tag:theconversation.com,2011:/us/topics/jury-28120/articlesJury – The Conversation2023-09-28T12:28:47Ztag:theconversation.com,2011:article/2108362023-09-28T12:28:47Z2023-09-28T12:28:47ZJuries that don’t understand forensic science can send innocent people to prison − a short training video could help<figure><img src="https://images.theconversation.com/files/550656/original/file-20230927-21-d5p74f.jpg?ixlib=rb-1.1.0&rect=928%2C0%2C7011%2C4916&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jurors tend to rely heavily on forensic testimony, even when they don't understand it.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/witness-addressing-the-courtroom-in-a-trial-royalty-free-image/844393098">andresr/E+ via Getty Images</a></span></figcaption></figure><p><a href="https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5159">Ledura Watkins</a> was 19 years old when he was accused of murdering a public school teacher. At trial, a forensic expert testified that a single hair found at the scene was similar to Watkins’ and stated his conclusion was based on “reasonable scientific certainty.” He explained that he’d conducted thousands of hair analyses and “had never been wrong.”</p>
<p>This one hair was the only physical evidence tying Watkins to the crime. In 1976, Ledura Watkins was convicted of first-degree murder and sentenced to life in prison without the possibility of parole.</p>
<p>Here’s the catch: The expert’s testimony was inappropriate and misleading, and the jury made a mistake. Watkins was innocent. Ledura Watkins lost over 41 years of his life to a <a href="https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5159">wrongful conviction based on improper forensic testimony</a>.</p>
<p><a href="https://scholar.google.com/citations?user=wR9V8s8AAAAJ&hl=en&oi=sra">Our interdisciplinary</a> <a href="https://scholar.google.com/citations?user=syay8eEAAAAJ&hl=en&oi=ao">team of</a> <a href="https://scholar.google.com/citations?user=m9pMkQcAAAAJ&hl=en&oi=ao">legal psychologists</a>, <a href="https://gfjc.fiu.edu/">forensic experts</a> <a href="https://scholar.google.com/citations?user=STmVsAgAAAAJ&hl=en&oi=ao">and an attorney</a> worked to develop an educational tool to help jurors avoid making similar mistakes in the future.</p>
<h2>Forensic testimony carries weight with jurors</h2>
<p><a href="https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx">One out of every five wrongful convictions</a> cataloged through September 2023 by the <a href="https://www.law.umich.edu/special/exoneration/Pages/mission.aspx">National Registry of Exonerations</a> involved improper forensic evidence.</p>
<p>There is reason to be concerned about jurors’ ability to adequately evaluate forensic evidence. <a href="https://doi.org/10.1007/BF01498976">Jurors tend</a> <a href="https://doi.org/10.1111/j.1559-1816.1990.tb00400.x">to rely heavily</a> <a href="https://doi.org/10.1037/lhb0000423">on forensic evidence</a> <a href="https://doi.org/10.1037/1076-8971.14.1.27">when making decisions</a> in a case, <a href="https://doi.org/10.1023/A:1022368801333">despite struggling to</a> <a href="https://doi.org/10.1037/lhb0000027">understand the statistical analyses</a> <a href="https://doi.org/10.1086/428020">and language used</a> to explain forensic science. They might ignore the differences between appropriately worded forensic testimony <a href="https://doi.org/10.1037/lhb0000423">and testimony that violates best-practice guidelines</a>, fail to grasp the limitations of forensic science in expert witness testimony and <a href="https://doi.org/10.1007/s10979-008-9169-1">overly rely</a> <a href="https://doi.org/10.1037/law0000103">on an expert’s experience</a> when evaluating the evidence.</p>
<p>Despite all these issues, jurors remain <a href="https://doi.org/10.1007/s10979-008-9169-1">overconfident in their ability</a> to comprehend forensic testimony.</p>
<p>Researchers have long suggested that part of the problem is the <a href="https://doi.org/10.1037/lhb0000423">way forensic evidence is presented</a> in courtrooms. In response to <a href="https://www.jstor.org/stable/25475240">calls by scientists</a>, the U.S. Department of Justice approved the <a href="https://www.justice.gov/olp/uniform-language-testimony-and-reports">Uniform Language for Testimony and Reports</a> in 2018. These <a href="https://www.justice.gov/media/1072031/dl?inline">guidelines</a> aimed to lessen misleading statements in forensic testimony and outlined five statements forensic experts should not make. The expert in Ledura Watkins’ case made several of these statements, including claiming that his examination was perfect because of the number of examinations he had conducted.</p>
<p><iframe id="2I1CZ" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/2I1CZ/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>It’s understandable that jurors are swayed by an expert who uses terms like “error free,” “perfect” or “scientific certainty.” We are interested in finding ways to help people critically evaluate the forensic testimony they hear in court.</p>
<h2>An informational video for jurors</h2>
<p>Inspired by one court’s use of <a href="https://www.wawd.uscourts.gov/jury/unconscious-bias">videos to help train jurors</a> on relevant concepts, our team developed what we call the forensic science informational video. It’s about 4½ minutes long and focuses on latent print examinations, including fingerprints, footwear impressions and tire impressions.</p>
<p>In the FSI video, a narrator explains what a forensic expert is and how they might testify in court. The video describes how latent print examinations are conducted and what types of statements are appropriate – or not – for an expert to make in their testimony, based on the DOJ guidelines.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/fZJAlB9OgLA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Mock jurors watched this training video about forensic testimony.</span></figcaption>
</figure>
<p>In two different studies, we recruited jury-eligible adults to test whether our video had any effect on how jurors judged forensic testimony.</p>
<p>In our first study, some participants watched the FSI video and others didn’t. Participants who watched the FSI video were <a href="https://doi.org/10.1177/00938548231195112">more likely to give lower ratings to improper forensic testimony</a> and the forensic expert who gave it.</p>
<p>In our second study, we tested whether the video could help jurors <a href="https://doi.org/10.1037/lhb0000539">differentiate between low-quality and high-quality testimony</a> without creating a general distrust in forensic evidence. Participants watched a 45-minute mock trial video. Without training from the FSI video, participants rated both low- and high-quality forensic testimony highly. That is, they didn’t differentiate between testimony in which the expert violated three of the DOJ guidelines and testimony that followed the guidelines.</p>
<p>But participants who watched our informational video prior to the mock trial were more likely to differentiate between the low- and high-quality testimony, rating the expert giving low-quality testimony more poorly than the expert giving high-quality testimony.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="sign directing juror where to report for their service" src="https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=482&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=482&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550657/original/file-20230927-25-w5o665.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=482&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In-court instruction can provide everyday citizens with the knowledge they need to make good decisions.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sign-detailing-instructions-for-jurors-lies-in-a-hallway-news-photo/57502325">Chip Somodevilla via Getty Images</a></span>
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<h2>Training helps jurors assess forensic testimony</h2>
<p>These findings suggest that our informational video helped mock jurors in two ways. Participants learned how to identify low-quality forensic testimony and how to adjust their evaluations of the expert and their testimony accordingly. Importantly, the video did not cause participants to distrust latent print evidence in general.</p>
<p>Our study is a promising first step in exploring ways to help jurors understand complex forensic testimony. A brief video like ours can provide standardized information about forensic experts and types of appropriate and inappropriate testimony to jurors across courts, much like similar <a href="https://www.wawd.uscourts.gov/jury/unconscious-bias">videos about implicit bias</a> already being used in some courts.</p>
<p>We believe a training video has the potential to be easily implemented as an educational tool to improve the quality of jurors’ decision-making. A better understanding of the distinction between proper and improper testimony would improve the justice system by helping jurors fulfill their roles as objective fact-finders – and hopefully prevent wrongful convictions like that of Ledura Watkins.</p><img src="https://counter.theconversation.com/content/210836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Devon LaBat receives funding from the National Institute of Justice. </span></em></p><p class="fine-print"><em><span>Deborah Goldfarb receives funding from the National Institute of Justice. </span></em></p><p class="fine-print"><em><span>Jacqueline R. Evans receives funding from the National Institute of Justice. </span></em></p><p class="fine-print"><em><span>Nadja Schreiber Compo received funding from the National Institute of Justice.</span></em></p>Educating mock jurors about what kinds of statements are appropriate − or not − led to more critical assessments of forensic testimony and improved the quality of their decisions.Devon LaBat, Doctoral Candidate in Legal Psychology, Florida International UniversityDeborah Goldfarb, Assistant Professor of Psychology, Florida International UniversityJacqueline R. Evans, Associate Professor of Psychology, Florida International UniversityNadja Schreiber Compo, Professor of Psychology, Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2073842023-06-12T17:44:26Z2023-06-12T17:44:26ZA jury of ex-presidents? No, but Trump’s fate will be decided by 12 citizen peers, in a hallowed tradition of US democracy<figure><img src="https://images.theconversation.com/files/531374/original/file-20230612-270005-vuhapd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A judge bench and a jury box are seen in a U.S. courthouse in Cleveland, Ohio.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/564093673/photo/east-courtroom-judge-bench-and-jury-box-howard-m-metzenbaum-u-s-courthouse-cleveland-ohio.jpg?s=1024x1024&w=gi&k=20&c=odacBdzPHvUBQHg-tFIbT2PJdGT5QZ9j63-HX4Yh_I8=">Carol M. Highsmith/Buyenlarge/Getty Images</a></span></figcaption></figure><p>It is not the federal government that will hold Donald Trump’s future in its hands. It will be 12 jury members in his eventual trial.</p>
<p>Trump appears in federal court on June 13, 2023 for his arraignment and the formal presentation of the charges lodged against him in a <a href="https://www.documentcloud.org/documents/23839628-trump-indictment">37-count indictment</a> released on June 9, 2023. </p>
<p>Trump’s defenders have alleged that the indictment is a politically motivated “<a href="https://www.bloomberg.com/news/articles/2023-03-27/four-out-of-five-republicans-think-trump-investigations-are-witch-hunt">witch hunt</a>” by the Biden administration and that any conviction would thus be discredited. </p>
<p>But like all federal defendants, Trump will be protected by the <a href="https://constitutioncenter.org/the-constitution/amendments/amendment-vi">Sixth Amendment’s right to a jury trial</a>. That right, to have a jury of 12 citizens render judgment on his case, protects Trump from the government’s overstepping citizens’ limits on its power – a dynamic that is often lost in the political sound and fury over his state and federal indictments.</p>
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<a href="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A yellow sign with a black arrow points toward a large glass building, with palm trees outside." src="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=479&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=479&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=479&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People pass by the Wilkie D. Ferguson Jr. United States Federal Courthouse, where Trump is scheduled to appear this week, in Miami, Fla.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1497666902/photo/miami-readies-for-former-president-trumps-arraignment-in-federal-court.jpg?s=1024x1024&w=gi&k=20&c=M3BFPN36uNmGLhToI5msZAFbvFoFl5T3leNOrlvDcfY=">Joe Raedle/Getty Images</a></span>
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<h2>‘In the hands of the governed’</h2>
<p>Sourced to the <a href="https://www.britannica.com/topic/Magna-Carta">Magna Carta</a>, the 13th-century charter of rights, jury trials have become a feature in all countries that share the British legal tradition, shielding citizens from unlimited prosecutorial power. </p>
<p>As the shrewd observer <a href="https://www.kenwoodacademy.org/ourpages/auto/2013/11/28/53482855/dem-in-america1.pdf">Alexis de Tocqueville</a> remarked in 1835, juries “place the real direction of society in the hands of the governed [because] he who punishes the criminal … is the real master of society.” </p>
<p>Supreme Court Justice Lewis Powell observed in 1966 that juries are especially significant in the trial of crimes against the state such as treason and sedition, which therefore can be considered political – and perhaps more open to prosecutorial abuse.</p>
<p>“It was just such abuses that caused our English and American forebears <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3586&context=wlulr">to prize trial by jury so highly</a>,” Powell said. </p>
<p>And Thomas Jefferson <a href="https://founders.archives.gov/documents/Jefferson/01-15-02-0259">wrote</a> that he “consider[ed] trial by jury as the only anchor even yet imagined by man, by which a government can be held to the principles of its constitution.”</p>
<p>In federal court in criminal prosecutions, such as Trump’s, a 12-member jury is a <a href="https://caselaw.findlaw.com/court/us-supreme-court/170/343.html">matter of right</a>, and that jury must reach a unanimous verdict to convict. </p>
<h2>Serious scrutiny</h2>
<p>The jury pool in federal cases is <a href="https://www.uscourts.gov/services-forms/jury-service/learn-about-jury-service">randomly drawn</a> from registered voters and people with driver’s licenses who live in the district.<br>
The process called “voir dire” allows defense attorneys to request that the judge reject certain potential jurors for cause – on grounds of some demonstrated issue of bias, such as when questioning of a juror reveals strong prejudice for or against a defendant. In Trump’s case, jurors’ political affiliations, and the depth of their partisan commitments, may be relevant and <a href="https://supreme.justia.com/cases/federal/us/158/408/">permissible grounds</a> for questioning at the trial court’s discretion. </p>
<p>Even potential jurors’ social media accounts may be investigated to expose their political views. Voir dire also allows defense attorneys to reject – in legal parlance, to “strike” – up to 10 jurors <a href="https://www.federalrulesofcriminalprocedure.org/title-vi-trial/rule-24-trial-jurors/">for no cause at all</a>. </p>
<p>Federal rules allow up to six alternative jurors in the event one is dismissed by the judge for improper behavior, such as violating the judge’s instructions regarding access to media or <a href="https://www.dailymail.co.uk/news/article-11812807/Juror-Murdaugh-kicked-case-discussing-evidence-THREE-people.html">discussing the case</a> with people outside of court. </p>
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<a href="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair, wearing a 19th century jacket." src="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=710&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=710&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=710&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=892&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=892&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=892&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">French politician Alexis de Tocqueville, an observer of early America, famously said juries ‘place the real direction of society in the hands of the governed.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/alexis-de-tocqueville-french-historian-original-artwork-news-photo/3309867?adppopup=true">Lithograph by von Chasseriau, photo by Hulton Archive/Getty Images</a></span>
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<h2>High profile, high pressure</h2>
<p>If he chooses to go to trial, Donald Trump will face a jury of his peers carefully scrutinized by his defense attorneys for potential bias, who may be replaced in the event they misbehave. Like all criminal defendants, Trump will enjoy the protection that the jury will offer him from abuse by the government’s prosecutors. </p>
<p>Of course, jurors in high-profile cases such as United States v. Trump face pretrial exposure to extensive media coverage. But this is nothing new. </p>
<p>Early in the history of the republic, <a href="https://constitutioncenter.org/blog/the-great-trial-that-tested-the-constitutions-treason-clause">Vice President Aaron Burr stood trial for treason</a> on grounds that he had fomented a military effort to separate the Louisiana Territory from the United States. After he resigned from the vice presidency during Jefferson’s last term in office, Burr traveled the country gathering collaborators in his plot to separate the western territories from the union. </p>
<p><a href="https://www.famous-trials.com/burr/156-home">Burr’s trial</a> in Richmond, Virginia, was presided over by U.S. Chief Justice John Marshall and <a href="https://www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall">became a cause célèbre</a>, with widespread and detailed coverage in newspapers in Virginia. </p>
<p>Marshall <a href="https://www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall">struggled with the effect of pretrial publicity</a> on the jury but ultimately concluded that finding a jury without any such exposure would be impossible and thus not required. <a href="https://constitutioncenter.org/blog/the-great-trial-that-tested-the-constitutions-treason-clause">Burr was ultimately acquitted</a>. </p>
<p>Jurors themselves, however, may face more significant personal difficulties in discharging their duties, including significant pressure associated with public scrutiny. Jurors in the high-profile case involving Rodney King, for example, experienced threats and disturbing phone calls <a href="https://www.chicagotribune.com/news/ct-xpm-1993-02-15-9303182165-story.html">when their names became public</a>. </p>
<p>Jurors may also experience <a href="https://www.cbc.ca/news/canada/toronto/jury-murder-trials-justice-court-ontario-ptsd-trauma-1.3796520">post-traumatic stress disorders</a> and other stress-related health issues following high-profile trials or trials entailing disturbing evidence. </p>
<p>For these reasons, the jurors in the Trump trial may be protected by anonymity, if the presiding judge orders it. There was such <a href="https://www.reuters.com/legal/trump-face-anonymous-jury-high-profile-new-york-defamation-trial-2023-03-23/">an order</a> in the E. Jean Carroll case against Trump in New York. </p>
<p>How Judge Aileen Cannon – <a href="https://thehill.com/policy/national-security/4042423-trump-appointed-judge-aileen-cannon-assigned-to-his-documents-case/">twice reversed</a> by a higher court for Trump-friendly rulings – will approach the issue of juror anonymity is unclear.</p>
<p>Given the agitation among Trump’s supporters, the high-stakes nature of the case, and the importance of protecting the jurors – who wield such power in the judicial system – I believe such an order is necessary.</p><img src="https://counter.theconversation.com/content/207384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Like all criminal defendants, Trump will enjoy the protection that a jury will offer from abuse by government prosecutors.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1938432022-11-07T19:01:55Z2022-11-07T19:01:55ZCan juries still deliver justice in high-profile cases in the age of social media?<p>The recent <a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382">sudden end</a> to the Bruce Lehrmann trial last month raises again whether the jury is fit for purpose in a 21st century hyper-connected world.</p>
<p>That jury’s service in the Lehrmann case ended peremptorily after it was revealed to the judge that material downloaded from the internet (which was highly relevant to the case and not introduced as evidence) had been found in the jury room. A retrial has been <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-retrial-confirmed-for-2023-says-act-director-of-public-prosecutions-shane-drumgold/news-story/6012323f3d863985ce5a001f10a3a7eb">set for late February</a>. Lehrmann had been accused of raping former Liberal Party staffer Brittany Higgins, to which he pleaded not guilty. </p>
<p>The costs so far (to both parties and the court) could well exceed a million dollars.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1585497761771823104"}"></div></p>
<p>With easy access to the internet available to any juror who owns a mobile phone, is it conceivable that all jurors will abide by the strict instructions of a judge admonishing them to pay attention only to the evidence adduced in the trial?</p>
<p>Are instructions to jurors to avoid media sources meaningless given the accessibility of the internet?</p>
<p>These aren’t new questions. In 2005, <a href="https://www.parliament.nsw.gov.au/researchpapers/Documents/trial-by-jury-recent-developments/jury%20and%20index.pdf">a report</a> prepared for the NSW Parliamentary Library Research Service observed:</p>
<blockquote>
<p>Prominent cases in recent years […] have illustrated the legal problems that can occur when jurors, despite judicial instructions to confine their deliberations to the evidence before them, undertake their own research, discuss the case with non-jurors, or visit a place connected with the offence. The increasing amount of legal information available on the internet is a cause for particular concern. The Jury Amendment Act 2004 […] prohibits jurors from making inquiries about the accused or issues in the trial, except in the proper exercise of juror functions.</p>
</blockquote>
<p>But for all the warnings and threats of consequences, a juror may still stray down <a href="http://www.lawfoundation.net.au/ljf/site/templates/grants/$file/UNSW_Jury_Study_Hunter_2013.pdf">the path of private sleuth</a>. It’s easy to do and Australians have a voracious appetite for social media. In 2018 <a href="https://www.yellow.com.au/wp-content/uploads/2018/06/Yellow-Social-Media-Report-2018-Consumer.pdf">a survey reported</a> 62% of Australian adults use social media sites every day, and 34% use them more than five times a day.</p>
<p>This becomes particularly problematic when the eyes of the world are fixed on cases such as these.</p>
<p>The sudden and unexpected end to the Lehrmann trial prompts a more fundamental question: should we continue to persist with juries at all?</p>
<h2>Two sides</h2>
<p>There are two sides to the argument regarding retention of the jury.</p>
<p>On the one hand, juries have stood the test of time. The idea of being tried by one’s peers was entrenched by the <a href="https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial">Magna Carta of 1215</a>. Even though the jury as we know it didn’t crystallise until about 350 years ago and has been through a number of permutations since then, there would be few people who could argue against its symbolic legitimacy given its staying power.</p>
<p>Over that time, juries have been given sustained examination in Australia by the <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-48.pdf">New South Wales Law Reform Commission</a>, the Queensland <a href="https://www.ccc.qld.gov.au/sites/default/files/Docs/Publications/CJC/The-jury-system-in-criminal-trials-in-qld-Issues-paper-1991.pdf">Criminal Justice Commission</a>, the <a href="https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/jury_service/report_volume_1.pdf">Victorian Law Reform Committee</a>, and most recently by academics at <a href="https://cdn.csu.edu.au/__data/assets/pdf_file/0007/3452182/Jury-Reasoning-v2-NEW-BRANDING.pdf">Charles Sturt University</a>, to name a few. Juries have survived largely intact throughout this exercise.</p>
<p>On the other hand, there are doubts about their efficiency. Juries took a hit after the High Court decision <a href="https://theconversation.com/the-jury-may-be-out-on-the-jury-system-after-george-pells-successful-appeal-135814">in the George Pell appeal</a> where the judges, in allowing the appeal, ruled that no jury, properly instructed, could have reached a guilty verdict in his trial.</p>
<p>What’s more, it’s overstated to say that trial by jury is a fundamental bulwark of fairness in the criminal justice system. Indeed, 92% of criminal matters in Australia are dealt with in the <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">magistrates courts</a>, where there are no juries. Of the remaining 8% referred to the “superior” criminal courts (Supreme, District and County), more and more defendants are choosing “judge alone” trials (in jurisdictions where that option is available). For example, in NSW, <a href="https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-a-flawed-approach-to-criminal-justice-137397">up to a quarter of accused persons</a> are now electing to be tried without a jury.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1247405253315530753"}"></div></p>
<p>Other studies have highlighted how jurors <a href="https://www.sciencedirect.com/science/article/abs/pii/S0194659507000470">overrate DNA evidence</a> despite judicial directions, which may lead to <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:10533">far more jury convictions</a> than are warranted, and how jurors’ perceptions of guilt and innocence can be affected by the <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:44141">positioning of defendants</a> in the courtroom. <a href="https://espace.library.uq.edu.au/view/UQ:331175">Another study</a> found that although jurors report they understand directions, they often don’t appear to use those directions in arriving at a decision.</p>
<p>And finally, as the Lehrmann trial has illustrated, it’s not unusual for jurors to ignore or misunderstand the instructions that have been given to them.</p>
<p>But, what about the ability of juries to apply some of their own “commonsense” justice? True, there are examples of juries wielding their own commonsense stick. For example, a verdict that <a href="https://www.coursehero.com/file/p7dtm6g/R-v-R-1981-28-SASR-321-South-Australian-Supreme-Court-King-CJ-Jacobs-Zelling-JJ/">occurred in 1981</a> when a South Australian jury returned a verdict of not guilty for a woman who had been charged with the murder of her husband. The jury decided that the defence of provocation (only available to reduce murder to manslaughter) exonerated her, figuring that, in the time before the victim’s death, his severe and persistent abuse of his family had pushed his wife to breaking point.</p>
<p>There is, however, a contrary argument. Research has revealed that “commonsense” <a href="https://onlinelibrary.wiley.com/doi/epdf/10.1111/lapo.12181">comes with coded biases</a>, such that telling jurors to use their commonsense is futile, given it’s difficult (if not impossible) to erode such biases.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/juries-are-subject-to-all-kinds-of-biases-when-it-comes-to-deciding-on-a-trial-176721">Juries are subject to all kinds of biases when it comes to deciding on a trial</a>
</strong>
</em>
</p>
<hr>
<h2>Are there other options?</h2>
<p>One alternative to the jury is mixed judiciaries used in some European countries, where one may find a panel of judges or <a href="https://academic.oup.com/book/32863/chapter/275978049?login=true">a combination of judges and lay people</a>. But the common law world has never looked like following that lead.</p>
<p>Another alternative in use in Australia is a judge alone trial, although <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11">that option</a> isn’t always available, and by virtue of <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11">Section 80 of the Constitution</a> isn’t available in a trial of a serious federal offence. Indeed, there’s no guarantee that judges themselves are immune from social media influences. While there’s a widespread belief that judges are more capable than juries of putting <a href="https://chelmsfordlegal.com.au/trial-by-judge-alone-is-it-possible-and-if-so-is-it-preferable/">to one side their own prejudices</a>, the rules regarding sub judice contempt (discussing publicly a matter that is before a court in a manner that may influence the outcome) applies equally to judge alone and jury trials.</p>
<p>Adding to the policy confusion, there’s some evidence trials by judge alone do make a difference to the outcome. The NSW Bureau of Crime Statistics <a href="https://stacklaw.com.au/news/criminal-law/trial-by-jury-vs-trial-by-judge-alone-whats-the-difference/">examined NSW trials between 1993 and 2011</a> and found defendants were acquitted 55.4% of the time in a judge alone trial, compared to 29% in a jury trial. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1539801923070615552"}"></div></p>
<p>Another reform idea is to allow jurors to <a href="https://scholar.google.com/citations?view_op=view_citation&hl=en&user=dMsPrLwAAAAJ&citation_for_view=dMsPrLwAAAAJ:7PzlFSSx8tAC">raise questions with the judge</a> during breaks in the trial, including asking about things they may have “accidentally” come across on social media. A judge could send the jury out while the lawyers present to the judge how they think the questions should be handled and answered. However, this idea has yet to excite policymakers.</p>
<p>In the end, we must accept there are flaws in jury process. But finding acceptable alternatives has proved difficult, hence the reluctance of governments to abandon the status quo. Judges will continue to warn against private sleuthing, but one suspects that it will, from time to time, continue regardless.</p>
<p>One can only hope the disaster that befell the Lehrmann trial sends a salutary lesson to prospective jurors henceforth: listen to what the judge tells you, and during the course of the trial leave your favourite search engine alone.</p><img src="https://counter.theconversation.com/content/193843/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office holder in SA Labor.</span></em></p>In the end, we must accept there are flaws in jury processes. But finding alternatives has proved difficult, hence the reluctance of governments to abandon the status quo.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1933822022-10-27T04:39:45Z2022-10-27T04:39:45ZWhy was the Lehrmann trial aborted and what happens next?<p>The trial of Bruce Lehrmann, accused of raping former Liberal Party staffer Brittany Higgins, <a href="https://www.abc.net.au/news/2022-10-27/jury-discharged-in-trial-of-bruce-lehrmann-brittany-higgins/101583486">has been aborted</a> after a juror was found in possession of material that had not been presented as evidence, against the judge’s specific directions.</p>
<p>This was not the first drama in the jury’s deliberations. On Tuesday, after more than four days of deliberating, the 12 jurors passed a note to ACT Chief Justice Lucy McCallum saying they could not agree on a unanimous verdict. The judge called the jurors back into the courtroom and encouraged them to keep working on a decision.</p>
<p>Today, however, she announced she had no choice but to discharge the jury due to a juror’s “misconduct”, which was apparently discovered when a member of the court staff noticed an academic research paper in one of the juror’s document holders that had been knocked to the floor. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1585449420937568257"}"></div></p>
<h2>Is this uncommon?</h2>
<p>It’s not uncommon for juries to be discharged in circumstances where a juror decides to do their own unauthorised research, such as by <a href="https://www.lawyersalliance.com.au/opinion/juror-misconduct-leads-to-quashed-conviction-and-retrial">photographing a crime scene</a>, <a href="https://www.abc.net.au/news/2022-04-07/bendigo-rape-trial-abandoned-after-juror-breaches-instructions/100973386">making their own enquiries</a>, or <a href="https://www.abc.net.au/worldtoday/content/2008/s2326031.htm">planning to visit a place</a> mentioned in evidence. </p>
<p>One of the more extraordinary cases of jury misconduct occurred in 1994 when a number of jurors in Britain <a href="https://www.abc.net.au/news/2018-05-08/ouija-board-juror-misbehaviour-murder-trials/9734868">deployed a ouija board</a> to contact the victim of a murder. A <a href="https://catalogue.nla.gov.au/Record/7504302">new trial was ordered</a>.</p>
<p>Interestingly, misconduct often comes to light when one juror approaches the judge about a fellow juror’s behaviour. It’s more difficult to know how common it is for extraneous research by a juror to go undetected, particularly given the veil of secrecy that surrounds jury deliberations.</p>
<p>In today’s hyper-connected world, it’s easy for a juror to access information, in this case an <a href="https://www.theguardian.com/australia-news/2022/oct/27/jury-discharged-in-bruce-lehrmann-case-after-material-entered-jury-room-that-ought-not-to-have">academic paper about the incidence of false complaints of rape</a>. </p>
<h2>Why are jurors not allowed to conduct their own research?</h2>
<p>The role of the jury is to come to a decision based on the evidence before them.
Juries are community representatives within the courtroom, whose job it is to determine questions of fact and apply the law to those facts to reach a verdict. </p>
<p>One might think that, in so doing, it’s inevitable individual jurors bring with them their own life experiences and moral values, and there is nothing wrong with that. Indeed, Justice McCallum told the jury in this case:</p>
<blockquote>
<p>You are expected to use your common sense […] your understanding of human nature and your ability to judge people […] You are entitled to have regard to your understanding and experience of the nature of memory.</p>
</blockquote>
<p>However, the jurors in the trial of Lehrmann sat through days of evidence, carefully presented and argued over by prosecution and defence counsel, and deemed admissible according to the rules of evidence.</p>
<p>The most important rule of admissibility is that the evidence is relevant to the case. Beyond relevance, evidence is subject to complex rules of admissibility, designed primarily to screen out material that’s unfairly prejudicial to the defence, and to protect vulnerable witnesses.</p>
<p>Examples include rules against the admission of hearsay, prior sexual experience of a complainant, or the “character” of a defendant. These rules are all the more important when it comes to <a href="https://www.aic.gov.au/publications/tandi/tandi344">emotive crimes like rape</a>. </p>
<p>Given the complex nature of some of the evidence with which they are presented, and the “holes” in the trial narrative that might appear from the exclusion of potentially relevant evidence, jury members may be tempted to turn to outside sources in an attempt to increase their understanding of issues raised during the course of a trial.</p>
<p>The dangers of allowing such extraneous “research” are twofold. First, such evidence is not subject to the rules of admissibility alluded to above. Second, it is not subject to the rigours of cross-examination. </p>
<p>For these reasons, jurors are reminded again and again to come to a decision based solely on the evidence presented. It’s for this reason the jury in this case will have been instructed to disregard anything they may have read, heard or seen in the media about the case before they had been empanelled, and certainly not to undertake their own research.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-was-the-brittany-higgins-trial-delayed-and-what-is-contempt-of-court-a-legal-experts-view-on-the-lisa-wilkinson-saga-185585">Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga</a>
</strong>
</em>
</p>
<hr>
<h2>What happens next?</h2>
<p>The trial has been aborted and the jury has been dismissed. The judge granted Lehrmann bail until February 20, and set that as a provisional retrial date. The matter is now referred back to the Director of Public Prosecutions, Shane Drumgold. It’s a matter for him, ultimately, to determine whether to proceed with a retrial.</p>
<p>A retrial comes at considerable economic cost. What’s more, all of the witnesses will now be put through the same ordeal once again. </p>
<p>Despite the disruption caused by the errant juror’s behaviour, however well-meaning, the juror has committed <a href="https://www.theguardian.com/australia-news/2022/oct/27/jury-discharged-in-bruce-lehrmann-case-after-material-entered-jury-room-that-ought-not-to-have">no offence in the ACT</a>. However, other jurisdictions deem juror contempt <a href="https://www.theguardian.com/law/2012/jan/23/juror-contempt-court-online-research">a serious criminal offence</a>.</p>
<p>It remains to be seen what the next chapter in this protracted case brings.</p>
<hr>
<p><em>Correction: this article previously stated that it’s unclear whether a retrial will be heard before a jury. This has been removed. ACT law requires the charge of “sexual intercourse without consent” to be heard before a jury.</em></p><img src="https://counter.theconversation.com/content/193382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is affiliated with the ALP.</span></em></p><p class="fine-print"><em><span>Ben Livings does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The dangers of allowing extraneous “research” are twofold. First, such evidence is not subject to the rules of admissibility. Second, it isn’t subject to the rigours of cross-examination.Ben Livings, Associate Professor of Criminal Law and Evidence, University of South AustraliaRick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1767212022-02-28T13:58:03Z2022-02-28T13:58:03ZJuries are subject to all kinds of biases when it comes to deciding on a trial<figure><img src="https://images.theconversation.com/files/448402/original/file-20220224-52384-10gzp8f.jpg?ixlib=rb-1.1.0&rect=0%2C14%2C3325%2C1979&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/twelve-jurors-sit-jury-box-court-1475824919">Varlamova Lydmila/Shutterstock</a></span></figcaption></figure><p>From <a href="https://www.imdb.com/title/tt0247082/">CSI</a> to <a href="https://www.nbc.com/law-order/about">Law and Order</a>, <a href="https://www.imdb.com/title/tt2303687/">Line of Duty</a> and <a href="https://www.imdb.com/title/tt0118401/">Midsomer Murders</a>, there is huge public fascination with crime and the criminal justice system. Especially when things come to a climactic ending and jurors decide on a defendent’s fate. But how much do jurors get it wrong? Will the jury convict an innocent person, or might they free a guilty person? </p>
<p>Ultimately, who committed the crime is often not easy to know, and jurors have to subjectively evaluate the evidence. But finding out what goes on inside the jury room and the <a href="https://theconversation.com/scotlands-not-proven-verdict-helps-juries-communicate-their-belief-of-guilt-when-lack-of-evidence-fails-to-convict-108286">biases</a> that might influence jurors themselves is of huge interest and importance. </p>
<p>As psychologists, we can delve into jury decision making, as it requires several different areas of psychological research (cognitive psychology, social psychology, and individual differences) to unlock the processes behind the decisions jurors reach. The aim of our <a href="https://www.researchgate.net/publication/358001463_Cognitive_and_human_factors_in_legal_layperson_decision_making_Sources_of_bias_in_juror_decision_making">recent review</a> was to bring together different areas of psychology to identify potential sources of bias that may influence how jurors make decisions.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/uPUMd89LqOA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>The big three biases</h2>
<p>We identified three main sources of bias: <a href="https://psycnet.apa.org/record/2008-10519-003">pre-trial bias</a>; <a href="https://oro.open.ac.uk/66827/1/faith-in-thy-threshold.pdf">cognitive bias</a> and <a href="https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704">bias originating from expert witnesses</a>. </p>
<p>A significant part of the research literature has highlighted that pre-trial biases can influence the judgments of jurors. In 2008 researchers developed the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.2008.00378.x">pre-trial juror attitude questionnaire</a> (PJAQ).</p>
<p>The scale measures biases that might influence juror decision making. For example, it measures biases such as racial biases and system confidence – how much faith (or not) the juror has in the criminal justice system. Through measuring these biases, we can get an indication into how strong a bias a person may have towards either the prosecution or defence. Interestingly, the PJAQ has often been shown to predict the verdict reached by jurors, with those who have a pro-prosecution bias reaching more guilty verdicts.</p>
<p>Due to pre-trial bias, some jurors are unable to take part in a criminal trial with an “innocent until proven guilty” <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.2008.00378.x">mindset</a>, even if they try. Jurors, like most humans, are not always rational, and may <a href="https://www.jstor.org/stable/1738360">struggle to process</a> and utilise all the available information in a reasoned manner.</p>
<p>This tendency often leads to biased decision making that can lead to errors. For example, <a href="https://www.jstor.org/stable/1738360">research</a> from 2001 found that jurors may favour particular verdicts as a trial progresses, despite being warned against doing this by a judge.</p>
<p>These preferences can lead to those jurors distorting the evidence against their preferred verdict or giving more weight to the evidence that favours their preference, a phenomenon known as <a href="https://journals.sagepub.com/doi/abs/10.1177/0025802418791062">confirmation bias</a>.</p>
<p>Jurors who enter the courtroom with a bias towards the prosecution are more likely to see the evidence from the prosecution’s perspective, and dismiss the evidence presented from the defence (and vice versa when jurors have a defence bias). So initial pre-trial biases interact with cognitive mechanisms (for example, thinking, perception, memory) to <a href="https://www.researchgate.net/publication/358001463_Cognitive_and_human_factors_in_legal_layperson_decision_making_Sources_of_bias_in_juror_decision_making">cause the effects of bias to snowball</a>. </p>
<p>Another origin of bias in jurors may come from “objective” and <a href="https://www.science.org/doi/epdf/10.1126/science.aat8443">scientific expert witnesses</a>. Researchers such as co-author Itiel Dror have <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1556-4029.14697">shown</a> that expert witnesses are far from objective decision makers and that irrelevant contextual information (provided, potentially, through the police) can bias their judgments and cause errors.</p>
<p>The diagram below shows the <a href="https://pubs.acs.org/doi/10.1021/acs.analchem.0c00704">factors that might influence</a> a forensic expert’s analysis. Through presenting expert testimony, biased conclusions could end up influencing the jury. </p>
<figure class="align-center ">
<img alt="A graphic showing a pyramid shape representing the sources of juror bias in criminal trials." src="https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/448397/original/file-20220224-21-95m6ha.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The biases that expert decision makers are subject to, from case-specific information to the effects of human and cognitive factors on their choices.</span>
<span class="attribution"><span class="source">Itiel Dror</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<h2>Balancing the bias</h2>
<p>We have made several recommendations in our review. First, we suggest a jury selection procedure, using measures like the PJAQ, where jurors with prejudicial biases are weeded out from the jury pool.</p>
<p>Second, such procedures could also be used to create a jury with a representative pool of biases. As fallible beings, humans are likely to always have some form of bias. If the most negative of biases, such as racial biases, are removed from the jury pool, other biases could be counteracted through a mix of jurors with different beliefs and biases – for example people with confidence in the criminal justice system vs. people with little faith in the system <a href="https://www.tandfonline.com/doi/abs/10.1080/1068316031000116283">deliberating with one another</a> – deliberating with one another. More research is needed though, as very little has been conducted on <a href="https://psycnet.apa.org/record/2017-09577-009">jury deliberations</a>.</p>
<p>A third suggestion is for the criminal justice system to tackle bias by protecting forensic experts from undue influences, so that powerful but biased expert evidence does not influence the jury. For example, an expert’s testimony may be biased if they knew about <a href="https://www.researchgate.net/publication/339135339_An_inconvenient_truth_More_rigorous_and_ecologically_valid_research_is_needed_to_properly_understand_cognitive_bias_in_forensic_decisions">another piece of unrelated evidence</a>, such as a confession, during analysis.</p>
<p>Methods of counteracting bias in forensic examiners include using expert witnesses not associated with either side of the <a href="https://www.science.org/doi/full/10.1126/science.aat8443">adversarial system</a>, and for labs to use techniques such as <a href="https://www.sciencedirect.com/science/article/pii/S2589871X21000310?via%3Dihub">Linear Sequential Unmasking</a> (LSU). </p>
<p>LSU is a technique where forensic experts analyse the information in a specific sequence in isolation from any other reference material. So, for example, first they would analyse the evidence at the crime scene such as fingerprints. But they would not have access at this point to any material pertaining to the “target” suspect, such as their fingerprints. The reference material would then be analysed and later compared to the evidence gathered. LSU ensures sequencing of the relevant contextual information so that the more objective and less biasing information is prioritised.</p>
<p>Bias is a significant issue in the criminal justice system and can lead to miscarriages of justice. Through researching the sources and effects, psychologists can aid the criminal justice system by helping those involved establish procedures that avoid the potential for bias to influence the process.</p><img src="https://counter.theconversation.com/content/176721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Finding out what goes on behind jury decisions and the biases that influence them is hugely important if the criminal justice system is to work properly.Lee John Curley, Lecturer in Psychology, The Open UniversityItiel Dror, Senior Cognitive Neuroscience Researcher, UCLJames Munro, Psychology Technical Lead (Teaching & Research) School of Psychology & Counselling Psychology, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1593302021-04-21T17:47:50Z2021-04-21T17:47:50ZChauvin conviction: 2 things to know about jury bias and 2 ways to reduce it<figure><img src="https://images.theconversation.com/files/396336/original/file-20210421-23-18f2ycc.jpeg?ixlib=rb-1.1.0&rect=8%2C8%2C5813%2C3861&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Atlanta, Ga., one person's sign reflects the actual verdicts that had just been delivered in the Derek Chauvin trial. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-march-through-the-streets-after-the-verdict-was-news-photo/1232429084?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p>Shortly after the guilty verdicts were revealed in former police officer Derek Chauvin’s trial for murdering George Floyd, <a href="https://www.reuters.com/world/us/chauvin-likely-appeal-claiming-trial-tainted-by-civil-settlement-media-coverage-2021-04-20/">legal experts suggested Chauvin will appeal</a>, arguing that his right to a fair trial was threatened by extensive pretrial publicity.</p>
<p><a href="https://www.youtube.com/watch?v=G9pssTNgK-g&feature=emb_title">Video of Derek Chauvin</a> with his knee on the neck of George Floyd for more than nine minutes was shared around the globe on social media and drew international outrage. The publicity around Floyd’s death will likely underlie any Chauvin appeal. To help place <a href="https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial">the jury’s unanimous decision on all three charges</a> in context, here are some important facts about juries.</p>
<h2>Pretrial publicity and other biases</h2>
<p>High-profile incidents of police killings often result in widespread pretrial publicity about the defendant and victim. The Derek Chauvin case was no exception. </p>
<p>I <a href="https://scholar.google.com/citations?hl=en&user=y3tF9rIAAAAJ">research</a> the prejudicial effects of pretrial publicity and other factors that influence jurors’ decisions. Information that comes out before the trial begins can elicit strong emotional reactions and <a href="https://doi.org/10.1007/978-3-319-75859-6_1">shape jurors’ judgments of credibility</a>.</p>
<p>The <a href="https://theconversation.com/being-skeptical-of-sources-is-a-journalists-job-but-it-doesnt-always-happen-when-those-sources-are-the-police-159173">police</a> often have the first chance to shape public opinion because they have staff experienced in making statements to the press – and the press is eager to get those statements. Unfortunately – though not uncommonly – early media attention on the death of George Floyd was <a href="https://www.startribune.com/mpls-police-still-haven-t-explained-misinformation-after-floyd-s-death/570970152/?refresh=true">based on inaccurate police statements that minimized the role of Derek Chauvin</a>.</p>
<p>Information provided by the news, including misleading information, can create opinions that are resistant to change. This happens especially when the <a href="https://theconversation.com/how-fake-news-gets-into-our-minds-and-what-you-can-do-to-resist-it-114921">information aligns with readers’ preexisting beliefs</a>. Furthermore, pretrial publicity that casts either the defendant or the <a href="https://theconversation.com/being-skeptical-of-sources-is-a-journalists-job-but-it-doesnt-always-happen-when-those-sources-are-the-police-159173">victim</a> in a negative light can lead jurors to interpret ambiguous trial evidence in ways that <a href="https://doi.org/10.1007/978-3-319-75859-6_1">support the slant of the information that came out before the trial began</a>. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/hdjBbfdRLkA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A video created by a committee of judges and attorneys to be shown to jurors that aims to highlight and combat the problems presented by unconscious bias.</span></figcaption>
</figure>
<p>For example, in an experiment, mock jurors were <a href="https://doi.org/10.1177/0093854811400823">more likely to convict a defendant when they were exposed to anti-defendant pretrial publicity</a> compared with those who did not receive this pretrial information. In contrast, exposure to pro-defendant pretrial publicity decreased the likelihood of mock jurors convicting. </p>
<p>The process of jury selection, formally called “voir dire,” does little to eliminate <a href="https://www.worldcat.org/title/on-the-effectiveness-of-voir-dire-in-criminal-cases-with-prejudicial-pretrial-publicity-an-empirical-study">jurors with biases that they are not consciously aware of</a> – known as implicit bias – regardless of whether those biases stem from pretrial information specific to the case or are deeper-seated biases associated with race or gender. </p>
<p>To address these implicit bias concerns, several courts across the country have developed safeguards, including <a href="https://www.washingtonpost.com/context/read-judge-s-instructions-to-derek-chauvin-trial-jurors/5b3517cb-bfa2-4dad-957e-11acfb2783f2/">special instructions</a> like those about implicit bias given in Chauvin’s trial and <a href="https://www.wawd.uscourts.gov/jury/unconscious-bias">educational videos</a> shown during jury selection. </p>
<p>However, there is <a href="https://osf.io/pgjwb/">little evidence</a> that these proposed remedies are effective.</p>
<h2>Public confidence in police</h2>
<p>In criminal trials, it is commonly believed that jurors grant police officers <a href="https://via.library.depaul.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1167&context=jsj">credibility by virtue of their job</a>. Jurors also grant police officers <a href="https://www.washingtonpost.com/nation/2021/04/04/when-police-kill-people-they-are-rarely-prosecuted-hard-convict/">much discretion when it comes to use of force</a>, even deadly force.</p>
<p>Yet, public confidence in the police is at record lows, <a href="https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx">especially among Black adults</a>. Frequent viral videos of police violence, <a href="https://www.usatoday.com/storytelling/storystack/2019-police-misconduct-investigations/">recent investigative reporting</a> exposing the extent of police misconduct and <a href="https://www.washingtonpost.com/nation/2021/04/04/when-police-kill-people-they-are-rarely-prosecuted-hard-convict/">few examples of police accountability</a> have likely all contributed to the decline in public confidence in policing. </p>
<p>More broadly, the way policing and issues of race are portrayed in the media has the potential to create <a href="https://www.wnycstudios.org/podcasts/otm/segments/crime-reporting-racial-bias">biases</a> that affect the impartiality of the jury pool. For example, Black male victims of police violence are often described in the news using <a href="https://www.doi.org/10.1080/10911359.2015.1129256">language that dehumanizes and criminalizes their behavior</a>.</p>
<h2>Race and racially diverse juries</h2>
<p>Two potential solutions exist for addressing implicit racial biases. </p>
<p>The first is making race a more explicit part of a trial. When attorneys call attention to the relevance of race in a case, <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282686">especially when a case involves a Black male victim</a>, <a href="https://www.doi.org/10.1002/bsl.877">white jurors exhibit less racial bias</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Derek Chauvin listening to the jury's verdict in his trial." src="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/396359/original/file-20210421-15-38uy2u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Minneapolis police officer Derek Chauvin listens as the verdict is read in his trial for the 2020 death of George Floyd.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgeFloydOfficerTrial/1828d5e2f8d042f584b2677de7eff569/photo?Query=Derek%20AND%20Chauvin&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=now-24h&totalCount=366&currentItemNo=22">Court TV via AP, Pool</a></span>
</figcaption>
</figure>
<p>Another potential solution is to have racially diverse juries, like <a href="https://www.nytimes.com/2021/03/30/us/chauvin-trial-jurors.html">the one in Chauvin’s trial</a>. To avoid appearing prejudiced, white jurors become more careful in their contributions <a href="https://doi.org/10.1037/tps0000113">during deliberations with a racially diverse jury</a>. </p>
<p>Diversity offers the opportunity for many perspectives to enter the deliberation process, <a href="https://doi.org/10.1037/0022-3514.90.4.597">resulting in deliberations that are more thorough and accurately reflect the facts of the case</a>. Importantly, the public has more confidence in the verdicts of <a href="https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss3/6">racially diverse juries and views them as fairer</a>. </p>
<p>To increase the diversity and representativeness of juries, two changes could be made by courts. For example, the use of peremptory challenges – which attorneys can use to remove a juror without reason except to discriminate on the basis of race, ethnicity or sex – could be curtailed. Attorneys use these challenges more often to strike minority jurors, even <a href="https://psycnet.apa.org/record/2007-08609-003">though they claim it’s not a challenge based on race</a>.</p>
<p><a href="https://www.ncsc.org/services-and-experts/areas-of-expertise/jury-management">Efforts are also underway</a> in state courts to better manage the way jury pools are compiled and jurors are summoned to court. These efforts ensure jury pools reflect the demographics of the community from which they are drawn, ultimately translating to more diverse and representative juries.</p>
<p>Historically, juries <a href="https://www.wglt.org/post/wide-police-discretion-use-force-led-st-louis-officers-aquittal#stream/0">in American criminal courts give police officers wide discretion in their use of force</a>, up to and including deadly force. The outcome of the Chauvin trial provides some evidence that this wide-ranging discretion can be challenged.</p>
<p>[<em>Understand new developments in science, health and technology, each week.</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-understand">Subscribe to The Conversation’s science newsletter</a>.]</p><img src="https://counter.theconversation.com/content/159330/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Angela M. Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How does pretrial publicity affect jury verdicts? What kind of verdicts are made when the jury is racially diverse? An expert on juries answers questions raised in the wake of the Chauvin verdicts.Angela M. Jones, Assistant Professor, Criminal Justice and Criminology, Texas State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1511712021-03-19T11:30:24Z2021-03-19T11:30:24ZContext influences the decisions you make – whether you’re a homebuyer, a juror or a physician<figure><img src="https://images.theconversation.com/files/390492/original/file-20210318-15-11h9lnd.jpg?ixlib=rb-1.1.0&rect=793%2C327%2C4958%2C3405&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How might a house that comes on the market today affect what you think of this one?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/home-for-sale-with-real-estate-sign-royalty-free-image/953511340">fstop123/E+ via Getty Images</a></span></figcaption></figure><p>When my husband and I purchased a new home last year, the house we ultimately bought was one we had at first ruled out. While the house had many positives, including being affordable, it also had several negatives, so we’d kept looking.</p>
<p>A few months later, we thought we’d found the perfect home. But like all homes, it had its drawbacks. As we started the negotiation process, those negatives started to weigh on us.</p>
<p>It led us to rethink the previous house we’d initially rejected. Nothing about it had objectively changed, but we started weighing its various features differently. The more we thought about the two homes, the more our opinion shifted. In the end, we reversed our thinking and bought the one we’d at first counted out, which was luckily still on the market.</p>
<p>Our homebuying decision exemplifies one of the common characteristics of human decision-making: decisions depend on context.</p>
<p>Beliefs and choices are shaped by relative factors. When my husband and I were buying our house, we evaluated the various features – such aspects as price, location, construction quality and so on – through comparisons. How did this one stack up against that one?</p>
<p>Of course absolute criteria play a role; we had a hard upper bound on price, for instance. But contextual factors can alter your beliefs about the world around you, as well as what you choose. Laypeople like homebuyers are affected by these relative evaluations. So are experts; one study found that doctors diagnosing a urinary tract infection <a href="https://doi.org/10.1177/0272989X9801800409">would make a different judgment depending</a> on whether they first had access to laboratory data or the patient’s medical history. </p>
<p><a href="https://scholar.google.com/citations?user=K2NJLPAAAAAJ&hl=en&oi=ao">I’m a cognitive scientist</a> who studies the impact of contextual factors on human judgment and decision-making. Such factors can have good or bad consequences. Advertisers might exploit contextual factors to sell a particular product. But <a href="http://www.penguinrandomhouse.com/books/isbn/9780143115267">context can also be used as a nudge</a> to help people make better decisions, such as <a href="https://doi.org/10.1007/s10865-019-00095-4">going in for cancer screenings</a>. I’m interested in developing theories to predict how context will influence people’s choices and tools for improving decision-making.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Lawyer speaking to jurors in a courtroom" src="https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390493/original/file-20210318-19-1ie078c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Whose side of the case jurors hear first influences their ultimate judgment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/lawyer-addressing-the-jury-royalty-free-image/157644543">RichLegg/E+ via Getty Images</a></span>
</figcaption>
</figure>
<h2>Order matters</h2>
<p>Consider the important task of a juror judging whether a defendant is innocent or guilty.</p>
<p>Over the course of the trial, the juror hears a lot of information from the prosecution and defense. The juror’s job is to evaluate everything and ultimately make a judgment about guilt.</p>
<p><a href="https://doi.org/10.1111/j.1551-6709.2011.01197.x">My laboratory research</a> <a href="https://doi.org/10.1002/bdm.400">and other studies</a> of jury decision-making have found that the order in which the information is presented influences judgments of guilt. Just hearing what the prosecution has to say first before hearing the defense’s side leads to different judgments than when the same information is presented in the reverse order, defense followed by prosecution.</p>
<p><a href="https://doi.org/10.1016/0010-0285(92)90002-J">This phenomenon is known as an “order effect.”</a> One common type of order effect is called a “primacy effect.” In this case, it is harder to update one’s beliefs after the first idea has taken hold. Later information is evaluated in the context of earlier information, resulting in the later information having less influence on beliefs.</p>
<h2>The decoy effect</h2>
<p>Consider a simplified version of my homebuying experience. Let’s assume that I care about only two features: price and location. Imagine that I’m deciding between two homes, one that is in a prime location and expensive (let’s call this house A) and another that is in a less desirable location and affordable (let’s call this house B). In this situation, I’m faced with making a trade-off between price and location.</p>
<p>Now, suppose a new option shows up on the market: house C, which is in a very similar location to house B, but slightly more expensive. In this case, house C is clearly worse than house B – costs more for an unfavorable location – so I would never choose it.</p>
<p>Even though I would never buy house C, research shows <a href="https://doi.org/10.1086/208899">it influences my choice between the original two</a>. The presence of the inferior house C increases the likelihood that I will buy house B. <a href="https://doi.org/10.1037/a0036137">This phenomenon is known as a “decoy effect.”</a></p>
<p>Similar to order effects, decoy effects occur because people evaluate options in the context of other options. Introducing a “decoy” option, such as the inferior house, changes how you evaluate what was originally on the table.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="man looking at full grocery shelves" src="https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/390494/original/file-20210318-21-1udl3jv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">When a new option is introduced, it can change how you feel about your original choices.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/young-man-looking-at-bottles-of-oil-in-market-rear-royalty-free-image/200464108-001">Noel Hendrickson/DigitalVision via Getty Images</a></span>
</figcaption>
</figure>
<p>In situations where there are many options with lots of features, you can’t pay attention to all of the information simultaneously. Rather, you focus on a subset of the information – particular options, features or both. When a “decoy” option is introduced, it <a href="https://doi.org/10.3758/s13423-018-1557-z">alters where your attention goes</a> <a href="https://doi.org/10.1016/j.tics.2018.12.003">and how comparisons stack up</a>. Decoys typically lead people to think more favorably of the similar, superior option – house B, in the real estate example – and can ultimately result in that option’s being chosen.</p>
<p>Research in my lab has shown that <a href="https://doi.org/10.1177/0956797612464241">decoy effects occur in simple perceptual tasks</a> <a href="https://doi.org/10.1002/bdm.1930">such as judging the area of geometeric shapes</a> in addition to consumer choice tasks. Scientists have also spotted decoy effects in other species, <a href="https://doi.org/10.3758/s13414-015-0885-6">from monkeys</a> <a href="https://doi.org/10.1111/1365-2656.13347">to insects</a>.</p>
<h2>Why does context influence decisions?</h2>
<p>Decision-making is supported by other cognitive processes, such as memory and attention. These processes have limitations. For example, it is difficult to hold many pieces of information in your mind at the same time because of the limited capacity of your mind’s working memory. Contextual factors affect these more basic cognitive processes with the downstream consequence of influencing your choices. </p>
<p>Context effects are therefore not a decision-making quirk, but a result of how human minds work at a more basic level. Recently, my colleagues and I have used this insight to <a href="https://doi.org/10.1037/dec0000144">reduce and even reverse decoy effects in the lab</a>. Understanding how context influences basic cognitive processes allows us to predict how people might act in new situations. Such knowledge is important when researchers are thinking about how to shape policies that encourage effective choices and help people make better decisions. </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/151171/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Trueblood receives funding from the National Science Foundation and the Alfred P. Sloan Foundation. </span></em></p>Cognitive scientists are investigating the ways relative factors like new options and the order they’re presented influence your choices and beliefs.Jennifer Trueblood, Associate Professor of Psychology, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1425052020-07-16T10:15:04Z2020-07-16T10:15:04ZRemote jury trials during COVID-19: what one project found about fairness and technology<figure><img src="https://images.theconversation.com/files/347732/original/file-20200715-35-1tz7ofi.jpg?ixlib=rb-1.1.0&rect=0%2C10%2C2444%2C1685&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">xxxx</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/illustration-remote-assistance-headset-icon-justice-357538388">Blablo101/Shutterstock</a></span></figcaption></figure><p>On March 23 2020, jury trials in England and Wales were suspended in response to COVID-19. This was done to protect public safety as social distancing measures were difficult to implement in courtrooms. Since then, several proposals, such as remote trials, have been put forward to address how jury trials might continue, and how to tackle the backlog of crown court cases which currently stands <a href="https://www.theguardian.com/law/2020/jun/30/criminal-cases-backlog-could-take-a-decade-to-clear-watchdog-warns">at over 40,500</a>. </p>
<p>Jury trials are used in <a href="https://scholars.law.unlv.edu/facpub/896/">the most serious criminal cases</a> and are generally seen as fair, representative and <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf">an essential part</a> of the UK criminal justice system, which works on the presumption of innocence and that everyone <a href="http://www.equaltyhumanrights.com/en/publication-download/inclusive-justice-system-designed-for-all">has the right to a fair trial</a>. It is vital that solutions, whether temporary or permanent, limit the chances of a miscarriage of justice and <a href="http://www.theadvocatesgateway.org">maintain public faith</a> in the system.</p>
<h2>The virtual trials</h2>
<p>Between April and July, <a href="https://justice.org.uk/wp-content/uploads/2020/04/Mulcahy-Rowden-Virtual-trials-final.pdf">a project</a> looking at how remote jury trials could be designed and conducted fairly in response to COVID-19 was piloted by <a href="https://justice.org.uk/">JUSTICE</a> – an organisation working to strengthen justice in the UK – with others including Her Majesty’s Courts and Tribunals Service and Oxford Brookes University. The study explored the possibilities of conducting fair trials remotely with participants <a href="https://www.law.ox.ac.uk/news/2020-04-30-exploring-case-virtual-jury-trials-during-covid-19-crisis-evaluation-pilot-study">in different places</a> and aimed to evaluate the technology, compare it with face-to-face hearings, consider issues that may give rise to legal challenge, and to evaluate lessons learned.</p>
<p>All mock trials were based on the same fictional case and legal roles and members of the jury were played by volunteers and invited experts. Jurors took part remotely from their homes. Including deliberation time, the trials took around half a day to complete – with parts of the process “extremely abbreviated” as described by the project team. Proceedings came together on a single screen – as you might have with a Zoom meeting – with the jury appearing in smaller boxes. The jurors, clerk, and judge had access to a private chat function where they could highlight technical issues and access relevant documents. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/347864/original/file-20200716-15-5o0x7h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Wigs and gowns added gravitas to proceedings.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/barrister-wearing-wig-gown-behind-344328902">SpeedKingz/Shutterstock</a></span>
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<p>After the first pilot, amendments made included a test call beforehand to ensure working technology, a crib sheet for the judge and clerk, and the use of wigs and backdrops to improve courtroom formality. Results from the first two pilot trials suggest the technology worked well, with some gravitas created by the judge and barristers. It also seemed that once trained, the participants were comfortable with the technology and the jury had a clear view of everyone involved. </p>
<p>However, there were also issues, including problems with bandwidth and connectivity. This might mean that only people with the right level of technology could be invited to be virtual jurors. This could affect the representative nature of a jury and lead to biases that <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302648">affect the fairness</a> of a jury trial.</p>
<p>Rooms in which jurors viewed proceedings could be seen by other participants. Crown courtrooms are very formal places with a sense of gravitas. The informal environment of people’s rooms at home could affect <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12033">how seriously they take the trial</a>, the attention they pay to proceedings and ultimately their role and verdict as jurors. </p>
<p>Despite limitations, the project authors believe that with some improvements – including juror training on the technology and how virtual trials work differently – this method could be used in short or medium length trials (though the nature of these was not specified). </p>
<h2>A question of fairness</h2>
<p>In the early stages of this type of research, several important concerns must be highlighted. First, there are issues with methodology. The JUSTICE project uses a mock trial framework, a fictional case, and has members of its own organisation playing roles (both legal and jurors). Mock trials are used extensively in juror research. However, in this kind of setup, there are no consequences to decision making and this may affect <a href="https://www.amazon.co.uk/dp/B008RV2FIE/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1">how seriously the trial is considered</a>.</p>
<p>Another extremely important issue in assuring a fair trial is maintaining the confidentiality of all parties. Jurors were instructed by the judge to view proceedings from a private room with no other windows open on their computer and no phone access. But how can this be monitored? It also leaves open the risk of unsupervised jurors researching cases, people walking in while the trial is in progress and many other breaches of confidentiality. Under section 8 of the <a href="http://www.legislation.gov.uk/ukpga/1981/49">Contempt of Court Act, 1981</a>, the sanctity of the courtroom must be preserved.</p>
<p>Another issue raised by the project coordinators was that the remote nature of proceedings and the less formal environment of the court might mean that cases are hurried and not debated in as much detail. Jurors might engage less with the trial, which could mean that vital information is missed, and the verdict is based on partial information, increasing the likelihood of wrongful conviction. </p>
<h2>Technical issues</h2>
<p>Training jurors to overcome technical issues adds time and costs. Some people are simply not technically minded. Even with training, some will have difficulty using the technology. The additional stress of doing so may also <a href="https://www.researchgate.net/publication/309092607_The_Impact_of_Emotions_on_Juror_Judgments_and_Decision-Making">affect decision making</a>. A <a href="http://www.fairtrials.org/sites/default/files/publication_pdf/justice%20under%20lockdown%20survey%20Fair%20Trials.pdf">recent survey</a> of lawyers by Fair Trials also suggested that 67% of respondents agreed remote trials would have a significant negative impact on the communication between a suspect and their legal team. Also, remote hearings affected access <a href="https://yjlc.uk/wp-content/uploads/2020/05/University-of-Surrey-Video-Enabled-Justice-Evaluation-Final-Report.pdf">to evidence by legal teams</a>. This is important as it could result in erroneous or incomplete evidence being presented to juries.</p>
<p>The JUSTICE project and other emerging research is interesting and has highlighted important issues we need to consider before implementing solutions such as virtual criminal trials. There is no doubt that jury trials need to be resumed, not just to tackle the backlog of criminal cases, but to ensure the support and mental health of suspects (particularly those remanded in custody), victims and families. Any measures implemented must protect the right to a fair and representative trial and be extensively tested and evidenced to avoid an increase in miscarriages of justice and loss of public faith in the jury system and the criminal justice system more widely.</p><img src="https://counter.theconversation.com/content/142505/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Lloyd does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In March jury trials in England and Wales were suspended in response to COVID-19. Here’s how remote criminal trial might work – and what might not.Sarah Lloyd, Assistant Lecturer Forensic Psychology/PhD Candidate, Birmingham City UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1358142020-04-07T05:42:34Z2020-04-07T05:42:34ZThe jury may be out on the jury system after George Pell’s successful appeal<figure><img src="https://images.theconversation.com/files/325925/original/file-20200407-160446-2bi402.jpg?ixlib=rb-1.1.0&rect=43%2C1474%2C4173%2C3435&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/sirtravelalot</span></span></figcaption></figure><p>The High Court today <a href="https://7news.com.au/news/crime/cardinal-pell-to-walk-free-from-prison-c-960907">quashed</a> the conviction of Cardinal George Pell, who had originally been found guilty on a number of charges by a jury of 12 people.</p>
<p>His defence counsel, Bret Walker SC, had argued before the High Court that the convictions in 2018 were unsound because it was not open to the jury to find Pell guilty beyond reasonable doubt.</p>
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Read more:
<a href="https://theconversation.com/how-george-pell-won-in-the-high-court-on-a-legal-technicality-133156">How George Pell won in the High Court on a legal technicality</a>
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<p>He argued to the High Court the “<a href="https://www.abc.net.au/news/2020-03-11/pell-appeal-makes-it-to-the-high-court-of-australia/12041226">sheer unlikelihood</a>” of events and times aligning in the way that had been put forth by the prosecution to the trial judge and jury. He argued the story of the complainant could not be credible. </p>
<p>The High Court has now agreed that there was room for reasonable doubt.</p>
<h2>A jury decides, but then …</h2>
<p>Remember that, prior to the verdict, a jury of a dozen men and women had deliberated for almost five days before returning their verdicts of guilty on all five charges.</p>
<p>How is it that a jury’s decision, after hearing all the evidence (with the exception of Pell himself) and deliberating for a considerable period of time, can be subverted by the opinion of an appeal court 16 months later?</p>
<p>To answer this question we need to look briefly at the appeal grounds that apply in the higher criminal courts. There are two broad grounds of appeal against conviction. Each is found in both the <a href="https://global.oup.com/academic/product/australian-criminal-justice-9780195521153" title="Australian Criminal Justice">common law and legislation</a> that pertains to these matters. </p>
<p>The first, and far more common, is that there has been an error of law (or fact) in the way that the trial has been conducted, the way evidence has been wrongly admitted, or the way the judge has incorrectly summed up to the jury. </p>
<p>The less common basis of appeal is the verdict of the jury is unreasonable, or cannot be supported, given the evidence. The Pell appeal proceeded on this basis, and succeeded.</p>
<h2>Reluctance to overturn juries</h2>
<p>Appeal judges have traditionally shown a marked reluctance to overturn jury verdicts. The <a href="http://netk.net.au/Australia/Chamberlain.asp">failed High Court appeal</a> by Michael and Lindy Chamberlain in 1984 against their convictions for murdering their daughter comes quickly to mind. (They were later <a href="https://www.abc.net.au/news/2017-01-09/michael-chamberlain-father-of-azaria-dies/8171302">exonerated</a>.)</p>
<p>Judges of the High Court have long wrestled with the difficulty of subverting the important role of the jury. In 1997, then <a href="http://eresources.hcourt.gov.au/showbyHandle/1/11837" title="Jones v The Queen">Chief Justice Gerard Brennan</a> put the position thus:</p>
<blockquote>
<p>… the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict. In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs. </p>
<p>Nevertheless, there may be exceptional cases where it appears that, despite its skills and advantages and the due observance of all relevant rules of law and procedure, the jury must have fallen into error.</p>
</blockquote>
<p>There has long been a tradition of upholding the existence of the jury as the fundamental underpinning of the value, strength and reliability of our system of criminal justice.</p>
<p>I have always thought this a slightly odd observation given that magistrates, not juries, determine the vast majority of criminal cases that arrive for trial in Australia’s courts. </p>
<p>But in the higher courts judgment by one’s peers has always been a bulwark against the idea of a star chamber where decisions about an accused person’s guilt or innocence are made unfairly and capriciously.</p>
<h2>A jury of your peers</h2>
<p>The stability of the jury as an integral part of the justice system has never been seriously questioned. Advocates for the retention of the jury often recite the well-known case of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2204512" title="Bushell's Case and the Juror's Soul">Bushell in England in 1670</a> when two Quakers, William Penn and William Mead, were arrested and charged with unlawful assembly.</p>
<p>The jury stood steadfastly against the wishes of the judge who wanted to convict the two preachers. The judge was ultimately rebuffed. The jury was vindicated and its place in the criminal justice process was cemented.</p>
<p>But in cases such as Pell, the High Court has reinforced the notion that, despite the jury having the primary responsibility of determining the guilt or innocence of a person on trial, its responsibility can be subject to a higher order.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/all-about-juries-why-do-we-actually-need-them-and-can-they-get-it-wrong-112703">All about juries: why do we actually need them and can they get it 'wrong'?</a>
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<p>This is because, ultimately, the appeal courts have been given an overriding responsibility of determining for themselves whether a jury decision is a safe decision that has not been infected with the hue and cry or matters outside the evidence that was put to them. </p>
<p>Whatever one may think of the Pell decision, it is appropriate there be such a final arbiter in the justice process.</p>
<p>But one victim of this appeal result may be a loss of public confidence in the jury system. At the other end of the spectrum, others may lose confidence in the justice system itself.</p>
<p>I trust that neither is the outcome. But one could be excused for feeling a general uneasiness about the fact that, for all the store we place on juries in determining issues of guilt and innocence, their role can be dispensed with so easily.</p><img src="https://counter.theconversation.com/content/135814/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council. He is affiliated with the Labor Party of SA. </span></em></p>The appeal may lead to a loss of public confidence in the jury system, but that’s how the justice process works.Rick Sarre, Adjunct Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1345832020-03-25T13:08:38Z2020-03-25T13:08:38ZHalting jury trials may impact a defendant’s right to a fair trial<figure><img src="https://images.theconversation.com/files/322663/original/file-20200324-155702-667ofw.jpg?ixlib=rb-1.1.0&rect=1%2C1%2C997%2C664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Will justice be done?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-lady-iustitia-justitia-roman-602151149">Alexander Kirch/Shutterstock</a></span></figcaption></figure><p>The decision of the lord chief justice, Lord Burnett, <a href="https://www.judiciary.uk/announcements/review-of-court-arrangements-due-to-covid-19-message-from-the-lord-chief-justice/">to halt</a> new jury trials in England and Wales in response to COVID-19 follows the example set by Scotland and Northern Ireland. This is understandable as the safety of everyone concerned is paramount. However, the impact of this decision is concerning from a number of different angles and has implications in assuring a fair, impartial trial.</p>
<p>For prisoners on remand, the defendant may have a long wait for trial. In England and Wales, the defendant is presumed to be innocent unless proved guilty by the prosecution, so this becomes especially concerning if that defendant is innocent. </p>
<p>COVID-19 also affects prisoners. Estimates suggest that some 75 prisoners and 113 prison staff across England and Wales are in isolation, <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/823">with numbers expected to rise</a>. This raises concerns over the safety of prisoners on remand, though it is obviously better for a defendant to have to wait for trial than take the risk of spreading the virus or catching it in court.</p>
<h2>Existing trials</h2>
<p>The more concerning matter is for trials that are in progress already. Lord Burnett has said that some hearings which have already started will go ahead, provided the court follows the guidelines of social distancing. The problem is that <a href="https://www.theguardian.com/commentisfree/2020/mar/23/jurors-packed-into-crowded-courts-how-the-government-defied-coronavirus-advice">many courts are too small</a> to ensure that a jury of 12 people sit two metres apart from one another. If a member of the court, such as the judge, also becomes sick, it would be difficult for someone else to take their place. And if jury trials in progress are halted and have to have a three to four month (or even longer) intermission, <a href="https://www.judiciary.uk/announcements/coronavirus-update-from-the-lord-chief-justice/">as has been suggested</a>, this could affect the ultimate decision of juries.</p>
<p>My ongoing PhD research looking at the group decision-making processes of juries illustrates that many factors can affect jury decision making. If a trial is delayed and juries are being called back to sit on the same trial at a later date, for example three months later, this could affect their decision making. This could be from negative publicity that jurors <a href="https://link.springer.com/chapter/10.1007/978-1-4419-7569-0_11">are more exposed to</a>, particularly in high-profile cases.</p>
<p>Jurors <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1556-4029.2010.01671.x">have difficulty</a> not only recalling facts and evidence, but also in understanding evidence presented during a trial. If trials are stopped partway through, then, this could seriously affect the jury’s recall and understanding of relevant evidence and their decision of someone’s guilt or innocence.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/322661/original/file-20200324-155640-1d0j474.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Picking up again may have an effect on the recall of jurors.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/rear-view-advocate-communicating-jurors-court-121503370">sirtravelalot/Shutterstock</a></span>
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<p>Delay could also affect the victim, for example in a sexual assault case, where the victim is already subjected <a href="https://www.researchgate.net/publication/235912615_Secondary_Victimization_of_Crime_Victims_by_Criminal_Proceedings">to secondary victimisation</a> – and this could have devastating psychological consequences. Delaying the trial could also be devastating for the defendant, who has the right to <a href="https://www.citizensadvice.org.uk/law-and-courts/civil-rights/human-rights/what-rights-are-protected-under-the-human-rights-act/your-right-to-a-fair-trial/">a fair, timely trial under law</a>, and it could be psychologically damaging for that person as they wait for the trial to begin again, not knowing their fate or when it will be decided.</p>
<h2>Alternative processes</h2>
<p>Lord Burnett has suggested that some hearings will use telephone, video links and “other” technology. Video links are <a href="https://www.cps.gov.uk/legal-guidance/live-links">generally used for vulnerable witnesses</a> in court who give evidence in England and Wales. However, the majority of trials are not conducted this way and, as Lord Burnett admits, this use of technology would be extremely difficult to implement in jury trials. </p>
<p>Although juries only decide in <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf">around 1% of criminal cases</a> in England and Wales, these tend to be the most serious – with profound impact, not only the defendant, but their families, the victim and their families, and society as a whole. It is therefore vitally important that these jury trials are held with <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479572">rigorous standards to ensure</a> that the defendant is given a fair trial.</p>
<p>Technology is not used in court as a matter of course and some studies have even found that the use of video, for example, <a href="https://www.theguardian.com/law/2017/oct/23/videolinks-in-court-trials-undermine-justice-system-says-report">might be detrimental</a> to the idea of a fair trial. There is also the added complication of ensuring that Section 8 of the <a href="http://www.legislation.gov.uk/ukpga/1981/49">Contempt of Court Act 1981</a> is followed. This prohibits the jury from speaking about their deliberations and from researchers entering the jury room. This is important to consider as it raises the question of how to ensure confidentiality of the jury’s decision making. Introducing technology to aid jury deliberations may undermine this confidentiality and therefore affect the fairness of the trial.</p>
<p>Whatever measures are implemented, this is a very difficult issue which needs careful consideration to keep everyone – court professionals, defendants and members of the public – safe. Public safety is the key issue and therefore it is understandable why juries have been halted. It must be ensured though, that everyone receives a fair trial and that miscarriages of justice are prevented.</p><img src="https://counter.theconversation.com/content/134583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Lloyd does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If existing trials are halted, it may not be as simple as picking up where they left off.Sarah Lloyd, Assistant Lecturer Forensic Psychology/PhD Candidate, Birmingham City UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1296812020-01-10T19:31:25Z2020-01-10T19:31:25ZWeinstein jurors must differentiate between consent and compliance – which research shows isn’t easy<figure><img src="https://images.theconversation.com/files/309343/original/file-20200109-80148-ni83dc.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The jury at the Weinstein trial will have to check their biases about consent.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/twelve-jurors-sit-jury-box-court-729558217">Aleutie/Shutterstock.com</a></span></figcaption></figure><p>Did the women accusing Harvey Weinstein of sexual assault consent to his sexual advances of their own free will, or were they coerced?</p>
<p>Jurors’ answers to this question will be critical in determining the outcome of Weinstein’s trial, which <a href="https://www.bbc.com/news/entertainment-arts-50956870">began jury selection in New York on Jan. 7</a>.</p>
<p>I’m a <a href="https://www.ilr.cornell.edu/people/vanessa-bohns">scholar of social influence, compliance and consent</a>, and I’ve found that people often fail to fully appreciate the coercive dynamics of situations from the outside.</p>
<h2>The jury’s task</h2>
<p>Although more than <a href="https://www.wsj.com/articles/the-looming-question-in-rape-law-after-harvey-weinstein-11578066262">80 women</a> have publicly accused Weinstein of sexual harassment and assault, the New York trial comes down to two <a href="https://www.usatoday.com/story/entertainment/celebrities/2020/01/03/harvey-weinsteins-trial-what-know-me-too-case-goes-court/2774183001/">accusers</a> who say Weinstein sexually assaulted them.</p>
<p>Weinstein has argued that the encounters were consensual and claims as evidence <a href="https://www.nytimes.com/2020/01/05/us/harvey-weinstein-trial.html">emails</a> and texts showing an ongoing, intimate relationship with one of his accusers following the alleged assault. Weinstein’s lawyer, Donna Rotunno, for her part, has stated, “<a href="https://www.theguardian.com/film/2019/jul/11/harvey-weinstein-trial-legal-team-donna-rotunno">I believe women are responsible for the choices they make</a>.”</p>
<p>His defense team’s strategy, it appears, will be to cast doubt on the accusers’ accounts, depicting their actions as more autonomous and self-directed than the women claim their actions to have been.</p>
<p>To tease apart these competing accounts, jurors are likely to ask themselves, “Could these women have tried harder to avoid or remove themselves from these situations? Could they have said ‘no’ more forcefully?”</p>
<p>Unfortunately, research suggests that the answers people tend to come up with to these hypothetical questions don’t accurately capture how someone would actually behave in a such a situation.</p>
<p>We tend to imagine that people – including ourselves – would behave in bolder and more forceful ways in response to offensive and inappropriate behavior than people actually do when confronted with such behavior.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309342/original/file-20200109-80153-chl10l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Harvey Weinstein arrives for jury selection.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Sexual-Misconduct-Weinstein/ed150f31a96f45629afea3e4cb3736c1/42/0">AP Photo/Seth Wenig</a></span>
</figcaption>
</figure>
<h2>What the research says</h2>
<p>In a <a href="https://spssi.onlinelibrary.wiley.com/doi/abs/10.1111/0022-4537.00199">classic study</a>, researchers asked one group of women how they would respond to being asked a number of sexually inappropriate questions in a job interview.</p>
<p>When these women thought about this situation hypothetically, 68% said they would refuse to answer at least one of the questions, 62% said they would tell the interviewer the question was inappropriate and 28% said they would walk out of the interview.</p>
<p>However, when the researchers invited another group of women to take part in what they believed to be a real job interview and actually subjected them to the same questions, not a single interviewee refused to answer even one question, and hardly any explicitly addressed the inappropriate nature of the questions with the interviewer.</p>
<p>Moreover, participants who contemplated being asked these questions hypothetically imagined feeling angry. However, participants who actually found themselves in this situation reported feeling more afraid. Instead of confronting the interviewer out of anger, as anticipated, participants facing the interviewer in reality instead tried to appease him by smiling.</p>
<p>My colleagues and I have similarly found that people fail to appreciate how hard it is for someone to refuse <a href="https://www.nytimes.com/2014/02/09/opinion/sunday/would-i-lie-for-you.html">inappropriate</a>, <a href="https://www.nytimes.com/2019/04/30/opinion/police-phone-privacy.html">intrusive</a> and <a href="https://hbr.org/2018/04/to-reduce-sexual-misconduct-help-people-understand-how-their-advances-might-be-received">romantic</a> requests.</p>
<p>In <a href="https://www.nytimes.com/2019/04/30/opinion/police-phone-privacy.html">one of our studies</a>, 86% of participants believed a “reasonable person” would say “no” to an invasive request to unlock and hand over their phone to us to look through, and 72% said they themselves would refuse to do so. However, when we asked participants to do just that, only 3% actually refused.</p>
<p>In <a href="https://www.nytimes.com/2014/02/09/opinion/sunday/would-i-lie-for-you.html">another study</a>, participants overestimated by 56% the number of students on a college campus who would refuse to vandalize a library book when asked to do so, and in <a href="https://journals.sagepub.com/doi/full/10.1177/1948550618769880">yet another</a>, we found that targets of romantic advances felt more uncomfortable saying “no” than perpetrators of such advances realized.</p>
<h2>Compliance versus consent</h2>
<p>What all of this means is that while people frequently feel coerced into doing things they don’t want to do, others tend not to recognize these coercive pressures.</p>
<p>As a result, we tend to view others’ actions as freer and more autonomous than they experience them. We assume someone must have wanted to go along with something on some level; otherwise they would just have just said “no,” or said “no” more forcefully.</p>
<p>The jury selection process is <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryselect/">supposed to uncover potential biases</a> in the hopes of assembling an impartial jury. Much has been made of the difficulty of putting together an impartial jury due to jurors’ <a href="https://variety.com/2020/film/news/harvey-weinstein-trial-potential-jurors-1203459788/">preexisting biases</a> against Weinstein.</p>
<p>However, the widespread bias toward interpreting compliance as consent means that jurors are just as likely to have biases against his accusers’ version of events. Unfortunately, these more entrenched psychological biases are less likely to come out during jury selection.</p>
<p>[ <em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129681/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vanessa K. Bohns receives funding from the National Science Foundation. She is a member of the Academy of Management, which is a funding partner of The Conversation US.</span></em></p>As the Harvey Weinstein trials start, a psychology scholar explains why jurors may be biased on the question of consent. While the situations examined in these studies are not equivalent to sexual assault, they illustrate a pervasive psychological bias.Vanessa Bohns, Associate Professor of Organizational Behavior, Cornell UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1127032019-03-06T19:12:10Z2019-03-06T19:12:10ZAll about juries: why do we actually need them and can they get it ‘wrong’?<figure><img src="https://images.theconversation.com/files/261986/original/file-20190304-92292-qa02j9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Juries force lawyers to talk in a language the lay person understands.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p>There has been <a href="https://www.afr.com/news/is-george-pell-innocent-20190227-h1bsub">some debate</a> over the recent conviction of George Pell, whose first trial ended with a hung jury, and the second a unanimous guilty verdict. People are questioning our justice system, the potential bias of the jury, and whether the initial hung verdict invalidates the second, unanimous one.</p>
<p>So, why should Australians trust 12 inexperienced people to sit in judgment on our most serious criminal trials, and get the verdict right?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-an-appeal-could-uphold-or-overturn-george-pells-conviction-112620">How an appeal could uphold or overturn George Pell's conviction</a>
</strong>
</em>
</p>
<hr>
<h2>The importance of juries</h2>
<p>Australian democracy is underpinned by citizen participation. Citizens have two mandatory obligations – voting and jury service.</p>
<p>Lay person participation in the legal system is considered central to a healthy democracy. Lawyers play a major role in making the laws in parliament. Judges then apply the laws. If juries weren’t used, lawyers would have a monopoly over the law. Lawyers have their own specialised language in which they communicate among themselves. Including juries in the legal system forces lawyers to use <a href="https://jade.io/article/67240">common language</a>.</p>
<p>It’s the collective wisdom of 12 that makes a jury. Jurors bring to the trial 12 times more life experience than a judge. Psychological research has <a href="http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862878945">established</a> that personal, subconscious biases can be identified and addressed in group discussion. </p>
<h2>How do juries work?</h2>
<p>Jurors are randomly selected from the Australian electoral roll. While each state or territory varies in its <a href="https://www.bing.com/videos/search?q=Victorian+jury+service+video&&view=detail&mid=D17B314053491C6A9E3ED17B314053491C6A9E3E&&FORM=VRDGAR">selection processes</a>, they share some common steps. Randomly selected citizens will receive a summons to attend court. Once the jurors arrive at the courthouse, they wait to be randomly chosen to go to a specific courtroom as part of a jury panel. </p>
<p>Once in the courtroom, a potential juror’s name (or allocated number) may be pulled out of a box. That potential juror can then either</p>
<ul>
<li><p>seek to be excused (because perhaps they know someone involved in the trial)</p></li>
<li><p>take a seat in the jury box, or</p></li>
<li><p>be removed from the jury by one of the parties to the case. This is known as the <a href="http://sites.thomsonreuters.com.au/journals/files/2010/10/j05_v034_CRIMLJ_pt03_horandelahunty_offprint.pdf">“peremptory challenge” process</a>. </p></li>
</ul>
<p>While it’s unusual for a prosecutor to “challenge” (deselect) a juror, some jurisdictions still allow for a defendant to “challenge” a juror based on the way they look and sometimes their name and occupation.</p>
<p>But a <a href="https://www.amazon.com/Stack-Sway-Science-Jury-Consulting/dp/0813342414">substantial body of US research</a> has highlighted that, based on such limited information, the peremptory challenge process is no better than a guessing game, as it’s not possible for a defendant to know whether a citizen is going to be favourable to their defence just based on what they look like and their occupation. </p>
<p>Some Australian jurisdictions have reduced the number of challenges a defendant can use. The <a href="http://sites.thomsonreuters.com.au/journals/files/2010/10/j05_v034_CRIMLJ_pt03_horandelahunty_offprint.pdf">UK has done away with</a> this process altogether as it interferes with the important perception that juries are fairly chosen and therefore represent the community.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=475&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=475&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=475&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=596&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=596&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262286/original/file-20190305-48450-4p4l3r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=596&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A defendant has no way of knowing how a jury will vote based only on their age or occupation.</span>
<span class="attribution"><span class="source">from shutterstock.com</span></span>
</figcaption>
</figure>
<p>Several Australian <a href="https://journals.sagepub.com/doi/10.1177/1462474516660697">studies confirm</a> our juries reflect a cross-section of our community in terms of cultural mix, age and gender balance. Juries are more likely to be better educated than the ordinary member of the public. This may, in part, be a result of counsels’ preference for educated jurors when exercising their peremptory challenges.</p>
<h2>What about outside influence?</h2>
<p>Jurors are forbidden from having any prior intimate knowledge of the trial, from privately communicating with anyone involved in the trial and from doing their own research. Maintaining the impartiality of jurors <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2341436">has become problematic</a> in the digital age. </p>
<p>Last century, courts used to successfully make orders to suppress potentially prejudicial information (such as prior convictions). But the far reach of the internet means such suppression orders no longer work as they can’t prevent publication on overseas websites or social media that is accessed locally.</p>
<p>Jurors are told by the judge not to look at any media reports on their case. But jurors on trials of high profile defendants may not be able to avoid the barrage of negative pre-trial publicity. US <a href="https://link.springer.com/article/10.1023/A:1022325019080">research suggests</a> jurors who are exposed to negative publicity are significantly more likely to judge the defendant guilty compared to subjects exposed to less pre-trial publicity. </p>
<p>New South Wales, Queensland, the ACT, South Australia and Western Australia <a href="https://criminalcpd.net.au/wp-content/uploads/2016/09/Judge_alone_trials_in_NSW_peter_krisenthal.pdf">allow a defendant</a> to apply for trial by judge without a jury when prejudicial publicity is perceived to be significant. But there is <a href="https://theconversation.com/trial-by-judge-alone-may-not-be-the-answer-to-giving-high-profile-defendants-a-fair-hearing-94103">no research that confirms</a> a judge sitting alone without a jury is any better at resisting prejudicial publicity.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trial-by-judge-alone-may-not-be-the-answer-to-giving-high-profile-defendants-a-fair-hearing-94103">Trial by judge alone may not be the answer to giving high-profile defendants a fair hearing</a>
</strong>
</em>
</p>
<hr>
<h2>How do they reach a verdict, and what is a hung jury?</h2>
<p>A typical jury trial will take fewer than ten days. The jurors hear the evidence, listen to the arguments of both parties and are provided with instructions on the relevant law by the judge. It is then time to deliberate and decide whether the defendant is “guilty” or “not guilty” of the offences charged. No written reasons for the verdicts are required.</p>
<p>The vast <a href="https://www.bocsar.nsw.gov.au/Documents/CJB/cjb36.pdf">majority of juries</a> are able to reach their verdict unanimously. In some types of cases, agreement of 11 out of 12 jurors is an acceptable verdict. A hung jury occurs when a jury deliberates for several hours or days, but are unable to agree on a verdict. In the usual course, the same case will be presented to a new jury. </p>
<p>A 2000 study indicated <a href="http://classic.austlii.edu.au/au/journals/NSWCrimJustB/2002/3.pdf">hung juries occurred</a> in a small number (3-8%) of Australian trials. This study identified that longer trials, and jury trials in more culturally diverse city courts, may be more likely to attract a hung jury. </p>
<p>An initial hung verdict does not invalidate a second, unanimous one – it more likely means some of the jurors from the first trial were also in agreement with the final verdict.</p>
<h2>Do juries get it ‘right’?</h2>
<p>Jury secrecy means we have no accurate way of knowing whether juries are getting it “right”. Australian jurors are forbidden from discussing their deliberations with anyone, including why they came to a decision. </p>
<p>A few <a href="http://www.britsoccrim.org/volume4/004.pdf">overseas studies</a> have asked trial judges what verdict they would have come to in jury trials. A comparison between what the judges said and the real jury verdict reveals a high level of agreement between the two.</p>
<p>While scientifically we cannot confirm that specific jury verdicts are “correct”, the jury system is necessary for Australia’s justice system.</p><img src="https://counter.theconversation.com/content/112703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacqui Horan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A hung jury does not necessarily undermine a verdict in a subsequent trial – it more likely means some of the jurors from the first trial agreed with the final verdict.Jacqui Horan, Associate Professor, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1044172018-10-31T01:12:04Z2018-10-31T01:12:04ZWe need better jury directions to ensure justice is done<figure><img src="https://images.theconversation.com/files/241770/original/file-20181023-169801-16pkjrj.jpg?ixlib=rb-1.1.0&rect=144%2C85%2C2859%2C1576&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To avoid miscarriages of justice, we need a jury direction process that leads to maximum juror understanding.
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/symbol-law-justice-empty-courtroom-concept-465586604?src=fPW_bmhm2Ua5ie5jJzDrfg-1-74">Shutterstock</a></span></figcaption></figure><p>In a trial involving a jury, the judge gives the jury instructions on various issues including the relevant laws, trial process and evidence. In Victoria, these instructions are know as <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/indexpage.htm">jury directions</a>.</p>
<p>Jury directions are necessary to ensure a fair trial. Juries need to understand the directions to reduce the likelihood of a miscarriage of justice, which may result in an innocent person going to prison, or even dying in systems where there is a death penalty. Equally, it could lead to a guilty person being released to commit more offences. Miscarriage of justice is by definition unjust, damaging for the participants, and reflects poorly on the justice system. </p>
<p>However, jury directions can be complex and difficult to understand, and can therefore may not fulfil their main purpose of instructing the jury. To avoid miscarriages of justice, we need a jury direction process that leads to maximum juror understanding. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/eight-cases-from-across-history-which-still-shape-the-law-today-103466">Eight cases from across history which still shape the law today</a>
</strong>
</em>
</p>
<hr>
<h2>What are the issues with jury directions?</h2>
<p>The main purpose of jury directions is to communicate with the jury about the issues mentioned above. But judges have a second hidden audience – appeal court judges – and a secondary motive, which is to avoid retrials on the grounds that the directions were not given correctly. </p>
<p>In order to ensure their jury directions are legally watertight and avoid successful appeals, judges will use language and procedures that a court or jurisdiction has previously approved. This has led to judges using legalistic processes and wordy, complex language that may be poorly understood by jurors. In practice, this second motive has come to dominate the process and <a href="http://ojs.letras.up.pt/index.php/LLLD/article/view/2865/2615">undermine the primary purpose of communicating with the jury</a>. </p>
<p>Some factors on the jury’s part may also impede communication. Jurors may have limited understanding of the legal system and legal language. They may be overwhelmed by the complexity of jury directions, making it difficult to process and retain the information. Limits on jurors’ attention spans can also be an issue, as jury directions often take several hours, during which jurors can be affected by stress, fatigue and boredom. <a href="https://works.bepress.com/nancy_marder/5/">Judges have said</a> that jurors’ attention is often lost during this. </p>
<p>The archaic dress, strange procedures, extreme formality, and hierarchy of the courtroom can confuse and intimidate jurors.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/language-puts-ordinary-people-at-a-disadvantage-in-the-criminal-justice-system-79934">Language puts ordinary people at a disadvantage in the criminal justice system</a>
</strong>
</em>
</p>
<hr>
<p>Then there is the method of communication between judge and jurors, which is overwhelmingly spoken and one-way: from the judge to the jury. The process for the jury to communicate to the judge can be onerous. In Victoria, <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1283.htm">the jury communicates with the judge</a> by writing down their message and pass it to the tipstaff, the judge’s assistant, who then passes it to the judge. This places a barrier on verbal interaction and decreases communication.</p>
<h2>What can be done to improve jury directions?</h2>
<p>To judge whether jury directions have been successfully communicated, we need to ask whether the demands made by the procedures and language of the jury directions matched the capacity of the target audience. </p>
<p>Advocates for clearer legal language, known as the <a href="http://plainlanguagenetwork.org/">plain legal language movement</a>, believe that communication is enhanced if it is brief, orderly and clear (particularly not unnecessarily complex). </p>
<p>For example, take a relatively standard jury direction, given at the start of a trial, which is <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1286.htm">instructing them</a> to make their decision solely on the evidence presented in the trial. The direction is 202 words long, plus an additional example, and most of the sentences are long and complex. Furthermore, it is disorganised and redundant. </p>
<p>Here is a suggested revision, made with the lawyerly help of Matthew Weatherson of the Judicial College of Victoria: </p>
<blockquote>
<p>What is evidence? </p>
<p>There are two kinds of evidence.</p>
<p>First - what the witnesses say or agree to. It is not what the lawyers suggest.</p>
<p>Second - exhibits. These are things that we will show you. I will tell you when there is an exhibit, and we will give it a reference letter or number.</p>
</blockquote>
<p>It is around one quarter the length of the original. The complexity of the language has been considerably reduced. The information has been logically re-organised. It is more orderly, briefer and clearer, and therefore more likely to be understood.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-small-print-terms-and-conditions-require-a-phd-to-read-should-they-be-legally-binding-75101">If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?</a>
</strong>
</em>
</p>
<hr>
<p>Some other possible procedural changes are:</p>
<ul>
<li> questioning jurors about the meaning of the directions to ensure they understand them </li>
<li> having more direct interactive communication between the judge and jurors<br></li>
<li> providing written forms of the directions as well as spoken </li>
<li> making the written directions available during the trial. </li>
</ul>
<p>Currently, jury directions inadequately instruct jurors because the need to address a secondary audience, the appeal court, has overridden the needs of the primary audience, juries.</p>
<p>Perfect communication is unachievable. However, improving communication is certainly possible, and it is important to do so when so much is at stake.</p><img src="https://counter.theconversation.com/content/104417/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Gibbons does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Because judges have a secondary audience when issuing jury directions - appeal court judges - the language used has become too wordy and confusing. It needs to change.John Gibbons, Adjunct Professor in Linguistics, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/884322018-04-03T10:28:17Z2018-04-03T10:28:17ZFive punishments past and present for jurors who fall foul of the law<figure><img src="https://images.theconversation.com/files/200392/original/file-20171221-15864-ynl7j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><a class="source" href="http://www.shutterstock.com">www.shutterstock.com</a></span></figcaption></figure><p>Jurors in England and Wales have come under repeated criticism in recent years for the ways they’ve carried out their duties. In late March, a jury member at Carlisle Crown Court <a href="http://www.bbc.co.uk/news/uk-england-cumbria-43490590">was fined £1,000</a> for playing on his phone during a trial in what the judge described as “blatant contempt of court”. In November 2017, a jury was <a href="http://www.bbc.co.uk/news/uk-england-wiltshire-42100936">dismissed</a> at Winchester Crown Court after what one newspaper described as <a href="http://www.telegraph.co.uk/news/2017/11/23/parachute-trial-jury-discharged-failing-reach-verdict/">“an extraordinary row”</a> between judge and jury. Some jurors have <a href="http://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">even been imprisoned</a> for carrying out illicit research into the case before them.</p>
<p>In the past there were a number of ways to punish jurors – some of which still stand today. </p>
<h2>Attaint</h2>
<p>In medieval England, if it was suspected that a jury of 12 had returned an inaccurate verdict in a civil trial, the case could be reheard by a 24-strong jury. If the second jury disagreed with the first jury’s verdict, the first jury would be punished. This procedure was <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">called the attaint</a>.</p>
<p>Initially, punishment under the attaint meant imprisonment and the destruction of the jurors’ homes and lands, although by the end of the 15th century this had been replaced with perpetual infamy and a fine. The attaint never seems to have been used on criminal juries, and by the end of the 16th century it seems to have stopped being used even in civil trials. The system was formally abolished in 1825.</p>
<h2>Embracery</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=933&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=933&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200390/original/file-20171221-15883-q5kf7e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=933&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Vaughan: he argued jurors shouldn’t be punished just because a judge disagree with them.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/b/b3/John_Vaughan_%281603-1674%29%2C_follower_of_John_Michael_Wright.jpg">Sotheby's via Wikimedia Commons.</a></span>
</figcaption>
</figure>
<p>Chief Justice Vaughan famously <a href="https://en.wikipedia.org/wiki/Bushel%27s_Case">ruled</a> in 1670 that jurors could not be punished simply for returning a verdict which the trial judge disagreed with. He was happy to punish jurors in some circumstances, however, having convicted two jurors of “embracery” the previous year. </p>
<p>Embracery occurred where threats or bribes were used in order to encourage jurors to return a favourable verdict. It was an offence both to try to “embrace” a juror and to be “embraced” when actually serving as a juror. </p>
<p>One embracer was convicted as late as 1975, although the Court of Appeal complained that a simple charge of contempt of court would have been better. This stopped any further prosecutions for embracery, and the offence was <a href="https://www.legislation.gov.uk/ukpga/2010/23/section/17">formally abolished in 2010</a>.</p>
<h2>Perverting the course of justice</h2>
<p>Perverting the course of justice as a juror is a broader offence than embracery, but it works in a similar way. It’s possible both for the person interfering with a jury, and for a juror who accepts a bribe or is otherwise compromised, to be punished. The offence still exists today, but prosecutions of jurors for perverting the course of justice have always been rare. </p>
<p>As recently as 2011, the Court of Appeal <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2011/1629.html">made reference</a> to the option of prosecuting jurors under this offence where a juror had been communicating with a defendant, but judges seemed satisfied with the more conventional charge of contempt of court made against the juror. </p>
<h2>Contempt of court – and new offences</h2>
<p>Contempt of court is a broadly defined offence, consisting essentially of anything which undermines the authority of the court. A famous example of jurors punished for contempt came in 1670, when several jurors – including their foreman, Edward Bushel – were imprisoned for refusing to convict a pair of Quaker preachers. The Court of Common Pleas, ruling in Bushel’s case, held that juror punishment in these circumstances was unlawful. But the fact that judges could not longer punish jurors simply for returning verdicts with which the judges disagreed doesn’t mean that jurors are completely protected from contempt proceedings today. </p>
<p>In recent years, several jurors have <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871">been imprisoned for contempt</a> after disobeying clear judicial instructions not to go online in order to find additional evidence in the cases they are trying.</p>
<p>In 2015, four <a href="http://www.legislation.gov.uk/ukpga/2015/2/part/3/crossheading/juries-and-members-of-the-court-martial/enacted">new criminal offences were created</a> relating to independent research done by jurors. These new offences were intended to “send a message” to potential jurors that the government takes juror misconduct very seriously. It is now a criminal offence – triable by jury – for anyone acting as a juror to:</p>
<ul>
<li>Research the case they are trying as a juror.</li>
<li>Disclose the product of any such research to a fellow juror.</li>
<li>Act in any other way which demonstrates an intention to reach a conclusion based on something other than the evidence presented in court.</li>
<li>Solicit or disclose the details of the jury’s deliberations to people who were not on the jury.</li>
</ul>
<p>In September 2017, the foreman of a jury <a href="https://www.manchestereveningnews.co.uk/news/juror-who-took-role-seriously-13616425">was sentenced to four months’</a> imprisonment after going online to research some of the details of the case he was trying. </p>
<h2>Rebukes from the bench</h2>
<p>Beyond these formal kinds of punishment which are still possible, it’s also possible for judges to simply rebuke their jurors. In 1917, a group of jurors were kept in a state of <a href="https://www.academia.edu/33924828/Before_the_Criminal_Justice_and_Courts_Act_2015_Juror_Punishment_in_Nineteenth-and_Twentieth-Century_England_2016_36_2_Legal_Studies_179">virtual imprisonment</a> after a falling out with their judge. They were told they would never serve on another jury, but that they must still report for jury service for several weeks, on pain of punishment under the contempt laws if they failed to attend. </p>
<p>In the case in November 2017, the jury at Winchester Crown Court was warned that they should not bully each other during their deliberations. Before they were discharged, they <a href="https://www.theguardian.com/uk-news/2017/nov/23/jury-dismissed-in-trial-of-man-emile-cilliers-accused-of-tampering-with-wifes-parachute">wrote a note</a> to the court, complaining that: </p>
<blockquote>
<p>Collectively we feel we have had no opportunity to defend ourselves and our integrity which has further implications on us personally and professionally.</p>
</blockquote>
<p>But while these jurors might feel slighted, at least they did not have to face formal sanctions. As the trial judge explained to them, it was his responsibility to keep an eye on any misconduct, and to find some way to “flush it out”.</p><img src="https://counter.theconversation.com/content/88432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>K Crosby has previously received funding relevant to this article from the Society of Legal Scholars. </span></em></p>A history of how jurors have faced trial themselves for getting it wrong, or slipping up in court.K Crosby, Senior Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/942572018-04-02T22:18:07Z2018-04-02T22:18:07ZA good first step towards diverse, impartial Canadian juries<figure><img src="https://images.theconversation.com/files/212806/original/file-20180402-189807-1mzwqcp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gerald Stanley enters the courthouse in Battleford, Sask., in February 2018 during his trial in the death of Colten Boushie, an Indigenous man. The use by Stanley's defence team of peremptory challenges produced an all-white jury in his trial. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Liam Richards</span></span></figcaption></figure><p>The <a href="http://www.parl.ca/DocumentViewer/en/42-1/bill/C-75/first-reading">proposal to abolish what are known as “peremptory challenges”</a> in Bill C-75, the Canadian government’s new criminal justice bill, should be welcomed. </p>
<p>Peremptory challenges allow both the accused and the prosecutor to challenge and dismiss a potential juror basically because they do not like how that juror looks. They’re an invitation to discrimination.</p>
<p>Nevertheless, <a href="http://www.cbc.ca/news/politics/liberal-justice-reforms-jury-selection-1.4600007">some defence lawyers have argued</a> that abolition will make juries less diverse. </p>
<p>This ignores the inconvenient fact that the defence team’s use of peremptory challenges <a href="https://globalnews.ca/news/4022673/colten-boushie-gerald-stanley-jagmeet-singh/">produced an all-white jury in the Gerald Stanley-Colten Boushie case.</a></p>
<p>Some argue that abolition is a knee-jerk and quick-fix response to Stanley’s acquittal, and even an attempt to stack the jury. </p>
<p>This ignores that England, the birthplace of peremptory challenges, <a href="https://www.legislation.gov.uk/ukpga/1988/33/section/118">abolished them in 1988.</a> After much research and deliberation, the Manitoba Aboriginal Justice Inquiry <a href="http://www.ajic.mb.ca/volumel/chapter9.html">also recommended in 1991 that they be abolished.</a></p>
<p>Finally, arguments against doing away with peremptory challenges also ignore that retired Supreme Court Justice Frank Iacobucci concluded <a href="https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/iacobucci/First_Nations_Representation_Ontario_Juries.html#_Toc436052363">in a well-researched 2013 report</a> that no attempt to address the dramatic under-representation of Indigenous people on juries will work as long as both prosecutors and defence lawyers can use peremptory challenges in a discriminatory manner.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212808/original/file-20180402-189813-1qkj4yl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Supreme Court of Canada justice Frank Iacobucci is seen in Toronto in this 2014 photo.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Darren Calabrese</span></span>
</figcaption>
</figure>
<p>Despite the fact that equality rights under Canada’s Charter of Rights and Freedoms have been in force since 1985, defence lawyers and prosecutors have failed to challenge the discriminatory use of peremptory challenges.</p>
<p>The U.S. has developed such jurisprudence, but it slows down trials, the opposite of what <a href="https://www.canada.ca/en/department-justice/news/2018/03/modernizing-the-criminal-justice-system-and-reduce-court-delays.html">Bill C-75 was aiming to do</a> in its response to the Supreme Court of Canada’s <a href="http://www.cbc.ca/news/politics/supreme-court-speedy-trial-1.3670079">speedy trial ruling.</a></p>
<h2>Bogus reasons to exclude jurors</h2>
<p>What’s more, it doesn’t work to address concerns about discrimination. </p>
<p>In the U.S., the prosecutor and the defence are allowed to invent seemingly neutral reasons for keeping minorities off the jury. For example, saying: “I am excluding this potential juror because she works for a tribal council” could be just another way of saying: “I am excluding her because she is Indigenous.”</p>
<p>Employing the American approach in Canada would therefore only result in complex and ineffective litigation.</p>
<p>Those claiming that the abolition of peremptory challenges could lead to biased jurors ignore what’s known as the “challenge for cause” <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-156.html#docCont">process in Canada’s Criminal Code</a> that allows both sides to question jurors about whether they would be impartial.</p>
<p>Bill C-75, in fact, improves “challenges for cause” by mandating that judges, rather than the last two jurors selected for a trial, decide whether a prospective juror is impartial. </p>
<p>The use of two jurors to decide whether other jurors are partial has caused delays and problems in jury selection in the past, and resulted in Criminal Code amendments in both 2008 and 2011. </p>
<h2>Transparent and open</h2>
<p>The challenge for cause process is transparent and open. It should have been used in the Stanley/Boushie case to ensure that no juror, Indigenous or non-Indigenous, had already made up his or her mind and was unprepared to fairly decide the case on the evidence. </p>
<p>The challenge for cause process could be improved even further —beyond provisions in Bill C-75 —without going to the extreme of the American process that allows prospective jurors to be asked questions that violate their privacy, including how they vote.</p>
<p>The fact that challenge for cause was not used, and that the defence employed peremptory challenges to remove five visibly Indigenous potential jurors, has rightly undermined public confidence in Stanley’s acquittal.</p>
<p>Bill C-75 would also allow judges to set aside some prospective jurors, not only on a hardship basis, but to maintain public confidence in the administration of justice. This is in response to findings that Indigenous people are under-represented on juries and <a href="http://angusreid.org/wp-content/uploads/2018/02/2018.02.23-Boushie-verdict.pdf">the concerns that many Canadians had about the fairness of the jury selection process in the Stanley/Boushie case.</a></p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/i-am-a-mikmaq-lawyer-and-i-despair-over-colten-boushie-93229">I am a Mi’kmaq lawyer, and I despair over Colten Boushie</a>
</strong>
</em>
</p>
<hr>
<p>This expansion of judges’ power could result in more diverse and representative juries, depending on how they exercise that discretion.</p>
<p>But more work is needed to ensure that juries represent the diversity of our communities. Bill C-75 retains the citizenship requirement for jurors even though many permanent residents, often from racialized groups, might otherwise be competent and impartial jurors. </p>
<p>Bill C-75 does not follow up Justice Iacobucci’s recommendation about allowing, in cases where it’s appropriate, people who speak Indigenous languages to serve on juries with translation assistance.</p>
<p>The government should also revisit a 2015 Supreme Court of Canada decision <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15373/index.do">that accepts dramatic under-representation of Indigenous people</a> on panels of prospective jurors. Two judges dissented in this case, stressing the importance of justice being seen to be done. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=468&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=468&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=468&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=589&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=589&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212847/original/file-20180402-189830-1wzmkyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=589&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Debbie Baptiste, mother of Colten Boushie, holds a photo of her son during a news conference on Parliament Hill in Ottawa in February 2018.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Justin Tang</span></span>
</figcaption>
</figure>
<p>We also need a more modern standard based on equality that ensures a fair and random sample of the community. </p>
<p>Such a change would push provinces to develop better ways to ensure more representative jury panels, including outreach and support of <a href="https://www.thestar.com/news/investigations/2018/02/16/how-a-broken-jury-list-makes-ontario-justice-whiter-richer-and-less-like-your-community.html">Indigenous and other groups such as African-Canadians</a> who are under-represented both on jury panels and actual juries. </p>
<p>Jury trials, especially in the North, held in smaller communities and not simply the largest city in the region could also ease the barriers and hardships that some Indigenous people face when they serve on juries. </p>
<p>Better pay for jurors would also respond to the under-representation of Indigenous and other racialized and disadvantaged groups on jurors.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/crime-doesnt-pay-but-jury-duty-should-81545">Crime doesn't pay, but jury duty should</a>
</strong>
</em>
</p>
<hr>
<p>Saskatchewan <a href="http://www.cbc.ca/news/canada/saskatoon/lawyer-calls-sask-inquest-jury-selection-very-fair-process-1.4564042">has experimented with</a> deliberately diverse coroner’s juries. </p>
<p>In Ontario, there is interest <a href="https://www.thestar.com/news/canada/2015/03/04/new-ontario-regulation-paves-way-for-aboriginal-inquests-to-proceed.html">in volunteer jurors</a> from Indigenous communities. With co-operation from the Nishnawbe Aski Nation, more than 500 members of First Nations <a href="https://www.thestar.com/opinion/contributors/2018/02/12/colten-boushie-verdict-more-proof-legal-system-plagued-by-systemic-racism.html">volunteered to serve on the coroner’s juries</a> that deliberated about and made important recommendations about preventing the death of Indigenous youth in Thunder Bay. </p>
<p>Iacobucci’s 2013 report supported the use of volunteers to increase Indigenous representation on juries.</p>
<p>Some may fear that volunteer jurors or jurors appointed from the group affected by the case, or jurors from a small community where a crime is alleged to have taken place, may be biased and have no place in criminal trials. </p>
<p>But such arguments forget about the critical “challenge for cause” process for ensuring that all jurors are impartial. Nobody wants biased jurors who have already made up their minds. We should all want diverse juries who reflect the relevant life experience in the case.</p>
<p>More could and should be done, but Bill C-75 is a necessary first step that will correctly remove peremptory challenges that allow prosecutors and defence lawyers to keep people off juries whose looks they do not like.</p><img src="https://counter.theconversation.com/content/94257/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kent Roach represented Aboriginal Legal Services of Toronto in the jury selection case of R. v. Williams and the David Asper Centre in the jury selection case of R. v. Kokepenance, both in a pro-bono capacity.
</span></em></p>The Canadian government’s criminal justice bill would abolish what are known as peremptory challenges. Here’s why that’s long overdue.Kent Roach, Professor & Prichard Wilson Chair in Law and Public Policy, University of Toronto, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/885622018-01-08T19:35:57Z2018-01-08T19:35:57ZStereotypes in the courtroom can prejudice our justice system – here’s how that can be fixed<figure><img src="https://images.theconversation.com/files/197722/original/file-20171205-23047-1gzbsg.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">As an extra-legal factor stereotypes can undermine fairness.</span> <span class="attribution"><span class="source">UQx Crime101x The Psychology of Criminal Justice</span></span></figcaption></figure><p>In 2015, Canadian judge Robin Camp acquitted Alexander Scott for the rape of a woman at a party. <a href="http://www.news.com.au/lifestyle/real-life/wtf/canadian-federal-court-judge-robin-camp-under-review-for-shocking-remarks-to-alleged-rape-victim/news-story/350959d6eeca7ab6a4d01733099a1ebd">According to reports</a>, Camp questioned why the victim had not done more to resist the attack. He said:</p>
<blockquote>
<p>She knew she was drunk … Is not an onus on her to be more careful?</p>
</blockquote>
<p>Camp also noted the alleged victim’s lack of physical and verbal resistance, and her low socioeconomic status. Four law professors <a href="http://s3.documentcloud.org/documents/2510250/cjc-complaint-r-camp.pdf">subsequently filed a complaint</a> criticising the decision: they characterised it as being sexist and reflecting stereotypical thinking.</p>
<p>Stereotypes like these <a href="http://press.anu.edu.au/publications/new-directions-law-australia">have an undesirable influence</a> on decisions in the legal system. While they can have a functional influence on how we form impressions of others, stereotypes can undermine fairness. </p>
<h2>Stereotypes and thinking</h2>
<p>One useful way to think about a criminal trial is as a series of persuasive messages directed at the fact-finder. In many jurisdictions, the fact-finder is a judge, and for more serious matters it is a jury.</p>
<p>We can use research on persuasion to understand and counter the effect of stereotypes. It generally finds there are two ways in which persuasive messages can influence people. </p>
<p>These processes are described in the dual process models – specifically the <a href="http://www.unc.edu/%7Efbaum/teaching/articles/jpsp-1980-Chaiken.pdf">heuristic systematic</a> and the <a href="http://www.acrwebsite.org/search/view-conference-proceedings.aspx?Id=6329">elaboration likelihood</a> models.</p>
<p>According to these models, there are two modes of thinking. The central or systematic route involves careful deliberative thought. In contrast, the peripheral or heuristic route relies more on shortcuts and pre-existing knowledge – such as stereotypes. </p>
<p>While the central route sounds like the best way of making decisions, people can only use effort in their thinking when they have the motivation and ability to do so.</p>
<h2>What influences jurors?</h2>
<p>It is not just judges like Camp who are influenced by stereotypes in cases of sexual assault or rape: jurors’ perceptions are <a href="http://journals.sagepub.com/doi/full/10.1177/0886260513518843">also affected</a>.</p>
<p>Convictions for sexual assault are often dependent on circumstantial evidence, as there is <a href="https://www.researchgate.net/profile/Nina_Westera/publication/264384581_Promoting_pre-recorded_complainant_evidence_in_rape_trials_Psychological_and_practice_perspectives/links/53db04b40cf2e38c63397e55.pdf">typically little corroborating evidence</a>. This means jurors in these cases are likely to draw on their stereotypes to interpret what happened and who should be blamed.</p>
<p>Jurors are also often influenced by defendants’ characteristics, such as their <a href="http://www.sciencedirect.com/science/article/pii/0092656680900173">attractiveness</a>, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1559-1816.1994.tb01552.x/full">race</a>, and <a href="http://journals.sagepub.com/doi/abs/10.1177/0739986308315319">socioeconomic status</a>. Defendants are seen as <a href="http://www.tandfonline.com/doi/abs/10.1080/00224545.1988.9711362">more likely to be guilty</a> when they come from social categories that are stereotypically linked to the features of the particular crime they are alleged to have committed. </p>
<p>It is not just stereotypes about the defendant’s appearance that influence perceptions: those derived from courtroom design also affect how jurors decide a case. In one of <a href="http://onlinelibrary.wiley.com/doi/10.1111/jols.12033/full">our studies</a>, a defendant sitting at the bar table with his lawyer was seen as less likely to be guilty than a defendant who was sitting either in an open dock or glass-enclosed dock.</p>
<h2>Why stereotyping happens, and what can be done about it</h2>
<p><a href="http://trove.nla.gov.au/work/18680805">One assumption</a> as to why stereotypes exert such an effect is that perceivers want to use the least mental effort possible, and so use stereotypes to <a href="http://psycnet.apa.org/record/1991-18331-001">reduce the amount of effort required</a>. </p>
<p>However, <a href="http://psycnet.apa.org/record/1985-01256-001">there is evidence</a> that perceivers think more carefully about unexpected, or stereotype inconsistent, information. <a href="http://psycnet.apa.org/fulltext/2012-30280-001.html">Our research</a> suggests that stereotypes can actually be used to maximise the amount of information that is evaluated under taxing conditions.</p>
<p>Despite stereotypes being pervasive and often functional, in the justice system their influence on fact-finders can lead to unfair outcomes for both victims and the accused. This reduces confidence in the justice system and is undesirable for the community. </p>
<p>So, what changes can we make to reduce the negative effects of stereotypes?</p>
<p>One suggestion is that we should get rid of juries and have judge-only trials. But, as the Camp example shows, judges are sometimes also influenced by stereotypes. And research shows that judges, just like juries, have difficulty <a href="http://www.jstor.org/stable/4150614">ignoring inadmissible information</a> and stereotypes.</p>
<p>This is not a criticism of jurors or judges. Rather, it is a recognition that they are human. </p>
<p>Another possibility is to change how jurors are asked to do their job so that they rely less on stereotypes. One option could be to use structured question trails to instruct jurors, rather than the traditional way of giving verbal instructions.</p>
<p>We could also redesign courtrooms to remove elaborate docks, which can make stereotypes about the threat posed by the defendant. </p>
<p>Whatever strategy is decided upon, there is a real need for empirical evidence to inform law reform and practice. This will increase the chance that change will actually improve the fairness of the criminal justice system.</p>
<hr>
<p><em>This article is based on the author’s chapter in <a href="https://press.anu.edu.au/publications/new-directions-law-australia">New Directions for Law in Australia: Essays in Contemporary Law Reform</a>, published by ANU Press.</em></p><img src="https://counter.theconversation.com/content/88562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Blake McKimmie has received funding from The Australian Research Council and the Queensland Law Reform Commission. Industry partners, who provided funding and/or in-kind support, for some of the research were the NSW Department of Justice and Attorney General, the Western Australian Department of Justice and Attorney General, PTW Architects, Hassell Architects, Katsieris Origami, and ICE Design. </span></em></p>Stereotypes can undermine the fairness of criminal trials, but research can help us understand and counter the effect of stereotypes through law reform.Blake McKimmie, Associate Professor, School of Psychology, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/815452017-08-16T23:17:11Z2017-08-16T23:17:11ZCrime doesn’t pay, but jury duty should<figure><img src="https://images.theconversation.com/files/180419/original/file-20170731-22172-1gtjjrv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Canadians may spend days or weeks serving as jurors, but most provinces offer scant compensation.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>A <a href="http://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/news-release/9838391">House of Commons committee recommended</a> this week that provinces increase their jury pay rates to at least $120 per day. <a href="http://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/report-20">The committee report</a> further suggests provinces cover jurors’ expenses, including transportation and meals. That works out to $15 per hour plus expenses, assuming eight-hour days.</p>
<p>Not coincidentally, that’s what <a href="https://www.alberta.ca/alberta-minimum-wage-changes.aspx">Alberta’s minimum wage will become on Oct. 1</a>. The provincial labour minister, Christina May, <a href="http://www.cbc.ca/news/canada/edmonton/alberta-stands-firm-on-15-minimum-wage-by-2018-despite-pushback-1.3615506">justified the increase</a> by stating “this is exactly the time for a fair wage.”</p>
<p>A similar increase is under way in Ontario. Liberal Kathleen Wynne, now running for re-election, has said “<a href="http://www.cbc.ca/news/canada/toronto/ontario-minimum-wage-announcement-1.4137339">we need to make certain that our workers are treated fairly</a>.”</p>
<p>So if these provincial governments are serious about fairness, they should implement the federal recommendations. They need to start paying jurors at least the minimum wage for trial participation.</p>
<p>Suppose you are one of the thousands of Canadians summoned to courthouses each year for possible jury selection. In most provinces, your employer is obliged to release you, but isn’t obliged to pay you while you’re missing work.</p>
<p>You first spend several hours at the courthouse waiting to see if you get picked. If so, you attend your assigned trial for however long it lasts, but you won’t be paid much in return for your hours of time.</p>
<h2>Ontario’s miserly jury pay</h2>
<p>If you’re a <a href="https://www.attorneygeneral.jus.gov.on.ca/english/courts/jury/general_jury_duty_info.php">juror in Ontario</a>, you get paid nothing during the selection process, nor during the first 10 days of duty. You then receive $40 per day for days 11 to 49, and $100 daily thereafter. So if the trial lasts a month (say, 21 court days of perhaps six hours each), you receive only $440 for your obliging and obligatory service.</p>
<p>Compare that to someone earning <a href="https://www.ontario.ca/page/minimum-wage-increase">Ontario’s minimum wage of $14 per hour</a>. They receive $84 for a six-hour day. That’s $1,764 per month, four times what jurors get.</p>
<p>Under the province’s planned increase to $15 in 2019, a minimum wage employee will begin earning $1,890 monthly.</p>
<p>Other factors make the pay gap between jurors and employees even worse.</p>
<p>First, jurors receive no <a href="https://www.labour.gov.on.ca/english/es/pubs/guide/vacation.php">vacation pay</a>. That extra four per cent boosts a worker’s monthly total to $1,834 at current rates, or $1,966 after the proposed increase.</p>
<p>Second, while serving on juries, most people give up eight-hour days at their regular job, not six. They thus miss out on at least $2,446 or $2,661, respectively.</p>
<p>Third, most employees (thankfully) earn more than minimum wage. The Canadian average is $27.95 hourly, or about $4,696 per month. That’s 11 times Ontario’s jury pay.</p>
<p>Maybe jurors should apply for social assistance. Singles get up to $706 monthly; families receive more.</p>
<h2>Most provinces under-compensate</h2>
<p><a href="http://web2.gov.mb.ca/laws/regs/current/_pdf-regs.php?reg=320/87%20R">Manitoba</a> is even stingier. Jurors receive nothing for the first 10 days, and only $30 daily thereafter; that’s $330 for a month-long trial. By comparison, working six-hour days at the province’s <a href="http://www.cbc.ca/news/canada/manitoba/manitoba-minimum-wage-increase-1.4614349">$11.15 hourly minimum wage</a> yields $1,461 per month, including vacation pay.</p>
<p>At the other extreme, <a href="http://legisquebec.gouv.qc.ca/en/ShowDoc/cr/J-2,%20r.%201/">Quebec</a> leads the way on jury compensation. It offers $103 per day, with extra pay for long days or extended trials. A month-long trial pays $2,163. It also reimburses meals, transportation, child care and counselling.</p>
<p><a href="http://www.justice.gov.nl.ca/just/court/jury.pdf">Newfoundland</a> takes a different approach. Instead of paying jurors, it requires employers to provide paid court leave. That’s good for employees, who get their full wages and benefits. But it dumps jury costs onto employers.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=473&fit=crop&dpr=1 600w, https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=473&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=473&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=595&fit=crop&dpr=1 754w, https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=595&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/180278/original/file-20170730-22047-190cp1e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=595&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Jury pay versus minimum wage in Canadian provinces that pay jurors, assuming 21 six-hour days, including vacation pay, as of August 2017.</span>
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</figure>
<p>Such underpayment would be illegal for other employers. For example, <a href="http://globalnews.ca/news/2670439/ontario-government-blitz-cracks-down-on-unpaid-internships/">Ontario has repeatedly</a> <a href="http://globalnews.ca/news/1251557/more-unpaid-internships-bite-the-dust-amid-government-crackdown/">cracked down</a> on unpaid student internships. Yet their own juror “interns” go unpaid for two weeks and underpaid for eight. Why do our governments continue to exempt themselves?</p>
<h2>‘Civic duty’</h2>
<p>Some traditionalists argue that jury service is different because it’s a “civic duty.” Jurors do indeed provide <a href="https://theconversation.com/jurors-and-social-media-is-there-a-solution-15921">(mostly) honourable service</a>; but that’s a reason for more pay, not less. Soldiers and police also serve society. But even an army private gets <a href="http://www.forces.gc.ca/en/caf-community-pay/reg-force-ncm-class-c-rates.page">$2,985</a> per month.</p>
<p>Some jurors have said their court experience was <a href="https://www.thestar.com/life/food_wine/2013/04/03/the_verdict_is_in_on_jury_duty_it_rocks.html">interesting and educational</a>. But many find it stressful or even <a href="http://www.cbc.ca/news/canada/toronto/mark-farrant-bernardo-jennifer-pan-trial-trauma-justice-court-1.4095361">traumatic</a>, especially for long trials of violent crimes.</p>
<p>There are several reasons, aside from basic fairness, that we should pay jurors better. Since I’m a business professor, I’m focusing here on financial issues.</p>
<p>First, it would encourage jury participation rather than absenteeism. Low-paid workers would no longer suffer financially as jurors. Higher-paid ones would at least feel less penalized. Some folks, like part-timers and the unemployed, might even find service attractive.</p>
<p>As the Commons committee notes, this could also help make juries more representative of the general population. A lack of juror diversity has led to controversy around high-profile trials like the <a href="https://theconversation.com/how-racial-bias-likely-impacted-the-stanley-verdict-94211">Gerald Stanley</a> verdict in the death of Colten Boushie.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-good-first-step-towards-diverse-impartial-canadian-juries-94257">A good first step towards diverse, impartial Canadian juries</a>
</strong>
</em>
</p>
<hr>
<h2>Good for the economy</h2>
<p>Second, we have the same economic arguments that support minimum wage increases. More than two million Canadians <a href="http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/lfss01a-eng.htm">are unemployed</a> or <a href="http://www.statcan.gc.ca/pub/75-006-x/2014001/article/14035-eng.htm">earning minimum wage</a>. Putting more money in their threadbare pockets while they’re on juries would be good for their families and the economy.</p>
<p>Finally, paying jurors properly could provide political leverage for the minimum wage increases underway in Alberta and Ontario. Those steep hikes face stiff resistance from business groups. The Canadian Federation of Independent Business for example is <a href="http://www.cfib-fcei.ca/english/article/9439-cfib-response-to-min-wage-hike-on.html">“shocked and appalled.”</a></p>
<p>Provincial governments look like hypocrites when they force other employers to provide higher wages, while still underpaying their own jurors. They should instead put their money where their mouths are and start paying at least $120 plus expenses daily. Then they can claim to be “sharing the pain.”</p>
<p>When discussing the minimum wage, <a href="https://news.ontario.ca/opo/en/2017/05/ontario-raising-minimum-wage-to-15-per-hour.html">Wynne has said</a>: “It’s time this rate reflected the reality of people’s lives.”</p>
<p>Let’s hope all the premiers soon say that about jury pay too.</p><img src="https://counter.theconversation.com/content/81545/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Armstrong does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Canadian federal report recommends paying jurors at least $120 daily. Provinces should take action.Michael J. Armstrong, Associate professor of operations research, Goodman School of Business, Brock UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/728962017-02-28T15:09:47Z2017-02-28T15:09:47ZAugmented reality – how the technology behind Pokemon Go could find its way to the courtroom<figure><img src="https://images.theconversation.com/files/158753/original/image-20170228-13104-oow8zz.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Full-body projection of a witness on glass.</span> <span class="attribution"><span class="source">Mehzeb Chowdhury</span>, <span class="license">Author provided</span></span></figcaption></figure><p>Returning to court to give evidence against their attacker can be a <a href="https://www.theguardian.com/social-care-network/2013/mar/26/supporting-rape-victims-in-court">harrowing experience</a> for victims of sexual abuse, and many have described it as like having to <a href="https://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court">experience the abuse all over again</a>. However, the rise of augmented reality and holographic technology – that could bring vulnerable witnesses into court in 3D instead – could offer a solution.</p>
<p>Studies have found that <a href="https://mainweb-v.musc.edu/vawprevention/research/victimrape.shtml">secondary victimisation</a> – such as victim-blaming and insensitive behaviour from police, judges and social workers – can make victims feel violated and traumatised. <a href="http://www.cps.gov.uk/legal/s_to_u/special_measures/#a02">Special measures</a> and other means to testify are available but lawyers have argued that the demeanour of complainants, especially when testifying, can <a href="http://www.halsburyslawexchange.co.uk/rape-trials-and-post-traumatic-stress-disorder/">affect the jury’s perception</a> and hinder their case. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/158303/original/image-20170224-22981-s41dxd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The jury are key to justice.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/portrait-female-advocate-pointing-jurors-sitting-121503343?src=CftD8lHraiYCJZwxruMVZw-1-51">Shutterstock</a></span>
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</figure>
<p>The absence of a complainant in the courtroom, and the mediating effect of a video link, may create a distance between them and the jury. Many professionals have voiced concern that the use of video link can also make it <a href="http://www.law.leeds.ac.uk/assets/files/research/ccjs/special-measures-in-rape-trials-briefing-report">less likely</a> that a witness’ account will incite sympathy and/or be believed. </p>
<p><a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/lpsyr8&div=6&id=&page=">Non-verbal communication</a> such as body language plays a significant role in criminal trials, especially in sexual assault cases. Jurors use “<a href="http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac2013/sac_2013/33_demeanor_deception.authcheckdam.pdf">intuition</a>” to judge demeanour, deception and credibility from the posture, gaze and expression of witnesses. This poses a challenge in cases where special measures have been used.</p>
<p>During a video link testimony, the witness is simply a two-dimensional representation of themselves on a screen. These subtle visual, non-verbal and verbal cues may not be properly interpreted by jurors, who then may not reach the correct conclusion about the credibility of the witness. </p>
<h2>A technological courtroom</h2>
<p>There have been calls for a <a href="http://webarchive.nationalarchives.gov.uk/20110608160754/http:/www.equalities.gov.uk/pdf/stern_review_acc_final.pdf">review of alternatives</a> in rape trials and while technology has been accused of <a href="http://www.stanforddaily.com/2010/10/28/technology-does-it-breed-or-kill-empathy/">marginalising empathy</a> in today’s society, it could bring about a social good in this case. Augmented and virtual reality technology <a href="http://www.rcolaw.com/?t=40&an=41838&format=xml&p=6665">used in the courtroom</a> could allow a witness to provide a testimony from a different location but appear in front of the judge and jurors in three-dimensional form with the use of wearables and headsets.</p>
<p><a href="http://www.forbes.com/sites/ywang/2017/01/18/how-tech-giant-baidu-is-making-china-a-leader-in-augmented-reality/#1347596c40e2">Augmented reality</a> superimposes graphical, audio and other sense enhancements over the real world and in real time and they can interact with reality. It entered the mainstream recently with the enormous popularity of Nintendo’s <a href="http://spectrum.ieee.org/consumer-electronics/gaming/augmented-reality-forget-the-glasses">Pokemon Go</a> on smartphones. But its real potential lies in <a href="https://www.cnet.com/news/odg-android-augmented-reality-glasses-qualcomm-snapdragon-835/">wearable technology</a>.</p>
<p>A system for use in court would superimpose augmented graphic elements in specific locations, so that individuals could appear in the witness box without having ever entered the courtroom. This approach would shield vulnerable witnesses from the stress of giving testimony in person, but ensure that the jury sees a more realistic testimony. The same technology could be used in situations where evidence is given to the jury alone. </p>
<p>Virtual reality (VR) – which can project images of a person but unlike augmented reality, does not interact with reality – has been shown to <a href="https://ww2.kqed.org/arts/2016/06/27/stanfords-virtual-reality-lab-cultivates-empathy-for-the-homeless/">trigger empathy</a> in users. In fact, <a href="http://www.npr.org/sections/alltechconsidered/2017/01/09/508617333/can-virtual-reality-make-you-more-empathetic">charities have employed VR</a> to illustrate harsh conditions of donation recipients to potential donors. Live-streaming VR technology has already been used <a href="http://www.billboard.com/articles/news/7525661/citi-live-nation-nextvr-launching-virtual-reality-concert-series">in concerts</a> and in <a href="http://time.com/4072485/democratic-debate-virtual-reality-hillary-clinton-bernie-sanders/">political debates</a>. Adapting it to the courtroom would not be a great leap and there have <a href="http://www.huffingtonpost.co.uk/christopher-markou/virtual-reality-goes-to-court_b_10063968.html">already been calls</a> for virtual reality technology to be put to this sort of use.</p>
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<p>Then, there’s emerging holographic technology that could be adopted for the use in the courtroom. Commercial solutions exist, such as <a href="http://www.glimmdisplay.com/holographic-solutions/holographic-pjection-film-foil/">projections</a> that allow for full-body images to be cast on specially-tempered film or glass to create the illusion of a hologram, as well as <a href="http://www.digitaltrends.com/cool-tech/hololamp-ces/">other methods</a>. The advantage is that no headsets or goggles are required, and the technology is less complicated than AR and VR.</p>
<h2>Sound matters too</h2>
<p>Regardless of the technology adopted, <a href="http://uk.businessinsider.com/virtual-reality-the-importance-of-3d-positional-audio-2015-4?r=US&IR=T">audio plays a massive part</a> in creating realistic engagement with virtual or augmented reality environments. For jurors to feel like they are hearing a witness as if they were physically in the witness stand, <a href="https://developers.google.com/vr/concepts/spatial-audio">spacial audio</a> is essential. It would allow jurors to note every vocal cue or inflection during testimony. </p>
<p>There have been calls for technology to facilitate witnesses to give testimony remotely since the <a href="http://articles.sun-sentinel.com/1993-04-25/news/9302070930_1_computer-animation-virtual-reality-video">early 1990s</a>. In the US, Supreme Court <a href="http://www.cbsnews.com/news/john-roberts-courts-will-always-be-slow-to-embrace-the-next-big-thing/">Chief Justice John Roberts</a> acknowledged that courts will always be slow to adopt technology, but that if it assists in access to justice it should be implemented. </p>
<p>Recent studies in the US have found as many as <a href="https://www.rainn.org/statistics/criminal-justice-system">68% of sexual assault victims do not report assaults</a> – often due to inadequacies in law enforcement organisations designed to help them, or specifically to avoid the harrowing court procedures. Augmented reality and VR could help bring about justice in more cases: it is time the technology had its day in court.</p><img src="https://counter.theconversation.com/content/72896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mehzeb Chowdhury does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Augmented reality and holographic projections could hold benefits for victims testifying against sexual assault.Mehzeb Chowdhury, PhD Researcher in Forensic Science and Criminal Investigations, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674182016-10-24T12:35:35Z2016-10-24T12:35:35ZDeaf or blind people can’t serve on juries – here’s why law needs to change<figure><img src="https://images.theconversation.com/files/142651/original/image-20161021-1751-1u7cqms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some can serve, some can't. </span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-121503370/stock-photo-rear-view-of-a-advocate-communicating-with-the-jurors-in-the-court-house.html?src=mOl6miHUYkzD7p4b8Cgc3Q-1-8">bikeriderlondon</a></span></figcaption></figure><p>You might have thought any ordinary person of sound mind can serve on a jury, but actually no. Various groups are excluded in many countries including the UK, Ireland and Australia because of legal prohibitions. In the UK and Ireland, for example, deaf people <a href="https://www.theguardian.com/commentisfree/libertycentral/2010/jul/20/deaf-jurors-jury-system">are deemed</a> “incapable” of serving as jurors if they need an interpreter, since interpreters are not permitted in the jury room. Blind people, meanwhile, <a href="http://www.inbrief.co.uk/legal-system/jury-qualifications-and-disqualifications/">are</a> usually <a href="http://www.thejournal.ie/jury-service-flac-blind-deaf-jurors-871129-Apr2013/">excluded</a> at the judge’s discretion because they can’t read the court materials. </p>
<p>The law for both groups is similar in Australia and was <a href="http://www.abc.net.au/news/2016-10-05/deaf-woman-gaye-lyons-loses-high-court-challenge-juror/7904324">recently confirmed</a> by a final appeal decision in the Australian High Court regarding a deaf woman named Gaye Lyons who needs an interpreter even though she can read lips. She took legal action after she had been excluded from serving on a jury in Queensland in 2012. </p>
<p>In a decision that will potentially influence courts in the UK and other jurisdictions, the court held that Ms Lyons had not been discriminated against. It said the problem was in fact a lack of legislative provision for deaf people and could therefore only be addressed by politicians. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The interpreting sign.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-11646751/stock-photo-the-interpreting-sign-in-sign-language-on-a-black-background.html?src=dIAx6cek1vMhFqWu6fkrdQ-1-61">Matt Antonino</a></span>
</figcaption>
</figure>
<h2>What is evident</h2>
<p>Lyons’ case is now <a href="http://www.canberratimes.com.au/act-news/act-looking-at-implications-of-high-court-deaf-juror-decision-20161014-gs2ct7.html">being referred</a> by the activist group People With Disability Australia to the UN Committee to the Convention on the Rights of Persons with Disabilities. The UN committee <a href="http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=19877&LangID=E">already condemned</a> two other legal decisions earlier this year to exclude deaf people from juries in New South Wales in Australia in 2012. Meanwhile, the British Deaf Association has been <a href="https://www.bda.org.uk/in-search-of-justice">actively lobbying</a> for deaf people to serve as jurors in the UK. </p>
<p>As things stand, however, it looks like this strange situation is more likely to be changed by politicians than judges – whether in Australia or the UK. As one of the people spearheading research into deaf jurors, there is certainly plenty of evidence as to why it should change. I am not aware of any equivalent work into blind people but some of the same observations would almost certainly be applicable. </p>
<p>For deaf jurors, there’s no comprehension issue. I helped establish that legal facts and concepts <a href="http://www.researchonline.mq.edu.au/vital/access/manager/Repository/mq:51816">can be</a> conveyed in sign language effectively enough for deaf people to access court proceedings and legal texts as well as hearing people. Deaf jurors <a href="https://pureapps2.hw.ac.uk/portal/en/publications/guilty-or-not-guilty-an-investigation-of-deaf-jurors-access-to-court-proceedings-via-sign-language-interpreting(8406e362-8d98-45f6-9ab4-792fd75012bd)/export.html">will</a> misunderstand certain terms and concepts, but no more than anyone else. </p>
<p>A <a href="http://www.academia.edu/7069181/Legal_interpreting_deaf_peple_and_jury_service">survey</a> of legal professionals and sign language interpreters from various countries in 2013 subsequently found that those in jurisdictions that already allowed deaf jurors tended to be more comfortable with having them. Having said that, respondents <a href="https://pureapps2.hw.ac.uk/portal/files/8931251/2015_Napier_McEwin_Alt_LawJ.pdf">didn’t have</a> a problem with deaf jurors in principle and thought they could serve successfully as long as there were clear supportive policies and guidelines and training for interpreters and court staff. </p>
<p>A final study in which I have been involved – which is not yet published – explored a simulated trial involving a deaf juror with interpreters in Australia. The deaf juror participated effectively and was a key contributor in the deliberations. The other hearing jurors overwhelmingly said they weren’t aware of the interpreters being engaged in the process or airing their opinions about the case. They saw them as neutral and not affecting the deliberation process. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=155&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=155&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=155&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=194&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=194&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=194&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Still from simulated jury study in Australia.</span>
<span class="attribution"><span class="source">Jemina Napier</span></span>
</figcaption>
</figure>
<p>In feedback sessions earlier this year, judges, lawyers, jury managers and people from deaf organisations agreed the evidence shows there is no social or linguistic impediment to deaf jurors in principle. The legal professionals did believe that the right to a fair trial should override the right to do your civic duty as a juror. They said that providing interpreters would be complex, but was achievable with careful planning. The increasing use of video conference technology was specifically mentioned as a way to provide access to interpreters more easily. </p>
<p>Overall, the evidence strongly suggests that deaf people should be able to serve as jurors – and it is hard to imagine any good reasons not to extend blind people the same rights. It’s time the law was changed in the UK, Ireland and Australia to make this possible. Other countries already permit these kinds of people to serve, including New Zealand and most US states. </p>
<p>The governments and law reform commissions in the UK, Ireland and Australia are all considering this issue at present: it’s high time they took it forward.</p><img src="https://counter.theconversation.com/content/67418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Jemina Napier has received funding for research on deaf jurors since 2005 from the NSW Law Reform Commission, and through various Macquarie University internal grants. She is currently involved with a team of researchers on an Australian Research Council Linkage Grant (LP120200261, 2013-2016), working with Professor Sandra Hale and Ms Mehera San Roque, University of New South Wales; Professor David Spencer, Australian Catholic University; and Dr Debra Russell, University of Alberta; and with partner organisations: Deaf Australia, the Australian Federation of Deaf Societies and the Australian Sign Language Interpreters Association.
</span></em></p>A recent Australian high court case has highlighted a problem that also exists in UK and Ireland.Jemina Napier, Professor and Chair of Intercultural Communication, Heriot-Watt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/643822016-08-26T11:18:20Z2016-08-26T11:18:20ZVirtual reality robots could help teleport juries to crime scenes<figure><img src="https://images.theconversation.com/files/135515/original/image-20160825-6630-1afnzf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Juries are seldom allowed to visit crime scenes. There are exceptions, usually in difficult, high-profile murder cases such as the <a href="http://www.nytimes.com/1995/02/13/us/simpson-jury-is-taken-on-a-tour-of-the-crime-scene.html?pagewanted=all">O.J Simpson trial</a> in 1995 in the US and the <a href="http://news.bbc.co.uk/1/hi/uk/1323186.stm">Jill Dando murder trial</a> in 2001 in the UK. But asking jurors to become fact finders in this way comes with myriad problems, from possible biases to the logistical and security challenges of taking them to the crime scene.</p>
<p>A site visit by the <a href="http://www.dailymail.co.uk/news/article-45197/Dando-jurors-visit-crime-scene.html">Dando jury</a> needed a convoy of five vehicles to transport the jurors, lawyers, judge and their police escorts to the scene, passing through police barricades surrounded by neighbours, journalists and other spectators. It became a media spectacle. But rapidly progressing technology in imaging, robotics and artificial intelligence may be able to avoid these issues by virtually teleporting judges and jurors to crime scenes without even leaving the courtroom.</p>
<p>Such visits can help juries to assess the prosecution and defence cases. For example, in the murder trial of <a href="http://www.billboard.com/articles/news/1049990/phil-spector-jurors-visit-crime-scene">music producer Phil Spector</a> in 2007, the defence lawyers claimed a large fountain at the scene caused a witness to mishear Spector admit to the crime. By visiting the scene, the jury were able to judge how likely this was, as well as gaining a better understanding of how the sequence of events may have unfolded.</p>
<p>But when a jury visits a crime scene, it may not be in the same state as when the crime originally occurred. During the <a href="http://articles.chicagotribune.com/1995-02-15/news/9502150182_1_simpson-home-defense-attorney-carl-douglas-nicole-brown-simpson">Simpson trial</a>, for example, there were serious complaints regarding the scene being staged and items rearranged. And the longer the time after the crime has taken place, the greater the chance that things will have changed.</p>
<p>Courts have traditionally relied on forensic science units to produce visual evidence in court as an alternative to crime scene visits. Crime scene investigators (CSIs) <a href="http://bit.ly/2bkTcXg">gather and use evidence</a> to recreate the precise sequence of events that occurred during the course of a crime. Part of this reconstruction process is photography and sketching, with the latter still largely done by hand. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/135517/original/image-20160825-6595-1e80vyp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Virtual duty.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Photos give a limited picture of the crime scene, restricted by the photographer’s field of view and subject to their interpretation of the scene and the importance they place on different pieces of evidence. Video can capture more of the scene but is still limited in its field of view.</p>
<p>Sketches lay out the scene in a way that neither photographs nor videos can. They provide a general overview of the scene and the precise and relative location of evidence. But they also give an inherently less realistic representation of the crime scene, determined even more by the artist’s interpretation. Similarly, photos and videos can be turned into 3D computer animations but again are subjective, and <a href="http://www.jstor.org/stable/1394503">can even be tailored</a> to support the case of whichever side is presenting them.</p>
<h2>Immersive evidence</h2>
<p>However, new technology is now emerging that could enable CSIs to capture and relay a much more immersive and representative picture of crime scenes, using 3D imaging, panoramic videography, robotics and virtual reality. For example, <a href="https://blogs.staffs.ac.uk/archaeology/projects/digital-forensic-archaeology-dig-for-arch/">researchers at Staffordshire University</a>, led by Caroline Sturdy Colls, used green screens, video game software and the latest virtual reality headsets (such as the Oculus Rift and HTC Vive) to reproduce virtual crime scenes digitally.</p>
<p>Jurors could potentially take a walk around the 3D worlds rendered using the system, and examine vital details of the scene. Unlike an edited video created to sway the jury, this form of evidence would be a simple matter of documenting a scene. This, of course, relies on those gathering the data to objectively preserving the crime scene without staging or tampering.</p>
<p>One issue with 3D recreations and computer-generated virtual reality simulations is that they require expensive headsets, and top specification computers to work. The first generation of VR systems such as the HTC Vive (£759), PlayStation VR (£349.99) and Oculus Rift (£549) all come with hefty price tags and none of them work without an additional VR-ready computer or console.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=609&fit=crop&dpr=1 600w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=609&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=609&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=766&fit=crop&dpr=1 754w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=766&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/135508/original/image-20160825-6595-mv4ub4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=766&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Here to inspect your crime scene.</span>
<span class="attribution"><span class="source">Durham University</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>To overcome this issue, my colleagues and I at Durham University are developing a robot system inspired by NASA’s Curiosity Mars rover that could capture immersive video footage of crime scenes. This MABMAT takes 360° videos and photographs that can be played on any computer or smartphone with an appropriate app. With a basic adaptor headset such as the £10 <a href="https://vr.google.com/cardboard/">Google cardboard</a>, it can recreate a similar VR experience as above but at a fraction of the cost. It requires no rendering of 3D graphics, no powerful computers and captures the most accurate snapshot of the crime scene from every angle. Users can turn their heads, look up and down, or zoom in and out.</p>
<p>As well as helping juries in the courtroom, the system could allow investigators to revisit crime scenes as they were at the time of the initial forensic examination. Information could be captured in three ways. A CSI could set a predefined path for the rover to take, recording high definition video images in 360° as it goes. Or it could be controlled via a Bluetooth remote or a smartphone or tablet. Alternatively, the rover could use ultrasonic, motion and infrared sensors to navigate around a scene and take photos and video by itself.</p>
<p>The entire setup totals just £299, with costs set to go down even further in the future, due to affordable open-source robotics kits built around cheap computer systems such as Raspberry Pi and Arduino. Another development could be the use of <a href="https://get.google.com/tango/">Google’s Tango project</a>, which can render 3D images of scenes and terrain in real-time, potentially replacing crime-scene sketching. This would create an immersive experience with tracked motion, highlighting the precise distance between objects and relative position of the evidence at the scene.</p><img src="https://counter.theconversation.com/content/64382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mehzeb Chowdhury does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Using a robotic video camera to digitally recreate a crime scene could give juries greater insight without the logistical nightmare and potential bias of a physical visit.Mehzeb Chowdhury, PhD Researcher in Forensic Science & Criminal Investigations, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/600902016-06-09T12:29:47Z2016-06-09T12:29:47ZIs jury bias preventing justice for rape victims?<figure><img src="https://images.theconversation.com/files/125542/original/image-20160607-15028-2w0z6y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Billion Photos/Shutterstock</span></span></figcaption></figure><p>Former star athlete, Brock Turner, <a href="http://www.cosmopolitan.com/politics/news/a59569/stanford-rape-case-defense-attorneys/">has been sentenced</a> to six months in jail after what became known as the “Stanford sex assault case”. The length of Turner’s sentence along with his apparent lack of remorse led to public outcry and the <a href="https://news.vice.com/article/a-petition-to-remove-the-judge-in-the-stanford-rape-case-has-more-than-100000-signatures">launch of a petition</a> to remove the judge who gave the sentencing with many claiming it was too light and accusing him of bias.</p>
<p><a href="http://www.theguardian.com/law/2011/apr/11/judges-lenient-break">Research</a> has previously found that judges are more lenient at the start of the day and immediately after a scheduled break in court proceedings – such as after lunch – which suggests a level of bias in their decision making.</p>
<p>Now <a href="http://www.hud.ac.uk/news/2016/march/lowconvictionratesinrapetrialsresultofbiasofjurors.php">new research</a> shows how jurors – who are supposed to be a better option than a lone judge – <a href="http://www.independent.co.uk/student/istudents/the-stanford-rape-case-isn-t-the-first-of-its-kind-it-s-happening-in-the-uk-and-survivors-deserve-to-a7070746.html">could also be biased</a> when it comes to deciding a verdict.</p>
<p>We already know that personal characteristics of jurors may influence the verdicts they return. In 2002 a review of a number of studies found <a href="http://eprints.kingston.ac.uk/23/1/Darbyshire-P-23.pdf">juror’s gender, occupation, level of education and ethnicity</a> can all impact decisions made surrounding a defendant’s guilt in a case. Likewise, attitudes towards specific aspects of a case including the <a href="http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1016&context=christian_meissner">defendant’s race</a> <a href="https://www.researchgate.net/publication/232456577_Jury_selection_in_major_controlled_substance_trials_The_need_for_extended_voir_dire">involvement of drugs</a>, <a href="http://www.sciencedirect.com/science/article/pii/0092656692900526">mental health issues</a> and even a <a href="http://irv.sagepub.com/content/8/3/245.full.pdf+html">victim’s perceived attractiveness</a> have been shown to have some effect on the verdict jurors make.</p>
<p>To test the extent to which juror bias affects the fairness of decision making within rape cases, we recreated rape trials, with the participation of professional lawyers and actors. Members of the public and university students were invited to take on the role of “juror”. </p>
<p>The research saw 360 “jurors” within 30 mock jury panels, who observed a video recorded reconstruction from one of three differing rape trials that were reconstructed in a real courtroom with barristers and actors. The jurors were asked to reach a verdict after observing the video.</p>
<p>Analysis is ongoing, however <a href="http://www.hud.ac.uk/news/2016/march/lowconvictionratesinrapetrialsresultofbiasofjurors.php">results</a> so far suggest there is juror prejudice in rape cases where the victim already knew their attacker – and given that this is the majority of cases, it doesn’t bode well for conviction rates. </p>
<p>One trial observed by ten different mock juries, produced five guilty verdicts and five not guilty verdicts, based upon observing the exact same case evidence. This in itself suggests “juror characteristics” have an important impact on the ultimate verdict outcome.</p>
<h2>Rape on trial</h2>
<p>Despite many people assuming rape is committed by strangers lurking in a dark alleyway, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf">statistics show</a> the vast majority of rapes – around 90% – are committed by people already known to the victim. Of these, 56% are committed by a partner or ex-partner, making what’s termed “acquaintance” and “domestic” rapes much more prevalent than those committed by strangers. </p>
<p>This in itself adds to the difficulty of the jury’s job if a case reaches trial, as these disputed “sexual acts” tend to take place in private, resulting in little availability of witnesses or CCTV evidence. And unlike other crimes, DNA evidence in rape cases where the accused is known to the victim, is often of little value – demonstrating only that a sexual act happened, not whether this took place with consent. </p>
<p>Arguably even more damaging, are the negative attitudes jurors and society hold toward rape victims. A notion recently played out on BBC3 in the <a href="http://www.bbc.co.uk/mediacentre/proginfo/2015/44/sex-on-trial">Is this Rape? Sex on Trial</a> documentary – which saw the victim, rather than the defendant, come under the most scrutiny. </p>
<p>Substantial research has shown many people hold inaccurate beliefs around how a “real rape victim” behaves. Including beliefs around how the victim’s own actions may have “invited” unwanted sexual activity – such as flirtatious behaviour or provocative clothing. So much so, that judges now routinely warn jurors against drawing upon these <a href="http://rapecrisis.org.uk/mythsvsrealities.php">rape myths</a> when making decisions at trial.</p>
<p>However, the extent to which these instructions are taken into consideration remains questionable. Recent research showed that many jurors take little notice of these legal instructions in <a href="http://onlinelibrary.wiley.com/doi/10.1111/lest.12051/pdf">rape trial deliberations</a> and a 2010 UK government report found only <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf">31% of jurors actually understand legal directions</a> in full. </p>
<h2>Jury bias</h2>
<p>As part of our research, we also examined jurors psychological makeup by analysing their responses to attitudinal and personality assessments – to see whether these aspects also had any effect upon the verdicts jurors returned. </p>
<p>The results show that attitudes towards rape, interpersonal interactions – such as the need to be in control or included – and egocentricity (one aspect of a <a href="https://www.researchgate.net/publication/292881843_Introduction_and_validation_of_Psychopathic_Personality_Traits_Scale_PPTS_in_a_large_prison_sample">new measure of psychopathy</a>, all appear to be somewhat predictive of the verdicts jurors will choose. People who score highly on these tests appear to be more predisposed towards “not guilty” verdicts.</p>
<p>This means the attitudes and personality traits jurors bring with them to trial, appear to have a much more of an influence and biasing effect upon the collective verdict returned than has previously been accepted.</p>
<p>Under <a href="https://en.wikipedia.org/wiki/Peremptory_challenge">English law</a> it is rare for the courts to ask prospective jurors any questions to assess their suitability to make decisions in a case. In fact, jurors are allocated to cases by a process of random selection from the local electoral register and only excused from sitting as a juror when they fall outside the 18–70 age range, have a history of serious mental health issues or criminal convictions. Although, when they are picked some might be excused for having some agreed conflict with the case. </p>
<p>Though, this is different in the US, where extensive quizzing of jurors occurs – this is known as “voir dire” and it is a bit like a mini hearing. Though it has been argued this type of <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/chknt78&div=50&id=&page=">jury vetting is often ineffective at detecting juror bias</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125428/original/image-20160606-13067-1lemxr0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The jury system is by no means flawless.</span>
<span class="attribution"><span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>The broad inclusion criteria in the UK is thought to ensure varied and representative members of the community are present within different cases. Yet with such a wide spectrum of people acting as jurors, comes a whole host of associated biases. Biases which bring this impartial assumption into question.</p>
<p>Our findings make a case for jury vetting – overturning centuries of tradition in England. Which in turn, will make for fairer verdict decisions, so that victims of rape will finally get the chance to see their perpetrators brought to justice.</p><img src="https://counter.theconversation.com/content/60090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic Willmott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A debate has erupted over the recent sentencing in the Stanford sexual assault case, with questions being asked over the judge’s bias, but could the same be said of jurors in other rape cases?Dominic Willmott, Doctoral Researcher in Forensic Psychology, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.