Question Trails

Discussion

A/Prof Mark Nolan

ANU College of Law

mark.nolan@anu.edu.au

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Question Trails: Discussion

(1) Even more empirical psychological research on QTs

(2) What legislative change is required to permit use of QTs?

(3) Methodological issues when conducting research on QTs

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Ede (2012)

(1) Even more empirical psychological research on QTs

•separate ppt slides from Tamsin Ede (Honours Graduate in Psychology, Charles Sturt University, 2012)

•Tamsin Ede and Jane Goodman-Delahunty, ‘Question Trails in Trials: Structured versus Unstructured Juror Decision Making’ (forthcoming) Criminal Law Journal

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Legislative Change Needed?

(2) What legislative change is required to permit use of QTs?

•Some Australian legislation already permit use of QTs

Criminal Procedure Act 2009 (Vic) (s 223; see also s 222)– the indictment;– summary of the P opening; – D’s response to that summary;– opening and closing addresses;– D’s response to pre-trial admissions of the P;– any document admitted as evidence;– any statements of fact;– any s 222 address by judge to jury;– any schedules, chronologies, charts, diagrams or other explanatory

material;– transcripts of evidence or (transcripts of) audio or audiovisual recordings

of evidence– the trial judge’s s 238 directions to the jury, – and any other document that the trial judge considers appropriate

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Legislative Change Needed?

(2) What legislative change is required to permit use of QTs?

• Some Australian legislations already permit use of QTs:

Jury Act 1977 (NSW)?

55B Judge or coroner may give directions to jury in writing

Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so.

•Some case law already authorises use of something like QTs:

– R v Ford [2003] NSWCCA 5 (written directions plus 5 Qs)

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Legislative Change Needed?

(2) What legislative change is required to permit use of QTs?

•Other procedural matters?

•Clarify that answers to individual questions on question trails do not form part of the court record, meaning that

– Preserve the secrecy of jury deliberations

– Clarify there is no appeal on the ground of apparent (in)compatibility between answers to individual Qs and the general verdict?

•Clarify the relationship between jury directions and QTs– NB cl 19 relating to “integrated directions” in Jury Directions Bill

2012 (Vic)

http://www.justice.vic.gov.au/home/the+justice+system/justice+legislation/jury+directions+bill+2012

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Methodological Issues in QT Research

• What type of decision-making aid are QTs?

– does relevant, generalisable, prior legal psychological or decision-making under uncertainty literature exist?

• eg. Are QTs like flow-charts, psychologically?– CA Semmler & N Brewer (2002) ‘Using a Flow-Chart to Improve Comprehension of

Jury Instructions’ 9(2) Psychiatry, Psychology and Law 262-270

• eg. Are QTs in criminal trials like SVFs in civil trials, psychologically?– EC Wiggins, & SJ Breckler, ‘Special Verdicts as Guides to Jury Decision-making’

(1990) 14 Law and Psychology Review 1-42.

• eg. What are the psychological distinctions if any between different juror aids?

– ie. “issue tables” and question trails (see suggestions for juror aids in the NSWLRC Jury Directions in Criminal Trials reference

http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cref116)

(3) Methodological issues when conducting research on QTs

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Methodological Issues in QT Research

• Mock trial research?– logistics of jury research and choice of experimental design– choice of individual-level or collective deliberation level– statistical assumptions relevant and statistical analysis required for analysis

of collective deliberations– experimental control vs external validity

• (Comparative) Field Research?– comparability of trials within and across jurisdictions

• eg. different QT practices with in jurisdictions where QT processes not regulated • eg. number of charges and case type/complexity

• eg. differences in rights of election / mandated jury trials and judicial experience with jury trials

• eg. different legal tests between jurisdictions– (such as “are you sure” in QT as BRD)

(3) Methodological issues when conducting research on QTs

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(3) Methodological issues when conducting research on QTs

•How to measure psychological success of QTs, what is “good” juror decision-making, and how to measure it?

– no verdict bias (eg. leniency or punitive bias)?

– must test recall for facts, inferences about facts, AND “complex comprehension of applying law to facts

– “simple” comprehension of legal rules states in jury directions measured via a pop-quiz seems less useful when have QT in front of juror and/or written versions of oral instructions

– subjective perception of juror experience and ease

– relevance of prior research on juror “bias” and use of extra-legal factors / “juror nullification”

•How to isolate the impact of QTs in the context of (reformed) jury process? Is this isolation desirable?

(3) Methodological issues when conducting research on QTs

Are there further under-researched reform suggestions?

Facilitated jury trials?

Elsa Gilchrist (2003) (Law Honours Thesis, ANU College of Law)

• facilitator is just one more stranger bound by professional and secrecy obligations under law, but, would hear all of the deliberations

• neutrality important• staged approach from ADR process• facilitator as legal advisor?• facilitator as a group dynamics umpire of last resort?

Is the role of the jury foreperson even more challenging when must keep jury on task with a QT? Should the foreperson be supported and the deliberating group discussion be facilitated by a professional facilitator?

Jury research methodology

DJ Devine, LD Clayton, BB Dunford & RP Seying, ‘Jury Decision Making: 45 Years on Deliberating Groups’ (2001) 7(3) Psychology, Public Policy, and Law 622-727.

• archival research• questionnaire studies• post-trial juror interviews / interviews with experts• mock jury trials• shadow juries• memoirs by ex-jurors

Some Criticisms of Mock Trials

• External Validity• participants (who? & how recruited?)• stimulus materials• unit of analysis• appropriate DVs• corroborative data• role playing

– but Rose & Ogloff (2001) 25(4) Law and Human Behavior 409, 410; 427-8.

Rose & Ogloff (2001), p 410

“Apart from attempting to make the simulations more realistic, the various criticisms of jury simulation research may not be of much concern if the research in question is performed solely to examine a question of inherent psychological interest. The criticisms are of greater concern, however, if the research purports to be relevant to the law.”

S Saikal, Mandatory Madness: Criminal Jury Trials in the Australian Capital Territory (Unpublished Hons Thesis, ANU College of Law, Nov 2011)

•ACT had historically (since 1993) allowed Ds more control over election of trial by judge alone / jury trial than in other jurisdictions

•56% trials for indictable offences held without a jury; 40% more than other jurisdictions

•Some had suggested that the high rate of acquittals for homicide in particular was due to trials by judge alone

• no murder convictions upheld in ACT between 1998-2011• intent to cause serious harm as MR for murder only from 2009

•Could the high rate of acquittals be due to strength of evidence and defences available etc?

Jury Law: Mandated ACT Jury Trials

Jury Law: ACT Jury Trials (Saikal, 2011)

Financial year ACT Supreme Court acquittal rate Average national acquittal rate of equivalent higher courts

2009/10 11% 7%

2008/09 16% 8%

2007/08 13% 7%

2006/07 11% 8%

2005/06 13% 8%

ACT Supreme Court Acquittal Rates 2005-09

(Saikal, 2011), p 16.

BEFORE 7 July 2011 reforms:

Supreme Court Act 1933 (ACT)68B Trial by judge alone in criminal proceedings(1) An accused person in criminal proceedings shall be tried by a judge alone if—

(a) the accused person elects in writing to undergo such a trial; and(b) the accused person produces a certificate signed by a legal practitioner stating that—

(i) he or she has advised the accused in relation to the election; and (ii) the accused person has made the election freely; and

(c) the election is made before the court first allocates a date for the person’s trial; and(d) if there is more than 1 accused person in the proceedings—

(i) each other accused person also elects to be tried by the judge alone; and(ii) each accused person’s election is made in relation to all

offences with which he or she is charged.

(2) An accused person who elects to be tried by a judge alone may, at any time before he or she is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, he or she shall not make another election.

Jury Law: ACT Jury Trials (Saikal, 2011)

AFTER 7 July 2011 reforms:

Supreme Court Act 1933 (ACT)

68B Trial by judge alone in certain criminal proceedings(1) A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if—

(a) the person elects in writing to be tried by a judge alone; and . . .

(4) In this section: excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone—excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

SO, if it is an “excluded offence” a jury trial is mandated

Jury Law: ACT Jury Trials (Saikal, 2011)

AFTER 7 July 2011 reforms:

Jury Law: ACT Jury Trials (Saikal, 2011)

column 1

item

column 2

legislation

column 3

provision and case (if any)

column 4

description

1 Crimes Act 12 murder  2 Crimes Act 15 manslaughter  3 Crimes Act 17 suicide—aiding etc  4 Crimes Act 29 (2) or (3) culpable driving of motor vehicle causing death

 5 Crimes Act 42 child destruction  6 Crimes Act 49C industrial manslaughter—employer offence  7 Crimes Act 49D industrial manslaughter—senior officer offence

 8 Crimes Act 51 sexual assault in the first degree  9 Crimes Act 52 sexual assault in the second degree  10 Crimes Act 53 sexual assault in the third degree  11 Crimes Act 54 sexual intercourse without consent  12 Crimes Act 55 sexual intercourse with young person  13 Crimes Act 56 maintaining sexual relationship with young person

 14 Crimes Act 57 act of indecency in the first degree  15 Crimes Act 58 act of indecency in the second degree  16 Crimes Act 59 act of indecency in the third degree  17 Crimes Act 60 act of indecency without consent  18 Crimes Act 61 acts of indecency with young people  19 Crimes Act 62 incest and similar offences  20 Crimes Act 63 abduction (for sexual purposes)  21 Crimes Act 63A bestiality  22 Crimes Act 64 using child for production of child pornography etc

 23 Crimes Act 64A trading in child pornography  24 Crimes Act 65 possessing child pornography  25 Crimes Act 66 using the internet etc to deprave young people

 26 Crimes Act 74 prohibition of female genital mutilation  27 Crimes Act 75 removal of child from ACT for genital mutilation

 28 Crimes Act 79 sexual servitude offences  29 Crimes Act 80 deceptive recruiting for sexual services  30 Prostitution Act 20 causing child to provide commercial sexual services etc

 31 Prostitution Act 21 receiving proceeds of child prostitution  32 Radiation Act 55, if failure causes death failure to comply with safety duty causing death

 

Part 2.2 Excluded offences