Chapter 7: Juries: Fact Finders Flashcards
criminal cases
cases in which an act was allegedly committed as found in the Criminal Code of Canada
civil cases
those that involve a breach of contract or other claims of harm
juries in civil vs. criminal trials
- Both criminal and civil cases can be heard by jury or judge alone
- The process for jury selection is very different for civil and criminal cases
- Criminal cases have 12-person juries while civil cases have 6- or 8-person juries
Three main types of offences in Canada
- Summary offences
- Indictable offences
- Hybrid offences
Summary offences
involve a sentence of fewer than 6 months in prison and a fine of less than $2,000
how are summary offences tried in Canada?
by judge alone
Three categories of indictable offences
- Less serious indictable offences found in section 553 of the Criminal Code, which include theft, obtaining money or property by false pretences, and failure to comply with a probation order
- Highly serious offences, found in section 473 of the Criminal Code, which include treason, murder, and piracy
- Indictable offences not listed in section 553 or 473 of the Criminal Code, which include robbery, sexual assault with a weapon, and arson
how are category 1 indictable offences tried in Canada?
Heard by judge alone
how are category 2 indictable offences tried in Canada?
Heard by judge and jury, unless the attorney general and the accused agree that the trial can proceed without a jury
how are category 3 indictable offences tried in Canada?
The defendant can choose between 3 options:
1. To be tried by a provincial or territorial court judge without a jury and a preliminary inquiry
2. To have a preliminary inquiry and be tried by a judge without a jury
3. To have a preliminary inquiry and be tried by a judge and jury
what happens if the defendant of a category 3 indictable offence does not make a decision?
they will be tried by a judge and jury
hybrid offences
a cross between indictable and summary offences
how are hybrid offences tried in Canada?
- It is up to the Crown attorney to decide whether to proceed with the case as an indictable or a summary offence
- If they choose indictment, the maximum sentence is 5+ years in prison
- If they proceed summarily, the maximum penalty is 6 months (or 18 months in some cases)
juries act
provincial and territorial legislation that outlines the eligibility criteria for jury service and how prospective jurors must be selected
differences in the juries act across jurisdictions
Differences across jurisdictions include the minimum age to be a juror and the professions that keep individuals exempt from jury duty
jury summons
a court order that states a time and place to go for jury duty
does receiving a jury summons guarantee that you will be a juror?
no
2 types of challenges that lawyers can use to reject potential jurors
Preemptory challenge & challenge for cause
Preemptory challenge
when a lawyer believes that a juror is unlikely to reach a verdict in their favour. They do not need to provide a reason for rejecting the prospective juror.
Bill C-75
a bill passed in 2019 that removed preemptory challenges
Challenge for cause
a request that a prospective juror be dismissed because there is a specific and forceful reason to believe that the person cannot be fair, unbiased, or capable of serving as a juror
two fundamental characteristics of juries
representativeness & impartiality
Representativeness
a jury composition that represents the community where the crime occurred
Impartiality
a characteristic of unbiased jurors
how is representativeness achieved?
through randomness
who can challenge the composition of a jury?
The Crown or the defence can challenge the composition of the jury, arguing that it does not represent the community on some characteristics
R. v. Nepoose (1991)
the defendant was an Indigenous woman and the jury composition for her trial was successfully challenged for having too few women
Indigenous people on juries in Canada
Indigenous people remain underrepresented on juries because those living on reserves are not part of the municipal assessment lists that can be used to identify possible jurors, particularly in Ontario
Iacobucci’s recommendations for improving representativeness on juries (these were implemented by the Ontario government)
- Increased the period to complete juror questionnaires from 5 days to 30, and removed intimidating language regarding non-compliance
- Created a new division within the Ministry of the Attorney General: the Indigenous Justice Division
- Created the Indigenous Justice Group, which provides advice to the attorney general on judicial issues impacting Indigenous peoples in Ontario
- Funded studies to improve services for Indigenous speakers in Ontario
- Increased the number of First Nation liaisons and expanded the Indigenous
Courtworker Program - Allowed the creation of volunteer juror lists in Thunder Bay and Kenora.
The Juries Review Implementation Committee
committee comprised of First Nations community leaders, elders, and chiefs, alongside criminal policy directors and lawyers that is responsible for addressing the implementations outlined in Iacobucci’s report
The Indigenous Justice Advisory Group
an advisory group comprised of multiple First Nations members, law enforcement officials, and legal professionals, that aims to act as an intermediary between the attorney general and Indigenous leaders and communities in addressing how the Ontario justice system impacts Indigenous people
The Assistant Deputy Attorney General of Indigenous Justice
a new leadership position at the Ministry of the Attorney General in Ontario that aims to develop new programs and services to support Indigenous people in the justice system
3 issues central to impartiality
- Jurors setting aside pre-existing biases, prejudices, and attitudes
- Jurors ignoring information that is not part of admissible evidence
- Jurors having no connections to the defendant
R. v. Find (2001)
a potential juror and father of two was peremptorily challenged by the defence because of his strong feelings against rape and violence against young children. The trial judge dismissed this request
R. v. Davey (2012)
the jury panel list of names was provided 3 weeks before the trial and shown to the local law enforcement community. Mr. Davey appealed his conviction and argued that this was a miscarriage of justice, but the appeal was dismissed
why was Davey’s appeal dismissed in R. v. Davey (2012)?
- There was no requirement for the information provided by police to be disclosed
- The early release of the jury had no impact on the fairness of the trial
- The privacy right of prospective jurors was not breached
- There would have been no change in the selected jury members had the comments made by police officers been disclosed
Pretrial publicity
that negatively portrays the defendant may influence a juror’s decision
current research findings on pretrial publicity
- A meta-analysis found a modest positive relationship between exposure to negative pretrial publicity and judgments of guilt
- Recent research has confirmed this
Steggs & Landreville, 2017 pretrial publicity and punishment severity study
found that pretrial publicity influenced people’s perceptions of James Holmes, the Colorado theatre shooter, as malicious and increased the severity of punishment that individuals believed he deserved
Ruva & Guenther, 2015 pretrial publicity, verdicts, and memory study
found that mock jurors exposed to negative pretrial publicity were more likely to have errors in their memory and reach guilty verdicts. All juries exposed to negative pretrial publicity discussed it despite being told not to do so
positive pretrial publicity
Positive pretrial publicity biased jurors positively toward the defendant, but this kind of press is relatively rare in real-life cases
preliminary hearing
the Crown presents the evidence against the defendant and the judge determines whether there is sufficient evidence for the case to proceed to trial
media reporting in preliminary hearings
During preliminary hearings, the judge typically places a ban on media reporting of the evidence, but details often get leaked
Methods for increasing the likelihood of an impartial jury
- change of venue
- adjournment
- challenge for cause
Change of venue
moving a trial to a community other than the one in which the crime occurred to obtain an impartial jury
what factors lead to a biased community?
extensive pretrial publicity, a heinous crime, and a small community in which many people know the victim or the defendant
what is the most common method for increasing the likelihood of an impartial jury?
challenge for cause
where does the trial move to during a change of venue?
typically somewhere within the province or territory in which the crime occurred
adjournment
delaying the trial until sometime in the future
limitations of adjournments
prospective jurors and witnesses’ memories can fade and witnesses can move or die
challenge for cause
an option to reject biased jurors
what happens if a judge grants a challenge for cause?
prospective jurors can be probed with a set of predetermined questions approved by the judge
who determines challenge for cause?
the judge, who must consider 3 issues
3 issues that a judge must consider during a challenge for cause
- Jurors can alter their answers according to whether they want to serve on the jury
- Prospective jurors may find it difficult to be honest when answering questions about bias
- Prospective jurors must be aware of some of their biases and how they influence behaviour, but classic studies suggest that individuals are unaware of their biases and how they affect their behaviour
challenge for cause before Bill C-75
Before Bill C-75, a challenge for cause was done by 2 selected jurors who acted as triers for a third juror
main legal function of a jury
to apply the law by assessing the admissible evidence in the case and rendering a verdict of guilt or innocence
4 other functions of juries
- To use the wisdom of 12 (rather than the wisdom of 1) to reach a verdict
- To act as the conscience of the community
- To protect against out-of-date laws
- To increase knowledge about the justice system
jury nullification
occurs when a jury ignores the law and the evidence, rendering a verdict based on some other criteria
when does jury nullification typically occur?
when the case involves controversial issues
chaos theory
the theory that when jurors are guided by their emotions and personal biases rather than by the law, chaos in judgments results
Meissner et al., 2003 jury nullification instructions in a euthanasia case study
examined the influence of a jury nullification instruction in a euthanasia case. They found that mock jurors were more likely to find the defendant guilty with nullification instructions when they had a positive attitude toward euthanasia. When they were given a standard jury instruction, they reported referring to the legal aspects of their case to make their decisions. However, when they were given a nullification instruction, they reported that they relied on their attitudes toward euthanasia and their perceptions of the defendant’s behaviour
Kerr et al., 2008 nullification instructions and emotional biases study
examined the influence of nullification instructions and emotional biases. They found that those who heard the nullification instructions were more sensitive to emotionally biased information compared to the standard judicial instructions. Emotional biases also influenced verdicts, providing support for chaos theory
Post-trial interviews
asking jurors why they reached the verdicts they did
ways of studying jury behaviour
- post-trial interviews
- archives
- simulation
- field studies
post-trial interviews in Canada
- In Canada, jurors cannot discuss what occurred during deliberation
- Other countries like the U.S. do not have this rule
strength of post-trial interviews
high external validity
weakenesses of post-trial interviews
jurors’ accounts may not be reliable, cause-and-effect relationships cannot be established
archives
using records of trials to uncover relationships among variables
strength of archives
high external validity
weakenesses of archives
cause-and-effect relationships cannot be established, the researcher is restricted to the data available, the researcher is unaware of how the information was collected and the reliability of that information
simulation
creating a mock trial, or aspects of a trial, using a written, audio, or video format
strengths of simulations
high internal validity, cause-and-effect relationships can be established
weakenesses of simulations
low external validity, the participants may not be representative or real jury pools
field studies
involve using actual jurors while they are serving on jury duty
strength of field studies
high external validity
weakenesses of field studies
receiving approval from the courts is difficult, there are many confounding variables
deliberation
when jury members discuss the evidence privately among themselves to reach a verdict that is provided to the court
note-taking controversy
There is some controversy as to whether jurors should be allowed to take notes during a trial
Penrod & Heuer (1997) conclusions on juror note-taking
- Jurors’ notes serve as a memory aid.
- Jurors do not overemphasize the evidence that they have noted at the expense of evidence they have not recorded.
- Notes do not produce a distorted view of the case.
- Note-takers can keep up with the evidence as it is being presented.
- Note-takers do not distract jurors who do not take notes.
- Note-takers do not have an undue influence over those who do not take notes.
- Jurors’ notes are an accurate record of the trial.
- Juror note-taking does not favour either the prosecution/Crown or the defence.
juror note-taking in Canada
The trial judge in each case decides whether jurors will be allowed to take notes
quantity and type of jury questions
Juries typically have few questions and their questions tend to be concerned with the meaning of key legal terms
A meta-analysis by Penrod & Heuer (1997) came to the following conclusions regarding jury questions
- Jury questioning promotes juror understanding of the facts and the issues.
- Juror questions do not clearly help to get to the truth.
- Juror questions do not increase the jurors’, judges’, or attorneys’ satisfaction with the trial and verdict.
- Jurors ask legally appropriate questions.
- If counsel objects, and the objection is sustained, the jury does not draw inappropriate inferences from unanswered questions.
- Jurors do not become advocates.
Diamond et al., 2006 juror questions study
examined the juror questions submitted throughout 50 trials and found that the number of questions that jurors submitted increased the longer a witness testified. Most of the questions were “cross-checking” type questions that aimed to determine the plausibility of the witness account. Information gained from juror questions did not appear to dominate deliberations, but instead helped to clarify understanding of the evidence presented
what does the research conclude about the importance of jury questions?
Juror’s questions don’t seem to be particularly helpful or harmful
jury questions in Canada
Jurors may submit their questions to the judge in writing after the lawyers have completed their questioning of the witness. The judge then determines if the question is permissible and poses it to the witness if it is permissible
Kassin & Sommers, 1997 disregarding admissible evidence study
presented mock jurors with a piece of evidence that was admissible, inadmissible because it was illegally collected, or inadmissible because it was difficult to comprehend. Jurors who received the inadmissible evidence that was difficult to comprehend, they rendered similar verdicts to the control group, suggesting they disregarded it. Jurors who received the inadmissible evidence that had been illegally collected rendered similar verdicts to those who were told the evidence was admissible, demonstrating that they considered it.
Kassin & Sommers, 1997 disregarding admissible evidence study takeaway
jurors will disregard evidence when they are provided with a logical and legitimate reason for the judge’s decision to disregard it
backfire effect
a judge’s instruction to disregard evidence simply makes the evidence more memorable than if no instruction were given
memorable inadmissible evidence
if inadmissible evidence was memorable, it was harder for the jury to ignore
problem of judge’s instructions in jury trials
- Studies show that jurors do not remember, understand, or accurately apply judges’ instructions
- It is not uncommon to find levels of juror comprehension of judicial instructions that is less than 50% because jurors’ comprehension for instructions is generally poor
4 proposed reforms for judges’ instructions
- Rewriting instructions
- Providing a written copy of the instructions to jurors
- Providing jurors with pre- and post-evidence instructions
- Having lawyers clarify legal instruction during their presentation to the jury
have the 4 judge’s instructions propasal been implemented in Canada?
The 4 proposals have not been consistently implemented in Canada
types of jury-decision making models
mathematical and explanation models
mathematical models
view jurors as conducting a set of mental calculations regarding the importance and strength of each piece of evidence. A guilty or not guilty verdict is determined by the outcomes of the calculations for all the relevant evidence
are mathematical models accurate?
Studies show that the mathematical approach is inconsistent with how jurors report that they reach verdicts; they don’t necessarily update their prior beliefs in light of new evidence or conform to the principles of probability
explanation models
suggest that evidence is organized into a coherent whole
most common explanation model
the story model
the story model
proposes that jurors are active at understanding and processing the evidence. They interpret and elaborate on the evidence and make causal connections, creating a story structure. They then compare their stories with each verdict option presented by the judge and choose the verdict most consistent with the story
efficacy of the story model study
had participants watch a simulated murder trial and interviewed them to determine how they viewed the evidence. The researchers found that participants put evidence into a story format, and different stories were related to different verdicts
Devine’s 3 criteria for evaluating stories
coverage, coherence, and uniqueness
coverage
the extent to which a story can account for all of the evidence
coherence
the logical resilience of the story, which comprises 3 components: consistency, completeness, and plausibility
consistency
there is no contradiction within the jurors’ story
completeness
there are no gaps within the story
plausibility
the story must match the jurors’ understanding of how the world works
uniqueness
determines the confidence the juror has in a given story
Devine on story structure
if only one story structure can account for the evidence, the jurors’ confidence in that story is higher than if there are multiple stories that can account for the evidence
Devine’s decision-making model
an integrative, multi-level decision-making model that incorporates juror and jury decision-making
two components of Devine’s decision-making model
Director’s cut model & story sampling model
director’s cut model
proposes that the jurors use the evidence presented at trial to form a narrative. Jurors then construct their own models of the evidence to test the likelihood of the overall story.
story sampling model
the larger jury deliberation model, where jurors share their stories of the information with other jurors.
Two fundamental premises of the story sampling model
- Individual differences relevant to the deliberation include who participates and how much each juror says
- The structure of spoken juror contributions: when large factions are observed, they usually succeed with a verdict in that direction
Devine’s cognitive states
- Believer: favouring the prosecution
- Doubter: favouring the defence
- Muller: trying to choose between two or more plausible stories
- Puzzler: unable to formulate a story
Devine on cognitive states
Devine found that at the end of a trial, jurors will be in one of four cognitive states
can criminal cases proceed with less than 12 jurors?
Cases can continue with fewer than 12 jurors as long as no more than 2 members are excused
jury sequestering
In Canada, the jury is sequestered until the final verdict is reach
jury deliberation
During deliberation, the jury reviews the evidence and determines the most consistent match between the verdict options that were provided by the judge and the admissible evidence
polarization
when individuals tend to become more extreme in their initial position following a group discussion
leniency bias
when jurors move toward greater leniency during deliberations
Miller et al., 2011 leniency effect study
regardless of the stereotypicality of the crime, there was a general leniency effect when convicting both Muslim and Christian defendants
Adams et al., 2011 deliberation and racial biases study
examined racial biases against Middle Easterners with mock jurors before and after deliberation. They found that deliberation seemed to mediate any biases that may have existed, but only when implicit stereotypes were not elicited
reaching a verdict in the U.S. vs. Canada
- For criminal cases in Canada, the jury must reach a unanimous verdict
- The U.S. has permitted majority votes of 11-1, 10-2, and 9-3
hung jury
a jury that cannot reach a unanimous verdict
what happens after a hung jury?
the Crown must decide whether it will retry the case
6-person juries vs. 12-person juries
6-person juries are less representative of the community, remember less of the evidence, return quicker verdicts, and are more likely to reach a unanimous verdict than 12-person juries
majority vs. unanimous verdict juries
When a jury could retire with a majority vote, they tend to reach a decision faster and not fully discuss the evidence and the law
first verdict poll vs. final verdict
The first verdict poll tends to be consistent with the final verdict in 90% of cases
Two broad styles that juries adopt when reaching a verdict
verdict-driven & evidence-driven
verdict-driven deliberation
start the deliberation process by taking an initial verdict poll
evidence-driven deliberation
start the deliberation by discussing the evidence and take an initial verdict poll much later
