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.

Griffin on Narrative, Truth and Trial

Professor Lisa Kern Griffin of Duke University Law School has published Narrative, Truth & Trial, 101 Georgetown Law Journal 281 (2012).

Here is that abstract:

This article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication — according to which jurors process testimony by organizing it into competing narratives — has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials contain opportunities to promote more systematic consideration of evidence. Second, the article asserts that, to the extent the story model is descriptively correct with respect to the structure of juror decision making, it also gives rise to normative concerns about the tension between characteristic features of narrative and the truth-seeking aspirations of trial. Viewing trials through the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes. The article then appraises improvements in trial mechanics — from prosecutorial discovery obligations through appellate review of evidentiary errors — that might account for the influence of stories. For example, a fuller understanding of narrative exposes the false assumption within limiting instructions that any piece of evidence exists in isolation. And to better inform how adjudicators respond to stories in the courtroom, the article argues for modifying instructions in terms of their candor, explanatory content, and timing.

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

Legal Informatics and Legal Communication Papers at ICLS 2012

Several papers on legal informatics or legal communication were presented at ICLS 2012: International Conference on Law and Society, held 5-8 June 2012 in Honolulu, Hawaii, USA.

Below are the titles, and links to abstracts, of the legal informatics or legal communication papers — that I’ve been able to identify — that were presented at the conference. If you know of others, please feel free to identify them in the comments.

• Philip Adey (University of Sydney): Expert Psychiatric Evidence in Civil Litigation Involving Allegations of Post-Traumatic Stress Disorder: The Australian Experience
• Afra Afsharipour (University of California, Davis): Deal Technology
• Seantel A. Anais (Carleton University): Commissioning Credibility: Texts, Testimony, and Truth in Commissions of Inquiry
• Maria Ines Bergoglio (Universidad Nacional de Córdoba): Legitimacy of the Judicial System and Lay Participation in Judicial Decision-Making Processes in Córdoba, Argentina
• Susan Berk-Seligson and Mitchell A. Seligson (Vanderbilt University): The Role of the Police in Crime-Prevention in Central America
• Susan L. Brooks (Drexel University) and David M. Boulding (Private Practice): Using Communication Models to Teach Relational Competencies in Law School
• Christopher Brown (University of Arkansas, Monticello): Death by Any Other Name: Definitionalism’s Impact on America’s Response to Genocide
• Iokepa Casumbal-Salazar (University of Hawaii, Manoa): Monumental Science in Hawaiʻi: U.S. Imperialism, Western Astronomy, and Kanaka Maoli Resistance to Telescopes atop Mauna a Wākea
• Marie Comiskey (University of Michigan): Testing the Comprehensibility of Canadian Jury Instructions and the Efficacy of 3 Comprehension Aids
• Shari S. Diamond, Chair (Northwestern U/American Bar Foundation); Participants: Mei-Tong Chen (Judicial Yuan, Taiwan), Edmundo S. Hendler (University of Buenos Aires), Jae-Hyup Lee (Seoul National University), Richard O. Lempert (University of Michigan), Kwangbai Park (Chungbuk National University), Christoph Rennig (Frankfurt High Court of Appeals): Roundtable–The Role of Professionals in Lay Tribunals
• Soren Frederiksen (York University): Has the Supreme Court’s Philosophy of Science Made It to Canada?
• Masahiro Fujita (Kansai University): Informational Justice in Jury Research: Reframing Prior Jury Researches
• Jeremy Gans (University of Melbourne): Verbal Equivalents to Likelihood Ratios: Limited Probative Value, Strong Prejudicial Effect, Inconclusive Admissibility, Immoderate Usage
• Claire M Germain (University of Florida): Recent Developments in the French Criminal Jury
• Toby S Goldbach (Cornell University): Lay Participation in the Criminal Trial: First Nations Sentencing Circles and Law Reform in Canada
• Jasmine B. Gonzales Rose (University of Pittsburgh): Juror Language Accommodation in Theory and Praxis
• Mel Greenlee (California Appellate Project): Faretta, Marsden, and the Pro-Se Motion: Legal Language on the Skids
• Miranda C. Hallett (Otterbein University) and Michael Jones-Correa (Cornell University): Borders of the Public: Framing the Inclusion and Exclusion of Undocumented Migrants
• Paula Hannaford-Agor (National Center for State Courts), Nicole L. Waters (National Center for State Courts): Juror and Jury Use of New Media: A Baseline Exploration
• Valerie P. Hans (Cornell University): The Jury in Russia: Research and Reform
• Emma M. Henderson (La Trobe University): The Empty Gesture: Jury Directions and the Meaning of Consent in Rape Trials in Victoria, Australia
• Livia Holden (Lahore University of Management Sciences): Non-State Law and Governance in South Asia: Changing Discourse
• Ruth Horowitz (New York University): Experts and Deliberative Democracy
• Syugo Hotta (Meiji University): Linguistic Justice: A Linguistic Analysis of Deliberation
• Takayuki Ii (Hirosaki University): A Gap Before and After Saiban-in Service
• John D Jackson (University College, Dublin) and Nikolai Kovalev (Wilfrid Laurier University): Lay Adjudication in Europe: New Developments
• Natália P Junior (IESP / UERJ): Participatory and Deliberative Democracy from Local to Global: The Example of Women’s Conferences as New Spaces for Mobilization and Proposed Public Policies on Gender in Brazil
• Shiro Kashimura (Kobe University): Telling a Code of Law: Interactive Grounds and Contingencies of Giving Legal Advice in Japan
• Zeynep U. Kasli (University of Washington, Seattle): Who Frames the Rights-Talk and how? Immigrant Associations and Undocumented Immigrants
• Richard Kemp and Kristy Martire (University of New South Wales): A Framework for Testing the Validity of Forensic Science Evidence
• Yumiko Kita (University of Sussex): Intentions and the Reality of the Lay Adjudication in Criminal Trials: Indications from the Introduction of the Japanese Citizen Judge System (Saiban-in Seido) in Terms of a Comparative Criminal Justice Study
• Takanori Kitamura (Tokai University): An Interactional Analysis of Legal Consultations between Lawyers and Clients in Japan
• Danfeng S.V. Koon (University of California, Berkeley): Metaphors and Meaning: The Role of Metaphors in Shaping Organizational Responses to Law
• Janny Leung (University of Hong Kong): The Judge as a Godfather, Scholar, Educator, and Scolding Parent: Judicial Discourse in Cantonese Courtrooms in Hong Kong
• Sean Mallin (University of California, Irvine): Finding Blight: Code Enforcement and “Responsible” Ownership in Post-Katrina New Orleans
• Kristy Martire, Richard Kemp, Ben R. Newell, and Ian Watkins (University of New South Wales): The Correspondence between Expert Intentions and Juror Interpretations: A Likely Story?
• Lisa McElroy (Drexel University): Cameras at the Supreme Court: A Rhetorical Analysis
• Giorgi Meladze (Free University of Tbilisi): Georgian Jury System
• Caren Morrison (Georgia State University): Jurors Under Scrutiny: The Rise of Online Intrusion
• Lisa Mortimer (University of Melbourne): Access to Justice in Timor-Leste: The Role of Local and Non-Local Languages in Timor-Leste’s Formal and Informal Justice Systems
• Margaret van Naerssen (Immaculata University): Miranda Rights: Selected Linguistic Correlates of “Knowingly” and “Intelligently”
• Evelyn Nava-Fischer (Cardiff University): The Role of Regulatory Framings in the Setting and Reception of Global Standards: The Discursive Constitution of International Standards Disputes and of Agri-Food Regulatory Models in India
• Takeshi Nishimura (Shimada & Nishimura Law Office): Transparency of Japanese Criminal Justice System after Saiban-in System Was Implemented
• Karen Petroski (Saint Louis University): Texts, Not Testimony: Rethinking the Legal Use of Non-Legal Expertise
• Anastasia Powell, Nicola Henry, Emma M Henderson, Kirsty Duncanson (La Trobe University) and Asher Flynn (Monash University): The Meanings of “Sex” and “Consent”: History, Discourse, and Impact of Rape Law Reform in Victoria (Australia)
• Richard Powell (Nihon University): Motivations For and Implications Of Changing the Language of the Law: Lessons from Malaysia
• Jeanne M. Powers (Arizona State University): Social Science Research and Judicial Decision Making in School Finance Litigation
• Ming Qi (Jilin University): The People’s Jurors in Chinese Judicial System: Mechanisms and Policies
• John N. Robinson (Northwestern University): Disputing Dispersal: Frames, Repertoires, and Support Structures in Anti-HOPE VI Legal Campaigns
• William Rose (Albion College): Occasional Legislators: Law, Politics, and the Discourse of Judging
• Meredith Rossner (University of Western Sydney): Common Narrative and Community Cohesion: Toward a Micro-Level Theory of Deliberative Dynamics
• Jenny Roth (Lakehead University) and Monica Flegel (Lakehead University): It’s Like Rape: Exploring Social Understandings of Copyright in Debates between Fans and Creative Producers
• Jessica Salerno (U of Illinois, Chicago/American Bar Foundation): Emotion and Jury Deliberation: Does Expressing Emotion Make Stereotyped Holdout Jurors More or Less Persuasive?
• Joseph Sanders (University of Houston): Milward v. Acuity Specialty Products Group: Constructing and Deconstructing Science in the Courtroom
• Tatsuya Sato (Ritsumeikan University): 3D Visualization System for Lay Judges to Understand Legal Disputes on Trial
• Michael J. Shapiro (University of Hawaii): War Crimes and the Justice Dispositif
• Brian G. Slocum (University of the Pacific): Linguistics and Authorial Intent
• Ciara Staunton (National University of Ireland, Galway): Ethics, Embryonic Stem Cell Research, and Democratic Deliberation
• David Tait (University of Western Sydney): Racial Coding of Railway Stations: Jury Deliberation about the Meaning of Place in a Mock Terrorism Trial
• Anthea Fay Vogl (University of Technology, Sydney): Telling Stories from Start to Finish: Exploring the Demand for Narrative in Refugee Testimony
• Kosuke Wakabayashi (Ritsumeikan University): The Effects of the Judicial Instruction which Includes Argument for Evidence Law Regarding Pre-Trial Publicity Information
• Natalie Wallace and Valerie P. Hans (Cornell University): Is There a Lawyer in the “House”? The Portrayal of Medical Negligence in “House, M.D.”
• Mark E. Walters (University of California, San Diego): Legal-Cultural Formations from High Literacy to Secondary Orality
• Zhuoyu Wang (Southwest University of Finance and Economics of China): An Empirical Research on China’s Recent Reforms of Its Mixed Tribunal System
• Matthew J. Wilson (University of Wyoming): Japan’s Evolving Lay Judge System: Room for Improvement or Even Expansion?
• Toru Yamada (Cornell University): A Conceptual Administrative Manual: Discursive Formations in Japan’s Heritage Nomination Process

Hoffmeister on Jurors in the Digital Age

Professor Thaddeus Hoffmeister of the University of Dayton School of Law has posted a paper entitled Jurors in the Digital Age. Here is the abstract:

Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, there has been little legal scholarship on this topic. The articles that have touched on the issue primarily focus on the benefits of technology and how it can be harnessed to aid in juror comprehension. This dearth of academic writing may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct has historically been an under examined area of the law. This article attempts to fill that void by analyzing the detrimental impact of the Digital Age on sitting jurors and whether it can be lessened. While many of the issues examined in this article apply equally to civil cases, the primary focus of this article is on jurors deciding criminal cases.

The article begins, in Part I, by discussing the influence of the Digital Age on juror: (1) research; (2) communications; and (3) privacy. In Part II, the article analyzes possible ways in which to limit the negative impact of new technology on these three areas. While there is no panacea for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The three proposed remedies are as follows: (1) improving juror instructions; (2) allowing jurors to ask questions; and (3) disclosing juror information to the opposing party. In Part III, the article goes on to examine what might occur if the aforementioned remedies are not implemented or prove ineffective. Specifically, the article suggests that the courts may, in the future, increase juror penalties and limit access to jurors.

As part of the research for this article, this author conducted the first-ever survey (“Jury Survey”) on jury service in the Digital Age. The Jury Survey Questions went to federal judges, prosecutors, and public defenders. The questions focused primarily on juror research but briefly touched upon juror communications and privacy. The purpose of the Jury Survey was twofold: (1) to discover from those who work with the legal system on a daily basis their views on the jury reform proposals suggested by this article; and (2) to learn about other possible reform measures. Of particular note, the Jury Survey Respondents, like this author, believe that improved and updated jury instructions are the best approach to combat online research and improper communications by jurors. In contrast, a significant number of Jury Survey Respondents doubted whether allowing jurors to ask questions would decrease the likelihood of juror research and communications to third parties. This article suggests the opposite and strongly encourages the use of juror questions.

HT @TheJuryExpert.

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.

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.]

Nelson on The Effect of Narrativisation on the Comprehension of Jury Instructions

Sally Nelson of Cardiff University presented a paper entitled The Effect of Narrativisation on the Comprehension of Jury Instructions, 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:

The validity of trial by jury is grounded on the supposition that jurors understand the law provided to them in the judge’s instructions and can therefore deliver a sound verdict. However, three decades of research in American trials confirms that a majority of jurors substantially misunderstand their instructions. To date, there ha[ve been] exceptionally [few] comparable experimental investigations into instruction comprehension in English and Welsh juries. This is particularly astonishing because the different context in which instructions are delivered in English and Welsh courts means that findings from American studies cannot be generalised. Unlike the US, where judges have standardised instructions to read verbatim to the jury, in England and Wales, judges have the freedom to construct their own summings‐up for each case. In essence, this paper presents initial findings from a jury simulation which investigated how the relative discoursal freedom afforded to judges in England and Wales shapes juror comprehension.

Pinpointing difficulties in jury comprehension to judges’ ‘legal’ style of delivery, rather than a ‘narrative’ style which accommodates reasoning strategies typically used by lay jurors, the study examined whether mock jurors’ comprehension improved when the summing‐up was ‘narrativised’. Three summings‐up were drafted, each systematically varying by degree of narrativisation. The first replicated the US instructional context, with jurors receiving only the legal directions from the Specimen Directions; the second integrated specific evidence from the case into the Specimen Directions; and the third incorporated evidence as well as narrativising features recognized in previous research as convergent with lay speech (such as vocatives, rhetorical questions and discourse markers). Mock jurors watched a simulated rape trial, prior to receiving one of the three summings‐up. Comprehension was then assessed by multiple‐choice, paraphrase and novel scenario tests. The results from the study will be used to discuss whether there is substance behind the self‐report findings that English and Welsh jurors have considerably less difficulty understanding instructions than their US counterparts, and further, what this means for the previous focus of instruction reform (re‐writing instructions in plain English) since it does not address the decontextualised nature of those instructions.

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

Jury Instructions on Technology & Social Media

A list of U.S. federal and state jury instructions on jurors’ use of technology and social media has been posted at the Going Paperless Blog by Molly DiBianca, Esq., of Young Conaway Stargatt and Taylor, LLP.

Lynch & Haney on Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination

Professor Mona Lynch of the University of California, Irvine School of Social Ecology, and Professor Craig Haney of the University of California, Santa Cruz Department of Psychology, have published Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination, 33 Law and Human Behavior 481 (2009). Here is the abstract:

“This study focused on whether and how deliberations affected the comprehension of capital penalty phase jury instructions and patterns of racially discriminatory death sentencing. Jury-eligible subjects were randomly assigned to view one of four versions of a simulated capital penalty trial in which the race of defendant (Black or White) and the race of victim (Black or White) were varied orthogonally. The participants provided their initial ‘straw’ sentencing verdicts individually and then deliberated in simulated 4–7 person ‘juries.’ Results indicated that deliberation created a punitive rather than lenient shift in the jurors’ death sentencing behavior, failed to improve characteristically poor instructional comprehension, did not reduce the tendency for jurors to misuse penalty phase evidence (especially, mitigation), and exacerbated the tendency among White mock jurors to sentence Black defendants to death more often than White defendants.”