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Chapter 12:
Preparing for Trial

WHO SHOULD DECIDE: JURY OR JUDGE?

  • Defendants in criminal trials ordinarily have a jury trial, but if the opposing party consents they can choose to have the verdict decided by a judge (i.e., a bench trial).
  • Kalven and Zeisel (1966) asked each district court judge in the United States to provide information about recent jury trials over which he or she had presided.
  • In criminal and civil trials, the judges reported that their verdict would have been the same as the jury’s actual verdict in 75% of the cases.

HOW JUDGES AND JURIES COMPARE

  • In only 19.5% of the criminal cases did the jury return a guilty verdict where the judge would have ruled not guilty, or vice versa (approx. 5% of cases resulted in a hung jury).
  • In most of the discrepant decisions, the jury was more lenient than the judge.
  • The level of agreement between the jury and the judge was also high in civil trials.

HOW JUDGES AND JURIES COMPARE

  • What accounts for the discrepancies between judge and jury?
  • Kalven and Zeisel attempted to answer these questions by delving more deeply into the judges’ reactions to the cases and comparing them to the juries’ verdicts.

DETERMINANTS OF DISCREPANCIES

  • A few discrepancies apparently resulted from facts that one party knew but the other did not.
  • In some trials, the jury was swayed by the apparent superiority of one lawyer.
  • About half of the disagreements involved jury sentiments (situations in which, in the judge’s view, the jury verdict was determined by factors beyond the evidence and the law).

DETERMINANTS OF DISCREPANCIES

  • Jurors’ sentiments play a role in decision making when:
  • 1) jurors believe that the “crime” is too trivial for the expected punishment
  • 2) jurors believe that the defendant has already been sufficiently sanctioned
  • 3) jurors believe that a law is unfair
  • 4) jurors see a crime as minor or victimless

DETERMINANTS OF DISCREPANCIES

  • A Critique of the Kalven and Zeisel Study
  • Judges were permitted to choose which trial or trials they reported.
  • Only approximately 500/3500 judges provided responses.
  • Juries have changed in many ways since this study was conducted (e.g., increased diversity).
  • We have only the judge’s attribution of what the jurors’ feelings and sentiments were.

DETERMINANTS OF DISCREPANCIES

  • Updating Criminal Case Comparisons.
  • Eisenberg et al. (2005) collected data from jurors, judges, and attorneys in more than 350 trials.
  • The rate of jury/judge agreement was 70%, and when there was disagreement, juries were more lenient (very similar to Kalven and Zeisel’s work).

SOME NEW DATA ON JUDGE/JURY DIFFERENCES

  • Circumstances in which jurors were more likely than judges to return “not guilty” verdicts:
  • Jurors were more impressed than judges by the presence of a third-party defense witness (someone other than the defendant).
  • Jurors were impressed by the absence of a prior criminal record.

SOME NEW DATA ON JUDGE/JURY DIFFERENCES

  • Clermont and Eisenberg (1992) examined plaintiff win rates in federal cases tried before either juries or judges from 1979 to 1989. Differences emerged in products liability and medical malpractice cases only--plaintiffs had more success with judges (48% win rate) than with juries (28% win rate).

UPDATING CIVIL CASE COMPARISONS

  • Researchers attributed the differences in civil cases to selection effects--the selection of cases tried by juries differed from those tried by judges. Defense lawyers tended to settle cases in which the plaintiff had a strong case, typically leaving juries to decide relatively weaker cases for the plaintiff—thus they appear to make different decisions than judges.

UPDATING CIVIL CASE COMPARISONS

  • Another question is whether jury awards for punitive damages are different from awards assessed by judges, and whether the two groups differ on the reasons of those awards.

UPDATING CIVIL CASE COMPARISONS

  • Eisenberg et al. (2002) found that judges and juries did not differ substantially; they awarded punitive damages of about the same size, although the range of the jury awards was somewhat greater than that of the judicial awards.
  • These results call into question the notion that juries are unable to set reasonable limits on punitive damages.

UPDATING CIVIL CASE COMPARISONS

  • Jury selection begins as officials assemble a panel, or venire, of prospective jurors.
  • Jury selection must neither systematically eliminate nor underrepresent any subgroups of the population.

FORMING A PANEL, OR VENIRE

  • To encourage representativeness, U.S. Supreme Court cases since 1880 have forbidden systematic or intentional exclusion of religious, racial, and other cognizable groups from jury panels.
  • But historically most venires had middle-aged, well-educated white men overrepresented.

FORMING A PANEL, OR VENIRE

  • The U.S. Supreme Court and Congress established the requirement that the pool from which the jury is selected must be a representative cross-section of the community. Two Reasons:
  • 1) This would result in juries that are more heterogeneous. Advantages?
  • Minority members might discourage majority members from expressing prejudice.
  • Heterogeneous juries would be better fact finders (could examine facts from different points of view).

JUDICIAL AND LEGISLATIVE REFORMS

  • 2) Jury representativeness would give the appearance of legitimacy.
  • Juries should reflect the standards of the community. When certain components of the community are systematically excluded from jury service, the community is likely to reject both the legal process and its outcomes as invalid.

JUDICIAL AND LEGISLATIVE REFORMS

  • How do courts go about forming the venire in order to make the jury representative?
  • For many years, voter registration lists were used as the primary source for jury pool selection, but such lists underrepresent segments of the community.
  • Recently, other sources such as lists of licensed drivers have supplemented voter lists as a source of prospective jurors.

JUDICIAL AND LEGISLATIVE REFORMS

  • From those persons who are eligible for jury service, members of the venire are randomly selected and summoned to appear at the courthouse for jury service.
  • But as many as half of qualified jurors ignore the jury summons, even though doing so constitutes a violation of law.
  • I have actually seen people charged with the crime of Failure to Report for Jury Duty. They are given an opportunity to report on the next Jury Trial Date or face a fine.

JUDICIAL AND LEGISLATIVE REFORMS

  • In an effort to determine if prospective jurors are prejudiced, the judge and/or attorneys question prospective jurors in a procedure called voir dire.

THE VOIR DIRE PROCESS

  • Who asks the questions, what questions are asked and how they are phrased, how long the questioning goes on, and whether the questions are posed to individual jurors or to a group are all matters left to judges’ discretion.

THE VOIR DIRE PROCESS

  • A limited form of voir dire involves yes-or-no questions asked by the judge and answered by the group, not individuals.
  • Yes-or-no questions offer little insight into jurors’ beliefs and attitudes.
  • This form of questioning requires jurors to identify and report their biases. Many may be unaware of their biases and/or hesitant to publicly state them. (The social desirability effect may be a factor here.)

THE VOIR DIRE PROCESS

  • Extended voir dire in which the judge and attorneys ask open-ended questions and question jurors individually has advantages in uncovering biases.
  • Open-ended questions encourage jurors to talk more about their feelings and experiences.
  • Individual questioning can result in disclosures that jurors might not otherwise offer.

THE VOIR DIRE PROCESS

  • But extended voir dire can take a long time, so most courts tend not to favor it.
  • Typical voir dire procedures involve a compromise between the limited and extended versions; both the attorneys and the judge pose questions to a group of prospective jurors, and then they ask brief follow-up questions of selected individuals.

THE VOIR DIRE PROCESS

Challenges for Cause and Peremptory Challenges. These are two mechanisms by which panelists are excluded from serving on a jury.

Challenge for Cause: In any trial, each side can claim that particular jurors should be excluded because they are biased (e.g., have a relationship with one of the parties).

Each side has an unlimited number of challenges for cause.

THE VOIR DIRE PROCESS

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Peremptory Challenge: Each side may also exclude a designated number of prospective jurors without a reason stated.

The number of peremptory challenges for each side varies among jurisdictions, the type of case and the seriousness of the charge.

PEREMPTORY CHALLENGES

  • Peremptory challenges have multiple purposes:
  • 1) Peremptory challenges allow attorneys to challenge potential jurors who they believe will be unsympathetic to their client, for whatever reason.

2) Peremptory challenges allow those in a lawsuit to play a role in selecting the people who decide the outcome, thus they may be more satisfied with that outcome.

3) Peremptory challenges also allow the attorney to begin to indoctrinate prospective jurors and influence those who ultimately will make up the jury.

PEREMPTORY CHALLENGES

  • Peremptory Challenges: No Exclusion on Account of Race or Gender. The Supreme Court has ruled that peremptory challenges may not be based solely on a juror’s race or gender.
  • Batson v. Kentucky (1986): no exclusion based solely on race.

PEREMPTORY CHALLENGES

  • When a defense attorney believes that the prosecution’s peremptory challenge was motivated by racial factors, he or she initiates a so-called “Batson challenge,” and the judge then asks the prosecutor for an explanation.
  • The prosecutor typically advances a race-neutral explanation for the challenge.
  • The judge then determines whether the explanation is genuine.

PEREMPTORY CHALLENGES

  • In 1994 the Supreme Court extended the logic of Batson to peremptory challenges based on gender (J. E. B. v. Alabama ex rel. T. B., 1994).

PEREMPTORY CHALLENGES

Lawyers’ Theories: Stereotypes in Search of Success. Trial lawyers often apply their implicit personality theories to jury selection.

An implicit personality theory is a person’s organized network of preconceptions about how certain attributes are related to one another and to behavior.

Implicit personality theories may be mistaken.

THE VOIR DIRE PROCESS

  • Another common strategy is based on the assumption that jurors who are demographically or socially similar to a litigant will be predisposed to favor that litigant—the similarity–leniency hypothesis.
  • Alternatively the black sheep effect may apply: People may sanction those who reflect negatively on and embarrass the in-group.

THE VOIR DIRE PROCESS

  • Do Jurors’ Demographic Characteristics Predict the Verdicts? Many attorneys actively select (or deselect) jurors on the basis of demographic information.
  • Demographic characteristics of jurors and juries are sometimes related to their verdicts, however, the correlations are weak and inconsistent from one type of trial to another.

THE VOIR DIRE PROCESS

  • The relationship between demographic characteristics and verdicts also depends on the type of case.
  • For example, in trials that involve issues such as child sexual assault, domestic violence, and sexual harassment, women are more likely than men to convict and in civil trials, women are more inclined than men to perceive that sexual harassment has occurred.

THE VOIR DIRE PROCESS

  • Jurors’ Personality and Attitudinal Characteristics as Predictors of Verdicts. Research suggests that enduring aspects of one’s personality (e.g., Authoritarianism, the Need for Cognition, and Extraversion) and attitudes may influence courtroom decisions, though usually only to a modest degree.

THE VOIR DIRE PROCESS

  • Attorney Effectiveness in Voir Dire. Attorneys may overvalue the importance of demographic variables and undervalue the importance of personality variables when making peremptory challenges.
  • Social scientists are skeptical of how much lawyers can accomplish in voir dire.
  • Many lawyers are skeptical of how much they can actually accomplish in voir dire. I describe it as part guesswork, part superstition and mostly voodoo.

THE VOIR DIRE PROCESS

  • Scientific Jury Selection: Does It Work Any Better? Consultants use empirically based procedures, including focus groups, shadow juries, and surveys of the community, to identify desirable and undesirable jurors. This collection of techniques is known as scientific jury selection.

THE VOIR DIRE PROCESS

  • Scientific jury selection has generated controversy. Some claim that it favors the wealthy and creates a perception that the system is rigged. Others claim that it is ineffective.

SCIENTIFIC JURY SELECTION

  • How effective are trial consultants? The success rate may have been inflated by the following factors:
  • 1) Many of the more widely discussed cases involved weak or controversial evidence against defendants and,
  • 2) attorneys who made the extra effort to enlist jury consultation resources may also have been more diligent and thorough in other areas of their case preparation.

SCIENTIFIC JURY SELECTION

  • Horowitz (1980) determined that traditional methods were superior in cases in which there were weak links between demographic, personality and attitudinal factors (e.g., in a murder case), whereas scientific methods were superior when those associations were strong (e.g., in a drug sale case).

SCIENTIFIC JURY SELECTION

  • Perhaps trial consultants are most effective in cases in which jurors’ attitudes are particularly important.

In sum, many agree that in most cases the evidence is more important than jurors’ attitudes or demographic characteristics, and that scientific jury selection may be of limited value in cases where the evidence is unambiguous.

SCIENTIFIC JURY SELECTION

  • Conflicting Rights
  • Pretrial publicity highlights tensions between two rights protected by the U.S. Constitution:
  • 1) freedom of the press as guaranteed by the First Amendment, and
  • 2) the right to a speedy and public trial before an impartial jury, as guaranteed by the Sixth Amendment.
  • These two rights clash when the press publishes information that threatens a defendant’s right to a trial by impartial jurors.

PRETRIAL PUBLICITY

  • Legal Rulings on Pretrial Publicity
  • Rideau v. Louisiana (1963): the Court decided that exposure to news with information strongly pointing to the defendant’s guilt was a violation of due process.
  • Mu’Min v. Virginia, 1991: the Court held that if prospective jurors claim they can be impartial, defendants do not have a constitutional right to ask them about the specifics of their exposure to pretrial publicity.

CONFLICTING RIGHTS

  • Two types of studies:
  • 1) In experimental studies, participants are either exposed or not exposed to some form of publicity and then are asked to assume the role of jurors in a simulated trial.
  • 2) In field studies, community-respondents are surveyed to assess the effects of naturally-occurring publicity about an actual case.

EFFECTS OF PRETRIAL PUBLICITY

  • Conclusion from both types of studies? Jurors exposed to pretrial publicity are more likely than those not exposed to favor the prosecution and prejudge the defendant as guilty.

EFFECTS OF PRETRIAL PUBLICITY

  • Experimental Studies of the Effects of Pretrial Publicity. Because all aspects of the trial except the publicity are held constant, scientists can assess whether variations in publicity cause differences in responses.

EFFECTS OF PRETRIAL PUBLICITY

  • These studies generally show that pretrial publicity affects jurors’ evaluations of the defendant’s character and criminality, the extent to which they like or sympathize with the defendant, their pretrial sentiments about guilt, and their final verdicts.

EFFECTS OF PRETRIAL PUBLICITY

  • Why do these effects occur?
  • 1) pretrial publicity may bias jurors’ interpretations of the evidence to which they are exposed at trial.
  • 2) jurors exposed to publicity come to believe, wrongly, that the pretrial information was presented as part of the trial evidence. This is a source monitoring error.
  • 3) pretrial publicity often elicits emotional responses which are associated with jurors’ verdicts.

EFFECTS OF PRETRIAL PUBLICITY

  • Presentation of publicity via television has been found to have a greater biasing impact than information presented in print, but the combined effects of TV and newspaper publicity had the greatest impact.
  • Participants are generally unaware that their opinions had been biased by this material.

EFFECTS OF PRETRIAL PUBLICITY

  • Specific pretrial publicity: case-specific information made available prior to trial can affect the sentiments of jurors in that trial.

EFFECTS OF PRETRIAL PUBLICITY

  • Jurors can also be influenced by generic prejudice: prejudice arising from media coverage of issues not specifically related to a particular case but thematically relevant to the issues at hand (e.g., deviant sexual behavior).
  • Generic prejudice may be more problematic than specific pretrial publicity.

EFFECTS OF PRETRIAL PUBLICITY

  • Field Studies of the Effects of Naturally Occurring Publicity. Researchers have found that persons exposed to pretrial publicity:
  • Possess more knowledge about the events in question,
  • Are more likely to have prejudged the case, and
  • Are more knowledgeable about incriminating facts that would be inadmissible at the trial.

EFFECTS OF PRETRIAL PUBLICITY

  • Strengths? They use large and representative samples of prospective jurors, and they rely on naturally occurring publicity about actual cases.
  • Weakness? The data are correlational in nature.

EFFECTS OF PRETRIAL PUBLICITY

  • Using Multiple Methods to Assess Effects of Pretrial Publicity. Daftary-Kapur (2009) found that regardless of whether exposure was experimentally manipulated or naturally occurring, those who had read pro-prosecution versus pro-defense articles were more familiar with the case and more likely to judge the defendants guilty prior to trial.

EFFECTS OF PRETRIAL PUBLICITY

  • Exposure occurred 8 weeks before rendered verdicts, suggesting that the effects of pretrial publicity may be long-lived.

EFFECTS OF PRETRIAL PUBLICITY

  • 1. Continuance (postpone trial).
  • 2. Expanded voir dire (most popular method).
  • 3. Judicial instructions.
  • (Unfortunately, research suggests that the three above techniques are largely ineffective.)
  • 4. Change of venue (probably most effective).

REMEDIES FOR THE EFFECTS OF PRETRIAL PUBLICITY