigenous Justice

Responsible for the development of new programs and services to help support Indigenous peoples in the justice system

The Juries Review Implementation Committee

Composed of First Nation community leaders, Elders, chiefs, and criminal policy directors and lawyers. Responsible for addressing the implementations outlines throughout Iacobucci’s report

The Indigenous Justice Advisory Group

Provides the attorney general with advice on Indigenous justice issues, with the goal of acting as an intermediary between the attorney general and Indigenous leaders and communities in addressing how the Ontario justice system impacts Indigenous peoples. Composed on multiple First Nations members, law enforcement officials and legal professionals

R v. Brown 2005, the Saskatchewan Court of Appeal ordered a new trial based on

The judge’s instructions to the jury not the racial composition of the jury

In the case, R v. Kokopenance (2015) the Supreme Court ruled that

The accused was not entitles to a jury of the same race/religion, but that the accused was entitled to a fair and randomly selected jury

In the case of R v. Stanley (2017), Stanley had

An all white jury and was acquitted

This Bill received Royal Assent in June 21, 2019, and made it law for potential jurors to be disqualified in order to allow for a more diverse jury; the Supreme Court of Canada disagreed with diversity over randomness.

Bill C-75

Issues of juror characteristic impartiality

Must set aside any pre-existing biases, prejudices, or attitudes, and judge the case based solely on the admissible evidence; to be impartial means that the juror must ignore any information that is not part of the admissible evidence; its important that the juror have no connection to the defendant so that the juror does not view the evidence subjectively or unduly influence the other jurors.

A request that prospective juror(s) be dismissed because there is a specific and forceful reason to believe that the person cannot be fair, unbiased, or capable of serving as a juror

Challenge for Cause

Typical Jury Panel Lists

Disclosed to the Crown and defence 10 days before trial

In the case of Troy Gilbert Davey, the Court of Appeal concluded

There was no requirement for the information provided by local police officers to be disclosed; the early release of the jury panel list had no impact on the fairness of the trial; the privacy rights of prospective jurors was not breached since the Crown merely asked the local police for opinions not information contained in any data base; and, there would have been no change in the selected jury members had the comments made by police officers been disclosed.

R v. Guess 1998

Gillian engaged in a sexual relationship with a defendant as a jury member (Gill), and was found guilty of obstruction of justice, sentenced to 18 months in jail. The case is an example of juror impartiality being compromised

A major threat to jury impartiality

Media publicity

Concerns regarding jury impartiality and media publicity

Verdicts will be based on emotion and biased media coverage rather than on admissible evidence

Steblay et al. (1999) found a relationship between negative pretrial publicity and judgements of guilt which reflected

As exposure to negative pretrial publicity increased, so do the number of guilty verdicts

Ruva et al. (2014) found that when mock jurors were presented with only negative pretrial publicity

There were more guilty verdicts and higher guilt ratings for the defendant

Ruva and Geunther (2015) Found that mock jurors exposed to negative pretrial publicity

We’re more likely to reach guilty verdicts, have errors in memory, discussed the pretrial publicity despite being told not to, and the deliberations did not reduce bias originating from pretrial publicity.

Ruva and McEvoy (2008) Found that pretrial publicity, whether negative or positive

Influenced the verdict, as well as the perception of the defendant and attorneys.

Ruva and McEvoy (2008) Found that Positive information biased jurors

Positively toward the defendant, resulting in fewer guilty verdicts

Ruva and McEvoy (2008) Found that Negative information biased jurors

Negatively against the defendant, resulting in more guilty verdicts

Ruva, Guenther, and Yarbrough (2011) found that regardless of the type of pretrial publicity,

Jury verdicts were significantly influenced by news articles

During a preliminary hearing

The Crown presents the evidence against the defendant and the judge determines whether there is sufficient evidence for the case to proceed to trial

In Canada, at the preliminary hearing, the judge typically

Places a ban on the media’s reporting of the evidence before the end of the trial process

Methods for increasing the likelihood of an Impartial Jury include

Change of venue, adjournment, and challenge for cause

When a change of venue occurs it may be argued that

The trial should be moved to another community because it would be difficult to obtain an impartial jury from the local community

A change of venue due to the likelihood of an biased jury is found in what section of the Criminal Code

Section 599(1) of the Criminal Code

In order for a change of venue due to a biased jury to occur, the party raising the issue must

Demonstrate that there is a reasonable likelihood that the local community is biased or prejudiced against the defendant

Factors that may lead to a biased community impacting jury selection

Extensive pretrial publicity, a particularly heinous crime, and a small community in which many people know the victim or defendant

A change of venue due to a biased community/jury

Is not granted very often, and often stays within the province or territory in which the crime occurred.

Adjournments, to increase the likelihood of an impartial jury means

Allowing sufficient time to pass so that the biasing effect of any pretrial prejudicial information has dissipated by the time the trial takes place. AKA delaying the trial until sometime in the future

The limitation of using adjournments to increase the likelihood of an impartial jury

Prospective jurors’ memories fade, and so do witnesses; which may lead the witnesses to forget critical details that they are to testify about. Further, witnesses may move away or die.

Courts ______ call for an adjournment to increase the likelihood of an impartial jury

Infrequently

Challenges for cause to increase the likelihood of an impartial jury

May argue that, although the prospective jury pool may be partial, if questioned, these prospective jurors could be identified and rejected from serving on the jury pool

When using a challenge for cause to increase the likelihood of an impartial jury, the party desiring this must

Demonstrate that there is reasonable partiality in the community from which the jury pool will be drawn

If a challenge for cause to increase the likelihood of an impartial jury is granted, prospective jurors can be

Probed with a set of predetermined questions approved by the judge

If a challenge for cause to increase the likelihood of an impartial jury is granted, the questions that can be asked of prospective jurors are

Relatively few (~5), and only the prospective jurors’ state or mind or thinking can be examined. Attorneys are not allowed to ask prospective jurors about their backgrounds or personalities

Prior to the passing of Bill C-75, the jury selection process in Canada involved

Two individuals being selected from the jury pool and sworn to act as triers; a third person would be selected as a prospective juror who would be questioned by the lawyers or judge while the two triers listened to the answers provided. The triers then discuss the answers with each other to reach a unanimous decision as whether the juror is impartial. If the triers determine that the prospective juror is not impartial the prospective juror would be dismissed and another person would be selected and the process would begin again until 12 jurors were selected.

Issues in evaluating if a challenge for cause is useful for identifying biased individuals

It’s possible for prospective jurors to alter their answers according to whether they want to serve on the jury; prospective jurors may find it difficult to be honest when answering questions about bias that may put them in an unflattering light, especially if the questioning is conducted in open court; and prospective jurors must be aware of their biases and how their biases may influence their behaviour

Nisbett and Wilson (1977) suggest that individuals are ____ of their biases and how their biases affect their behaviour

Unaware

Cases that allowed for a challenge for cause include

R v. McLeod (2005) and the case of Robert Pickton

Jury Functions

Apply the law, as provided by the judge, to the admissible evidence of the case, and refer a verdict of guilty or innocent

Other jury functions include

To use the wisdom of 12 rather than 1 to reach a verdict; to act as the conscience of the community; to protect against out-of-date laws; and to increase knowledge about the justice system

Jury Nullification

Occurs when a jury ignores the law and the evidence, rendering a verdict based on some other criteria

Reasons for jury nullification include

Believing the law is unfair given the circumstances of the case, or the punishment accompanying the conviction is too harsh for the crime

Jury nullification typically occurs when

The case involves controversial issues such as abortion and euthanasia

In _____ the Supreme Court of Canada ruled that Canadian women have the right to a safe abortion

1988

Chaos Theory

Theory that when jurors are guided by their emotions and personal biases rather than by the law, chaos in judgement results

Meissner, Brigham and Pfeifer (2003) found that when mock jurors were given a nullification instruction, they reported

That they relied on their attitudes toward euthanasia and their perceptions of the defendant’s behaviour. Implying that these instructions may influence jury decision making producing both socially favourable and socially unfavourable verdicts.

Kerr et al (2008) Examined the influence of nullification instructions and emotional biases in euthanasia cases and found

Those who heard the nullification or nullification-plus instructions were more sensitive to emotionally biasing information showing that emotional biases influenced verdicts which provides evidence for chaos theory

Ways jurors and jury behaviour can be studied

Post-trial interview, archives, simulations, and field studies

Post-trial interviews in Canada

Are not allowed, all discourse that occurs during deliberations is confidential

Breaking confidentiality is a violation of section ___ of the criminal code

Section 649 of the Criminal Code

In Canada, a juror who discusses any part of the deliberation process would be

Committing a summary offence that carries a fine up to $2000 and/or imprisonment for up to 6 months

Strengths of using post-trial interviews to study juror and jury behaviour

High external validity resulting from using real cases and the actual jurors who deliberated; the results may be more likely to apply to the real world

Limitations of using post-trial interviews to study juror and jury behaviour

Jurors may recall details inaccurately, may forget critical aspects of deliberation, may embellish or downplay elements to present themselves more favourably or may be unaware of the reasons for their decisions and behaviour — conclusions may be based on unreliable data, and cause-and-effect relationships cannot be established; at best can talk about variables that occur together, but alternative hypotheses cannot be ruled out.

Using archives to study juror and jury behaviour involves using

Records of trials, transcripts, and police interviews of witnesses

A strength of using archives for studying juror and jury behaviour

High external validity

Limitations of using archives to study juror and jury behaviour

Inability to establish cause-and-effect relationships, restricted to the data that is available, types of questions that are posed are limited by the information that can be accessed, unable to go back and collect more information, and the researcher is unaware of how the information was collected and the reliability of that information

The most common methodology used to investigate jury issues

Simulation studies

Simulations used to study juror and jury behaviour involves

Simulating a trial or aspects of it by using written, audio, or video formats. The participants are presented with the trial information and the researcher can manipulate the trial information