Anda di halaman 1dari 26

7.1.

JUDICIAL INSTRUCTIONS AND COMPREHENSION


So, we've just heard the judge summing up and instructing the jurors about how they are to
decide whether the defendant in this case is guilty beyond reasonable doubt.
The judge gave the jurors instructions about the standard of proof required for a verdict and
instructions about who has the burden of proof in proving the defendant's guilt. These
instructions are supposed to help the jury reach the correct verdict. Now here is the full
version of these instructions as used in some jurisdictions in Australia.
Onus of proof: As this is a criminal trial the burden or obligation of proof of the guilt of the
accused is placed squarely on the Crown. That burden rests upon the Crown in respect of
every element or essential fact that makes up the offence with which the accused has been
charged. That burden never shifts to the accused.
There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute
before you. It is of course not for the accused to prove his or her innocence but for the Crown
to establish his/her guilt.
A critical part of the criminal justice system is the presumption of innocence. What it means is
that a person charged with a criminal offence is presumed to be innocent unless and until the
Crown persuades a jury that the person is guilty beyond reasonable doubt.
Standard of proof: The Crown must prove the accuseds guilt beyond reasonable doubt. That
is the high standard of proof that the Crown must achieve before you can convict the
accused.
At the end of your consideration of the evidence in the trial and the submissions made to you
by the parties you must ask yourself whether the Crown has established the accuseds guilt
beyond reasonable doubt. In other words, you should ask yourself, Is there any reasonable
possibility that the accused is not guilty?
However, the Crown does not have the burden of proving beyond reasonable doubt every
single fact that arises from the evidence and is in dispute. The obligation that rests upon the
Crown is to prove the elements of the charge; that is the essential facts that go to make up
the charge, and must prove those facts beyond reasonable doubt. I shall shortly outline for
you what are the elements of the charge, or the essential facts, that the Crown must prove
beyond reasonable doubt.

In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown
proved the guilt of the accused beyond reasonable doubt? If the answer is yes, the
appropriate verdict is guilty. If the answer is no, the verdict must be not guilty.
What do you think each of these instructions means? Take a moment to answer the questions
that follow this video. We will return in a minute to talk about these instructions in more
detail.

7.2. HOW IMPORTANT ARE INSTRUCTIONS?


So how did you go? How well do you think you understood what the judge was asking jurors
to do?
Well, we can give you pretty clear feedback about whether you understood what the burden
of proof was. In this case, the burden of proof was wholly on the prosecution. This means
that it is up to the prosecution to prove that the defendant is guilty by presenting evidence
that shows that it was the defendant who committed the crime and that the defendant meant
to cause serious harm or death to the victim.
The correct interpretation of this direction recognises that the defendant does not have to
prove that he is innocent, so the defendant does not have to provide any evidence at all. It is
completely up to the prosecution to make the case.
However, giving you a clear explanation of the standard of proof, and so feedback on whether
you understood it or not, is a bit trickier. There is often no agreed definition of what beyond
reasonable doubt means in many jurisdictions.
In some jurisdictions this is defined as meaning that you are sure that the defendant is guilty,
or you are sure that there is no other plausible or reasonable explanation for the evidence
presented in the case.
In other jurisdictions, it is simply defined as just meaning that you have no doubt that is
reasonable, which is a circular definition. One misconception that our research has identified.,
however, is that beyond reasonable doubt means that you have no doubt at all, this is not
actually the case.
A correct interpretation of beyond reasonable doubt can mean that you can have some doubt
about the defendant's guilt, but that that doubt just can't be a reasonable, or perhaps

sensible, doubt. In Queensland at least, it has been suggested that beyond reasonable doubt
be clarified by making it clear to jurors that it doesn't mean no doubts at all.
So how did you go with your explanations of these two instructions? Did you get them both
correct? And were your feelings about whether you got them correct in line with whether you
actually got them correct?
We will return shortly to consider whether people's perceptions of their understanding of such
instructions matches their actual level of understanding of those instructions in a minute.
So how important are instructions for how a jury decides its verdict?
In our drama, you obviously heard a very abbreviated version of this phase of the trial - we
only had a few minutes to show you what happened in the trial, not several days, weeks or
perhaps months as happens in real trials.
In some jurisdictions, the summing up and instruction part of a trial can take a substantial
period of time - even as long as the presentation of evidence itself during the trial! This is one
of the reasons that law reform bodies and researchers have focussed on understanding the
effect of this part of the trial. Longer summing ups and instructions to jurors make the trial
more expensive and create unnecessary delays in the legal system.
Let's ignore the summing up part of the trial for a second and focus on the issue of judicial
instructions. Are those instructions, or directions as they are sometimes called, useful for
jurors in making their decisions?
Well, to answer that question, we have to first of all ask whether jurors can actually
understand what they are being asked to do.
McCabe and Purves, reporting on the London School of Economics Jury Research Project in
1974, asked shadow jurors about their experiences. A shadow jury is when members of the
public attend a real trial, and form a second jury for the purposes of the research project.
They are not actually deciding the verdict in the case, but they experience the same evidence
as the real jury. Typically they sit in the public gallery. Because they are not the real jury,
researchers are allowed to record their deliberations and ask them lots of questions about
how they made their decisions.

This research suggested that jurors are conscientious about their task - they try really hard to
do what they are asked to do. However, research by Stephenson in 1992 suggested that this
conscientiousness fades away during the trial unfortunately.
This doesn't say a lot about jurors' comprehension of what they are asked to do, only that
they appear to be motivated to do what they think they are being asked to do.
Zander and Henderson's 1993 study reported that 90% of 8000 jurors had been able to
understand and remember the evidence, and that the prosecution and defence barristers
thought jury would have no trouble understanding or remembering the evidence.
That research relied on jurors' own self reports of comprehension - whether they thought
they could understand the evidence and judicial instructions - and also the reports of the
lawyers involved in the case. Other self report data agrees with these findings.
In a study by Jackson in 1992, 65% of jurors said they understood all of the judge's
instructions, and a further 25% said they understood most of the instructions - so that's a
total of 90%, much the same as Zander and Henderson found.
Consistent with this, Cutler and Hughes in 2001 reported that 96.6% of the jurors in their
study said that the judges instructions were clear and understandable. Now from a research
perspective, even though this is interesting in that it tells us what jurors think they
understand, it might not be a very reliable indicator of actual comprehension.
So why can't we rely on juror's self-reported understanding of instructions?
There is pretty strong social pressure on a juror to say that he or she understands the task at
hand. To return a verdict and then admit to a researcher that you didn't understand what you
were meant to be doing would look pretty bad really.
The research relying on more direct measures of comprehension is generally pretty
consistent, and unfortunately it paints a different picture about jurors' comprehension of
instructions. Such research has either asked jurors and mock jurors to paraphrase what the
judicial instructions mean this is a test developed by Charrow and Charrow in 1979 or
has given jurors and mock jurors a multiple choice test.
When we asked you what the judge's instruction meant at the start of the episode, we asked
both of these types of questions. The short version is that jurors struggle to understand what
they are asked to do.

For example Reifman, Gusick and Ellsworth in 1992 reported that only 41% of jurors actually
understood substantive law when they were tested objectively. They also showed that those
jurors who were given instructions performed just as well as those who were not given
instructions.
So either comprehension was poor, or jurors didn't rely on the instructions. In terms of
understanding both of the instructions we spoke about earlier in this presentation, our own
research suggests that only about a third of jurors correctly interpret both of the instructions
to do with standard of proof and burden of proof. Two thirds understand one or the other.
These are not unusual findings. Work by Severance and colleagues in 1992 also shows that
jurors display serious difficulty comprehending differences between legal concepts.
As reported by Sarat in 1995, jurors who were surveyed as part of the Capital Jury Project
could remember the details of the defendant, but they could not understand or remember the
legal rules relating to their decision to impose the death penalty.
This difficulty in remembering the legal rules is part of a more general issue where jurors
have difficulty in remembering information about trials. For example, Hastie and colleagues'
1983 study found that jurors had poor recall of trial information. This problem is made worse
in complex cases, according to some research by Nathanson, in 1995.
Jurors themselves have some insight into the problems with evidence and instructions. Heuer
and Penrod found in 1995 as well that as case complexity increased, jurors felt less sure that
their verdict reflected a proper understanding of instructions.
Heuer & Penrod in 1994 also surveyed 81% of jurors in 160 trials. They found that as the
amount of information increased, jurors admitted that it was harder to decide the case. And
so difficulties in remembering trial details and also the legal instructions about how to decide
the verdict, make it difficult for jurors to do their job.
There is additional evidence from Sandys' 1995 study that jurors fail to separate judgements
of guilt and punishment in capital cases in the United States. Although the guilt and
punishment phases of capital trials are meant to be separate, and the decisions based on
different sets of evidence, it seems that both decisions are made at the same time.
We also know from Casper and Benedict's 1993 research that jurors do not ignore extra-legal
or inadmissible evidence, even when instructed to do so. We spoke about some of these
issues in a previous presentation.

So, overall, while there is some variation in comprehension from study to study, according to
Bornstein and Greene in 2011, figures of about 50% of people actually understanding
directions seem to be about typical.
From Rose and Ogloff's 2001 research, we also know that deliberating as a group doesn't
seem to improve the state of affairs. So, this is obviously somewhat concerning!
The point of this research is not to suggest that jurors are incapable of acting as deciders of
fact as they are instructed to do so, but rather to highlight that there is a problem with how
they are being asked to do their job. So there is a problem with the instructions, not with the
jurors themselves.
Just to give you an example of how complex the instructions have become in some cases,
here is an instruction about motive to lie:
There are a number of matters that arise out of that line of questions and the argument
about which I must give you direction. The first is this. The defence argued to you that there
are a number of reasons why Complainant A might be telling lies about the conduct of the
accused to him.
The prosecution on the other hand of course, argued that Complainant A was a truthful
witness and you should accept him as a witness of truth in relation to what he says the
accused did to him. The prosecution argues that even accepting the combination of events
occurring in Complainant As life at the time, that this does not make his evidence untruthful
or unreliable.
It is very important that you understand that if you accept the prosecution argument that
notwithstanding all of these things were happening to Complainant A at the time, and
therefore that you reject the defence argument that Complainant A was lying because he
wanted to divert attention away from his own wrongdoing and to get himself back into the
School, and because people were trying to induce him to say things about [name withheld]; if
you reject that defence argument all that means is you have rejected one of the arguments
advanced by the defence as to why you should reject the evidence of Complainant A.
It is not the same by rejecting an argument that these were motives that induced
Complainant A to lie; it is not the same as saying, Because I have rejected these motives,
therefore I find he was telling the truth. So it is one thing to say, I reject the argument that

he lied because he had the motive but it does not automatically convert Complainant As
evidence into the truth. That is a separate and independent assessment that you must make.
Two things flow from that. First is the one I have mentioned. All you have done if you reject
the argument, is reject one possible basis for rejecting Complainant As evidence. It may still
be possible that was lying for a motive that you do not know about and that the defence did
not know about.
So just because you reject, if you reject the possible motives advanced by the defence, does
not mean that there could not be other motives. So the rejection of arguments about motive
to lie do not make Complainant As evidence by that reason alone, any more credible. You
must assess Complainant As credibility on the basis of his evidence and consideration of all of
the other evidence in the case and the arguments that have been put to you about it; not on
the basis of what the accused might be able to point to, to suggest a reason for lying.
Remember, at all times it is for the prosecution to prove that Complainant A is telling the
truth about the acts, the subject of Count 1. It is one of the aspects of the accused not being
required to prove his innocence, that he does not have to prove to you any particular motive
on the part of Complainant A to lie. You can only convict the accused on Count 1 on the basis
of all of the evidence, if you are satisfied of his guilt beyond reasonable doubt.
Now right, obviously we had to speed up the instruction. If we had read the instruction out at
normal speed, it would have taken about thirty or forty minutes. So why have instructions
become so complex when this complexity seems at odds with the very purpose of helping
jurors make their decisions correctly?
Well, the reason why this is, is because instructions are often designed and given with two
purposes in mind. The first purpose should be pretty obvious. To help jurors make decisions in
the legally correct way.
The second purpose however, is to protect the jury's verdict against appeal. Courts are
generally arranged in a hierarchy. The lower courts will generally hear the less serious
matters, and also the preliminary matters for more serious cases. The higher courts, such as
the District and Supreme courts in my jurisdiction, will run the jury trials for the serious
crimes.
At the conclusion of a trial, if a defendant is convicted, he or she may instruct their lawyers to
appeal to the Court of Appeal or even the High Court, if the result of the first appeal is to be

appealed - The High Court is the highest court in Australia, the equivalent in other
jurisdictions will likely have a different name.
Because a jury doesn't provide written reasons for their verdict, as in a Judge only trial, the
only basis for appeal is generally mis-instruction or mis-direction. That is, that the judge gave
an incorrect instruction, or failed to give an appropriate instruction.
Because jury trials are very time consuming and expensive, and they can be traumatic for
witnesses and victims, judges generally want to avoid avenues for appeal in jury trials. One
way they do this is to rely on directions that have been written to protect against appeal.
These might be standard instructions that have survived previous appeals, or instructions that
cover every possible verdict option and defence, even if not raised in the actual case. Such
instructions can be very lengthy and contain a lot of technical legal language which is aimed
at the appeals judges, not the jurors.
Entities such as the American Bar Association and law reform commissions in other
jurisdictions have recommended rewriting instructions in simpler terminology so that they are
easier to understand.
So does simplification work?
Well some of the earlier research in this area suggested that it does. Elwork and colleagues in
1977 found that when they rewrote instructions using psycholinguistic principles, jurors'
comprehension of those instructions improved.
Now, the findings have been criticised because they assessed comprehension using the
paraphrase test, which critics such as Severance and Loftus argue tests memory rather than
comprehension.
Other types of test--such as the multiple choice test that has been used by researchers like
Brewer and colleagues in 2004 (Brewer, Harvey, & Semmler, 2004), and looking at whether
jurors use the directions such as in the research by Rose and Ogloff in 2001--also suggest
that simplification can improve comprehension.
Now it's quite possible though, that even if jurors understand directions they're given they
might not follow them. It's also possible that jurors might reach good or reasonable decisions
even if they don't understand the directions themselves. It's true though that some legal

commentators would argue that a decision isn't sound unless it is based on the correct legal
principle.
So will jurors follow the instructions if they have been simplified?
Well this depends on what we assume about how jurors make decisions. We spent some time
talking about this in a previous presentation. The focus on simplification of judicial
instructions assumes a fairly mechanistic decision making process for jurors.
A and B in this example are bits of information or evidence, D is the directions and V is
verdict. This is an abstract representation of an algebraic model of jury decision making,
similar to the algebraic models of person perception that were popular for a while.
Now according to this model, as long as jurors can understand directions, they will combine
the evidence (A and B) in the appropriate manner, taking into account the ways they are
meant to use that evidence as indicated in the directions (D), to arrive at a verdict (V).
The assumption that just simplifying instructions should fix the issue unfortunately doesn't
deal with any of the later stages of information processing that perceivers are thought to
engage in when evaluating judicial instructions - which are really just actually persuasive
messages.
According to McGuire's Model of persuasion, there are additional steps before and after
comprehension, that a message must survive to have an impact. Crucially, not only do jurors
have to comprehend what they are being asked to do, but they have to accept that this is the
correct way to make the decision, and then also be able to remember the instruction and
apply that in their decision making.
This assumption is also inconsistent with what we know about how jurors make decisions and
what they are asked to rely on which is their common sense. In an earlier video, we talked
about Pennington and Hasties (1992) story model of jury decision making. Remember that in
this model, jurors create a story to help make sense of the evidence as it is presented in the
trial.
This model implies that merely understanding directions will not necessarily lead to
information being combined in the desired way. Even if jurors understand directions, they
might not actually use those directions in making a decision if doing so would be incompatible
with the story they have generated to understand the evidence.

So perhaps the best way to encourage jurors to make decisions in legally appropriate ways is
not to tell them what to do, but to set up their decision-making task in a way that naturally
guides them to make their decision in the appropriate way.
Question trails, which turn the problem of applying abstract legal rules to the facts of the case
into direct questions of fact about the current case, are being used in some jurisdictions like
New Zealand. These look like a promising way to address the issue with jurors'
comprehension of judicial instructions.
Of course, as this is a relatively recent development, we need to wait and see what the
research says about the efficacy of this innovative way of helping jurors to make decisions.
The promising thing about question trails is that this approach acknowledges that the problem
with comprehension of instructions is with the instructions themselves, not the jurors.
And importantly, they appear to provide support to jurors in a way that doesn't rely on jurors
having to understand complex legal rules and concepts. Researchers have also tested a range
of other techniques as well, including flow charts and diagrams with varying levels of success.
What the research on instructions tells us though, is that a jurors' task is a complex one, and
we have to accept that jurors are human too and come with all of the cognitive capacities and
limitations that humans in general have they aren't decision-making machines.
With these two things in mind, our best avenue for facilitating legally correct decisions by
jurors is to support them in their task and not expect them to be experts about legal concepts
and rules. They are deciders of fact after all, and their task and the instructions they are
given need to be structured around that reality.

7.3. HOW DO JURIES DELIBERATE?


How do juries deliberate? So last week we heard how individual jurors arrive at their
preferred verdict when hearing the evidence presented at trial. We talked about the sorts of
things that influence them and how they combine information, typically into a story, about the
events that led to the offence. What happens when they have to discuss their interpretation
of the evidence and their preferred verdict with the other jurors?
Well over the next two videos, we are going to talk about how juries deliberate to reach a
verdict, whether these deliberations influence individual jurors' views, and the different ways
that jury deliberations can unfold, and what sorts of things influence how jurors deliberate.

10

Now in terms of factors that might influence how a jury deliberates, one of the things that
people often think is important is the foreperson. This is the person chosen by the jury to lead
the group during discussions and also to be the spokesperson in the courtroom, particularly
when the verdict is returned. So, does who the jury selects as the foreperson make a
difference as to how the jury deliberates?
Well, lets start with how the foreperson is selected, and what they are typically like. Usually
the foreperson is elected by the jury. One view, put forward by the Morris Committee in 1965,
is that the foreperson should ideally possess the qualities of a good chairperson but be no
different from the other jurors.
Saks and Hastie's 1978 research suggests that the person chosen as the foreperson tends to
be male, from a high socio-economic background, be older, be the person who sits at the
head of the jury table, and is the person who often speaks first during deliberations.
Curiously though, Ellison and Munro 2010 found in a study with mock jurors, that when the
person who spoke first was a woman, it was still often the case that a male juror was
nominated to be the foreperson the woman speaking first was often nominating a man to
be the foreperson.
A common view is that the foreperson is very influential. McCabe and Purves' 1974 research
suggests otherwise, however. In that study, the foreperson did not exert a greater influence
on the decision compared to the other jurors.
In contrast, Devine and colleagues 2001 review of 45 years of jury research argued that the
foreperson has a big influence on the style of jury deliberations whether the jury focusses
initially on trying to reach a verdict or on systematically evaluating the evidence. As such, it's
possible that the foreperson might influence the verdict indirectly through the way in which
the jury deliberates.
It's also worth noting that the jury foreperson tends to determine who speaks and when, and
so can shape the discussion in that way. Ellison and Munro's 2010 research and Manzo's 1996
research provide some evidence for this. They are certainly also viewed as being more
influential by the other jurors according to Diamond and Casper's 1992 study.
He or she also speaks more often than the average juror, they speak about 25-31% of the
time during deliberations according to Ellison and Munro. And consistent with this, Diamond

11

and Casper in 1992 found that the foreperson spoke about 1770 words in comparison to the
average juror's 789 words.
Now much of what they said, however, was designed to help organise the jury rather than
express a verdict preference. Ok, so the foreperson possibly doesn't seem to exert a big
direct influence on the jury's verdict but, as Devine and colleagues found in a review of jury
research, the foreperson is influential in deciding how the jury deliberates.
So lets look at how jury deliberation itself influences or changes jurors' decisions. What are
some of the features aside from the influence of the foreperson that might affect how juries
deliberate?
Let's start with the question of whether deliberation alters jury decisions. Now there has been
a general belief, which came from Kalven and Zeisel's influential study in 1966, that jurors
have already decided a verdict before they retire to deliberate. Thus, the thinking was that
deliberations did not have a big impact on jurors' decisions.
Now this doesn't really fit with what we know about outcomes of deliberations however. Many
juries don't start out with a unanimous agreement before discussing the case. There will be a
majority group of jurors who favour one verdict and a smaller minority group who think
differently.
Given that juries are able to reach agreement in the majority of cases, deliberation must
exert some influence on jurors' decisions. Hastie and colleagues' 1983 research even showed
that the minority of jurors prevailed and were able to change the minds of the majority in
25% of cases.
So deliberation is obviously important, and one way of making sense of these two different
sets of findings that jurors decide their verdicts before deliberation and that deliberation
changes jurors' minds on the other hand is to distinguish between different types of
deliberations. This is a point made by Sandys and Dillehay in 1995.
One of the main distinctions identified by Lieberman and Krauss in 2009 is the difference
between verdict driven deliberations and evidence driven deliberations. And the work of
Devine and colleagues suggests that it is through the foreperson's preference for one of these
styles of deliberation that the foreperson can exert an influence on the outcome of the
deliberations.

12

Verdict driven deliberations are those types of jury group discussion focussed on reaching a
unanimous decision or a majority decision if the decision rule for the jury requires only a
majority decision. The discussion tends to be less about the evidence and more about
discussing the verdict options. Pressure might be applied to any holdout minority jurors to get
them to agree with the majority position.
A characteristic of this type of deliberation is frequent attempts to take a poll for the verdict,
which has a consequence of identifying any individual jurors who might disagree with the
majority.
Now you saw this type of discussion at the start of the jury's deliberation in the Crime101
drama this week. Evidence driven deliberations on the other hand, focus on a more
systematic discussion of the evidence that was presented at trial.
For these types of deliberations, there will be less of a focus on simply trying to pressure
people into reaching a decision. The emphasis is on evaluating the evidence rather than
taking polls in an attempt to reach a verdict.
Now you saw this type of discussion towards the end of the jury's deliberation in the
Crime101 drama this week. A moment ago, I mentioned different types of jury decision rule.
The jury decision rule is the required number of jurors needed for agreement for a verdict.
In some jurisdictions, all jurors are required to agree to the verdict before it is accepted by
the court. This is called a unanimous decision rule.
In other jurisdictions, a majority decision will be accepted by the court. The size of the
majority that will be accepted depends on the size of the jury. For a twelve-person jury, this
might be a majority of 10 or 11 out of 12. It can be a little more complicated than this,
however. The type of decision rule used can also depend on the offence that the defendant is
being tried for.
For the more serious offences, a unanimous rule might be required. In addition, in some
jurisdictions, even for the most serious offences, a majority decision will be accepted if the
jury is not able to reach aunanimous decision after a certain period of time has elapsed.
So the decision rule can vary by jurisdiction, by the nature of the offence, and also by the
time that the jury has been deliberating for. Now majority decision rules are often favoured
because of concerns about hung juries these are juries that can't agree on a verdict. Now

13

this actually only happens in a tiny minority of cases. There have also been some concerns
expressed about the time taken by juries to deliberate.
So does jury decision rule have any effect on how the jury makes their decision? Nemeth's
1981 research suggests that the majority decision rule is associated with: less participation
by minority jurors; the majority jurors paying less attention to the minority jurors; fewer
hung juries; deliberations taking a shorter time; and, perhaps problematically, a greater
likelihood of conviction and more errors in recalling the evidence.
Now why is this? Well, because the jurors in the majority are not required to convince the
dissenting minority about the correctness of the majority position, they can generally ignore
the minority jurors. Therefore, they can avoid discussing the evidence in any great detail, and
just apply social pressure in an attempt to reach a majority of the required size.
Ok, so it seems that juries operating under a majority decision rule are prone to making
poorer decisions than those working under a unanimous decision rule. When discussing the
nature of the majority that will be accepted, I mentioned that juries can come in different
sizes.
In Australia, New Zealand and some other jurisdictions, criminal cases are heard by juries of
twelve. In the United States of America, following the Supreme Court decision in Williams and
Florida in 1970, as few as six jurors can hear a criminal case.
Thomas and Pollack (1992) used probability theory in 1992 to argue that six and twelve
person juries are equivalent in terms of how they make decisions. Researchers also often use
six person juries in their studies because logistically it is a lot easier to conduct studies on
juries of six compared to twelve (you need half as many people for a start).
Unfortunately the research suggests that juries of six and twelve do not function in the same
way. Six-person juries communicate less; are less likely to recall the evidence accurately or
examine the evidence thoroughly, and according to Saks's 1977 research are more likely to
reach agreement that is, they are less likely to hang. They are also less representative of the
community; and they often return different verdicts; and are more likely to convict.
These issues were identified by Hans and Vidmar's 1986 research. Now, why is this? Well one
of the main reasons for these differences between juries of six compared to twelve is
conformity.

14

Conformity occurs when people yield to real or imagined social pressure. Asch's 1955 study
was important in highlighting how groups bring about conformity, and illuminating the
conditions that enhance conformity and those that diminish conformity.
So lets look at Aschs paradigm. Asch gave a group of participants, who took part in the
study as part of a group, a picture of a vertical line followed by a second picture of three
vertical lines. Participants were asked in turn which of the three lines matched the length of
the original line.
In this example, the answer is clearly B. Now, in this study, all of the participants except one,
were working with the experimenter. So they weren't actually real participants, they were
what we call confederates. All of the confederates responded before the real participant. On
some trials the confederates all gave the correct answer, while on others they gave an
obviously incorrect answer for example line A in our example.
Asch was interested in whether the real participant would go along with the group, and why.
Asch found that the vast majority of participants, 76% in fact, went along with the group and
conformed on at least one trial when the group was giving an obviously incorrect answer.
Asch argued that there were two reasons why conformity occurs like this. The first is called
normative influence. Here the real participant maintains his or her private view about what
the correct answer is, but conforms in public to avoid ridicule or social censure from the rest
of the group.
The second is called informational influence if a person is not sure about what the correct
answer is the group's response helps the real participant to identify what the "correct" answer
might be.
Interestingly, in some studies, Asch varied whether the group gave an unanimous but
incorrect answer, or whether there was non-unanimity in the views of the rest of the group.
We've seen in our example so far what an unanimous but incorrect answer would look like
the rest of the group chooses the same but incorrect response.
What happens however if the some of the group chooses one incorrect response and the
remaining group members choose another incorrect response? What will the real participant
do in this situation when there is non-unanimity?
Well Asch's studies show us that when there is non-unanimity in the views of other group
members, then the rate of conformity dramatically reduces. It is sufficient if only a single

15

other member of the group disagrees with the majority. That single dissenter doesn't even
have to agree with the real participants' response for conformity to be reduced, the dissenter
simply just has to give a different response to the majority.
So how does this relate to how juries deliberate, and jury size?
Well, let's try a thought experiment to illustrate this. Imagine a jury of six and a jury of
twelve. Let's imagine that the rate of dissent in the general population about a particular
issue is one in six.
If we select people from the general population to form two juries, one made of six people,
and one made of twelve people, then we would expect the rate of dissent to be represented
in each jury like this.
The six-person jury will statistically have one person who dissents on this issue. The twelveperson jury will have two people who dissent. Asch's studies tell us that the pressures for
conformity will be much greater in the six-person jury compared to the twelve-person jury
because it is much more likely that a dissenter in a six-person jury will be on their own.
So the evidence suggests jury deliberation does influence individual jurors, and that twelveperson juries working under a unanimous decision rule tend to be more systematic and
thorough in their decision-making.
As such, we've heard that juries with certain characteristics make better decisions. In the
next video, we will talk about whether juries as groups make better decisions compared to
individual jurors.

SHOULD THE JURY BE THE DECIDER OF FACT?


In jurisdictions that rely on juries as decision-makers in criminal trials, those juries
have a complex role to perform. As we've heard from Blake in this week's videos,
jurors need to listen to and correctly interpret evidence, understand the judge's
instructions and then arrive at a fair verdict given the evidence put before them. This
is not a small or easy task!
This week in Crime101 we saw the jury tackle, and struggle with, the task of deciding
whether Neil Fox was guilty of Janine Jenker's murder. In some jurisdictions, including
several Australian states, either the prosecutor or defence counsel (acting on behalf of
the accused) may request that the case be heard before a judge alone rather than

16

before a jury. In deciding whether to allow a judge alone trial, the court must consider
whether a judge alone trial is in the interests of justice. The court must also consider
whether the trial, by length or evidence complexity, would be burdensome to a jury,
the chance that the accused may attempt to threaten or coerce jurors to decide in
their favour and if there has been significant pre-trial publicity that may influence
whether the accused receives a fair trial. If an order for a judge alone trial is made,
the judge hearing the trial must apply the same principles and procedures of law that
would apply in a jury trial.
There is on-going debate about judge alone trials. You can read about some of the
arguments for and against a judge alone being the decider of fact in cases affected by
pre-trial publicity and in trials with complex evidence.
In this activity in Crime101x, we are interested in what you think about allowing the
judge to step in and become the decider of fact in some cases - for example, those
cases with extremely complex evidence where expert witnesses are required.
Obviously there are advantages and disadvantages to judges or juries as decisionmakers. In the three boxes below, we would like you to list three advantages of
having the judge be the sole decision-maker in criminal trials.
SO, SHOULD WE ABANDON THE JURY AS THE DECIDER OF FACT IN CERTAIN
CASES?
In those jurisdictions that retain the jury as the preferred form of decision-making in
criminal trials, is it time to make trial by jury the exception rather than the rule in
cases with complex evidence? Is it time to abandon the jury as the decider of fact?
In 2010, changes were made to the law in New South Wales, Australia to remove the
Director of Public Prosecutions' right to block judge alone trials. According to this
report this led to a dramatic increase in the number of judge-alone trials being held, a
trend that concerned many. Juries - rightly or wrongly - are held in high esteem by
many as deciders of fact. So what can be done to help them function more
efficiently? We will find out in the next video!

7.4. ARE GROUPS BETTER THAN INDIVIDUALS?


So do juries make better decisions than individual jurors? Obviously a verdict is returned by
the jury as a group individual jurors' decisions are not accepted as the verdict. But there is
a reasonably substantial body of research comparing the decisions of individuals to the
decisions of groups not just in the context of jury decision-making. So, even though the jury
group returns a verdict, it's worth considering how the group deliberation process might
influence jurors' decisions.

17

Now we touched on this in the last video. In this video we will focus not just the
characteristics of group deliberation, but also the psychology behind group discussion to
understand whether groups make better decisions than individuals.
Intuitively it might be tempting to think that this is not a difficult question to answer - two
heads are better than one after all as the saying goes. And so it might seem that groups must
make better decisions than individuals. The results of a relatively early study by Kaplan and
Miller in 1978 would support this idea.
They found that the effect of stereotypes about defendants was reduced following jury
deliberation. In essence, the group deliberation helped jurors move beyond their
preconceptions about the defendant and make decisions based on other information -presumably the evidence.
But don't forget that other saying -- too many cooks spoil the broth! Let's see what the rest
of the research on group decision-making says about this issue. Well one area of potentially
relevant research you may have already heard about in the popular media is called
groupthink. According to Janis, groupthink is a mode of thinking that can occur in highly
cohesive, high status groups in which the desire to reach unanimous agreement overrides the
motivation to adopt proper, rational decision-making procedures.
Several famous instances of poor group decision-making have been given as examples of
groupthink by commentators over the years the Challenger shuttle disaster, the Columbia
shuttle disaster, the weapons of mass destruction case agains Iraq, the Bay of Pigs fiasco, and
also the escalation of the Vietnam war.
Groupthink is triggered by: directive leadership style; intense group cohesion; similarity of
ideology within the group; pressure for unanimity in decision-making; insulation of the group
from critics; insecure member self-esteem; and a sense of crisis. It is thought to typically
occur in very high status groups where other group members are viewed as powerful and
wise.
Group members are therefore likely to keep any objections to themselves, and so dissent
becomes stifled. Groupthink results in several inadequate decision processes. For example, an
inadequate consideration of the alternative decision options, ignoring the implications of
failure, and a biased assessment of the risks, costs and benefits. There is also poor
information search and meagre contingency planning in the event that the group solution
fails.

18

There is actually mixed support for the concept of groupthink. For example, manipulating
cohesion to be high should promote groupthink, but Esser's 1998 research did not find any
evidence that this was the case. Increased threat to the group should also enhance
groupthink, but Fodor and Smith's 1982 research didn't find any effect of heightened threat.
On the other hand, Esser's 1998 research did find that as would be expected, directive
leadership and group insulation do produce some characteristics of groupthink such as poorer
decision-making. Mullen and colleagues in 1994 argued that all the preconditions for
groupthink must be present before the effects and symptoms of groupthink will be seen.
Does this mean groupthink exists or not? And does it apply to the jury decision-making
context? Well, such research suggests that groupthink probably only applies in a more narrow
range of circumstances than originally thought. Given the pre-conditions for groupthink, it
seems quite unlikely that groupthink would exert a strong influence in the jury context.
For example, it is perhaps unlikely that all members of a jury would view all the other
members as particularly powerful and wise on the topic under discussion which is the
verdict.
Having said that, the research on groupthink does identify a number of things that might
mitigate the more negative aspects of group decision-making. For example, the importance of
dissent via the sharing of divergent ideas and opinions via a devil's advocate, and also the
importance of the group's leader not advocating a position early in the discussion.
We will come back to these ideas shortly. But first, let's look at some other areas of the
research on group decision-making to see what effect group discussion might have on the
quality of a group's decision.
Group polarisation is one such area of research. Group polarisation was originally studied by
Moscovici and Zavalloni in 1969. This is the phenomena where the group discussion tends to
intensify a group's opinion -- so individual group members' original attitudes become more
extreme following group discussion.
The reason why this phenomena might be more relevant to jury decision-making than
groupthink is because it is not limited to high-status or highly cohesive groups. However, for
it to take effect, group members must basically agree on the favoured side of the issue at
first -- so they must basically agree on how to interpret the evidence.

19

The research shows that group polarisation intensifies many kinds of attitudes: such as
feminism, pacifism, equality, under-age drinking, racial attitudes, and most relevantly the
perceived guilt or innocence of defendants in criminal trials.
There are a few explanations for why group polarisation might occur. The first is called
persuasive arguments theory and was originally put forward by Burnstein and Vinokur in
1977.
The idea is that if there is a generally agreed upon group position at the start of group
discussion, group members are more likely to hear arguments consistent with their own
personal views. The preponderance of these arguments persuades group members that their
views are correct, especially when some of these arguments are new to group members, and
so as a consequence their attitudes become more extreme.
So group members are influenced by the new information. Kaplan in 1977 and Diamond and
Casper in 1992 argued that this was the explanation for group polarisation in the context of
jury decision-making.
An alternative perspective is based on Festinger's social comparison theory. When there isn't
an objective standard to compare your views against to see if they are correct, we compare
our views to those of the other group members. In this case, the group norm is important
rather than the exchange of information in the form of persuasive arguments.
The idea goes that if there is a pre-existing group norm, group members will be reluctant to
deviate from it. In fact, group members try to be above average in terms of their adherence
to group norm to show that they are good group members. Most group members assume
they are already better than the average group member and think that their individual
attitudes demonstrate their standing as a good group member.
Group discussion may however disconfirm this belief when group members hear that other
group members hold pretty much the same attitudes, and so they find out that they are
merely an "average" group member. Group members then adopt more extreme attitudes in
an attempt to become better than average group member. As a result, the group's decision
also becomes more extreme.
So which of these two theories about group polarisation is most accurate? Well it turns out
that there is evidence that both are correct in some circumstances. Support for the social
comparison explanation can be seen in Baron and colleagues' 1996 research.

20

Those findings suggest that arguments dont have to be new to the group members
polarisation occurs even if group members just find out that others agree with their choices.
Likewise for Stewart and Stasser's 1998 finding that polarisation is observed even if group
members only find out that they share some of the reasons for their views.
Both of these effects seem to be related to an increase in confidence. In fact, we can see
some evidence of group polarisation in Baron and Roger's 1976 study even when no
arguments at all are exchanged.
On the other hand, Burnstein and Vinokur's 1973 study clearly showed evidence of
polarisation only when persuasive arguments are exchanged by group members, even when
there was explicitly no information available about the actual attitudes of other group
members, and so there could be no group norm to compare oneself to.
A final perspective on group polarisation come from self-categorisation theory. According to
Hogg, Turner and Davidson in 1990, people express stronger views when they discover they
are shared by others because they want to be liked.
Group discussion promotes greater awareness of group affiliation in effect it increases the
salience or prominence of the group identity and group members make more effort to
adhere to prototypic group norms.
Rather than thinking about the merits of the arguments for one viewpoint or another, group
members focus on the norm that embodies the group. Now in an inter-group setting, this
norm is the position that maximises similarity within the group and minimises similarity to
other groups.
This is different from the social comparison explanation because group members are not
trying to be better than each other, they are just trying to distinguish their group from other
relevant out groups.
There is quite a bit of research supporting this view. One of the key studies by Spears and
colleagues in 1990 showed that group polarisation only occurs when group salience is high.
And So one would have to consider whether this would be the case in a jury deliberation
setting.
Do the jury members see themselves as members of a group, and in this example, who would
be the relevant out group?

21

Okay, so it seems that groups might make individuals decisions' more extreme for a number
of reasons including exposure to biased information that is, one side of the issue, comparison
with other group members, and also comparison with other groups.
Let's take a look at that first mechanism in a little more detail, and it is probably one of the
most relevant for thinking about how juries make decisions and why their decisions might
polarise.
So the research suggests that individuals are influenced by the flow of arguments in group
discussion, and this information flow can be biased in that it tends to justify the side of
argument favoured by most group members. This biased flow influences attitude extremity.
According to Stasser and Titus in 1987, one of the consequences of these processes is that
there is a tendency to emphasise shared information rather than otherwise important
information known only by individual jurors.
The problem with this was identified by Stasser in 1988 in a phenomena called Hidden
Profiles. This is when the information held in common by group members favours one choice
while the unshared information held by each group member contradicts that group choice.
That unshared information is called the hidden profile, because it does not typically emerge
during group discussion it stays hidden while the group discussed the shared information.
Rationally, the group should rely on the information in the hidden profile when marking their
decision. However, due to group processes such as conformity, normative influence and
polarisation favouring the expression of shared information, the uniquely held information
stays hidden.
Let's consider an example to illustrate this. Imagine a jury of six trying to decide what verdict
to return - guilty or not guilt. Suppose that all six jurors remember three bits of evidence in
favour of conviction. Importantly each juror remembers the same three bits of evidence as
the other jurors. This is the shared information.
Now also imagine that each of the six jurors remembers one piece of the evidence that
favours acquittal or a not guilty verdict. For these bits of information, each juror remembers a
different unique bit of the evidence.
So at the individual juror level, each juror should favour conviction because they all
remember three bits of evidence that favour conviction and one bit that favours acquittal.

22

When the jurors discuss the case as a jury, if they effectively pooled all of their knowledge,
they would actually favour acquittal because there are three commonly held bits of
information for conviction and six uniquely held bits of information for acquittal.
Unfortunately, groups often don't effectively pool their information and instead they rely on
the shared common information. This biased group discussion can lead to more extreme
attitudes through confirmation of group members' views, inflated estimates of group
agreement, overconfidence, less extensive generation of ideas, and poor decision-making.
So how can the effects such as hidden profiles and polarisation be avoided?
Well one promising option seems to be encouraging dissent in the group. This dissent might
be genuine or contrived, as in the "devil's advocate" technique. Although both work, Nemeth
and colleagues' 2001 research shows that authentic dissent produces more ideas and
solutions than contrived techniques.
According to Greitemyer and colleague's 2006 findings, dissent works because it encourages
discussion in the group, increases pooling of unshared info, and allows for solving of hidden
profiles. It also however decreases both individuals satisfaction with task outcome and
willingness to work with group members in the future.
As Schulz-Hardt and colleagues showed in 2002, dissent also decreases group morale, causes
delays in decision-making and decreases group cohesion. Thus, despite the apparent benefits
of dissent for the quality of the group's decision, group members may be reluctant to
encourage it.
Rijnbout and McKimmie in 2012 confirmed that dissent in group decision making helps to
produce objectively better group decisions by undermining group members' confidence in
their initial preferences -- as a result they focus more carefully on evaluating the strengths
and weaknesses of the information rather than relying on heuristic cues when making a
decision.
A follow up study also suggested that the presence of deviance in the group helped the group
"solve" the hidden profile and move beyond relying on the shared information when making a
decision. The negative effects of dissent on the group were evident in that 2012 research.
However, another follow up study also published in 2014 showed that when the group was
working under a unanimous decision rule compared to a majority decision rule, the negative
effects of deviance were actually much reduced.

23

So it seems that under some conditions group deliberation can actually make individuals'
decisions potentially less reliable due to biased information sampling and group processes.
However, those same group processes can be brought to bear in the form of group deviance
to promote better, more thorough group decision making.
Unanimous decision rules, somewhat paradoxically, seem to encourage the group to have to
engage with the deviant group member in a productive manner, rather than sidelining him or
her as might be done in the case of a majority decision rule.

HOW WOULD YOU LEAD THE JURY?


During this week's episode you have heard a lot of information about the
characteristic behaviours (group processes) of well-functioning groups or juries. You
have also heard about how some group processes that may make group members feel
more satisfied about their role but actually result in poorer outcomes from those
groups.
As we heard from Blake earlier in this episode, the jury foreperson can influence the
way the group operates, for example in terms of the deliberation style that is adopted
by the jury. In Crime101 this week, we saw the jury foreperson, Henry, direct the
initial deliberation style of the jury in the trial of Neil Fox.

Your role in this activity is to be the jury foreperson of a jury on a criminal


trial. Imagine you have 11 people looking to you to guide them through the
deliberation process. Just like the jury members in the Neil Fox trial, the case you are
considering has the potential to keep the jury deliberating for days. Of course, you
are motivated to keep the other jury members happy. However, your primary role is
to ensure that, given the evidence presented, the right verdict is returned.
Look below at the list of activities that you can do or ask your fellow jury members to
engage in. We want you to decide and indicate in order the processes that you would
lead the jury through as the jury foreperson to arrive at a fair verdict. If you need a
quick refresher of what these processes are click here.
1.

Public sharing of all evidence for and against conviction (verdict of guilt)

2.

Public polling of individual verdict decisions

3.

Asking all jurors around the table if they have any additional 'unshared'
information to add

24

4.

Public identification of any jurors who dissent from the majority view of the
correct verdict

5.

Putting a time limit on discussions so that the jury can return the verdict in a
timely manner

6.

Private (e.g. writing down) polling of individual verdict decisions

7.

Public statement of personal view of guilt or not

8.

Putting forward a 'devil's advocate' position

9.

Concentrating the discussion only on the evidence remembered by most jurors

10.

Moving jurors so that all those favouring one verdict sit together and apart
from those favouring the opposing verdict.
When you have decided which processes you would lead the jury through for the most
deliberation that you believe would result in a fair verdict being returned please enter
your answer as a number string (e.g. 7-4-6-1) in the text box below. The
order of your numbers should reflect the order that you would engage in the
activities in. You do not have to use all activities and you can engage in the same
activity multiple times if you believe that this would be the most effective way to get
the jury to decide upon a fair verdict given the evidence presented.
Once you have entered your number string in the format given above, then please
click 'Save' to see how other Crime101x students have responded to this activity.
Remember the largest number strings represent the most popular choices by
students.

SO WHICH GROUP PROCESSES SHOULD THE JURY USE TO


DELIBERATE?
As Blake explained in the last two videos in this episode, there are some group
processes that research suggests encourages discussion of the evidence and thorough
decision-making. These group processes are encouraging dissent, sharing hidden
profiles and focusing on evaluating evidence. All three of these processes encourage
jurors to pool all the information they hold, carefully consider and critique the
evidence and engage in systematic and through decision-making.
Although there is no way to design an ideal process for a jury to use to arrive at a
verdict (and so, not a single correct answer for this activity), one order of processes
to encourage the jury to consider the evidence throughly might be:
1. Public sharing of all evidence for and against conviction (verdict of guilt)
3. Asking all jurors around the table if they have any additional 'unshared' information

25

to add
8. Putting forward a 'devil's advocate' position
6. Private (e.g. writing down) polling of individual verdict decisions
For a fair verdict based on the evidence presented, there are certain activities or
tactics that you may wish to avoid as jury foreperson. In no particular order,
these would include:
2. Public polling of individual verdict decisions.
4. Public identification of any jurors who dissent from the majority view of the correct
verdict.
5. Putting a time limit on discussion
7. Public statement of personal view of guilt or not
9. Concentrating the discussion only on the evidence remembered by most jurors
10. Moving jurors around to socially isolate those who do not agree with the verdict of
the majority
Although some of these tactics may look initially like useful time-saving and practical
activities (for example, it is easier to do a show of hand than make people write
information down) the use of them may preclude a thorough examination of all
aspects of the evidence. Rather, unanimity may be obtained because those jury
members who are in the minority come to acquiesce to the majority because of social
pressure rather than because they have been truely convinced by the collective
examination of the evidence.

26