Sprain and Gastil: An Interpretative Account of Jurors’ Expressed Deliberative Rules and Premises

Professor Dr. Leah Sprain of Colorado State University and Professor Dr. John Gastil of Penn State University have published What Does It Mean to Deliberate? An Interpretative Account of Jurors’ Expressed Deliberative Rules and Premises, Communication Quarterly, 61(2), 151-171 (2013).

Here is the abstract:

To advance deliberative theory and practice, this study considers the experiences of trial jurors who engaged in deliberation. Conceptualized as a speech event, this article inductively explores the deliberative rules and premises articulated by jurors. Jurors believe deliberation should be rigorous and democratic, including speaking opportunities for all, open-minded consideration of different views, and respectful listening. Jurors actively consider information, but face-to-face deliberation is essential for thoroughly processing evidence. Although emotions should not influence the final verdict, participants report that emotions often reinforce deliberative norms. These results inform theory and deliberative experiences in and beyond the jury.

Legal Communication Papers @ NCA 2012

Many papers on legal communication were presented at NCA 2012: The 98th Annual Convention of the National Communication Association, held November 15-18, 2012 in Orlando, Florida, USA. Here is a list of those I could identify. For abstracts and full text, please contact the authors. (If you know of other papers on legal communication presented at NCA 2012, please feel free to identify them in the comments to this post. Click here for the complete NCA 2012 program.)

• Daniel Bergan and Richard T. Cole, Michigan State University: Call Your Legislator: The Impact of Citizen Contacts on Legislative Voting
• Mike Bergmaier, Penn State University: From Miscegenation to Contemporary Marriage Equality: Marriage as a Function of Ideological State Apparatuses
• Lacey Brown, University of West Florida, Chair: Panel: Trayvon Martin and COMMunity: Exploring the Interpretive Frames of the “Stand Your Ground” Law in Shaping 21st Century American Communities
• Kathryn A. Cady and Kerith M. Woodyard, Northern Illinois University: All the Working Woman’s Friends: Protective Labor Legislation and the Early ERA Controversy
• Peter Odell Campbell, Univ of Illinois, Urbana-Champaign: The Abject of Community: The Majoritarian ‘Fourth Persona’ in U.S. Equality Rhetoric
• Kelly Carr, University of Baltimore: Inventing Continuity While Enacting Change: The Supreme Court Opinion Writing Process
• Michael S. Chouinard, Florida State University: Judge or Activist? Vaughn Walker and the Overturning of Proposition 8
• Hayley Jeanne Cole, Univ of Missouri, Columbia: Same Sex Marriage Ads: Don’t Mention It: A Content Analysis of the No on Prop 8 Ads
• Josh Compton and Paul Klaas, Dartmouth College: Oh, the Places Legal Rhetoric can Go: Prosecuting and Defending Characters of Dr. Seuss’s Bartholomew and the Oobleck
• Christopher R. Darr, Indiana Univ, Kokomo, and Harry C. Strine IV, Bloomsburg University: Partisanship, Ideology and Advice and Consent: A Content Analysis of Incivility in Supreme Court Confirmation Hearings
• Daniel Emery, University of Oklahoma: Property Crimes: Castle Laws, the 2008 Mortgage Crisis, and Privatization of Public Space
• Jerri Faris, Purdue University: Celebrating COMMunity with Ex-prisoners: Engaged Communication Scholarship in a Reentry Court
• Ryan P. Fuller, Univ of California, Santa Barbara: Agenda Denial Strategies in Regulating Vertical Integration: The Case of California SB 1765
• Joshua Gonzalez, University of Iowa: Undignified: Poverty and Personhood in the 1996 Welfare Reform Debates
• Nichola Gutgold, Penn State Univ, Lehigh Valley: The Enactment Rhetoric of Ruth Bader Ginsburg
• Leslie J. Harris, Univ of Wisconsin, Milwaukee: Spousal Correction or Spousal Cruelty? The Rhetoric of Nineteenth-Century Domestic Violence
• Amy Hasinoff, McGill University: Social Media and Sexuality: The Missing Discourse of Consent in New Sexting Legislation
• Erik Jimenez, California State University, Los Angeles: Are You a Mexican? Investigating the Devastating Implications of Alabama’s Hammon-Beason (HB) 56
• Katherine R. Knobloch, University of Washington, and John W. Gastil, Penn State University: Civic (Re)Socialization: The Educative Effects of Deliberative Participation
• Jeff Kurr, Baylor University: President Obama’s Rhetorical Pivot in Avoiding the Detainment of Deliberation over Closing the Detention Facilities at Guantanamo Bay
• Derek Lackaff, Elon University: Open Governance Experiments in the Icelandic Context
• Owen H. Lynch, Southern Methodist University: Lowering the Bar or the Important Role of Humor in The Legal Community
• Carol L. Mammel, University of the Fraser Valley: The Osoyoos Indian Band, Canadian Wildlife Service, and the Species at Risk Act: Lack of consultation, and perpetuation of underdevelopment on reserves
• Bryan J. McCann, Wayne State Univ: Between Thugs and Innocents: Racialized Violence and the Perogative of ‘Self Defense’ in the Trayvon Martin Case
• Robert Mills, Northwestern University: The Harmonious Vocalics of Judicial Unanimity: Authorship and Legitimacy in Cooper v. Aaron
• Jay Reynolds Patterson, Georgia State University: Contemporary Legal Discourse and the Graeco-Roman Tradition: The 2009 OJ Simpson Kidnapping Trial
• Carlo A. Pedrioli, Barry University: Constructing Modern-day U.S. Legal Education through Rhetoric: Langdell, Ames, and the Scholar Model of the Law Professor Persona
• Preconference: Reading the Rhetoric of Civil Rights Sit-Ins
• Alessandra Renzi, Ryerson University: Get Out of My Park: Occupying Discourse on Public Use
• Robert Richards, Penn State University: Legal Narrative in the Citizens’ Panel: Identifying Theories to Explain Storytelling in a Small Group Deliberation about Ballot Initiatives
• Brandi Dale Rogers, University of Wisconsin, Madison: Science, Law, and the Argumentative Antecedents of Fetal Personhood: A Rhetorical Analysis of Early Prenatal Torts
• Clarke Rountree, University of Alabama, Huntsville: Reversing Course: Supreme Court Overruling in an Early Admiralty Case
• Clariza Ruiz De Castilla, University of Texas, Austin: Citizenship in the Sunshine State: Florida News Coverage on Arizona’s SB 1070
• Kristina Ruiz-Mesa, Univ of Colorado, Boulder: COMMunities of Practice and Discourses of a DREAM: How Congress and Fox News Represent ‘Others’ within the DREAM Act
• Susan H. Sarapin, Troy University: Forget about It! The Ironic Effects of Instructions to Disregard Perry, Ben, Gil, and Ducky
• Susan H. Sarapin, Troy University: Toward a Causal Explanation of ‘The CSI Effect’: Self-efficacy as Mediator between Fictional Crime-TV Exposure and Verdict Certainty
• Joseph Sery, University of San Francisco: ‘Fruit from the Poisonous Tree’: The Rhetorical Strategy behind Mapp v. Ohio
• Rohini Singh, Univ of Illinois, Urbana-Champaign: Turning the Tables: Refutation by Reversal in Clarence Darrow’s Plea for Leopold and Loeb
• Jeff Swift, North Carolina State University: The Invisible Hand of the Speech Marketplace: The Supreme Court’s Currency Manipulation
• Elycia M. Taylor, Catherine Knight Steele, and Emilie Lucchesi, University of Illinois, Chicago: Protective or Oppressive? Analyzing Death Penalty Framing
• Dave Tell, University of Kansas, and Eric C. Miller, Penn State University: Rhetoric and Judicial Activism: The Case of Hillary Goodridge v. Department of Public Health
• Mary Lynn L. Veden, Univ of Arkansas, Fayetteville: The Alchemy and Antirrhetic of West Coast Hotel v. Parrish
• Rachel Avon A. Whidden, Lake Forest College: Proving Science in Court: Vaccine Injury Payouts and the Legitimization of the MMR-Autism Connection

Gastil on the Sandusky Jury and Democracy

Professor Dr. John Gastil of the Penn State University Department of Communication Arts and Sciences has posted A trial close to home, and a jury weighing evidence, at Jury and Democracy.

In this post, Professor Gastil comments on several aspects of the jury deliberation in the criminal trial of Jerry Sandusky.

First, Professor Gastil observes that the Sandusky jury appears to have been “evidence-driven” rather than “verdict-driven.” He writes:

The Sandusky jury appeared to consider the evidence carefully. They took a full 20 hours to deliberate, and they reviewed specific testimony, presumably to discuss points of uncertainty or disagreement.

In addition, Professor Gastil notes that the large number of counts considered by the jury will likely increase the civic impact of the jurors’ deliberative experience. He writes:

Our research [reported in the book The Jury and Democracy (Oxford University Press, 2010)] found that the more charges in a criminal case, the larger the impact of deliberation on one’s future participation in public life (e.g., voting). The effect appeared to come from the sheer deliberative load–the number of separate judgments you had to make, each time holding a person’s fate–often even their freedom–in your hands.

Professor Gastil further discusses the significance of the apparently successful sequestration of the jury and the tension between the jury’s obligations to apply the legal standard of culpability and the public’s perceptions of culpability.

For more information, please see the complete post.

Gastil on the Hung Jury as a Reasoned “Verdict”

Professor Dr. John Gastil of the Penn State University Department of Communication Arts and Sciences has posted When a hung jury is a reasoned “verdict”: The John Edwards trial, at Jury and Democracy.

In this post, Professor Gastil comments on Professor Alan M. Dershowitz’s CNN post, Edwards jury got it exactly right.

Professor Gastil argues that, in retrospect, the jurors appear to have acted rationally in crediting Edwards’s “personal explanation” over the government’s political explanation for the donations at issue.

Professor Gastil observes:

The judge gave the jury a task even trained social scientists couldn’t handle–the reading of intentions in a situation fraught with ambiguity.

For more information, please see the complete post.

Gray & Barnett on Sustainable Juries: Thinking Outside Peer Jury Criminal Trials

Professor Dr. Anthony Gray and Eola Barnett, LLB, both of the University of Southern Queensland School of Law, have published Sustainable Juries: Thinking Outside Peer Jury Criminal Trials, 20 Journal of Judicial Administration 18-38 (July 2010) (Issue No. 1). Here is the abstract:

Debate continues about the efficacy of the continued use of juries in courts, and recent years have seen a reduction (in Australia) in the occasions on which a jury is used in criminal trials, as well as the abolition of the requirement for unanimity. On the other hand, the use of juries has a long history dating prior to the Magna Carta, and is of great historical importance in terms of American independence. Significant research indicates that public confidence in and perceptions of the criminal justice system improve when a citizen has contact with the legal system through jury service, and there is something seen as inherently right in having a person in a society being judged by their peers.

This article focuses on weaknesses with the jury system as currently utilised, including evidence that jurors sometimes do not understand fundamental legal principles like beyond reasonable doubt, that contrary to the ideal, jurors may not in fact represent a true cross-section of society and are ‘chosen’ by the process for questionable purposes often unrelated to their ability to understand the evidence, that evidence is sometimes extremely complex, and that sometimes jurors decide cases on surprising grounds. While these findings might suggest possible reform in terms of jury selection, judicial directions to juries, and juror education, the main conclusion drawn in this article is that, at least in some cases, courts should consider the use of ‘specialist juries’, in other words citizens with particular training or expertise in relevant areas, to assist in making sure that the ‘quality’ of jury deliberations is as high as possible.

For the full text of the article, please contact the authors.

Thanks to the authors for providing the abstract.

Daftary-Kapur et al. on Measuring Knowledge of the Insanity Defense: Scale Construction and Validation

Dr. Tarika Daftary-Kapur of the Vera Institute of Justice, and colleagues, have published Measuring Knowledge of the Insanity Defense: Scale Construction and Validation, forthcoming in Behavioral Sciences and the Law. Here is the abstract:

Given the influence of social conformity and prejudice, defendants pleading not guilty by reason of insanity face the significant challenges of securing fair and impartial juries. Attitudes and knowledge of the insanity defense are factors that may influence levels of impartiality. In the light of this, we set out to develop a scale to examine knowledge levels of the insanity defense and their influence on decision-making. Two studies were conducted to construct a scale designed to assess laypersons’ knowledge of the insanity defense. Items measuring knowledge of the insanity defense were based on Perlin’s (1995) insanity defense myths. The first study identified particular items in need of revision and subscales that required the development of additional items in order to improve reliability and construct validity in the second study. The second study used the revised scale, demonstrating improved validity and reliability. The scale also had acceptable predictive validity with reference to insanity defense verdicts.

Thomas, Are Juries Fair?

Professor Cheryl Thomas of the University College London Faculty of Laws presented a paper entitled Are Juries Fair?, at Jury Research Symposium 2010, held 25-26 March 2010 in Glasgow, Scotland, UK.

Click here for the full text of the paper: Cheryl Thomas, Are Juries Fair? (February 2010) (Ministry of Justice Research Series 1/10).

Here is the abstract:

This research asks: How fair is the jury decision‐making process? It explores a number of aspects of jury fairness for the first time in this country, and asks specifically:

• Do all‐White juries discriminate against BME defendants?
• Do jurors racially stereotype defendants?
• Do juries at certain courts rarely convict?
• Do juries rarely convict on certain offences?
• Do jurors understand legal directions?
• Do jurors know what to do about improper conduct in the jury room?
• Are jurors aware of media coverage of their cases?
• How is the internet affecting jury trials?

The research used a multi‐method approach to examine these issues:

• case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries);
• large‐scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts);
• post‐verdict survey of jurors (668 jurors in 62 cases).

The study found little evidence that juries are not fair. However, it identifies several areas where the criminal justice system should better assist jurors in performing this vital role. The study also demonstrates that section 8 of the Contempt of Court Act 1981 does not prevent comprehensive research about how juries reach their verdicts and that research from other jurisdictions should not be relied upon to understand juries in this country.

[NOTE: Updated 22 March 2012 to provide a correct URL for the paper.]

Smith on Identifying and Measuring Juror Bias About Forensic Science Evidence

Lisa L. Smith, BSc., MSc., MFSSoc., of the University of Leicester School of Psychology presented a paper entitled Identifying and Measuring Juror Bias About Forensic Science Evidence, at Jury Research Symposium 2010, held 25-26 March 2010 in Glasgow, Scotland, UK.

Click here for the slides accompanying the paper.

Here is the abstract:

This series of mock jury studies has investigated the process of juror decision making about the probative value of different types of forensic evidence (e.g. DNA, fingerprints, etc.). The findings suggest that there is widespread agreement among mock jurors about the usefulness of forensic evidence that has very high probative value[;] however evidence of a weak or moderate standard produces significant disagreement among jurors regarding its usefulness in determining the guilt of a defendant. An Interactionist model of jury decision making would predict that in cases where evidence is weak or ambiguous individual jurors’ pre‐trial beliefs and opinions will have a greater impact on the decision making process. The Forensic Evidence Evaluation Bias Scale (FEEBS) was developed to determine whether a pre‐trial bias related to perceptions of forensic evidence could be measured, and the scale’s ability to predict judgments about evidence and verdicts was investigated. A factor analysis of the FEEBS revealed that participants could be conceptualised as having either a pro‐prosecution or pro‐defence bias concerning forensic evidence. This presentation will discuss these findings in relation to the recent attention given to anecdotal reports of a ‘CSI Effect’ as well as the implications that this bias has on verdict decisions both within the current research and in the courtroom.

For the full text of the paper, please contact the author.

Gunnell & Ceci on When Emotionality Trumps Reason: A Study of Individual Processing Style and Juror Bias

Justin J. Gunnell, Esq. and Professor Stephen J. Ceci of the Cornell University Department of Human Development have had a paper entitled When Emotionality Trumps Reason: A Study of Individual Processing Style and Juror Bias accepted for publication in Behavioral Sciences and the Law. Here is the abstract:

Cognitive Experiential Self Theory (CEST) postulates that information-processing proceeds through two pathways, a rational one and an experiential one. The former is characterized by an emphasis on analysis, fact, and logical argument, whereas the latter is characterized by emotional and personal experience. We examined whether individuals influenced by the experiential system (E processors) are more susceptible to extralegal biases (e.g. defendant attractiveness) than those influenced by the rational system (R-processors). Participants reviewed a criminal trial transcript and defendant profile and determined verdict, sentencing, and extralegal susceptibility. Although E-processors and R processors convicted attractive defendants at similar rates, E-processors were more likely to convict less attractive defendants. Whereas R-processors did not sentence attractive and less attractive defendants differently, E-processors gave more lenient sentences to attractive defendants and harsher sentences to less attractive defendants. E-processors were also more likely to report that extralegal factors would change their verdicts. Further, the degree to which emotionality trumped rationality within an individual, as measured by a novel scoring method, linearly correlated with harsher sentences and extralegal influence. In sum, the results support an ‘‘unattractive harshness’’ effect during guilt determination, an attraction leniency effect during sentencing and increased susceptibility to extralegal factors within E-processors.

Click here for background information on the paper from Cornell Chronicle Online.

Thanks to Professor Ceci for sending the abstract.

Sundby on War and Peace in the Jury Room: How Capital Juries Reach Unanimity

Professor Scott E. Sundby of the Washington and Lee University School of Law has posted War and Peace in the Jury Room: How Capital Juries Reach Unanimity, forthcoming in 62 Hastings Law Journal (2010). Here is the abstract:

Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The process proves to be a fascinating one. The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

HT @JuryVox.