Important Questions for Jury Researchers

What makes a research question on jury behavior important and worthy of study? Many variables can be manipulated in the context of a jury simulation paradigm or measured in field research but some variables are likely to be of more interest than others. Can we articulate a rubric for evaluating the importance of research questions? The scholars in this session will propose important areas of inquiry for future jury research as well as frameworks for deciding what types of questions are important to study.

 

Speakers

 

Jennifer Hunt

Department of Psychology, Buffalo State College

Studying the Effects of Race, Ethnicity, and Culture on Jury Behavior: Target Effects, Subject Effects, and Interactions

Race, ethnicity, and culture are likely to influence jury decision making and behavior in a variety of ways; however, research on juries often fails to examine these variables or addresses them in an overly simplistic manner.  In this talk, I will discuss the importance of including race, ethnicity, and culture in jury research and argue that developing a full understanding of their influence requires research from multiple perspectives.  The first, and most commonly used, approach involves studying race and ethnicity as target variables.  In this approach, research examines how processes such as stereotyping and prejudice can lead jurors to make different judgments about legal actors (e.g., defendants, attorneys) based on their race and/or ethnicity.  A second approach, which is less commonly used, involves examining subject effects or ways in which jurors’ own race, ethnicity, and culture influence their judgments and behaviors (e.g., intergroup dynamics in jury deliberations; cultural influences on defendant evaluations).  Third, it is critical to investigate potential interactions in which target and subject variables mutually influence jury decisions and behavior (e.g., how the racial composition of juries influences bias against minority defendants).  Developing a body of jury research that examines each of these perspectives in a sophisticated manner (e.g., expanding beyond the typical White-Black comparison) is likely to be challenging, but is necessary to develop a both theoretical and practical understanding of the complex influences of race, ethnicity, and culture on jury decision making and behavior.

 

Christina Studebaker

Barnes & Thornburg, LLP

Incorporating the Perspective of Litigators Into Juror and Jury Decisionmaking Research

One of the overarching questions posed for this conference is “What makes a research question on jury behavior important and worthy of study?”  Of course this is a complex question, and the answer is influenced on the perspective you take.  Based on my years of experience as a trial consultant and a researcher, I would say that part of the answer is “whether the question is relevant to the practice of litigation and whether the data collected has the potential to impact how litigators try cases.”  Litigators are advocates for their client(s).  At trial, a litigator’s main goals are: (1) to get the jurors to perceive the case in a way that is favorable to his or her client and (2) to have the jury return a verdict in favor of his or her client.  Litigators often say “The facts are the facts,” and their challenge is to present those facts in a way that is most favorable to their clients.  In preparing for trial, litigators focus on the things they can control or influence, including: (1) the way the case is presented (or, as some might say, “the story that is told), (2) the questioning of witnesses (direct as well as cross-examination), (3) demonstrative exhibits that are prepared for trial, and (4) the (de)selection of jurors.  Even though many studies on juror/jury decision making touch on one or more of these factors, the issue of advocacy is often overlooked and not adequately incorporated into the research.  In my presentation, I will discuss questions of interest to litigators and how those questions can be addressed by researchers in ways that contribute to theories of decision making as well as applied knowledge in the field of psychology and law.

 

Jonathan “Jay” Koehler

College of Law. Northwestern University

The Impact of Non-Evidentiary Factors on Jury Verdicts

Jurors are supposed to base their verdicts on evidence, and the available data suggest this is what they try to do.  But psychologists have also demonstrated that the decisions people make – including, presumably, legal decisions – are influenced by a host of non-evidentiary considerations. These considerations may include case-specific contextual factors (e.g., defendant’s demeanor, judicial rulings, attorney behavior), broader contextual factors (e.g., jurors’ political and cultural beliefs, recent world events), and social dynamics associated with group decision making (e.g., impression management concerns).  A key challenge for jury researchers is not merely to demonstrate the influence of non-evidentiary factors in controlled laboratory studies, but to persuade interested non-researchers that those factors affect actual jury verdicts.  Methodological suggestions are offered.

 

Norbert Kerr

Department of Psychology, Michigan State University

Suggested Do’s and Don’ts for Future Jury Research

A few suggestions for future research on the jury– the form of Do’s and Don’ts–are offered by the author, who is retiring ~40 years after his first jury study (Davis, Kerr, et al., 1975). Kerr will argue that the next generation of jury scholars) do NOT want to do the following:

• Do replications on juries of phenomena observed among individual jurors. (It will be argued that well validated SDS and SJS models permit a reasonably accurate estimate jury effect size from a knowledge of juror effect size.)
• Seek greater impact of jury research in actual trial practice via appeasing the idol of mundane realism. [I’ll argue that such a pursuit a) will result in less and less rigorous jury research, and b) is ultimately in vain (cf. Kerr & Bray, 2005).]

And he’ll present arguments for DOing the following:

• Focus on the behavioral implications of jury policies and procedures suggested by case law and by viable innovations. [He will illustrate by discussing his first (jury size and decision rule) and his last (pre-deliberation jury discussion) studies on such topics.)
• Develop and test formal (preferably mathematical) models of jury decision making. [He will illustrate such models’ utility by describing a recent application (Kerr & MacCoun, 2012) of MacCoun’s (2012) bBOP model for resolving the question, “is there a leniency asymmetry in criminal jury deliberations? ”]
• Seek greater impact of jury research in actual trial practice via a) doing the best science possible, b) educating those who determine policy to better recognize and appreciate good science, and c) find and exploit opportunities to end-run the most hidebound policy makers.

 

Discussants

Shari Diamond

College of Law, Northwestern University

 

 

 

Margaret Bull Kovera

Department of Psychology, John Jay College-CUNY

 

Methodological Issues in Jury Research

Speakers

Brian Bornstein

Department of Psychology, University of Nebraska-Lincoln

Jury Simulation Research: Pros, Cons, Trends, and Alternatives

This talk/chapter discusses the pros and cons of simulation research as a method of studying jury behavior, compared to other techniques. The author situates the debate over jury simulation research within psychology (and science) more broadly, drawing on other topics that are studied in a simulated (as opposed to real-world) milieu. Data on chronological trends in jury simulation research methodology are presented, and the paper concludes with a discussion of alternatives and recommendations for the future of jury research.

 

Dan Krauss

Department of Psychology, Claremont McKenna College

How It Looks Matters Sometimes More than Others: Determining When Ecological Validity is More Important in Jury Decision Making Research

Jury simulation research has been a mainstay of psychology and law research, but it also has been criticized from both within and outside of the field of psychology and law for its lack of ecological validity. The importance of ecological validity, however, should depend on the stage of the theoretical development of the questions being examined.  Rather than a simple two-stage theory of research development, where internal validity is maximized in the initial stages and ecological validity in later stages, a more nuanced, continuous perspective is needed. Further, a more comprehensive ecological validity focus, which goes beyond the written law and examines legal processes and their interactions with the legal system and legal actors that drive jury decisions, is necessary for a more informed psychological science of jury decision-making. A number of suggestions for improving the ecological and external validity of jury research at various stages of theoretical development will be offered.

 

 

Theodore Eisenberg

College of Law, Cornell University

Juries Compared to What?  The Need for a Baseline and Increased Attention to Real Cases

Many studies suggest limitations on jurors’ processing of information but the implications of such findings are unclear absent a control group.  The choice in legal adjudication is not between jurors and no adjudication; it is usually between jurors and judges.  The prime candidate control group in the case of legal adjudication is thus judges, with arbitrators serving as a possible additional control.  The author will highlight research, dating back to Kalven and Zeisel, that compares juries and judges.  Such research often employs actual cases, which necessarily sacrifices the rigor of an experimentally controlled environment, but can add realism that experiments often lack.  When experimental results and real world results are sufficiently consistent, it should enhance their appeal to policymakers.

 

 

Mary Rose

Department of Sociology, University of Texas at Austin

Jury Research vs. Research that Uses the Jury: Weighing the Need for Ecological and External Validity in Jury Studies

Debates over what constitutes acceptable “jury” research have gone on for decades. This paper considers the arguments surrounding the limits of generalizations from mock jury research, as well as the costs that ecologically and externally valid research imposes. I consider whether there is a true need for ecological and external validity at the level of scientific insight, as well as legal application. In terms of science, I ask what is gained from high-quality simulation research compared to other forms of studies that inform our understanding of jury decision making. I then consider indicators of what the legal system, especially appellate courts, consider acceptable research for insights into jury decision making. The scientific and legal applications of jury research can and should be considered separately, but it is also quite evident that scholars aiming to have their scientific work penetrate the legal system need to make jury research as realistic as possible.

 

Discussants

Brian Cutler

Department of Social Science & Humanities, University of Ontario Institute of Technology

 

 

Edie Greene

Department of Psychology, University of Colorado-Colorado Springs

 

Integrating Individual and Group Models of Decision Making

In the past decade, researchers have focused on identifying social cognitive models of individual juror behavior and have relatively neglected that jurors make decisions in the context of a larger group. Do models of individual decision-making translate to the group decision-making environment? Or are new models needed to fully explain how individual jurors come together to make decisions?

Speakers

 

Dan Simon

College of Law, University of Southern California

To Study Juries or Jurors?

Psychologists are the first to acknowledge the effect of the situation on human behavior and decision making.  Given the strong evidence of the influence of groups on their members, it would seem inevitable that studying individual jurors cannot substitute for studying juries.  However, data from both naturalistic observations and laboratory experimentation paint a more nuanced picture, which depends also on the question being studied.  The paper will examine the various facets of these vying approaches.

 

 

Lora Levett

Department of Sociology and Criminology & Law, University of Florida

Developing a Model of Jury Decision Making: Integrating Individual and Group Variables

Researchers have identified models of individual juror decision making and variables that influence the decision making processes of groups.  However, to date, there is no unified model of jury decision making that accounts for both of these areas of research. Given that the deliberation process affects the final decision the jury makes, such a model must account for the individual input variables and the deliberation in explaining verdict, rather than focusing solely on input-output variables. Although the traditional models of jury decision making can tell us about how the distribution of jurors’ pre-deliberation preferences can predict final verdict, it does not account for why and how the verdict is obtained and may artificially create pre-deliberation preferences through asking about verdict preference prior to deliberation. The story model of individual juror decision making (the most widely accepted model of juror decision making), combined with what we know thus far about how groups deliberate, may help us fill in those gaps. This paper will discuss integrating research on group processes, mathematical modeling, and research on the story model of jury decision making to begin the process of creating a comprehensive model of jury decision making.

 

 

Dennis Devine

Department of Psychology, Indiana University-Purdue University Indianapolis

Models Gone Wild!: Bridging the Divide Between Jurors and Juries

Devine will provide a brief overview of the many existing models that address juror and jury decision making, followed by an analysis and comparison of those models aimed at identifying commonalities as well as notable differences. He will summarize a new multi-level descriptive model that integrates the two levels with regard to understanding how juries reach their verdicts, and offer some thoughts about the need to develop models that account for how well juries deliberate in the process of making their decisions

 

 

William Hirst

Department of Psychology, The New School

The Effects of Jury Deliberation on Jurors’ Memories: Applying Research on Conversational Interaction and Memory to the Jury Setting

Juries must rely on their memories of the testimony they heard in court as they make their decisions.  But as psychologists have repeatedly shown, memory is unreliable. Nevertheless, the Courts often instruct juries to believe their collective memory over even written transcripts, assuming that, if all jurors remember the same thing, the memory must be correct.  What the Courts fail to realize is that the conversational interactions taking place during jury deliberation can reshape the collective memory of the jury, with the result that jurors may agree about what a witness said, but their memory may still be in error.  This faith in a possibly erroneous memory could lead to faulty decision making on the part of the jury.  Hirst will review the psychological work examining the effects of conversational interactions on memory.

 

Discussants

Reid Hastie

College of Business, University of Chicago

 

 

 

Scott Tindale

Department of Psychology, Loyola University

 

Studying Lay Participation around the Globe

Several countries have recently adopted new systems that allow for lay participation in legal decision-making. How do these new systems differ from the U.S. jury system? Do these differences influence the quality of justice dispensed? Has the emergence of these new systems highlighted new questions about the U.S. jury system?

Speakers

 

Hiroshi Fukurai

Department of Sociology & Legal Studies, UC-Santa Cruz

Sudden Emergence of Lay Adjudication Systems in East Asia and the Future of Jury Research and Analysis in Japan and the U.S.

Since the late 1990s and early 2000s, various East Asian countries began to engage in serious debates on the possible introduction of citizen participation in legal decision making.  Japan’s Justice System Reform Council (JSRC) first introduced two lay adjudication systems in 2001: (1) Saiban-in Seido (a Quasi-Jury System); and (2) a new Prosecution Review Commission (Kensatsu Shinsakai or Grand Jury System). Both were implemented in 2009, altering Japan’s conservative legal landscape and authoritative criminal justice process.  Similarly, the Korean government introduced its own version of a popular jury in 2008, while China strengthened its lay assessor system in 2004, 2005, and 2010, providing the necessary financial backing and imposing stricter participatory qualifications and requirements.  The Thai government also decided to introduce its own version of lay participation in 2006. And lastly, in Taiwan, after many years of debate, the government has finally introduced a bill to create a 12-member jury system in 2012. Fukurai’s presentation first examines why many counties in East Asia suddenly began to show greater interest in the institution of the popular jury and then provide critical insight into how lay adjudication in East Asia raises important questions about the declining trend of America’s criminal jury system. Such critical questions include socio-legal impacts of America’s continued support to ever-punitive mandatory sentencing guidelines and preferred use of its own judicial officers in the disposition of criminal matters, including so called “terrorist” cases.  Fukurai finally suggests that community members in the U.S. must be actively involved in making independent judgments in both criminal and civil matters.

 

Jaihyun Park

Department of Psychology, Baruch College – CUNY

The Jury System in South Korea: The Diagnosis and Prognosis of the Newborn System

It has been more than four years since South Korea instituted a jury system for the first time in its history. In spite of the initial skepticism and opposition, jury trials appear to be settling in the judicial system in South Korea. Recent statistics and reports offered assurance that lay citizens have the ability to make legal decisions that law professionals find sound and valid. The present paper will describe the major characteristics of the South Korean jury system, review the four years of jury trials with a special focus on the issue of jury competence (i.e., judge-jury agreement), and discuss emerging issues that derived from recent jury trials. In addition, the implications of South Korean jury system for jury research will be discussed.

 

Sanja Kutnjak Ivkovich

School of Criminal Justice, Michigan State University

Studying Mixed Tribunals: Theory and Reality

This paper explores mixed tribunals, a form of lay participation in legal decision making used in many countries across the world. Ivkovich first explores what mixed tribunals are, and then uses the example of Croatia to analyze their legal environment. She then utilizes the status characteristics theory to predict the interaction among professional judges and lay judges in mixed tribunals. Using the results of empirical legal studies on mixed tribunals, Ivkovich discusses both the theory and the reality of mixed tribunals, and concludes with a set of recommendations applicable to jury settings.

 

Valerie Hans

College of Law, Cornell University

Global Juries: A Plan for Research

There is a notable renaissance in the use of juries and other forms of lay participation worldwide. In Europe, Asia, and elsewhere, countries have introduced new decision making bodies of juries or mixed courts that include lay citizens. These political developments offer significant scientific opportunities to assess the multiple effects and functioning of lay legal decision making. These opportunities, however, are accompanied by major methodological challenges. Systematic analysis of juries in different countries may require research strategies such as case studies and comparative approaches that are not part of the typical jury researcher’s toolbox. Hans will propose a set of research questions and methodological approaches that take advantage of these scientifically valuable opportunities to understand the diverse effects of incorporating lay voices into legal systems.

 

Discussants

Steven Penrod

Department of Psychology, John Jay College – CUNY

 

 

 

Neil Vidmar

College of Law, Duke University