Post No.: 0981
Furrywisepuppy says:
During a criminal trial, what usually happens is the prosecution will present their witnesses first, who’ll then be cross-examined by the defence. Then the defence will present their witnesses, who’ll then be cross-examined by the prosecution. As a juror, one must therefore wait until both sides have been cross-examined before forming a verdict.
There’s no obligation whatsoever for the accused to prove any fact or issue that’s in dispute. They don’t need to prove their innocence and therefore don’t need to provide any evidence at all – it’s completely down to the prosecution to make and prove the case. The accused is presumed innocent unless proven guilty ‘beyond reasonable doubt’ i.e. is there any reasonable possibility that the accused is not guilty? This doesn’t mean every single disputed fact that arises from the evidence must be proved beyond reasonable doubt but the essential ones that make up the charge.
The accused isn’t to be proven ‘innocent’ but is to be proven ‘guilty’ or found ‘not guilty’. And it’s not the role of the jury to prove that the accused is guilty – that’s the prosecution’s role. So the jury are there to discuss whether the prosecution has satisfied them that the accused has been proven guilty.
There can be some doubt but it mustn’t be ‘reasonable doubt’. However, of course, the perceived understanding of what these instructions mean, as well as the interpretation of what ‘reasonable doubt’ or a ‘high standard of proof’ means, is highly subjective.
Other difficulties include how the jury’s diligence to do their task correctly according to the instructions can gradually tail off as a trial drags on and other motivations kick in (e.g. to get it over and done with). Many jurors also have trouble remembering and/or understanding all of the evidence, trial details and instructions, just like people have trouble remembering a lot of information generally. They may come to verdicts based on their own definitions of the charges. The more complex a case, the more willing the jury are to admit that it’s tough to arrive at a verdict though. In capital punishment cases, jury often have difficulty separating the guilt and punishment phases and incorrectly end up subconsciously making both decisions at the same time. Jury find it hard to ignore extra-legal, irrelevant and inadmissible evidence even when instructed to. And deliberating as a group doesn’t seem to improve matters either.
Consequently, justice can depend on luck – in experiments, different juries can come to different verdicts on the exact same case.
The issue might be with the instructions themselves? Jury instructions/directions aim to help jurors make decisions in the legally correct way, and thus help protect their decision against potential appeal; meaning that some instructions can be incredibly lengthy and complex (e.g. by covering all the bases, with technical legalese more aimed at the appeals judges than the jury). One proposed solution is to simplify these instructions (e.g. by using psycholinguistic principles). But even if jurors understand the instructions, they mightn’t follow them! They might still reach reasonable decisions without fully understanding the instructions, although one might argue that this’d be down to fluffy luck and a decision isn’t sound unless it’s based on the correct legal principles of a particular jurisdiction.
Post No.: 0818 examined some fallacies jurors might commit.
We may assume people use systematic and mechanistic decision-making processes, but these can fail, especially during the latter stages of information processing. For a message to be followed, it first needs clear communication from the sender, and attention and the capacity to follow from the receiver – yet even if the receiver comprehends what they’re being asked to do, they must accept it’s the correct way to do things, and then be able to remember it, plus act upon it every single time.
Therefore if the instructions are incompatible with how a juror has personally constructed his/her own narrative story to make sense of the evidence, then the instructions can be rejected in order to maintain that narrative. Jurors are humans too, with all the general limitations of humans when attempting to be ‘objective’ decision-makers.
Thus a better solution might be to not tell them what they need to do, and to not presume, expect or rely on the jury comprehending complex legal rules and concepts but to arrange the decision-making task and environment in such a way that it ergonomically guides and supports them towards making their decision in the desired way (e.g. via question trails, which convert questions of law into a series of concrete questions of fact for the jury to answer in arriving at their verdict)? Jurors are deciders of fact, not law, after all, and their task and the instructions given need to be structured around that reality.
Because jurors seldom all enter the deliberation with a unanimous verdict, yet most juries eventually reach a unanimous verdict – the deliberation process must have an effect on jurors.
The jury foreperson guides the deliberation and delivers the jury’s verdict to the court. They’re usually elected, and tend to be male, older, have a high socio-economic status, they sit themselves at the head of the jury table and are the one who speaks first (unless they’re female). They at least have an influence on the deliberation style of the jury (e.g. whether to focus initially or mainly on trying to reach a verdict or on systematically evaluating the evidence). They speak the most for an individual and can decide who speaks next and when, which may all have an indirect influence upon the verdict.
This foreperson shouldn’t publicly advocate his/her own position to the others early in the deliberation though. Evidence-driven discussions focus on examining the evidence presented at trial, with less focus on simply trying to pressure people into reaching a verdict. In contrast, in verdict-driven discussions, pressure may be applied on the minority to agree with the majority position. Hence if a foreperson is more interested in taking polls for a verdict over discussing the evidence systematically and thoroughly, the jury may merely focus on discussing the verdict options to try to reach unanimity hastily.
Whether a unanimous or majority decision is required will be significant too. If only a majority decision is required, any minority dissenters could be paid less attention to because the majority doesn’t need to engage with them and convince them in order to reach a majority verdict. Consequently, there’ll be less participation by the minority jurors, shorter deliberations, more errors in recalling evidence, and (peculiarly) a greater likelihood of conviction; although there’ll be fewer hung juries. Minority views can be quickly stifled before given a fair chance of consideration.
The size of juries also matters. Compared to juries of 12 members, juries of 6 tend to be less representative of the wider community (less diverse), more likely to return varied verdicts (due to sampling errors and having fewer views to average), they communicate less, have poorer recall and examination of the evidence, are more likely to convict, and are less likely to hang. Smaller groups demonstrate greater pressure for the individuals to conform. Because it only takes one dissenter to reduce overall conformity, and because in a larger group there’ll be more people and therefore more chance of a dissenter standing up for themselves – a larger group will be socially less vulnerable to acquiescing with each other plus there’ll be less chance that a dissenter will be alone.
So, although more expensive to organise – 12-person juries working under a unanimous decision rule have a tendency to be more systematic and thorough in their decision-making. Woof.
With a diverse jury, extreme biases either way can better balance and cancel each other out. But if a jury lacks diversity and is in fact cohesive, they might suffer from groupthink, which results in an inadequate consideration of the alternative verdict options, a biased assessment of the risks, costs and benefits, poor informational search, little contingency planning, and ignoring the implications of failure.
And if there’s a broadly agreed-upon position at the beginning of a deliberation or if the jury generally agree on an issue or interpretation – group polarisation may occur, which results in intensifying many kinds of attitudes (particularly perceived ‘good’, ‘moral’, ‘fair’ or ‘right’ stances within each group) i.e. the individual group members’ original attitudes can become even more extreme following the group discussion because they’re more likely to only hear arguments consistent with their own pre-existing views. This bias towards discussing the already-generally-agreed-upon view reinforces the notion that this view is correct, especially if some of these arguments are new to some of these group members (‘persuasive arguments theory’). There’ll be little or no counterargument to their position – just one-sided arguments. This group will tend to collectively emphasise and only discuss their shared views instead of any possible non-shared views held uniquely by any of the individuals. These ‘hidden profiles’, or hidden information and views that the individuals hold, could contradict or challenge the group’s common informational pool of knowledge or view, yet they’ll stay unshared.
This hidden information could be valuable for testing the group’s overall stance and/or highlight any overlooked piece of evidence that only one person remembers. For instance, each juror may all remember the same 3 pieces of evidence that support conviction, but each juror may also individually remember 1 unique piece each that supports acquittal. But these latter pieces stay unshared because the group already appears like it has settled on a strong case for conviction that 1 sole piece cannot overcome. However, if each and every juror did share these pieces, they’d discover that they outnumber the 3 that support conviction.
Additionally, whenever there’s no objective standard to compare one’s views against to test if they’re ‘correct’ – we’ll compare them to those of other members of the group (‘social comparison theory’). In this scenario, the pre-existing group norm will be more influential than the search for persuasive arguments, which the group members will be reluctant to deviate from. They’ll actually likely try to each be ‘above average’ in terms of adhering to the group norm to show that they’re venerable group members. Most people already assume that they’re ‘better than the average group member’ and think their socially desirable/acceptable (to the group) personal attitudes indicate their elevated standing as a venerable group member.
But when they discover that their views are actually merely average within the group (because it’s revealed that everyone holds pretty much the same views and attitudes), this’ll disconfirm their belief that they’re ‘above average’. So, in response, they may adopt more extreme attitudes in an attempt to exhibit that they’re ‘better than the average’ group member. However, when everyone does this, they’ll end up shifting their pre-existing views towards a very extreme stance (e.g. each member trying to show that they’re more in favour of feminism or pacifism than the others). People generally want to be liked, so they’ll wish to express strong support for views that are discovered to be liked by others.
Fur-thermore, group discussion promotes greater awareness of a group affiliation – it increases the salience of a group identity and so the group members will make an effort to adhere to it. Group polarisation can then occur because each group is simply trying to distinguish their ingroup from other relevant outgroups (‘self-categorisation theory’).
Groups can therefore sometimes make individual views and decisions more extreme. Confidence in the group’s common verdict also increases and there’s an inflated estimate of the group’s agreement level (if hidden profiles stay hidden), less extensive generation of ideas, and poorer decision-making.
Some solutions are to encourage genuine dissent from within and to not be afraid of sharing divergent views to increase the pooling of non-shared information.
…But we’ll have to continue on this subject another time because I need to go for my walkies!
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Woof!
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