Early evidence of juries dates back to Egypt, 4000 years ago.
The concept of trial by jury of ordinary citizens originated in Athens.
Jurors were selected by lottery.
The idea spread across Europe and was introduced to Britain by the Normans.
Until 1670, juries could be fined or imprisoned for disagreeing with the judge's verdict.
Australia
Rules vary by state.
Juror eligibility:
Citizenship is required.
Must be at least 18 years of age.
Ex-convicts are excluded.
Certain professions are exempt, including senators, judges, MPs, clergy, barristers, solicitors, medical practitioners, members of the armed forces, and police officers.
Juries are used in Supreme Court or Intermediate court cases, while magistrates handle minor offenses without a jury.
Jury Functions
Main function: Apply the law to the evidence and render a verdict of guilt or innocence.
Utilize the wisdom of 12 individuals.
Act as the community conscience.
Protect against outdated laws.
Jury Nullification: Juries may ignore the law and render a verdict based on other criteria.
This may occur in cases where juries believe the law is unfair.
Characteristics of a Jury
Impartiality:
Lack of bias on the part of jurors.
Threats to impartiality: Pre-existing biases, prejudices, or attitudes, and negative pretrial publicity.
Representativeness:
Ensured through random selection from the community.
Affected by how the original panel is selected, the percentage of the panel that appears in court, who avoids being called, and who is disqualified.
Jury Selection
The court uses voter lists and phone directories to find eligible people for juries.
People are randomly drawn from the list and summoned for duty.
Pretrial gathering of potential jurors from which jurors are selected
Peremptory challenges: Removal of a limited number of prospective jurors without specifying reasons. The number of these challenges is limited.
Challenge for cause: Both parties have an unlimited right to challenge with “cause” – i.e., for a stated reason.
Jury Selection: The process of choosing and shaping the jury through the use of peremptory challenge and challenge with cause.
In the US, this is an extensive process and it is common in high profile cases to hire “Trial Consultants” who assist in selecting a jury that will be sympathetic to particular case.
In AU the use of trial consultants is almost unheard of due to very limited availability of peremptory challenge.
Demographic variables do not consistently predict juror verdicts (Hastie et al., 1983).
Evidence is a substantially more potent determinant of juror’s verdicts than the individual characteristics of jurors.
When the evidence is ambiguous, juror’s personalities and general attitudes have an effect
Scientific jury selection
Attempts to draw correlations between demographics and trial-relevant attitudes
Consultants conduct a survey in the jury population
If prospective juror fits an unfavorable profile, use a peremptory challenge to exclude
Controversial process
Favour: Picking jurors using science is more refined version than intuition. Problem is in the peremptory challenge
Oppose: Problem with representativeness of jury. Tips the scales of justice toward the wealthy.
Studying Jury Behaviour
Post-trial interviews
Archival records
Simulation techniques.
Field studies
1. Post-Trial Interviews
Not possible in many countries because jurors are forbidden by law from disclosing content of their deliberations
Post-trial interviews with jurors from the U.S. can provide a valuable data source
Limitations include:
Social desirability of responses
Inaccurate recall
2. Archival Records
Use records of trials (e.g., transcripts, police interviews)
Limitations include:
Inability to establish cause and effect
Limited in what questions can be asked by the information available for collection
3. Simulation Techniques
Mock jurors are presented with a simulated trial. They are asked to render a verdict or make other judgements
Independent variables can be manipulated
Limitations include:
Questionable generalisability to real life cases
4. Field Studies
Research is conducted within a real trial
Enables researchers to observe the process as it is occurring
High ecological validity
Limitations include:
Obtaining permission from the courts may be difficult
Variables of interest cannot be controlled
Given these differences we should be wary of body of research evidence based only on one system
Most research examines US jury system. Very little consideration of other countries including Australia
Reaching a Verdict
Stages involved in reaching a jury verdict:
Listening to the evidence
Disregarding inadmissible evidence
Judge's instructions
Juror decision-making
Deliberations
The final verdict
1. Listening to the Evidence
Two aids have been proposed for jurors while they listen to the evidence:
Note-taking
Asking questions
Note-Taking
Some judges may allow jurors to take notes while listening to the evidence
May help jurors by increasing memory and understanding of the evidence, and increasing attention
Research indicates note taking is generally a helpful aid for jurors (Horowitz & ForsterLee, 2001)
Asking Questions
Jurors cannot always comprehend the meaning of statistical evidence and scientific findings
Jurors may be allowed to ask witnesses questions via the Judge
Research found that while jurors’ questions are appropriate and promote clearer understanding, they do not help get to the truth (Penrod & Heuer, 1997)
2. Disregarding Inadmissible Evidence
During trials, lawyers or witnesses may make inadmissible statements that juries will be instructed to disregard
Jurors may not ignore evidence although they have been instructed to disregard it (Hans & Doob, 1976)
In fact, instructions to ignore inadmissible evidence can boomerang– adding to the impact of the testimony
Why is it difficult for jurors to ignore inadmissible evidence?
The instruction draws attention to the controversial evidence
Arouses reactance: The desire to assert one’s sense of freedom
Jurors want to reach the right decision, regardless of legal technicalities
3. Judge’s Instructions
Studies suggest that jurors do not remember, understand, or accurately apply judicial instructions (Lieberman & Sales, 1997)
Reforms for judges’ instructions have been proposed (e.g., rewriting instructions, providing a written copy to jurors)
4. Juror Decision-Making
How do individual jurors make their decisions?
Mathematical Models
Explanation Models
Mathematical Models
Views jury decision-making as a set of mental calculations
A mathematical weight is assigned to each piece of evidence (Hastie, 1993)
Research indicates jurors do not put a value to each piece of evidence (Ellsworth & Mauro, 1998)
Explanation Models
Suggests evidence is organized into a coherent whole
E.g., Story model: Involves imposing a story structure to the evidence for each verdict option
Research indicates this is more consistent with how jurors make their decisions (Pennington & Hastie, 1988)
5. Jury Deliberation
Leniency bias
The tendency for jury deliberation to produce a tilt toward acquittal
Group Polarisation: When individuals tend to become more extreme in their initial position following group discussion
Study: Juries were shown a re-enactment of an actual murder case and then given unlimited time to deliberate the case in a jury room
Minority Influence
Is not overly likely in jury situations
A minority that favours acquittal stands a better chance than one that favours conviction
6. The Final Verdict
Two-thirds Majority Scheme: The jury verdict is usually the alternative favoured by at least two-thirds of the jurors at the outset
As of 2007, majority verdicts (11 to 1) are accepted in NSW after the jury has attempted and failed to reach a unanimous verdict.
Hung jury: A jury that cannot reach a verdict
Predicting Verdicts
Research has been conducted assessing if certain variables can predict verdict
Common variables assessed:
Demographic
Personality
Attitudes
Defendant characteristics
Demographics
The relation between juror demographic characteristics to verdicts is small and inconsistent (Bonazzoli, 1998)
There may be an interaction between the demographics of the jury and demographics of defendant or the nature of the offence
Participants more likely to render guilty verdicts and longer sentences for “other race” defendants (Mitchell et al, 2005)
When defendants’ race is made salient, white juror racial bias toward a black defendant was reduced (Cohn et al., 2009)
Personality
Some personality dimensions have been suggested to predict verdict
E.g., Moderate link between an authoritarian personality and rendering a guilty verdict (Narby et al., 1993)
Some jurors are more persuasive than others (e.g., extroverts, male, tall) (Marcus et al., 2000)
Attitudes
Jurors willing to give the death penalty are more likely to render a guilty verdict than those opposed to the death penalty (Horowitz & Seguin, 1986)
Research on other attitudes or values is insufficient to reach definitive conclusions
Defendant Characteristics
Criminal history has been found to impact verdicts (Hans & Doob, 1976)
Less attractive defendants found to be guilty when jurors did not deliberate, however the attractive defendant was more likely to be found guilty when jury allowed to deliberate (Patry, 2008)
Similarity-latency hypothesis: Jurors who share characteristics with the defendant will be lenient.
However, there is also a Black-sheep effect: Similarity between defendant and mock jurors predicted leniency, except where evidence against defendant was very strong – in which case they became more severe.
Arguments Against Juries
Being trialed by one’s peers does not guarantee a fair trial
Juries are not always representative of community
Jury does not give reason for decision
Juries can be unpredictable – decisions may not be rational
Jury trials often result in mistrials or hung juries
Juries are expensive and slow
Juries sometimes do not understand or remember evidence
Too important a job to be left to amateurs!
Arguments For Juries
It is an important civic responsibility and jurors feel sense of responsibility
Decision of group of peers more acceptable to defendant than decision of one non-representative judge
Each jury brings a “fresh eye”
Jurors possess “common sense”
Juries, unlike judges, can deviate from letter of law if they feel it is appropriate to do so
Summary: Judge or Jury
Given the problems faced by juries, should judges become the decision makers?
Survey of real judges revealed that they would have returned same verdict as jury in 78% of cases (Kalven & Zeisel, 1966)
Most legal professionals and experts agree that we should retain juries – however it is clear that there is lots of scope for improving the decision-making ability of juries.