Race and jury selection: Psychological perspectives on the peremptory challenge debate.

The legal system is a domain of potential relevance for psychologists, whether in the capacity of expert witness or citizen juror. In this article, the authors apply a psychological framework to legal debate surrounding the impact of race on the process of jury selection. More specifically, the authors consider race and the peremptory challenge, the procedure by which attorneys may remove prospective jurors without explanation. This debate is addressed from a psychological perspective by (a) examining traditional justifications for the practice of the peremptory challenge, (b) reviewing research regarding the influence of race on social judgment, (c) considering empirical investigations that examine directly race and peremptory challenge use, and (d) assessing current jury selection procedures intended to curtail racial discrimination. These analyses converge to suggest that the discretionary nature of the peremptory challenge renders it precisely the type of judgment most likely to be biased by race. The need for additional psychological investigation of race and jury selection is emphasized, and specific avenues for such research are identified. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Precious little guidance: Jury instruction on damage awards.

Jury instructions on damage awards are notoriously vague and ambiguous. As a result, awards are sometimes unexpected and seemingly illogical. In this article, the authors argue that jury instructions regarding damages are vague because the law of damages itself is purposefully ambiguous—allowing particularized justice across a variety of different circumstances. The authors review research on comprehension and application of substantive jury instructions related to damages and on procedural variations at trial (e.g., use of preinstruction, bifurcation, blindfolding jurors to various issues, special verdict forms, caps on damages, and instruction revision) that impact the substantive instructions that jurors receive from the judge. They comment on attempts at reforming jury instructions regarding damages and conclude that jurors' decision making on this difficult and emotional issue could be made more predictable by careful reforms at the trial level. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Commonsense justice and jury instructions: Instructive and reciprocating connections.

"Commonsense justice" (CSJ) and "jury instructions" are conjoined to illustrate their instructive and reciprocating (i.e., diagnostic and therapeutic) connections, and, when taken together, their instructive potential for the law. It is argued here that "jury nullification," which appears as the antithesis of connectedness, is more likely the failure of "jury instructions," rather than the "failing of jurors." Insanity jurisprudence is the main venue for demonstrating the instructive and reciprocating connections, an area replete with insanity test instruction failures. What emerges from the empirical findings are CSJ's sophisticated constructs and prototypes, where types and gradations of culpability are found, yet where jurors' distinctions schemes that afford no opportunity for jurors to register their distinctions. With such a schema is created and tested, it succeeds. The implications of these instructive and reciprocating connections between CSJ and jury instructions—for other nettlesome areas of the law—are suggested. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Jury Decision Making: An Empirical Study Based on Actual Felony Trials.

Posttrial interviewing was used to examine the possible relationship between a variety of juror characteristics and jury decision making. Sixty-five actual jurors who had participated in 10 felony trials served as subjects. An emphasis was placed on process as well as outcome variables. Demographic characteristics were largely unrelated to both procedural and outcome variables. The findings lend support to the view that jurors are highly involved and responsible people who determine guilt or innocence primarily on the basis of factual evidence. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Trial consultants: Perceptions of eligible jurors.

How do eligible jurors perceive trial consultants? A survey was administered to 1251 participants from 50 states. Results indicated that individuals who thought the legal system was fair, those who earned higher incomes, and Anglo Americans rated trial consultants most favorable. Survey respondents estimated that 43% of court cases use trial consultants, and 18% of participants indicated that if they knew one side was using a trial consultant, they would be biased against the side that hired the consultant. Trial consultants need to consider the potential impact their presence makes during the course of legal proceedings and make the necessary adjustments to improve their services. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Capital jury decision-making: The limitations of predictions of future violence.

The U.S. Supreme Court in Jurek v. Texas (1976) affirmed that capital juries are able to identify those capital offenders who will commit serious violence in the future. The capability of capital juries to accurately make these judgments as a means of deciding which capital offenders should receive the death penalty has been widely endorsed in both statute and case law, as well as embraced by jurors. A growing body of research on rates and correlates of prison violence, however, points to this confidence being misplaced. Prior investigations of the accuracy of these capital jury predictions, though limited in number, have found alarming error rates. The current study retrospectively reviewed the post-trial (M = 5.7 years) prison disciplinary misconduct of federal capital offenders (N = 72) for whom juries considered “future dangerousness” as an aggravating factor at sentencing. These jurors’ predictive performance was no better than random guesses, with high error (false positive) rates, regardless of the severity of the anticipated violence. In light of prior studies, it is concluded that juror predictions of future violence lack sufficient reliability to play a role in death penalty determinations. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The effects of clinical and scientific expert testimony on juror decision making in capital sentencing.

The Supreme Court and many state courts have assumed that jurors are capable of differentiating less accurate clinical opinion expert testimony from expert testimony based on more sound scientific footing and of appropriately weighing these two types of testimony in their decisions. Persuasion and jury decision-making research, however, both suggest that this assumption is dubious. The authors investigated whether mock jurors are more influenced by clinical opinion expert testimony or actuarial expert testimony. Results suggested that jurors are more influenced by clinical opinion expert testimony than by actuarial expert testimony and that this preference for clinical opinion expert testimony remains even after the presentation of adversary procedures. Limited empirical evidence was found for the notion that various types of adversary procedures will have a differential impact on the influence of expert testimony on juror decisions. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Review of Judging the jury.

Reviews the book, Judging the jury by Valerie P. Hans and Neil Vidmar (1986). Judging the Jury has a primary emphasis on the jury system in the United States. As the authors point out, the judicial models of the U.S. and Canada are quite different. The Canadian system is more similar to the British tradition, while the American courts have departed from this tradition in a number of significant ways. There is a greater reliance on the jury for both civil and criminal matters in the U.S.; indeed, Canadian courts do not even allow trial by jury for less serious crimes. In general, the American model gives the jury considerably more power and discretion. The book's focus on the U.S. obviously limits its application in Canada. Given that one author is a Canadian scholar and the other has extensive experience in Canadian jury research, perhaps their next book will feature the Canadian jury system. This book provides an excellent background for social scientists interested injury research, but it will also be of interest to anyone interested in the administration of justice. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The gatekeeper effect: The impact of judges' admissibility decisions on the persuasiveness of expert testimony.

In a pair of mock-trial studies of a possible “gatekeeper” effect, our participants were presented with a summary of a trial that included a piece of expert scientific evidence. The judge's decision was manipulated to admit the scientific evidence, as well as the quality of the evidence and the credibility of the expert. Participants were found to be less critical of and more persuaded by expert evidence when it was presented within a trial, compared with the same evidence presented outside of a courtroom context. These findings suggest that, when judges allow expert testimony to reach the jury although the evidence is of low quality, they imbue it with undeserved credibility. Furthermore, no changes in participants' perceptions of the evidence were found if the mock jurors were explicitly informed that the judge had evaluated the evidence, suggesting that the participants assumed that judges normally review evidence before allowing it to reach the jury. In addition, implications for basic research are discussed, as the moderating effects of a gatekeeper have not previously been considered by established models of persuasion. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Epilogue: A legal and cultural commentary on the psychology of jury instructions.

This essay comments on each of the contributions to this special issue. The principal thesis of the review is that the more we learn about the complex effects of jury instructions, the less confident we become about our ability to advocate for specific reforms. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Assessment of the commonsense psychology underlying Daubert: Legal decision makers' abilities to evaluate expert evidence in hostile work environment cases.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court justices relied on commonsense psychological assumptions about the decision-making capabilities of judges and jurors and the effectiveness of safeguards designed to protect the jury from depending on unreliable evidence. This article reviews the empirical evidence on legal decision makers' abilities to evaluate the quality of expert evidence and the effectiveness of procedural safeguards presumed to assist judges and jurors in these evaluations in hostile work environment cases. This evidence suggests that judges, attorneys, and jurors are not particularly skilled in identifying flawed research. Although opposing experts may be able to recognize flawed research, they may be unwilling to testify or their testimony may be ineffective. Suggestions for future research and ways of improving judges' decision-making abilities are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Hindsight bias, Daubert, and the silicone breast implant litigation: Making the case for court-appointed experts in complex medical and scientific litigation.

Empirical research indicates that knowledge of the outcome in a given case influences juror deliberations. This bias is compounded when the jury must evaluate complex scientific evidence. Because jurors typically lack the background necessary to evaluate such evidence, they often use hindsight as a "cognitive shortcut." "Junk science" can exacerbate this tendency by offering a "scientific" link between the injury and the product. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), properly applied, can defuse junk science testimony and mitigate its distorting effect on legal outcomes. The authors argue that judges carrying out Daubert's prerogatives should, where feasible, appoint independent experts and science panels to educate themselves and the jury, and thereby improve the likelihood that legal decisions will be based on sound scientific understanding. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Instructing jurors on general damages in personal injury cases: Problems and possibilities.

The authors consider instructions that courts do or could give to jurors to guide them in making awards for general damages in civil litigation. The authors review the nature and content of current instructions about the factors that should (or should not) affect jurors' awards, as well as the limited body of empirical research on the impact of these instructions. The most noteworthy feature of current instructions regarding damages is the lack of guidance they provide. The consequence appears to be awards that have considerable variability and that are influenced by improper considerations. The authors also discuss research on the effectiveness of alternative forms of jury instructions and trial procedures in preventing or reducing these problems. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

"Shouldn't we consider...?": Jury discussions of forbidden topics and effects on damage awards.

The Federal Rules of Evidence prohibit disclosure to civil jurors of information that is arguably related to their decision-making (e.g., that either party is insured). The basis for so-called "blindfolding" is that a jury might be biased by this information to alter its appraisal of the evidence to reach a desired verdict. The purpose of this study was to examine the extent to which mock juries in an automobile negligence case discuss several "silent factors" during deliberation (viz., insurance carried by the parties, the payment of attorneys' fees, and previous settlements between the plaintiff and other defendants) and the effects of such discussion on their compensatory damage award. We presented summaries of the evidence that varied in the severity of the plaintiff's injuries and the reprehensibility of the defendant's conduct. These variables influenced judgments of liability and damage awards. Analysis of the content of jury deliberations regarding damages showed that, although nearly all juries talked about silent factors, the size of their damage awards was unrelated to the frequency of these discussions and that such discussion accounted for only a very small portion of the variance in awards. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Guided Jury Discretion in Capital Murder Cases: The Role of Declarative and Procedural Knowledge.

This article analyzes whether state-approved jury instructions adequately guide jury discretion in the penalty phase of first-degree murder trials. It examines Eighth Amendment jurisprudence regarding guided jury discretion, emphasizing the use of "empirical factors" to examine the quality of state-approved instructions. Psychological research and testimony on the topic of the comprehensibility of jury logical instructions are reviewed. Data from a recently completed simulation with 80 deliberating juries showed that current instructions do not adequately convey the concepts and processes essential to guiding penalty phase judgments. An additional simulation with 20 deliberating juries demonstrated that deliberation alone does not correct for jurors' errors in comprehension. The article concludes with recommendations for policy and future research. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Instructing on death: Psychologists, juries, and judges.

The American legal system depends on judicial instructions to structure jury death penalty decisions and thus avoid unconstitutional arbitrariness. Some death penalty instructions, however, provide woefully inadequate guidance and ignore schemas that lead jurors to misconstrue instructions. Empirical research has just begun to document sources of misunderstanding and ways to improve communication. Psychological research can assist in reducing arbitrariness in death penalty decisions, but even optimal instructions may not produce constitutionally sufficient consistency. To be constitutional, capital punishment must be imposed according to a consistent set of standards. Simultaneously, juries must be free to consider in mitigation any relevant case or offender characteristic. It is far from clear that this constitutional conflict between standards and discretion can be resolved. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Reducing the biasing effects of judges' nonverbal behavior with simplified jury instruction.

This research hypothesized that using simpler jury instructions would reduce jurors' reliance on judges' nonverbal behavior. Mock jurors were given either standard or simplified jury instructions, heard actual trial testimony, and then saw a judge reading jury instructions (i.e., a judge who had an expectation or belief of either guilt or innocence for a defendant). This experiment was conducted twice, once with a student population and once with an adult population. For the students neither the judges' expectations nor the jury instructions were strongly related to the jurors' verdicts. For the adults, jurors returned more guilty verdicts overall when judges thought the defendant was guilty, and this trend was moderated by the jury instructions. The relationship between judges' expectations and jurors' verdicts was strongly positive when standard instructions were given but was weaker and in the opposite direction when simplified instructions were given. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Authoritarianism and decisions of mock juries: Evidence of jury bias and group polarization.

A mock-jury experiment investigated the effects of authoritarianism on juror and jury decisions and examined the generalizability of the group polarization hypothesis for a simulated jury task. 132 high- and 125 low authoritarians (as assessed by the California F Scale) listened to a murder trial and then made judgments about guilt and punishment as individuals, in 6 person juries, and again after deliberations as individuals. As predicted, both high-authoritarian jurors and juries reached guilty verdicts more frequently and imposed more severe punishment than low authoritarians. Further, high authoritarians showed more prediscussion–postdiscussion verdict changes than low authoritarians. Results also support the polarization hypothesis in a jury paradigm. Deliberations produced a shift toward greater severity of punishment for high authoritarians but toward increased leniency for low authoritarians. Guilt verdicts shifted toward acquittal for all jurors. (20 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Describing jurors' personal conceptions of insanity and their relationship to case judgments.

In a series of studies, prototype theory was applied to describe the nature, variability, and effect of jurors' conceptions of insanity. Specifically, (a) 80 jurors described the features of their prototypes of insanity, (b) 5 jurors combined similar features to develop a core set of features to measure individual differences, and (c) 135 jurors and 236 undergraduates completed measures of individual differences in prototypes and attitudes toward the insanity defense and the criminal justice system and rendered insanity case judgments. Results suggest that (a) jurors' prototypes of insanity cannot be reduced to legal or psychiatric constructs; (b) although there are marked individual differences in prototypes, there are 3 identifiable groups of jurors with prototypes that emphasize severe mental disability, "moral insanity," and mental state at the time of the offense; and (c) these prototypes are associated with case-relevant attitudes and affect the way in which jurors interpret case information and render verdicts. Implications for future research, legal reform, and the presentation of expert evidence are analyzed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Eyewitness identification: What can a psychologist tell a jury?

Examines the arguments in favor of experimental psychologists testifying as expert witnesses in cases involving eyewitnesses to inform the jury about problems with eyewitness testimony. Rationales for such use are (1) the assertion the jurors cannot discriminate between accurate and inaccurate witnesses, and (2) the assumption that jurors are too willing to believe eyewitness testimony. The present authors point out that known cases of erroneous conviction due to juror overbelief fail to establish that the frequency is unacceptably high. Other studies indicate that jurors are able to take into account at least some factors that influence witness testimony. Contrary to claims made recently by psychologists and lawyers, it is by no means clear that expert psychological testimony about eyewitnesses would improve jurors' ability to evaluate eyewitness testimony. In fact, it is even possible that this sort of expert testimony would have detrimental effects. A hypothetical example of a prosecutor examining a defense psychologist is presented. (34 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)