Abigail Louise Lines
From a Psychological Perspective, Are Juries the Most Appropriate Way of Deciding a Person’s Guilt?
The judicial system within the United Kingdom has a perverse history, with its origins in the church influencing modern systems and the human rights we have within the court today (Brooks, 2004). Before criminal trial juries were an established concept in the United Kingdom, there were three ways in which the degree of a person’s innocence was established: a Wager of Law, Trial by Battle and The Ordeals (Brooks, 2004). These tests primarily consisted of physical challenges in which God was believed to be the primary authority to pass judgement and decide a person’s guilt; these trials disregarded human rights, often involved physical anguish and frequently resulted in the death of the accused (Brooks, 2004). It was not until 1219 that individuals accused of a crime were allowed to appeal to a jury, however, individuals who refused to appeal through a jury were subjected to Prison Forte et Dure, where the accused were physically and emotionally tried until they consented to this appeal procedure (Berger, 2011). Due to the influence of the church and the belief that God was involved in the decision of guilt, it was rare that jury members in the appeal procedure would have to justify their decisions and have their verdicts questioned (Berger, 2011). During the early 1300’s jurors verdicts began to be doubted and those who served on a jury could be challenged as unfit, incompetent or corrupt; this later led to reforms as to who would be allowed to serve on a jury and an emphasis on mandatory guidelines to follow (Smith & Wales, 2000). Modern criminal trials consist of 12-16 individuals selected at random from the electoral register to represent their peers; they discuss the factors influencing the case at hand to ultimately determine the level of guilt of the involved and to deliver an appropriate verdict (Smith & Wales, 1999). Juror capabilities have been questioned in recent years due to a rising number of [G1]criticisms of competency, variances between the judges and jury’s verdict, and the role of inadmissible evidence which is believed to influence juror’s decisions (Smith & Wales, 1999; Hans, 2008). To understand and assess whether juries are appropriate for deciding an individual’s guilt, the current essay will explore psychological evidence and criticisms of the jury. It will critically evaluate factors involved in juror decision making and competency, recognising the role of current systems in place and how these systems may influence the reliability of jurors. Furthermore, it will investigate alternatives to juries, systems used in countries outside of the UK and improvements to be made to the modern jury.[G2][G3][G4][G5][G6]
Juror decision making models have been a point of interest for those critiquing the jury system; several empirical studies have created and reviewed models of juror decision making to evaluate the strengths and weaknesses of having a jury (Pennington & Hastie, 1981). Cognitive models of juror decision making are the more commonly accepted approaches, specifically that of the Story Model (Pennington & Hastie, 1992). The Story Model assumes that jurors construct stories when deciding on a verdict; they will piece together known elements of the case, learn the appropriate verdicts for the individual and then make a decision based on the goodness of fit principle (Pennington & Hastie, 1992). Although this structure recognises that individuals will use schemas to interpret the case at hand, it relies on this aspect heavily when individuals create the stories (Pennington & Hastie, 1992). Due to the level of variance in individual’s schemas, this may be a critique of using jurors in civil and criminal trials due to the differences in how they interpret events within the case; it makes it increasingly difficult to come to a unanimous decision, especially in complex cases wherein there are multiple aggravating and mitigating factors involved (Devine, Clayton, Dunford, Seying & Pryce, 2001). The Story Model also takes into account the jurors previous knowledge of the legal system when applying their story to the verdict; this again uses real world knowledge court cases which may not derive from reliable sources, such as movies and television shows, which in turn may cause them to arrive at a disagreeable or incorrect verdict (Devine, Clayton, Dunford, Seying & Pryce, 2001).
Few meta-analyses have reviewed models of juror decision making, however, all have arrived at similar conclusions for improvements (Saks & Marti, 1997; Devine, Clayton, Dunford, Seying & Pryce, 2001). Variables such as knowledge of legal terms, clarification of verdict options, jury personality types, defendant criminal history and the strength of the evidence presented all affect jury decision outcomes[G7] in studies; without systematically controlling for these factors in studies, it is difficult to firmly accept the level at which jurors are a reliable means of assessing an individual’s guilt (Devine, Clayton, Dunford, Seying & Pryce, 2001). It is, however, possible to understand improvements to be made to the current jury system from the meta-analyses on decision making models; Saks and Marti (1997) explained that jurors express difficulty in understanding and applying instructions given by the judge. This thought to be due to the specific language used in legal settings, which individuals without training may find difficult to understand; it has been suggested that instructions given by judges should be mediated for language which may confuse jurors and be re-written to allow for clarification (Saks & Marti 1997; Hans, 2008). [G8][G9]
Juror competency is currently monitored within the United Kingdom, through a comparison of verdicts, analysis of verdict patterns, a series of interviews or questionnaires and also through the use of mock jury studies (Hans, 2008). As previously mentioned, there are concerns that jurors may find it difficult within a court setting to understand the specific legal terminology used by judges, however, there is also evidence that jurors may express difficulty in understanding statistical and economic evidence; this is of particular concern during complex cases with industry specific language, wherein the jury may not be able to discuss the specific factors regarding the case as they are unable to fully comprehend it (ForsterLee, Horowitz, & Bourgeois, 1993). There have been studies which disagree with this critique, as findings have shown that Judges and Jurors generally match in their verdicts in cases involving complex language (Eisenberg, Hannaford-Agor, Hans, Mott, Schwab & Wells, 2005). Further studies exploring individual versus group competence wield reassuring results for those in favour of the judicial system; one study exploring theorems of group confidence found that regardless of the overall individual competence, jury members in a larger group are less likely to make mistakes due to being able to deliberate on ideas (Grofman, Owen & Feld, 1983). Along with larger group sizes increasing juror competence, several studies have found that note taking and engagement is the ideal way in which juror competence is enhanced; jurors that weigh in, take notes and assume an active role in deliberating the final verdict have been shown to have a higher level of engagement with the case, which leads to a higher level of competence (Heuer & Penrod, 1994; Forsterlee & Horowitz, 1997).
Until 1967, the British court required juries to reach a unanimous verdict; modern UK courts judges will now accept a majority vote, however, in some states in the USA the unanimity rule is still applied (Sunstein, 2014). It is believed that forcing juries to reach unanimous verdicts decreases the chance that an innocent individual is convicted, and the guilty being acquitted, yet research argues that these errors may actually increase if individuals are forced to reach unanimity (Feddersen & Pesendorfer, 1998). This is believed to be due to jurors attempting to apply strategic behaviour to their decision making while disregarding their intuition (Feddersen & Pesendorfer, 1998). [G10]
Further criticisms of the unanimity rule consider that forcing unanimous verdicts increases the time and costs of court trials, and also increases the chance of a retrial taking place (Neilson & Winter, 2005; McCormick, 2012). While this supports the use of juries for deciding a person’s guilt, there is conflicting research which suggests that allowing for a majority verdict may cause uncertainty in the final outcome; several studies have found that those forced to make unanimous decisions found greater satisfaction and confidence in their decisions, as they felt as though they had discussed evidence more thoroughly and delayed their voting (Diamond, Rose & Murphy, 2012; Sunstein, 2014). Furthermore, O’Connor (2003) argued that not having unanimity decreases confidence and reliability within the group if one juror disagrees; it is therefore contended that forcing a unanimous decision increases the principle that there is proof beyond reasonable doubt that the individual is guilty. [G11]
The role of inadmissible evidence is also a concern within court cases within the United Kingdom due to the increased exposure of online materials which may sway juror’s verdicts; inadmissible evidence not only includes pre-trial exposure, but also statements and information revealed in court (Lieberman & Arndt, 2000). Certain safeguards are currently in place to ensure that inadmissible evidence does not affect jurors or their verdicts, such as continuance, a reliance on voir dire to remove biased jurors, deliberations, and admonitions (Lieberman & Arndt, 2000). It is believed, however, that these precautions have little effect on juror prejudice and in some cases may backfire ([G12]Lieberman & Sales, 1997; Lieberman & Arndt, 2000; Steblay, Hosch, Culhane & McWethy, 2006). This reluctance to ignore inadmissible evidence may be explained by several psychological theories such as Belief Perseverance, Hindsight Bias and Reactance Theory (Lieberman & Arndt, 2000). Reactance Theory is the more commonly accepted theory behind this effect as it explains why there is a reluctance with certain forms of evidence; it occurs when individuals feel that their freedom is limited and therefore attempt to re-establish this autonomy and gain control (Torrance & Brehm, 1968; Lieberman & Arndt, 2000).
Empirical research has been found to highlight the negative consequences of inadmissible evidence on jurors; jurors have been found to issue more guilty verdicts when strong inadmissible evidence is given, and the strength of this evidence also has the ability to influence the overall confidence in their verdict (Sue, Smith, & Caldwell, 1973). Furthermore, one study conducted by Thompson, Fong and Rosenhan (1981) found that when given pro-acquittal inadmissible evidence, jurors are less likely to convict the defendant; this study also revealed that jurors were able to recognise that their decisions have been influenced by inadmissible evidence. This may be detrimental to the belief that juries are the most appropriate method of deciding an individual’s guilt as it demonstrates the reluctance to follow instructions from members of authority; it further establishes that although jurors recognise that they are being influenced by inadmissible evidence, they will do little in terms of reconsidering their final verdicts.
In light of this research, several psychologists have recommended ways to lessen the impact of inadmissible evidence. One meta-analysis covering 48 studies and 8,474 participants has found that while judicial instructions do not lessen the influence of inadmissible evidence, if a rationale is given for disregarding the evidence, such as it having a negative effect on family members of those implicated, the overall influence of it is reduced (Steblay, Hosch, Culhane & McWethy, 2006). Further recommendations include jurors repeatedly sworn in before deliberation begins; this allows for an emphasis on the importance of disregarding inadmissible evidence and motivation to follow the law (Lieberman & Sales, 1997; Lieberman & Arndt, 2000).
Research regarding juror decision making has been applied to many stages in legal processes, with courts obtaining information frequently from social scientists to assist in legal battles; psychologists are commonly requested in court as expert witnesses, in cases such as eyewitness testimonies, to educate the jurors and ensure they competent when deliberating on the trial (Kassin, Ellsworth & Smith, 1989; Pennington & Hastie, 1990). Although the role of [G13]an expert witness calls for those of sound scientific and technical understanding to assist the jury, there are critics who argue that those who testify as an expert may hold biases; claims that researchers appearing in particularly violent or morally ambiguous cases, such as those involving rape or child molestation, may still hold personal values when issuing a statement, therefore when these personal values appear they may sway the jury in a certain direction (Loftus & Monahan, 1980). In this case it is not the jury’s responsibility to counteract this measure, however, the defence, [G14]prosecution, [G15]and judge must ensure that counterclaims are issued should bias remarks enter the court (Loftus & Monahan, 1980). Nevertheless, this remains a criticism of the practicality of using juries when deciding an individual’s guilt. [G16][G17]
With these criticisms of the modern jury in mind, some researchers have explored alternatives to juries which include specially qualified jurors and the concept of a non-jury tribunal (Norris, 1993). There are currently few specifications when an individual is called to jury service, with exceptions including a history of mental health conditions, reduced English speaking or writing aptitude or those who have served a prison sentence in the last five years; due to the limited criteria, researchers have expressed concern that those presiding over important decisions may not possess the acumen to understand the ramifications of sentencing, therefore, minimal educational qualifications should be imposed (Norris, 1993). Norris (1993) has explained that it would be desirable that those serving on a jury hold specialist qualifications especially in complex cases, for example, a bachelor’s degree. [G18]Norris (1993) continues by explaining that if minimal educational qualifications are not enough to ensure the competence of jurors, then expert non-jury tribunals may be of use in complex, industry-specific cases.Â [G19][G20][G21][G22]
Although juror incompetence is a concern, both of these suggestions appeal for educated jurors to be called more frequently into jury service, especially for more convoluted cases; criticisms of these improvements include the criterion in which we define a complex case, that jurors may no longer be considered peers but superiors, and that some industries are already limited in their personnel, therefore, frequently calling them to jury service may negatively affect their area of work (Hersch, 2003). Henkel (1976) explains that alternatives and improvements should be made, however, until these concerns are resolved smaller changes should be made to ensure the competence of jurors.
There are several alternatives to juries which are currently used within other countries, such as the use of religious law which utilises divine doctrines to pass judgement, or a mixed system of civil and religious law which recognises cultural and lawful judgements, and full tribunals without the use of juries (Frase, 1990). Due to the mix of cultures in the United Kingdom, the reintroduction of religious law would not be advisable to improve the current judicial system. France officially abolished trial by jury in 1941 and now uses six lay judges, and three professional judges to preside over cases; in this system there are separate tribunals for how serious the offence is and the type of offence involved (Frase, 1990). While we may look to this structure to improve our own judicial system, one concern would be that they would not represent those from the community on trial, as they are more likely to come from a primarily middle class and legal background (Frase, 1990).
To conclude, the criticisms offered in the current essay explain that the current judicial system is not without flaw. The structure currently used within the United Kingdom could make several improvements to increase the degree to which jurors make an appropriate decision, such as specialists which assist jurors in understanding the language used within the court system, the encouragement of note taking and taking an active role in deliberation, further precautions taken to lessen the impact of inadmissible evidence, and safeguards in place to ensure that prejudices from expert witnesses do not influence jurors in their verdicts. It is advised that policy makers take these issues into account when discussing the current regulations in place. Before we are able to implement improvements and look to other systems for advice, we must appreciate that the current judicial structure has been in the United Kingdom, and influenced other countries systems such as the United States, for a number of years. Although the current essay establishes that juries may not be the more appropriate method for deciding a person’s guilt, until realistic alternatives are established and tested, juries will remain to be the only viable option within the United Kingdom.[G23]
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