9 Juries and Expert Witnesses

Question 1

What is a jury?

Answer 1

“Twelve heads are better than one” the idea that it is better to have 12 people than one person to make the decision based on evidence

Question 2

What is the role of a jury?

Answer 2

Apply the law to the evidence and render a verdict of guilty or not guilty to the defendant

• Act as the community conscience and protect against out-of-date laws
• Criminal: 12, Civil: 4

Question 3

Which courts are juries mostly used in?

Answer 3

Only used in the district or supreme court (i.e. serious crimes like murder, sexual assault)

Question 4

What is the most common method to study juror decision-making?

Answer 4

Mock jury methods

Question 5

Explain mock jury methods and the type of validity they have

Answer 5

High Internal Validity

Because these are not real jurors and often done in a controlled setting we are able to control over the variables and experimental manipulations.

Question 6

Why are there ecological validity concerns in the mock jury method?

Answer 6

Ability to generalize to real jurors to making real decisions

Question 7

What are the issues with the sample in the mock jury method?

Answer 7

Undergraduates not being representative of the entire population

Question 8

How do real-life consequences impact decision-making in mock jury method vs real-life jury?

Answer 8

They are not the same for mock jurors as they are for real jurors because you’re not actually convicting someone so would your decision-making be the same if their life is actually in your hands

Question 9

What effect does the format have mock jury methods?

Answer 9

The format in which we present the trial is not exactly realistic so basically doesn’t mimic the actual juror environment

Question 10

What are the differences in the way we measure guilt in simulations vs real life?

Answer 10

The way we measure guilt in these simulations compared to real-life (asking jurors “do you believe beyond a reasonable doubt if this person is guilty or not) in simulations (on a scale of 1 to 7 how guilty do you think this person is?)
-that’s a problem as it is a very different way of operationalizing the decisions the jurors are making

Question 11

What type of effect does deliberation have on research in simulations vs real-life

Answer 11

Lack of deliberation - most of the research out there doesn’t get the jurors to deliberate with each other but go off based individual decisions

Question 12

What are the steps for reaching a verdict?

Answer 12

1) Listen to the evidence
2) Disregard inadmissible evidence (challenging to pretend you didn’t hear something and not factor it in)
3) Follow the judge’s instructions (what the charge entails, factors to consider)
4) Juror decision-making (form own opinions, make own decision)
o Most of the research is focused here
5) Deliberation (deliberate with other 11 jurors and to reach a consensus (11 to 1) otherwise it results in a hung jury and must re-try the case with a new jury
6) Delivery the final verdict

Question 13

What are the models of juror decision-making?

Answer 13

1) Mathematical models
2) Explanatory models
3) Dual-process models

Question 14

Explain the mathematical model of juror decision-making

Answer 14

Jury decision-making as a set of mental calculations. The idea that jurors are logical and rational in their decision-making

• Suggests all jurors should essentially be reaching the same conclusion
• The mathematical weight assigned to each piece of evidence e.g. a strong piece of evidence, so I’ll assign this weight to it
• Research indicated otherwise although it might be good for objectively seeing whether jurors reach the same verdict, it tends to not be used by jurors so much

Question 15

Explain the explanatory model of juror decision-making

Answer 15

Story model - This model suggests is that jurors want to make sense of all the evidence, so they will try to make stories of all the evidence that are presented, and it is not exactly objective as it includes (past experiences etc)

• Juries make one or more stories to try and understand the evidence
• Includes past experiences, attitudes, and beliefs
• Verdict determined by the consistency between stories and evidence
• Research indicated this is more consistent with how jurors make decisions -> Jurors were more likely to convict when the evidence in a story rather than by topic order
• Other research shows those who give a non-guilty verdict have different stories to those of guilty verdict

Question 16

The memory of trial information

Answer 16

Jurors may not remember key pieces of evidence that should impact the decision-making

Question 17

Does the time of which key evidence is presented influence memory in terms of the jury remembering it?

Answer 17

Memory for key evidence was poorer when presented at the beginning of a trial compared to when it was presented towards the end

Question 18

In what ways can juror’s memories be affected?

Answer 18

Juror’s memories can be distorted if they are exposed to external information

Question 19

What evidence is there that juror’s memories can be affected?

Answer 19

Following the news on related matters influenced their memories by mis-remberering information they may have read before the trial as being part of the trial

Question 20

Is there anything we can do to improve juror memory?

Answer 20

1) Juror note-taking
- Found to enhance juror recall, although not all tend to utilise this
2) Asking the judge questions
- Not as effective as note-taking but tends to give a better understanding

Question 21

What are the functions of expert witnesses?

Answer 21

Two primary functions:

1) Aid in understanding a particular issue relevant to the case
2) Provide an opinion

Question 22

How are expert witnesses different from eyewitnesses?

Answer 22

They contrast with the role of regular witnesses as expert witnesses can provide an opinion because they have specialised knowledge

Question 23

Who can use expert witnesses?

Answer 23

Either legal team or both can ask the judge to permit expert witnesses

Question 24

What type of cases do experts usually testify in?

Answer 24

Experts most commonly testify in sexual assault or murder cases particularly because these involve a lot of DNA evidences

Question 25

What type of experts are there?

Answer 25

• DNA or other medical evidence (most common)
• Forensic pathology
• Psychiatry/psychology
• Vehicle analysis (fingerprints, ballistic)

Question 26

Explain psychologists as witnesses

Answer 26

Expert witnesses may be clinical psychologists or academic

• Linking the client’s psychological state to the crime committed
• Providing opinions on sentencing
• Giving information on antecedents and mitigating factors

Question 27

What effects do psychologists have on sentencing in courts when they are called upon as expert witnesses?

Answer 27

They tend to assist the judge in making sentencing decision by linking the client’s psychology state to the crime – reasoning or justification on why it occurred
- May give information to what led to the event or mitigating factors

Question 28

What is the admissibility of expert testimony?

Answer 28

Experts must satisfy the judge’s approval that they have special knowledge above and beyond that or the average juror and that this expertise will assist jurors
- Must be relevant in the case and assist jurors in their decision

Question 29

What are the effects of expert witnesses

Answer 29

There’s different effect that experts can have on juror’s decision making

1) Confusion
2) Sensitivity
3) Scepticism

Question 30

How can expert witnesses cause confusion on a juror’s decision-making?

Answer 30

It may just be too confusing or make them more unsure of their decisions

Question 31

How can expert witnesses cause sensitivity on a juror’s decision-making?

Answer 31

Desirable effect of expert testimony -> leads jurors to become sensitive to the evidence so their sensitivity is enhanced

• So, jurors are able to take the knowledge given to them by the expert and integrate that knowledge into their decision-making (not just about better understanding but this understanding is leading to better decisions being made)
• Comprises of both knowledge and integration

What sensitivity really involves is helping jurors discriminate between good evidence and bad evidence if they’re gaining this knowledge then integrating this knowledge then they should be able to tell when this evidence is good and when it is bad, based on what the expert is telling them

Question 32

How can expert witnesses cause scepticism on a juror’s decision-making?

Answer 32

Having two expert witnesses can undermine the credibility of all evidence. Research shows that when you have two experts (opposing experts) on the same case it has the scepticism effect

Question 33

What is the bad approach for research studies?

Answer 33

Expert present: Good witness + bad eyewitness but no control group = hard to know if expert is driving this sensitivity and will it be there without an expert
Bad witness: Expert present + expert absent = with the expert is present we are seeing a reduce in credibility but because there is no good witness would we get the same effect?

Question 34

What is the right approach for research studies?

Answer 34

Good witness and bad witness: expert present and expert absent: independently manipulate both evidence (whether it is good or bad) and manipulate whether the expert is there or not
- The way in which we set up the study makes it easier to detect the effects the expert witness has on jurors

Question 35

Are experts helpful?

Answer 35

Some scepticism in some studies and sensitivity in others

Question 36

What are the factors affecting expert testimony?

Answer 36

1) Presentation of expert evidence
2) Characteristics of expert
3) Payment of expert
4) Media

Question 37

What are the factors regarding the presentation of expert evidence in expert testimony

Answer 37

Use of language: jurors best understand the simple, jargon-free and clear message

Format of expert evidence: phrasing the question in a certain way makes the difference

Timing of expert evidence: expert testimony best when it follows the evidence related to it

Question 38

What are the factors regarding the characteristics of an expert in expert testimony?

Answer 38

Gender: females and males are rated more highly in their respective fields but was shown to be based on the complexity of the information as it had no effect when the information was simple

Credentials: prestigious institution and no. of publications may play a role (more prestigious rated higher with complex testimony and when simple, less prestigious was rated higher)

Question 39

What are the factors regarding the payment of expert in expert testimony?

Answer 39

“hired gun” taking the position of the legal team in exchange for a fee so basically the greater frequency as an expert witness and getting paid together negatively influence juror’s verdict

Question 40

What are the factors regarding the media in expert testimony?

Answer 40

They are having an indirect effect where these shows are changing our expectations about the forensic evidence and those expectations are driving any effects, so the shows are not directly having an effect

Question 41

Why do these external factors play a role?

Answer 41

Dual-process models can help understand how extra-legal factors impact upon expert testimony
- E.g. elaboration likelihood model

Question 42

What is the elaboration likelihood model?

Answer 42

Was adjusted and brought into the legal field to understand an expert’s persuasiveness. This model suggests that we have two processing routes that occur simultaneously so when we are processing evidence we have these two simultaneous systems occurring
- Central/systematic and peripheral/heuristic

Question 43

What is the central/systematic processing route in the ELM?

Answer 43

Effortful evaluation of the expert’s message
- When we’re actually trying to process the content of the expert’s testimony. Only really happening when jurors have high motivation to listen to the evidence and is simple to understand

Question 44

What is the peripheral/heuristic processing route in the ELM?

Answer 44

Reliance on stereotypes, schemas and extra-legal factors
- Relies on biases and heuristics and tends to occur more when the evidence is complex to understand, and the motivation is low. Due to testimony being complex

Question 45

What do we have to make sure of in the expert testimony to avoid the wrong processing route?

Answer 45

Making sure the expert is engaging in simple and easy to understand language, so we can make the systematic process is happening

Question 46

What are some problems with expert witnesses?

Answer 46

1. Legal criticisms
   - Legal team’s advocacy of their experts: failure to cross-examine the expert to make them accountable for what they are saying
   - Legal criticisms of psychological experts: legal professionals have little understanding of careers and pathways in psychology
2. Defining “specialised knowledge”
   - No consensus of what specialised knowledge entails
   - Everyone has a different idea on what is specialised knowledge e.g. years of experience vs qualifications

Question 47

How do we improve expert testimony?

Answer 47

Possible system-level strategies

• “hot-tubbing”: where experts from different legal teams will create a report together and try to reach a consensus in order to provide a dual report
• Independent expert witnesses: not serving a party but supplied by the court to remove any bias
• Blinded expert witnesses: they’re for a legal team but don’t know which team they are supporting

Judges should:
-They should know the kind of validity and reliability in their research before making decisions

Lawyers should:
-Carefully craft questions of the evidence provided by an expert, to help jurors and judges better evaluate its quality

Expert witnesses should:
-Engage in “open-science” practices and come prepared

All should: engage in better communication

Question 48

What is the most common way of studying juries?

Answer 48

Mock jury methods are the most common way of studying juror decision-making, with strengths and weaknesses

Question 49

What do jurors tend to do in complex cases?

Answer 49

Jurors tend to create stories out of evidence, and may also be peripheral cues when an expert’s evidence is complex

Question 50

What type of witnesses are used to validate evidence in courts?

Answer 50

Expert witnesses are used in variety of areas and may have different effects