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Post No.: 0566jury


Furrywisepuppy says:


You might be called up for jury duty one day if you are a citizen in the UK, USA, Canada or Australia for example.


Juries, made up of regular community members or laypeople, are used in only a minority of cases and only for criminal and civil (lawsuit) trials involving more serious charges and punishments. Actually, only a relatively few countries in the world use juries of any form at all as ‘deciders/triers/finders of fact’, in conjunction with a judge who decides on matters of law – most countries just use judges or panels of judges to perform both roles.


A jury is, preferably, diverse or randomised, and each juror should be impartial to either side (e.g. doesn’t personally know the defendant or prosecutor, or hasn’t read media coverage about the case and hasn’t already formed an opinion about the verdict – read Post No.: 0554 about the problem with pre-trial publicity). During jury selection, a juror can be challenged without reason based on very limited information, such as their appearance. In some jurisdictions, potential jurors can be further assessed and picked via questionnaires according to how they might favour one side or the other according to their prior attitudes and biases.


A jury can discuss a case amongst themselves but not with anyone else. Each juror must refrain from making any independent investigations into the defendant or on the facts of the case on their own. The jury are thus not allowed to use external sources, such as social media or web searches, to seek any information on the case. The jury are not to be told whether a defendant has any prior convictions. They simply should not act upon any information or supposed evidence that has not been presented in court and which the defence and prosecution do not know they are acting upon.


But whether in a jury trial or judge-only bench trial – people find it impossible to ignore prejudicial or irrelevant information, even when categorically told to ignore it and to deem it inadmissible. Hence even legal training won’t protect someone from their own subconscious or unconscious cognitive biases (e.g. preconceptions, stereotypes) – everyone is still potentially fallible. Jurors may arguably be predisposed to less extra-legal (not presented in court, or irrelevant, and therefore inadmissible) evidence and pre-trial information than judges though.


Depending on the procedural law of a particular country, the severity of the crime and therefore punishment and/or how long the jury have taken to deliberate – either a unanimous or majority verdict is required.


Since every juror hears the same evidence at the trial but can initially come to a lack of agreement during the deliberation – this suggests that individual values, prejudices or other differences between jurors in how they pick up on and evaluate evidence matter i.e. we never experience the world objectively despite what we believe of ourselves. Female jurors are more likely to convict in cases involving allegations of rape, sexual harassment or child abuse. Older people and people with higher educational qualifications and/or have had previous juror experience are more likely to convict in general. Black defendants are unfortunately more likely to be convicted regardless of the composition of the jury.


Juries, for being composed of regular community members or laypeople, aren’t typically learned about logical fallacies such as ad hominem attacks, and they often judge based on the delivery and presentation of witnesses more than their content and arguments. However, these effects are on the whole subtle and fortunately the strength of the evidence and other factors seem to be more important when deciding upon a verdict. It is intended and hoped too that the differences in views amongst a jury balance and cancel each other out since the verdict must be made as a group – although one must be aware of those with overbearing extrovert personalities who might guide the group deliberation towards their own individual way (e.g. any person who brashly puts themselves forward as the jury foreperson without seeking an election into this position).


Deciders of facts of a case will inevitably use their own personal life experiences and what they consider common sense to make decisions i.e. schemas (mental models of the world or of the self, structured to facilitate cognition and decision-making), stereotypes (a type of schema that holds mental representations of information about social and other categories) and heuristics (quick decision rules or mental shortcuts).


However, this enables faster, although not necessarily better, decision-making. One mental model that describes how jurors (and people in general) make their decisions is the ‘cognitive story model’, where people construct narrative stories during the trial to try to organise and interpret the evidence into seemingly coherent stories. Here, stereotypes, preconceptions, etc. are used to fill in any gaps in the story and provide templates or frameworks for what certain types of people and events are presumably like. And what can then possibly happen is that any subsequent evidence is evaluated and interpreted to try to fit in line with this story – thus if the subsequent evidence fits into this existing story then it goes in, but if it doesn’t then rather than dismantling the initial story, the subsequent evidence is likely to be dismissed due to confirmation bias.


In other words, once we’ve come up with a plausible story (which might be based on our unconscious preconceptions, presumptions and prejudice), we switch to a ‘proving we’re right’ mode, which may mean that we’ll too eagerly dismiss any alternative hypotheses that’ll prove ourselves wrong. It’s more pleasurable to believe we’re bright and right not dim and wrong, so we’re biased to put in far more effort to show we’re right rather than wrong. The media and other sources, if stumbled upon, may influence this mental story in a two-way process too – leading to a reinforcement of any inaccuracies.


Schemas and stereotypes are based on our prior fluffy knowledge or assumptions of what people, things and events are like and whether we view them positively or negatively. They and other biases and heuristics help us to deal with the immense amount of information in our daily livesbut they can often be too crude, assumptive, inaccurate, over-general and prejudiced, which can potentially lead to making unjust discriminations, decisions and outcomes. Stereotypes work sufficiently and accurately enough most of the time hence why they persist as a cognitive strategy (‘sufficient’ as in enough to keep us alive rather than ‘optimal’, and without much regard to how it can harm those it prejudices) and they conserve energy as well as time so that we can pay attention to other cognitive tasks or more perceived important areas of threat or opportunity.


Jurors are selected in order to bring their diverse knowledge and experiences into the deliberation, but at the same time they must not base their decisions for this present case on separate incidences or evidence that are unrelated to this case (e.g. a juror has been personally abused by their own spouse before, but this information doesn’t mean that the defendant must necessarily be guilty of abusing their partner in this present allegation of abuse).


The ‘elaboration likelihood model’ and ‘heuristic systematic model’ are dual process models i.e. they describe two ways in which something happens. They both describe two distinct routes to persuasion and attitude change – the central route (effortful, conscious, relatively rational or logical thinking, which uses a lot of elaboration and reasoning when making a decision e.g. deliberately weighing out the pros and cons of something) and the peripheral route (effortless, subconscious or unconscious, relatively emotional instincts, where the content is considered less salient than the positive/negative associations or affect one feels about what’s being evaluated e.g. if you hold a positive stereotype about the type of person giving you a message then you’ll be more persuaded by that message, all else being equal). They roughly correspond to our ‘system two’ and ‘system one’ respectively, which we’ve discussed many times before in various contexts. Woof!


We use the central route generally if an issue is very important to us plus we have the time and cognitive capacity to think about the issue. And we use the peripheral route generally if an issue is (perceived to be) not important to us, we have limited time to think about the message or if we’re distracted and in a good mood (due to cognitive ease – well when we feel good, our minds are more relaxed and less on guard).


One perspective concerning all of these mental models is that we’re lazy and like to put in the minimum amount of cognitive effort possible to reach a decision i.e. we’re ‘cognitive misers’.


A counter-perspective however is that we use mental shortcuts to try to actually maximise the amount of information that can be stored and processed in our brains under demanding conditions, but at the risk of producing errors – information that can seemingly be encoded quickly with shortcuts, such as via stereotypes, are done so in order so that the cognitive workload is decreased in this area so that we can turn our attention to other pieces of information that may require more effortful thinking, such as assessing the strength of the evidence i.e. we possess limited cognitive capacities but we’re ‘cognitive optimisers’ with what we’ve got.


If a defendant is counter-stereotypical/stereotype-inconsistent (i.e. doesn’t conform to the stereotype we expect) then jurors will have less cognitive capacity to spare to consider the strength of the evidence. We often try to engage in as much effortful thinking about the unexpected and of counter-stereotypical information as possible. We tend to remember information that’s unusual quite well – although this might be because it seems novel, stands out and causes us surprise rather than because it makes us believe that our stereotypes are inaccurate and should therefore be updated or ditched.


Woof. We will explore more preconceptions that might influence the decisions of jurors in another post. But for now, understand that we usually hang onto our stereotypes quite firmly despite the evidence we’re presented with. Even with racial stereotypes, when we meet someone who doesn’t quite fit their supposed stereotype – rather than admit that the stereotype is wrong, we’re more ready to rationalise the ‘anomaly’ away by saying, “But he/she doesn’t count”(!)


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