Steps in the Process

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Joseph Gilmore
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1 The Trial Juries

2 Steps in the Process Initial Appearance Charges & Rights Probable Cause Bail or Jail Preliminary Hearing Grand Jury Plea Out Arraignment Pre-Trial Indictment Discovery Pretrial Motions Sever & Venue Evidence Constitutional Venire Voir Dire Jury Selection Competence & Insanity Trial Sentencing

3 Thought Question #13: Judge vs. Jury If you are a defendant, do you think it is better to have your case judged by a jury or by a judge? Why? Why might a judge be more lenient? Why might a jury? Do you think it makes a difference in a civil vs. criminal trial?

Discrepancies More likely to have an ally in a jury And criminal trials require consensus Additional knowledge Attorney effectiveness Evidentiary disagreements The

4 Discrepancies More likely to have an ally in a jury And criminal trials require consensus Additional knowledge Attorney effectiveness Evidentiary disagreements The sentimental jury Jury Nullification Go to to see an example of a closing statement where a Defense attorney is trying to win via jury nullification.

5 Jury Selection Venire Voir Dire Peremptory challenges Challenges for cause Special Conditions: Death-qualified juries

favor the death penalty, but I would not consider it under all circumstances (4) The only appropriate punishment for the

6 Death-qualified juries (1) The death penalty is never an appropriate punishment for the crime of first degree murder (2) In principle, I am opposed to the death penalty, but I would consider it under certain circumstances (3) In principle, I favor the death penalty, but I would not consider it under all circumstances (4) The only appropriate punishment for the crime of first-degree murder is the death penalty WHICH DO YOU AGREE WITH? WOULD YOU QUALIFY FOR A CAPITAL PUNISHMENT JURY?

7 Sentencing Decisions By the judge - Disparate By the jury Death-qualified/verified juries Witherspoon v. Illinois, 1968: Scruples v. Unequivocal Opposition & Impaired Impartiality Hovey v. Superior Court, 1980: Guilt v. penalty phase Wainwright v. Witt, 1985: Beliefs that result in substantial impairment of serious consideration must be excused 9-29% now 40% Lockhart v. McCree, 1986: Conviction-prone = unfair?

8 The Research Presented Death-qualified juries: More conviction-prone More receptive to considering aggravating factors and disregarding mitigating factors Perceive a necessity to invoke death sentence Perceive guilt and death as anticipated by both sides Favor prosecutor s side Mistrust criminal defendants and their lawyers More likely to perceive the defendant as threat to society More concerned with crime control than due process More racially-prejudiced

9 APA v. Supreme Court Research largely disregarded by the court: Didn t include the hanging juror Hovey It s valid research, but irrelevant. Deathqualification not unconstitutional process (Constitution only guarantees an impartial panel ) - Lockhart But not by prosecutors: Grigsby v. Mabry, 1980 Texas v. Yates, 2002

10 Jury Selection Venire Voir Dire Peremptory challenges Challenges for cause Special Conditions: Death-qualified juries Scientific Jury Selection

11 Scientific Jury Selection Use focus groups, mock and shadow juries, and community surveys to determine characteristics of jurors favorable to a particular side = Profiling Jurors Provide questions to ask during voir dire Suggest phrasings for types of jurors Trial consulting Sample cases: The Harrisburg Seven (US v. Berrigan, 1971) Mississippi v. de la Beckwith, 1994 Florida v. Smith, 1992 California v. Simpson, 1996

12 Scientific Jury Selection Does it work? Better than stereotypes & superstitions? Sample of attorney manual: Women are more punitive than men by a score of about 5 to 1. There s a reason for that: Women always had to toe the line. Women are splendid jurors for the prosecution in rape cases, baby cases.yuppies are the worst jurors for the defense: They fear crime, love property, and haven t suffered enough to be sympathetic. Lawyers, on average, do not have a great rate of choosing the right juror (Prosecutors:.5, Defense: 17) often no better than untrained students

13 Scientific Jury Selection Early research suggests more effective Conclusions about effectiveness clouded by: Lawyers of unequal caliber Longer & complex trials Evidence is weak or controversial Quality of selection variables Demographics & general personality poor predictors Law and case specific attitudes better predictors Ex: Belief in a Just World/Rape Myth Endorsement Still only explain 5-14% of variance

14 Group behavior Fundamental Attribution error strikes again Underestimating power of situation Judicial context Jury size Group Polarization Groupthink Conformity vs. Minority Influence

15 Evidence Type and Amount So what does effect juror decisionmaking? Admissible vs. Inadmissible Pre-trial Publicity Presentation Of Case, Of Charges Extra-evidentiary factors Characteristics: Jury (e.g., Initial opinions, Individual Attitudes, Group Dynamics, Size) Defendant Victim Lawyers

16 We already know: So what does effect juror decisionmaking? Confession evidence most powerful Eyewitness & Profiling testimony also persuasive And polygraph testimony?

17 No Polygraph Innocent Polygraph Innocent + Directions Rate of Acquittals This raises other questions, such as can juries disregard evidence and what is the impact of science in the courtroom.

18 Lawyers sometimes present evidence that is then ruled inadmissible. Can the jury really disregard that evidence? Research on Ironic processes & ineffective thought suppression would suggest no.

19 Corretta and Moreland (1983) presented mock jurors with evidence in a murder trial. In some cases, wiretap evidence was presented. The wiretap evidence was either incriminating or exonerating and was ruled either admissible or inadmissible.

20 70 60 % Guilty Verdicts Control Admissible Exonerating Admissible Incriminating Inadmissible Exonerating Inadmissible Incriminating Wiretap Evidence

21 Kassin and Sommers (1997) presented mock jurors with evidence in a murder trial. In some cases, wiretap evidence was presented and then ruled inadmissible. The reason for excluding the evidence was manipulated--the wiretap was either obtained illegally or it was inaudible.

22 % Guilty Verdicts Control Admissible Inadmissible- Illegal Wiretap Evidence Inadmissible- Inaudible

23 Impact of Expert Witnesses Arizona v. P. Hanigan & Arizona v. T. Hanigan Timing of presentation Experts on Eyewitnesses Weigh factors Doubted confidence Experts, the Ultimate Issue, & the Insanity Defense Hired guns & shopping around Complexity of testimony & Credentials Contradicting experts

24 Other Factors Known to Bias Juries Juror Case-relevant Attitudes Defendant Characteristics Race, sex, attractiveness and similarity have been studied most extensively with predictable results

Impact of Attractiveness What is beautiful is good effect In one study of actual trial outcomes, attractive defendants were convicted 46% of the time and unattractive

25 Impact of Attractiveness What is beautiful is good effect In one study of actual trial outcomes, attractive defendants were convicted 46% of the time and unattractive defendants were convicted 77% of the time. The difference is smaller the more serious the crime. Why? If victims are more attractive, though, juries are more likely to convict.

26 Jurors not alone in bias

27 Race and the Law Minority defendants are more likely to be incarcerated during trial, to be convicted, to be perceived as more likely to commit crime again and, consequently, to receive longer sentences.

28 Percentage Conviction Black Defendants White Defendants Incarceration

29 Race and the Law In fact, a 2010 U.S. Sentencing Commission study found that the sentences for black men were nearly 20% longer than those of white men for similar crimes. Forty percent of death row inmates are African- American but African-Americans represent 12% of the population. Disparity is larger for cross-race crimes. African-American 4 times more likely to get death penalty for killing a white

They fit the type Eberhardt and colleagues analyzed the photos of African-American men convicted of cross-race murder, rating how stereotypically black the men s facial features appeared.

30 They fit the type Eberhardt and colleagues analyzed the photos of African-American men convicted of cross-race murder, rating how stereotypically black the men s facial features appeared. Even after controlling for other variables such as severity of crime, attractiveness, SES, and prior convictions, black men were more than twice as likely to be carrying the death sentence if they had stereotypically black facial features.

31 Gender and the law Women seem to get a break in the legal system, except when their behavior is counter to expectations... Why? What about if men violate norms? Ex. Gendered crimes & male victims

32 Other Defendant Characteristics Similarity of the defendant matters too. Jurors are less likely to convict similar defendants (Leniency-Similarity effect). Why? However, this too is tempered by crime severity.

33 Other influences: Presentation effects How Should Lawyers Present Their Cases? Sometimes don t have a choice: Primacy & Recency effects and the advantage of the Prosecution

34 How Should Lawyers Present Their Cases? Lawyers often present their witnesses in the order in which they think they will have the greatest impact, even if that means presenting them out of order. An alternative is to present witnesses in story order. Why would story order matter? Presenting the evidence in a format that tells a coherent story helps build a script or category that might aid understanding and memory for the case. Pennington and Hastie (1988) manipulated the format of the evidence presented by the prosecution and defense in a mock trial.

35 % Guilty Verdicts Prosecution Evidence Story Order Witness Order Story Order Witness Order Defense Evidence

STUDENT STUDY GUIDE CHAPTER SEVEN

Multiple Choice Questions STUDENT STUDY GUIDE CHAPTER SEVEN 1. Which of the following contributes to a large amount of public attention for a criminal trial? a. Spectacular crime b. Notorious parties c.