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Chapter 12:

Juries and Judges as Decision Makers

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Juries and Judges as Decision Makers

In this chapter

The Process of Jury Decision Making

The Effects of Biasing Information

The Group Dynamics of Jury Deliberations

Jury Nullification

Jury Reform

Judges Compared to Juries

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Why do we study jury decision making?

Trayvon Martin Trial

2nd degree murder

Unlawful killing of Trayvon Martin by an act immanently dangerous to another and demonstrating a depraved mind without regard for human life…done from ill will, hatred, spite or an evil intent”

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Why do we study jury decision making?

Trayvon Martin Trial

Manslaughter

“George Zimmerman cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide”

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Why do we study jury decision making?

Trayvon Martin Trial

Not guilty

Legal force is not illegal

If George Zimmerman was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Juries: An Unusual Group

No established relationships

No relationship after trial

Passive spectators in court

Can’t question at trial

Can’t discuss with friends/family or each other until deliberation

Must absorb and store information

Suspend judgment until all evidence submitted

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Process of Jury Decision Making

Models of decision making

Mathematical model

Mental meter moves toward guilty or not guilty verdict based on weight of evidence

Story model

Stories constructed to make sense of evidence at trial

Useful in describing decision making in rape, murder, and sexual harassment trials

Newer story model

Jurors create and decide between prosecution and defense narratives of the crime; individual juror narratives sampled by group to construct shared story (during jury deliberation)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

A trial is an elaborate, highly structured method of providing a jury (or a judge) with the information necessary to make a considered, impartial decision.

Process of Jury Decision-Making

Mathematical Model

−Weigh evidence and adjust tendency to vote guilty or not as evidence is received

−Frozen scale?

Story Model

Construct stories to make sense of evidence

Learn potential verdicts

Select the verdict that best fits the story

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

12 Angry Men (1957)

What happens in the room?

How does the jury deliberate (discuss) the case/verdict?

What roles do different jurors play in this process?

What psychological factors impacted jury deliberation?

Personal bias?

Age?

Socioeconomic status?

Gender?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Process of Jury Decision Making

Impact of evidence

Strength of evidence is best predictor of jury verdict

Severity of the charge against the defendant, negative pretrial publicity, and trial complexity are modestly correlated with verdicts

Liberation hypothesis

In most cases, verdicts are determined by strength of evidence because it is compelling

When evidence is ambiguous or close, jurors are liberated from constraints of evidence

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Sources of Biasing Information

Pretrial publicity

Defendant characteristics

Inadmissible evidence

Complex evidence

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

1. Pretrial Publicity

Pro-prosecution slant to most coverage

Often includes information not admissible at trial

People are more likely to presume defendant is guilty when exposed to…

More news coverage of crime

Source monitoring errors

Emotionally arousing PTP

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

1. Pretrial Publicity

Possible solutions

Delay (between exposure to PTP and trial)

Only works for factual not emotional publicity

Judges’ instructions to disregard

Ineffective

Change of venue

Most effective remedy

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Change of Venue

Moving the trial to a new geographical location without widespread media attention

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Effects of Biasing Information

Defendant characteristics affecting judgment

Wealth, social status, gender, attractiveness do not affect in straightforward way

Propensity of criminal behavior, gang membership do influence

Race interacts with jurors in racially charged trial

Defendant–victim moral character comparison

Injured defendant

Individual versus corporation

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Pretrial publicity affecting judgment

Negative publicity affects judgment

Change of venue can be a remedy

Effects of Biasing Information

Inadmissible evidence affecting judgment

Sustained objections

Ironic processes

Reactance theory

Impeachment evidence

Complex/technical evidence

Credentials and presentation by expert witness

No overpowering impact on jurors

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Looking across studies, it is clear that jurors are reluctant to disregard inadmissible evidence if they consider it useful for reaching a verdict, and a judge’s instructions do not neutralize the impact of stricken evidence.

Jurors are especially likely to make use of such evidence if the judge gives no reason for ignoring the evidence or rejects the evidence due to an unexplained technicality.

Complex Evidence

Complex scientific and technical evidence

Often presented by expert witness

Jurors may use peripheral cues to weight expert testimony

Dual processing models

Do jurors blindly accept expert testimony?

Not really

Hired guns?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Group Dynamics of Jury Deliberations

Jurors

No established relationships; no relationship after trial

Passive spectators in court; cannot question at trial

Cannot discuss with friends/family

Must absorb and store information

Suspend judgment until all evidence submitted

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Research

University of Chicago Jury Project of 1950s: Data never analyzed; resulted in statutes banning observation or recording jury deliberations

As result, research on jury deliberation comes from mock juries

Group Dynamics of Jury Deliberations

Diversity and deliberation

Sommers (2006): Demonstrates impact of jury diversity on decisions

White jurors remembered more factual information, discussed more information during deliberation, voted to treat defendant with greater leniency in diverse juries

Presence of black jurors (in cases with black defendant) makes defendant race more salient and causes white jurors to more carefully process information and to consider racial biases

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Sommers (2006): One of first experimental demonstrations of impact of jury diversity on decisions, racially homogeneous mock juries or racially heterogeneous mock juries evaluated a rape case with a black defendant

Diversity along any of several dimensions—race, gender, experience, expertise, culture—enables groups to make better decisions and to find more creative solutions to problems.

Group anxiety and conflict may be increased.

Group Dynamics of Jury Deliberations

Strong jurors and power of majority

Key jurors or jury leaders: Disproportionate influence on deliberation process

Foreperson: Jury leader; moderator

Leniency bias: Acquittal more likely with tied or close votes

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Lawyers attempt to predict group dynamics during voir dire.

Hot Topic: The Effects of Technology in and out of the Courtroom

In the courtroom

Computer animations or video simulations of how litigated events may have occurred

PowerPoint presentations

Brain-scan images and videos produced using MRIs and fMRIs

Juror access to Internet during trial

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Concerns

Key arguments using PowerPoint rated more persuasive and received better outcomes

Unequal access to expensive technologies may create unfair advantage

Mobile devices may undermine trial process

Group Dynamics of Jury Deliberations

Three stages of deliberation

Orientation: Verdict- and evidence-driven style

Open conflict: Informational and normative influence

Reconciliation: Attempt to be satisfied with verdict

Hung juries (i.e., those that cannot reach a unanimous verdict) never make it through the reconciliation phase

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Stages of Deliberation

Orientation

Elect a foreperson

Discuss procedures

Raise general issues

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Orientation Phase

Verdict-Driven Style

30% of juries vote at the beginning

Then orient discussion around verdict options

Sort evidence into supporting conviction or acquittal

Evidence-Driven Style

First systematically discuss evidence

Then vote for the first time

Which style produces more elaborate and productive discussions?

Which style spends more time discussing the evidence?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Stages of Deliberation

Orientation

Elect a foreperson

Discuss procedures

Raise general issues

Open conflict

Contentious – differences of opinion become apparent

Persuasion occurs

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Group Dynamics of Jury Deliberations

Deliberations in 12-person jury

Discussion of evidence: 70–75% deliberation time

Discussion of law and judge’s instructions: 20% deliberation time

Three most vocal jurors tend to use up about 50% of deliberation time; three least vocal use very little time

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Research suggests that juries spend very little time on irrelevant or trivial details.

Jurors appear to take their job very seriously and make a sincere effort to follow the rules, as they understand them.

Group Dynamics of Jury Deliberations

Group size is determinant of group dynamics

Williams v. Florida (1970)

Ballew v. Georgia (1978)

Larger juries

Deliberate and argue more

Recall evidence more accurately

Agree more on group performance

Provide broader representation of demographic groups

Are more likely to match larger community opinions

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

English Law: Dictated 12-person jury

Williams v. Florida (1970) (U.S. Supreme Court): Constitutionally permissible to reduce jury size to 6

Ballew v. Georgia (1978) (U.S. Supreme Court): Constitutional minimun set at 6

Group Dynamics of Jury Deliberations

Decision rules (unanimous or majority rule)

Unanimous verdict established in fourteenth-century Britain

Unanimous verdicts more thorough, but more often hung juries

Nonunanimous verdict established in 1970s in some situations

Nonunanimous verdicts save time and reduce hung juries

Dynamite charge (Allen charge or shotgun instruction) to hung jury in effort to break deadlock

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Deliberation: Decision Rule

Unanimous verdicts required in certain kinds of cases

Capital offenses

6-person juries

Felony criminal cases in 44 states

24 states require for misdemeanor

Results in more hung juries

» Majority rule

Save time

Less thorough, less discussion, and more time spent voting

Deliberations come to a halt as soon as majority reached

Fewer hung juries

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

What happens if the jury is deadlocked?

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ith “d

r a mistr

dynamit cha ge/shotgun instruction

jury to reexamine views and cons h othe s argume nvinced”

ch shows:

ors feel coerced

May think a hung jury is not an option

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Nullification

Juries have the power to “nullify” law

Use reasoning that ignores, disregards, or goes beyond the law

Why are they allowed to do this?

Expected to represent the moral conscience of community

Can be double-edged sword

Refusing to enforce laws

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Nullification

Jurors are almost never told about nullification powers

When told:

Treat sympathetic defendants more leniently

Treat unsympathetic defendants more harshly

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Nullification

Jury nullification

Can reject/nullify law

Represent moral conscience of community

Can be double-edged sword

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Consider This

Sometimes what appears to be disregard for the law may actually be the result of an inability to understand the law.

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Criticisms of Jury System

Are juries ignorant, lazy, governed by passion vs. reason, incapable of understanding the law?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Reform

Moderate Reformers – make a good system better

Potential methods for reform:

Simplify instructions to jury

Provide pre-instructions to jury

Allow jury discussion during trial

Allow jurors to take notes

Allow jurors to ask questions during trial

Radical Reformers – overhaul or abandon system

Potential method for reform:

Replace juries with judges

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Reform

Research indicates jurors:

Rely on the evidence presented at trial to reach a verdict decision

Take their job seriously

Conduct their deliberations in a serious way

Criminal cases

No increase in verdicts favoring defendants

Civil cases

No trend favoring plaintiffs or dramatic increases in median compensatory damage awards

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury Reform

Methods

Simplify instructions to jury

Provide preinstructions to jury before trial begins

Allow jury discussion during trial

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Simplifying Instructions

Judge informs regarding

Available verdicts

Standard of proof required

Research consistently demonstrates that jurors struggle to understand the instructions

Vague legal concepts, use of legal jargon

Complex and convoluted style

Legally precise but often incomprehensible to jurors

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Simplifying Instructions

“One test that is helpful in determining whether or not a person was negligent is to ask and answer whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured as a result of his action or inaction. If such a result from certain conduct would be foreseeable by a person of ordinary prudence with like knowledge and in like situation, and if the conduct reasonably could be avoided, then not to avoid it would be negligence.”

??? AKA defining “negligence” in civil cases

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Better?

In order to decide whether or not the defendant was negligent, there is a test you can use. Consider how a reasonably careful person would have acted in the same situation. Specifically, in order to find the defendant negligent, you would have to answer “yes” to the following two questions:

Would a reasonably careful person have realized in advance that someone might be injured as a result of the defendant’s conduct?

Could a reasonably careful person have avoided behaving as the defendant did?

If your answer to both questions is “yes”, then the defendant is negligent

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

A Flow Chart for Finding Self-Defense

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Pre-instructions

Instructions usually come after the trial is over

Timing matters!

Pre-instructions provide jurors with a schema

Helps organize information as it is presented at trial

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Allowing Jury Discussion During Trial

Could allow jurors to correct misunderstandings, improve recall, and make deliberations more efficient

Could allow jurors to react premature verdicts/close off debate

Arizona tested this

Could only discuss in jury room during trial recess as long as all jurors were present

Reserve all judgment until deliberations

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Allowing Jury Discussion During Trial

Arizona study found support for this innovation:

Gathered info from one another, remembered details, sought clarification, etc

Negative side of this innovation:

Violated rules of the court (discussed without all present, discussed verdict)

“No discuss” group involved some discussion!

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Judges Compared to Juries

Judges should be impartial and bias-free

Research

Judges are influenced by bias and emotions as much as jurors

Judges have limited awareness of own decision-making process

Judges generally rely on quick heuristics; especially workload management

Safeguards are in place to neutralize bias of jurors, but not for judges

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Judges Compared to Juries

Agreement between juries and judges

High agreement rate (74% criminal; 78% civil)

Understanding of specialized technical or expert testimony

Disagreement between juries and judges

More judge–jury disagreement in close cases

Juries more lenient in close cases

Judges rule for plaintiffs in medical procedure injury cases

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury–Judge Agreement and Disagreement Rates Averaged Across Studies

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Advantages of the Jury System

Juries allow us to accept unpopular decisions

Judges deemed unfair

Judges are more bound to law

Juries allow community standards to dictate verdicts in a way that judges can’t

Judges’ decisions can set precedent and weaken laws

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Final Thoughts

Jurors do a difficult job under difficult circumstances and can allow empathy and community standards to dictate their verdicts in ways that judges cannot.

Judges’ decisions are shaped by a different set of biases, and their training and experience render them unable to represent the conscience of the community.

Juries

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