Join the conversation @CowenCentre #SZCC 1 The more things change - PowerPoint PPT Presentation

I MPROVING C OMMUNICATION W ITH T HE M ODERN J URY : T HE R OLE OF F ACT - BASED D IRECTIONS IN I MPROVING J UROR C OMPREHENSION Jonathan Clough, Ben Spivak, Yvette Tinsley & Warren Young Join the conversation @CowenCentre #SZCC 1

The more things change… The ‘supreme test’ of jury instructions is that they should be ‘comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular acquaintance with the law.’ ~ Lord Mackay LC 2

Challenges to juror comprehension  Researchers have proposed a variety of methods to improve juror comprehension and application of the law – ranging from plain language to checklists/flowcharts to pre-trial instructions.  Experimental studies have shown improvements on tests of comprehension when using these methods.  Despite this, overall comprehension remains low, even where researchers use multiple methods of assistance. 3

Question Trails/Fact-Based Directions In these counts the Crown alleges that A used B’s ATM card to purchase goods or withdraw cash. NOTE: There is no dispute that the card was used to purchase goods and withdraw cash. On all issues, the burden of proof is on the Crown beyond reasonable doubt. ISSUES 1. Are you sure that A was the person who used B’s ATM card to purchase goods or withdraw cash from the bank account? Answer No - Verdict Not Guilty Answer Yes - Go to question 2 4

Question Trails/Fact-Based Directions 2. Are you sure that A knew that the money came from the bank overdraft, and that she had no authority from the bank to use it to purchase goods and withdraw cash? Answer No - Verdict Not Guilty Answer Yes - Go to question 3 3. Are you sure that A did not believe that she was lawfully able to use this money to purchase goods and withdraw cash? Answer No - Verdict Not Guilty Answer Yes - Go to question 4 4. Are you sure that A knew that by using the money in this way, it was likely that the bank would not get the money back? Answer No – Verdict Not Guilty Answer Yes - Verdict Guilty 5

Asking the Right Questions Clough, Ogloff and Monteleone/ Dore, together with the Victorian Department of Justice, were awarded ARC Linkage funding to conduct empirical research into methods of improving juror comprehension. The NZ limb of the research is being carried out in collaboration with Dr Warren Young and Dr Yvette Tinsley, and the NZ Law Foundation. 6

Simulated Study  89 mock juries were used to evaluate jury comprehension and application of the law under four different conditions:  Standard instructions (oral delivery, no aides)  Plain language (written directions provided to jurors)  Plain language with checklist  Integrated approach with question trail (fact based) 7

Who took part in the study?  89 deliberating groups (10 – 12 jurors)  1007 participants – Gender 52.1% male, 47.5% female – Age range= 18-87, Mean Age= 43.4 – Education High school or less Technical qualification Tertiary education 217 (21.5%) 265 (26.3%) 520 (51.6%) 8

Simulated study  Paraphrase Task- Re-state the judge’s directions in their own words.  Correct/Incorrect Application - Indicate whether a legally unambiguous factual proposition is correct or incorrect.  Multiple Choice Application - Select the correct response to a factual question from a number of plausible alternatives. 9

Performance on Paraphrase Items Pre- deliberation Mean Percentage of Paraphrase Items Correct 80 70 68.77 61.56 60 58.44 50 Standard Plain Language 40 37.45 Checklist Fact Based 30 20 10 0 Standard Plain Language Checklist Fact Based 10

Performance on Binary Application Questions Mean Percentage of Binary Application Items Correct 86 84 82.81 82 80 79.33 78.65 Standard 78 Plain Language Checklist 76 Fact Based 75.33 74 72 70 68 Standard Plain Language Checklist Fact Based 11

Are twelve heads better than one?  Where there was time, participants were asked to complete a multiple choice questionnaire following deliberation.  Participants were instructed to work together as a group and attempt to agree on the correct response together. 12

Performance Before and After Deliberation 100 90 92.81% 80 83.33% 79.61% 79.82% 70 60 Post-deliberation Performance on Multiple Choice Task 50 59.37% Pre-deliberation Performance on 56.94% Multiple Choice Task 51.17% 52.08% 40 30 20 10 0 Standard Plain Language Checklist Fact Based 13

Relationship between Pre Deliberation and Post Deliberation Application Scores 14

Analysis of “deliberation” footage  Approximately 80 deliberations to be analysed and coded  Each discernible statement made by a group member is coded for multiple meanings  Provides an overall ‘picture’ of the deliberation allowing us to determine whether various types of directions influence the form of deliberation.  Preliminary results based on 4 deliberations per condition (16 total) 15

What was discussed? 16

Irrelevant discussion Proportion of irrelevant discussion in each condition 30% 25% 20% 15% 10% 5% 0% Standard Plain Language Checklist Fact based 17

Percentage of Completed Deliberations 70% 60.90% 60% 50% 44% 40.90% 40% Standard Plain Language Checklist 30% 26.30% Fact Based 20% 10% 0% Standard Plain Language Checklist Fact Based 18

Do the findings generalise to “real world” settings?  40 trials in Victoria adopting standard methods were observed and compared with 43 trials in NZ adopting the Question Trail approach. 19

Field Study  Average length of trials  Victoria 9.3 days  NZ 6.3 days  Average number of hours spent preparing summing-up  Victoria 11 hours  NZ 4.5 hours  Duration of summing up  Victoria 120 minutes  NZ 45 minutes  Average length of deliberations:  Victoria 11 hours  NZ 4 hours (effect got larger as trials got longer) 20

To what extent did you understand the information that the judge gave you at the end of the trial to help you decide the verdict? 100.00% 81.50% 80.00% New Zealand Australia 62.80% 60.00% 40.00% 35.60% 20.00% 15% 2.30% 2% 0 0 0 0 0.00% Understood Understood Most Understood Some Understood Very Understood None Everything Little 21

 In the original NZ jury study, there were numerous comments about the length of the summing-up, the repetition and difficulties in recall  In the current study, these difficulties were only mentioned on a handful of occasions in NZ: “comprehensive without being longwinded”  But it is still a significant issue in Victoria 22

Juror comments about the summing-up in Victoria 23

Repetition and length (Victoria)  “He repeated things too many times…too much unnecessary repetition. But I could see he was going for the lowest common denominator…so he sort of put the same point in several different ways”  “It was information overload”  “He just went on way too long. He was lovely, nice. But he laboured the points a bit. Just went on in a sort of sing- song voice and we all said he wouldn’t have any trouble putting his kids to sleep at night! His voice was very calming, but in the end everyone was twitching around” 24

Distracting or over-emphasised material  “He used some examples about if it was raining…”  He gave scenarios, they were OK but it was hard to try and apply them to the actual case. There was some confusing terminology and I think the scenario was meant to make it easier but it just made it more difficult”  “It dragged on…it took the focus away from the case and put it more on the aspects of the legal system” 25

Checklists  Some jurors who didn’t receive a “checklist” wanted one: “Maybe a help form, something to keep those key things in mind…we don’t have the privilege of all those years of law behind us to call on.”  Checklists, when provided, were not always used:  Unlike in NZ, the summing-up did not appear to be built around the checklist and was just one part of a lot of other information  When used, it was mostly a positive response:  “It directed us to exactly what we should be thinking about”  “That list was our working document…It was a very useful tool” 26

 Longer deliberations (even when checklists provided)  More anxiety about recall: “I understood it all but it very quickly got lost after we left the court”  More unstructured and ‘open’ discussions: “It felt like just one big conversation all the time and it felt unstructured”  More confusion:  “someone thought we could use inferential reasoning as proof”  “people didn’t really understand the instruction. They didn’t really know what they were deliberating about” 27

Juror comments about summing-up in NZ “ The best thing about the whole trial ” 28

1. QTs reassure and make the jury feel valued  “I just found it amazing. It wasn’t the first time I did jury service and I found this so much easier”  “I’d hate to be on one of those things without having that, that would have been horrible”  “I was so thrilled with his summing-up”  “when we were given that it was a huge relief” 29