Psychology to Understanding of the Judge and Jury Decisions - Essay Example

Introduction In the recent past, psychology has been applied in numerous ways inside the courtroom. This has become so commonto the point that it is replacing evidence from religious witnesses. However, there are instances where psychology may not be appropriate. This is because the objectives of these two areas of specialty i.e. psychology and the criminal justice system are quite different. The criminal justice system aims at giving punishment to wrong doers while the field of psychology mostly focuses on the reasons behind the offender’s actions. When the criminal justice system pays too much attention to psychology, it may result in excusing certain forms of criminal behaviour hence impeding the administration of justice. (Vidmar, 1989, p1-8) However, one must not undermine the role that psychology plays in the process of determining the true offender and in the protection of victims. (Gordon, 1990, 971-983) In relation to this, there are also certain factors that have to be considered when dealing with particular issues in the justice systems such as expert testimony. Details of psychology in the courtroom and in other aspects of the criminal and civil justice system will be examined in detail below. Contribution of psychology to understanding of the judge and jury decisions There are certain psychological factors that come into play when analysing the criminal and civil justice system. The first one to be considered is communication. Communication is the transmission of information. It can be divided into three main components. These are; verbal communication, vocal communication and non-verbal communication (Berger et al, 1972, p 241-255) Verbal communication involves the use of written or oral formats to convey specific messages to other parties. Vocal communication involves all the audible aspects of communication such as tone, pitch of voice, rate of speech, intonation and inflexion. In this form of communication, focus is kept on how the message is conveyed rather than the subject matter itself. Lastly, there is non-verbal communication; here, visible elements of communication are considered such as personal appearance, facial behaviours, body orientation, posture, touch, gestures, eye contact and even eye movement. Auditory cues are the main area of emphasis in this case. (Casper & Zeisel, 1992, p135-191) Psychologists assert that the most influential form of communication in the courtroom is the non-verbal form. Others have argued that in case jurors or judges are faced with situations where the statements presented to them are in contradiction with each other, then chances are that those jurors will rely on non-verbal forms of communication rather than the actual word spoken. Research has shown that many jurors have been convinced by some forms of communication that are not as direct as the spoken word. These gestures, postures etc, are so influential that some jurors may judge the case in favour of the defendant or the prosecutor depending on which side produced the most appealing or positive form of non-verbal communication. (Pennington and Hsati, 1986, 242-258) As a matter of fact, there are numerous attorneys who use this psychological aspect to sway their jurors’ decisions. They may inform their clients; witnesses, suspected offenders and victims about some of these tactics so as to win the hearts of the jurors. For example, when a victim wishes to depict feelings of insecurity and lack of confidence, they would most likely avoid eye contact. Some may be slump their shoulders and talk in mild tones to achieve the same effect. However, this can also work against them because those same gestures can be interpreted in the opposite way; for example one may assume that the witness who avoids eye contact does not believe in himself or he may be deceiving. Sometimes when lawyers want to make their clients seem influential and powerful, they may advice them to make use of expansive gestures. This is because such gestures normally make those clients take up more space and thus seem more powerful. (Pennington and Hsati, 1986, 242-258) It should be noted that non-verbal communication also applies to members on the other side of the bench. During the selection of jurors, there are certain indications that may depict a given juror’s personality. Attorneys have been made aware of some of these features. For example, jurors who do not make eye contact often are less likely to pay attention to court proceedings or chances are they may not focus on details. Psychologists have been quick to assert that not all of these signs are accurate and they must not be interpreted on their own. Psychologists assert that when attorneys wish to include non-verbal communication as an element during the process of jury selection, they should look at it in the context of other broader psychological theories. This is something that should be done with the help of experts in this particular field. It should also be noted that when lawyers wish to make this form of communication work for them, they may choose to conduct mock trials where they can read signs depicted by neutral parties and then apply it when coaching their witnesses, defendants or victims. (Hall, 1991, p51-54) One can therefore conclude that non verbal communication is something that can be used by lawyers to manipulate the jury in order to bias them to their side. Attorneys are usually bound by the law to defend their clients enthusiastically. They should therefore employ all methods available to them to defend their clients. This is why some trail lawyers may even hire behavioural scientists in order to coach their clients on appropriate non-verbal methods of communication. The reason why this method of coaching can work for them is because victims/defendants/offenders are more likely to pay attention to a specialist than listen to their own lawyer. They normally realise the seriousness of the case after they see that a psychologist has been hired specifically for the purpose of coaching them on their conduct in court. Consequently, they will listen to every word that the psychologist tells them and will implement it in court. The same would not have been witnessed if it was just their lawyer who was advising them on their behaviour in court. (Ellsworth, 1989, p205-224) The use of non-verbal communications or tactics to woo jurors is not something that poses lots of ethical implications for the trial lawyer. Ethical considerations mostly apply to forensic psychologists hired within the trial. This is because forensic psychologists have certain guidelines that control the way they conduct themselves when giving expert testimonies. However, this is something that is still under debate today. Psychologists have not fully exploited the area of behaviour consultation. Some have argued that there is nothing wrong with the involvement of psychologists in the process of jury selection. The jury is normally biased towards the prosecution, it would therefore be appropriate for trail lawyers to bring in additional elements to help them tip the scales. However, there are some who believe that involving psychologists in the trial will affect how neutral the jury will be. (Hastie, R. et al, 1983, p33-36) Aside from communication (non-verbal communication), the second factor that shall be examined is the psychological role of race in the criminal and civil justice system. (MacCoun & Kerr, 1988, p 21-23) In the UK, most jurors are normally involved in conducting criminal rather than civil cases. It should be noted that jurors are selected randomly. This is in line with statutory requirements for the process. This may sometimes result in a jury that has a larger percentage of whites or blacks. This may eventually affect their decisions; a fact that has been debated and challenged in courts within the UK ever since the 1980s. (MacCoun & Kerr, 1988, p 21-23) However, some people have argued that race is not an issue that may bias jurors’ decisions in the courts. In R v Bansal et al [1985] Crim. L. R. 151, there was a defendant who claimed that the jury was going to be bias towards him because all members were all of a different race. However it was ruled that this should not be a factor that should be considered during the jury selection process since this would have an influence over the degree of randomness of the selection process. In another case, R v Smith, the defendant had been accused of assaulting a white victim. At the same time, the jury selection process resulted in the formation of a jury that had only white members. The defendant felt that these members would have a bias towards him and he therefore petitioned the case. This petition showed how there are certain preconceived notions that may exist based on race and this may come in the way of administration of justice. (Gordon, 1990, 971-983) In the European Convention on Human Rights, Article 6, there is a strict requirement that all defendants have the right to fair trial. This Article was applied in the case of Saer v UK. Here, one of the jurors made racists statements about the defender during the trial. A complaint was lodged to dismiss the juror but the judge in question ruled in favour of the juror. When the European Court intervened, it found that the judge had violated Article 6 since he was denying the defendant a right to have a fair trial. The European Court requires that all jurors should be seen as objective in the process of administering cases; something that was distinctly missing in this case. (MacCoun & Kerr, 1988, p 21-23) One can therefore conclude that the main psychological factor that comes into play during the judging process especially among jurors is a bias against ethnic minorities. Some jurors may have the preconceived notion that certain ethnic groups have higher probability of committing crimes than others and may prematurely conclude that they are guilty without considering all the evidence presented before them. This psychological factor came into play as early as the thirteenth Century. At that time, there was a need to defend Jewish offenders against bias. This necessitated the idea of a split jury where half of the members of the jury had a Jewish background. This became relevant in the nineteenth Century where there were other ethnic minorities that were incorporated into the conventional society at that time. It should also be noted that most of these biases are likely to arise when the cases to be tried deal with race related issues. Research conducted in the US by Gordon (1990, p 81) on this topic depicted that there are more chances for bias when black jury members dominated the bench rather than white juror. This is because they tended to have preconceived ideas about the actual defendant. Gordon (1990, p 81) found that judges or jurors tended to have stereotype tendencies. He claimed that certain offenders would be affected by demographic characteristics and that judgement tended not to favour or disfavour them depending on the kind of background they had. For example if a white person has been accused of fraud, then chances are that most jurors will have a bias against them and may decide that they are guilty of the crime. Similarly, most jurors will decide against the defendant if he was a black person and had been accused of committing armed robbery. Overly, it was found that black jurors tended to be less sympathetic towards criminals and gave them seemingly severe sentences even when the crime committed did not fit that particular crime. After looking at the role of race and communication, there is a need to examine the psychological factors relevant at each stage of the criminal justice system for victims, witnesses and suspected offenders. (Berger et al, 1972, p 241-255) In the pre-trial stage, there are certain psychological factors that come into play during management of the victim before he/she is taken into trial. One of the pre-trial factors that must be considered is the emotional damage that occurs to victims during the process of waiting for trial. Sometimes the anxiety created prior to the trail might affect the way the witness/victim presents their case in court. It may be possible to find that certain victims, especially children, tend to get scared and choose not to reveal all the necessary information to convict the offender of their crimes. (Ellsworth, 1989, p223) During the actual trial, there are some psychological factors that also come into play. For example, if a certain case is being tried by a jury, judges are still relevant in order to control the court process. There are certain psychological factors that do come into play during such trials. Blanck, Rosenthal and Cordell (1985, p 89-151) assert that if a judge has a bias it may eventually change the final outcome of the trial. They go on to add that his influence may not be seen directly but manifests itself in less obvious ways. They claim that judges expectations for certain trials usually make them predict how the outcome will become, consequently, this will affect how they go about administering the trial and what the jury will decide at the end of the trial. It was found that sometimes certain judges develop a bias if the defendant happens to have a past criminal record. (Blanck et al, p 89-151, 1985) Such judges will conduct trials in such a way that defendants find it difficult to plead their case. Similarly, defendants are also at a disadvantage during appeal cases. This is because reports read at that time normally do not contain information about certain gestures or signs that could have caused a bias in the court. All the appellate court will have going for them are written words that may not necessarily give the true picture of the entire process. In the post trial situation; that is when deliberating over a case, psychological factors greatly influence the kind of decisions made. Ellsworth (1989, p 223) conducted a research on the effectiveness of jury systems in the civil and criminal justice system. He found that jurors are indeed effective because there are some group psychological factors that come into play when there are many members that are required to make a decision about something. He asserted that such large numbers tended to be more objective and tended to have higher chances of coming up with fairer decisions. On the other hand, there are certain cases in which psychological factors in group psychology negatively influence the jury as put forward by Vidmar (1989, p1-8) This is because he believes that sometimes, some jurors may have greater experience when dealing with certain types of cases than others. However because of group psychology, it is often seen that these so called ‘experts’ may take over the case. It should be noted that this will make the jury less competent. Vidmar (1989, p1-8) continues to argue that there is little evidence to show that if one individual was to carry out judgement rather than many; i.e. If a judge was to preside over a case rather than a jury, most of the time the same conclusions would be made. A research examining 3000 cases found that about seventy eight percent of the decisions arrived at by a group of jurors were similar to those ones made by individuals. Vidmar (1989, p1-8) claims that the remaining twenty two percent tended to favour defendants rather than prosecutors. In group psychology, there is a tendency to do good will. So most of the jurors felt that it would be better if they let someone who was guilty of an offence go free rather than placing an innocent man behind bars. It is also of fundamental importance to understand the psychology behind the decisions made by jurors after trials have been completed. Pennington and Hsati (1986) found that most of the time, jurors make their decisions based on establishment of a story that fits their particular situation. They usually try and make fixes within stories through this type of approach. Most of the time, there may be missing links; juries usually establish stories to fill in those gaps. The stories themselves are related to the fact that actions themselves have cause and effect. Ellsworth (1989, p223) found that as the juries continue deliberating the case, they eliminate facts that may seem irrelevant or they may decide to eliminate all the scenarios that seem illogical and unreasonable. Reskin and Fisher (1986, 423-438) found that most of the time, there is application of community norms and values during the decision making process. Most of the time, jurors do appreciate the importance of the law but may not fully understand it. Actually part of the reason why the Constitution allowed jury laws is such that the criminal justice system would become a balance between the law and community norms. Jurors normally consider both the evidence presented before them and community values to come up with a suitable verdict. Tanford and Penrod (1986) bring out fundamental issues regarding the voting process made by juries and psychological factors that come into play. First of all, it is extremely difficult to determine whether or not a certain jury will decide on a verdict then create a story around it or the opposite. If they choose the opposite, then chances are there will be some forms of bias when making the final decision. MacCoun (1989, 1046-1049) showed that in about ninety five percent of all the cases judged by juries, the final outcome depended upon the initial vote made at the beginning of deliberations. This brings out the important issue of conformity pressure. Most jurors tend to shy away from derailing the process of deliberation by giving opposite opinions to the norm. Conformity pressure is quite influential even when there may be evidence that is supposed to sway juror’s decisions to the contrary side. This severely affects the level of fairness of such a system and comes in the way of administration of justice. Another psychological factor that affects jurors and hence the lives of the potential offenders is the attractiveness of the defendant. Darby and Jeffers (2000, p 67) found that in cases where the defendant was perceived to be attractive, jurors tended to see them as individuals who can be trustworthy and who are happy with their lives, they were more likely to be a given a ‘not guilty’ verdict. However, this was affected by the attractiveness of the jurors. When jurors were not attractive and they were handling cases in which the defendants themselves are unattractive, then chances are that they would let them go because they perceive them as similar to them. That is, they both have common characteristics. On the other hand, if a juror was dealing with an attractive defendant and they themselves were unattractive, they would still pass moderate sentences towards them. On the other hand, it was found that offenders who had neutral looks were recipients of severe punishments. (Downs and Lyons, 1991, 541-547) Wiener, Staebler, Habert and Shkordriani (1991, p1379-1401) found that there were certain preconceived ideas that affected the offenders’ fate within the court room. For example, when a juror had been working with a certain judge for a very long time then chances are that they would not consider their instructions during their deliberations as much as they would have if this was the first time they were dealing with that judge. It was also found by the same authors that jurors who have a lot of experience gave very severe sentences. Psychologists assert that this could be because they no longer hold the belief that one is always innocent until they have been proved guilty. Another factor that could sway their decisions against the offender and towards the victim could be because of the fact that prosecutors representing the state appear more frequently in court than defence lawyers. This means that jurors would rule in favour of prosecutors since they have learnt to trust them. Because of holding these beliefs, such jurors would be likely to pass judgements that are biased. Wiener, Staebler, Habert and Shkordriani, 1991, p1379-1401) In order to tackle some of these biases, some countries have opted to blindfold their jury. This would make those particular jurors blind to some of the visual elements that would create the biases. (Diamond et al, 1989, p 246-267) The essay will also examine some of the current perspectives and insights on legal decision-making based on contested data relevant to law and psychology and some conclusions will be made below. The law does not allow conducting research during jury deliberations, therefore, it may be difficult to obtain hard data on the psychological factors that affect their decision making process. However, analysts have gone about this deficiency in other ways. For example, one can create a mock trial where certain factors to be determined are assessed. On the other hand, it may also be possible to come up with conclusions on the matter they want to decide. Artificial jury conditions are quite helpful in the process of understanding jury deliberation processes. Ohtsubo et al (2004, p161-172) conducted a research on the factors that determine the decision making process within groups. They achieved this through the use of experimentation. They created a group in which there were high status members and also low status members. It was found that contrary to popular belief, high status members really influenced the mock jury’s final decision despite increasing the numbers of the low status members. This was depicted clearly as the group’s membership was being increased. The analysis involved the use of group numbers that ranged from three, four to five. The high status members were found to be quite influential even when there were greater increases in the numbers of low status members. This experiment was conducted through the Social Decision Scheme analysis. In line with the latter research, there is a need to look at the role and limitations of expert testimony. Expert testimonies are usually given when the person under consideration possesses enough knowledge and skill in a certain field of specialty. It should however be noted that not everyone with these qualities can be allowed to give testimonies. Besides possessing these qualities, one should also have the qualities given by the Federal rules of Civil Procedure Rule 702. Some of the qualities include having; education, training, skill, experience, knowledge etc. (Tanford & Penrod, 1986, p322-347) All these must be found to be relevant to the actual case under consideration. They must have the ability to apply their expertise in the process of scientific research pertaining to the question under consideration. On top of this, the evidence presented by the expert must be founded on research. Even the way they collected the evidence should be scientifically based or it should be done with methods that are scientifically admissible. Normally these experts are used in the process of determination of some clinical cases. A good example of this is the assessment of parents’ response to children after adoption, some experts may be brought in to assess whether or not certain witnesses are capable of understanding the intricacies involved in the case and whether the evidence they provide can be relied on. It should be noted that experts are not just limited to psychologists. There are other types such as doctors. (Berger et al, 1972, p 241-255) Some of the limitations that have been presented in the area of expert testimonies are; experts should limit their opinions to knowledge acquired professionally during their service. This is something that may not be adhered to by some experts. Some tend to give information that may not be related to their profession. Besides this experts are supposed to give evidence that has been collected through the use of tools that are appropriate to the specific scenario that they are dealing with. These are some of the ethical considerations affecting the way psychologists play a role in the criminal and civil justice system. (Berger et al, 1972, p 241-255) It should be noted that there are certain instances when experts; especially psychologists, may give evidence that is not based on scientific validation. There are numerous theories out there that can be used in the process of determining diagnosis and treatment. There is also scientific information that can give explanations about these treatments. Some psychologists hardly apply the right scientific explanation for theories chosen. One example is through syndrome testimony. This form of testimony has exposed a lot of inefficiencies in the legal system and especially in giving expert testimony. (Darby & Jeffers, 2000, p 67) Another limitation that exists in the issue of testimonies is the accessibility of draft reports by the other party. The law provides that an opposing party cannot ask for draft reports made by experts in the process of preparing a case for their side. This is so as to protect the witness. Another limitation is that when there happens to be some form of communication between a lawyer and the expert, and then this communication should not be addressed in court unless it is in very special circumstances. Another limitation exists during the examination of an expert. The opposing party is allowed to ask about all the relevant facts that the expert used during the process while in court. Besides this, there could be an assessment of whether or not the expert considered all the alternatives available. (MacCoun & Kerr, 1988, p 21-23) After examining all the elements of psychology in the civil and criminal justice systems, the following recommendations are forthcoming. Psychology in the pre-trial phase can be witnessed before a certain witness meets the jury. If such a witness happens to be the victim, then chances are that they would develop anxieties about the court and might decide to skip certain crucial information when giving their testimony. It is therefore advisable to minimise waiting periods before witnesses can testify otherwise psychological factors can come into play and impede the administration of justice. During the trial process, there may be chances of bias that come into play as a result of the non-verbal forms of communication. The best way to deal with this could be through blindfolding the jury for cases that seem particularly susceptible to non-verbal communication, racial or other forms of visual biases. (Hall, 1991, p51-54) Another issue that may result in the trial process is expert testimony. There are certain limitations that may occur. The best way to guarantee application of expert testimony is through ensuring that the best instrumentation is used and that collection and analysis of the evidence to be presented is scientific. Ethical considerations must be adhered to especially when dealing with issues concerning psychologists giving expert opinions. However too much attention should not be given to psychological causative factors as those may not be relevant to the particular case. (Casper & Zeisel, 1992, p135-191) In conclusion, psychology has gained wide application in the courtroom scenario so much so that it is replacing religious consultations. Some lawyers normally apply psychology when preparing their witnesses, victims, and even offenders. This is seen as a form of manipulation by some, but most experts assert there is nothing wrong with it since lawyers must protect their clients. (Berger et al, 1972, p 241-255) There are numerous psychological factors that must be considered during the judging process. Sometimes judges may have racial biases, other times they may be influenced by too much experience and over familiarity and other times they are affected by conformity pressure. (Diamond et al, 1989, p 246-267) The utilisation of expert opinion is also quite instrumental in the criminal and civil justice system. There are certain psychological opinions that may not be relevant to the case or those that were not obtained in a scientific way. It is therefore necessary to ensure that this is first established before and then let experts take the stand. (Hastie et al, 1983, p33-36) Reference: Berger, J. et al (1972): Status characteristics and social interaction; American Sociological Review, 37, 241–255 Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985): The appearance of justice: judges’ verbal and nonverbal behaviour in criminal jury trials; Stanford Law Review, 38, 89-151 Casper, G., & Zeisel, H. (1992): Lay judges in the German criminal courts; Journal of Legal Studies, 1, 135–191 Darby, B. W., & Jeffers, D. J. (2000): The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, p 67 Diamond, S. S., Casper, J. D., & Ostergren, L. (1989): Blindfolding the jury; Law and Contemporary Problems, 52, 246-267 Downs, A. C., & Lyons, P. M. (1991): Natural observations of the links between attractiveness and initial legal judgments; PSPB, 17, 541-547 Ellsworth, P. C. (1989): Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224 Gordon, R. A. (1990): Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions; Journal of Applied Social Psychology, 20, 971-983 Hall, J. (1991): Decisions, decisions, decisions; Psychology Today, 13, 8 pp. 51–54 Hastie, R. et al (1983): Inside the jury; Cambridge, MA: Harvard University Press, p33-36 Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991): Effects of prior juror experience on jury sentencing; Behavioural Science and the Law, 9, 97-106 MacCoun, R. J. (1989): Experimental research on jury decision making. Science, 244, 1046-1049 MacCoun, R. & Kerr, L. (1988): Asymmetric influence in mock jury deliberation: Jurors’ bias for leniency; Journal of Personality and Social Psychology, 54, 21–33 Ohtsubo, Kameda, Fujita (2004): Group Processes & Intergroup Relations; Sage Publications, 7, 2, 161-172 Pennington, N., & Hastie, R. (1986): Evidence evaluation in complex decision making; Journal of Personality and Social Psychology, 51, 242-258 Reskin, B. F., & Visher, C. A. (1986): The impacts of evidence and extralegal factors in jurors’ decisions; Law & Society Review, 20, 423-438 Tanford, S., & Penrod, S. (1986): Jury deliberations: discussion content and influence processes in jury decision making; Journal of Applied Social Psychology, 16, 322-347 Vidmar, N. J. (1989): Empirical research and the issue of jury competence; Law and Contemporary Problems, 52, 1-8 Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991): The social psychology of jury nullification: predicting when jurors disobey the law; Journal of Applied Social Psychology, 21, 1379-1401 Read More