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Question Trails Discussion

Question Trails Discussion. A/Prof Mark Nolan ANU College of Law mark.nolan@anu.edu.au. 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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Question Trails Discussion

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  1. Question TrailsDiscussion A/Prof Mark Nolan ANU College of Law mark.nolan@anu.edu.au

  2. 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 2

  3. 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 3

  4. 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 evidenceor (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 4

  5. 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)? 55BJudge 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) 5

  6. 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 6

  7. 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 7

  8. 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 8

  9. (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? 9

  10. (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?

  11. 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

  12. 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.

  13. 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.”

  14. Jury Law: Mandated ACT Jury Trials • 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?

  15. Jury Law: ACT Jury Trials (Saikal, 2011) ACT Supreme Court Acquittal Rates 2005-09 (Saikal, 2011), p 16.

  16. Jury Law: ACT Jury Trials (Saikal, 2011) 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.

  17. 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

  18. Jury Law: ACT Jury Trials (Saikal, 2011) AFTER 7 July 2011 reforms: Part 2.2 Excluded offences

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