2.3 Empirical research into juries 33
2.3.5 Critical reflections on the research methods and the limitations of those techniques 59
I have previously suggested in this chapter that whether they use mock jurors, cited jurors or real jurors, there has tended to be a researcher mentality which has driven the majority of the projects. That mentality, I suggest, is one that places the jury in a passive or slightly disconnected stance (just as we see them in a live trial) in order to observe, in particular, how it (as an inanimate body or a receptacle into which evidence is poured) copes with the various aids given to it as part of the research project. I should clarify my position by saying that I am yet to see a research method which includes the jury right from the start, and so I argue without their inclusion they have been placed in a passive, disconnected (because the researchers have negated to connect with them) position. Regarding the jury as passive and disconnected however is perfectly understandable given that this is how they are understood by the trial system and so it should not be so surprising that this stance is adopted in the research.
60 There are of course problems associated with suggesting, as I do, that there may be consultation with (mock) jurors prior to the commencement of the research with the most obvious being the financial burden which this would place on the projects
themselves. However, I argue that unless we challenge the idea of the juror as passive, thereby perhaps stretching researchers out of their tried and tested comfort zones, we will not even begin to develop a more nuanced understanding of how the jury operates and which includes what it does and does not understand. Moreover, I accept that some may regard consultation with the jurors as naïve or pointless but I suggest that
discussion with (mock) jurors could be invaluable because it is only through this early consultation that we have the chance of seeing the project through their eyes, hearing what their expectations of themselves are and dispelling, at the very earliest of stages, any myths on pre-framed notions that they may have of the criminal trial process and their part therein.
Another problem, as I see it, in the research methods themselves is that the majority have focused specifically on the language that the jurors hear rather than on the process of the communication of the language itself. For example, we saw in the Roskill trials that where the researchers foresaw jurors having difficulty understanding what they regarded as difficult language, we saw them pre-empting that problem with a glossary of terms and definitions. They did not actually confirm with the jury whether or not the area specific language had in reality been problematic in the first instance. What this also indicates is that in the large proportion of the studies the jury is, as I observed earlier, regarded as a unit as opposed to autonomous thinking individuals, and so the understanding, and then decision-making, seems from a research perspective to mean “how juries combine their sundry, individual perspectives into a single verdict.”133
Indeed, this attitude towards jurors is fairly evident when we look to studies such as those carried out by Hastie, Penrod and Pennington or Kassin and Wrightsman where we see their reference to the jurors as a reference to a group rather than to individuals and
61 so their individuality, in terms of their understanding is definitely a secondary concern to these researchers.134
Indeed, what most of these solutions have in common is first, that their primary focus tends to be trying to identify what language the jury find most problematic and second, giving things to the jury as a way to respond to the problems that they have identified. As we have seen from the research discussed thus far, the things ‘given’ to the jury include the option to note-take, glossaries of terms, computer animations, re-worded judicial instructions, re-timed judicial instructions, copies of written judicial
instructions and the option to ask questions of the judge. All of these ideas have been regarded by researchers as beneficial for the jurors to enhance their understanding of the legal language, however most have been decided without any input from
prospective, actual, mock or shadow jurors. The trouble with this approach is that it reduces the jury to a kind of inanimate object which can only really function if it is given things to help it, thus, from my perspective, undermining it greatly. Indeed, I would say that by continuing to view the jury as a body which is only capable of
reacting or understanding when given things we are in danger of losing sight of the fact that jurors are ordinary human beings who have the capacity to think clearly for
themselves in their private lives and so I fail to see why this is not factored into the research as it currently stands.135
Thus, in order to understand better how the jury operate we must develop a forum that accepts that the jury are a part of the trial and so communication with them and by them should be as natural as possible. As part of the transition towards that we also need to develop a research technique which treats the jury as thinking individuals and, where appropriate, allows them to lead in the process of the research as I have already
134 Hastie, R., Penrod, S.D. and Pennington, N. (1983), Inside the Jury, Harvard University Press,
Cambridge, Massachusetts and London, England; Kassin, S.M. and Wrightsman, L.S. (1988), The American Jury on Trial: Psychological Perspectives, New York, Hemisphere Publishing.
135 Here I am referring back to the core studies already discussed in chapter two and which
includes Thomas (2010) above n.3; the New Zealand study above n.4 and Kalven and Zeisel (1966) above n.1.
62 discussed earlier in this chapter. Indeed, naïve as it may at first sound, if the jury simply indicated what they found problematic, and the researchers listened to that and worked with it, then perhaps some of the mystery around what they do and do not understand of the trial language would finally be laid to rest. I accept that this
suggestion may at first appear to be simplistic especially when we consider the findings in Thomas’ 2010 study where jurors did not accurately assess their own understanding, often thinking they had understood when in actual fact they had not. However, if we shift our mind-sets to accept that at the very least the jury are autonomous, thinking, capable people and from there to allow those people to be proactive in the process of the research, perhaps what has appeared to be so unfathomable would finally become clear. Thus, to be clear, when referring to the unfathomable, I am referring to the debate over which language, or what aspect of the trial process a juror finds
problematic and so, rather than continuing to surmise what that could be I suggest we simply encourage the jury to indicate at which points their understanding becomes confused. In turn therefore, I suggest that in time if the same or similar barriers to understanding arose in mock or simulated trials, future research of a similar nature could be designed which clarified these points.
I have highlighted what are considered to be the most important research projects in this area, however I should acknowledge that there have been very many different studies which, when looked at collectively, cover just about every perspective and angle of the trial process, its timing and its content. Moreover the studies on the trial process are equally important in their discussions and indications. For example, as we have seen, some suggested that the order in which the evidence is presented affects the outcome of the verdict136 and others maintained that the order in which the
witnesses gave evidence was another factor which affected the verdict of the jury.137
136 Weld, H.P. and Roff, M. (1938), ‘A study of the formation of opinion based upon legal evidence,’
American Journal of Psychology, 51 (October), 609-628; Lawson, R.G. (1967-68), ‘Order of presentation as a factor in jury persuasion,’ Kentucky Law Journal, Vol.56, Spring, 524-555.
137 Weld, H.P. and Danzig, E.R. (1940), ‘A study of the way in which a verdict is reached by a jury’,
63 Others have questioned the ability of the juror to maintain and recall large amounts of evidence138 with little or no support139 and still more explored how discussions between
the jurors in their decision-making process helped, or hindered, in understanding and recalling these masses of information.140 Studies then began to emerge into the
representative nature of the jury141, the effect on the verdict of the composition of jury
venires (or panels as they are more commonly referred in the UK)142 and the impact of
the status of the jurors on the panel.143 Suffice it to say there have been myriad research projects viewing the jury from different angles but with the same primary question in mind, how well do juries make decisions and what factors are at play to disrupt or distort their decision-making process. The majority of the research places the focus firmly on the jury in isolation and considers the different ways in which its role could be made easier by providing for it a variety of solutions.
room’, Ohio St.L.J., 2 (December), 1-19; Hovland, C.I. et.al. (1957), The Order of Presentation and Persuasion, New Haven, Yale University Press.
138 Hoffman, H.M. and Bodley, J (1952), ‘Jurors on trial,’ Missouri Law Review, Vol.17, June,pp.
235-251.
139 Here we can see the process of “banking” at work. I will discuss “banking” in detail in chapter
three when exploring the core concepts of Paulo Freire’s pedagogy.
140 Daishell, J.F., ‘Experimental studies of the influence of social situations,’ chapter in Murchison,
C. (ed.), (1935), Handbook of Social Psychology, Worcester Massachusetts, Clark University Press.
141 For example, in 1911 Charles Wells highlighted the importance of the early juries being
representative of their communities and concluded that the early petty jury replace the older forms of trial, e.g. the ordeal, because it represented the “common voice or the common sense of the community” – Wells, C.L. (1911), ‘Origins of the petty jury,’ Law Quarterly Review, Vol.27, July, 347-361. For early English commentary see Forsyth, W. (1852) A History of Trial by Jury, London, J.W. Parker; Pollock, F. and Maitland, E. (1898), History of English Law, Cambridge, England, Cambridge University Press.
142 Mills, E.S. (1962), ‘A statistical study of occupations of jurors in a (Maryland) United States
district court,’ Maryland Law Review, Vol.22, Summer, 205-214 showed, for example, that professional and technical workers, managers, officials, and proprietors are heavily
underrepresented on venires. Holbrook, J.C. (1956), A Survey of Metropolitan Trial Courts in Los Angeles, Los Angeles, University of Southern California Press; Vanderzell, J.H. (1966), ‘The jury as a community cross section,’ Western Political Science Quarterly, Vol.19, March, pp.136-149.
143 These studies explored, predominantly, the effect of a juror’s occupation on the deliberation,
and the other jurors. For example, Strodtbeck et.al and Simon found that there was a tendency for higher status individuals to be chosen as forepersons and those same status people tended to sit at the head of the table in deliberations – Strodtbeck et.al. (1957), “Social status in jury deliberations,” American Sociological Review, 22 (December), 713-719; Simon, R.J. (1967) The Jury and the Defense of Insanity, Boston, Little, Brown at pp.116-119.
64 My review until now was not intended to be a comprehensive survey of jury research. My concern was primarily with research methods as the relevant substantive findings of the research will be discussed in more detail in chapter three. For the remainder of this chapter I am interested in reflecting on the research methods themselves and as I consider whether they in themselves may be limited, I raise questions over whether those methodological limitations - as I regard them to be - may contribute to what could be considered as limited responses to juror understanding. The main types of research methods considered here are: jury verdict comparisons with legal professionals which use either simulated trials and which are re-creations of actual trials; simulated trials using video re-enactments all of which use mock jurors who have either responded to advertisements, have volunteered, both of the aforementioned, some paid and some unpaid. Additionally, I assess the value of using shadow juries.
Thus, we can see a variety of different methods used in both the early and the
contemporary jury research. For example, there are simulated trials which recreate an actual trial using documentation designed to replicate what was used in the actual trial.144 There are simulated trials which use video re-enactments which have actors taking on the various roles in reimagined trials and there are simulated trials which use real trial transcripts which are portrayed by a variety of actors and legal
professionals.145 In such simulations mock juries are used and these juries come in a
variety of shapes. For example, there are mock jurors who have been chosen from actual jury pools,146 others are volunteers selected from responses to adverts,147 some
involve payment of the volunteers and some do not.148 Moreover, there are shadow jurors who follow the jury in an actual trial but who at the decision-making stage retire alone to consider their verdict. Despite these different types there is a common aim
144 For example the Roskill Trials above n.8.
145 I make reference to particular studies in the course of this section. 146 as was the case in Cheryl Thomas’ 2010 research above n.3. 147 For example the Roskill Trials above n.8.
65 and that is to create a simulation which is both credible and provides an accurate basis upon which we can assess the jury. I mentioned earlier that Browning suggested in 1973 that the unique value in simulated trials lay in “their ability to reproduce observed behaviour, even of complex systems, with a high degree of precision.”149 The jury
simulation paradigm has, however, been extensively criticised. Two of the most prominent critics have been Weiten and Diamond who, in a seminal paper, considered the issue of whether the jury simulation paradigm provides “an accurate basis for drawing conclusions about real jury functioning.”150 They selected as their criterion for
a simulation, any study where the subjects had been asked to “act as jurors” in their research spanned 1969-1978 and they noted that, apart from the Chicago Study, there had been very few documented simulation studies prior to 1969.
Their opinion about the simulation studies was fairly damning as they identified a number of areas where questions about their validity could be raised. For example, they questioned those authors’ whose work was based on the view that the simulation paradigm was a convenient way to test theory, asserting that if the results were never to have a practical application in the courtroom then the point of the study must surely be called to question.151 Additionally, they identified a number of inadequacies in such
areas as the sampling and the value of role-playing as well as scrutinizing the decision, in some studies, not to include group deliberation processes. Moreover, they
questioned the value of the simulations where the authors included caveats that their results were “merely suggestive regarding the practicalities of jury functioning.” Thus, in their questioning of the simulation model itself they highlighted that if progress were to be made to enable better understanding of how the jury functions in the trial
149 Browning, R.P. (1973), “Simulation: attempts and possibilities” in Knutson, J.N. (ed.), Handbook
of Political Psychology, San Francisco, Jossey-Bass at p.348.
150 Weiten, W. and Diamond, S.S. (1979), ‘A Critical Review of the Jury Simulation Paradigm: The
Case of Defendant Characteristics,’ Law and Human Behavior, Vol.3, No1.
151 See for example Boor, M. (1975), ‘Effects of victim competence and defendant opportunism on
the decisions of simulated jurors,’ Journal of Social Psychology, 6, 301-2 who used the
simulation method as a way to test theories about juror competence; Cornish and Sealy (1973) above n.55.
66 situation, then steps needed to be taken to design a research method which went
beyond only assessing certain parts of its functioning. Therefore, they acknowledged the merit in making determinations about specific facets of the part of the juror – for example whether or not they would be swayed by defendant characteristics – but they concluded that the method of research must go beyond those specifics if it were to be deemed credible.152
Overall Weiten and Diamond concluded that the jury simulation paradigm fell short of its expectations as a vehicle to assess the jury. They were clear in their opinion that the external validity of the research method needed to be robust because it was on such methods that reliance was placed and future research developed. They noted that the simulation process had been used to assess a great many different aspects of the jury from its ability to remain impartial in its decision making and from there the variables which may affect it in this endeavour. In addition to questioning the method itself, they also questioned some of the actual simulations, first making clear that “one cannot carry out a jury simulation without some form of trial simulation.”153 In this
respect they criticised much of the research for its brevity, in the sense that the simulations were cut down both in terms of their length and in their detail,154
highlighting (as Finch and Munro most recently also did155) that lack of complexity in a
simulation affects the jurors in that they will begin to fill in the gaps in information with their own irrelevant fillers.156 For example, Weiten and Diamond expressed
concern when the content of the simulation was pared down to exclude any extra-legal
152 For the defendant characteristics simulations see Mitchell, H.E., & Byrne, D. (1973), ‘The
defendant's dilemma: Effects of juror attitudes and authoritarianism on judicial decisions,’ Journal of Personality and Social Psychology, Vol.25, 1, pp.23-129; Griffitt, W., and Jackson, T. (1973), ‘Simulated jury decisions: The influence of jury-defendant attitude similarity and
dissimilarity, ‘Social Behavior and Personality, 1, 1-7.
153 Weiten, W. and Diamond, S.S. (1979) above n.150, p.77.
154 for example in Landy and Aronson’s 1969 research they note that the case summaries are only
400 words long, much shorter than the average case summary in an actual trial - Landy, D., & Aronson, E. (1969), ‘The influence of the character of the criminal and his victim on the decision of simulated jurors,’ Journal of Experimental Social Psychology, Vol.5, pp.141-152.
155 Finch and Munro (2008), Lifting the Veil above n.129, 30-51
156 See Bermant, G., McGuire, M., McKinley, W., & Salo, C. (1974), ‘The logic of simulation in jury
67 stimuli as this may have led to the jury relying on stereotypes to fill in the gaps and therefore leading to questions over the validity of the model itself. I should note however that this opinion is not universal. Indeed, Krammer and Kerr have suggested that trial complexity (or simplicity) in a simulation does not necessarily undermine the verdict delivered by the mock jury because “even highly artificial simulations are not
inherently distorting and may actually inform us on relationships of real significance for
law and human behaviour.”157
This was a point that was raised and assessed in detail in Finch and Munro’s 2008 study “Lifting the Veil”158 in which they considered the findings of such simulations as those