The effects on juries of hearing about the defendant's previous criminal record: A simulation study

Criminal Law Review

Volumn , Issue SEP., 2000, Pages 734-755

  Lloyd Bostock, Sally ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

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EID: 23044521685     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (52)

1. The current rules are examined in detail in the Law Commission's Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of the Defendant (1996).
2. As the Law Commission team note: they write, for example (ibid. para. 1.20) that the members of the Criminal Law Revision Committee which considered character evidence as part of the Evidence Report "differed greatly among themselves as to the extent of the danger that juries may be unduly affected by knowledge of other misconduct of the accused".
3. A summary of the study was published as Appendix D to the Law Commission's Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of the Defendant, 1996. The content of the study was guided by the Law Commission team, led by Stephen Silber Q.C. The study was subsequently partially replicated with a sample of magistrales, again at the request of the Law Commission. A report of the results of the magistrates' study is forthcoming in the Lord Chancellor's Department's Research Series.
4. M. Zander and P. Henderson, Royal Commission on Criminal Justice Research Study No. 19 Crown Court Study (1993), paras 4.6.1, 4.6.6 and 4.6.7.
5. The Criminal Evidence Act 1898, s.1(f) deals with the rules of governing cross-examination of the defendant, and protects the defendant against being questioned about previous convictions. The defendant's protection or "shield" is lost if he or she claims to be of good character, or makes imputations about the character of the prosecution witnesses (s.1(f)(ii), for example, alleging that police officers have fabricated a confession which is in evidence against him or her), or gives evidence against a co-accused.
6. Broadly, following DPP v. P [1991] 2 A.C. 447, the "similar facts" exception is made in cases where some similarity between a previous offence and the one currently charged is striking enough to mean that its probative value outweighs its possible prejudicial value. However, as the Law Commission's account shows, the admissibility of similar fact evidence is a "pitted battlefield" (op cit. para. 1.2.) For present purposes it is worth noting that the approach assumes that similarity between a previous offence and the offence currently charged can be sufficiently probative to outweigh the prejudicial effects of allowing in the evidence.
7. The number is not specified in the Crown Court Study report, but the category is described as "common".
8. Inder (1978) 67 Cr.App.R. 143. See Archbold 2000, para. 4-410.
9. Judicial Studies Board's specimen direction.
10. Lord Hailsham in Boardman referred to reasoning directly from propensity to likely guilt as "the forbidden type of reasoning" (Boardman [1975] A.C. 421 at 453F).
11. For an overview see Law Commission Consultation Paper No. 141, paras 6.80-6.84.
12. Rules 413-415.
13. J. Spencer, "Reforming the Law on Children's Evidence in England: The Pigot Committee and After" in H. Dent and R. Flin, Children as Witnesses (Wiley 1992) (writing of the law before DPP v. P [1991] 2 AC 447).
14. ibid. p. 119.
15. Which is very much more restricted than that in the voire dire system in the U.S. For an account see N. Vidmar, "Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials" (1997) 21 Law and Human Behaviour 5-25.
16. See, for example, S. Fiske and S. E. Taylor, Social Cognition (2nd Edition McGraw Hill 1991).
17. The role of schemata in thinking was first proposed by F. A. Bartlett, A Study in Experimental and Social Psychology (Cambridge University Press 1932).
18. The phrase "beyond the information given" is the title of another influential book by J. S. Bruner, Beyond the Information Given: Studies in the Psychology of Knowing (Allen & Unwin 1973).
19. See in particular S. Fiske and S. E. Taylor, Social Cognition (op cit.) on the effects of schemata on information processing.
20. For example, N. Pennington and R. Hastie, "The Story Model for Juror Decision Making" in R. Hastie (ed.), Inside the Juror: The Psychology of Juror Decision Making (Cambridge University Press 1993):
21. W. Wagenaar, P. van Koppen and H. Crombag, Anchored Narratives. The Psychology of Criminal Evidence (Harvester Wheatsheaf 1993).
22. W. Cornish and A. P. Sealy, "Juries and the Rules of Evidence" [1973] Crim.L.R. 208-223;
23. D. Grant, "From Prior Record to Current Verdict: How Character Affects Jurors' Decisions", Ph.D. Thesis, University of California at Irvine (1996);
24. R. L. Wissler and M. J. Saks, "On the Inefficacy of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt" (1985) 9 Law and Human Behaviour,
25. V. Hans and A. Doob, "Section 12 of the Canada Evidence Act and the Deliberations of Simulated Juries" (1975) 18 Crim.L.Q. 235-253;
26. K. L. Pickel, "Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help" (1995) 19 Law and Human Behaviour 407.
27. Cornish and Sealy, op cit. The finding occurred where the current charge was rape and one of the two co-defendants had a previous conviction for indecent assaults on girls.
28. S. Tanford, S. Penrod and R. Collins, "Decision Making in Joined Criminal Trials: the Influence of Charge Similarity, Evidence Similarity, and Limiting Instructions" (1985) 9 Law and Human Behaviour 319-337. Conviction was more likely where there was a concurrent charge for a similar offence.
29. Cornish and Sealy, op cit.; Wissler and Saks, op cit.
30. Cornish and Sealy (op cit. p. 218) offer a speculative explanation of the finding, which is that a jury may feel it is unfair to introduce prejudicial evidence of marginal relevance against the defendant who was otherwise the less clearly implicated of the two. The explanation would not, however, explain why his co-defendant also benefits.
31. Canada Evidence Act, s.12.
32. Federal Rules of Evidence Rule 609.
33. Hans & Doob, op cit.; Wissler and Saks, op cit.; A. Doob and H. Kirschenbaum, "Some Empirical Evidence on the Effect of S12 of the Canada Evidence Act Upon an Accused" (1972) 15 Crim.L.Q. 88-96
34. Cornish and Sealy, op cit.
35. K. Pickel, op cit.
36. Pickel, op cit.; S. Wolf and D. Montgomery, "Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregard on the Judgments of Mock Jurors" (1977) 7 Journal of Applied Social Psychology 205-219.
37. N. Vidmar, "Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials" (1997) 21 Law and Human Behaviour 5-25.
38. See above.
39. The advantages and disadvantages of the method to study legal processes have been widely rehearsed. See for example Law and Human Behaviour 3, 1/2 Special Issue on Simulation Research and the Law, 1977. Every effort was made to minimise the limitations, for example by creating as realistic and authentic video materials as possible. A simulation experiment has two main advantages for studying the effects of previous conviction information. First, it allows information about the defendant's criminal record to be systematically varied, whilst other factors, such as the other evidence presented or the demeanor of the defendant and witnesses, are held constant. The videos varied only in respect of the crucial factors, as detailed below. This control is of course impossible to achieve using real trials. Secondly, in addition to the control that an experiment permits, the method has the important advantage that it can reveal effects on the participants that they may not be aware of, and that a real jury could not report reliably if they were simply asked about them.
40. Taken from specimen directions provided by the Judicial Studies Board.
41. In fact, very similar results to those presented here were obtained when cases where there was a previous conviction for indecently assaulting a child were included as "similar" to indecent assault on a woman, and "dissimilar" to handling stolen goods and a section 18 assault.
42. The same form of analysis is repeated throughout the paper.
43. Since members of each "jury" necessarily saw and deliberated on the basis of the same video, the dynamics of particular juries could contribute to some findings. However, in this analysis each category of previous conviction information contains three independent juries.
44. op cit.
45. op cit.
46. Analyses comparing verdict with rated probability of guilt showed that the average rating by those voting "guilty" was 82.1 before deliberation and 86.0 after deliberation; whilst the average for those voting "not guilty" was 41.9 before deliberation and 44.8 after deliberation.
47. As noted above, the present study was designed to allow discrimination amongst levels of possible increase in perceived guilt and verdicts above the base level, requiring rather low basic levels of guilty verdict.
48. Analysis of variance (df 5,200 F=.61) p=.69 (not significant).
49. It must be borne in mind that the extent to which each previous conviction was combined with a similar or dissimilar current charge, varies; and in particular that a previous conviction for indecently assaulting a woman was only combined with a current charge for indecently assaulting a woman, i.e. was always similar to the current charge.
50. Diamond et al. show how the rationale for withholding evidence from juries frequently ignores the fact that in the absence of the evidence the jury will draw its own inferences based on its predispositions and expectations. S. Diamond, J. Casper and L. Ostergren, "Blindfolding the Jury" (1989) 52 Law and Contemporary Problems 247-267.
51. See note 32, above.
52. Cross, "Clause 3 of the Draft Criminal Evidence Bill, Research and Codification" [1973] cited by the Law Commission, op cit. para. D.61.