Understanding World Jury Systems Through Social Psychological Research

Martin F. Kaplan, Ana M. Martín, Martin F. Kaplan, Ana M. Martín

• Publisher: Psychology Press
• Year: 2013
• Print ISBN:
  9781841694214
• eBook ISBN:
  9781134953059
• Topic: Law
• Subtopic: Social Psychology
• Index: Law

This volume examines diverse jury systems in nations around the world. These systems are marked by unique features having critical implications for jury selection, composition, functioning, processes, and ultimately, trial outcomes. These unique features are examined by applying relevant social psychological research, models and concepts to the central issues and characteristics of jury systems in those nations using a wide variety of jury procedures. Traditionally, research that has been conducted on juries has almost exclusively targeted the North-American jury. Psychologically-based research on European, Asian and Australian juries has been almost non-existent in the past decade or more. Yet, the incidence of jury trials outside of North America has been steadily increasing as more nations (e.g., Japan, Spain, Russia, and Poland) adopt, revise, or expand their use of juries in their legal system. Accordingly, research has been appearing in the scientific literature on new developments in world juries (particularly in Spain, Japan, and Australia). This volume fulfils the dual purpose of understanding the diverse practices in world juries in light of existing social psychological knowledge and applied research on juries in each nation, and outlining new research in the context of the issues raised by jury practices beyond those of North America.

1

Introduction and Overview

Martin F. Kaplan and Ana M. Martin

Psychology has contributed to the understanding of court trials for nearly a century (Munsterberg, 1908). Beyond the obvious point that trials involve a broad range of human behavioral events including judgment, cognition, affect, memory, attitudes and values, norms, and so forth, social psychology has a fundamental role in providing insight into trial processes. On a general level, social psychology and law are inextricably bound. Law, after all, is a codification of rules to enable people to get along with one another. Jury systems adjudicate problems in social relations, and within trials, rules and norms govern the behavior of trial participants in order to facilitate and organize adjudication. Social psychology is a systematic means of discovering the de facto rules governing social relations, and as such, is a critical tool in assessing the intended or unintended consequences of legal practices, and, at least as important, discovering the processes and dynamics unleashed by those practices.

On a more focused level, jury trials put legal decision making into the hands of small groups, with certain procedures and safeguards imposed by law to lead to desired consequences in both jury process and outcomes. In jury trials, social psychology is again bound with law. From its inception, social psychology has studied group structure and process, social decision-making, conflict between group factions, attitudes and values, biases and prejudice, information credibility, and persuasive argumentation—all the ingredients of a jury trial!

Just as social relations vary among nations and cultures, administration of their legal counterparts—that is, rules governing social relations and forms of trials for departures from these rules—will also vary. There is every reason to expect that trial procedures will vary among different nations and cultures (see, e.g., Vidmar (2000) for a description of the wide variations among national jury systems). In turn, these variations invoke different interactive processes in juries, and thus different social psychological principles.

The remainder of this volume describes variations among national jury systems and the (primarily) social psychological research and principles that apply to these diverse systems. A wealth of research has been conducted and reported since Munsterberg opened the door in 1908, but the vast majority has been on North American juries, which, as we shall see, are not the only forms of juries in the world. In Europe, Asia, Australia, and New Zealand, trial by jury has been flourishing (or, in some cases, existing, and in yet others, just starting) but in forms different from those in the US and Canada. Psychological study of these systems has been meager, and empirical work, until very recently, even more rare. Application of empirical findings from North American jury research leaves large gaps because of differences in cultural norms and trial procedures. This volume hopes to bring attention to systems outside North America, display their defining features, and offer insight into the consequences of these features by applying social psychological principles and reviewing recent and ongoing research within the systems. Most importantly, we hope to provide an impetus and guide for future research conducted in the context of the issues raised by jury practices in the targeted nations, issues that to date have been addressed only in fundamental social psychological research.

Each of the following chapters examines jury procedures in one (or more) nation, and then offers insight into the psychological processes and potential outcomes generated by the salient features of that system. By design, Chapter 2 deals with American juries, as a comparison for the jury systems that follow. This chapter underlines the similarities and differences between national jury systems. Each system has to grapple with the same fundamental question: Can laypersons be trusted to competently and fairly administer justice at trial? The theme of this volume is that different systems handle this issue differently. One major dichotomy grows from this difference: Some nations have pure juries composed entirely of laypersons, while others have mixed juries composed of laypersons and professional judges. Within the former, different formal means are used to enhance the quality of lay juries, ranging from having strong rules of evidence and procedure to govern lay jury trials (USA), to extensive and exclusionary steps to empanel jurors (USA again), and to requiring jurors to answer questions about elements of the decision and to justify the verdict (Russia, Spain). The first set of the following chapters addresses various issues in nations employing pure juries, and the second set of chapters demonstrates the variations (and similarities) in nations with mixed juries. Each chapter concentrates on a different facet of that nations jury system and therefore appeals to a different set of social psychological mechanisms (see the chapter preview below). Across chapters, we get an exhaustive view of the issues emerging in pure and mixed world juries and their corresponding psychological mechanisms, but at the same time there is sufficient overlap in coverage between chapters to permit comparisons across nations.

Overview of Chapters

Part I: Nations with Pure Juries

In Chapter 2, John Brigham first presents a concise but thorough historical foundation of the American jury. It is clear from this discourse that the jury was (and is) intended as a check on the powers of the government (but see the founding of the English jury in the Magna Carta). This historical purpose produced something unique to American juries—the common-law power to nullify laws perceived as unpopular or unfair, that is to provide a verdict based on social rather than legal issues. Unlike some other pure jury systems (see Russia and Spain, this volume), verdicts do not require formal justification. Thus, jurors concern themselves as much with fairness (according to social norms, or the “conscience of the community”) as with legal requirements.

Though not a constitutional right, the discretionary power of lay jurors has produced a practice unique to US jurors, and a lucrative cottage industry for enterprising social scientists—the intricate stage of jury selection. There is neither the check of having professional judges deliberate with jurors, nor of requiring justification of their verdicts, so great care is exercised by courts and opposing counsels in determining who sits on juries. Brigham discusses at length the examination and selection of jurors and the assumptions made by attorneys. The ethicality and validity of selection procedures are reviewed, and the potential for bias in deciding the death penalty (itself a fairly unique feature of the US legal system) is offered as a case study of jury selection issues.

In Chapter 3, Hope and Memon compare the key features of the neighboring systems in England and Scotland. Though both systems and the US jury are historically related, there are marked differences between the three lay juries. Unlike the US jury, there is little opportunity for opposing counsels to affect jury composition in either UK jurisdiction. The three systems differ with regard to imposed decision rule, and therefore the implications of the rules for jury processes and verdicts. One unique aspect of decision rules is the Scottish “not proven” verdict, which is an acquittal on the basis that the defendants guilt was not adequately proven, in distinction to a “not guilty” verdict, which is a clear statement of proven innocence. The implications of this third verdict option for both process and outcome are meticulously explored.

Jury process is given full attention. The authors discuss implications of the decision rules and of formation of verdict minority and majority factions for deliberations centering on understanding the evidence vs. defending certain verdict preferences. This analysis of deliberation style is echoed in several other chapters in this volume as a function of a variety of determinants other than decision rule.

Finally, the authors describe the rather convoluted (our phrase) forms that indictments and jury instructions take in the Scottish system. Consequences for memory and evidence processing are discussed, and it is concluded that the potential for biased thought and decisions is heightened by current practice. In the same vein, the authors address empirical studies of the effect of pretrial publicity on English juries. Analyses of instructions and pretrial publicity effects are undertaken through the lens of social cognition. They conclude that, aside from improving the semantics of the indictment and juror instructions in Scotland, and continued restraints on pretrial publicity in England, the functioning of lay juries can be improved by adopting the requirement of verdict justification by providing critical questions to jurors. The reader is urged to compare this suggestion to the issues raised in the chapter on Spain and Russia, nations where lay jurors must justify verdicts and answer formal sets of questions about case elements.

In the third entry on Anglo-American lay juries (Chapter 4), Goodman-Delahunty and Tait examine three major issues in Australia and New Zealand. First is the implications of legal reforms in Australia intended to facilitate communication with jurors. This topic is also addressed in several other venues in the volume. Second is the effects of several sources of juror bias on jury dynamics and verdicts, an issue explored in other nations in this volume as well. It is instructive to see how these problems emerge, and are treated differently in other jurisdictions. Third, the authors examine questions about juror competence to render legally appropriate decisions, especially in complex cases.

These three issues are currently receiving a great deal of attention in Australia and New Zealand. The analyses undertaken in this chapter are critical in the light of calls in Australia to curtail the use of lay juries, or to eliminate them entirely. The authors suggest both systemic and systematic innovations to improve juror processing to offset actual and perceived misuse of evidence. Their analyses and recommendations accord with the concerns addressed in the chapter on England and Scotland. As in that chapter, the authors call for more study of juror experiences via mock studies and real juror surveys. Note that in the chapter on England and Scotland, Hope and Memon go a step further and call for direct intervention by instituting verdict justification requirements.

The lay juries of Spain and Russia (Chapter 5) are fairly new institutions following decades of absence in totalitarian regimes. Re-establishment of juries in both instances was not without social and political controversy; hence there is a lingering distrust of pure lay juries and an institution of safeguards in their discretion. Review of perceptions of lay jurors in the legal and lay community provides a chilling picture of distrust and disrespect (see also the chapter on Poland, which gives a similarly jaundiced view). To ease negative expectations of lay jury competence, and to provide a basis for appellate review, both nations require formal verdict justification. In both instances, this takes the form of requiring responses to a list of questions about the case. The questions pose propositions about case elements, which must be decided before reaching an overall decision. Moreover, juries in Spain must decide on aggravating and mitigating circumstances as posed by the presiding judge.

Martín and Kaplan discuss the psychological consequences of asking for detailed responses to specific questions in justifying decisions. Does this requirement enhance the probability of lay jurors attending more to the facts of a case, or does it lead to use of simpler strategies and biases in the face of cognitive overload? The possibilities are examined in terms of whether the requirement enhances verdict- vs. evidence-driven deliberation styles, that is, whether deliberation will focus on using evidence and argumentation to support verdict preference as opposed to using a broader range of evidence to construct a complete story of the case. Similarly, the authors ask what sorts of influence will be used by jury members given extensive question lists, that is, normative influence, in which one relies on social support to further one’s point of view, or informational influence, in which argumentation for a particular verdict relies on relevant factual evidence. Finally, dual-process theory is applied, asking whether the unique characteristics of the two systems will foster information processing based on superficial, simplistic strategies (heuristic reasoning), or on deeper, more effortful processing employing a broader range of relevant information (systematic reasoning).

Chapter 6, on the American military courts-martial, is indeed unique to compendia on jury systems. Hinsz, Henkel, and Tindale report a system based in principle on a jury of peers, but in a context quite different than that normally associated with national juries. The jurisdiction is limited to the military, and the governing laws (both statutory and procedural) are restricted to infractions under the military code, and trial within the military. As seen in the chapter, the procedural rules for trial are unique. Yet, the psychological issues raised by the procedures are amenable to psychological analysis, hence the inclusion of this venue in this volume. It is timely and instructive to observe the procedures of military tribunals, and how they differ from civil courts, given the controversy as this volume is written over trying civilians (that is, persons who are not members of the military) under military law. We refer here to the proposed trials of persons apprehended in the invasion of Afghanistan by the US military.

To enumerate here all the differences between military and civilian courts would be redundant with the exhaustive account in Chapter 6. We will note, however, two important features: Jury members must be equal to or senior to the accused in rank, and they may ask questions of witnesses. The chapter examines questions raised by these and other departures from civilian juries by reference to research on social influence in small groups, paying equal attention to procedural consequences for jury dynamics and verdict outcomes. Similar to mixed juries, courts martial often contain mixtures of military ranks, evoking the same questions about status effects as addressed in the chapters on mixed juries. In courts martial, in fact, status differences between jury members should be very palpable in the context of military structure.

Part II: Nations with Mixed Juries

Whereas each of the chapters on individual European national jury systems focuses on a subset of the distinguishing features of that nation’s juries, Chapter 7 offers a broad overview and comparison of European juries. Kaplan, Martín, and Hertel identify three central features that characterize European juries, and distinguish between practices in the different national systems within these dimensions. The features are lay juror selection, jury composition, and verdict justification.

Juror selection varies in how the initial jury pool is selected, whether citizens can volunteer for service, and length of service. The consequences of these variations are considered in terms of attitudinal differences, effects on social identification processes, and the ability to resist influence by professional members of the jury.

Jury composition largely refers to whether juries are composed purely of laypersons or are mixed—lay and professional jurors. However, where service requirements are lengthy, even pure juries may be heterogeneous in experience and expertise. Effects of composition on jury dynamics and verdict outcomes are explored in the context of small group behavior research, invoking research and principles pertaining to role differentiation and status, effects of minority dissent, and influence and processing styles. Naturally existing jury factions, such as professional vs. lay jurors, or experienced vs. novice lay jurors, have implications for level of reasoning (heuristic/systematic), type of influence (normative/informational), and deliberation style (verdiet-/evidence-driven).

Finally, European lay juries vary in whether they must justify verdicts by responding to questions about case elements and voting on propositions that support a given overall verdict. Question lists can sometimes be extremely detailed. The consequences of the justification requirement for group dynamics are explored by reference to the same social-psychological tools used for jury composition issues: depth of reasoning, type of influence, and deliberation style. While some research is available on the effects of the cited practices in both North American and European juries, it is obvious that the many questions that are raised in this chapter call for an extensive program of research in the European context.

In Chapter 8, Catellani and Milesi concentrate on the asymmetries in reasoning between professionals and laypersons in Italian mixed juries. The main tool used in analyzing reasoning during deliberation is the mechanism of counterfactuals, whereby case events are compared with “what ifs”—what if the defendant had acted differently, what if the victim had been in another place, and so on. Interestingly, the Italian jury code explicitly recommends that juries explore counterfactuals, that is, that they compare given actions with expected norms. A major point in the chapter is that different results will occur as counterfactuals are used in an uncontrolled way, for example, if employed more for the accused vs. the victim. In addition, people are more likely to use as counterfactuals those events that are consistent with norms. Norms, in turn, open the door to bias since norms can be based on stereotype, ideology, and culture. Thus, extensive use of counterfactuals—wliich involve a comparison between actions and norms—can affect verdicts and penalties, and an asymmetrical use of counterfactuals can bias the outcome. Implicitly, there is a concern that lay jurors will be more prone to counterfactual reasoning, and to applying it asymmetrically.

As in sev...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Table of Contents
• About the Editors
• Contributors
• Preface
• 1 Introduction and Overview
• Part I Pure (Lay) Juries
• Part II Mixed (Lay and Professional) Juries
• Author Index
• Subject Index