Challenge For Cause Flashcards
Jury functions
- To use the wisdom of 12 to reach a verdict
- To act as the conscience of the community
- To protect against out of date laws
- To increase knowledge of the justice system
1- comes from common law old system- kind would be judge- have day- each lvl have hierarchal order that ppl make decisions
Lower ppl, then those who own land- highest level= king- listened to dispute
When u testified- could bring up to 12 witnesses to speak on behalf
Is now a selection of the population where crime took place- judge trials
12 random ppl- no ties to individual- mAke fair an unbiased decision
Act as community
Difficxtult to do
Don’t do unbiased – techniques
2- abortion doctor
Community wishes for legal abortion
3- by going against or asking to be changes
Empaneling a fair jury
Representativeness
- voter registration and enumeration lists
- gender, race, Socio-Economic Status?
Impartiality
- must not be biased, or if biased they must be able to set aside any bias and decide the case on the evidence presented at trial alone.
1- doesn’t need to be proportional to population- isn’t representative in idea
Not every person has age opportunity
Use vote registration and enumeration(own home) To pick jury- not representative of young ppl
Have older skew
Ppl who make less money, who ove a lot
Underrepresentative of minorities- using voting= not representative
No one cares
Citizen duty to be a juror
There are possible penalties- fine jail time
2- look. For unbiased. Ppl
Unpartial- doesn’t mean unbiased
Everyone is biased- brains make hierarchy of meanings- create judgement
Brains categorize information
Depends how use info
Implicent attitude test- not accurate
Everyone has deviant thoughts- w are not our thoughts
IAT- being used for inappropriate reasons
Legal. System- judged upon a Titus reus- behaviour
Can be biased- set it aside- judge evidence at trial alone
Cant set aside bias- can consciously control bias wwe think we have- do not know bias we have- not el. Of how you would act, how unconcious bias affects us
Extrapolating conclusions not supported by data
What do you do if. Cant set aside bias- challenge for cause- get ppl not exposed to environment
Ex- change of environment
Jury selection Canadava vs USA
In Canada, most cases are judged without a jury
In Canada, there is a presumption that jurors are not biased and can be impartial
In the US there is a presumption that jurors are inherently biased and must be challenged
In Canada, jurors do not make decisions regarding sentencing (except making recommendations regarding parole eligibility in murder 2 cases)
Cnada- only serious offences- homilies, kidnapping, sexual assault
Indictable offences that allow a jury- exceeed 5 years allowed a jury- some exceptions- driving while disqualified, operation body house= judge alone
When jury is available- often taken- mennasian- ran ppl over- opted for judge alone- no one would have sympathy and NCRMD- with autism
Exceedingly rare
Jail- less 2 years
Prison= beyond 2 years
Have federal prison- if bad in other jail/prison can be sent there
Jurors impartial-
Many ppl don’t know about Canadian legal system
In America- have different view of human nature
Canada- believe impartial and unbiased jurors- unrealistic- this is basis for law and understanding of human
Everyone is biased
In USA- presume everyone is biased and subject to challenge- this is correct- takes more time and money
Because different assumptions- have different ways of jury selection
Jurors don make decision- judge does
Faint hope clause- the 2 cases but was re-appealed- before 2012- can apply for this- cant get rid of completely
In sate- depending on state- juror makes sentencing reccomendations and decide death penalty- have death penalty training - don’t desire if death penalty is option- depends on state and court level
Canada and the U.S.A.
In the US, there are long and personal challenges done by the lawyers and adjudicated by the trial judge often involving jury consultants
In Canada, the only information available to the lawyers is name, address, occupation, demeanor and physical appearance
In us- challenge for cause- done by lawyers and monitored b judge can bridge trial consultants
OJ- trial consultant precedent- 36 page questionnaire for juror before being challenged
Lawyer- can ask anything- judge decides if appropriate- can say don’t have to answer
Don’t like juror- make challenge fo cause- judge agrees or disagrees- preumtry challenge- excuse 12 jiurors-20 for homicide- can excuse with no reason
Canada has no challenge for cause anymore- saw that in rural communities lawyers- use challenge e to keep indigenous out of jury- was constant
Fundamental shift in application of jury se;ection
Cap of amount you can be reward
Canada only got rid of preumptyr cause- can still challenge based on bias
In canada- limited amount of information
Must make motion for challenge of cause
Trial consultation
Jury Selection
Witness preparation
Theory of the case
Cross examination techniques
Impact of pretrial publicity
Expert Testimony
Mostly in. The states- canaa does to but not specific job
Assist lawyers with jury selection- main job- beginning of their role- OJ Simpson- revolutionary- race issues, filmed, culture phenomenon- used trial consultants- he hires best team ever- many top lawyers- unprecedented- called the dream team- no governing rule to be trial consultant- state- cant keep up with the dream team- do jury selection- mostly everyone uses all preumptyr challenge- in selection- want to make unbiased jury- each lawyer trying to make most biased ppl- idea is with the preumptyr challlenges- get rid of he extreme - get rid of their most bias= unbiased jury- hardly every equal- may not know how to select a juror- ask lawyers- do you know who is biased- they are con diffident the do- get no feedback on juror selection- trial consalatnats use stats rather than opinion- the state hired trial consultant- the lawyer didn’t se all challenges- they both picked same jurors- black women- many ppl say jur selection caused the ruling
Witness preperation- tell witnesses how to say things, what to wear, how to portray self- use focus groups to decide which witnesses to us- dr Phil- have mock court rooms- hire actors, lawyers- play out trial and bring in focus groups- ask what they like or not and why- compile data to prepare witnesses
Theor of case- what should our defence be
Cross examination- assist in techniques- often scientists- prepare for cross examination- tell them how to discredit witness
Dr Phil- became famous because. Oprah was being sued- by beef company because had guest talking bad abt beef- said she would never. Eat hamburger again- meet sales went down 5%- hire dr Phil- tells er what to do- wins case- brings Phil on the show- brings him once again- created dr Phil show
OJ- 36 page questionnaire- asking about violence, race, wage- could never ask in canada- black women least likely to convict- more likely to believe innocence- domestic violence- black women excuse it see victim as pushy and overbearing- higher education= believe in DNA- want black women with least amoun t of education to win- state trial consultant- said want same thing- lawyer said black women would convictOJ bc he married white women and beat women- taken off case jury selection went fast- both getting backed women- state wanted educated ones- jury 8 women, most uneducated, 5- had neg police experience- year long trial- 4 hour jury deliberation- was found unguilty- found liable of wrongful death- millions of dollars
Impact of publicity- do survey to see how many exposed to neg- advocate for challenge of cause- don’t do it= grounds for appeal- standard has dropped- most times do it either way still have to make motion
Expert testimony- can be expert or assist in hiring/ examining expert
Jury selection
Mock trials
Focus groups
Surveys
Questionnaire packages
Data analysis
Voire dire (challenge for cause)
Voice dire- any evidence presented, motion made withou jury present
Parks- first time seeing rac could cause bias
Effectiveness of Trial Consultants?
Olczak, Kaplan, & Penrod, (1991) – in a challenge for cause, lawyers no better at detecting bias than students
Videotape: lawyers performed worse than chance at detecting biased jurors
Moran, Cutler, & DeLisa (1994) – trial consultation may account for 10-15% of variance and may be marginally effective in equivocal cases
How effective ar they- don’t know actual outcomes- ant use verdict to determine guilt
Penrod- hard to determine bias- unless know person- cant judge based on face and body motions bias- which is often hidden
Culter- pay a lot of money- has intrinsic value- good trial consultants- assume they’re good- good ones tend to win
Ones at trial- guilt s often questionable
Cant prosecute case don’t think will win- job is to pick cases they think can win
High wins= more money- do public service- then go to private parter- reputation based on convictions
Only equiocal cases go to trial usually
Sources of bias
Interest bias
Specific bias
Normative bias
Generic bias
Jurors are polled at the beginning of jury selection to ensure they have no connection to the case, or know or have a relationship with anyone who has a connection with the case.
1- ppl who have a stake in the outcome- know victim, police officer. Have connection to anyone. Deal with it upfront, 12 jurors- have 120 potential jurors. Role call- have list of everyone involved in trial- everyone- judge, witness, bailiff. If know any of the names, put hand up and are excused. Can be called for another trial still. Old lady knows mom of witness- excised take no chances. Canberra held in contempt or excused if fail to say
2- specific- info about the case that is not presented at trial- see if credibility outweighs prejiduce. Bias has been compromised- Pretrial publicity- any info exposed to of case- doesn’t need to be from media. Exposed to information- creates filter of new information- conformation bias- becomes structure of filter for related info- don’t need to remember or believe- unconcious- inconsistent don’t pay attention- say incredible, don’t remember
Consistent- remember believe pay attention to. Way we process info
As long as say impartial- take word for it
Don’t know how it will affect decision.
3- normative bias- commit influnce. Specific to this community- drug epidemic happening and drug dealers- ravening community- one in community called to drug case- he cant be unbiased- community has been ripped apart- cant say if the person did crime- is not specific to you. Certain crimes- charge= punishment alone. Child molester- charge alone is enough to create bias. Normative bias against crime
4- generic bias- characteristics of groups/individual- ethnic bias
Part of group that ppl have bias against- make sure jury isn’t biased against minority
Remedies of bias
Publication bans
Adjournment
Change of Venue
Challenge for Cause
1- Ban media from covering story- USA hates this- says it restricts freedom too much- instead sequestering- high profile case- sequester jury- live in hotel- cant be exposed to new or outside info- many states- go home weekend, holidays
Often o what they’re not supposed to- try to get around publication ban- section 2b of Canadian charter- reasonable limit cause can access info after- canada= no sequester until trial deliberation- sequestered until make decision- do temporary ban- hope they do what they’re supposed to- ban starts before trial- starts if and when you get judge to agree
Incredibly effective- Paul Bernardo vs Robert pickton
Very rare- high profile cases nylon
2- wait till later- too much fuss, media coverage. Section 11,10- right to a speedy trial- if not in rasonabetime(decided by judge)- dismiss case= 2 examples- announced family day- couldn’t reschedule bc of family day- dismisased charges of everyone convicted on that day- except for violent offences
Dismiss case when taking too long- doesn’t happen often- not as good of a remedy
3- move it somewhere else, move Bernardo case from st Catherine’s- unfair trial- moved it to Toronto- concerned abt getting conviction in best way— with no problems or grounds for appeal
Rarely granted. Change venue- judge gives up case r has t get accommodations
Challenge for cause- cleanup remedy for everything, mos used often get immediate- if not granted= grounds for appeal
Challenge for cause
Legal mechanism in place to challenge jurors as to whether they would be impartial with respect to a particular issue
Must establish a reasonable inference of potential bias in the population
Judge decides whether a challenge is warranted and has final approval of any questions to be put to the jury
The issue- is the defendant of he trial or the charge they are cjarghed with
What you’re arguing about-
Establish reasonabl inference- need evidence-
In USA- lawyer can ask any question
In canada- prepare before hand and judge decided or will change reading
Often allow one question-parks question
Allowed on grounds of pretrial publicity
Sexual orientation
HIV status
Mental Disability
Offense based challenges (overturned)_
Drug involvement
Political or moral attitudes- abortion, death penalty
Police credibility
Race or minority group status- anytime minority- grounds for challenge
Show retrial publicity- get challenge for caused- allowed to ask if info seen will impact results
Orientation- prejiduce againts sexual orientation With is
Offence based- charge is child molestation- impacts bias
Ontario Court of appeal has overturned the challenge for cause based on charge
Every court below- is bound by it
If another appeal court disagrees- goes to Supreme Court has to make it t Supreme Court- not up top Supreme Court what cases come
Most challenges- based on ethnicity
Research
Prejudice and Stereotyping:
Duncan (1976), Sager & Schofield (1980), Bargh, Chen, and Burrows (1996)- overt racism
Knowledge of stereotypes vs. personal beliefs (Devine, 1989)
Automatic vs. controlled processes
(Fazio, Jackson, Dunton, and Williams (1995)
Ideas based on anecdotal evidence from observing the Challenge for Cause during jury selection at the Superior Court of Justice (Toronto).
Now begin to have covert racism- in small groups, with friends- can be same amount jus t not revealed
In studies- had child pushing other child- black child seen as more aggressive
Did same things with adults found same thing
1995- play unconcious stereotypes- prime them with bias- do a task- regardless of race after being primed- acd more hostile to black confederate
Black= more hostile
IAT- test unconcious biasno evidence suggesting implicit attitude translates to behaviour- concious brain. Matters
Prejudice in the Legal System
United States: Field (1979), Klein & Creech (1982), Radelet & Pierce (1985)
Canada: Avio (1988) Archival analysis
Pfeifer & Ogloff (1991) jury instructions
Bagby, Parker, Rector, & Kalemba (1994) - - bias against white defendant
Motivation to conceal prejudice?
Pierce- all suggests great bias againts minority groups, field- black person chanrged with crime compared to white person w same charge- black= more likely to be convicted, go to trial, guilty, longer sentence
Systematic racism- not intentional- dont get enefit of doubt
Has this changed?- in 80s- assume racism is only in USA. Ran study to show canada wasn’t racxist- found the same thing- black ppl more likely to be convicted
1991- doesn’t make a difference
1994- think attractiveness caused this effect
Ppl aren’t honest abt prejiduce- environment influences
Want accurate- huge it’s of questions- prejiduce alone= makes nervous
Make it anonymous
R. v. Parks (1993), 24 C.R.(4th) 81.
Air of reality
Ontario Court of Appeals took judicial notice that . . .“there is a realistic possibility that a juror will be influenced in the performance of his or her judicial duty on the basis of racial bias”
Supreme Court of Canada reiterates this precedent in R. v. Williams (1998)
To have challenge granted- have air of reality- low standard- it is possible
Parks case- black drug dealer killed white tea I driver. Racially motivated. Judge takes judicial notice- don’t have to do it again- legal sees it as true
Every challenge will be granted and each minority- gets challenge for cause
Those who disagree- get narrow construction- constrict it to the words only- ppl say black man killed white man= only the case it applies
R v William- aboriginal kills white victim- don’t allow challenge for cause- Supreme Court grants challenge for cause
Parks= any minority gets challenge
R. v. Parks (1993), 24 C.R.(4th) 81.
Air of reality
Ontario Court of Appeals took judicial notice that . . .“there is a realistic possibility that a juror will be influenced in the performance of his or her judicial duty on the basis of racial bias”
Supreme Court of Canada reiterates this precedent in R. v. Williams (1998)
To have challenge granted- have air of reality- low standard- it is possible
Parks case- black drug dealer killed white tea I driver. Racially motivated. Judge takes judicial notice- don’t have to do it again- legal sees it as true
Every challenge will be granted and each minority- gets challenge for cause
Those who disagree- get narrow construction- constrict it to the words only- ppl say black man killed white man= only the case it applies
R v William- aboriginal kills white victim- don’t allow challenge for cause- Supreme Court grants challenge for cause
Parks= any minority gets challenge
Challenge for Cause
Select first two “triers”
On the basis of the potential juror’s answer to the challenge for cause question(s), the trier decides whether the potential juror is acceptable or unacceptable to sit on the upcoming trial
Legally, having a bias does not necessarily indicate you are partial
Tries- make the decision
Swear in trier
