Week 8 Flashcards
Forensic psychology and pre-trial issues
Pre-trial issues
The overarching goal of most pre-trial procedures is to ensure that:
- the individuals involved in the trial are able to understand the basic elements of the judicial process
- the individuals involved in the trial are not impaired in their ability to competently participate
- the jury process is not impacted by the local environment or bias.
In the United States, smaller juries of six members might be sworn in for non-Capital cases. In Australia, civil cases might have juries with only six members. But in criminal cases juries almost always comprise of 12 members. In exceptional circumstances, an Australian jury might contain only 11 members where one juror has fallen ill or for some reason cannot attend. Alternatively, juries might have up to 15 members for lengthy criminal cases, but only 12 jurors will deliver a verdict.
The defendant:
Competence to stand trial revolves around the issue of whether an individual is fully able to understand the situation.
The legal standard
Whether the defendant has sufficient present ability to consult with his or her attorney with a reasonable degree of rational understanding—and whether he or she has a rational, as well as factual, understanding of the proceedings against him or her.
Psychological Aspects:
The goal of the Competency Screening Test, from a psychological point of view, is to ensure that the defendant is capable of understanding:
- the basic concepts related to the trial (e.g. truth)
- the roles of the main actors in the trial
- their legal/constitutional rights.
Access to JusticeLinks to an external site. (Australian Government, 2017) provides us with detailed definitions of what is considered ‘unfitness’ to stand trial and how the test of unfitness is assessed.
Tests/assessments
Forensic psychologists will make use of the Competency Screening Test to determine the defendant’s ability to stand trial—see the clip below for recent cases in which defendant competency was assessed or will be assessed.
The Jury:
In cases where a jury is the ultimate trier of fact, it is important to ensure that it is an objective entity. Psychological research has been conducted in three areas related to pre-trial jury issues:
change of venue jury size jury selection.
Change of venue
A change of venue revolves around the issue of ensuring that the trial takes place in a locale that is unbiased.
Psychological aspects include:
empirical proof of prejudicial pre-trial publicity or local passion empirical proof of the impact of the above empirical proof of less impact at another venue.
Tests/assessments
The Five-Step Survey Process is a process by which a forensic psychologist will determine the suitability of a trial’s location. It is based on a number of surveys that determine whether or not a defendant can receive a fair trial in the proposed location of that trial.
Jury size
The issues of jury size revolves around the issue of ensuring that the size of the jury does not cause a disadvantage to trial participants.
The legal standard
It must be demonstrated that the size of the panel successfully fulfils the ‘purpose of the jury’ (i.e. to act as a safeguard against prosecutorial and judicial bias or corruption).
Psychological aspects of using smaller juries:
- 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’ are more likely to change their vote without an ally, and there is a lower likelihood of an ally in a smaller jury.
- Smaller juries are less likely to represent a a cross-section of society.
Legal response (select the case to read a more detailed report on how precedents were established).
Note: Although these are American cases, they illustrate the concepts well.
Colgrave v. Battin (1973)Links to an external site.— 6-member juries are allowed for civil cases (Lawnix, 2013).
The Jury Selection:
This revolves around the issue of ensuring that the members of the jury are not likely to employ ‘extra-evidential’ factors in their decisions.
The legal standard
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, it must be demonstrated that the size of the panel successfully fulfils the ‘purpose of the jury’ (i.e. to act as a safeguard against prosecutorial and judicial bias or corruption).
Psychological aspects include:
race SES (socioeconomic status) gender attitudes and beliefs political beliefs cognitive factors experiences with crime Facebook profile and other indicators.
Selecting the jury
Jury selection process The Venire Process – Read about the Victorian context for Notice of selectionLinks to an external site. (Juries Victoria, 2020)
The selection process:
Identification of potential jurors (e.g. health card registration, electoral rolls) - Based on the concept of ‘voir dire’
Notification to attend including questions relating to exclusion (disqualification/exemption based on age, citizenship, etc.) - Varies across jurisdictions (e.g. Australia, Canada, US)
Creation of a venire (jury pool) - Each side may ask for the removal of an individual as a juror, based on a challenge for cause (proof or bias that would impede the ability to be objective) or through a limited number of peremptory challenges (no basis for dismissal required)
The defence and prosecution have a specific number of unconditional peremptory challenges. No justifications have to be brought to exclude a specific juror. - Voir dire and the death penalty
Read more about the psychological theory upon which jury selection is based in Chapter 9 Social psychology in the courtroom (PDF 1 MB)Links to an external site., (Pfeifer, 1997, pp. 157–184). As you read, take note whether you feel experts should be used to assist in the selection of jurors and how you’ve come to your conclusions.
- The social psychological interest in courtoom dynamics is augemented by the fact that the courtroom itself represents a microcosm of the world of social psychology in which one may witness the animation of numerous theories and models, including those representing attraction, attributions, attitudes and behaviours, conflict resolution, prejudice and discrimination, social influence, communication and collective behaviour.
Integration of Law and Psych:
- Hugo Munsterberg (1908) argued that there is a need for a science to address issues of life, applied psychology approach.
- Louis Brandeis and Roscoe-Pound argued that classical jurisprudence (law is logical and rationally applied to cases to reach a legal outcome) with realistic jurisprudence (law should be supplemented with an additional contextual material, such as social science evidence).
- Slesinger and Pilpel (1929) - attempted to provide a framework for the integration of science into law.
Change of Venue:
- moving a trials location due to the level of prejudice against the defendant
- public opinion is captured by a social psych in surveys
- Ogloff and Vidmar (1994) - hypothesized, subjects who were presented with pretrial publicity were significantly more likely to rate the priest as guilty than subjects who did not receive information.
- Vidmar and Judsno - how surveys as successful - attributed to 3 elements, 1. sampling subjects who are eligible for jury duty, 2. asking subjects questions that are similar to what will be asked in the courtroom, 3. introducing the results to the court through expert testimony as opposed to written report.
- Frederick (1987) - methodology - 1. random sample of jury, 2. second community jury, 3. questionnaire to check attitudes about the suspect
- Future Research - tough to find a community that is not effected by media, does pretrial publicity affect the fairness of a trial, rumor transmission
Jury Size:
- Williams Case - failed to recognise the importance of group making decisions, failed to make distinction between civil vs criminal cases.
- Colgrave Case - studies had shown that 12 juries is better than 6
- under the 6th amendment 5 members of the jury is too small.
- juries need to be bigger for more effective solutions and decisions, 12 is more prevelent than 6.
Jury Composition and Selection:
- Venire - citizen of the US and over 18, be able to read, write, speak and understand english, physically and mentally capable, not be charged or have been convicted.
- Voir Dire - asking questions of the jury selection and challenge for a cause or a peremptory challenge. Basic techniques (Frederick 1984) survey approach, in-court attitude ratings and in-court nonverbal communication.
- Future Research - venire - is discriminatory to certain groups, the extent to which lawyers should be allowed to question the potential jury, social science is unhappy with current jury selection processes.
Extra-Evidential Factors and Jury Bias:
- a jurys verdict should be based on an impartial review of legally relevant factors that are presented throughout the trial process. However, extra-evidencial factors such as race and sociaeconomic status can play a role.
- race plays a large part in extra-evidential factors recent studies have concluded that black defendants were no more likely to be found guilty than white (Mazzella & Feingold, 1994). However it is still argued that this is not true.
- SES is linked to a stereotype and they are judged for being lower class
- Future Research - dont use college students, focus on aspects of the jury, realism of the situation, use measures that reflect a court room and their situations (opening and closing arguments). Also research juror bias as prejudice.
Expert Evidence:
- when is it approriate for a social psychologist to be an expert, what role are they given and what are the ethical and moral questions.
- whether they perceive themselves as an educator or as an advocate and need to prepare for either
- Future Research - impact of expert witnesses who are court appointed rather than being obtained by either party. See if the jury is effected by the expert witness and see if it increased prejudice.
Judges Role:
-nullification - juries have the right to nullify or ignore the law and find the defendant not guilty.
- instruction comprehension - juries find pattern jury instructions more complicated, there is arguement for when the instructions should be given
- Future Research - nullification may be a double edged sword, juror comprehension, written vs oral instructions
Read R v. DupasLinks to an external site. (Supreme Court of Victoria, 2000) as Peter Dupas attempted to appeal due to pre-trial publicity from his previous convictions. Dupas claimed that it would be impossible to have a fair trial for his third charge. His appeal was subsequently dismissed, as it was ruled that it could be overcome by the judge providing the jury with adequate direction.
Appeal was declined due to the evidence against him.
Horan and Burd (2012, pp. 102–122) also discuss the right to a fair trial in Protecting the right to a fair trail in the 21st century - has trial by jury been caught in the world wide web? (PDF 183 KB)Links to an external site..
What is the overarching goal of most pre-trial procedures?
The overarching goal of most pre-trial procedures is to ensure that:
- the individuals involved in the trial are able to understand the basic elements of the judicial process
- the individuals involved in the trial are not impaired in their ability to competently participate
- the jury process is not impacted by the local environment or bias.
In the United States, smaller juries of six members might be sworn in for non-Capital cases. In Australia, civil cases might have juries with only six members. But in criminal cases juries almost always comprise of 12 members. In exceptional circumstances, an Australian jury might contain only 11 members where one juror has fallen ill or for some reason cannot attend. Alternatively, juries might have up to 15 members for lengthy criminal cases, but only 12 jurors will deliver a verdict.
Have a look at the ‘legal standards’ for jury selection, the size of jury, and competency to stand trial?
In the United States, smaller juries of six members might be sworn in for non-Capital cases. In Australia, civil cases might have juries with only six members. But in criminal cases juries almost always comprise of 12 members. In exceptional circumstances, an Australian jury might contain only 11 members where one juror has fallen ill or for some reason cannot attend. Alternatively, juries might have up to 15 members for lengthy criminal cases, but only 12 jurors will deliver a verdict.
The legal standard:
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, it must be demonstrated that the size of the panel successfully fulfils the ‘purpose of the jury’ (i.e. to act as a safeguard against prosecutorial and judicial bias or corruption).
Psychological aspects include:
- race
- SES (socioeconomical status)
- gender
- attitudes and beliefs
- political beliefs
- congitive factors
- experiences with crime
- FB profile and other indicators
In cases where a jury is the ultimate trier of fact, it is important to ensure that it is an objective entity. Psychological research has been conducted in three areas related to pre-trial jury issues:
- change of venue
- jury size
- jury selection.
Change of venue:
A change of venue revolves around the issue of ensuring that the trial takes place in a locale that is unbiased.
Psychological aspects include:
- empirical proof of prejudicial pre-trial publicity or local passion
- empirical proof of the impact of the above
- empirical proof of less impact at another venue.
Tests/assessments:
The Five-Step Survey Process is a process by which a forensic psychologist will determine the suitability of a trial’s location. It is based on a number of surveys that determine whether or not a defendant can receive a fair trial in the proposed location of that trial.
Jury size:
The issues of jury size revolves around the issue of ensuring that the size of the jury does not cause a disadvantage to trial participants.
The legal standard:
It must be demonstrated that the size of the panel successfully fulfils the ‘purpose of the jury’ (i.e. to act as a safeguard against prosecutorial and judicial bias or corruption).
Psychological aspects of using smaller juries:
- 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’ are more likely to change their vote without an ally, and there is a lower likelihood of an ally in a smaller jury.
- Smaller juries are less likely to represent a a cross-section of society.
Have a look at your terms and definitions.
Voirdire:
Voir dire is the process used by the parties to select a fair and impartial jury. During voir dire, the jury panel is questioned by both parties’ lawyers. The questions are intended to help the lawyers in the jury selection process.
A voir dire is a pre-trial procedure used to determine the admissibility of particular evidence. It occurs when one party challenges the admissibility of evidence the other party proposes to adduce. A voir dire consists of the court making findings of fact and applying the law after hearing evidence and submissions.
The Venire Process:
The process consists of the attorneys asking questions to 20 persons and then telling the judge which persons they do not want to be on the jury in the case. The judge and attorneys in turn will voir dire (question) the venire to determine the jurors’ biases and prejudices.
Selecting the Jury:
The venire process:
- identification of potential jurors
- notification to attend including questions, relating to exclusion
- creation of a venire (jury pool)
- the defence and prosecution have a specific number of unconditional peremptory challenges. No justifications have to be brought to exclude a specific juror.
The Selection Process:
- based on the concept of ‘voir dire’
- varies across jurisdictions
- each side may ask for the removal of an individual as a juror, based on a challenge for cause (proof or bias that would impede the ability to be objective) or through a limited number of peremptory challenges (no basis for dismissal required)
- Voir Dire and the death penalty
In the Venire Process, the identification of potential jurors is based on:
voir dire
In cases where a jury is the ultimate trier of fact, it is important to ensure that it is an __________ entity.
responsive
objective
respectful
excited
The goal of the Competency Screening Test, from a psychological point of view, is to ensure that the defendant is capable of understanding three key things. Which of the following does NOT constitute a part of the goal of the Competency Screening Test?
the roles of the names and statuses of each of the jury members.
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, it must be demonstrated that the size of the panel successfully fulfils the:
purpose of the jury
