The Trial Process I: Pre-Trial Issues

Question 1

What is the over-arching goal of pre-trial procedures?

Answer 1

The individuals involved in the trial are able to understand the basic elements of the judicial process and that they are not impaired in their ability to competently participate

Question 2

Competence to stand trial

Answer 2

The issue of whether an individual is fully available to understand the situation

Question 3

Legal standard of competence to stand trial

Answer 3

Whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him.

Question 4

Psychological aspects of competency (3)

Answer 4

• Does the defendant understand the basic concepts related to the trial? - Do they understand the roles of the main actors in the trial? - Do they understand their legal/constitutional rights?

Question 5

Tests/assessments for competency

Answer 5

Competency Assessment Instruments (E.g. Competency Screening Test)

Question 6

Ultimate Trier of Fact

Answer 6

The entity that determines facts of a trial

Question 7

What is important to do when the jury is the ultimate trier of fact?

Answer 7

Ensure that it is an objective entitiy

Question 8

Areas of psychological research in relation to pre-trial issues:

Answer 8

• Change of venue
• Jury size
• Jury selection

Question 9

What would require a change of venue?

Answer 9

If the trial is going to be subject to bias due to the location of the trial (e.g the defendant is too popular - like in Bernie)

Question 10

Legal standard for change of venue

Answer 10

In order to attain a change of venue, one must demonstrate that prejudicial pre-trial publicity or local knowledge and continuing passion must be so inflamed to make it nearly impossible to select an impartial jury.

Question 11

Psychological aspects of need for venue change

Answer 11

• Empirical proof of prejudicial pre-trial publicity or local passion - Empirical proof of the impact of the above (on a jury) - Empirical proof of less impact at another venue

Question 12

Example of Paul Bernado trial

Answer 12

The trial was subject to a publication ban which applied to Canadian newspapers and media, and the venue was moved to Toronto from St. Catharines, where the murders occurred

Question 13

Tests/assessments of requirement to change venue

Answer 13

• 5 step survey process

Question 14

Step 1 of the five step survey process in changing venue

Answer 14

• 1 - get a reliable base rate sample: Sample of eligible jurors from community of interest

Question 15

step 2 of the five step survey process in changing venue

Answer 15

2 - reliable comparative sample - of eligible jurors from a random yet similar jurisdiction

Question 16

Step 3 of five step survey process in changing venue

Answer 16

3 - questions = asking questions similar to those asked within the legal context

Question 17

Step 4 of the five step survey process in changing venue

Answer 17

Analysis of data - quantitative and qualitative

Question 18

Step 5 of the five step survey process in changing venue

Answer 18

Evidence - introducing the results through an expert

Question 19

Issue of Jury Size

Answer 19

Ensuring that the size of the jury does not cause disadvantage to trial participants

Question 20

Legal standard for jury size

Answer 20

It must be demonstrated that the size of the panel successfully fulfills the ‘purpose of the jury’ (i.e, to act as a safeguard against prosecutorial and judicial bias or corruption)

Question 21

Psychological research on jury size (6 vs 12)

Answer 21

• smaller juries are less likely to provide a context for effective group deliberation than larger juries
• non-guilty individuals are more likely to be convicted by smaller juries
• hold-outs more likely to change their vote without an ally and lower likelihood of ally in smaller jury
• Smaller juries are less likely to represent a cross–section of society

Question 22

In relation to jury size in 1973 the colgrave vs battin trial did what?

Answer 22

Allowed 6-member jury for civil cases

Question 23

What did the Williams vs Florida trial in 1968 dictate about jury size re: criminal trials?

Answer 23

6-member jury allowed for criminal cases EXCEPT capital trials

Question 24

What did the Ballew vs Georgia (1978) case say re: jury size

Answer 24

5-member juries are unconstitutional because the size violates the purpose of the jury

Question 25

Jury selection issues

Answer 25

Ensuring that the members of the jury are not likely to employ ‘extra-evidential’ factors in their decisions

Question 26

Legal standard of jury selection

Answer 26

to assemble a representative cross section of the community AND ensure that any pre-existing biases or prejudices do not IMPACT their ability to fairly assess the evidence.

Question 27

The venire process

Answer 27

• identification of potential jurors (e.g health card registration, electoral rolls)
• Notification to attend including questions relating to exclusion (disqualification/exemption based on age, citizenship etc) = creation of venire (jury pool) - 150 people
• Removal from the venire relating to excuses (e.g hardship, lack of comprehension of the language of court)

Question 28

The selection process: Voir Dire

Answer 28

Purpose is to examine those in the venire to select the final 12

• “The visual examination” Voir Dire
• Varies across jurisdictions (e.g australia, Canada, US)
• Each side may ask for the removal of an individual as a juror based on a challenge for cause or through a limited number of peremptory challenges

Question 29

Challenge of a cause

Answer 29

Proof of a bias that would impede the ability to be objective

Question 30

Peremptory challenge

Answer 30

no basis for dismissal required

Question 31

Voir Dire and the death penalty (Witherspoon Excludables)

Answer 31

If the juror doesn’t like/agree the death penalty

Question 32

If someone agrees with the death penalty are they more likely to find someone guilty?

Answer 32

Yes

Question 33

Psychological research on jury selection includes:

Answer 33

• Race - SES - gender - Attitudes and beliefs - Political beliefs - Cognitive factors - Experiences with crimes - Facebook and other indicators