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Plea Bargaining, Jury Selection, and Trial Procedure

Chapter 9

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Plea Bargaining, Jury Selection, and Trial Procedure

In this chapter

The Hidden, Consequential World of Plea Bargaining

Jury Selection

Assembling a Jury: Pools, Venires, and Voir Dire

Using Stereotypes and Science to Select Jurors

Juror Characteristics and Attitudes as Predictors of Verdict

Pretrial Publicity as a Source of Bias

An Overview of Trial Procedure

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Hidden, Consequential World of Plea Bargaining

More than 90% of felony cases in state and federal courts are disposed of through plea bargaining.

No U.S. Constitution guarantee about plea bargaining

Kinds of pleas:

Standard guilty plea, nolo contendere, Alford plea

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The right to a trial by jury is one of the foundational mechanisms for fulfilling the ideals set forth in the U.S. Constitution.

Sixth Amendment to the U.S. Constitution guarantees the right to a “speedy and public trial” by an “impartial jury.”

Guilty pleas have been seen as a type of voluntary confession given by guilty defendants.

No U.S. Constitution guarantee about plea bargaining.

Largely unregulated, hidden from public view, and not recorded

Right to a trial, to confront and cross-examine accusers, and right to present evidence in one’s defense is forfeited; arraignment

Plea Bargaining in Theory and Practice (part 1)

Systems

American Bar Association: Plea bargaining creates system efficiencies

U.S. Supreme Court: Guilty plea is grave and solemn act that involves waiver of constitutional rights

Voluntariness and knowingness assessment

Competence evaluation

Written tender-of-plea form and oral judicial plea colloquy

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Plea bargaining has increased dramatically over the past several decades for two major reasons: time and money.

Tender-of-plea form is a sort of written contract signed by the defendant, typically containing stipulations like these: (1) the defendant enters the plea voluntarily and not under any threat or promise; (2) the defendant understands the charges and the plea that the defendant is entering to those charges; (3) the defendant understands the consequences of the plea being entered.

Judicial plea colloquy usually involves a judge reading a series of statements and conditions to a defendant in open court.

Plea Bargaining in Theory and Practice (part 2)

Plea hearings in actual practice

Perfunctory and tactical

Power disparities between plea-negotiating parties (prosecutor has more power)

Enhancements (overcharging) and information advantages

Often limited client–public defender time together

Consequential decisions required under conditions of high uncertainty

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

No one knows for certain how many innocent defendants accept false guilty pleas.

A study of felony defendants who accepted pleas in New York City found that 23% claimed to be completely innocent (Zottoli et al., 2016).

Analyses of wrongful convictions indicate that about 11% involve a false plea of guilty (Cooper et al., 2019).

Because many claimed wrongful convictions are never confirmed, this number likely underestimates the scale of the problem.

Plea Bargaining and Vulnerable Defendants

Cognitive impairment and mental illness are risk factors for false guilty pleas.

Juveniles

Less able to understand plea-bargaining process

Less able to consider factors relevant to acceptance of plea bargain

Less able to explain rationale for decision to accept plea bargain

More likely than adults to accept plea bargain when they are innocent of crime and to be influenced by attorney advice

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Limited direct research on how intellectually impaired defendants or those suffering from mental illness respond to the process of plea bargaining.

Assembling a Jury

History

Early juries were not neutral; modern juries are intended to be impartial

Sixth Amendment: Right to trial by impartial juries for criminal cases

Seventh Amendment: Right to trial by impartial juries for most civil cases

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Assembling a Jury

Jury pool

Jury Selection and Service Act (1968) and U.S. Supreme Court in Taylor v. Louisiana (1975)

Jurors must be fair cross-section of community

Potential jurors are selected primarily from voter registration list

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Jury selection is actually a process of deselection. At every step in the long process of assembling a jury, some potential jurors are dismissed or excluded.

Jury “Deselection”

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Assembling a Jury

From jury pool to venire

Full accounting of potential jurors often not achieved (first layer of bias)

Random sample of potential jurors in pool summoned to appear (venire)

One-day or one trial system widely adopted

Approximately 20% are no-shows

Variety of excuses eliminate some (deselection)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Assembling a Jury

Voir dire

Attorneys and judge ask potential jurors questions; more limited scope in federal courts

System used to educate and ask commitment from jurors

Lawyers exercise challenges: sometimes used to stack jury

Challenge for cause

Peremptory challenge

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Underlying purpose of voir dire is to create a fair and impartial jury by allowing both sides to eliminate people who—because of their job, life experiences, or attitudes—might be unable to reach an unbiased verdict.

Assembling a Jury

Cognizable groups

Certain group members are recognized as sharing a distinguishing characteristic or attitude

Peremptory challenges cannot be used to eliminate members of some cognizable groups (Batson v. Kentucky, 1986), but can be used to strike jurors because of religiously based beliefs (United States v. DeJesus, 2003)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Assembling a Jury

Cognizable groups (continued)

Problem of racially biased jury selection has not been solved.

DeCamp and DeCamp (2020): Black potential jurors were 4.51 times more likely than white potential jurors to be rejected by prosecutors; defense attorneys were 4.21 times more likely to exclude white potential jurors

Foster v. Chatman (2016): Prosecutors violated constitution by using all challenges to remove black jurors

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Representativeness in Juries

Can any group of 12 jurors (or fewer) be fully representative of a much larger community?

Can any one person be expected to represent the views of a particular constituency?

What do you think?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Steps in the Process of Jury Selection: A Quick Review

Jury pool

All mentally competent, English-speaking, adult U.S. citizens who have not been convicted of a felony and who are living in the relevant jurisdiction

Sample

Group of eligible people summoned to report for jury duty

Venire

People who actually show up at the courthouse for jury duty

Voir dire

Stage at which jurors can be challenged and removed from the venire

Jury

Group that survives voir dire process

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Using Stereotypes and Science to Select Jurors

Determining which potential jurors least likely to support a side of a case

Physical characteristics or first impressions

Information from written questionnaires

Social media analysis

Information from voir dire procedures

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Legal Spotlight: Using Social Media to Select Jurors

Is it legal for lawyers to view jurors’ online profiles and postings?

Guest v. Leis (2001) and Independent Newspapers, Inc. v. Brodie (2009)

Personal Internet postings are not private

American Bar Association social media guidelines (Littlefield, 2014)

Juror Internet presence may be investigated in advance or during trial

Direct online communication and deceptive information-gathering behavior with jurors is prohibited

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Voir Dire Procedures: Limited Versus Expansive

Traditional, Limited Voir Dire

No pretrial juror questionnaire

No social media analysis

Limited number of questions

Closed-ended questions that permit only “yes” or “no” answers

Group questioning of prospective jurors (open voir dire)

Judge alone conducts voir dire

Expansive Voir Dire

Pretrial juror questionnaire

Social media analysis

Larger number of questions

Combination of closed-ended and open-ended questions

Individual, sequestered voir dire

Judge and lawyers both participate in voir dire

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Information from Hans and Jehle (2003).

Using Stereotypes and Science to Select Jurors

The use of trial consultants

Jury consultants assist in jury selection based on research conducted by social scientists

Data-driven approach

Use of mock jurors; shadow jury

Analyze supplemental juror questionnaires

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Using Stereotypes and Science to Select Jurors

Does trial consulting work?

Differences in lawyer effectiveness in jury selection favorable to case

Contribution may be greater when case is close or lawyer is less skilled

Some evidence of modest improvement through case-specific attitude measurement

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Juror selection is sometimes based on groundless stereotypes.

Trial consultants

Usually hired by companies being sued for large sums of money

May set up mock jury; design and analyze supplemental juror questionnaires; employ shadow jury

Consultant data-driven approach before and during trial

Eligible group selected, fill out extensive questionnaire, and serve as mock jury

Mock juror reactions and interpretations analyzed for juror and case arguments impact

Relationship between juror characteristics and responses to the evidence in a particular case

Using Stereotypes and Science to Select Jurors

Scientific jury selection

Can effective lawyers remove potential jurors who do not support their side of the case?

Impact of voir dire on jury composition may be decisive when lawyer skills are not matched

1972 “Harrisburg Seven” trial; mistrial

1995 O.J. Simpson murder trial; not guilty verdict

May be most effective in subset of cases

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Hot Topic: Jury Consulting and the Role of Money at Trial

Is it ethical?

Does it promote or prevent justice?

Is it skewed in favor of the wealthy?

What do you think?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Juror Characteristics and Attitudes

Juror characteristics and verdict prediction

In general, association is modest or unreliable

Gender and nature of crime

Individual differences

General personality tendencies

Modestly associated characteristics

Locus of control

Belief in a just world

Authoritarianism

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Overall, the persuasiveness of the evidence presented at trial is the best predictor of whether a defendant will be convicted or acquitted.

Juror Characteristics and Attitudes

Attitudes About the Legal System

Case-specific attitudes

Moderately predictive of verdicts

General research tools

Revised Legal Attitudes Questionnaire (RLAQ)

Juror Bias Scale (JBS)

Pretrial Juror Attitude Questionnaire (PJAQ)

Civil trial specific scale

Civil Trial Bias Scale

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Juror Characteristics and Attitudes

Defendant–Juror Similarity

Similarity-leniency hypothesis

Similarity produces leniency only when evidence is inconclusive and similar jurors outnumber dissimilar jurors

Similarity may cause jurors to be harsher in defendant judgment

Investigations have only addressed race and gender similarity

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Montoya and Horton (2013)

Similarity to defendants enhances juror empathy and identification

Kerr and colleagues (1995)

When in racial minority, jurors disassociate and distance themselves from defendant to maintain favorable view of own group

Sommers (2006)

Diverse juries process evidence more thoroughly

Huntley and Costanzo (2003)

Females more receptive to plaintiff-oriented account of events

Pretrial Publicity as a Source of Bias

Sometimes potential source of prejudice; often pro-prosecution coverage slant

Often contains information inadmissible as evidence during trial

May be misremembered or confused by jurors as presented in or remembered during trial

May create immunity to judge’s instruction to disregard

Most effectively remedied by change of venue

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Several studies show that people exposed to more news coverage of a crime are significantly more likely to presume that the defendant is guilty.

The biasing effect of pretrial publicity is especially strong when news coverage is emotionally arousing (e.g., focusing on the brutal nature of a murder) and when television (as opposed to print media) is the source of the information.

Overview of Trial Procedure

After jury selection

Trial begins

Opening statements by opposing attorneys

Prosecutors and plaintiffs go first: burden of proof

Guilty beyond reasonable doubt

Burdens of proof/preponderance of evidence

Witnesses called and questioned (redirect examination and recross examination)

Closing arguments (summation) made by each attorney

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

One of the Most Common Courtroom Layouts

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Good to Remember . . .

Juries are the most direct means of making the legal system reflect the views and values of the community.

Juries

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