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PART 3
The Trial Process
13 Judicial Processes
JACQUELINE M. WHEATCROFT
CHAPTER OUTLINE
13.1 INTRODUCTION
13.2 UNDERSTANDING THE JUSTICE SYSTEM 13.2.1 Adversarial versus Inquisitorial Systems of Justice
13.2.2 Criminal versus Civil Cases
13.2.3 Magistrates’ versus Crown Court
13.3 EVIDENCE IN COURT 13.3.1 The Impact of Appearance and Demeanour of Witness and Defendant on Decision-making Processes
13.3.2 Witness Credibility
13.3.3 Styles of Examination and Cross-Examination by Lawyers
13.3.4 The Impact of Pre-Trial Publicity and Judicial Pronouncements upon Outcome
13.4 JUDGES AS DECISION-MAKERS 13.4.1 Decision-making by Judges in the European Courts
13.4.2 Decision-making by Groups of Magistrates or Judges: Group Dynamics
13.5 JURIES AS DECISION-MAKERS 13.5.1 The Impact of Selection and Profiling on Outcome
13.5.2 The Comprehension of Jurors of Complex Material and Legal Terminology
13.5.3 Decision-making Processes in Juries
13.5.4 Juror Responsibilities
13.6 CONCLUSIONS
13.7 SUMMARY
LEARNING OUTCOMES
BY THE END OF THIS CHAPTER, YOU SHOULD BE ABLE TO:
Understand why a psychological analysis of judicial processes is important in the legal process
Appreciate the major issues and methods used to explore judicial processes
Understand the implications of existing findings for examining and evaluating evidence at court.
13.1 INTRODUCTION
To many psychologists, the criminal justice system often seems remote and complex, even mystifying. Even its main aim – is it to uncover “the truth” or construct a case against the guilty? – may seem confusing. This chapter considers the interface between psychology, law and the courts. It aims to examine the psychological processes that could influence decision-making in the courtroom. Issues explored include the impact of different styles of questioning by advocates, pre-trial publicity, judicial pronouncements and some recent juror research conducted in England and Wales. In the United Kingdom and the United States, among other countries, judges and juries are central to the judicial process and the decisions taken. Research has explored how the composition, legal understanding and group dynamics of juries influence the verdicts they reach, and in systems that rely on judges and magistrates alone to pronounce on guilt, how they decide between the rival narratives of events offered by the prosecution and defence.
13.2 UNDERSTANDING THE JUSTICE SYSTEM
13.2.1 Adversarial versus Inquisitorial Systems of Justice
The two principal systems of justice in the Western world are the adversarial and inquisitorial systems. The adversarial system is based on the principles of common law, originating in England and now widely applied, both in the United States and most Commonwealth countries. A trial under the adversarial system has been described by Damaska (1973) as structured proceedings involving a dispute between two sides – the prosecution and the defense – that should be in a position of equality (sometimes called “equality of arms”) and where the court – whether judge, magistrate or jury – decides the outcome. Judges have a duty to ensure that legal procedure is properly followed in court; they are not involved in the investigation or preparation of cases or the collection of evidence, although judges do sometimes decide what can be presented as evidence. Thus, judges’ main interests lie in ensuring the trial is conducted fairly and both sides have the opportunity to put their case.
According to the traditional adversarial model of justice, the judge plays essentially a passive and disinterested role, merely ruling on legal technicalities when one or other side raises these. However, today in the UK and elsewhere, judges are encouraged to take a more active role in the management of trials, including the safeguarding of witnesses and defendants at court, particularly those who are vulnerable (see Chapter 14 ). In the civil and magistrates’ courts, judges may also determine the outcome. Only the more serious criminal matters are decided by juries, generally consisting of laypersons without legal training but whose role and sworn duty is to “faithfully try the defendant and give a true verdict according to that evidence”.
PHOTO 13.1 In the inquisitorial approach, prior to trial, a full judicial investigation is conducted including interviewing witnesses and examining the defence case.
Source: © Zerbor/Shutterstock
By contrast, in the inquisitorial approach practiced in much of the European continent, judges are expected to arrive at the truth through their own investigations. Prior to trial, a full judicial investigation is conducted including interviewing witnesses and examining the defence case. In France, for example, this is done by the juge d’instruction, who is half magistrate, half police detective. Whether a case proceeds or not is decided by the judge and the trial itself is seen as a disinterested investigation rather than a dispute.
The major differences between the two systems (see Table 13.1 for a summary) include when and how evidence is presented, and the role of the judge: theoretically passive in the adversarial system, but playing a leadership role both in terms of process and decision-making in the inquisitorial system. However, in reality, neither system is wholly adversarial or totally inquisitorial. Several continental countries have introduced juries into inquisitorial processes, while in England and Wales, recent law reform, such as the right to silence and the need for magistrates to explain and justify their decisions, has led to inquisitorial elements being incorporated into the adversarial tradition.
Table 13.1 Key aspects of adversarial and inquisitorial systems of justice
System Mode Evidence Judicial role Judicial interest
Adversarial Dispute At trial Passive Fairness of process
Inquisitorial Investigation Prior to trial Leadership Case worthiness
13.2.2 Criminal versus Civil Cases
Both adversarial and inquisitorial systems distinguish between civil and criminal proceedings. The two processes typically differ in terms of standards of proof and rules of evidence. In England and Wales, in civil cases the general standard for a finding of guilty is on the balance of probability: “if the evidence is such that the tribunal can say that we think it more probable than not the burden is discharged, but if the evidence is equal it is not” (Eggleston, 1983, p. 129). This suggests an even balance, although would a probability of 0.501 suffice? In reality, this would not be sufficient when the overall impact of a guilty verdict upon the parties involved is taken into account. For example, in civil cases involving the care of children, the courts have taken the view that any decisions should be taken with a burden of proof closer to that in criminal cases.
The criminal standard of proof requires proof beyond reasonable doubt (Woolmington v. DPP, 1935). It represents a much higher standard than its civil counterpart, yet still falls well short of scientific certainty. Definitions of the standard have been attempted and have often created greater confusion than the standard itself. Lord Denning described the standard as (Miller v. Minister of Pensions, 1947):
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt… If the evidence against an individual is so strong that there is only a remote possibility in his favour … the case is proved beyond reasonable doubt, but nothing short of that will suffice”
More recently, so long as the judge explains the high degree of certainty required to the jury then that is thought to be satisfactory.
In both civil and criminal cases, prosecution and defence are required to follow the rules of evidence, which are designed to ensure a fair trial. In civil cases the issues to be determined are typically those of liability and damages. Since the introduction of
the new Civil Procedure Rules in England and Wales in 1998 there has been increased emphasis upon reducing cost, delay and complexity for all parties involved in a case. Evidential issues may include issues of law and witness competence, and the weight to be attached to expert evidence (see Chapter 16 ). In criminal cases, the issue is one of guilt or innocence. The rules here cover styles of questioning, issues around hearsay and procedural rights, what the jury may hear and what use they can make of information in reaching their decision.
13.2.3 Magistrates’ versus Crown Court
In England and Wales, the great majority of criminal cases – some 95% – are heard in magistrates’ courts. The least serious, known as summary offences, are tried by magistrates themselves and even those charged with more serious criminal offences, such as murder, manslaughter, rape and robbery, first appear in magistrates’ courts before passing to the Crown Court for trial. Summary offences, such as common assault, must be tried in the magistrates’ court, but “either way” offences, such as theft, can be tried either by magistrates or by jury in the Crown Court, depending upon the circumstances of each case and the wishes of the defendant.
The dynamics of being tried in a magistrates’ court are different to the Crown Court. Legal perception is that defendants are more likely to be acquitted in Crown Court, perhaps partly due to the fact that 90% of defendants in the former plead guilty compared with 70% in the latter (Ashworth & Hough, 1996). Faith placed upon juror decision-making, however, could well be misplaced according to research reviewed later in this chapter. In the magistrates’ court there is no separation between interpretation of law and finding of fact. Thus, magistrates may need to decide whether some evidence is admissible, but regardless of their decision, those sitting the case will have already heard the evidence. In the Crown Court the judge decides upon law and the jury decides the outcome of the trial, suggesting perhaps less room for bias in Crown Court procedures. Conversely, some lawyers have argued it is precisely because juries are not allowed access to important evidence that they reach perverse decisions (see Taylor, 2004).
13.3 EVIDENCE IN COURT
Whether it is in Crown Court or Magistrates’ Court, decisions need to be reached on reliable evidence and it is on the reliability of such evidence that much psychological research has been conducted. One area of interest, whilst not classified as evidence in legal terms, surrounds the demeanour of both the witness and defendant.
13.3.1 The Impact of Appearance and Demeanour of Witness and Defendant on Decision-making Processes
CASE STUDY 13.1 CONVICTED FOR A SPEECH IMPEDIMENT?
Garry Coombe’s downfall was his stutter. Charged with assaulting his wife, his speech impediment in court was mistaken for dishonesty. He was convicted after the magistrate did not believe his evidence because there was a noticeable tremor in his voice (Dick, 2006). Regardless of the legal facts or evidence presented at trial, Gary Coombe’s case illustrates that there are effects of appearance and demeanour that may influence judicial assessments and impact upon decision-making process.
The influence of accent on a range of eyewitness variables has been investigated by Frumkin (2007). This researcher found the same testimony delivered by the same witness was perceived as less favourable if the witness testified with a pronounced regional accent (Scots, Welsh or Irish) or spoke standard English. This effect has been replicated across three witnesses: those who spoke with an accent were rated less favourably on four variables (credibility, accuracy, deceptiveness, prestige) compared to accent-free speech. The authors interpret their findings in terms of an Elaboration Likelihood Model (ELM; Petty & Cacioppo, 1986) to explain the outcomes, suggesting that accent may be taken into account in evaluating witness credibility. Whilst this work may have implications for the fairness of accented testimony in legal settings, there are limitations in the extent to which it mirrors courtroom processes: all participants were students; they did not hear contradictory testimony or view the defendant. However, other more recent research also supports the notion that demeanour may impact upon jury decision-making processes. Espinoza, Willis-Esqueda, Toscano, and Coons (2015) in a US study which manipulated ethnicity, immigration status, and socioeconomic status (SES) reported that a low-SES undocumented Mexican defendant was found guilty more often, given a more severe sentence, thought to be more culpable, and rated lower on a number of trait measures compared with all other conditions.
Experimental research has also shown that an attractive plaintiff is more likely to obtain a favourable outcome and receive greater compensatory damages compared to someone less attractive (Stephan & Corder-Tully, 1977). Even attractive defendants found guilty receive less severe punishments, regardless of case type, than unattractive ones (Stewart, 2006; Zebrowitz & McDonald, 1991). More recently, the presence of smiling has been found to contribute to the perceived likeability of a witness. Nagel, Brodsky, and Weeter (2014) reported that smiling female witnesses were perceived as more likeable than smiling male or non-smiling female witnesses. This “halo effect” as it is termed (Cooper, 1981) suggests that judgements of attractive people may be more positive on a variety of dimensions. Feild (1979) conducted an analysis of the effects of victim and defendant case characteristics in relation to rape cases. An overall impact of attractiveness of the victim on trial outcome was found, but factors such as race, victim’s sexual experience, evidence strength and type of rape committed all modulated the effects of attractiveness, suggesting that the impact of attractiveness on juror decisions is far more complex than previously thought (see Memon, Vrij, & Bull, 2003 for review). For instance, a recent Canadian study involving an alleged sexual assault, found that female jurors were not influenced by victim attractiveness, but that males were more certain of a defendant’s guilt when the victim was unattractive (Maeder, Yamamoto, & Saliba, 2015).
Other characteristics, such as tearful remorse, attract fewer guilty verdicts and those defendants with an evident disability are more likely to receive the benefit of doubt with regard to guilt, responsibility and sentence leniency (Ahola, Hellström, & Christianson, 2010). However, those who have a lower moral character (Hans & Vidmar, 1986) or previous convictions, recent or old, (unless both recent and dissimilar to the current charge; Lloyd-Bostock, 2006), are more likely to be convicted. Overall, these experimental studies suggest that ethnicity, demeanour and appearance all could influence perceptions of credibility and affect trial outcome and sentencing over and above objective evidence at court (Levenson, 2008).
13.3.2 Witness Credibility
Legal commentators may have understated the potential role of situational factors, such as examination styles, in judging the credibility of witnesses. The kinds of questioning styles used during cross-examination may influence the ways in which jurors perceive credibility. Wheatcroft, Wagstaff, and Kebbell (2004) studied the effects of what they termed lawyerese (i.e. the use of complex question forms) on the inferences made by those hearing the questioning. Mock-jurors were most likely to judge the witness as inaccurate when the lawyerese questions were followed with negative feedback (complex questions followed up with negative comments: “Is it possible you might be mistaken?”). This result implies that complex questions to witnesses at court, followed up by an assertion that their answers might be wrong may make jurors doubt the accuracy of witness’ testimony (see Wheatcroft, Kebbell, & Wagstaff, 2001). Research has also demonstrated that when mock-jurors hear inconsistent recall testimony they perceive the eyewitness to be less accurate and credible (Berman, Narby, & Cutler, 1995; Brewer, Potter, Fisher, Bond, & Luszcz, 1999).
Research also suggests jurors believe confidence to be a valid predictor of accuracy. Many studies have demonstrated that jurors and jurists rely heavily upon the demeanour of the witness: if the witness appears to be confident, s/he will be considered more accurate (Cutler, Penrod, & Dexter, 1990; Kassin, Rigby, & Castillo, 1991; Leippe, Manion, & Romanczyk, 1992; Lindsay, 1994; Sporer, 1993). However, in general, research suggests that t
he relationship between witness confidence and actual memory accuracy is not strong and this poses major difficulties for justice (Kebbell, Wagstaff, & Covey, 1996; Kebbell & Giles, 2000; Wheatcroft, et al., 2004; Wheatcroft & Wagstaff, 2003). Furthermore, Wheatcroft, et al. found that, regardless of questioning style, presenting the testimony of the least confident witness first appeared to spuriously increase its perceived accuracy. Perhaps observers were more reliant upon their initial judgements and subsequently were unable to make sufficient adjustment when hearing further witnesses: an anchoring effect (see Tversky & Kahneman, 1974). The relationship between confidence and accuracy has also been shown to decline over time (Wheatcroft, Wagstaff, & Manarin, 2015). It seems likely that procedural factors such as presentation order and judicial delay could have significant implication for judgements of accuracy from witness demeanour.
Overall, it seems confident and likeable witnesses may be more likely to be believed than timid, unattractive or unsavoury ones: appropriate credit may not be given where it is due. Correspondingly, the drawing of false inferences from appearance and demeanour alone may risk a miscarriage of justice.
13.3.3 Styles of Examination and Cross-Examination by Lawyers
In court, every witness is subject to examination both by the party who has called the person as a witness and all the other parties who are legally represented at the trial. Examinations consist of examination-in-chief, cross-examination, re-examination, and possibly further examination from the judge or magistrates (Murphy, 1994). Examination-in-chief is a procedure that rests upon the notion of gaining the trust of the court and jury in the witness; a witness’ own counsel will encourage the provision of a free narrative account of events, where leading and suggestive questions are disallowed. Cross-examination, however, has a different purpose; to establish witness credibility. Thus, DuCann (1964) cites Lord Hanworth’s, statement; “Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story” (p. 95). Accordingly, a witness’ knowledge of facts, impartiality, truthfulness, character, bias, unreliability, respect for oath and general demeanour may be challenged at this point. Unsurprisingly, therefore, cross-examination strategies are built around the development of the most effective way to discredit a witness’s account and afford an examiner the opportunity to construct a competing interpretation or reanalysis of evidence, reflecting the adversarial nature of trials and focus on oppositional evidence (Ellison, 2007; Ellison & Wheatcroft, 2010). This constructive function of cross-examination is associated with heavy reliance on suppositional forms of questioning (Hickey, 1993; Hobbs, 2003; Wheatcroft & Wagstaff, 2003; Wheatcroft et al., 2004; see also Chapter 7 ). Propositional statements are embedded within questions which are then deliberately framed to elicit a simple confirmation or denial (e.g. “I put it to you that my client had every reason to believe that he had your permission to drive your car”) in the hope that the witness will adopt the cross-examiner’s formulations as his or her own (Drew, 1992; Matoesian, 1993).
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