Juror competence in processing complex information: Implications from a simulation of the Maxwell trial

Criminal Law Review

Volumn 1998, Issue 11, 1998, Pages 763-773

  Honess, T M ^a   Levi, M ^b   Charman, E A ^c  

^a CITY UNIVERSITY   (United Kingdom)

^b CARDIFF UNIVERSITY   (United Kingdom)

^c LONDON METROPOLITAN UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 0040784308     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (27)

1. Challenges to the jury system are not, of course, new. For example see the commentary by B. Houlder. "The Importance of Preserving the Jury System and the Right of Election for Trial" [1997] Crim.L.R. 875-881. See contributions to M. Findlay and P. Duff, The Jury Under Attack, (1988) including that on fraud trials by the second author of this article.
2. Challenges to the jury system are not, of course, new. For example see the commentary by B. Houlder. "The Importance of Preserving the Jury System and the Right of Election for Trial" [1997] Crim.L.R. 875-881. See contributions to M. Findlay and P. Duff, The Jury Under Attack, (1988) including that on fraud trials by the second author of this article.
3. M. Levi, Regulating Fraud (1987), and M. Levi, The Investigation, Prosecution and Trial of Serious Fraud (1993).
4. M. Levi, Regulating Fraud (1987), and M. Levi, The Investigation, Prosecution and Trial of Serious Fraud (1993).
5. Home Office consultation document (1998), Juries in Serious Fraud Trials, section 2.12.
6. In any event, we are not satisfied that there is any consistent conceptual basis for the distinctions currently made in either transfer proceedings or decisions to remove libel cases (such as Jonathan Aitken v. The Guardian) from jury trial on the grounds of complexity. Indeed, the decision in the Aitken case is precisely the kind of issue that might reasonably give rise to public delegitimisation of verdicts.
7. T. Honess and M. Levi, Public Prejudice and Trial by Jury ESRC Grant number R000221623, 1997). A detailed statistical analysis that addresses psychological theory rather than policy matters is under consideration elsewhere.
8. A good empirically based review is provided by L. Heuer and S. Penrod "Trial Complexity: A Field Investigation of its Meaning and its Effects", (1994) 18 Law and Human Behavior 29-51.
9. For example, see S. Doran and J. Jackson "The Case for Jury Waiver" [1997] Crim.L.R. 167.
10. Fraud Trials Committee (1986a). Report, and (1986b). Improving the Presentation of Information to Juries in Fraud Trials: a Report of Four Research Studies. London: HMSO.
11. Video presentations are more compelling, e.g. J. R. P. Ogloff and N. Vidmar, "The Impact of Pre-trial Publicity on Jurors: A Study to Compare the Relative Effects of Television and Print Media in a Child Sex Abuse Case" (1994) 18 Law and Human Behavior 507-525. They also have stronger validity in representing "real life", a requirement increasingly voiced in the experimental literature.
12. Our work spanned the time of the actual trial and the period immediately after the verdicts were delivered. Perhaps surprisingly, the timing of our data collection made no difference to the pattern of results summarised here.
13. For example: D. Kuhn, M. Weinstock and R. Flaton. How Well do Jurors Reason? (1994) 5 Psychological Science 289-296.
14. For example: Home Office consultation document (1998) Juries in serious fraud trials, section 2.12.
15. For example: M. J. Bourgeois, I. A. Horowitz and L. ForsterLee, "Effects of Technicality and Access to Trial Transcripts on Verdicts and Information Processing in a Civil Trial" (1993) 19 Personality and Social Psychology Bulletin 220-227.
16. To simplify the presentation of our work, we discuss for study 2 only the quality of reasoning about the prosecution evidence. Data from study 1 are consistent with our findings reported here, but study 2 involved the interviewing of juror participants which provided a richer data set for identifying competence.
17. Also evident from the general literature on such processing. For example: R. E. Petty and J. A. Cacioppo (1986), "The Elaboration Likelihood Model of Persuasion" in L. K. Berkowitz (ed.), Advances in Experimental Social Psychology (Vol. 19, pp. 123-205) (San Diego, CA: Academic Press).
18. For example: M. J. Bourgeois, I. A. Horowitz, L. ForsterLee and J. Grahe, "Nominal and Interactive Groups: Effects of Preinstruction and Deliberations on Decisions and Evidence Recall in Complex Trials" (1995) 80 Journal of Applied Psychology 58-67.
19. Bourgeois et al. (1993), op. cit.
20. Heuer and Penrod (1994), op. cit.
21. We appreciate that considerable progress has been made on this since Roskill, and that such aids were more likely to be used in the trial than in the openings: but if early communication is important to recall, graphics may be important in opening statements too.
22. We understand that a tougher approach to citizenship obligations exists in the U.S., though we know of no evidence relevant to the conviction rate for frauds there, which might drop if resentful citizens were required to sit. The present jury panel could be strengthened by some modest attempt to ensure more adequate representation of categories (e.g. business people and professionals) who currently appear to find it easy to be excused. There could be a "booster panel", even including early-retired professionals, to fill in for those professionals who are excused, though we would not want this to jeopardise the representativeness principle. See, further, M. Levi (1993) op. cit.
23. Literacy is an essential prerequisite. A key issue is whether screening should be about knowledge, or about competence, looking at what we term systematic processing abilities, and willingness to challenge arguments and prejudices: we opt for the latter if democratic participation is to be retained.
24. One example will suffice, the opening statement for the prosecution in the Maxwell case began with the following "May I start with what is a limited liability company? You will find, I hope, in front of you a slim volume that is yellow. If you turn to page 3, you will see the names of some companies set out. I am going to start with 2.3, which says MGN Limited. What is a limited company? Members of the jury, I will start by saying what it is not . . . ". We firmly believe such matters are far better dealt with in interactive pre-instruction sessions despite the problems of reconciling (a) the teaching of how business works in a seminar-type approach before the trial proper starts with (b) the legal objections to points of interpretation that we would expect counsel to make. Moreover, if jurors are encouraged to ask questions via the judge this gives jurors greater satisfaction that they had enough evidence to reach a verdict. See L. Heuer and S. Penrod "A Field Experiment on Improving Jury Communication"(1985) Wisconsin Judicial Council Committee on Improving Jury Instructions.
25. For example, Michigan jurors given what were then the standard Michigan instructions on how to define negligence performed no better than jurors given no instructions at all in evaluating the evidence and using it to reach a verdict. However, when given modified language, the jurors performed substantially better. See Severance and Loftus "Improving the Ability of Jurors to Comprehend and Apply Jury Instructions" (1982) 17 Law and Society Review 153-198.
26. Survey research shows that public cynicism about business and professional élites is high: see M. Levi and A. Pithouse (forthcoming) White-Collar Crime and its Victims: the Media and Social Construction of Business Fraud. The efficiency and effectiveness approach that may appeal to government and taxpayers in their "costs governance" roles may diminish rather than enhance public confidence in the integrity of the trial process.
27. Sufficiency is a most important consideration. We believe that it is possible in many cases to judge the plausibility of a defendant's and the prosecution's accounts without understanding the minutiae of all of the evidence, e.g. non-specialist jurors are capable of deciding whether it was plausible that Kevin Maxwell knew what was happening or was kept in ignorance by his father. We believe that it is important for the role of the jury to be clarified and, if necessary, for them to be told that though it is desirable for them to understand as much of the business processes and interactions as possible, they are capable of forming a judgment about the integrity of what happened without their being able to function as if traders in the City. Anxiety can stimulate motivation but it also inhibits comprehension, and some clarity of role definition is important.