Arbitrariness and the death penalty: How the defendant's appearance during trial influences capital jurors' punishment decision

Behavioral Sciences and the Law

Volumn 24, Issue 2, 2006, Pages 215-234

  Antonio, Michael E ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONTROLLED STUDY; DECISION MAKING; EMOTIONALITY; HUMAN; HUMAN EXPERIMENT; LAW ENFORCEMENT; MULTIVARIATE LOGISTIC REGRESSION ANALYSIS; OFFENDER; PERSONALITY; PREDICTION; PUBLIC OPINION; PUNISHMENT;

CAPITAL PUNISHMENT; DECISION MAKING; EMOTIONS; HUMANS; LOGISTIC MODELS; MULTIVARIATE ANALYSIS; PREJUDICE; SOCIAL DESIRABILITY; SOCIAL PERCEPTION; UNITED STATES;

EID: 33646250901     PISSN: 07353936     EISSN: 10990798     Source Type: Journal    
DOI: 10.1002/bsl.673     Document Type: Article

References (52)

1. See, e.g., MICHAEL A. FOLEY, ARBITRARY AND CAPRICIOUS: THE SUPREME COURT, THE CONSTITUTION, AND THE DEATH PENALTY Chapter 3, 61-88 (2003),
2. and BARRY NAKELL & KENNETH A. HARDY, THE ARBITRARINESS OF THE DEATH PENALTY Chapter 1, 1-18 (1987).
3. P. D. Blanck, Calibrating the Scales of Justice: Studying Judges' Behavior in Bench Trials, 68 INDIANA LAW JOURNAL 1119-1180 (1993).
4. Allen Hart, Naturally Occurring Expectation Effects. 68 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 109-115 (1995).
5. Proxemics refers to the amount of personal space one needs to have separating herself from another in order to feel comfortable. Researchers have separated physical distance into four specific territories or zones: intimate, personal, social, and public. For a more detailed description of these four zones see EDWARD T. HALL, THE HIDDEN DIMENSION 113-129 (1969).
6. Constance Bernstein, Winning Trials Nonverbally: Six Ways to Establish Control in the Courtroom. 30 TRIAL 61-65 (1994).
7. Id.
8. Stanley L. Brodsky, Nicole E. Hooper, Donald G. Tipper, & S. Brian Yates, Attorney invasion of witness space, 23 LAW AND PSYCHOLOGY REVIEW 49-68 (1999).
9. Id. The authors report that the distance from attorney to witness was recorded in one of three categories: (1) public zone was reserved to the area behind the attorney tables; (2) social zone consisted of space between the witness box and podium from where the attorney asked question; or (3) personal zone included area in front of the podium to the witness box.
10. One researcher has found that upon direct or cross-examination of witnesses trial attorneys would adjust the physical distance between themselves and the witness box. Apparently, as attorneys shorten the length of witnesses' personal space, witnesses more often become increasingly flustered and uncertain and the testimony itself would be viewed as less credible or more disparaging to the jury. Knowing this effect, attorneys would place themselves at such a distance as to maximize the comfort and favorable interpretation of their own witnesses, while alternating proximity and increasing the anxiety of other witnesses upon cross-examination (see Stephan H. Peskin, Nonverbal Communication in the Courtroom, 3 TRIAL DIPLOMACY JOURNAL 8-9 (1980)
11. and ROBERTO ARON, JULIUS FAST, & RICHARD B. KLEIN, TRIAL COMMUNICATION SKILLS Chapter 9 sections 1-14 (1986).
12. Even small body movements made by judges, such as eye contact or head nods, could be interpreted by the jury as meaningful signals regarding the offender's guilt. These nonverbal behaviors have been shown to significantly impact a trial outcome, and are sometimes more crucial to the jury decision-making than is the strength of the evidence presented in court (see supra note 3).
13. Cookie Stephan & Judy Corder Tully, The Influence of Physical Attractiveness of a Plaintiff on the Decisions of Simulated Jurors. 101 THE JOURNAL OF SOCIAL PSYCHOLOGY 149-150 (1977).
14. See, e.g., Diane M. Badzinski & Ann Burnett Pettus, Nonverbal Involvement and Sex: Effects on Jury Decision Making. 22 JOURNAL OF APPLIED COMMUNICATION RESEARCH 309-321 (1994);
15. A. C. Downs & P. M. Lyons, National Observations of the Links Between Attractiveness and Initial Legal Judgments, 17 PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 541-547 (1991);
16. Bert Pryor & Raymond W. Buchanan, The Effects of a Defendant's Demeanor on Juror Perceptions of Credibility and Guilt, 34 JOURNAL OF COMMUNICATION 92-99 (1984);
17. J. E. Stewart, Defendant's Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study, 10 JOURNAL OF APPLIED SOCIAL PSYCHOLOGY 348-361 (1980).
18. Leslie A. Zebrowitz & Susan M. McDonald, The Impact of Litigants' Baby-Facedness and Attractiveness on Adjudications in Small Claims Courts, 15 LAW AND HUMAN BEHAVIOR 603-623 (1991).
19. See, e.g., N. Villemar & J. Hyde, Effects of Sex of Defense Attorney, Sex of Juror and Attractiveness of the Victim on Mock Juror Decision-Making in a Rape Case, 9 SEX ROLES 879-889 (1983);
20. B. Thornton, Effect of Rape Victim's Attractiveness in a Jury Simulation, 3 PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 666-669 (1977).
21. W. H. Cooper, Ubiquitous halo, 90 Psychological Bulletin 218-244 (1981).
22. A. H. Eagly, R. D. Ashmore, M. G. Makhijani, & L. C. Longo, What is Beautiful is Good, But...: A Meta-Analytic Review of Research on the Physical Attractiveness Stereotype, 110 PSYCHOLOGICAL BULLETIN 109-128 (1991).
23. See Supra 16.
24. Valerie P. Hans and Neil Vidmar. (1986). Judging the Jury.
25. Id. at 135 citing findings from H. KALVEN & H. ZEISEL, THE AMERICAN JURY (1966).
26. Id. at 135.
27. Other analyses have examined factors predicting jurors' stands on punishment at the guilt stages of the trial (see William J. Bowers, Maria Sandys, & Benjamin D. Steiner, Foreclosed Impartiality in Capital Sentencing: Jurors' Predispositions, Guilt Trial Experience, and Premature Decision Making, 83 CORNELL LAW REVIEW 1474-1556 (1998)).
28. See, e.g., California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring) ("...the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime").
29. Weighed against the mitigating circumstances presented at trial.
30. Research funding for the CJP study began in 1990 from the Law and Social Sciences Program of the National Science Foundation.
31. William J. Bowers, The Capital Jury Project: Rationale, Design, and a Preview of Early Findings, 70 INDIANA LAW JOURNAL 1043-1102 (1995) at 1077.
32. Id. at 1082, see footnote 208 and accompanying text.
33. Id. at 1082.
34. Id. at 1081, see footnote 205 for further details about this sampling strategy.
35. These states included Alabama, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia.
36. Threshold statutes require jurors to find the presence of at least one aggravating factor from a list of circumstances before considering imposing a death sentence (See supra 2b at 1046). Also, see KY. Rev. Stat. Ann. at 532.025 (Michie 1998) and S. C. Code Ann. at 16-3-20 (1998).
37. Weighing statutes require jurors to balance aggravating factors versus mitigating factors and base a punishment decision on the relative weight of those circumstances (See supra 2b at 1047). Also, see Cal. Pen. Code at 190.3 (1999), MO. Rev. Stat. at 565.030 (1999), and N. C. Gen. Stat. at 15A-2000(b) (1999).
38. Directed statutes require jurors to base punishment on three criteria: future dangerousness, premeditation, and presence of mitigating circumstances (See supra 2b at 1048). Also, see Tex. Code Crim. Proc. Ann. Art. 37.071(b) (Vernon 1973).
39. Furman v. Georgia, 408 U.S. 238, 309-310 (1972).
40. The 14 states included in the CJP research are responsible for 73 percent of the persons on death row as of July 1, 2004 (http://www.deathpenaltyinfo. org/article.php?scid=9&did=188#state), and for 79 percent of the 944 persons executed between 1977 and November 17, 2004 (http://www.deathpenaltyinfo.org/ article.php?scid=8&did=186).
41. After hearing all the evidence and the judge's instructions to the jury for deciding on the punishment, but before you began deliberating with the other jurors, did you then think the defendant should be given... _ death _ life _ undecided.
42. When the first jury vote was taken on the punishment to be imposed, did you vote for ... _ death _ life _ undecided.
43. Was your final vote the same as your first vote? _ yes _ no
44. Aggravating circumstances are those factors that if determined to be present during the crime allow capital juries the option of imposing the death penalty (See Louis J. PALMER, JR., THE DEATH PENALTY: AN AMERICAN CITIZEN'S GUIDE TO UNDERSTANDING FEDERAL AND STATE LAWS 115 (1998).
45. For capital statutory aggravating factors concerning nature of the crime by state, see, for example, AL § 13A-5-49-8 (129); CA § 190.2-a14 (420); GA § 190.2-a18 (420); GA 17-10-30-4 (212); FL § 921.141-5h (501); LA § 905.4 A-7 (131); MO § 565.032 2-7 (42); NC § 15A-2000 E-9 (721); PA § 9711 D-8 (315); TN § 39-13-204 I-7 (14).
46. See, e.g., R. J. LITTLE AND D. B. RUBIN, STATISTICAL ANALYSIS WITH MISSING DATA (1987).
47. Id. at 101. Essentially, this technique ensures that all valid responses will be included in the analysis.
48. It should be noted that appearing uncomfortable during the trial had a weak relationship (B = 0.2928) with jurors' punishment decision however the effect missed the 0.05 probability cut-off for statistical significance. This effect suggests that when the defendant appeared uncomfortable during the trial, jurors favored a life sentence over death at the final vote on punishment.
49. Again, appearing uncomfortable during the trial had a weak but notable effect (B = 0.2989) on jurors' punishment decision; however, missed the 0.05 probability cut-off for statistical significance. This finding suggests that, while controlling for aggravating circumstances, when the defendant appeared uncomfortable during the trial jurors took a stand for life over death.
50. Also, it was revealed through these analyses that when the defendant appeared frightening at trial jurors favored death over life, or remained undecided over life at the first vote on punishment. It was shown at the final vote that appearing frightening had no statistically significant effect on jurors' punishment decision.
51. Notably, when the defendant appeared uncomfortable during the trial, jurors favored a life sentence over death at the final vote on punishment. This effect was observed with and without controlling for aggravating circumstances. While the effect fell short of the 0.05 probability level in both analyses, the direction of the relationship suggests that appearing uncomfortable during the trial evokes in jurors the belief that the defendant was emotionally involved, and this could impact their punishment decision.
52. Samuel R. Sommers and Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions 26 PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 1367-1379 (2000).