CHAPTER 11: JURIES AND LEGAL DECISION MAKING

In this chapter, we examine the psychology of juries. Juries represent one form of legal decision making, which is the process of using procedural and substantive law to settle disputes heard in public forums. We begin by discussing the nature of legal decision making, identifying its unique features, differentiating it from other types of decision making, and considering various contexts in which it is used. We then focus in detail on juries, discussing the law and reviewing the research to gain a better understanding of how they are formed and how they function.

 

Legal Decision Making: A Search for Justice

Justice is, in essence, the moral correctness, fairness, peace, or harmony of people’s collective conduct—how we interact, share resources, respond to disputes and wrongdoing, and repair harm. It is central to our conception of society and civilization. Commonsense notions of justice incorporate three basic elements: fair rules, fair play, and fair outcome. “Fair rules” means the laws that govern people are explicit, and the same laws apply to everyone. “Fair play” means that laws are administered and enforced routinely and consistently. “Fair outcome” means that the net result of the laws and their administration and enforcement is the expected and proper one. This commonsense notion of justice is reflected in the many representations of Justitia, also known as Lady Justice, which can be found outside courts and other public buildings throughout Europe and the Americas. According to Roman mythology, Justitia (Iustitia in Latin) was one of the four Virtues, along with Prudence, Fortitude, and Temperance. Justitia embodied the attributes of mythological figures from more ancient civilizations, including the Greek goddesses Themis and Dike, and the Egyptian goddess Ma’at. For the Romans, Justitia personified the natural and divine rightness of law; her image has come to personify the moral basis of the legal system throughout the Western world (Capers, 2006). She is often depicted as a bare-breasted or lightly cloaked woman carrying scales, a sword, and a scroll of laws, and she is often blindfolded (see Figure 11.1). The symbolism is clear (Capers, 2006; Luban, 2001). On one hand, Justitia is a young woman, full of passion and emotion, with the power to nurture others out of compassion or to strike them down, seeking vengeance. On the other hand, Justitia’s powers are limited by the scales, blindfold, and scroll of laws, which force her to carefully listen to and weigh information and follow tradition in reaching an impartial decision.

Legal decision making seeks justice. Legal decision making is quite different from what can be termed operational decision making by justice professionals, which is the process of using personal knowledge, skills, and abilities to determine the most appropriate course of action in a given situation.

First, with respect to the nature of the decision, legal decision making is used to resolve disputes about the interpretation or application of specific laws in light of particular circumstances. Disputes about the interpretation and application of law are referred to as “matters of law,” and legal decision makers dealing with such matters are called triers of law. Disputes about the circumstances of a dispute are referred to as “matters of fact,” and legal decision makers dealing with matters of this sort are called triers of fact. In contrast, operational decisions involve matters of practice or procedure in which laws and circumstances are not in dispute (e.g., “What should I do in this situation?”). A legal decision may be considered an end in itself, whereas an operational decision is a means to some other end.

Second, with respect to the way in which decisions are made, legal decision making is formal (structured) and time-consuming, whereas operational decision making is often rapid and informal or intuitive. The process of legal decision making always involves gathering or receiving information, reviewing it, and rendering a decision according to established rules and conventions. The law provides structure concerning what information can be heard and, in some circumstances, how it can be used (evidence law), what issues are to be decided (substantive law), and how those issues should be decided (substantive and procedural law). The process of operational decision making is highly variable, and decision makers have considerable discretion concerning what information they use and how they use it.

Third, with respect to who makes the decision, legal decision making involves people who are appointed and given special powers to make certain decisions, and quite possibly only to make a decision in the case at hand, whereas operational decision making involves people who are expected to make a wide range of practical decisions.

Finally, with respect to the situational context of the decision, legal decision making takes place at a predetermined time and in a special setting, usually a public building that is decorated with official or traditional trappings to underscore its legitimacy. Operational decision making occurs whenever and wherever the need arises. Even people who are involved in legal decision making need to make operational decisions, day to day, throughout the process.

Table 11.1 Legal and Operational Decision Making
	Legal Decision Making	Operational Decision Making
The purpose	To resolve a dispute	To decide a course of action
The process	Formal and time-consuming	Rapid and informal or intuitive
The data	Gather/receive information	Highly variable with much dis-
	according to rules about what	cretion concerning what can be
	can be considered and how	considered and how it can
	it can be considered	be considered
By whom?	Specifically appointed persons	Anyone
Where and when are decisions made?	In a particular place and at a particular time	Anywhere and anytime

To make these differences clear, the contrasts are displayed in Table 11.1 and the following points give some concrete examples of legal decision making:

• An academic tribunal at a university—including representatives of the administration, faculty, and student body—sits to hear the case of a student accused of cheating on a final exam. The tribunal will hear the evidence, determine whether the student violated the university’s code of conduct, and, if the student did violate the code, decide how the student should be punished.
• An employee believes she has been improperly passed over for promotion at work and files a grievance against her employer according to her union’s collective bargaining agreement. The grievance will be heard by a board made up of an independent arbitrator and representatives of the employer and the union. They will determine if the grievance is legitimate and, if so, how the situation should be remedied.
• Two men wearing turbans and kirpans (the ceremonial knives worn by baptized members of the Sikh religion) are refused service in a coffee shop. They make a complaint to a human rights commission that they were the victims of religious discrimination. A commissioner will hear the case, decide whether a human rights violation occurred, and, if so, determine what remedies are appropriate.
• A parole board, with three members, meets to review the case of an offender who has served 10 years of a 15-year sentence for killing another man during a bar fight. The parole board will hear evidence from the offender and the corrections service, then decide whether the offender is suitable for release and whether special conditions should be put in place.
• A coroner and five jury members have been convened in coroner’s court to review the deaths of three children in a school bus crash. Together, they will decide which witnesses to call, review the evidence presented by the witnesses, determine the cause of death, and then decide whether to make recommendations designed to prevent such incidents in the future.
• A judge presiding over a civil court hears a case involving two large banks. One bank claims the other bank breached a contract, resulting in a financial loss totalling tens of millions of dollars. The judge will listen to months of evidence from bank officials and expert testimony from dozens of forensic accountants, then determine whether there was a breach of contract and, if so, how much one bank should pay to the other.

A jury is a group of people convened to make a legal decision by functioning as a trier of fact. Juries play a role in many legal systems; indeed, the word “jury” derives from the Latin juris, meaning “law.” A person who sits on a jury is called a juror.

Juries are used in a small minority of legal disputes. The vast majority of disputes are decided prior to a trial, either through a plea bargain in criminal matters or a settlement in civil matters. Even legal disputes that proceed to trial are decided primarily by judges or administrative bodies, such as tribunals and review boards. Vidmar and Schuller (2011) estimate that 90 percent of criminal trials in Canada are heard before a judge sitting alone, and a larger percentage of civil trials are heard this way. Yet juries remain a topic of considerable interest to psycholegal scholars and researchers.

Juries are diverse in terms of membership, function, structure, and operation. With respect to membership, jurors can be legal professionals (judges or lawyers); people with special status, knowledge, or ability; or ordinary citizens. With respect to function, juries may be charged with answering questions of law (i.e., to interpret the law), questions of fact (i.e., to interpret and draw inference from evidence), or both. These questions may be simple or narrow in scope, or they may be broad and far-reaching. With respect to structure, juries vary greatly in terms of size, ranging from small (e.g., six people or fewer) to large (e.g., 23 or more), and manner of selection (e.g., appointment by an administrative authority or with input from the parties to a legal proceeding). With respect to operation, juries vary in terms of how they deliberate, reach, and communicate decisions.

The definition and description offered here may come as a surprise to some people. This is because contemporary use of the term “jury” is much more restricted, typically referring to a group of ordinary citizens who are selected more or less at random to represent the general population and serve as impartial triers of fact in a criminal or civil court, hearing evidence, deliberating in secrecy, reaching a decision by a vote, and communicating the decision, often without giving reasons (e.g., Diamond, 2001). Juries of this sort play a relatively minor role in some nations where the legal system is based in part on continental European civil law (e.g., Belgium, Brazil, France, and Spain), and they play a larger role in nations where the legal system is based on English common law, including the United Kingdom and many territories that were at one time part of or administered by the British Empire (e.g., Australia, Belize, Canada, Ireland, New Zealand, and the United States; Roberts, 2001). (Some of these nations have regions or areas of law based on other legal traditions; examples include Quebec in Canada, Scotland in the United Kingdom, and Louisiana in the United States, which rely in part on a continental European civil law tradition. Also, many other nations and territories have legal systems that reflect a blending of English common law and another legal tradition; examples include continental European civil law in Hong Kong, Nicaragua, Sri Lanka, and South Africa; Islamic law in Bangladesh and Pakistan; and multiple traditions in India, Israel, and Nigeria.) Juries are a particularly important part of the administration of justice in the United States. Indeed, the majority of all trials by jury take place in the United States (Diamond, 2001).

The History of Juries

The origin of juries, as they are used today in North America, can be traced back to Viking Age Britain. The first Viking raid in the British Isles at Lindisfarne in 793 CE was followed by permanent settlements, including what became the Danelaw, a large region that encompassed much of what is now the north and east of England. (The Vikings who settled England were mostly Danes.) The Danelaw’s political, legal, and military administration followed Norse traditions. These traditions were reinforced by the conquest of Britain in 1066 by the Normans, who were descended from Danish Vikings (also known as “Norsemen”) who had raided, conquered, and settled the region of what is now northern France (Hadley, 2000).

One important feature of traditional Norse government was that the king or chieftain had limited power, ruling as a leader among peers and advised by an assembly of elders (as opposed to a king with unlimited power, ruling by divine right or by right of inheritance). In the British Isles, the Norse traditions of the Danelaw and, ultimately, the Norman conquerors merged with those of the Anglo-Saxons and native Britons (De Montmorency, 1924; Holdsworth, 1909). One level of governmental administration in Norman Britain was the “shire” or “borough,” governed by a “reeve” or sheriff, who functioned as the king’s representative. A shire or borough was divided into smaller regions, called “wapentakes” (sometimes spelled “vapontakes”) or “hundreds,” that comprised a hundred or so families and the land necessary to sustain them. In legal matters, the shire reeve appointed a “gemot,” or assembly of a dozen or so “thegns” (also spelled “thanes”), or senior men, from the local hundred, who swore an oath to make a decision according to the law. The gemot played a role in every aspect of legal decision making, from giving evidence to hearing evidence, and advising the reeve on matters of both fact and law. The involvement of thegns not only ensured the shire had the benefit of the community’s knowledge and values, but also helped to balance power, both legitimizing and limiting the authority of the king (Holdsworth, 1909).

As British society evolved, becoming increasingly centralized and urban, the common law system also evolved (Thomas, 1995). Responsibility for legal decision making was handed over from sheriffs and assemblies of elders to courts, presided over by judges. The move toward reliance on judges—independent, expert, and professional decision makers appointed by the government—had potential advantages and disadvantages. On one hand, it could help to ensure consistency and fairness in legal proceedings. But on the other hand, it could lead to feelings of disempowerment and alienation among the populace, weakening the perceived legitimacy of the government. To avoid these potential problems, legal proceedings included several specific roles for local citizens—not just elders, but virtually any man of standing (i.e., property owners)—who sat together as a panel of jurors.

In most countries, including Canada, where the legal system follows the common law tradition, the use of juries has declined over time. There are many possible explanations for this trend. One is that trials have become increasingly long and complex. This means serving on a jury can be a heavy responsibility for people. A second is that modern democratic societies have numerous mechanisms that limit the power of their central governments, including constitutions, judicial independence, and high levels of openness. Arguably, juries are no longer necessary to help protect against the unreasonable exercise of power by governments. Third, many people who work in the justice system, including judges and lawyers, have expressed serious doubt that a group of laypeople have the knowledge or training necessary to make good legal decisions. Whatever the reasons, most common law jurisdictions now use juries only in trials for serious crimes.

But the trend away from juries was resisted in the United States, where juries are considered a crucial means of protecting citizens from the unreasonable exercise of power, as well as an important way of educating citizens about and involving them in the administration of justice. The right to trial by jury is entrenched in the Sixth Amendment to the Constitution, and the U.S. Supreme Court has ruled the right may be exercised whenever defendants face the possibility of punishment that exceeds six months of imprisonment (Chaff v. Schnackenberg, 1966; Duncan v. Louisiana, 1968). Trial by jury is also widely available for civil matters in state and federal courts. In most other common law jurisdictions, defendants may have the right to trial by jury only when charged with serious crimes (e.g., in Canada, when facing a criminal sentence of five years or longer).

It is important to keep in mind that although parties to a proceeding may have the right to trial by jury, they may also have the right to waive trial by jury if they so desire. Jury trials are more likely to be waived in civil than criminal matters.

Jurisdiction

Jury selection is governed by both provincial and federal law. Section 91(27) of the Constitution Act, 1867, gives jurisdiction over criminal law to the federal government, while s. 92(14) gives jurisdiction over the administration of justice in the provinces to the provincial governments. In practice, the provinces set eligibility criteria for jurors and establish the process of gathering together a large number of citizens (called venirepersons) for possible selection as jurors. The federal government makes the rules for selection of individuals to act as jurors.

Section 11(f) of the Canadian Charter of Rights and Freedoms guarantees the right of “a person who is charged with an offence, except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.” This does not mean that these cases must be heard by a judge and jury; with one important exception, an accused who is charged with an offence that carries a possible penalty of five years or more may choose to be tried by a judge and jury. Other than in the most serious indictable offences (e.g., murder and treason), an accused may elect to have the case heard in provincial court (Criminal Code s. 554) or in superior court (Criminal Code s. 558) by a judge alone. For very serious indictable offences (e.g., murder and treason), the case can proceed before a judge alone if the defence and the Crown agree (Criminal Code s. 473); this means that the Crown can force a jury trial in spite of the accused’s request to be tried by a judge alone.

Juries returns verdicts. They do not recommend sentences except in two particular cases (Vidmar & Schuller, 2011): when a person under the age of 18 is convicted of firstor second-degree murder, and when an adult is convicted of second-degree murder. In the latter case, the judge will sentence the convicted person to life in prison and will set the time for parole eligibility from between 10 and 25 years. The judge may invite the jury to make a non-binding recommendation on when the convicted person should be eligible for parole.

 

Constitution of Juries

A trial jury comprises a small group of jurors who serve as the triers of fact in a criminal or civil trial, under the guidance of a judge who interprets matters of law for them and instructs them in their duties. A jury typically comprises a relatively small group of people, ranging from a minimum of 6 to 8 for civil trials, depending on the jurisdiction, and up to 12 in criminal trials. The jury sits in open court to hear evidence presented by all parties, with little or no influence over what or how evidence is presented. It then deliberates privately and makes a decision with respect to the issues at hand (e.g., verdict, liability). In criminal trials, the verdict must be delivered by at least 10 jurors, and it must be unanimous (Criminal Code, s. 644(2)).

Other types of juries exist but are rarely used. For example, some jurisdictions can impanel a jury to review fatalities in coroner’s court. As discussed previously, a coroner’s jury may play a much more active role in eliciting and questioning evidence and may render complex decisions that include recommendations for preventing deaths.

Researching Juries

Research on juries is complicated for two reasons. First, juries deliver verdicts; they do not provide reasons for their decisions. Second, except for the purposes of investigating the offence of obstruction of justice, Canadian jurors are prohibited from disclosing the content of deliberations (Criminal Code, s. 649). In R. v. Pan; R. v. Sawyer (2001), the Supreme Court of Canada reiterated the reasons for this prohibition: to promote full and frank discussion in the jury room without fear of ridicule in a public forum; to ensure finality of the verdict; and to protect jurors from harassment, censure, and reprisals (see Insight 11.2 for arguments on both sides of this issue). Even in the United States, where jurors are often free to discuss deliberations or discussions after they have been discharged, researchers are generally unable to directly observe juries in action and must use other strategies to gather information.

One alternative to direct observation is archival research. This type of research involves studying court records of jury trials and recording information about jurors, the cases they hear, and their verdicts. However, official records typically contain only limited information. A second alternative is to survey officers of the court (e.g., lawyers and judges) after trial. This method relies on the willingness of people to participate in research, and also may be prone to bias with respect to who participates, as well as what they know, remember, or are willing to report. A third alternative is to conduct field experiments. These experiments involve systematic manipulation of various aspects of court proceedings, such as whether jurors are permitted to take notes during presentation of evidence, followed by a survey of jurors or officers of the court or an examination of verdicts. But this type of research is difficult—judges tend to be uncomfortable with the idea of random assignment of juries or trials to various experimental conditions. And this paradigm does not provide insight into underlying processes. Finally,

mock jury research involves simulation: people recruited to acts as jurors are presented with summaries or excerpts of trial evidence and legal instructions, after which they may complete questionnaires individually or deliberate as a group. Although this approach allows tight controls and true experimental designs, it is not clear whether the findings generalize to actual juries.

 

Juries: Pretrial Issues

The ancient rule was that a gemot should comprise the 12 leading thegns of the shire or borough, assembled by the reeve. This is still the standard or most common size for a jury, although some jurisdictions permit smaller juries to hear civil cases, comprising only six to eight jurors for some or all trials. It is sometimes difficult to keep a jury intact after jurors have been selected. Jurors may be excused before a verdict is reached due to personal circumstances (e.g., illness, family or work problems) or, in rare circumstances, misconduct (e.g., ignoring instructions from a judge not to discuss evidence with others prior to deliberation). Selection of one or more “extra” jurors, called alternates, is possible but rare in Canada. The judge must approve the selection of alternates, and the alternates will be dismissed at the commencement of the trial if a full jury (12 persons) is present to be sworn as jurors (Criminal Code, s. 642.1(2)). In the Pickton trial (see Case Study 11.1 later in this section), which was expected to be very complex and to last for up to one year (it lasted ten and a half months), two alternates were selected; both were released when the trial began, as all original jurors were available to serve on the jury. Once the trial begins, up to two jurors may be released (leaving 10 jurors available to deliberate and return a verdict) before a mistrial will be ordered.

Selection of Jurors

When a matter proceeds to trial by jury, a jury is empanelled before any evidence is presented in court. The process of selecting jurors comprises two major steps. The first step, under provincial jurisdiction in Canada, is to identify a large pool of potential jurors (see Figure 11.3), sometimes referred to as venirepersons, using a few general criteria. Typically, the provincial jury acts require that potential jurors are adults (usually at least 18 or 19 years old), citizens of Canada, and residents of the province in which the trial will be held, that they are not legal professionals, and that they do not have a criminal record. Some provinces have other exclusion criteria: for instance, in British Columbia, persons licensed to practise dentistry must be exempt upon request ( Jury Act, s. 3 (2)); in Ontario, coroners are ineligible to serve on juries ( Juries Act, s. 3(1)); and in New Brunswick, medical practitioners are ineligible to serve on juries ( Jury Act, s. 3(l)). Potential jurors are often identified through official records (e.g., people registered as voters or possessing a driver’s licence). This step is designed to ensure the pool of potential voters is representative of the community at large, although reliance on official records may introduce some systematic bias (e.g., excluding people who cannot afford telephones or automobiles, or who change their address frequently).

The second step is to select a shortlist of actual jurors. This step is governed by federal law. A large group of venirepersons is subpoenaed to attend court and undergo a limited examination by the judge, which is designed to identify people who may be inappropriate to serve as jurors on the basis of hardship or partiality.

Hardship may be physical or financial inability to perform jury duty. Whether a judge will excuse potential jurors for hardship depends on the person’s circumstances and the expected nature of the trial. A trial that is expected to take a few days to a week is quite different from one that is expected to last for a year, as was predicted in the Pickton case. For longer trials, hardship arguments may be more compelling to a judge.

Potential jurors may also be deemed inappropriate if they have personal experiences relevant to the case at hand that may bias their judgment. For example, people who have been victims of sexual assault may be excluded from jury duty if the trial is for someone charged with sexual assault. Potential jurors who have some association with the accused or with persons who may be called as witnesses may be excused. The goal of this second step is to ensure the jury is impartial.

Challenges to Potential Jurors

There are two ways a potential juror (venireperson) may be excused by the defence or the Crown; peremptory challenges and challenges for cause. Each side has a limited number of peremptory challenges (Criminal Code s. 634); 20 if the charge is first-degree murder or high treason, 12 if the charge is not first-degree murder or high treason but the maximum penalty is more than five years, and 4 in all other circumstances. If two alternate jurors are to be selected, each side has an additional two peremptory challenges. Peremptory challenges allow the Crown or the defence to excuse a venireperson without explanation. Because the law prohibits the Crown and the defence from asking questions of venirepersons, peremptory challenges are exercised based on very little information: name, approximate age, and physical appearance. It appears that lawyers are not particularly good at exercising peremptory challenges. Olczak, Kaplan, and Penrod (1991) provided law students and lawyers with facts of a case and demographic information (education, occupation, interest, spouse’s occupation etc.) on 36 potential jurors. They then asked the law students and lawyers to act as the defence lawyer and dismiss 12 “unfavourable jurors” (i.e., those who would convict) and to include 12 “favourable jurors” (i.e., those who would acquit). They tended to exclude those who acquitted and include those who convicted in the actual cases.

The second way a potential juror may be excused is a challenge for cause. We start with the premise that potential jurors are presumed to be impartial; the onus is on the side wanting to challenge for cause to displace this presumption and establish a case for partiality. Such a challenge is only permitted in rare cases where the party making the application establishes that there is a “realistic potential for partiality” (R. v. Williams, 1998); that is, there is a realistic chance that some venirepersons will not be impartial but will have already made up their mind in favour of either the Crown or the defence arguments, and will not be able to set aside their partiality (R. v. Find, 2001). When challenge for cause is allowed, each member selected from the array is asked a few short questions that are preapproved by the judge; typically three or four “yes/no” questions about the specific partiality identified in the challenge application. The decision that a potential juror is partial and should be excused on that basis is not made by the Crown or the defence; it is made by two other potential or selected jurors (Vidmar & Schuller, 2011). The most common basis on which a judge will allow challenge for cause is racial (R. v. Parks, 1993; R. v. Williams, 1998). Challenge for cause has also been allowed to address partiality that may arise from pretrial publicity (R. v. Pickton, 2006) (see Case Study 11.1).

The Special Problem of Publicity

Publicity can occur at three points in the process: (1) after a crime has been committed but before a charge is laid, (2) after a charge is laid but before a jury is empanelled, and (3) after a jury is empanelled. At the first point, there are no parties involved to request a publication ban, so the media are free to publish details as they see fit. As discussed below, this can have significant impact on potential jurors and could compromise the court’s ability to select a representative and impartial jury.

CASE STUDY 11.1. JURY SELECTION AND THE PICKTON CASE

When considering an application for a publication ban, the court will consider at least two sections of the Charter: the right to a fair trial (s. 11(d)) and the right to freedom of the press (s. 2(b)). The court will balance these two rights to decide whether a publication ban is appropriate in the circumstances and, if so, the extent of the ban. One of the first Supreme Court of Canada post-Charter cases that balanced these rights was Dagenais v. CBC (1994). Dagenais and three other defendants, all Christian Brothers, were either on trial or scheduled to go to trial for allegedly sexually and physically assaulting young boys who were in Christian Brothers training schools many years earlier. During Dagenais’s trial, and just prior to the other trials, the CBC planned to broadcast a miniseries called The Boys of St. Vincent that depicted sexual and physical abuse of boys in a Christian school. Dagenais claimed that broadcasting the miniseries would taint the jurors and compromise his, and the other defendants’ right to a fair trial. The trial judge issued a Canada-wide ban on airing the miniseries. The Supreme Court of Canada held that the ban was excessive and vacated the publication ban. The balancing was recently applied in R. v. Kossyrine (2011), where a request to ban the publication of a guilty plea by a co-accused was rejected. In R. v. Bandura (2011), a local newspaper requested disclosure of forensic psychiatric reports related to an accused who pled not criminally responsible on account of mental disorder to a charge of assault. The request was granted. In both cases, the court balanced the right of freedom of the press and the need to foster and maintain an open court process (an important element of which is public access to information available through the press) with the accused’s right to a fair trial. The court held that the impact on the accused’s right to a fair trial was minimal or non-existent and that the right to freedom of the press was strong. Of course, there will be extraordinary circumstances that justify extensive publication bans. The Pickton trial fit the bill, and multiple publication bans were issued (see Case Study 11.2).

Pretrial publicity can greatly complicate the process of jury selection, because a large number of people can be exposed to information that may make it impossible for them to serve as impartial jurors (as in the Pickton trial, discussed in case studies 11.1 and 11.2). On occasion, the media have reported evidence, such as a confession or evidence seized at the time of arrest, that later was ruled inadmissible in the trial itself. In these cases, jurors would have information they are instructed to ignore. Is it possible to do so? That is the issue that is studied when considering the effects of pretrial publicity on juries.

Penrod and Heuer (1997) summarized the results from two studies they conducted. One study was a Wisconsin State study of 67 trials; the second was a national sample of 75 civil and 85 criminal trials. The researchers found that about two-thirds of the jurors in Wisconsin and 87 percent of the national sample elected to take notes. The note taking was often not extensive—national sample jurors took, on average, about a half page of notes per trial. With respect to the controversies about note taking, Penrod and Heuer found that note taking did not serve as a useful memory aid, but jurors who took notes reported feeling more involved and satisfied with the trial procedure and verdict. They also found that note taking was not a distraction and that jurors who took notes did not have an undue influence on those who did not. Although Penrod and Heuer did not find positive effects of note taking, they also noted that there were no negative effects, concluding that note taking is relatively innocuous. Given that the disadvantages are minimal and that jurors are more satisfied when allowed to take notes, they suggested that this practice continue to be allowed.

Deliberations

After receiving instructions, jury members deliberate. Deliberation is the raison d’être of the jury. The collective knowledge and wisdom of a jury is, in principle, superior to that of individual jurors and less likely to result in decisions that are idiosyncratic or unreflective of community values. Deliberations follow many steps.

• First, the jury appoints or elects a foreperson from among the jurors, if this has not already been done. The foreperson usually has primary responsibility for chairing the jury’s deliberations (i.e., ensuring they are orderly), for communications between judge and jury during deliberations (e.g., if the jury poses questions for the judge), and for communicating the jury’s final decisions (although individual jurors may also be polled—that is, asked to state their own decisions).
• Second, the jury reviews and discusses the evidence heard. To this end, jurors may be allowed to consult any written notes they have taken, evidence presented in the form of exhibits, and, in some cases, trial transcripts or even public documents not entered into evidence. They also have the opportunity to discuss the meaning and interpretation of evidence. Exactly how the deliberations proceed is a matter for the jury to decide, guided by three general principles: first, the jury must base its decision solely on the evidence deemed admissible by the judge; second, jurors must reach decisions independently, free from coercion or other undue influence by other jurors; and third, the jury must make the decision on its own, not communicating with, and free from the influence of, outsiders. To help them deliberate properly, juries receive general instructions not to discuss the case with outsiders and not to have contact with parties involved in the trial, and they may be sequestered (isolated) during deliberations.

• Third, the jury reaches (or attempts to reach) a consensual decision through voting. Again, exactly how the voting proceeds is a matter for the jury to decide. It is common for the foreperson to solicit votes at the outset of the deliberations (a “straw poll”), before any in-depth discussion commences, so the jurors have some idea of each other’s leanings or preliminary opinions. If there is unanimity of views at the outset, the review and discussion of evidence that follows may be brief; if there is a divergence of opinion, it may be much longer. The discussion may continue, with periodic votes (formal or informal), until each juror has reached a firm decision as an individual. It is expected that each juror will participate to some degree in the review and discussion, and that each will vote to express an individual decision.

How and to what extent does the process of deliberation sway jurors’ verdicts? The answer to this question is not clear (Diamond, 2001). The role of deliberation is probably relatively small when the charge to the jury is simple and a clear majority view exists (and is expressed) from the outset. In such circumstances, the process appears to focus on pressuring the minority to change its vote, and the final verdict is quite predictable. But when the charge is complex, or when no clear majority exists or is expressed, the process appears to focus on reviewing the evidence, and the final verdict is less predictable. Research also suggests that time spent deliberating is a good indicator of dissent among jurors: the greater the dissent, the longer the deliberations, and the greater the likelihood of a hung jury.

Jury Decision Rules

At the natural end of the deliberations, the foreperson communicates to the trial judge whether the jury has been able to reach a unanimous decision and, if so, the decision itself. When a jury is unable to reach a decision, the judge may question jurors to determine why. If it appears there is some chance of reaching a decision within a reasonable time frame, the judge may order the jury to resume deliberations. But if there is a hung jury—a jury whose deliberations are deadlocked and which is therefore unable to reach a proper decision within a reasonable time frame—the judge may declare a mistrial and dismiss the jury.

 

Jury Nullification

When a criminal jury reaches a legal decision that flies in the face of the evidence presented at trial by acquitting a defendant who is obviously guilty, jury nullification may have occured.

When jury nullification occurs, it is a communication that the jurors reject the validity of the law as it applies to the facts of the case. Consider the case of R. v. Morgentaler (1988). Dr. Morgentaler was charged with procuring an abortion. He admitted to each element of the offence but claimed necessity as a defence. In law, his actions could not be justified by the defence of necessity. Notwithstanding this, the jury acquitted him. Dr. Jack Kevorkian, a physician who helped a number of his terminally ill patients to commit suicide, was acquitted on three different occasions despite incontrovertible evidence of his involvement in the deaths of his patients. Both cases send a clear message that the juries did not believe physician-assisted abortion or physician-assisted suicide of terminally ill patients should be considered a crime.

In another case, R. v. Latimer (2001), the father of a severely disabled daughter was convicted of second-degree murder in her death. He fully confessed to his role in his daughter’s death. At trial, the jury sent a note to the judge asking if jurors would have any input on sentencing. The judge responded by focusing attention on the question of guilt and said that, after deciding guilt, the jury “may have some discussions about that.” On appeal, the defence argued that the judge misled the jury into believing it would be allowed to recommend a sentence. This precluded the jury from acquitting Latimer— effectively using jury nullification to arrive at the outcome it thought was just. The Supreme Court of Canada acknowledged the reality of jury nullification, describing it as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” (para 58). However, the court held that jury nullification is not a right; the appeal failed. In another case, the B.C. Court of Appeal held

The right of a jury properly instructed to acquit in the face of overwhelming evidence of guilt has been for centuries a carefully guarded prerogative. “Jury nullification,” as the prerogative is often described in American jurisprudence, is a bedrock feature of our system of criminal justice. (R. v. Budai, 2001, para 78). The possibility of jury nullification is a concern to the judicial system. Some studies have shown that giving instructions about jury nullification makes guilty verdicts less likely (Meissner, Brigham, & Pfeifer, 2003; Niedermeier, Horowitz, &Kerr, 1999). Trial judges, however, do not instruct juries about the possibility of nullification, even when the defence requests such instructions.

Because jurors are prohibited from discussing the content of deliberations, we cannot know that jury nullification occurred in a particular case (or if an acquittal was declared for some other reason). However, we are confident that jury nullification happens and the Supreme Court of Canada acknowledged this as an important role of a jury.

Models of Jury Decision Making

The study of how legal decision makers understand and use evidence to reach verdicts can be traced to the legal scholar John Henry Wigmore (Wigmore, 1909, 1913). Wigmore developed a sophisticated method for analyzing and synthesizing trial evidence. “Wigmore charts” or “evidence charts” summarized chains of inferential reasoning from evidence to the propositions underlying legal arguments. Since that time, the study of legal decision making has followed two very different routes. One route elaborates on Wigmore’s original methods, leading to “modified Wigmorean analysis” (e.g., Twining, 2007), or develops even more sophisticated models (e.g., Kadane & Schum, 1996; Thagard, 2004). The goal of this approach is to explicate the specific cognitive processes used by triers of fact to infer causality and evaluate arguments within the context of a legal trial. The other route views legal decision making as a process in which triers of fact develop stories that help them understand the decisionmaking context, explain the evidence presented to them, and reach a decision (e.g., Bennett, 1978). Following Jerome S. Bruner (1985, 1991, 2003)—a distinguished cognitive-developmental psychologist who now holds positions in the Department of Psychology and School of Law at New York University—we will refer to these two models as “paradigmatic models” and “narrative models.”

Paradigmatic Models

Paradigmatic models assume that people’s thought processes are mechanical or rule-governed in nature and can be conceptualized in terms of the application of basic logical operators to information (Bruner, 1985, 1991; Pennington & Hastie, 1981). Although the logical operators may appear simple when considered in isolation, in combination they are capable of generating incredibly sophisticated answers to complex problems. They allow human beings, born with a tabula rasa (a cognitive “blank slate”), to perceive associations between objects or events in their environments and perform inductive tasks, such as categorization and causal reasoning, that permit them to develop and evaluate theories about how the world works. The two major types of paradigmatic models differ from each other in terms of the emphasis given to roles for innate or learned knowledge structures, such as beliefs, schemas, and conditional interventions (Gopnik & Tenenbaum, 2007; Shultz, 2007). The first type, simple association models, requires only classical or operant conditioning and has no need to include concepts related to abstract learning or knowledge structures. Learning is viewed as the process of directly linking inputs, in the form of information about the environment, to outputs in the form of behaviour. The second type, connectionist models, posits that abstract learning or knowledge structures may emerge out of simple associations, but they are implicit or hidden. Learning is viewed as a process of linking inputs to outputs that is mediated by learned mental activity, although people may not be conscious or aware of this activity.

In a now-classic article, Pennington and Hastie (1981) discuss paradigmatic models that have been used to study legal decision making. The models differ in some important respects. Some assume that triers of fact begin the trial process with no preference for one verdict or the other; others assume they enter the trial with a naïve (i.e., uninformed) assumption in favour of one verdict before they hear any evidence. Some assume that each piece of evidence is given a rating of probity (i.e., the extent to which it favours one verdict versus the other) as soon as it is heard, whereas others assume ratings are not assigned until all the evidence has been heard. Some assume that the probity ratings take the form of scalar variables (like a rating on a seven-point scale), whereas others assume they are estimates of the odds in favour of one verdict. Some assume the probity ratings are combined using simple arithmetic algorithms (e.g., sum, average) after all the evidence is received, whereas others assume they are combined using more complex algorithms (e.g., Bayes’ theorem) or sequentially throughout the trial process. Finally, some focus on the decision-making processes of individual triers of fact, whereas others focus on a general process discernible only across triers of fact (i.e., the “on average” process).

As an example, Louden and Skeem (2007) investigated the impact of attitudes toward the insanity defence on decision making by jurors, relative to jurors’ prototypes of insanity. They conducted an experiment using as participants 113 prospective jurors, people who had reported for jury duty at a county courthouse and voluntarily completed the study after being excused from jury duty. Participants individually completed a questionnaire that evaluated their prototypes of insanity and their attitudes toward the insanity defence, then made decisions (i.e., case judgments and verdicts) for each of four brief case vignettes. The data were aggregated and analyzed using bivariate and multivariate statistics. The findings indicated that attitudes toward the insanity defence were associated with prototypes of insanity. But attitudes were much more strongly associated with jurors’ decisions than were prototypes, which had only a small independent association with jurors’ decisions.

Narrative Models

Narrative models, also called “explanatory models,” of decision making assume that people think about the world in terms of stories, particularly when they think about interactions among human beings (Bruner, 1985, 1991, 2003; Schank & Abelson, 1995). A “story” is a communicative device in which multiple events or incidents are sequenced and unified into a single entity by means of a plot, or “a narrative of particular events arranged in time and forming a meaningful totality” (Twining, 2006, p. 223). Human beings are social, communicative creatures, and narratives are quintessentially human—perhaps the most intricate form of communication or expression known to us. According to Polkinghorne (1995), narrative is “uniquely suited for displaying human existence as situated action . . . [It] is the linguistic form that preserves the complexity of human action with its interrelationships of temporal sequence, human motivation, chance happenings, and changing interpersonal and environmental contexts” (pp. 5–7). According to narrative models of decision making, people strive to explain what has happened, is happening, or might happen in the future, and this explanation in turn determines their reactions or actions. They view people as engaged constantly and actively in the construction of meaning.

Narrative cognition has its own characteristic rules and operations. It functions as a symbolic system (like language) that, although it may have a neuropsychological basis, is largely a product of culture (Bruner, 1985, 1991; Schank & Abelson, 1995). According to Twining (2006), stories have three basic characteristics:

• Particularity is raw material in the form of critical elements of information that can be used to elucidate the emotional and motivational meaning of people’s behaviour.
• Temporality is the chronological ordering of information in the form of events or occurrences.
• Coherence or unity is the establishment of causal links between the information elements by means of a plot.

Bennett (1978) was among the first to outline a narrative model of legal decision making. It was elaborated by Pennington and Hastie (1981, 1992) and popularized in psychology as the story model. (Other elaborations have been developed, including the anchored narrative model of Wagenaar, van Koppen, & Crombag, 1993; but as many of the basic elements are similar, we will focus on the story model here.) According to the story model, legal decision making comprises three different processes: “story construction,” “verdict representation,” and “story classification.”

• Story construction is the process by which triers of fact evaluate the evidence presented to them. Evaluating evidence requires considerable cognitive effort, as evidence typically is presented bit by bit, over an extended period of time (hours or days), and pieces of evidence are interdependent, making it is impossible to determine their relevance or importance until all the pieces have been presented. Triers of fact develop narrative accounts that help them remember, organize, and explain evidence. The narratives they develop are based not only on information about the case at hand, but also on information about similar incidents or situations and the individuals’ general understanding of narrative structure. Several narratives may be developed that fit the evidence, but their adequacy may be judged according to their coverage (the extent to which a narrative accounts for all the evidence presented), coherence (the extent to which the elements of a narrative are consistent, complete, and plausible), and uniqueness (the extent to which a narrative lacks viable competing or alternative narratives).

• Verdict representation is the process in which triers of fact understand the legal decision they must reach—that is, the alternatives open to them under the law. The alternatives depend on the relevant law, as well as the specific circumstances of the case at hand. For example, in a given criminal trial, the verdicts available to triers of fact might be “guilty,” “not guilty by reason of insanity,” or “not guilty,” or they may be asked to decide between first-and second-degree murder; in a given civil trial, the available verdicts might be “for the plaintiff” or “for the respondent”; or in a coroner’s inquest, triers of fact may be asked to decide the identity and cause of death of a victim, or to make recommendation for preventing similar deaths in the future. The process of legal decision making generally includes some formal discussion of the law and alternative decisions, but triers of fact may also be influenced by other factors, including their own personal knowledge and beliefs. Verdict representation may occur after or in parallel with story construction.
• Story classification comes after story construction and verdict representation, and is the process by which triers of fact determine which decision or verdict fits their preferred narrative best. This process is simpler to the extent that the narratives developed by triers of fact contain information that is directly relevant to their verdict representations.

An example of research using the story model is a study by Weiner, Richmond, Seib, Rausch, and Hackney (2002). They investigated whether people used a common script or prototype to construct narratives in murder trials, or whether they used multiple exemplars (i.e., specific versions) of the same general script or prototype. Participants in the study were 76 people, recruited through newspaper advertisements, who were eligible to serve on a jury and “death qualified” (i.e., willing to consider sentencing someone to the death penalty under state law). Participants were interviewed individually, asked to think about a scenario in which someone perpetrated first-degree (i.e., capital) murder, and then asked to describe the scenario in detail. Interviewers asked questions to make sure the scenarios were as detailed as possible. The interviews were recorded, and researchers developed a scheme that was used to code the presence of 13 common story features (e.g., motivational theme, location, emotional state of the perpetrator, the number of victims involved, the acquaintanceship between perpetrator and victim, etc.), the level of premeditation and intent on the part of the perpetrator, and the presence of aggravating and mitigating factors in death penalty cases according to state law. Statistical analyses suggested the presence of three general exemplars.

• The first exemplar typically involved perpetrators who did not know their victims, encountered them while committing other crimes, and then killed them in an unemotional and unplanned manner.
• The second typically involved a perpetrator planning to shoot an acquaintance and following through on the plan.
• The third involved a perpetrator motivated by anger or jealousy, often killing multiple acquaintance victims at a residence.

Each of the general clusters also contained multiple exemplars. The researchers concluded that the scenarios generated by participants were strikingly diverse; there was no evidence that a single script or prototype was used to construct the murder narratives. An important strength of paradigmatic models is that they are highly structured and explicit. Because of the specific information inputs, the operations used to manipulate information, and decision outputs, they easily lend themselves to experimental and statistical evaluation. Narrative models are inherently less structured, which makes them harder to evaluate. But the strength of paradigmatic models comes at a cost:

• Paradigmatic models are normative, focusing on how decisions should be made by hypothetical rational beings. In contrast, narrative models are descriptive, focusing on how people actually make decisions.
• Paradigmatic models assume that the decision-making process is stable— that is, the same process is used by different triers of fact or by the same trier of fact across trials. Narrative models make no such assumption, although they acknowledge certain story elements may be stable.
• Paradigmatic models view trials as “closed systems.” They assume triers of fact base their decisions solely on the evidence presented at trial and evaluate only the legal arguments put forward by parties to the proceedings. In contrast, narrative models assume triers of fact may be just as interested in evidence that was not presented; they also accept that triers of fact may construct their own story to explain evidence, rejecting all the legal arguments put forward by parties, and drawing unexpected inferences from the evidence presented.
• Paradigmatic models view the legal decision as a simple binary choice: for example, a choice between accepting or rejecting a particular legal argument (e.g., “guilty” versus “not guilty”) or between accepting one of the legal arguments advanced by opposing parties (e.g., “Jones suffered injury due to negligent acts by Smith” versus “Jones suffered injury due to acts by Smith, but Smith did not act negligently”). But many legal decisions are much more complicated. For example, the “decision” in a coroner’s court may require the trier of fact to determine the cause of death in a given case and to make recommendations for preventing future deaths.

• Paradigmatic and narrative models both tend to focus on the trier of fact as an individual person, even when that person is part of a group (e.g., an administrative tribunal, review board, jury, or panel of judges). Both models ignore the interpersonal or social dimension of legal decision making.

Evaluating Juries

The jury system allows ordinary citizens to play a role in the administration of justice by cleaving the process of legal decision making in two: (1) juries function as triers of fact using the wisdom of a group, and (2) judges function as triers of law using the wisdom of an individual. But does using a jury system lead to better—or even different—decisions? Research using various methods has compared the legal decisions made by jurors (mock or actual) to those of legal professionals (lawyers or judges) based on the same facts and legal instructions. According to Diamond (2001), the differences between the two groups are rather small. The rate of agreement between lay people and experts with respect to final decisions generally is very high, ranging from 75 to 80 percent (Bornstein & Greene, 2011). Also, lay people and experts are influenced by evidence in very similar ways. For example, both groups have trouble ignoring evidence deemed inadmissible, are susceptible to the hindsight bias, and put little weight on statistical evidence. Perhaps the only reliable difference is that when lay people disagree with judges with respect to final decisions, lay people more often vote in favour of the defendant or respondent.

Summary

Legal decision making strives for justice by considering matters of law and fact. Legal decisions are made by a range of people acting as individuals (e.g., judges) or as groups (e.g., judicial panels, tribunals, review boards, and juries). The unique characteristic of modern juries is that they are made up of ordinary citizens. In common law jurisdictions, all legal decision makers are expected to be impartial. But jurors are also expected, and indeed selected, to have no special knowledge concerning matters of fact in the case at hand or concerning matters of law, either in the case at hand or more generally. It is ironic that the jury, originally developed in part because it had specific knowledge that might assist the trier of law, has evolved into a group chosen because it is specifically ignorant. Psycholegal scholars have attempted to overcome the considerable obstacles to research, and their findings reveal jurors as neither incompetent amateurs nor the last bastions of justice, but rather as human beings struggling collectively to overcome their individual limitations to reach a just decision.

 

 

Key Terms

alternates

challenge for cause

change of venue

charge to the jury

continuance

hung jury
juror

jury

jury nullification

justice

legal decision making

mock jury research

narrative models

operational decision making

paradigmatic models

peremptory challenges

story model
trier of fact

trier of law

venirepersons

voir dire

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