Wednesday, January 11, 2023 —Week 1
Psychology and the Law
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The law touches nearly every aspect of our daily lives:
o Buying this book
 Copyright, reproduction rights
 In most case, the author gets no money from the purchase of a new
book, and is therefore theft
 Law on this is relatively unenforced
 Copyright laws are enforced
o Driving your car
 Highway traffic act
 Insurance
 Registered car
o Taking an aspirin
 Legislation that pertains to the selling packaging and distribution of
medication
o Getting dressed
 Now legal for women to be in public without a shirt
Psychology
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Human behaviour lies at the heart of psychology and the law
o Connects psychology and the law
Psychology is the scientific study of behaviour and mental processes in an attempt to
understand, predict, and in some cases control human behaviour
o Standard for civil commitment is relatively high to protect a person’s civil
liberties
o Police officers and doctors can make a recommendation to the court to have
someone civilly committed
What is Psychology?
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Psychology is the scientific study of behaviour
“Anything an animal or human does, feels, or thinks”
o Broad field that interacts with most academic disciplines
Psychology is a science firmly based in empirical research
o Science isn’t science because of what you study
o Science is science based on how you study it
Psychology has broad application
The Law
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It depends
The legal system is comprised of a body of laws, rules, regulations, and procedures
The legal system is designed to govern, regulate and control human behaviour
o Law is meant to help us and maintain morality in society
o Allow for a smooth-running society
o Getting rid of laws is very difficult
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The law is only as powerful as its enforcement
Laws are selectively enforced in different areas and different courts
Enforcement is more important than the law itself
Enforcement doesn’t always follow the letter of the law
Psychology and the Law
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Concerns “issues arising out of the relationship between human behaviour and the law,
legal system, and legal process”
 Psychologists working in law and psychology study empirically the assumptions about
human behaviour that underlie the operation and functioning of the law
 Social scientists assess the reasonableness and validity of the evidence
1. Investigations: interviews, interrogations, profiling, risk and threat assessment,
research, etc.…
2. The courts: fitness and insanity, expert witness, trial consultant, research, etc.…
Quantify in money psychological damage, represent a child in a divorce case
3. The penal system: assessment and treatment of inmates, education programs,
correctional psychologist, research, etc...
Differences between Law and Psychology
1. Stare decisis vs. Creativity
Following the precedent vs. follows past research but is not bound by it, new research If
viable will be taken
2. Hierarchical vs. Empirical
a. Lowest level of courts and higher ones vs. status doesn’t matter
3. Adversarial vs. Experimental
a. Fighting vs. not fighting, both just trying to prove their theories
4. Prescriptive vs. Descriptive
a. What to do and what not to do vs. accumulating knowledge and understanding
5. Idiographic vs. Nomothetic
a. Individual cases vs. general trends and principles
6. Certainty vs. Probabilistic
a. Has to be certain about the verdict vs. experiments and theories are just
theoretical and are just waiting to be disproven
7. Reactive vs. Proactive
a. Law reacts until somethings happened vs. psychology tries to prevent
8. Operational vs. Academic
a. Practical and applied vs. majority is academic
Psychology/Law
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Psychology in the law
o Asked to come and participate in the legal system
o How effective are expert witnesses?
o Asked by the courts to come and do something
o Assessments and insanity, child custody, monetary value of psychological
damage, etc.
Psychology and the law
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o Doing research about the law itself
o Forensic psychologists are clinical psychologists that work with special
populations
o Biggest area of research
Psychology of the law
o Smallest amount of research
o Obscure
o Looking at how the legal system has come to pass
o The progression of laws in Canada
Forensic vs. Experimental Psychology
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Forensics
o Clinical
o Assessment, treatment, research
Experimental
o Non-clinical
o Cognitive/perceptual, social, developmental, abnormal
What is Forensic Psychology?
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Forensic Psychology is a research endeavor that examines aspects of human behaviour
directly related to the legal process
E.g., eyewitness memory and testimony, jury decision making, criminal behaviour,
deception detection
Forensic Psychology is a profession
Clinical (counseling)
o Assessment and Treatment
Experimental
o Applied Cognitive and Social Psychology
o Expert testimony
o Knowledge about law and the legal system
Real Life Examples of Careers
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Clinical Psychologist: consultant to police
o Profiling, suspect interviewing, therapy for police officers, assist medical
examiner
Social Psychologist: trial consultant
o Jury selection, theory of the trial, focus groups, cross examination techniques,
expert testimony
Mediator: resolves legal disputes
Counseling Psychologist: threat assessment, crisis intervention
Correctional psychologist: assessment and treatment of offenders, fitness and insanity,
advisor to parole board
Perception
Knowledge for the sake of knowledge
Wednesday, January 18, 2023 —Week 2
The Law
Correlational Research
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Establishes whether there is a relationship between two or more variables
Cannot infer causality
Directionality problem
Potential for a third variable (confound)
Experimental Research
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Considered the most powerful tool for determining causal relationships
Random Assignment: ensures that every participant has an equal chance of being
assigned to any of the conditions
This minimizes the chance that a pre-existing difference between groups is the cause of
the “experimental effect”
Research Design
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Independent variable
o Manipulated variable (e.g., mood induction)
o Individual difference variable (e.g., hi vs low self-esteem)
Dependent variable
Cover story/deception
Random Assignment
Confounds
Reliability
Validity
The Law in Canada
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Common Law vs. Civil Law
o Common law systems are adversarial
o Civil law systems tend to follow the inquisitorial model
Statutory Law
Stare decisis: “to abide by decided cases”
o Many precedents are old and outdated
Hierarchical
Courts
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Supreme Court of Canada
Court of Appeal
Federal Court of Appeal
Superior Court
Federal Tax Court
Provincial Courts
Administrative tribunals (appeal to Superior Court of Justice)
Areas of Legal Practice
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Administrative
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Torts/personal injury
International
Constitutional
Corporate
Tax
Real Estate
Wills and Estates
Family (divorce/custody)
Environmental
Immigration
Intellectual property
Litigation
Criminal prosecution
Criminal defence
In-house counsel
Psychology in the Law
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Criminal law (Criminal Code of Canada)
Civil Law
Family Law
Administrative Law
Litigation
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Settling disputes in court
Criminal litigation
Civil litigation and commitment
Inquisitorial vs. Adversarial
The Constitution
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The Constitution Act (1867) B.N.A.
Division of Powers
Federal vs. Provincial responsibilities
S. 91- enacting criminal law and procedures maintaining federal penitentiaries
S. 92 administration of justice, maintaining prisons and jails, property, and civil rights
The Canadian Charter of Rights and Freedoms
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S. 52 (1)—inconsistent laws are “of no force of effect’
S. 1—reasonable limits in a free and democratic society
S.7—“right to life, liberty, and security of the person”
S. 8—security against unreasonable search and seizure
Criminal Law: Intent
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Actus Reus= evil act (act or omission)
Mens rea= evil intent
Negligence, recklessness, willful blindness
Specific intent e.g., murder
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General intent e.g., sexual assault
Doctrine of transferred intent
Liability
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Offences of intent e.g., murder
Strict liability e.g., statutory rape
Absolute liability e.g., speeding
Types of Offences
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Indictable offences: e.g., murder, robbery, kidnapping, treason, hijacking, piracy, etc.
Summary conviction offences: e.g., driving offences, trespassing, petty vandalism
(graffiti), etc.
Hybrid offences: e.g., assault, sexual assault, theft over/under $5000
Roles of Forensic Psychologists
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Police Consulting: planning suspect interviews, generating psychological profiles,
evaluating credibility of accusers or suspects, etc.
Trial Consulting: jury selections, preparing witnesses, evaluating scientific evidence, how
to cross examine opposing verdict expert, etc.
Expert Witnesses
Fact Witnesses
Criminal responsibility, Competence to stand trial, Sentencing, Eyewitness, Trial,
Procedure, Civil Commitment, Psychological damages, trademark litigation, class action
suits, child custody, professional malpractice, guardianship and conservatorships, etc.
Wednesday, January 25, 2023 —Week 3
Interviews, Interrogations, and Confessions
Police Interviews
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With witnesses vs. suspects
o Witnesses are an interview
o Suspects are interrogations
o Reid method is so effective that you can get innocent people to confess
o Witnesses—trying to assess and assist them to get their side of the story
o Open-ended questions
o Careful not to suggest information or answers in question
o Suggesting answers in questions may bias the memory of the witness
o Structured interviews—same style and type of interview
o Freeform interviews can make it difficult to make a deduction from the interview
o Law enforcement is intermittently informed by science, so this is not consistent
Memory enhancement procedures—e.g., guided memory technique, structured
interview
Cognitive interview (enhanced)
o Guided memory technique
o Structured
o How to contribute to these techniques without interfering with memory
1. Guided imagery
a. Asking them to imagine and remember
b. Asking them if they notice certain things, which can bias memory
2. Temporal order
a. Chronological order
b. Tell me the story
c. Tell me the story backwards
d. don’t know what’s relevant and what’s not
e. gathering any evidence possible
3. Report any related matter
a. Remember anything
b. Senses, weather, etc.
c. Any matter related
4. Recall using different perspectives
a. Clearly imagining
b. What do you think the victim saw from their perspectives
c. Can you imagine using different perspectives
Interviews with Suspects
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80% of criminal cases solved by confession
o Only a small percentage of criminal cases go to court
o If the case is weak and the Crown doesn’t think they would win, it shouldn’t go
to court
o If the case is easily winnable, you don’t want to go to court as the accused
 Going to get a longer sentence if it goes to court
 Entering into a guilty plea
o Cases that end up in court are equivocal—not sure who will win
o 80% includes both true and false confessions
In Canada, a confession must be backed up by some other form of evidence
o Realization that confessions can be false
Whipping suspects (Brown v. Mississippi, 1936)
o If someone is physically torturing a suspect, they will say just about anything
o Anything that is illegal is already wrong in the interrogation room
o Police whipped Brown for so long to get him to confess to a crime he didn’t do
NYPD in 1980s used stun guns
o Police used stun guns to get a confession
Lying about evidence, promising lenient treatment, implying threats to loved ones
o Depends on the situation
Suspect vs. witness
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Torture vs. soft sell
o Soft sell:
 Form of brainwashing
 Meant to illicit a fight or flight reaction
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Brainwashing
England does not use any techniques popular in North America (PEACE)
o Reid techniques is mostly confined to the US
o Not banned in Canada, but it’s not standard practice
o PEACE is from the UK
Reid Model of Interrogations
A. Gather evidence related to crime and interview witnesses and victims
a. Figure out everything you can
b. Goal is to have as much exposure of the information so that everything that is
said either creates a connection or an inconsistency
B. Conduct a non-accusatorial interview of the suspect (evidence of deception)
a. May read their rights but it is an interview not an interrogation
b. Interview you like you’re not a suspect
c. Establishing baseline of anxiety
d. Most people are anxious when entering a police station
e. Increases ability to see when and why they get more anxious
f. Earning and gaining trust of the suspect
g. Reciprocity norm: officer gives water and coffee, suspect now owes him
something
h. Talking about anything
i. Officer will attempt to connect with suspect and build rapport with them
j. This puts suspect at ease and relax
k. Could be as long as 3 hours
l. They are asking questions and taking notes, but in a much more relaxed manner
C. Conduct an accusatorial interrogation of the suspect (nine-step procedure)
1. Confront suspect with their guilt
a. All accusation, anger, seriousness, interrupting
b. No chance to make any denial
c. Increases anxiety
2. Justify, rationalize, or excuse the crime
a. Offer up excuses for the crime
b. Rationalize that you or anyone else would’ve done the same thing
3. Interrupt any denials immediately
a. No longer need to yell
b. Denials tend to get quieter and less intense as the interview continues
4. Overcome objections when suspect becomes quiet and withdrawn
a. Been in the fight or flight phase for so long that they have reached exhaustion
b. They eventually stop denying the crime
c. Body language will change when they get quiet
5. Minimize withdrawal by moving closer
a. Approach the suspect
b. Enter into the personal space zone
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c. Threat detection system: when a stranger enters into your space, your brain will
detect it
d. People in the exhaustion phase don’t have a reaction to this because they’re
overstimulated
e. The non-accusatorial conversation fools the unconscious into believing that they
are not a threat, so there is no reaction
Offer sympathy, empathy, understanding and make appeals to decency and morality
a. Sympathize with suspect
Offer face-saving explanations to make self-incrimination easier
a. Offer justifications
b. Tells suspect they would’ve done the same thing
When there is any agreement with face-saving explanation, develop admissions into full
confessions
a. Turn initial confession into full confession
Get a written and signed confession
Interrogations
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Good cop/bad cop
o One cop does all of the minimization techniques
o The other cop does the maximization techniques
o Not used as much because the suspect almost expects it because it’s so cliché
Minimization techniques (soft sell)—false sense of security e.g., sympathy, excuses
o Everything is going to be okay
Maximization techniques (scare tactics)—intimidation e.g., exaggerate seriousness, lie
about evidence
o Scaring the suspect into confessing
o Not part of the Reid technique
o To a degree, lying about evidence is fair
Rapport Building—flattery, offer a drink, be your friend, show respect
Problems with the Reid Model
1. Detecting deception is extremely difficult and often inaccurate
a. Not done well at all
b. No reliable method of detecting lies
c. Should not rely solely on the detectives to make a decision on who is a suspect
2. Investigator bias—confirmation bias
a. Guilty expectations led to more suspects judged to be guilty, more pressure
exerted on innocent subjects, innocent subjects were seen as much more
defensive
b. When we are presented with a narrative, we internalized it and it becomes the
structure of how we frame our story
3. False confessions
PEACE Model
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Planning and preparation
o Exactly the same as the Reid model
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o Gather evidence and talk to who we can
o Get enough information before interviews and interrogations
Engage and explain
o Goal is to figure out what happened, not necessarily to get a confession
o Give opportunity to tell their story
o Don’t assume guilt or innocence
Account
o Account for inconsistencies between interview and evidence
o Tiring process
o Frustration rising
Closure
o Anything else they might want to add
Evaluation
o Evaluation that takes place with other officers and detectives
o Evaluate whether or not they think the person did it
Inquisitorial vs. Accusatorial—conversation management and information gathering
o Tools used
o Inquisitorial model
o How to gain information
o Not how to trick them
o Doesn’t garner as many false confessions
Videotaping of interrogations
o Cameras are supposed to stay on and not go out
o Cheaper to do now, easier to go back and consult them
Confessions
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An admission of guilt is the most damaging evidence that can be presented at a
defendant’s trial (R. Hodgson, S.C.C.)
o In the legal system, what the supreme court says is the law
R. v. Oickle (2000)—“a confession will not be admissible if it is made under
circumstances that raise a reasonable doubt as to voluntariness.”
o No definition of voluntariness or reasonable doubt
“So, appalling as to shock the community”
Confessions Excluded
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Elicited by brute force
o No physical threats
o No physical harm
o No threats to go after family members, etc.
Prolonged isolation
o How long is prolonged?
o R. v. Howlett (1997)
 Needs to be in a state in which he can interact
 Treat people like humans: need to feed them, let them go to the
washroom, sleep, etc.
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o If it’s less than 24 h you’re probably ok
o If it’s more than 24h you have violated the right
o Allowed to interrogate someone who is under the influence
o Confessions are still valid if you’re under the influence
Deprivation of food or sleep
Threats of harm or punishment
Promises of immunity or leniency
Not notifying suspect of their constitutional rights (s. 10, C.C.R.F.)
False Confessions
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False confessions account for the most wrongful convictions next to eyewitness
misidentification
Retracted confessions: declaring the confession is false
o I confessed but I didn’t do it
Fundamental Attribution Error
Disputed confessions: it is disputed at trial because it was coerced, suspect denies
confessing, or violation of legal procedures
o May or may not be wrong, but they confessed
o However, the confession may not be admissible
o Not necessarily saying it’s wrong, but it’s not legal or ethical
Voluntary false confession
o Protection, reward, alibi, fear, fame
Coerced-compliant false confession
o Escape or reward (instrumental reasons)
 Forced into confessing when you know you didn’t do it
Coerced-internalized false confession
o Creation of false memories
 Didn’t do the crime but they believe that they did
Coerced-Internalized False Confessions
1. History of substance abuse or interference with brain function
a. Brain injury and damage
2. Inability to detect discrepancies between what was observed and what was suggested
a. Suggestibility
b. Easily persuaded that something happened when it didn’t
3. Mental state factors: severe anxiety, confusion and shock, feelings of guilt (survivor’s
guilt)
 Compliance—the Gudjonsson Compliance Scale
o Eagerness to please others
 agreeability
o Desire to avoid conflict and confrontation
 Some evidence suggests you can reliably differentiate between
“resisters” and “false confessors”
Suggestibility
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The Gudjonsson Suggestibility Scale
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o Higher you are in suggestibility, the more likely you are to be hypnotized
Yield—susceptibility to give in to leading questions
Shift—the tendency to alter answers when put under pressure by an interviewer
Short story—20 questions, 15 misleading, told there are errors and must ask all again
Anxiety increases—suggestibility increases
IQ decreases—suggestibility increases
The Environment
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Soundproof and visually isolated to promote a low locus of control and the feeling of
withdrawn isolation
Bare, no ornamentation, two chairs and a desk
No outside communication
Sit close in armless straight-backed chairs at equal eye level
Correspondent Inference Theory
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The angle of the camera in the interrogation directly affects the perception of coercion
o Suspect salient
 Focused on the suspect
 No coercion
o Interviewer salient
 Focused on the interviewer
 There’s coercion
o Both salient
 Focused on both
 Not much coercion, if at all
Impact of False Confessions
Kassin and Sukel (1997)
1. Confessed during questioning
2. Confessed during coercive threats
3. No confession control
a. Those in condition 2) said that the unlawfully obtained confession would not
affect their decisions but they had significantly higher conviction rates than the
control group
b. The real perpetrator goes free
Wednesday, February 1, 2023—Week 4
Profiling
Wednesday, February 8, 2023—Week 5
Eyewitness Identification
Memory Construction
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It is surprisingly easy to distort and/or create memories
o Every time we recall a memory, we distort some part of the memory
Memory is strongly influenced by our views, attitudes and beliefs at the time of recall
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Reform Party MP Jack Ramsay
o Regina, Saskatchewan
o Accursed Sexually assaulting a young first nations Aboriginal girl (now 25 years
old, was 12-13)
o Story is the same for both at the beginning
o He picked her up close to midnight past curfew
o Drivers her to the RCMP station
o Asks her if she’s ever had sex
o Asks her to undo her pants
o Story begins to diverge
o He says
 He became ashamed of himself and told her to do up her pants and took
her home
o She says
 They had sex
o Either way, it was stat. rape
o Has a conviction for invitation for sexual touching
o Even if he only did what he said, he still gets in trouble
o Apparently, she regained memory of the incident after seeing him at a funeral in
Regina
o He wasn’t there—she’s a compromised witness
o There was prejudice against aboriginal people
o She has made at least one error – questions start arising of what the truth is
really
o It later comes out that she was raped by another RCMP officer
o Was she confabulating? Was it unconscious transference?
o When we think of a memory, we get all the sensory information that are being
held in their respective cortexes, they get combined in the hippocampus, and
then we fill in the blanks with our views, attitudes, and beliefs
Elizabeth Loftus’ studies
o Doing studies on memory construction for decades
o Washington State
Schooler (1986)—Psychologists can’t tell the difference between real and implanted
memories
o No one can tell the difference
o Some individuals can have high correct percentages, however there is no
similarity between them and haven’t figured out what’s different about them
Eyewitness Identification
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Loftus (1979)
“Did another car pass the red Datsun while it was stopped at the stop sign?”
It was a yield sign at the intersection the subject had previously seen
o Pedestrian-accident video
o Should the car have stopped or not?
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Two versions
Groups are randomly divided
Video either has a stop sign or the yield sign
What drove witness testimony is not what they saw, but what they were asked
Leading questions are suggestive to the witness and can alter their memory
They’re also more likely to agree with what the question is suggesting
Loftus & Palmer (1974)
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How fast were the cars going when they smashed into each other?
o Suggests that the cars were going fast
o When they say smashed, there’s a 2x more likely chance that people will report
seeing broken glass in the video, even when there was no broken glass
How fast were the cars going when they hit each other
o Suggests that the car was going slower
In the first condition subjects “remember” the cars were going much faster than do
subjects in the second condition
o Confident jurors are beliefs
o But the correlation between confidence and accuracy is almost 0
False Identification
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Most common reason for convicting the innocent
In U.S. 77000 cases founded on eyewitness identification are tried each year
o Never going to really know the true number of people who were wrongfully
convicted
o We can estimate using assumptions based on speculation
The Innocence Project
o Original
o Started and university of New York
o Barry shek (OJ case)
Association of the Defense for the Wrongfully Convicted
o Osgoode hall
o Also have an innocence project
o Law schools taking on cases of people where it looks like there’s wrongful
conviction
o Students do all the work
Eyewitness Testimony
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Loftus (1979)—Robbery/murder case 18% conviction rate jumps to 72% with addition of
eyewitness
o Only falls to 68% with witness discredited
o Wells (1981)—even with poor conditions 62% still believed eyewitness
 (1980)—both correct and innocent eyewitnesses were believed 80% of
the time
 Before information gets to your consciousness, it’s already been filtered
by the narrative you belief
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If we believe a specific narrative, we are more likely to believe and
remember facts that fit our story
Rates of accuracy for eyewitness testimony is about 50%
Jurors Belief of Eyewitnesses
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Wells (1981)—jurors tend to believe witnesses whose memory for trivial details is poor,
but these are usually the best (most accurate) witnesses
o When someone can tell you the minute details, their memory for details must be
good
o Therefore, their memory for details of someone’s face is probably good
o However, the opposite tends to be true
o Someone who is being attacked makes a point of not looking at the face of the
assailant
o They tend to look at other parts of the room (the parts that comprise the minute
details they are recalling)
The more details remembered about the scene, the less details remembered about the
face and victim
The more condition the witness, often times the more likely they are to be wrong
o Correlation between confidence and accuracy is extremely low
o No relationship between these things
o Confidence has an influence on the jury’s decision
Eyewitness Research
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Estimator variables
o Variables that we don’t know how much effect they will have on eyewitness
o We can’t control these variables
o We need to estimate what impact, if any, they would have on the witness
E.g., physical and temporal context of the crime (distance, lighting, duration, weather)
o Is that a reasonable distance to see someone’s face?
 This will change on a person-to-person basis based on vision quality
Age, gender, race, emotional state, witness eyesight
Their impact on the accuracy of an identification can only be estimated
System Variables
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E.g., procedures used to select members of line-up, the presentation, instruction given
to witness, conditions in the interview, interview style
These are factors over which the police and justice system have at least some control
o What we can do to try to minimize wrongful convictions
Line-ups
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Photo line-ups “head and shoulders”
o Vast majority are photo, not in person
Distractors—lineup members other than the suspect
Matching to Appearance strategy
o Doesn’t matter if they look the same
o They all have to match the witness’ oral description
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They don’t have to look similar, they just have to match the witness’s oral description
Unconscious transference
o Have to be careful
o Marvin Anderson
 His picture didn’t look like any of the other pictures
 His was coloured
 This could have possibly led to him being picked out
 Him and the girl lived in the same housing complex
 They have definitely run into each other before
 Because she likely recognized him, she chose him because unconscious
transference replaced the assailant with him
o Ronald Cotton and Jennifer Thompson?
Double Blind Procedure
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Can advertantly or inadvertently cue the witness
o Experimenter bias
o Favouring the hypothesis
o If the detective knows who the suspect is, they will give off explicit cues that will
give away (or even subtly suggest) to the victim/witness who the suspect is
E.g., “take your time” – to tentative description
Subtle unconscious cues (coughing, voice inflection)
Reinforcement can raise witness confidence levels (witness confidence trumps accuracy)
Instructions to the Witness



“The person you saw commit the crime may or may not be in the photos you are able to
see”
Present the photos sequentially (Lindsay and Wells 1985)
o One at a time
Relative vs. absolute judgement strategies
o Absolute: that’s the person (sequential)
o Relative: they look most like the person that I remember (show them all at once)
 Sequential seems to have less misidentifications
Sequential Photo Lineup
1. You are going to see a series of photos to determine whether you can identify the
person you saw commit the robbery last week. Please keep in mind that the person you
saw may or may not be in the photos
2. You will be shown the photos one at a time and you will not be told how many photos
there are. For each photo, please decide, “Yes that is the person I saw” or “No, that is
not the person I saw.”
3. If you saw no to a photo, you will not be able to return to it later and if you choose a
photo, you will not be allowed to see any remaining photos
Other Identification Procedures


Cold mugshot search
Walkthrough procedure



Show up procedure “Oklahoma lineup”
Composite sketch
Indenti-Kit and Photo-Fit
o Drawn eyes, noses, mouths
o Put together to make a composite sketch/photo
o Difference is one is drawing, and one is actual photos
Eyewitness Identification


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Confidence is not a reliable indicator of accuracy
We perceive events selectively and use imagination to fill in the gaps
Ample evidence that witnesses often choose the wrong person from a line up
Discussion or questioning about events can alter or add to memory
Cross racial identification is harder to do than identification within race
Elizabeth Rutherford case
Wednesday, March 1, 2023—Week 7
Jury Selection and Challenge for the Cause
Jury Functions
1. To use the wisdom of 12 to reach a verdict
a. Comes from British common law system
b. King would be judge as well
c. Day of the month he would sit and do it
d. Local townsperson would do the municipal
e. Hierarchy of courts system similar
f. Mayor-> lord-> king
g. When you went to testify, you were allowed to bring up to 12 people to speak
on your behalf (i.e., character witnesses)
h. Eventually changed into 12 people from the community in which the crime took
place
i. 12 people, randomly selected, without any ties to the individual, that are able to
make fair and unbiased determination
j. Conscience of the community
k. Representation of the community
l. There is no unbiased sampling of a jury
2. To act as the conscience of the community
3. To protect against out-of-date laws
a. Going against them or asking them to be changed
b. i.e., Morgentaler
4. To increase knowledge of the justice system
Empanelling a Fair Jury
1. Representativeness
a. Voter registration and enumeration lists
i. Young people are very underrepresented on juries because they don’t
own their own homes
ii. Voting rates for individuals between 18-25 in Canada are extremely low
iii. Older skew for a jury poll
b. Gender, race, socio-economic status?
i. Doesn’t have to be proportionate
ii. Should be equal opportunity for anyone living in the community to be
selected
iii. People who don’t make as much money are less secure in their
establishment, meaning they move a lot
iv. Underrepresentation of minority individuals on our juries as well
2. Impartiality
a. Must not be biased, or if biased they must eb able to set aside any bias and
decide the case on the evidence presented at trial alone
i. Impartiality does not mean unbiased
ii. Implicit Attitudes Test (IAT) is being used in ways that are not valid
iii. Our implicit attitudes do not correlate with our behaviour
iv. We are not judged on our thoughts; we are judged based on our
behaviour
v. Allowed to be biased if you can set it aside and decide on verdict based
on fact alone
vi. Bias can’t be set aside completely, it’s not possible
vii. We can consciously try to put it aside and evaluate without it, but we can
never fully put it aside
viii.
Jury Selection: Canada vs. USA

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
In Canada, most cases are judged without a jury
o Most serious indictable offenses are allowed to have a jury
o If there is a possibility of a sentence that is over 5 years, you are allowed to have
a jury
 Indictable offenses without jury: operating a bawdy house, driving with a
suspended license
o Judge alone is more cost and time efficient
In Canada, there is a presumption that jurors are not biased and can be impartial
o Everyone’s good unless you can prove they’re not
In the US, there is a presumption that jurors are inherently biased and must be
challenged
o Questioned before being allowed on the jury
o Takes more time and costs more money
o Everyone is biased and you have to pick who is less biased
In Canada, jurors do not make decisions regarding sentencing (except making
recommendations regarding parole eligibility in murder 2 cases)


o Faint hope clause: grandfathered out in 2012
o Those who were convicted before 2012 can apply, anyone after cannot
o In the US, jurors make recommendations, and they can also decide on the death
penalty (depending on states)
In the US, there are long and personal challenges done by the lawyers and adjudicated
by the trial judge often involving jury consultants
o Trial consultants are not big in Canada, but are in the states, because of the
difference in jury selection
In Canada, the only information available to the lawyers is name, address, occupation,
demeanor and physical appearance
o Have to be granted a Challenge for Cause in Canada in order to ask potential
jurors questions
Trial Consultation

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Jury Selection
o Assisting lawyers with jury selection
o Main job and where the job came from
o O.J. Simpson
 O.J. had more resources to funnel into his case than the state had
 Both sides were looking for black women
 Prosecution did not use all pre-emptory challenges
o Both sides want to empanel the most biased jury possible for their own side
o If both sides use all pre-emptory challenges, then that’ll leave some in the
middle
o Using statistical and empirical analysis to make decisions about jury selection
Witness preparation
o Lawyers can’t tell you what to say, but they can tell you how to say it
o What clothes should be worn and what you should look like
Theory of the case
o Which case the defense is arguing
o What sits best with the public
Cross examination techniques
o Assisting in cross examination techniques of certain people, like expert witnesses
Impact of pretrial publicity
Expert Testimony
Jury Selection

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Mock trials
Focus groups
Surveys
Questionnaire packages
Data analysis
Voire dire (challenge for cause)
o Any evidence that is presented to the judge that is not presented to jury
Effectiveness of Trial Consultants?



Olczak, Kaplan, and Penrod (1991)—in a challenge for cause, lawyers no better at
detecting bias than students
o Cannot use verdict to determine if a person did or didn’t do it
o Most cases that go to trial are ambiguous
o Lawyers performed worse than chance (50%) at detecting bias
Videotape: lawyers performed worse than chance at detecting biased jurors
Moran, Cutler, and DeLisa (1994)—trial consultation may account for 10-15% of
variance and may be marginally effective in equivocal cases
Sources of Bias
1. Interest bias
a. People who have a stake in the outcome
b. Know offender, victim, etc.
c. Some connection to someone involved
d. Up to the potential juror to disclose that they are connected with someone in
the trail
2. Specific bias
a. Information about the case
b. Jurors are not given any information about the case, other than what’s given at
trial
c. People who are exposed to information outside of the legal context are
compromised
d. Not just in the mainstream media, but even information from friends and family
can have an impact on our view of the situation
e. Pretrial publicity and information
3. Normative bias
a. Community influence
4. Generic bias
a. Characteristics of groups or individuals
b. Ethnic/racial bias
c. Sexual orientation
d. Occupation
 Jurors are polled at the beginning of jury selection to ensure they have no connection to
the case, or know or have a relationship with anyone who has a connection with the
case
Remedies for Bias

Publication bans
o Ban media from covering the story
o US doesn’t like publication bans
o Sequestering the jury: have them live in a hotel for the duration of trial
o Prevents jurors from being exposed to outside information
o Canada does allow for a publication ban even though it infringes on s. 2b
o However, we invoke the reasonable limits clause



Adjournment
o Waiting until later
o Too much media coverage, need to take a break
o S. 11 and 10: right to a speedy trial
o If it’s not in time, they dismiss the case
Change of Venue
o Move the trial case somewhere else
Challenge for Cause
Challenge for Cause

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Legal mechanism in place to challenge jurors as to whether they would be impartial with
respect to a particular issue
Must establish a reasonable inference of potential bias in the population
Judge decides whether a challenge is warranted and has final approval of any questions
to be put to the jury
Allowed on grounds of pretrial publicity
Sexual orientation
HIV status
Mental Disability
Offense based challenges (overturned)
Drug involvement
Political or moral attitudes
Police credibility
Race and minority group status
Research

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Prejudice and Stereotyping:
Duncan (1976), Sager and Schofield (1980), Bargh, Chen and Burrows (1996)
o Did not see much change in attitudes
o Overt racism attitudes
Knowledge of stereotypes vs. Personal beliefs (Devine, 1989)
o IAT and other tests
o IAT is being used in a way that is not warranted
o IAT is used to detect unconscious bias
o
Automatic vs. Controlled processes
(Fazio, Jackson, Dunton, and Williams (1995))
Ideas based on anecdotal evidence from observing the Challenge for Cause during jury
selection at the Superior Court of Justice (Toronto)
Prejudice in the Legal System



United States: Field (1979), Klein and Creech (1982), Radelet and Pierce (1985)
o Prejudice against black and Latino people in the us
Canada: Avio (1988) Archival analysis
Pfiefer and Ogloff (1991) jury instructions


Bagby, Parker, Rector, and Kalemba (1994)—bias against white defendant
Motivation to conceal prejudice?
R. v. Parks (1993), 24 C.R. (4th) 81.



Air of reality
o Motion must be a possibility
o Black man who is a drug dealer, kills a white man
o Not necessarily racially motivated
o But there are issues at this time surrounding the racialization of people
Ontario Court of Appeals took judicial notice that… “there is a realistic possibility that a
juror will be influenced in the performance of his or her judicial duty on the basis of
racial bias”
o Judicial notice: the legal system accepts this as true
o Never has to be proven again
Supreme Court of Canada reiterates this precedent in R. v. Williams (1998)
Challenge for Cause



Select first two “triers”
On the basis of the potential juror’s answer to the challenge for cause question(s), the
trier decides whether the potential juror is acceptable or unacceptable to sit on the
upcoming trial
Legally, having a bias does not necessarily indicate you are partial
Swearing in the Triers



“Do you swear that the evidence to be given by you to this court shall be the truth, the
whole truth, and nothing but the truth, so help you God?”
“Do you swear that you will well and truly try whether one of the jurors stands
acceptable or unacceptable to try the accused, and a true verdict give according to the
evidence, so help you God?”
Call first potential juror
Challenge the Potential Juror

“Do you swear that the evidence to be given by you to this court and triers sworn in this
challenge shall be the truth, the whole truth, and nothing but the truth, so help you
God?”
The Challenge for Cause Question (R. v. Parks)

“As the presiding judge will tell you, in deciding whether or not the prosecution has
proven the charged against the accused beyond a reasonable doubt, a juror must judge
the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to
judge the evidence in this case without bias, prejudice, or partiality, be affected in any
way by the fact that the accused is Black?”
Triers Deliberate



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“Triers, how do you find?”
Peremptory Challenges*
If acceptable, trier #1 rejoins jury pool and can be called as a juror still
The challenged juror becomes the next trier


Swear in juror #1
Swear in triers again
Juror #1


“Do you swear that you shall well and truly try and a true deliberance make between
our sovereign lady the Queen and the accused at bar whom you shall have in charge,
and a true verdict give according to the evidence, so help you God?”
“Do you swear that you shall well and truly try whether one of the jurors stands
acceptable or unacceptable to try the accused and a true verdict give according to the
evidence, so help you God?”
Trier Unacceptable


If triers find juror unacceptable or if either lawyer uses a peremptory challenge, the
juror is excused back to the jury office
The challenged juror is free to be called for another jury pool later on
Challenge for Cause




Is it a fair and useful process?
Why not change the process to make it better?
How could the process be made better?
What other procedures could be used?
Wednesday, March 8, 2023—Week 8
The Jury
Jury Functions
1. To use the wisdom of 12 to reach a verdict
a. Based on the idea of the ability to bring in 12 witnesses to speak on your behalf
2. To act as the conscience of the community
a. By choosing 12 people at random form the community, the hope is to have a
decent cross-section of people in the area that the crime was committed
b. Finding guilt or innocence
3. To protect against out-of-date laws
4. To increase knowledge of the justice system
Methods of Study

Post-trial interviews of juries
o Not in Canada (s. 649 C.C.C.)
 Not allowed in Canada
 Any Canadian citizen that has been a juror cannot discuss it afterward
 Jurors can’t discuss why they gave the verdict they did
 This can lead to a lot of issues
 Allowing the jurors to go public with information, it can lead to jurors
being caught in doing something wrong, which can subsequently lead to
a mistrial and a thrown-out case
o Common in the U.S.



After OJ trial, at least 3 of the jurors became wealthy from being
interviewed about their time on the jury of that trial
 We don’t want people who are deliberately trying to get on the jury
o LaFree, Reskin and Visher (1985)
 Interview jurors on sexual assault cases
 They found that extra-legal factors play a disproportionately important
role in the verdict they give
 Stereotypes, outside information, etc.
 After interviewing jurors, they found that conviction was less likely if the
victim had sex outside the marriage prior,
 If defense for sexual assault is mistaken belief in consent (usual defense),
it is extremely difficult to prove
 If the victim is consuming alcohol or drugs during this time, it almost
never gets convicted
 If victim is an acquaintance of their attacker, less likely to get a conviction
o Problems of retrospective accounts
 Think back and remember what it was that motivated their behaviour
 People don’t always have access to the true causal aspects of their
behaviour
o May not appreciate or recognize factors that contributed to their verdict
 Correlational
 Cannot assume that people are less likely to convict based on certain
factors
Archival Analysis
o Avio, 1988
 Found that the black defendant was more likely to get arrested, charged,
and convicted
 High in external validity
o Useful tool for research
o High in external validity
o Not in control of data collection (bias)
 No consistency in conviction
 Using guilty or innocent as your data point is extremely unreliable
 See bias in data collection
 Data collection is different in different areas
 Differential enforcement
 Police forces don’t enforce laws equally everywhere
o These are correlational studies and therefore you can’t infer causation
Jury simulations
o Douglas, Lyon, and Ogloff, 1977
 Looking at the idea of whether or not we tend to see different verdicts as
a result of seeing the autopsy photos we see at trial
o Ensure manipulated variable is responsible for effects
o Brief, less complex
o Verdicts are hypothetical
o Mock jurors
o Look for converging evidence
Models of Jury Decision Making


Mathematical model (explanation-based)
o “mental” calculations are performed by jurors to weigh the strength of each
piece of information and compare it to a decisional criteria for guilt
 Hierarchy of meaning
 Lack of empirical evidence to show that this is what people are actually
doing
 Decisional criteria of guilt for criminal trial is beyond a reasonable doubt
 Civil trial: balance of probabilities
The Story Model
o Pentington and Hastie (1986)
o The jurors engage in active comprehensive processes to organize and interpret
evidence into a coherent whole or narrative story structure
o Jurors try to find the best fit between the story constructed and the verdict
categories provided by the judge
 Out brain is looking for narrative structure and will create it when it
doesn’t exist
 Create the most compelling story that is backed most rationally by the
evidence
o Varied how trial evidence was presented, either witness by witness or in
chronological, event-based order
 When prosecution used witness by witness, and defense used
chronological, it was majority not guilty
 When this was switched, it was majority conviction
o The easier it was to construct a story the more likely a verdict consistent with
that story would be rendered
Judicial Instructions



Alfini and Sales, 1982
Were able to improve juror comprehension of judicial instructions by modifying the
language (psycholinguistic theory)
There has been an attempt to simplify language used by judges in Canada (no studies)
Rape Shield Law

R. v. Seaboyer
o Rape shield law enacted in 1985
o Protect defendant from having their sexual histories brought up in court
o You can bring up information that can discredit their character
o But only if they character is at issue
o 1991, Seaboyer
o You must allow prior sexual history to support honest but mistaken consent
o This was the most common type of sexual assault, acquaintance rape


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o Most common defense is mistaken consent
Exception to rape shield law
o Honest but mistaken belief of consent
Judicial caution
o Explain to jury that they’re only allowed to use this information in a particular
way
o Cannot use against their credibility
o Can be used for whether or not it is likely she consented
Can use sexual history to weigh against victim’s credibility
Judicial Instructions
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“Jurors will disregard evidence”
Hastings (1998)
S. 12 Canada Evidence Act—criminal record can be used to assess credibility
(Hans and Doob, 1976)—criminal record has little impact on credibility but does
improperly influence perceptions of guilt
Judicial instructions do little to remedy this
Research consistently shows the ineffectiveness of judicial instructions to disregard
evidence later ruled to be inadmissible
o Once information is injected into the story, you cannot tell the story without that
information
o Information that is consistent with this narrative is more salient with you
o Information that is counter to you narrative, and it will be less likely to be
noticed or remembered
The “boomerang” effect
Confirmation bias
Jury Deliberations
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Sequestering Juries
Most final group verdicts reflect the initial verdict opinion majority—“majority rules”
Group Polarization
Leniency Bias
o Idea that criminal cases move towards greater leniency the longer the
deliberations go
o Pro-acquittal faction: they are more influential at bringing other jurors to their
side than pro-conviction side
Normative vs. Informational influences
o Normative: based on wanting to be liked and accepted, part of the group
o Information:
o 80% of what juries discuss is facts
12 member juries
Unanimous decisions
Jury Nullification

R. v. Morgentaler


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
1974 overturned acquittal and sentenced to prison (Quebec court of appeals)
1975 brought the Morgentaler amendment
1983 Morgentaler acquitted again and Ont. Court of appeal reverses the verdict
1988 Supreme Court changes the laws
Wednesday, March 15, 2023—Week 9
Civil and Criminal Commitment
Wednesday, March 22, 2023—Week 10
Violence and Risk Assessment
Risk Assessment
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The process of identifying and studying hazards to reduce the probability of their
occurrence
How do we define violence?
Physical injury vs. psychological damage
Actual harm vs. intent
Instrumental vs. reactive
Sexual vs. non-sexual
o Sexual disorders and sexual violence are not predictive of further violence
Prediction in the Forensic Context


To predict is to make a statement about the likelihood of a future event or behaviour
Risk refers to a condition that exists as a function of the presence of
someone/something perceived as dangerous
Risk Assessment vs. Dangerousness


Dangerousness
o Case by case
o Vague
o Stable trait
o Predicts violence
Risk Assessment
o Empirical data
o Specific
o Changes over time
o Prevents violence
Risk Assessment

Identify persons likely to commit violence and develop interventions to reduce risk
o Keep them out of situations where violence is likely
o Relapse prevention model:
o Identify risks
o How to avoid situations that contribute to risk
o They are going to be exposed to one of these risks eventually—behaviour or
actions that will be implemented when you face a risk factor

Predicting future behaviour is extremely difficult (Fundamental Attribution Error)
Purpose of Risk Assessment


Why do we measure it?
o Protect society and the person
To help inform decisions regarding:
o Threat posed by an individual to others
o Treatment options- intensity, modality, and targeting of treatment
 How do we get this person the help that they need
 How intense is the treatment
o Justice decisions (bail, detention, location for detention, LTO and DO
applications)
o Sentencing and dispositional planning
o Supervision and case planning
o Discharge from custody
Risk Markers
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Gender—90% of violent crime done by men
Age—age is inversely related to risk
Previous antisocial and criminal behaviour
Conditional release, parole, and probation violation
Delinquency
Dysfunctional family environment
Physical and sexual abuse as a child
Unemployment
Lack of intimate relationships
Mental illness-schizophrenia and mania
Substance abuse
Sexual deviance
Psychopathy
Conduct Disorder
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Aggression to people and animals
Destruction of property
Deceitfulness or theft
Serious violations of rules
Onset before or after age 10
Mild, moderate, severe
3 or more of 15 symptoms in the past 12 months
Psychopathy
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Continuous variable—Hare’s Psychopathy Checklist (PCL)
Based on personality traits more than observable behaviour
Violence of psychopaths is distinguishable
Retribution and revenge violence
High density offenders

Recidivist with highest frequency
Procedural Aspects of Risk Assessment
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Importance of training and expertise
Best tool/method for your purpose
Utilization of multiple sources of information
Confirmation of the validity of information
Assessment Methods

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Clinical prediction
Structured clinical/professional judgment (often referred to as SPJ)
Actuarial prediction
For each, we need to consider
o What and how relevant or predictive items are selected
o Interpretation
Clinical Prediction

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This process involves a review of the info about a person—the clinician uses experience
and/or intuition to make a judgment about future risk
Base rates
Using psychiatric symptoms and diagnoses as important factors
Rarely have follow-up experience
Communication of risk:
o Specify the person being a risk or categorized
o The combination rule for factors in unspecified permission to use idiosyncratic
items
Actuarial Predictions


Information is based on empirically derived data; variables are statistically
demonstrated to predict risk over a specified period of time
Objective method of combining data to make decisions explicit, structured, systematic
o Statistical procedures used in development
o Initially test large number of variables—demonstrated as important via research
or experience
o Items that add to prediction are included (regression)
o Can include clinically assessed variables
o Commonly utilizes static risk factors only
Actuarial Approach

Designed to predict outcome
o Approach employed by insurance companies
o Likelihood of violence expressed as a relative probability
o Compare offenders to other offenders
o Large samples with normed data for interpretation
 Risk categories
 Percentile rankings
o VRAG, SORAG, STATIC-99, ODARA


Advantage
o Objective, scientific
o Affords constancy and accuracy
o Increasingly more accurate
Disadvantage
o Can be insensitive to change
o Optimization can restrict generalization
Structured Clinical/Professional Judgment
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Attempt to find middle ground
o Moderates the statistical and clinical positions
Rationally developed:
o Items chosen based on research
o And based on clinical experience
Items not empirically optimized
Research has demonstrated they can predict
Interpretation issue
Score adjustment
Types of Factors: Static


Static risk factors are generally unchangeable, historical factors
Static risk factors are good predictors of long-term sexual recidivism
o Find them in current instruments
o Meta-analysis by Hanson and Bussiere
 # of prior sexual offences
Types of Factors: Dynamic


Dynamic factors are changeable/fluctuating, temporally proximate factors
Dynamic factors are candidates for monitoring and intervention efforts but
o Insufficient research to date
o Meta-analysis by Hanson and Bussiere
 Anxiety
Types of Factors: Protective
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Protective factors are static/dynamic factors that ameliorate the effects of risk factors
Statistically associated with lower levels of reoffending/more positive overall
adjustment
Hoge, Andrews and Leschied
o Positive peer relations
o Good school achievement
o Positive response to authority
o Effective use of leisure time
Quinsey, Harris, Rice and Cormier
o Psychosis
Wednesday, March 29, 2023—Week 11
Sentencing
Wednesday, April 5, 2023—Week 12
Review