A juror’s perceptions of witness credibility may be influenced by certain characteristics of the witness such as age (Pozzulo & Dempsey, 2009) (e.g. child vs. adult), social attractiveness of the witness or defendant (Visher, 1987) and, in the case of expert witnesses, the authority of the witness (Ward, 2004). Pozzulo and Dempsey examined the influence of age of witness, the witness’s relationship to the crime (bystander or victim), and the type of eyewitness decision on jurors’ perceptions of witness accuracy and credibility (Pozzulo & Dempsey, 2009). Their review of available research concerning the age of witnesses and its impact upon juror perceptions and decisions showed mixed results: “age was found to be positively, negatively, and at times not at all related to perceptions of credibility or verdict” (Pozzulo & Dempsey, 2009) leading them to the conclusion that the perceived credibility of a witness may be influenced by other factors than age alone.
The witness’s relationship to the crime, has been found to be salient with regard to child sexual abuse cases. Victims aged under 12 years are generally perceived as being more credible than adolescent or adult victims but child witnesses to sexual abuse (as opposed to victims of it ) were perceived as less credible. In non-sexual cases there tends to be a bias against child witnesses (Ross, Lindsay, Jurden, & Keeney, 2003). Victim's and defendant's characteristics would appear to exert some influence upon the deliberations and decisions of jurors. Victims that have a “non-traditional” lifestyle, extra-marital sexual activity and drug use, resulted in fewer guilty verdicts in rape cases (Visher, 1987). The notion of “Contributory Fault of the Victim" (e.g. willingly getting into the defendant’s car or being intoxicated), was also found to be detrimental to prosecution cases. With regard to defendants, those that were more “socially attractive” were likely to be perceived more favourably by jurors. Such judgements were based upon occupation, marital status, criminal history, appearance, and personality traits.
Though Visher found little evidence to suggest that demographic characteristics of jurors had an impact, it is possible that cognitive processes should be considered, i.e. how Jurors think and process information. Concerns have been raised with regard to Jurors’ ability to understand terms and concepts such as “reasonable doubt” and "intent". Research conducted in Australia found that over 50% of jurors understood legal terms and complex facts most of the time but less than 20% understood them thoroughly (Yule & Darwent, 2008).
The most recent UK Study of Juries commissioned by the Ministry of Justice (M.o.J) found that views among jurors about their ability to understand judicial directions was inconsistent; e.g. 69% of Jurors at Blackfriars and 68% at Winchester felt that they were able to understand directions, whereas 51% of jurors at Nottingham considered the instructions to be difficult to understand. The actual comprehension of the judge’s legal directions reduced considerably with only a minority of 31% understanding the directions fully (Thomas, 2010). Visher (1987) found little evidence to suggest that characteristics of jurors influenced decision making in any meaningful way. Nevertheless, there have been questions raised with regard to the capacity lay-people may have to understand and process large amounts of detailed and complex information. Complex fraud cases are an example. In 1986, Lord Roskill’s committee concluded that many jurors were out of their depth in complex fraud cases and that trial by random jury was not a satisfactory way of achieving justice in long-running cases such as “The Jubilee Corruption Trial” (Staple & Chance).
Complex evidence or contentious evidence my lead to the need for Expert Witnesses as in the trial of Angela Cannings. In such circumstances, the outcome or verdict may be said to depend on the extent to which juror is persuaded that an expert witness is somebody whose authority they can trust. At the Cannings trial, Professor Meadows’s provided the Jury with a narrative of what he believed had caused the death of Angela Cannings’s baby. This narrative resembled other narratives by Meadows that had been accepted by previous Courts (Ward, 2004). Arguably, this had led to Professor Meadows attaining a reputation and eminence in relation to cases of Munchausen Syndrome (now known as Fabricated or Induced Illness) by Proxy, and his support of the prosecution case made the possibility of murder plausible. In this case, it seems possible that the jury were persuaded by the man rather than the evidence. The quashing of Cannings’s conviction for murder revived a controversy about the competence of juries to evaluate expert evidence.
Juries, therefore, would appear to be inconsistent, unpredictable, and influenced by attitudes and beliefs that are not informed by evidence, but bias them for or against victims and defendants. Their process appears to be irrational and unscientific. Yet this may also contribute to the inherent strength of the jury system. The research into Juries and juror decision making tends to focus upon whether juries are influenced by extra-evidential, extra-legal and irrelevant factors in reaching their verdicts. This may lead to the impact of extra-evidential factors being exaggerated unless the influence of evidential factors is given equal scrutiny (Visher, 1987).
Visher supported the empirical studies of individual jurors’ behaviour that found demographic characteristics were statistically related to judgements regarding the defendant, but argued that these effects were largely outweighed by the effects of evidence and case characteristics. This study demonstrated that case characteristics had a substantial impact upon jurors’ judgements of guilt. Certain evidence types were highlighted as significantly influential: Physical evidence linking a defendant to a crime scene, a victim’s or witness’s testimony of force or violent coercion, especially if weapons were used.
Visher’s study found that eyewitness accounts were also compelling for jurors and this is consistent with other research concerning eyewitness testimony. Of course, the reliability of eyewitness testimony has been challenged and examined extensively to improve methods of eliciting eyewitness evidence (Wells, Small, Penrod, Malpass, Fulero, & Brinacombe, 1998). In the UK, the Court of Appeal ruled in 'R v Turnbull' that judges should withdraw cases based upon poor quality identification evidence in the absence of other evidence that could support the accuracy of the identification (Jackson & Doran, 1997). However, Visher found that evidence provided by the defense in an attempt to discredit the victim or witness’s story, e.g. in relation to identifying the defendant, resulted in a significant advantage to the defense.
The UK study for the M.o.J. also found that offence-type had an impact on a jury reaching a guilty verdict. Offences where the evidence against a defendant is strongest, result in the highest conviction rates but those that require a judgement of the defendant’s or complainant’s state of mind at the time of the offence have the lowest conviction rates (Thomas, 2010). This suggests that Juries try defendants upon the evidence presented in relation to points of law and an individual’s state of mind at the time of the event is hard to evidence.
The view that Juror’s do not have the capacity to cope with lengthy cases with complex information also lacks support. 'R v Rayment and Others' is cited as an example of the type of case that Jurors cannot reasonably be expected to understand (Staple & Chance, accessed 6/03/2010). The real reason for the collapse of the case was its incredibly long duration and lack of progress. The jury were found to have had a good grasp of the evidence and had no problems understanding the evidence or essential elements of the trial (Wooler, 2006).
American research regarding the cognitive processes of jurors has led to the identification of two models of juror decision-making: The 'Meter Model' and the 'Story Model'. Within the former, the juror reconsiders their initial decision about the defendant after each new piece of evidence is introduced. In so doing, the initial decision of guilt or innocence is continually adjusted (Jackson & Doran, 1997). The 'Story Model' is an epistemological explanation of how jurors think and make sense of the information. The lawyer presents a narrative, or story, to organise their evidence for the jury. Jurors too will construct stories from the evidence and test these against common sense generalisations (Jackson & Doran, 1997). Their decisions are then based upon the credibility or plausibility of the stories with which they are presented (Ward, 2004).
So jurors can and do utilise evidence in forming their initial decisions concerning the defendant. These initial decisions may also be influenced by extra-evidential factors. These factors may then be moderated by the process of deliberation towards a verdict based upon consensus. The fact-finding process is not limited to the accumulation of evidence but the assessment of that evidence in relation to legal standards. Prosecution for an offence is dependent upon sufficient evidence to match specific “points to prove”, e.g. that the person accused of theft had the item in their possession, did not have authority to take the item, did not reasonably believe that they had authority and intended to permanently deprive the injured party of that item (i.e. had not “borrowed” it). Jurors often experience difficulty understanding legal terms such as “reasonable doubt” (Wheatcroft, 2008) and “intent” (Thomas, 2010). Legal Professionals do not share this difficulty and therefore do not fall into the trap of equating “beyond reasonable doubt” with certainty. Therefore, they are possibly better placed to make a decision in relation to legal standards.
Should Juries Be Replaced?
The argument for the abandonment of juries in favour of Legal Decision Makers assumes that the view of a professional is the correct one. Professional legal decision makers may be considered experts in law. Lay-people may be somewhat in awe of experts such as Professor Meadows or the flawed scientific evidence that led to the wrongful conviction of the Birmingham Six. Consequently, a trained legal mind, such as a judge, may be more aware of the potential difficulties of scientific and expert evidence (Jackson & Doran, 1997). Judges and other legal professionals have the advantage of being able to learn by experience, e.g. past unsafe convictions (Ward, 2004).
Nevertheless, the argument for Legal Decision Makers based upon legal expertise may not be entirely credible. In comparing Jury trial with Diplock trials (bench only trials with no jury) in Northern Ireland, Jackson and Doran (1997) found that Judges had a distinct “cognitive advantage”: they had pre-trial papers and during the trial were able to intervene with questions directly to the witness, ask to see maps, transcripts of previous evidence, or request clarification from counsel on particular matters. These privileges are not afforded to the jury who are required to listen to the evidence and then be directed on the law. This makes it impossible to evaluate evidence in relation to legal requirements as they proceed (Jackson & Doran, 1997).
This potential benefit of expertise also carries with it the risk of what has been referred to as “Case Hardening” (Jackson and Doran, 1997; Ward, 2004). To take a judge as an example of a legal decision maker, is to consider someone whose task is to apply cold logic in evaluating the merits of a case against the structure and demands of the law. This does not necessarily take into account fairness as an aspect of justice. Whilst a legal decision maker may have the benefit of experience there is the likelihood that their status as experts lead them to be biased by their confidence in their own knowledge and decisions.
A jury has the ultimate right to find defendants guilty or innocent. In this respect, they are the manifestation of democracy at work and a check against officialdom. Unlike Judges or magistrates, a jury has the right to acquit a defendant where the dispassionate letter of the law demands a guilty verdict. An example is R-v-Ponting. Clive Ponting was a civil servant at the MoD who sent confidential documents on the sinking of the Argentine Ship General Belgrano during the Falklands conflict to Tam Dalyell. He was charged under the Official Secrets Act. Based upon a strict interpretation of the law he was guilty and the trial judge was minded to direct the jury accordingly. However, the jury acquitted him. Ponting believes that this was because the Jury perceived the prosecution as being politically driven and "unfair" (Ponting, 1987). Once decisions need to be made concerning guilt or innocence people adopt beliefs because to do so is necessary to take action. The consequences of that belief in a given context influence the sense in believing or doubting a proposition (Ward, 2004). Consequently Jurors may require a higher standard of evidence than experts if the consequences of accepting the proposition are serious, e.g. the loss of liberty.
As experts, legal decision makers may be able to make decisions that are “of the Law” but are ill equipped to make decisions that represent the values, beliefs and needs of the community. A Jury represents the community from which it is drawn and, having heard the arguments of the case, also relies upon the values, morals and priorities of the community to decide whether an action should be punished. This is the notion of “Laymans Equity”, that a jury can reach a decision based upon simple fairness rather than the law.
1. R-V-Rayment and Others - This lengthy case collapsed in 2005 after many months and cost over £60 million.
2. Angela Cannings’s third baby died of unexplained causes. Professor Roy Meadows was called as an expert witness who indicated his belief that she had smothered her child (Fabricated or Induced Illness previously known as Munchausen’s syndrome by Proxy). Cannings was convicted of murder and had this conviction quashed on appeal.
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