2nd Year Undergraduate Essay
Current research surrounding court processes and juries, witnesses, and defendants suggests that a court is extremely stressful for all involved; which can lead to juries dismissed, witnesses misunderstood, and defendants given harsher sentences. Critically, more changes are needed universally in particular areas to make court less alienating to laypeople- such as making changes in juror comprehension, witness preparation, and gender perception to make court less distressing and unfair for all parties involved.
Jury structure varies worldwide according to what court system is used. Adversarial court systems are most popular and involve the prosecution facing the defence in court (Gavin, 2019), but inquisitorial systems are not uncommon, such as in France. Inquisitorial systems involve a judge hearing witnesses and deciding if there is a case to take forward. In the UK and USA where adversarial systems are used, the jury hears evidence from both sides, takes instruction from the judge, and then retire to decide their verdict. To be eligible to be on a jury in the UK, you must not be imprisoned, not be in the military, be over 18, and fluent in English. If you fit all these criteria and you are selected from the jury pool (all those eligible for selection), then your attendance is mandatory. In some places such as the USA, voir dire is used to question the background of jurors to determine any potential biases they may have, and to establish the credibility of expert witnesses. In the UK, voir dire has multiple uses, including establishing the competency of a witness or juror, and questioning the admissibility of evidence.
The biggest problem with the current jury structure universally, is that it is difficult for jurors to understand court proceedings and legal jargon. Daftary-Kapur, Dumas, and Penrod (2011) concluded for example, that juries have difficulty understanding complex legal constructs, especially instructions they receive from the judge, which are absolutely critical in making sure jurors handle their deliberation properly. This fundamental lack of comprehension has meant that in some studies, jurors seem to understand the law better when not given instructions at all (Cronan, 2002). This study however, used pattern instructions from the USA and therefore, it could be argued that the results don’t apply to the UK, where standard instructions are used. Nonetheless, there is still much research that supports the notion that is also the case in the UK, as seen in an investigation published by the Ministry of Justice (Thomas, 2010); where over half of the jurors involved said they found the judges directions easy to understand, but when investigated further, Thomas (2010) concluded that only 31% actually understood the directions in a legal sense. With this knowledge that jurors struggle to understand verbal instructions, there are some actions that can be taken to improve comprehension, such as simply writing down the instructions- which lifts the proportion of jurors who fully understand the legal questions to 48% (Thomas, 2010.) Asking for the instructions to be written down is now optional in some countries- such as Scotland (Judicial Institute for Scotland, 2017). Therefore, psychological research has raised the issue that court processes are universally confusing for jurors and has suggested solutions (such as written instructions) to be considered by the various criminal justice systems.
Issues with juror comprehension can be seen not just in studies, but also to have had great effect in the Vicki Pryce trial in 2013, where during the jury deliberation the jury asked the judge an overwhelming amount of questions. These included asking what reasonable doubt meant, and if they could use evidence that was not presented, such as Vicki’s religious beliefs- which led the judge to discharge the jury (Gavin, 2019.) This is obviously not an empirical study, but shows the utter lack of comprehension a layman has of court proceedings and how this can affect a trial- in this case by dismissal. Indeed, the questions the jury asked are not unusual, with many juries not knowing how to define reasonable doubt (Kramer and Koening, 1990) or understand legal jargon (Rose and Ogloff, 2001) in previous studies. Therefore, more changes need to be made to make communication between the judge and jury more transparent and easier to understand.
Juries also struggle with handling scientific evidence in court, for a variety of reasons, which can affect the verdict they return. Daftary-Kapur et al., (2011) suggested that jurors struggle to disregard inadmissible evidence, and struggle to understand scientific evidence on the whole which has huge implications for verdicts (Levanon, 2012.) This could perhaps be due to the ‘CSI effect’, which is simply the notion that television shows portray forensic science as magic happening in dark rooms (Schweitzer and Saks, 2007). Which although amusing, could perhaps set forensic evidence up to be perceived as infallible, without fully understanding what the evidence actually means (Goodman-Delahunty and Hewson, 2010). Therefore, psychology suggests that viewing drama about crime and forensic science, may affect your understanding of forensic evidence in the court room as a juror. However, research has not reached a consensus about the existence of the ‘CSI effect’. Kim, Barak, and Shelton (2009) for example, conducted a study in court with real jurors and found no evidence of the ‘CSI effect’. In more recent studies (Hawkins and Scherr, 2017), it seems the ‘CSI effect’ depends on several factors, such as level of engagement with crime shows and what kind of evidence is presented to have any sort of effect, so perhaps how the court presents forensic evidence needs to be researched further to influence legal practice.
As previously mentioned, there are two styles of judicial system (adversarial and inquisitorial) which also effects witness structure. In the UK and US this involves prosecution and defence and cross-examining witnesses, and also allows for plea bargaining. Cross examination can not only weaken the oppositions argument, but also discredit the witness (Hampton & Wild, 2000) which can be extremely stressful for the witness (Brodsky, 2009.) Therefore, any witnesses including expert witnesses, are prepared before court to manage the emotional hardship any case can involve; both by having to relive what has happened to them if they are a victim, and coping with the general stress of being cross examined (Brodsky, 2009). In inquisitorial systems, a judge usually decides if there is a case to be answered and then an adversarial court follows, so witnesses initially testify to the judge and not a jury.
Logically therefore, the biggest issue with the witness structure is the amount of stress and anxiety that is involved with being a witness. This anxiety can make any gaps in memory or recall be exaggerated and focused upon in court (Gavin, 2019) even if they are quite natural. This is of key importance, as being surrounded by the unfamiliar and rather intimidating setting that is court can lead rather unsurprisingly to stress (Konradi, 1999), especially when giving testimony. However, the impact that anxious testimony has on verdicts is unclear. In some cases, jurors have found nervousness to make witnesses more believable, as they percieved being nervous as normal (Boccacccini, and Brodsky, 2002). But in the same study, confidence on the stand was seen as a sign of callousness (Boccacccini, and Brodsky, 2002). Therefore, the relationship between witness nervousness and juror belief seems to be bell shaped, with a moderate amount of anxiety being optimal (Boccaccini and Brodsky, 2002). Research would therefore suggest that managing anxiety with a victim advocate (Konradi, 2010), especially in very emotional cases such as those that involve sexual assault will be beneficial to witnesses, and the impact this has on jurors. This is particularly useful information for both lawyers and psychologists when conducting witness preparation.
Expert witnesses can also be influenced by court proceedings- most specifically what side has approached them to give testimony. Murrie, Boccaccini, Guarnera, and Rufino (2013) for example paid 108 forensic psychologists to give testimony about the same offender, but half were told they were on the defence and half on the prosecution. This had a large effect on the risk score they assigned to the offender and provided strong evidence that expert witnesses can be bias depending on their allegiance (Murrie et al., 2013.) This has huge implications to the outcome of verdicts and suggests that expert witnesses struggle to be impartial. However, some studies have noticed that being particularly biased in either direction can make expert witness testimony less credible in the eyes of juror (Blackwell and Seymour, 2015.) Therefore, it would seem that if there are biases in expert witness testimony, this may be picked up upon by jurors and so may not influence the verdict as much as previously thought.
Furthermore, outside of a standard criminal defence, there are two other pleads that have a high amount of psychological input- the insanity plea or not fit to plead. The insanity plea can be used when the defendant is determined to be under the influence of a mental derangement, either permanently or at the time of the offence (Gavin, 2019.) As insanity is a legal term in court, the M’Nagten rules are used (Gavin, 2019), which essentially says: that a person is insane if when committing the act, they had such a mental defect of reason due to mental illness that they did not know the nature or quality of what they were doing, and that it was wrong. An insanity defence is used sparingly therefore, because the defence must demonstrate beyond reasonable doubt that the offenders state of mind was deranged, that they did not know it was wrong and that they did not understand the consequences. There have been cases of malingering (Eliason & Chamberlain, 2008) and the defence must be aware of this throughout the process as attempting to fake insanity can lead to a higher sentence.
There are several issues with the insanity plea surrounding how far they actually help the mentally ill. With the insanity plea, current standing is that offenders are sane until proven otherwise (Hathaway, 2009) which constitutes several problems. For example, there are no distinctions between being insane and potentially harmful and being legally insane but constituting no risk to the public. This lack of distinction can lead to an indefinite sentence rather than a time limited one; such as in the case of Michael Jones in 1975 (Gavin, 2019). Jones was arrested for shoplifting but found not guilty by reason of insanity. However, rather than having one year in prison, Jones has been incarcerated in a mental hospital for his whole life. This raises several ethical issues; court processes that on the surface intent to help the mentally ill have led to lifelong hospitalisation. Thus, the insanity plea can have lifelong implications for even the most minor crimes, and efforts need to be made to ensure court processes make sure the mentally ill actually get help, not simply indefinite confinement.
The insanity defence also has issues with gender, that can completely alter the outcome for the defence. Despite the fact that the insanity defence can now be reduced to diminished responsibility as a partial defence (especially in cases of Battered Woman Syndrome), women are still perceived differently to men when it comes to ‘crimes of passion.’ In various cases it has been shown that men and women experiencing similar emotions are viewed differently by the public, and more importantly jurors (Barret & Bliss-Moreau, 2009.) As a case example, in 1989 Sarah Thompson killed her physically abusive husband while he was asleep: because there was premeditation and the use of a weapon, Thompson was convicted of murder. In 1991, Joseph McGrail killed his wife (by kicking her to death) because she nagged him and was an alcoholic. It could be argued that what McGrail experienced was lesser than the physical abuse Thompson experienced, but nevertheless the plea and the sentence was the same. Ultimately, McGrail was given a reduced sentence and Thompson was not. This distinct void between the ability to see McGrail’s violence as an act of provocation, and seeing Thompson’s violence as unprovoked simply because she used a weapon (which is fairly common as most women would need a weapon to kill) shows a huge gender bias in insanity pleas that can change a defendant’s outcome massively (Miller, 2010.)
To conclude, current research in psychology has highlighted how the court process is flawed, particularly for women, and the mentally ill. More changes need to made for juries to fully understand the legal process, for witnesses to cope with stress, and more research needs to be conducted to make sure that insanity pleas do lead to mental help, not simply hospitalisation.
Bibliography
Barret, L.F., and Bliss-Moreau, E. (2009). She’s emotional. He’s having a bad day: Attributional explanations for emotion stereotypes. Emotion, 9(5), 649-658.DOI:10.1037/a0016821.
Blackwell, B., and Seymour, F. (2015) Expert Evidence and Jurors’ Views on Expert Witnesses. Psychiatry, Psychology and Law, 22 (5), 673-681, DOI: 10.1080/1 3218719.2015.1063181.
Boccaccini, M., and Brodsky, S. (2002). Believability of expert witnesses: Implications for trial consultation. Professional Psychology: Research and Practice, 33 (4), 384-388. DOI:10.1037/0735-7028.33..4.384.
Brodsky, S.L. (2009) Principles and Practice of Trial Consultation. New York: Guilford Press.
Cronan, J.P. (2002). Is any of this making sense? Reflecting on guilty pleas to aid criminal juror comprehension. American Criminal Law Review, 39 (1187).
Daftary-Kapur, T., Dumas, R., and Penrod, S. (2011). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15 (1), DOI: 10.1348/135532509X465624.
Eliason, S. and Chamberlain, J. (2008). Competence to stand trial. Journal of the American Academy of Psychiatric Law, 36 (2), 255-257.
Gavin, H. (2019). Criminal & Forensic Psychology (2nd ed.). London: SAGE.
Goodman-Delahunty, J. and Hewson, L. (2010). Enhancing fairness in DNA jury trials. Australian Institute of Criminology.
Hampton, N. J, and Wild, J. (2000). Cross examination. In B. Robertson (ed), Introduction to Advocacy. Wellington: New Zealand Law Society, 233-264.
Hathaway, M. (2009). The moral significance of the insanity defence. Journal of Criminal Law, 73 (4), 310-317.
Hawkins, I., and Scherr, K. (2017 Engaging the CSI effect: The influences of experience-taking, type of evidence, and viewing frequency on juror decision-making. Journal of Criminal Justice, 49, 45-52.
Judicial Institute for Scotland (2017). Jury Manual. Retrieved from http://www.scotland-judiciary.org.uk/Upload/Documents/JuryManualJune2017.pdf.
Kim, Y., Barak, G., and Shelton, D. (2009). Examining the ‘CSI-effect’ in the cases of circumstantial evidence and eyewitness testimony: multivariate and path analyses. Journal of Criminal Justice , 37 (5), 452-460.
Konradi, A. (1999). ‘I don’t have to be afraid of you’: rape survivors’ emotion management in court. Symbolic Interaction, 22, 45-77.
Konradi, A. (2010). Creating Victim-Centred Criminal Justice Practices for Rape Prosecution. Research in Social Problems and Public Policy, 17, 43- 76. DOI: 10.11 08/S0196-1152(2010)0000017005
Kramer, G., and Koening, D. (1990). Do jurors understand criminal jury instructions? Analysing the results of the Michigan juror comprehension project. University of Michigan Journal of Law Reform, 23, 401-437.
Levanon, L. (2012). Sexual history evidence in cases of sexual assault: a critical re-evaluation. University of Toronto Law Journal, 62 (4), 609-651.
Miller, A. (2010). Inherent (Gender) Unreasonableness of the Concept of Reasonableness in the Context of Manslaughter Committed in the Heat of Passion. William & Mary journal of Women and the Law, 17 (1).
Rose, V. G., and Ogloff, J.R. (2001). Evaluating the comprehensibility of jury instructions: a method and an example. Law and Human Behaviour, 25 (4), 409-431.
Schweitzer, N., and Saks, M.J. (2007). The CSI effect: popular fiction about forensic science affects public expectations around real forensic science. Jurimetrics, 47, 357- 364.
Thomas, C. (2010). Are Juries Fair? Ministry of Justice Research Series 1/10. Retrieved from https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf.