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IMPROVING COMMUNICATION WITH THE MODERN JURY: THE ROLE OF FACT-BASED DIRECTIONS IN IMPROVING JUROR COMPREHENSION

Jonathan Clough, Ben Spivak, Yvette Tinsley & Warren Young

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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

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• 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.

Challenges to juror comprehension

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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

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Question Trails/Fact-Based Directions

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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

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.

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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)

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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%)

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Simulated study

• Paraphrase Task- Re-state the judge’s directions in their
• wn 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.

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Performance on Paraphrase Items Pre- deliberation

37.45 61.56 58.44 68.77 10 20 30 40 50 60 70 80 Standard Plain Language Checklist Fact Based

Mean Percentage of Paraphrase Items Correct

Standard Plain Language Checklist Fact Based

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Performance on Binary Application Questions

75.33 79.33 78.65 82.81 68 70 72 74 76 78 80 82 84 86 Standard Plain Language Checklist Fact Based

Mean Percentage of Binary Application Items Correct

Standard Plain Language Checklist Fact Based

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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.

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Performance Before and After Deliberation

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

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Relationship between Pre Deliberation and Post Deliberation Application Scores

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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)

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What was discussed?

Irrelevant discussion

17 0% 5% 10% 15% 20% 25% 30% Standard Plain Language Checklist Fact based

Proportion of irrelevant discussion in each condition

Percentage of Completed Deliberations

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44% 26.30% 40.90% 60.90% 0% 10% 20% 30% 40% 50% 60% 70% Standard Plain Language Checklist Fact Based Standard Plain Language Checklist Fact Based

Do the findings generalise to “real world” settings?

• 40 trials in Victoria adopting standard methods were
• bserved and compared with 43 trials in NZ adopting

the Question Trail approach.

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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)

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81.50% 15% 2% 62.80% 35.60% 2.30% 0.00% 20.00% 40.00% 60.00% 80.00% 100.00% Understood Everything Understood Most Understood Some Understood Very Little Understood None

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?

New Zealand Australia

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• 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

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Juror comments about the summing-up in 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”

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Repetition and length (Victoria)

• “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”

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Distracting or over-emphasised material

• 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”

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Checklists

• 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”

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

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• “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”
• 1. QTs reassure and make the jury feel valued

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• “It made things much easier because he put it in such a

simple form. He put it in English so we could understand it. Because he virtually said, you know, if you agree with this the answer is guilty, if you agree with this, it’s not guilty.”

• “It made our deliberations easy…it made it so simple to

know where you were meant to be going and where you were meant to start”

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• 2. QTs improve communication by aiding

clarity about the jury’s role

• “That question trail just clarified everything that we had

to do…I think if we had not had it we could be there for days”

• “The question trail resolved the difficulties”
• “I thought you’d have to know a lot about the law to be

able to do it this way. And he’s not favouring anything, this is how it is and this is how you do it. So I would have loved to have kept it. That was invaluable. And listening to him too, because he went through it, so I’d be amazed if somebody said it wasn’t helpful, because it was remarkable”

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• 3. QTs provide an anchor point to aid comprehension

and save time

• “without it we would never have come to a decision or at

least we would have been all over the place, that really put the focus on the facts”

• “it was the crux of the whole thing, it stopped anybody

getting off track, it kept everybody concentrating and it helped hugely in people reaching the verdicts that we did…it narrowed it down and kept the focus on what it was all about”

• “we could get off topic to deciding other facts which weren’t

totally relevant…[the] foreperson and another lady used the question trail to bring discussion back to it”

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• 4. QTs serve as a reminder to focus on the evidence

rather than irrelevancies, reducing confusion:

• Some juries still struggle with how to start the deliberation

process, especially in Victoria:

• “one thing that would have been helpful was how to do a

deliberation, we even had debates as to how you would be doing that” (NZ)

• “[we had] no guidance in terms of what to do when you get into the
• room. Just to be unbiased, that sort of thing. But not really how to

go about it in the deliberation” (Vic)

• “There was a lot of toing and froing about what things we should

start with first” (Vic)

• In NZ, often the question trail helped: “Nice to have a

starting point and an idea of how to begin”(NZ)

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Common Issues: How to start deliberations

• “The paperwork didn’t match it…he gave quite logical steps for

this part and that part and when we got the paperwork, it was a bit

• blurred. So it made it harder for us as jury members to say what we

needed to focus on” (Vic)

• “There was a sheet of questions provided to help us come to a
• decision. The wording used in that sheet wasn’t very helpful” (Vic)
• “I think if it could have been reworded that would have made it

clearer for lay people” (NZ)

• “Told at the beginning that the judge would make our path easier

but we didn’t feel like that. The questions’ wording was a problem” (NZ)

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Common Issues: Difficulties with wording

Common Issues: Uncertainty about the burden

• f proof
• “We all said what do we

need? Do we need 100% proof?” (Vic)

• “I did Google it but it’s a

tricky one. I’m still not really sure” (NZ)

• “Would have been good to

have some guidelines about what being sure meant” (NZ)

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Common Issues: Jurors look to judges for a clue about the ‘correct’ verdict

• “Do you ever watch the ‘Who Wants to be a

Millionaire’ programme? Have you ever seen Eddie McGuire, how he tries to lead the contestant to change their minds? It’s a really subtle thing…I think the judge was doing that with us…he was Eddie McGuire!...I felt like I was on Who Wants to be a Millionaire and I was giving the wrong answer and the judge was trying to steer me right” (NZ)

• “He was so neutral, it was awful” (NZ)

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• Improving communication through clear directions

may also decrease “common sense justice”

• Provision of more pre-trial information for jurors

about the deliberation task?

• More provision of written preliminary instructions?
• Different presentation methods for multiple

count/multiple defendant trials?

Other things to consider…

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