Courts And Juries Flashcards
What are the two types of trial?
Adversarial system
Inquisitorial system
What is the adversarial system?
Characteristic of Anglo American system.
Two advocates represent their parties positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case.
Justice is done when the most effective adversary is able to convince a judge or jury that his or her perspective on the case is the correct one.
How is the adversarial system carried out?
Judges in an adversarial system are impartial in ensuring the fair play of due process, or fundamental justice.
Lawyers are partisan and act for opposed parties.
The judge does not actively steer the questioning.
All evidence must be relevant and presented orally rather than as a written submission.
Criminal defendant is not required to testify.
What is the inquisitorial system?
Characteristic of continental European system.
Legal system where the court or a part of the court is actively involved in investigating the facts of the case.
Primary objective is achieving the truth with the rights of the individual secondary.
How is the inquisitorial system carried out?
Judge can be involved in the early stages of the police investigation.
Those knowledgeable about the events provide information to the court.
Judge steers the legal process including the questioning of witnesses.
The criminal defendant is the 1st to testify and knows the states case against them.
Adversarial v. inquisitorial systems
The systems are not as distinct as they might be – both may be used in the same jurisdiction.
There are also differences between different adversarial system (e.g., UK versus US). In the UK:
- lawyers are confined and are not free to walk around the court room when presenting the case.
- opening statement from the defence is given after the other side has presented its case.
- objections from lawyers are not dealt with in the presence of a jury.
- judges are more active in the flow of evidence.
Are juries affected differently?
Theories of persuasion suggest two methods in which information is processed (Petty and Cacioppo, 1981):
- Central Route
- Peripheral route
Collett and Kovera (2003)
- Mock trials under UK and US system
- Some differences were found
- BUT failed to demonstrate the two systems differentially affecting the trial outcome
Are trial outcomes predictable?
Fitzmaurice et al. (1996) studied accuracy of sentencing.
- Predictions weren’t particularly good.
- Percentage of correctly predicted sentences as low as 20% and no higher than 60%.
But lawyers have to predict most likely outcome of taking a case to court
Lawyers assessments of outcomes follow the principles of psychology in decision-making under conditions of uncertainty (Fox and Rirke, 2002).
Evidence to suggest the way the issue is presented in terms of numbers of factors to consider affects the probabilities of different outcomes as assessed by the lawyer.
Cauffman et al., (2007) found that legal factors most important in determining prison sentence or probation order was awarded.
What are the structural constraints of presentation of evidence in court?
Can’t just present any evidence in court.
- How, what, where and when evidence may be provided.
- Usually on the order in which evidence is presented (Bartlett and Memon, 1995)
- Restrictions on use of information about previous offences.
- Prosecution gives its case first followed by the defence evidence.
How can the primacy recency effect have an affect on presentation of evidence in court?
Arguments presented first may differ in their persuasive impact from arguments presented second.
Lind and Ke (1985): the longer the trial, the greater the advantage to the more recent case; the shorter the trial, the greater the advantage to the case presented first.
Strategies in presentation of evidence in court
Bartlett and Memon (1995)
- Strategies that help a lawyer to persuade jurors and judges
- Strategies that manipulate the credibility of the witness.
Bennett and Feldman (1981)
- Strategies used by lawyers to construct their narrative.
Why is narrative important in presentation of evidence in court?
In portance of narrative underlying layers cases: evidence not necessarily the key, the story that links the evidence together.
Pennington and Hastie (1981; 1986) – crucial to a good narrative:
- goals of the participants
– physical conditions
– psychological conditions
Bennett and Feldman (1981) – number of ambiguous linkages in a story (e.g. how different elements of the story link up) partly determined and undermines the credibility of perceived truthfulness of the story.
Structural properties of the ‘story’ far outweigh other factors (witness credibility, lawyers use of language etc.) In perceptions of its truthfulness
Lawyer tactics: discrediting strategies
Witnesses and expert witnesses (e.g. training/education background, psycholgy’s scientific status, controversies associated with diagnosing mental illness; personal attacks)
Larson and Brodsky (2010) found experts subjected to more personal discrediting strategies were seen as more credible, trustworthy and believable than those who were treated more fairly.
Lawyer Tactics: Use of abstract language with child witnesses
Affects accuracy of testimony of the child.
Evans et al. (2009) looked at whether the outcome of a trial can be predicted from the complexity of the questions asked.
Trial verdict could be predicted accurately in 83% of cases from the complexity of the defence lawyers questioning BUT only convictions (not acquittals)
Lawyer Tactics: Plea bargaining
Kramer et al (2007) looked at lawyers’ decision making when advising a client about plea bargaining.
When the evidence was weak but the likely sentence, if convicted long and the defendant preferred to go to trial, then there was a low likelihood of the lawyer recommending a plea bargain deal.
Lawyer Tactics: Using the defendant as a witness
Pros and cons of the defendant taking the witness stand
Shaffer et al. (1985, 1982, 1979) showed defendants who do not take the stand are more likely to be judged negatively
Jones and Harrison (2009) found no convincing indication of whether it is better for the defendant to take the witness stand or not.
Juveniles and the Justice System
Increased attention on juvenile delinquency and justice system from media attention to crimes involving children (Krisberg and Wolf, 2005)
Juvenile justice system has undergone significant changes over the last few decades.
Early Juvenile Justice Systems
First juvenile court established 1899.
Focus of juvenile courts:
- Rehabilitation - focus on needs of the children
- Less punitive
- Juveniles not viewed fully responsible for their actions and unable to form criminal intent (ages 7 - 14)
Court proceedings were not adversarial - duty to protect and care for juvenile offenders.
Offences were in the majority status offences (e.g. crimes only committed by juveniles such as truancy)
Juvenile Delinquency and Juvenile Offences
Department of Justice, US (2001): Juvenile offending is decreasing despite public perceptions.
Prevalence of juvenile offenders (Shoemaker and Wolfe, 2005):
- 2 million arrests each year
- 1 million sent to juvenile court (500,000 sent to detention centres and 10,000 sent to criminal court)
Types of juveniles proceedings (Ostrom et al., 2001):
- 61% delinquency proceedings, 19% status offences, 19% victimisation or abuse of children
Age of juvenile offenders (Snyder and Sickmund, 1999):
- 58% younger than 16, 32% younger than 15, 9% younger than 12
Gender (Snyder, 2000)
- 83% increase in female in juvenile crime
Offence types vary (Godwin and Helms, 2002):
- Status offences (truancy, loitering etc.)
- Property offences account for 1/3 of all juvenile arrests (burglary, theft and arson)
Risk factors for juvenile offending
Delinquency and Violence (Farrington and Loeber, 2000; Lipsey and Derzon, 19988; Redding et al., 2005): Family context Problems in school Peers and gang membership Community context Individual factors
Sexual Violence (Heilbrun et al., 2005) re-offending associated with:
Being an acquaintance of the victim
Not receiving any treatment
Being younger
Role of Forensic Psychologist in Juvenile Court
Evaluating treatment amenability Providing treatment Transfer evaluations Competency evaluations Insanity evaluations Risk Assessment
Case study: School Shootings
Shootings in Columbine High School in 1990s, Virginia Tech in 2007
Increasing public concern about school violence - media sensationalisation
Myths of school shootings (O’Toole, 2000; Cornell, 2007)
- Epidemic and increasing
- All shooters are the same
- Shooters are loners
- Shooters are motivated by revenger
- Engage in unusual hobbies and activities
- Have easy access to weapons
Earl prevention efforts:
- Zero tolerance policies
- Identifying warning signs
- Profiling shooters
Threat assessments: Identification of precise actions associated with violent behaviour (Randazzo et al., 2006)
- Shooters usually tell someone of their plans
- Student makes a threat against the school
- Access to weapons, formulated a plan and has a target
Warning signs: truancy, substance and alcohol abuse, anger and aggression.
Profiles largely considered inappropriate: all students who had been bullied and dressed in black trench coats
What are the two types of juries?
Lay person jury (12 people) Escabinato jury (lay people and legal experts)
Role of jury trial is overstated
England and Wales: 2% of criminal cases are put before a jury.
Jury system has received a lot of criticism.
