CALIFORNIA STATE UNIVERSITY, NORTHRIDGE

CALIFORNIA STATE UNIVERSITY, NORTHRIDGE

Effects of Judicial

Instructions and Defendant's Race on Juridical Decisions

A thesis submitted in partial satisfaction of the requirements for the degree of Master of Arts in

Psychology by

Mark Daniel Graham

May 1986

The Thesis of Mark Daniel Graham is approved:

Dr. Robert E. Dear, Ph.D.

Dr. Tyler Blake,

California State University, Northridge i i

Acknowledgments

I would like to thank all my committee members for their support during this research project. A special thanks goes to Dr. Dear for insisting on the use of the theoretically correct statistics used in this project. I learned very much from him. A special thanks also goes to Dr. Shaw, Chairman of this project, for his encouragement and his wisdom. He taught me the finer points of writing research papers.

My greatest thanks goes to Marti, Angel, and Phyl for all their contributions that help made this thesis possible.

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Acknowledgments

List of Tables

Abstract

Introduction

Methods

Results

Discussion

References

Appendices

Table of Contents

Page i i i v vi

1

24

28

38

45

49 iv

List of Tables

Table

1. Numerical Distributions and Percentages of Jury

Verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

2. Numerical Distributions and Percentages of Juror

Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3. Numerical Distributions and Percentages of Jury

Verdicts and Jpror Decisions for 2 x 2 Design .•••• 34

4. Numerical Distributions and Percentages of the

Usage of the Reasonable Doubt Instructions .•••••.• 36

5. Summary Statistics for the 3 x 2 Log-Linear

Model (Jury Verdicts) .•.••••..•.••••••.••••••..••. 77


Model (Juror Decisions)


78

Model (Jury Verdicts) ••••.•••••••.•.•.•••••••••••• 79


Model (Juror Decisions) 80 v

ABSTRACT

Effects of Judicial

Instructions and Defendant's Race on Juridical Decisions by

Mark Daniel Graham

Master of Arts in Psychology

A study was conducted to investigate the effects of judges' instructions and defendant's race on juridical decision-making. Three-hundred and fifty-seven subjects

(mock jurors) , serving in 64 groups (mock juries) of five and six participants each, were exposed to an audiotape version of a courtroom trial, in which testimony about a black or a white defendant was heard under three conditions of judicial instructions: No instructions

(NI), revised patterned instructions (RPI) and revised patterned instructions plus a special instruction (RPIS) , which cautioned against considering irrelevant defendant characteristics as evidence. In all cases, instructions were given prior to the evidentiary testimony.

Appended to the basic 3 x 2 factorial design were two additional conditions, both with a black defendant with either RPI or RPIS instructions given subsequent to the evidentiary testimony. These two post-evidence instruction conditions, combined with the two vi

corresponding pre-evidence instruction conditions, permitted assessment of the effects of the timing of instructions within a 2 x 2 (timing x type of instructions) factorial design. Both jurors and juries were asked to determine the innocence or guilt of the defendant and, if guilty, to assign a prison sentence length.

An interaction was hypothesized between the defendant's race and type of instructions such that any bias due to the irrelevant criterion of race in the NI condition would be correspondingly reduced in the RPI and

RPIS conditions respectively. A second hypothesis was that pre-evidence instructions would lessen the conviction rate compared to post-evidence instructions, because the former suggests to subjects that they should suspend their judgment of guilt until hearing the evidence, whereas the latter does not.

This study did not support either hypothesis. No interaction between defendant's race and type of instructions was obtained for jury verdicts and, although an interaction between these two variables was found for individual juror decisions, i t did not conform to the anticipated one. Instead of systematically less evidence of racial bias in the RPI and RPIS conditions, guilty decisions were more frequent for all defendants except for the black defendant in the RPI condition for whom vii

decisions were split nearly equally between guilt and innocence. As for timing of instructions, contrary to prediction, the post-evidence instructions yielded fewer guilty judgments for both jury verdicts and juror decisions than did the pre-evidence instructions.

These findings, taken together, suggest that explicit cautionary instructions, such as in the RPIS condition, may be counterproductive in attempting to rid judicial decision-making of influence from extralegal criteria. Instead, they raise the possibility that such admonishments may produce reactance among jurors who interpret the instructions as a threat to their capability to evaluate fairly the trial evidence. To reassert a sense of control, jury members may simply disregard such instructions. Moreover, the reduced conviction rate for post-evidence instructions suggests that when explicit cautionary statements come at the trial's end, after opinions have already been formed, jury members may view them as a simple reminder rather than as an attempt to manipulate the formation of their opinions at the outset. Suggestions are made for further research to clarify the role of reactance in the relationship between type and timing of instructions on juridical decision-making. viii

Introduction

At the interface between law and psychology, i t is commonly understood that laws and legal institutions are based on assumptions about human nature, as well as, the determinants of human behavior (Saks & Hastie, 1978).

Among all living creatures, humans alone have been endowed with the freedom to choose whether to follow their instincts or to depart from them. Humans learned that by departing from their instincts, they would need a substitute rule to live by. To avoid chaos and to promote the survival of their species, humans discovered that i t was necessary to accept a degree of disciplined restraint. The law became the way to discipline.

An explanation of how rule by law came into being was offered by McCart (1964) who states, "A single inhabitant of an island has complete freedom. When others are permitted to live on the island, no inhabitant of an island has complete freedom: each must yield some elements of i t . In return, each inhabitant acquires assurance of safety in the exercise of the elements of freedom which each retains. Thus, duties and rights become established and observance by all inhabitants of these duties and rights assures the maintenance of peace"

(p. 1). McCart defines law as the rules of conduct which a society develops and imposes on each member, accompanied by some penalty for nonconformance.

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In America and other countries of the world, the adjudication system is the means for determining if a law has or has not been broken. Golding (1978) states, "The traditional trial, civil or criminal, is a process for answering questions of fact, attendant to which the case is decided by applying appropriate rules of law to the facts as determined" (p. 278).

There are basically two types of trials in America's adjudication system. The first is a bench trial in which there is only a judge, who passes upon issues of the law and who is also the trier of the facts. The second is the jury trial, consisting of a judge who instructs the jury as to the issues of the law and advises them in respect to the facts; and a jury, whose function i t is to determine the facts of the case in accordance with the instructions given by the judge. The seventh amendment preserves the right of an individual to a trial by jury, where the value -of controversy exceeds twenty dollars

(Hunter, 1974).

Social scientists and practitioners of the adjudication system, in recent years, have been putting their knowledge together in order to enhance the functioning aspects of practiced law and to gain more understanding of its process. An example of this merger of knowledge is the development of the National Jury

Project. Legal workers, social scientists, lawyers, and

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other concerned people brought their expertise together to form an applied scientific jury selection system.

This group which consisted of social scientists, Richard

Christie and Jay Shulman, and attorneys Neal Bush and

David Kairys, joined their separate methods of jury selection strategies together to select a jury most favorable to the defense in the popularly known

"Harrisburg 7" trial (Ellison & Buckhout, 1981).

Social scientists have studied many different aspects of America's adjudication system, including the jury selection process, the representativeness of prospective jurors, the relation between jurors' social characteristics and verdicts, the impact of juror attitudes and their perceptions of the parties and of the case, pretrial publicity, rules of law and decision alternatives, the unanimous decision rule, six versus twelve member juries, and juror participation during deliberation (Davis, Bray & Holt, 1977; Ellison &

Buckhout, 1981; Saks & Hastie, 1978; Simon, 1980).

This thesis is concerned primarily with rules of law, which are the instructions given to members of the jury, in reference to general and case-specific matters of law. The judge informs the jury about the procedural matters, outlines the undisputed fact and issues of the case, and explains the relevant laws (McBride, 1969).

The instructions given by the judge are the criteria by

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which the jury evaluates the facts of the case.

The judge is not required to give the instructions in any particular form (Hunter, 1974). However, i t is the court's duty to instruct the jury on the basic issues of the case and the relevant laws even if such a request is not made. Moreover, instructions should always reflect the opposing contentions, as well as the factual evidence in the case. According to Hunter (1974), most instructions to the jury are given at the close of the testimony. There is some tendency, however, to instruct the jury on the nature of the case at the beginning of the trial. The judge also gives instructions during the course of the trial when improper comments or evidence are presented to the jury.

Insofar as a fundamental assumption of the legal system is that jury decisions as to guilt or innocence are based on the "facts" of the case rather than on extraneous factors such as the litigants' appearance, social standing, race, sex, ethnicity, and so forth, the judge's instructions, undoubtedly, play a key role in determining the degree to which this ideal is realized.

Before considering this aspect of jury trials, however, i t is necessary to consider the many studies that suggest that extraneous or extraevidential factors do play a role in shaping jurors' decisions.

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Studies of Extraevidential Evidence and Jury Decisions

A retrospective study, by Bullock (1961), which included reviewing cases of 3644 inmates, suggested that there are racial differences in sentencing patterns by actual juries. In particular, he found that black people were given longer sentences for burglary than white people were given. In addition, blacks, in contrast to whites, were given more lenient sentences for murder and rape of a same-race victim, but received more severe penalties when these offenses involved opposite-race victims. Bolstering these findings is Wolfgang and

Riedels' (1973) retrospective study in eleven southern states which also suggests that racial discrimination exists in the jury system. These researchers found that the death penalty was imposed disproportionately, with blacks receiving the death penalty more often than whites for rape cases.

Several laboratory experiments have found that irrelevant evidence may contribute to the means by which a jury reaches a verdict. Efran (1974) looked at defendant's physical attractiveness and found that males judged attractive defendants to be less guilty and gave them a more lenient punishment than unattractive defendants. Landy and Aronson (1969) manipulated attractive and unattractive characteristics of the defendant and the victim. They found that an attractive

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defendant received a more lenient punishment than an unattractive defendant. Their results were inconclusive in regard to the victim's attractiveness. Izzett and

Leginski (1974), Kaplan and Kemmerick (1974), and

Mitchell and Byrne (1972), have replicated these findings

(Davis, Bray & Holt, 1977). McGlynn, Megas and Benson

(1976), using similar experimental procedures, found a trend for a higher proportion of guilty verdicts for black males as compared to white males. These researchers also found that male defendants received harsher punishment than female defendants. Griffitt and

Jackson (1973), borrowing a technique developed by Byrne

(1971), produced differential attractiveness by manipulating attitude similarity between the jurors and the defendant. Their results, too, revealed leniency in the treatment of an attractive defendant as contrasted to an unattractive defendant.

In general, these laboratory experiments support an attractiveness-leniency hypothesis. There is, however, empirical evidence for exceptions to this hypothesis.

Fishman and Izzett (1974) found that a socially attractive defendant was sentenced more severely when his action had "low" justification (paying a personal debt) rather than "high" justification (paying a large medical bill) • Sentences for an unattractive defendant were not influenced by this variable. Sigall and Ostrove (1973)

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found another exception in that the attractiveness of the defendant interacts with the type of crime the defendant is being tried for. In particular, when attractiveness was unrelated to the crime (burglary), the attractive defendant received a more lenient sentence than an unattractive defendant. When attractiveness was related to the crime (swindling) , the attractive defendant received a more severe sentence than an unattractive defendant.

There are many major criticisms of these studies:

(1) They are mainly case summaries that lack resemblance to real courtroom trials. Other media that approximate a resemblance to courtroom trials are audiotape and videotape recordings of trials. These media exhibit such characteristics as voice tone, facial expressions and other aspects that real courtroom trials exhibit, whereas a case summary does not provide any human characteristics; (2) Although they indicate influences on individual jurors, they do not contain an actual deliberation process, which may eliminate the use of irrelevant factors (Davis, Bray & Holt, 1977); (3) The court's rules of law are not included in most of these experiments. These rules of law instruct the jury on how to evaluate the evidence and without them the jurors may choose any means to evaluate the defendant's innocence or guilt; and (4) Many of these studies, such as Landy and

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Aronson's (1969), have used sentence length for the dependent variable. This is not analogous to what is common practice in most states. It is the judge, in most states, who passes sentence upon a defendant who has been found guilty. In passing sentence, the defendant's character, degree of dangerousness, and prior record are all part of the judge's legal requirement to use discretion (Ellison & Buckhout, 1981). Many of these studies have manipulated attractiveness in this way and have asked the jurors to pass sentence, thereby performing the role of judges rather than jurors.

Some researchers have used group deliberation in their experiments. However, the jurors in these studies were not required to reach a group decision. One study by Izzett and Leginski (1974) suggests that the effects of defendant attractiveness may be lessened by group discussion. Mock jurors were required to sentence a defendant before and after ten minutes of discussion.

Discussion took place in groups ranging from four to six persons. Prior to deliberation the unattractive defendant was given a significantly more severe sentence than the attractive defendant. Discussion did not seem to affect the sentences given to attractive defendants, but jurors who sentenced the unattractive defendant became much more lenient. Discussion seemed to eliminate the initial tendency of jurors to pass sentence based on

8 p •

the defendant's unattractiveness.

Other studies have also assessed the effects of discussion on jurors' decisions. In contrast to Izzett and Leginski (1974), Rumsey and Castore (1974) found leniency effects for the attractive defendant both before and after discussion, while Laughlin and Izzett (1973) found leniency shifts only after discussion. Although the results of these studies are not consistent, they do call into question the validity of making inferences about jury behavior based on data for noninteracting jurors. The inconsistency on how discussion interacts with attractiveness may be due in part to how attractiveness is defined. In the Izzett and Leginski

(1974) study, attractiveness was defined as the defendant's character, prior record, and degree of dangerousness. In the Laughlin and Izzett (1973) study, attractiveness was defined as the degree of jurordefendant attitude similarity. The discussion process may have centered on the defendant's attractiveness in the Izzett and Leginski (1974) study because these factors may have appeared more noticeable and, therefore, considered more irrelevant than the defendant's attractiveness in the Laughlin and Izzett (1973) study.

Bray, Struckman-Johnson, Osborne, Mcfarlane and

Scott (1978) had six-person mock juries listen to a simulated murder trial. The defendant's social status

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was varied either high or low. The authors reported that after deliberation, no sentencing pattern existed based on social status for group sentencing. However, in reviewing this study, there was no significance in sentencing pattern for individual jurors before or after deliberation. This suggests that social status had no significant effect in this particular study and, therefore, deliberation did not eliminate any effect of social status since none was present to be eliminated.

These studies have added realism to the research of jury behavior by allowing the jurors to deliberate.

Still, most of these studies use individual decisions rather than the group decisions made by actual juries.

However, as a whole, the studies do suggest that individual jurors who are permitted group discussion reach different verdicts than individual jurors who are not permitted group discussion. Some of these studies have also added to realism by using methods such as audiotapes in presenting a trial to individual jurors or to juries, as compared to most research that has typically used summarized, written transcripts of cases.

Studies of Judicial Instructions and Jury Decisions

Even though attempts to add realism to studies of jury decisions such as those mentioned above are to be lauded, a major criticism still remains. The criticism is that the jurors or juries typically are not given

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instructions on how to evaluate evidence in a trial. As mentioned earlier i t is the judge who instructs the jury on how to evaluate a specific case. The most important instructions the judge gives the jury are probably the presumption of innocence and reasonable doubt.

Presumption of innocence is defined, in Hunter's (1974)

Federal Trial Handbook, as follows: "The accused in a criminal case is presumed to be innocent until proven guilty beyond a reasonable doubt. The law presumes that a person charged with a crime is innocent until he is proven by competent evidence to be guilty. This presumption stands unless i t has been removed by evidence proving the defendant guilty beyond a reasonable doubt"

(p. 165). Reasonable doubt is defined as follows: "A reasonable doubt is an actual doubt in the mind of the juror that he is conscious of after going over in his mind the entire case, giving consideration to all the testimony and every part of it. If he then feels uncertain and not fully convinced that the defendant is guilty, and believes that he is acting in a reasonable manner, and if he believes that a reasonable man in any matter of like importance would hesitate to act because of such a doubt as he is conscious of having, that is reasonable doubt, of which the defendant is entitled to have the benefit" (Hunter, 1974, p. 166). Given along with these two major instructions are also many other

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specific instructions, as well as general instructions.

All of these instructions inform the jury on how to evaluate the evidence of the trial. Kerr et al. (1976), using mock jurors, presented subjects with one of three conditions of reasonable doubt. One condition was a lax definition, which was assumed to produce more guilty verdicts. Another condition was stringent, and was assumed to produce fewer guilty verdicts. The third condition was no definition. The results supported the hypothesis that a lax definition of reasonable doubt would produce more convictions. The third condition, "no definition" produced a conviction rate that fell between the other two.

A study by Simon (1967) looked at the relationship between judges' instructions and two separate legal definitions of insanity, the Durham rule and the

M'Naghten rule. The Durham rule states, "If a defendant was suffering from a mental illness or disease at the time he committed the illegal act for which he was charged, and if the act was a direct result or product of the illness, he may be declared not guilty by reason of insanity" (Simon, 1967, p. 8). The M'Naghten rule states, "If a defendant cannot distinguish right from wrong, he may be declared not guilty by reason of insanity" (Simon, 1967, p. 8). The results showed that when the judge instructed the jurors under the M'Naghten

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rule the juries' decisions resulted in more convictions than when the Durham rule was used. These studies lend support to the notion that jurors are listening to the judge and that his or her instructions have an effect on jurors' decisions: Other studies have found similar results (Green, 1967; Kassin & Wrightsman, 1979; Kline &

Jess, 1966; Oros & Elman, 1979; Sealy & Cornish, 1973a).

In contrast to the above, studies conducted by

Mitchell and Byrne (1972), Sue, Smith, and Caldwell

(1973), and Sue, Smith, and Gilbert (1974) found evidence to suggest that judges' instructions are not always followed. In particular, Mitchell and Byrne (1972) found that high authoritarian jurors did not follow the judge's instructions about irrelevant information, whereas low authoritarian jurors did comply with judges' instructions. Sue, Smith, and Gilbert (1974) found that female jurors, regardless of which instructions were given, judged defendants guilty more often than male jurors, when pretrial publicity provided very damaging and relevant evidence. Sue, Smith, and Caldwell's (1973) research suggests that jurors do not follow judges' instructions to disregard inadmissible evidence, which is relevant and damaging, when the evidence for a murder case is weak.

The apparent discrepancy of results among most of the studies on the effectiveness of judges' instructions

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may not be real. In the studies which supported the position that jurors and juries follow judges' instructions, the instructions were manipulated by definition in most cases, and the jurors and juries responded accordingly. In the studies which suggest that jurors and juries do not follow judges' instructions, the evidence was manipulated by relevancy and by the degree to which i t was damaging. Therefore, the conflicting results on the effects of judges' instructions may be due to the different experimental circumstances (manipulation of judges' instructions versus manipulation of the evidence's relevancy and to the degree i t is perceived as damaging). This discrepancy of results may have been eliminated if jurors were given the opportunity to deliberate, as in the Sealy and Cornish (1973a) study.

These researchers found that when jurors were instructed to disregard the defendant's prior convictions and were given the opportunity to deliberate, significantly fewer guilty verdicts were produced than when jurors were not instructed to disregard the defendant's prior convictions and were given the opportunity to deliberate. A study by

Hans and Doob (1976), which used a similar procedure, found the opposite effect. These conflicting findings suggest that further research is needed to explain these results. The findings of Hans and Doob's study, along with the findings of studies which suggest that jurors do

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not follow judges' instructions, may possibly show that if admissible or inadmissible evidence is perceived by jurors and juries as relevant; then this evidence will be incorporated into an evaluation of a defendant's innocence or guilt.

In evaluating the effectiveness of the judge's instructions to the jury, another aspect must be considered. Elwork, Sales, and Alfini (1977) found a common criticism to be that the layperson, who serves as a juror, does not understand the judicial language used by the judge. A study by Hervey (1947) found that 40% of

375 sampled jurors did not understand the judge's instructions. Recent studies on jurors' ability to understand judges' instructions support these findings

(Charrow & Charrow, 1979; Elwork, Sales & Alfini, 1977~

Elwork, Sales & Alfini, 1982; Severance & Loftus, 1982;

Strawn & Buchanan, 1976). For example, Strawn and

Buchanan (1976) found that 50% of 116 subjects believed that i t was up to the defendant to prove his or her innocence. Their study involved having the jurors view a videotaped trial, which provided the jurors with the

"presumption of innocence" and "burden of Proof" instructions.

In the last twenty-five years, "standardized" or

"patterned" instructions have been adopted by more than forty states (Nieland, 1978). The acceptance of

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patterned instructions has been assumed to increase jurors' comprehension, to be more cost effective in preparation and to result in fewer appeals and reversals.

Nieland (1978) points out that patterned instructions can be more cost effective in preparation for a trial; they can reduce the research normally required for preparing instructions, and they can also reduce the time spent in conference on the settlement of instructions. Illinois judges have reported that the process of settling on what instructions are to be used with attorneys and reading instructions to the jury has been reduced from three hours to one-half hour. The judge also saves time by eliminating the process of drafting the instructions

(Nieland, 1978). Nieland's (1978) research did not show an overall reduction in appeals and reversals. In reference to appeals, Nieland (1978) points out that many other factors may affect them, such as the law in a particular area, attorney attitudes, population changes, crime rates, the state of the economy and changes in appellate procedures. In a later study, Nieland (1979) found that patterned instructions may reduce the amount of reversals based on allegations, specifically that the law was incorrectly stated.

Elwork, Sales and Alfini (1977) conducted a study to determine if the judge's instructions could be made more comprehensible. Their study consisted of three

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conditions of instructions: no instructions, Michigan

Civil Pattern Instructions, and a revised set of instructions. The latter was designed to eliminate problems of vocabulary, grammar and organization. It was found that patterned instructions did not significantly increase comprehension, as compared to the no instructions condition. However, the revised instructions provided a significant increase in comprehension as compared to the no instructions and patterned instruction conditions. Charrow and Charrow

(1979) also conducted a study using psycholinguistic theory and found that i t enhances the comprehension of patterned instructions. However, Severance and Loftus

(1982) have pointed out that i t is important to retain the legal accuracy of jury instructions when making language revisions. Although Elwork, Sales and Alfini

(1977) and Charrow and Charrow (1979) made excellent contributions to the development of jury instructions, these researchers did not make evaluations of the instructions in order to determine whether or not they are legally accurate. Following up on their own point,

Severance and Loftus (1982) applied an interdisciplinary approach to revising patterned instructions, which frequently have been found difficult to comprehend. They used psycholinguistic principles for improving understanding, along with evaluations by lawyers and

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judges, to maintain the legal accuracy. Two different measures were used to determine jurors' ability to understand instructions given to them. Comprehension was measured by a multiple choice format. The ability to apply jury instructions was measured by Likert scale questions. The latter questions, which consisted of ten factual situations, were designed to determine if jurors concurred with the stated solutions.

The overall results suggested that revising jury instructions, by using psycholinguistic principles and legal evaluations, improves jurors' ability to apply jury instructions and may improve comprehension of those instructions. Jurors in the revised instructions condition produced fewer guilty verdicts than jurors in the other conditions. Since the trial consisted of ambiguous facts, the relationship between verdicts and instruction conditions may be due to an increased ability of jurors to understand and apply the law, when revised instructions are given. Multiple regression analysis appears, to some extent, to support this notion. Content analysis of jury deliberation indicated that jurors who received instructions talked more about relevant facts and this was most apparent in the revised instructions condition.

Kassin and Wrightsman (1979) have pointed out that the judge is not required by law to present jury

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instructions at any specific time during the trial and that the timing of presentation of judicial instructions had not previously been investigated. Therefore, these researchers investigated this facet and found that jurors who were presented with instructions prior to the evidence had fewer convictions than jurors presented with instructions after the evidence. Kassin and Wrightsman explain these findings based on past research by Jones,

Rock, Shaver, Goethals and Ward (1968) and Walker,

Thibaut and Andreoli (1972) which suggests a primacy effect in the perception of unfolding behavior for both person perception and courtroom research. That is, as behavioral sequences are observed, there is a tendency for the observer's perceptions to be influenced disproportionately by early information rather than by later information. Since the prosecution always goes first in our legal system, the primacy effect would favor conviction. Pre-evidence instructions might mitigate the primacy effect and result in a lower conviction rate, whereas post-evidence instructions might not. Judge

Barrett Prettyman (1960) explains this phenomenon well.

He states, "What manner of mind can go back over a stream of conflicting statements and alleged facts, recall the intonations, the demeanor, or even the existence of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgment

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given him for the first time after the events; the human mind cannot do so ••• " (Kassin & Wrightsman, 1979, p.

1878).

The findings of Kassin and Wrightsman (1979) may have implications for the courtroom as they suggested in their own research. For example, if the judge admonishes the jury to presume the defendant innocent until proven guilty prior to the trial evidence, the jury may be able to maintain its presumption of innocence when evaluating the evidence of the case as i t unfolds.

The Present Investigation

The present investigation was concerned with the development and effectiveness of understandable instructions that judges can present to juries, which will help reduce the influence of irrelevant criteria on juridical judgments. Examples of irrelevant criteria are the defendant's sex, race, religion, social and occupational status. This study evaluated the effects of the defendant's race on juries' judgments. Retrospective field studies (Bullock, 1961; Wolfgang & Riedel, 1973) suggested that discrimination against black people is prominent when sentencing defendants. Since authentic jurors deliberate and make group decisions, and certain studies have suggested that jurors who deliberate may make different decisions from those who do not deliberate, the present study used jurors who deliberated

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and made decisions as a group. Moreover, the present study presented the trial in an audiotape format, which was thought to be more realistic than the case summaries presented to jurors in many past studies.

The trial was the same as was employed in the Kassin and Wrightsman (1979) study and included three different types of instructions. One condition contained no instructions to the jury. A second condition contained the revised patterned instructions used by Severance and

Loftus (1982) which included statements on burden of proof, presumption of innocence, reasonable doubt, and other general instructions taken from their study. These revised patterned instructions were based on standard patterned instructions used by the state of Washington for criminal cases but, according to Severance and

Loftus, they are more comprehensible and more applicable than the standard patterned instructions from which they were derived. Moreover, their revision attempted to maintain legal accuracy, unlike revised instructions used in other studies. A third condition combined the revised patterned instructions with a special instruction which directed attention to and cautioned against considering as evidence the defendant's characteristics of race, sex, marital standing and the like. Unlike the Severance and

Loftus instructions, the legal accuracy of this special instruction was not determined. The purpose of the

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special jury instruction was to promote awareness of possible prejudices and to encourage the jurors to focus only on the facts of the case.

Kassin and Wrightsman's (1979) research demonstrated that jury instructions presented prior to the evidence resulted in a reduced conviction rate. This occurred possibly because subjects were more likely to presume the defendant to be innocent at the outset and were more able to evaluate the trial evidence throughout in light of the instructions. Contrariwise, subjects who received postevidence instructions may have been more likely to presume the defendant to be guilty at first and were not able to evaluate the trial evidence as the case unfolded with the instructions in mind. The basic design of the present study provided instructions before exposure to trial evidence. Some added experimental conditions provided post-evidence instructions, however, for comparison purposes.

The present investigation was concerned with the effects on juridical decision-making of the type of jury instructions given and the irrelevant criterion of the defendant's race (black vs. white). The aim was to determine which, if any, type of jury instructions would influence juries' decisions on both the type of verdict rendered and the length of prison sentence given. It was hypothesized that juridical decisions would result from

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an interaction between jury instructions and the defendant's race. Without instructions, i t was anticipated that juries would be harsher toward black defendants than white defendants. However, i t was further anticipated that, the Severance and Loftus'

(1982) revised patterned instructions would reduce the initial discrepancy in punishment due to racial discrimination, and that the revised pattern instructions, combined with the special instruction, would further reduce the discrepancy in punishment.

The reader will recall that Kassin and Wrightsman's

(1979) study suggested that pre-evidence instructions may produce a lower conviction rate than post-evidence instructions. Two post-evidence conditions, using only black defendants, were appended to the basic design to compare with two pre-evidence conditions, also using only black defendants. With the pre-evidence conditions, the juries received either the revised patterned instructions or they received the revised patterned instructions combined with the special instruction. The same instructions were provided for the juries within the post-evidence conditions. It was hypothesized that a main effect for timing of instructions would occur such that pre-evidence instructions would produce a lower conviction rate than post-evidence instructions.

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Method

Subjects and Design

Three hundred, fifty-seven subjects, from California

State University, Northridge's psychology subject pool, participated in this investigation. Sixty-four groups of five and six participants each were formed. Each group, functioning as a whole, produced a single verdict. If the defendant was found guilty, the jury also provided a prison sentence. The individual jurors also made these same juridical decisions prior to the jury deliberation process. The experiment took one hour and fifteen minutes to complete for each group. Each group was randomly assigned to one of eight conditions, which comprised a 3 x 2 factorial design with two additional appended conditions. The sampling procedure had a fixed number of eight groups assigned to each of the eight conditions. The first factor was type of instructions including; no instructions (NI), revised patterned instructions (RPI) and revised patterned instructions plus a special instruction (RPIS) . The second factor was the race of the defendant, which was either black or white. This was the basic design for the 3 x 2 factorial. In each of these conditions, the instruction conditions were implemented prior to the start of the trial. In the two appended conditions, the instructions

(RPI vs RPIS) were presented at the end of the trial and

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for the black defendant only. These appended conditions, which had their instructions (RPI vs RPIS) at the end of the trial for a black defendant, together with the conditions that had their instructions (RPI vs RPIS) at the beginning of the trial for a black defendant, provided a 2 x 2 factorial design that was used to evaluate the effects of instructions' timing. Based on the findings of Kassin and Wrightsman (1979), the instructions given to the juries prior to the trial would provide a means for the juries to evaluate the trial as i t unfolded and thereby reduce the use of an irrelevant factor (race) • This notion should produce fewer guilty verdicts than the conditions that presented the instructions after the trial.

Procedure

Upon arriving, subjects were told that they would be observing a recording of a real trial and that they would be functioning as jurors of the trial. Subjects were also told that their memory of certain trial aspects would later be tested. This was done to insure that subjects would pay better attention to the trial.

Subjects were also told that there would be no talking while the trial was being presented, and that they should be attentive to the trial. In addition, subjects were told not to take notes during the trial. Subjects were told this in order to retain parallel procedures to an

25

actual jury trial. They were given a general background of the case prior to the trial, which also included a newspaper picture of a person which was alleged to be the defendant. The manipulation of race was made by varying the picture (black vs white) and by varying the defendant's voice on the tape recording, to be consistent with the picture being viewed. Two pictures of each race were utilized in an attempt to insure that race was the stimulus characteristic attended to and not other irrelevant stimulus characteristics such as hair length, beards, eye color, etc. Subjects were informed that they would have to render a verdict and that i t was necessary for the jury to reach a unanimous decision of innocence or guilt for the defendant to be found innocent or guilty. If their verdict was not unanimous, jurors were informed that they would constitute a hung jury. If they found the defendant guilty they were required to determine the length of the defendant's prison sentence.

Next, the experimenter activated the tape recording of the trial. The audiotape consisted of the trial content previously used by Kassin and Wrightsman (1979; see appendix A), either alone, or, according to condition, accompanied by the revised patterned instructions used by

Severance and Loftus (1982; see appendix B), or the revised patterned instructions plus a special instruction on the defendant's characteristics (See appendix B).

26

When jury instructions were to be presented, they always preceded the trial material except in the two appended conditions. Upon completion of the trial, the individual jurors were given a short questionnaire which asked them to render a verdict for the defendant. It also asked them to determine the length of the defendant's sentence if they found the defendant guilty. Then the jury was given a maximum of fifteen minutes to deliberate and to make the same juridical decisions as a group. The deliberation was recorded to evaluate certain aspects of the discussion. Counts were taken on the reasonable doubt instruction referral rate and whether the instruction was used to support the arguments of the defense or of the prosecution. Counts were also taken on the times the defendant's race was mentioned.

27

Results

Jury verdicts and individual juror decisions are displayed in tables 1 and 2, respectively. As can be seen in table 1, 37.5% of the juries returned guilty verdicts, 21.9% rendered not guilty verdicts, and 40.6% could not reach a verdict and constituted hung juries.

As for individual juror decisions, shown in table 2,

63.9% voted guilty, and 36.1% voted not guilty. These latter findings compare somewhat favorably with those obtained by Kassin and Wrightsman (1979) who reported 53% of their jurors voted guilty, and 47% voted not guilty.

This study contained two major designs, a 3 x 2 factorial that evaluated three levels of instructions and two levels of the defendant's race. The other design was a 2 x 2 factorial which consisted of two appended conditions. One was a condition of instructions before the evidence and the other a condition of instructions after the evidence. These two appended conditions together with two of the three instruction conditions constituted the 2 x 2 design.

Each design with respect to both jury verdicts and individual juror decisions was analyzed assuming a structure of logarithms for the class probabilities (loglinear model) • This log-linear model resembles the familiar ANOVA model in form and its chi-square statistic was used because of the dichotomous nature of the

28

Table 1

Numerical Distributions and Percentages of Jury Verdicts

Jury Verdicts

Judicial

Instructions

Race

NI black white

RPI B black white

Guilty % Not Guilty % Hung %

5 (62.5) 0 (0) 3 (37.5)

3 (37. 5) 0 (0) 5 (62. 5)

------------------------------------------

8 (50. 0) 0 (0) 8 (50.0)

3 ( 37. 5) 4 (50.0) 1 (12. 5)

5 (62. 5) 1 ( 12. 5) 2 (25. 0)

------------------------------------------

8 (50. 0) 5 ( 31.3) 3 (18. 7)

RPIS B black white

4 (50. 0) 0 (0) 4 (SO. 0)

3 (37. 5) 2 (25. 0) 3 (37. 5)

------------------------------------------

7 (43.8) 2 (12. 5) 7 (43.7)

RPI A black

RPIS A black

1

0

(12. 5)

(0)

3

4

(37. 5)

(50. 0)

4

4

(50.0)

(50.0)

Totals 24 (37. 5) 14 (21. 9) 26 (40.6)

NI no instructions

RPI revised patterned instructions

RPIS revised patterned instruction with special instruction

A Represents instructions after the trial.

B Represents instructions before the trial.

29

Table 2

Numerical Distributions and Percentages of Juror Decisions

Juror Decisions

Judicial

Instructions

Race

NI Black

White

RPI

RPIS

RPI

RPIS

B Black

White

B Black

White

A

A

Black

Black

Guilty % Not Guilty

30 (68.2) 14 ( 31. 8)

34 (72. 3) 13 ( 27.7)

-----------------------------

64 (70. 3) 27 (29.7)

24 (51.1) 23 (48.9)

36 (81. 8) 8 (18. 2)

-----------------------------

60 (65. 9) 31 (34.1)

34 (77.3) 10 (22. 7)

32 (73. 7) 12 (26.3)

-----------------------------

66 (75. 0) 22 (25.0)

26 (57. 8) 19

19

(42. 2)

(45. 2) 23 (54.8)

%

Totals 228 (63.9) 129 (36.1)

NI - no instructions

RPI - revised patterned instructions


A - Represents instructions after the trial.

B Represents instructions before the trial.

30

variables. However, a word of caution is warranted in the use of this chi-square statistic. It is designed for large sample sizes such as the sample of jurors and not for small sample sizes such as the sample of juries used in this study. The interested Reader is referred to

Tables 5 8 in Appendix C for the summary statistics of the Log-Linear Model for both the 3 x 2 and 2 x 2 designs used in the present study.

Considering first the 3 x 2 design, the predicted interaction between type of instructions and defendant's race was not obtained for jury verdicts, chi-square(4df)

= 5.52, p = n.s. As table 1 shows, in the NI condition, the percent of guilty verdicts for the black defendant

(62.5%) did exceed that for the white defendant (37.5%), with uncertainty (hung juries) characterizing the remaining verdicts in this condition. However, the expectation that the RPI and RPIS conditions would systematically reduce the racial bias was not upheld.

Rather, in the RPI condition, the pattern of guilty verdicts was exactly reversed with white defendants judged guilty more often (62.5%) than black defendants

(37.5%). Moreover, the uncertainty that characterized many of the verdicts in the NI condition, was replaced with heightened certainty both about the black defendant's lack of guilt (50%) and the white defendant's guilt (62.5%). The inclusion of the specific instruction

31

(RPIS) restored slightly the racial bias with black defendants receiving more guilty verdicts (50%) than white defendants (37.5%). In addition, a degree of uncertainty returned, with most of the remaining verdicts constituting hung juries.

Although an interaction was not obtained, the verdicts rendered did depend on the type of instructions, chi-square(lOdf) = 18.7, p < .05. Specifically, the RPI condition produced considerably more not guilty verdicts

(31.3%) than did the NI (0%) or RPIS (12.5%) conditions.

This percentage of not guilty verdicts in the RPI condition was primarily due to less uncertainty, that is, fewer hung juries in that condition (18.7%) than in the other two conditions (NI =50%, RPIS = 43.7%).

Turning to examine individual juror decisions shown in table 2, an interaction between type of instructions and defendant's race was obtained, although not the predicted one, chi-square(2df) = 6.77, p < .05. Instead, of systematically reducing a tendency to judge the black defendant more often guilty than the white defendant, all instructions resulted in a preponderance of guilty decisions regardless of defendant's race. The sole exception to this was the RPI condition with a black defendant, wherein decisions were distributed nearly equally between guilty and not guilty.

With respect to timing of instructions i t was

32

predicted that pre-evidence instructions would reduce the conviction rate compared to post-evidence instructions.

Relevant results are shown in table 3 which contains both jury verdicts and juror decisions for the partially appended 2 x 2 (type of instructions x timing of instructions) design. Although a main effect of timing was obtained, i t was opposite to prediction for both jury verdicts and juror decisions. When instructions were given before the trial, 43.8% of the juries returned guilty verdicts with the rest of the juries split nearly equally between not guilty (25.0%) and hung (31.2%) verdicts. When instructions were given after the trial,

6.3% of the verdicts were guilty, with the rest again split nearly equally between not guilty (43.7%) and hung verdicts (50.0%), chi-square(4df) = 10.4, p < .05. An identical pattern of results was obtained for juror decisions. Instructions given before the trial produced

63.7% guilty and 36.3% not guilty decisions; instructions given after the trial produced 43.7% guilty and 56.3% not guilty decisions, chi-square(2df) = 10.04, p < .05. In addition to the above results, the 2 x 2 design yielded a significant main effect of type of instructions on individual juror decisions and a marginally significant interaction between type of instructions and timing of instructions on jury verdicts. Table 3 shows that in the

RPI condition, juror decisions favored not guilty (53.3%)

33

Table )

NumeriC•l! Dlstributtons ilnd Pcrccntdges of Jury Verdicts and

Juror Dec~s~ons ~

Jury Verdicts

Judicial Guilty

Instructions Tim1ng n \

Not Guilty Hung n \ n %

Juror Dccis1ons

Guilty n \

Not Guilty n l

RPI Before 3 (37.5) 4 (50. 0)

After

( 12.5)

112. 5) 3 (37.5) 4 (50.0)

4 ( 25. 0) 7 (43.8) 5 (31.2)

24 (51.1) 23 (48.9)

19 (42.2) 26 (57.8)

43 (46. 7) 49 (53. 3) Subtotal

RPIS

Subtotal

Total

Before 4 (50.0) 0 (00.0) 4 (50.0)

After 0 (00.0) 4 (50.0) 4 (50.0)

4 (25.0) 4 (25.0) 8 (50.0)

8 (25.0) 11 (34.4) 13 (40.6)

34 (77.3) 10 (22.7)

19 (45.2) 23 (54.8)

53 (61.6) 33 (38.4)

96 (53.9) 82 (46.1)

RPI revised pattern instructions

RPIS revised pattern instructions with special instruction

34

over guilty (46.7%), whereas an opposite pattern prevailed in the RPIS condition (not guilty = 38.4%, guilty= 61.6%), X2(2df) = 6.85, p < .05. The interaction referred to immediately above was due to the fact that instructions given before the trial reduced uncertainty in the RPI condition (guilty= 37.5%, not guilty = 50.0%, hung = 12.5%) relative to the RPIS condition (guilty = 50.0%, not guilty= 0%, hung =

50.0%), chi-square(2df) = 5.91, p < .06.

A final point of interest concerns analysis of the deliberation process which revealed differential usage of the reasonable doubt instruction. A count was made of the number of times reasonable doubt was mentioned on behalf of the defense or the prosecution and these data are shown in Table 4. A two-way interaction was obtained between type of instructions and defendant's race on reasonable doubt usage. Specifically, reasonable doubt was mentioned more often for the prosecution than for the defense in all but two cases. These exceptions included the RPI - black defendant condition where reasonable doubt for the defense (65.8%) exceeded that for the prosecution (34.2%) and the RPIS - white defendant condition where reasonable doubt for the defense (52.9%) exceeded that for the prosecution (47.1%), chisquare(2df) = 8.15, p < .05. For the 2 x 2 design there were no main or interaction effects in regards to the

35

Table 4

Numerical Distributions and Percentages of the Usage of the

Reasonable Doubt Instructions

Judicial

Instructions

Race

NI Black

White

RPI

RPIS

Black

White

Black

White

RD for Defense n %

14

17

(31.1)

( 42. 5)

25

19

7

18

Reasonable Doubt Usage

(65.8)

(38.0)

(41.2)

(52.9)

RD for Prosecution n %

31

23

13

31

10

16

(68.9)

(57.5)

(34.2)

(62.0)

(58.8)

(47.1)

Total 100 (44.6)

NI no instruction

RPI revised patterned instructions

124 (55.4)


36

usage of the reasonable doubt instructions.

A summary of other statistics shows of the 64 juries in the study, 12 of them mentioned the race of the defendant during the deliberation process. All 12 juries correctly identified the race of the defendant and, importantly, the defendant's race was mentioned only when the defendant was black. Of the juries with initial majority verdicts, 94.4% remained with a majority verdict and in many cases, initial majorities ended as a unanimous decision. Finally, among both juries and jurors who determined the defendant to be guilty, no effects were found with regard to prison sentence length.

37

Discussion

The present investigation did not find the expected interaction between judicial instructions and defendant's race on juridical decision-making. There was no interaction on jury verdicts and, although an interaction was obtained on juror decisions, i t did not conform to the expected one. Instead, all defendants were more often judged guilty than not guilty except for the black defendant in the RPI condition for whom decisions were split nearly equally between guilty and not guilty. The anticipated interaction was predicted on the expectation that racial bias would be evident in the NI condition with black defendants judged guilty more often than white defendants. However, not even this initial bias was obtained. One possible explanation for the lack of a systematic bias with regard to race is that the introductory psychology students (subjects) had no prejudice to direct upon the defendants. The absence of a racial effect is consistant with Stephen's (1975) review which indicates that race does not directly affect either jury verdicts or the sentencing behavior of judges in actual jury trials.

The RPI condition appeared to produce least uncertainty (hung juries) with regard to jury verdicts for both the black and white defendants. The reduction of hung juries in this condition was accompanied by

38

increased certainty both, about the black defendant's lack of guilt and about the white defendant's guilt.

This differential effect of the RPI condition, on the black and white defendants, occurred possibly because juries within each race condition may have had somewhat different points of focus with respect to the trial. The revised patterned instructions emphasized the presumption of innocence until proven guilty and the necessity of proving guilt beyond a reasonable doubt. Assuming juries and jurors attempt to act in a conscientious manner, these instructions may have caused juries of the black defendants to pay more attention to the defendant's race and to their own possible biases toward the defendant.

Indeed, the present findings do support the notion that juries pay more attention to the black defendants' race, inasmuch as race of the defendant was mentioned during deliberation only when the defendant was black. These juries, then may have been more attentive to the possibility of a prejudicial judgment and, consequently, were more lenient toward the black defendants. With respect to juries with white defendants, race did not appear to be an important consideration, insofar as i t was never mentioned during deliberation. These juries focused more likely on other aspects of the trial (viz., evidence) •

As previously indicated, individual juror decisions

39

also displayed a lenient tendency toward black defendants in the RPI condition. Referral to the reasonable doubt instructions suggests that juries were more lenient and cautious toward the black defendants in the RPI condition than in any other instruction condition. The reasonable doubt referral rate for the black defendant in the RPI condition ranged between 12.9% to 34.7% higher than in any other Instruction condition.

Inspection of the RPIS condition appears to reinstate a degree of uncertainty (hung jury verdicts) among juries. Here again the effect was differential with regard to defendant's race. The not guilty verdicts for the black defendants in the RPI condition became mostly hung jury verdicts in the RPIS condition, whereas the guilty verdicts for the white defendants in the RPI condition were reduced somewhat and split equally between not guilty and hung verdicts in the RPIS condition.

Also, among individual jurors, decisions of guilt were proportionately higher for black defendants in the RPIS condition than for black defendants in the RPI condition.

With respect to individual juror decisions for white defendants, the NI, RPI, and RPIS conditions were relatively equivalent among each other with the jurors more often than not favoring decisions of guilt. The

RPIS condition was expected to reduce the usage of the irrelevant factors, specifically the defendant's race, by

40

juries and jurors when evaluating the case. When this instruction was presented, however, juries and jurors became more conviction prone toward the black defendant than toward the black defendant in the RPI condition.

Brehm's (1966) theory of reactance claims that people like to feel that they are in control of their behavior.

When this control is threatened or reduced, the individual attempts to regain the control that was lost.

The juries and jurors may have perceived the RPIS condtion, which contained an instruction that explicitly told them not to consider the race of the defendant as evidence when evaluating the trial, as a threat to their ability to control their own prejudice while evaluating the trial evidence. To reestablish a sense of control, juries and jurors may have neglected the instructions that call attention to the defendant's race and consequently, displayed less leniency toward the black defendants than did juries and jurors who did not receive this judicial instruction. If an explicit cautionary instruction, such as the RPIS, elicits reactance among jurors then the implication is that the use of such instructions may be counterproductive in the attempt to reduce the influence of irrelevant evidence on juridical decision-making. This suggests that other research is warranted to determine if direct evidence of reactance can be obtained in other studies of juridical decision-

41

making and, if so, to determine its effect on other extra-evidential factors such as sex, occupation, physical appearance, religion, and so forth. In addition, the possibility of reactance to judicial instructions suggests that currently used instructions should be evaluated to determine if and when reactance occurs.

The two appended conditions were created within the current study to provide supportive evidence of Kassin and Wrightsman's (1979) notion that judicial instructions are likely to lower the conviction rate when presented prior to the facts and evidence of the trial than when presented after the trial. The current study, unexpectedly, found a contrary effect for both juries and jurors. The major difference between the present investigation and the Kassin and Wrightsman (1979) study is that the current study was presented in an audiotape format, whereas the latter study was presented in a videotape format. Possibly the effect of timing of instructions is differential by modality (oral vs. visual) , and an experiment combining two levels of timing and two levels of modality would be worthwhile. Another difference between the studies is that the present study used more elaborate judicial instructions than the Kassin and Wrightsman investigation. The effects of this difference are unknown.

42

Results explained by Brehm's (1966) Reactance Theory were not evident in the RPIS condition when the special instruction was given after the facts and evidence of the trial. When the RPIS instructions were presented after the trial, juries and jurors became less conviction prone than when the RPIS instructions were presented before the trial. Perhaps, juries and jurors had already formed opinions about the trial when instructions came at the end, and viewed these instructions as a cautionary reminder not to consider the defendant's race as evidence, rather than as an attempt to manipulate the formation of their opinions at the outset.

Thus, i t is conceivable that the reactance arousing effects of explicit cautionary instructions may occur and be a problem only when instructions precede trial evidence. According to Hunter (1974) most instructions to the jury are given at the end of the testimony, however, there is some tendency to instruct the jury on the nature of the case at the beginning of the trial.

Results of the current study suggest that the postevidence instruction procedure, most often used by the courts, may be the most effective procedure in which juries and jurors apply judges' instructions.

Nonetheless, the issue of when judicial instructions should be presented during the trial and what type of judicial instructions should be used is not yet fully

43

resolved. It seems from the results of the present study, that cautionary instructions requesting juries to disregard irrelevant criteria in their decision-making may have the opposite effect, unless the instructions are presented after the trial facts. It remains for further research to clarify this apparent relationship between type of instructions and timing of instructions on juridical decision-making.

44 il .

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48

"

.

Appendix A

Below is given a written version of Kassin and

Wrightsman's (1979) courtroom trial which was presented to subjects in audiotape format.

JUDGE: "Will the Government then, uh, call its first witness."

COUNSEL FOR THE GOVERNMENT: like to call Mr. Ed West."

"The United States would

JUDGE: "Is Mr. West in the Courtroom, would you step up please, sir, and be sworn?"

BAILIFF: "Raise your right hand. Do you swear to tell the truth, the whole truth, according to the facts you will give?

11

MR. WEST: "I do."

COUNSEL FOR THE GOVERNMENT: "Would you please state your name and address for the Court, please?"

MR. WEST: "My name is Ed M. West, and I live at 309

South 13th Street, in Murray."

COUNSEL FOR THE GOVERNMENT: "Ah, what state is Murray?"

MR. WEST: "Oh, Tennessee, or Kentucky, I'm sorry."

COUNSEL FOR THE GOVERNMENT: "Where are you now employed?"

MR. WEST: "I'm employed with Parker Ford Company there in Murray, Kentucky."

COUNSEL FOR THE GOVERNMENT: "And what do you do at

49

Parker Ford?"

MR. WEST: "I'm a salesman."

COUNSEL FOR THE GOVERNMENT: "How long have you been employed with Parker Ford as a salesman?"

MR. WEST: "Almost ten years, now."

COUNSEL FOR THE GOVERNMENT: "Have any of the cars on the lot at Parker Ford ever been taken and not returned?"

MR. WEST: "Just one. That I know of."

COUNSEL FOR THE GOVERNMENT: "Do you remember which car that was?"

MR. WEST: "Yes, i t was a 1969 green Mustang."

COUNSEL FOR THE GOVERNMENT: "And do you recall when this took place?"

MR. WEST: "It was on November 29, 1976."

COUNSEL FOR THE GOVERNMENT: "OK, can you describe for the Court and the jury what happened on that particular day regarding this green 1969 Mustang?"

MR. WEST: "Ah, I went to work as usual about 8:00 in the morning and the first thing, uh, i t ' s my job to do is to go out, put the keys in all the used cars, start them up, check them for flat tires, uh, this kind of thing, and about 9:00, uh, this, uh Ronald Oliver, pulled on to the used car lot, driving a 68 Dodge Dart, and he wanted to look at some cars, so I showed him some cars, and then after a while he saw this 69 green Mustang that he liked, and he wanted to drive that so I let him drive i t around

50

the lot once. And he came back, and he said, uh, he thought he'd like to buy i t but before he bought i t he needed to take i t home and show i t to his father, and, uh, you know, check if he could get the money with his father, or through his father, or something to that effect."

COUNSEL FOR THE GOVERNMENT: "OK, uh, at any time did uh

-- at what time did this Mr. Oliver give his name to you?"

MR. WEST: "Oh, that was, uh, shortly before he left, I'd say probably about 10:00. We'd gone into see the owner to make arrangements for him to take the car into the next state."

COUNSEL FOR THE GOVERNMENT: "Did this Mr. Oliver give you his address? As well as his uh, any telephone number how to get ahold of him?"

MR. WEST: "Yes, he did. He said, uh, what he told myself, and my boss, Mr. Parker, was that, uh, he was, uh, his address was Route 6, uh, over, there at Paris,

Tennessee, and, he gave us a phone number and told us that his father's name was Leon Oliver, and he mentioned that his father had sometime in the past purchased, uh, a truck from uh, Mr. Parker."

COUNSEL FOR THE GOVERNMENT: "OK,, uh, what procedure do you follow before you allow a car to be taken off the lot for more than just a demonstration drive?"

51

MR. WEST: "OK, if we were to allow somebody, you know, that would like to buy a car, to drive it, like, by himself, or take i t somewhere to show i t to somebody, or something like that, we always, uh, go to the owner of the dealership and clear i t with him. And, then, he always, you know, makes a point to get the guy's name and when he'll bring i t back and, that kind of information."

COUNSEL FOR THE GOVERNMENT: "Did you follow that procedure in this case?"

MR. WEST: "Yes, we did."

COUNSEL FOR THE GOVERNMENT: "Did, uh, this Mr. Oliver, that you referred to, agree to a specific time when he was to return the car?"

MR. WEST: "He was supposed to, or he said, that he would have the car back shortly after noon, like 1:30."

COUNSEL FOR THE GOVERNMENT: "OK, when did you begin to worry about the Mustang that was not uh returned?"

MR. WEST: "Well, I noticed around, uh, 1:30 or 2:00 that, uh, he hadn't returned with it, but you know I really didn't think a great deal about it, at that time, and finally, when i t got to be later in the afternoon, like, uh, around 4:00, uh, you know, i t began to bother me quite a bit, so, uh, I thought I ought to try to call his folks, to see if I could get a hold of them and, you know, find out if something had happened to him, or if the car had broken down, or, you know, what."

52

COUNSEL FOR THE GOVERNMENT: "OK, and how did you know to reach his folks? How did you find what the, I withdraw that. How did you find out what telephone number to call?"

MR. WEST: "He had left the, uh, phone number of his parents with us. We took down the information when he wanted to take the car, and the address."

COUNSEL FOR THE GOVERNMENT: "Did you call that number?"

MR. WEST: "Yes."

COUNSEL FOR THE GOVERNMENT: "And who answered?"

MR. WEST: "His mother answered."

COUNSEL FOR THE GOVERNMENT: "And what did she say to you?"

COUNSEL FOR THE DEFENSE: "Your Honor, I'm going to object to the question of what the defendant's mother might have said as being hearsay since she's not yet testifying here tonight."

JUDGE: "It is hearsay. Sustain objection."

COUNSEL FOR THE GOVERNMENT: "Were you able to reach a

Ronald Oliver at this telephone number?"

MR. WEST: "No, I was not."

COUNSEL FOR THE GOVERNMENT: "Did anyone at this number know how to get a hold of Mr. Oliver?"

MR. WEST: "No, uh, nobody at that number had seen Mr.

Oliver for two years."

COUNSEL FOR THE GOVERNMENT: "Did the car, the green

53

Mustang, have a license plate on it?"

MR. WEST: "It did have one, i t had, uh, I can't remember exactly what i t was, i t was a Calloway County tag."

COUNSEL FOR THE GOVERNMENT: "What state?"

MR. WEST: "There in Kentucky. And i t was 1 7 0 something."

COUNSEL FOR THE GOVERNMENT: of the digits?"

"You do not recall the rest

MR. WEST: "No, I don't."

COUNSEL FOR THE GOVERNMENT: "is there any other way to identify a car besides the license tag?"

MR. WEST: "Urn, yeah, you can use the serial number -- ID number."

COUNSEL FOR THE GOVERNMENT: "Do you recall the serial number on this particular car?"

MR. WEST: "On this one i t was, uh, 9R02M1, uh, 28785."

COUNSEL FOR THE GOVERNMENT: "OK, uh, if you ever saw this Ronald Oliver who came to your car lot on November

29, 1976, and who took the Mis--Mustang but never returned it, would you be able to identify him?"

MR. WEST: "Yes, I would, i t ' s part of my job, as a salesman."

COUNSEL FOR THE GOVERNMENT: "Is i t possible that you could be mistaken as to who that person was?"

MR. WEST: "No."

COUNSEL FOR THE GOVERNMENT: "Would you please indicate

54

by pointing, and describing what that person's wearing at this time?"

MR. WEST: "He's sitting right there at the end of the table, wearing that brown sport coat, and that uh, kind of unusual tie, brown, orange, light pants, legs crossed."

COUNSEL FOR THE GOVERNMENT: "Your Honor, uh, may the record reflect that the witness, Mr. West, has pointed to and identified the defendant, Ronald Oliver."

JUDGE: "The record will so reflect."

COUNSEL FOR THE GOVERNMENT: "Thank you, Mr. West I have no further questions at this time."

JUDGE: "Does Counsel for the Defense wish to crossexamine?"

COUNSEL FOR THE DEFENSE: "Yes, Your Honor. Mr. West, did you know, uh, Ronald Oliver before he allegedly carne into Parker Ford Company on November 29, 1976?"

MR. WEST: "No, the first I saw him was when he carne in that morning."

COUNSEL FOR THE DEFENSE: "OK, could you give us an estimate of the total amount of time you spent with Ron from the time that he carne in ' t i l the time he drove the car away ...

MR. WEST: "Urn, probably, close to an hour and a half,

I'd say.

11

COUNSEL FOR THE DEFENSE: "OK. At the time that you let

55

"

.

Ron take the car did you have any idea that he was not going to return with it, as he said he would?"

MR. WEST: "No, I sure didn't or I wouldn't have let him take it." (chuckling)

COUNSEL FOR THE DEFENSE: "So, you did not know that some five months hence you'd be testifying as to his identification and trying to identify him in court."

MR. WEST: "No, I didn't think about that."

COUNSEL FOR THE DEFENSE: "OK, now, since the morning of

November 29, 1976, is this the first time that you've seen Ron?"

MR. WEST: "Yes."

COUNSEL FOR THE DEFENSE: "Now let me ask you a question,

Mr. West. Have you ever in your life, uh, thought that you knew somebody, perhaps, gone up to say something to them or, uh, were going to approach them, only to find that you were mistaken, and i t wasn't who you thought i t was?"

MR. WEST: "Sure, everybody's done that."

COUNSEL FOR THE DEFENSE: "Alright, could you give us an estimate on uh, just any given day, about how many people come into the Parker Company?"

MR. WEST: "Just, like, to see me for sales, or like service and everything? •••••• "

COUNSEL FOR THE DEFENSE: "Sure, urn hum."

MR. WEST: "Oh, to see me for sales or to talk to me

56

alone, probably ••••• ten or twelve a day at the most."

COUNSEL FOR THE DEFENSE: "Alright, so it'd be fair to say then, that as a salesman your job is to come in contact with people and that you see many faces day in and day out."

MR. WEST: "Right."

COUNSEL FOR THE DEFENSE: "Do you remember everybody that comes into Parker Ford Company?"

MR. WEST: "By name, or by face or ..••• "

COUNSEL FOR THE DEFENSE: "Let's say by name."

MR. WEST: "Generally, not na---I'm not that great with names, but I remember most of them by face."

COUNSEL FOR THE DEFENSE: "Would you say you remember all their faces or just most of them?"

MR. WEST: "That's close---more than most, but I wouldn't want to say that I definitely remember every one of them, no."

COUNSEL FOR THE DEFENSE: "OK. Now did an FBI agent come and talk to you about this incident that occurred after

November 29th?"

MR. WEST: "Yes, he did."

COUNSEL FOR THE DEFENSE: "Do you remember giving him a description of, uh, in your opinion, what the defendant looked like?"

MR. WEST: "Yes, I do."

COUNSEL FOR THE DEFENSE: "Do you remember tellin' him--

57

telling him, how tall the man was or how much he weighed?"

MR. WEST: "Yeah."

COUNSEL FOR THE DEFENSE: "Could you tell us what that ••• those measurements and weight were please?"

MR. WEST: "OK, I think, I told him, uh, height 6'1", about 170 lbs., uh, long dark hair, he's got his hair cut now."

COUNSEL FOR THE DEFENSE: "But he's about 6'1", 170 lbs?"

MR. WEST: "That's-- that'd be my guess."

COUNSEL FOR THE DEFENSE: "Alright, so let me get this straight, then, you're basing your eye witness identification, here in court tonight, on one previous contact with the defendant that lasted for about an hour and a half, five months ago?"

MR. WEST: "Right."

COUNSEL FOR THE DEFENSE: "No further questions, thank you."

JUDGE: "Any redirect?"

COUNSEL FOR THE GOVERNMENT: "Mr. West, I only have one question to ask you in redirect. Is i t possible that you could be mistaken as to who you identified as Mr. Oliver here tonight?"

MR. WEST: "No. "

COUNSEL FOR THE GOVERNMENT: "Then you are positive that the Mr. Oliver you identified was the person who sits at

58

the defendant's table?"

MR. WEST: "Yes."

COUNSEL FOR THE GOVERNMENT: "No further questions."

JUDGE: "Recross?"

COUNSEL FOR THE DEFENSE: "No, Your Honor, we have none."

JUDGE: "Witness may stand down."

JUDGE: "Government have any further testimony?"

COUNSEL FOR THE GOVERNMENT: "Yes, Your Honor, we'd like to call Alvin Matheson."

JUDGE: "Is Mr. Matheson in the courtroom, would you step up, please, sir, and be sworn?"

BAILIFF: Raise your right hand. Do you swear to tell the truth, the whole truth, according to the facts you will give?"

MR. MATHESON: "Yes, I do."

COUNSEL FOR THE GOVERNMENT: "Would you please state your name and address for the jury, please?"

MR. MATHESON: "Uh, Alvin Matheson, 610 North Locust,

Ellsworth, Kansas."

COUNSEL FOR THE GOVERNMENT: "Uh, Mr. Matheson, what is your occupation?"

MR. MATHESON: "I'm a trooper with the Kansas State

Patrol."

COUNSEL FOR THE GOVERNMENT: patrolman in Kansas?"

MR. MATHESON: "Eight years?"

"How long have you been a

59

COUNSEL FOR THE GOVERNMENT: "Eight years?"

MR. MATHESON: "Were you on duty the evening of December

1, 1976?"

MR. MATHESON: "Yes, sir, I was."

COUNSEL FOR THE GOVERNMENT: "What was your assignment that evening?"

MR. MATHESON: "I was to run traffic on the interstate, in the Ellsworth County area."

COUNSEL FOR THE GOVERNMENT: "Patrolman Matheson, did you make the arrest of the defendant, Oliver, for speeding that evening?"

MR. MATHESON: "Yes, sir, I did."

COUNSEL FOR THE GOVERNMENT: "Where did that arrest take place?"

MR. MATHESON: "Well, i t was near the Selben exit, I believe i t was about, mile past 210."

COUNSEL FOR THE GOVERNMENT: "Do you recall what direction the defendant's car was heading at that time?"

MR. MATHESON: "Yes, sir, he was going East."

COUNSEL FOR THE GOVERNMENT: "East?"

MR. MATHESON: "Yes, sir."

COUNSEL FOR THE GOVERNMENT: "Do you remember the type of car the defendant was driving?"

MR. MATHESON: "Yes, sir."

COUNSEL FOR THE GOVERNMENT: "What type was it?"

MR. MATHESON: "It was a 1969 green Mustang."

60

COUNSEL FOR THE GOVERNMENT: "Do you recall the license number of the car?"

MR. MATHESON: "Uh, yes, sir, i t was a Kentucky plate, license number was 1-7-0-3-7-9.

11

COUNSEL FOR THE GOVERNMENT: "At the time that you arrested the defendant, did you ask for proof of ownership of the car?"

MR. MATHESON: "Yes, sir, i t ' s customary."

COUNSEL FOR THE GOVERNMENT: "Uh, was the defendant able to produce such proof?"

MR. MATHESON: "No, sir, he did not."

COUNSEL FOR THE GOVERNMENT: "After you arrested the defendant for speeding, what did you do then?"

MR. MATHESON: "Well, I ah, informed him -- directed him to, uh, follow me into Ellsworth, the city of Ellsworth, and and I also directed another driver that I had pulled over for speeding to follow me into Ellsworth."

COUNSEL FOR THE GOVERNMENT: "Why did you want them to follow you into Ellsworth?"

MR. MATHESON: "Uh, to post bond."

COUNSEL FOR THE GOVERNMENT: "After -- while they were following you into Ellsworth, did you have occasion to do any check on the car or the defendant?"

MR. MATHESON: "Yes, sir, uh, another standard procedure of the State Patrol is to, uh, uh, run checks with the

National Crime Information Center, and I checked both

61

individuals and both vehicles."

COUNSEL FOR THE GOVERNMENT: "What uh, -- did you receive any information from the NCIC?"

MR. MATHESON: "Uh, yes, sir, I did. I, uh, rec -- I, uh, I discovered that the defendant, Mr. Oliver, was wanted for a parole violation by the FBI in Tennessee."

COUNSEL FOR THE GOVERNMENT: "When you got into

Ellsworth, did this new information lead you to do anything?"

MR. MATHESON: "Yes, sir, I informed him of my discovery and, placed him under arrest."

COUNSEL FOR THE GOVERNMENT: "After placing, uh, the defendant under arrest, did you, uh, contact anyone regarding the car that the defendant was driving, outside of the NCIC?"

MR. MATHESON: "Well, yes, sir, I did."

COUNSEL FOR THE GOVERNMENT: "Who did you contact?"

MR. MATHESON: "I contacted the sheriff of uh, Murray

County, Kentucky."

COUNSEL FOR THE GOVERNMENT: "What did Sheriff Steele tell you about the car that •••• "

COUNSEL FOR THE DEFENSE: "I object, Your Honor, i t ' s a call for hearsay, 'cause Sheriff Steele is not here in court for us to crossexamine."

JUDGE: "It is hearsay. Sustained objection."

COUNSEL FOR THE GOVERNMENT: "Patrolman Matheson, the man

62

@ •

you arrested on December 1, 1976, is he in the courtroom today?

11

MR. MATHESON: 11 Yes, sir, he is.

COUNSEL FOR THE GOVERNMENT: 11

11

Where is he?

11

MR. MATHESON: jacket.

11

11 He's seated over there, in the brown

COUNSEL FOR THE GOVERNMENT: 11 Your Honor, would you let the record show that, uh, the witness is pointing to the defendant, Ronald Oliver?

11

JUDGE: 11 The record will so reflect ...

COUNSEL FOR THE GOVERNMENT: 11 I have no further questions, your Honor.

11

JUDGE: 11 Crossexamination?

11

COUNSEL FOR THE DEFENSE: 11 Yes, Your Honor, (TO THE

COUNSEL FOR THE GOVERNMENT) Thanks, Counsel. Trooper

Matheson, on the day you stopped Mr. Oliver for speeding, didn't he in fact, cooperate with you, like stopping ••.. ?"

MR. MATHESON: "Yes, sir---Yes, sir."

COUNSEL FOR THE DEFENSE: "And, you asked him to follow you to town, and he followed you, correct?"

MR. MATHESON: "Yeah, that's correct."

COUNSEL FOR THE DEFENSE: "Then wouldn't you agree that by the defendant's actions and his cooperation with you that he may have been speeding a little bit? Is that correct."

63

MR. MATHESON: "That, uh, was my first impression, yes sir."

COUNSEL FOR THE DEFENSE: "Have you ever been to Murray,

Kentucky, Mr. Matheson?"

MR. MATHESON: "No, sir. I've never had occasion to."

COUNSEL FOR THE DEFENSE: "Then you were not at Parker

Ford on November 29, 1976 the day the Mustang in question was reported missing, is that correct?"

MR. MATHESON: "No, sir, I was not. That's correct."

COUNSEL FOR THE DEFENSE: "If not in Murray, Kentucky on this day, then you have no personal knowledge whatsoever as to what may have happened at Parker Ford that day, is that correct?"

MR. MATHESON: "That's true, yes sir."

COUNSEL FOR THE DEFENSE: "Then you personally don't know who took the 1969 Ford Mustang from Parker Ford, do you?"

MR. MATHESON: "Not to my personal knowledge, sir, no."

COUNSEL FOR THE DEFENSE: "No further questioning."


COUNSEL FOR THE GOVERNMENT: "Yes, Your Honor. Just one question, Patrolman. How did you know that the 1969 green Ford Mustang was stolen?"

MR. MATHESON: "Uh, when I, uh, when I made the arrest for, uh, the defendant's parole violation, in Ellsworth

County, I took a standard custodial search of the car, which is a standard procedure, and in so doing I uh, came

64

across the motel bills from Murray, Ken -- Murray,

Kentucky I called there to the county sheriff and he informed me of that fact."

COUNSEL FOR THE GOVERNMENT: further questions."

"Thank you, we have no

JUDGE: "Any recross?"

COUNSEL FOR THE DEFENSE: "No, Your Honor."

JUDGE: "You may stand down."

MR. MATHESON: "Thank you."

JUDGE: "Government have any further witnesses?"

COUNSEL FOR THE GOVERNMENT: "No, Your Honor, the

Prosecution rests its case."

JUDGE: "Is the Defense prepared to present their case at this time?"

COUNSEL FOR THE DEFENSE: "Yes, Your Honor, we'd like to call Ronald Leon Oliver at this time."

JUDGE: "Step up, sir, and be sworn."

BALIFF: "Do you swear to tell the truth, the whole truth according to the facts you will give."

MR. OLIVER: "Yes."

COUNSEL FOR THE DEFENSE: (clears throat) "Could you please state your name for the court and jury, please?"

MR. OLIVER: "Ronald Leon Oliver."

COUNSEL FOR THE DEFENSE: "Are you married, Mr. Oliver?"

MR. OLIVER: "No, I'm not."

COUNSEL FOR THE DEFENSE: "Could you give us your height

65

and weight?

11

MR. OLIVER: 11 My height, 6' 2 11 somewhere in there. I, uh ••• 11

, my weight, 155, 157,

COUNSEL FOR THE DEFENSE: 11 Do you reacall your whereabouts on or about November 29, 1976?

11

MR. OLIVER: 11 Yes, sir, I do.

11

COUNSEL FOR THE DEFENSE: 11 Where were you on this ••• around this particular day?

11

MR. OLIVER: 11 0n the morning of that day, sir, I was in

Murray, Kentucky.

11

COUNSEL FOR THE DEFENSE: 11 Have you ever talked to any salesmen at Parker Ford Company?

11

MR. OLIVER: 11 No, sir."

COUNSEL FOR THE DEFENSE: "Have you ever heard of Parker

Ford?"

MR. OLIVER: "I think they've had a few television ads, so I think I've heard of them, yes, sir."

COUNSEL FOR THE DEFENSE: "How long did you stay in

Murray, Kentucky, Mr. Oliver?

11

MR. OLIVER: "On that day, sir?"

COUNSEL FOR THE DEFENSE: "Yeah, were you there •••• "

MR. OLIVER: "Well, I, we, I, or we, arrived in Murray,

Kentucky, on, uh, I think the day before the 29th. And then, uh, we left, uh, Murray, Kentucky, sometime around noon on the 29th November."

COUNSEL FOR THE DEFENSE: 11 You say 'we', who are you

66

referring to?"

MR. OLIVER: "Uh, Larry Boeing."

COUNSEL FOR THE DEFENSE: "Who's Larry Boeing?"

MR. OLIVER: "Larry, ah (clears throat) as I was, I, as I was driving to Murray, Kentucky before the 29th of

November, ah, as I was driving to Illinois I picked up

Larry Boeing, he was traveling to Illinois. And I gave him a ride to Murray."

COUNSEL FOR THE DEFENSE: "Could you describe Mr. Boeing for the court and the jury?"

MR. OLIVER: "Ah, Larry was about, uh, 21 -- 25, somewhere in there, i t ' s hard to guess ages. And, uh, he's about 6' 0", 6' 1" and he weighed about, uh, 170-175 pounds, somewhere like that."

COUNSEL FOR THE DEFENSE: "And you say you left Murray?

Who'd you say you left with?"

MR. OLIVER: "I left that morning of the 29th, that noon of the 29th, wtih--with Larry."

COUNSEL FOR THE DEFENSE: "And where were you heading that day after you left Murray, Kentucky?"

MR. OLIVER: "Well, we were heading to, uh, Colorado

Springs, Colorado. Larry had a, uh, said he had a line on a construction job out there and he asked me to, uh, drive him out there."

COUNSEL FOR THE DEFENSE: "And who's car did you take out there?"

67

MR. OLIVER: "We took, uh, a car that, the car we took was Larry's girlfriend's or he referred to he as his old lady."

COUNSEL FOR THE DEFENSE: "Do you know his old lady, or his girlfriend •••• "

MR. OLIVER: "I met her once, her name was, uh, Marybeth.

I met her, uh, that night, the night before, at a bar."

COUNSEL FOR THE DEFENSE: "What happened after you left

Murray and arrived in Colorado?"

MR. OLIVER: "Uh, I dropped, uh, dropped Larry off in

Colorado and then I immediately, uh, headed back to

Kentucky?"

COUNSEL FOR THE DEFENSE: "Why were you going back to

Kentucky?"

MR. OLIVER: "Uh, I was going back to return the car to

Marybeth."

COUNSEL FOR THE DEFENSE: "And what particular route were you headed back to Kentucky on?"

MR. OLIVER: "Well, I was on Interstate, took Interstate

70, I was planning to take Interstate 70 to St. Louis, and then drop down to Murray from St. Louis."

COUNSEL FOR THE DEFENSE: "Then on your way back, you were in Mr. Boeing's girlfriend's car?"

MR. OLIVER: "Yes, sir."

COUNSEL FOR THE DEFENSE: "Did you have any knowledge or reason to believe that this may not have been Mr.

. 68

Boeing's girlfriend's car?"

MR. OLIVER: "No."

COUNSEL FOR THE DEFENSE: "Did you have any knowledge or reason to believe that this was a stolen vehicle that you were driving?"

MR. OLIVER: "No, none whatsoever."

COUNSEL FOR THE DEFENSE: "No further questions at this time, Your Honor."

JUDGE: "Crossexamine?"

COUNSEL FOR THE GOVERNMENT: "OK, Mr. Oliver, how long have you and, uh, Mr. Boeing been friends?"

MR. OLIVER: "Well, I knew Larry just about two, three days."

COUNSEL FOR THE GOVERNMENT: "Did you hear the testimony the witness Mr. West gave in the description he gave of a

Mr. Oliver?"

MR. OLIVER: "Yes, sir."

JUDGE: "Can, uh, can all the jurors hear this witness?

Can you hear him down there at the end?"

JURORS: "Yes, sir."

COUNSEL FOR THE GOVERNMENT: "What was the name of the individual that, uh, you were to deliver this Mustang to, for Mr. Boeing?"

MR. OLIVER: "I knew her as Marybeth."

COUNSEL FOR THE GOVERNMENT: "What was her last name?"

MR. OLIVER: "I didn't know the last name."

69

COUNSEL FOR THE GOVERNMENT: "What was her address?"

MR. OLIVER: "I didn't know her address."

COUNSEL FOR THE GOVERNMENT: "What was her telephone number?"

MR. OLIVER: "I didn't know her telephone number."

COUNSEL FOR THE GOVERNMENT: "As I understand, or as I understood your testimony, you had driven from Kentucky across Illinois, Missouri, Kansas, Colorado, and then you were returning back across Kansas at the time you were stopped."

MR. OLIVER: "No, sir, I didn't--! didn't say which way we drove to Colorado, sir."

COUNSEL FOR THE GOVERNMENT: you did drive."

"Could you tell me which way

MR. OLIVER: "To Colorado, with Larry?"

COUNSEL FOR THE GOVERNMENT: "Ah, just name the states that you did cross."

MR. OLIVER: "Ah, Kentucky, Tennessee, Missouri, Kansas,

Colorado."

COUNSEL FOR THE GOVERNMENT: "OK, Thank you, I have no further questions."


COUNSEL FOR THE DEFENSE: "Yes, Your Honor. When you were leaving Colorado, and headed back toward Kentucky, to return the car back to Marybeth, did you know where you could find this Marybeth?"

70

MR. OLIVER: "Yes, I did."

COUNSEL FOR THE DEFENSE: "And, where could you find her?"

MR. OLIVER: "I could find her at this, uh, club, where I met her, the, the night before we left. She worked there."

COUNSEL FOR THE DEFENSE: "So you thought you could find her when you returned the car to Kentucky?"

MR. OLIVER: "That was my understanding, yes sir."

COUNSEL FOR THE DEFENSE: "No further questions."

JUDGE: "Recross?"

COUNSEL FOR THE GOVERNMENT: "No further questions, Your

Honor."

JUDGE: "You may stand down."

MR. OLIVER: "Thank you."

COUNSEL FOR THE DEFENSE: "The Defense rests at this time, Your Honor."

JUDGE: "Mrs. Bailiff, would you approach the bench?"

71

Appendix B

Below are given revised patterned instructions taken from Severance and Loftus (1982).

JUDGE: "As jurors in this case, you have several duties:

First, i t is your duty to determine the facts in this case from the evidence produced in court; Second, i t is your duty to accept the law as I will instruct you, regardless of what you personally believe the law is or ought to be; Third, to reach a verdict, you are to apply the law to the facts and in this was decide the case.

With regard to your duty to determine the facts in this case, the evidence you are to consider consists of the testimony of the witnesses and exhibits which I have admitted into evidence. It has been my duty to rule on the admissibility of evidence. You must not concern yourselves with the reasons for these rulings. You will disregard any evidence which either was not admitted or which was stricken by me. In determining what facts have been proved, you should consider all of the admitted evidence. Every party is entitled to the benefit of all the evidence, whether produced by that party or by another party. The law does not permit me to express my views about the facts or evidence in any way and I have not intentionally done so. The law also does not permit me to try to influence your judgment as to the

72

believability or credibility of witnesses and of what weight is to be given to the testimony of each. In evaluating the testimony of any witness, you may take into account the following factors: the opportunity and ability of the witness to observe the facts; the accuracy of the witness' memory; the witness' manner while testifying; any interest in the case or bias or prejudice the witness may have shown; the reasonableness of the witness' testimony considered in light of all the evidence; and any other factors that bear on believeability and weight. If i t appears to you that I have expressed my opinion concerning the evidence or the witnesses at any time, you must disregard such opinion entirely. With regard to your duty to accept the law as

I will instruct you, you should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part of an instruction. The order in which the instructions are given has no significance as to their relative importance. The lawyers may properly discuss any specific instructions they think are particularly significant.

Below is given the special instruction added to

Severance and Loftus' (1982) revised patterned instructions.

With regard to your duty to apply the law, the

73

defendant's race, color, nationality, sex, religious affiliation, wealth or poverty, and marital standing should not be considered as evidence. These are not evidence and you should disregard these facets. The fact that the defendant has been charged is only an accusation.

Conclusion of Severance and Loftus' (1982) judge's instruction9.

With regard to your duty to apply the law, the fact that the defendant has been charged is only an accusation. You are not to consider the filing of a written charge or its contents as proof of the matters charged. The lawyer's remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence, however, and you should disregard any remark, statement or argument that is not supported by the evidence or by my instructions on the law. The lawyers have the right and the duty to make any objections which they think are appropriate. Such objections should not influence you, and you should make no presumption because of objections by the lawyers.

Throughout your deliberations you will permit neither sympathy nor prejudice to influence you. You are officers of the court and must act impartially and with an earnest desire to determine and declare the proper

74

verdict. The defendant has entered a plea of not guilty.

That plea puts in issue every element of the crime charged. The defendant is presumed to be innocent and is not required to prove his innocence or any fact. This presumption of innocence is present at the beginning of the trial and continues unless you decide after hearing all the evidence that there is proof beyond a reasonable doubt that the defendant is guilty. The state has the burden of proving each element of the crime beyond a reasonable doubt. A reasonable doubt about guilt is not a vague or speculative doubt but is a doubt for which a reason exists. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after that person has fully, fairly and carefully considered all of the evidence or lack of evidence. If, after such thorough consideration, you believe in the truth of the charge, you are satisfied beyond a reasonable doubt. If you are satisfied beyond a reasonable doubt that all elements of the charge have been proved, then you must find the defendant guilty. However, if you are left with a reasonable doubt about the proof of any element, then you must find the defendant not guilty."

75

Appendix C

Tables 5, 6, 7, and 8 contain the summary statistics of the Log-Linear Model for both the 3 x 2 and 2 x 2 designs used in the present study. The tables follow.

76

Table 5

Summary Statistics of the

1 x 2 Log-Linear Model (Jury

Verdicts)

Variables Chi-square

Race 4.30

Degrees of

Freedom

8

Significance n.s.

Instructions 18.70

Race x Inst. 5.52

10

4 p < .05 n.s. n.s. - not significant

Inst. Instructions

77

Table 6

Summary Statistics for the 3 x 2 Log-Linear Model (Juror

Decisions)

Variables Chi-square Degrees of

Freedom

Significance

Race n.t.

Instructions

Race x Inst. 6.77 2 n.t. p < • 05 n.t. - not tested

Inst. Instructions

78

Table 7

Summary Statistics for the ~ x 2 Log-Linear Model (Jury

Verdicts)

Variables Chi-square Degrees of Significance

------------------------------------~-------------------

Type of

Instructions

7.08 3 n.s.

Timing of

Instructions

10.40 4 p < .05

Type X

Timing of Inst. 5.91 2 p < • 06* n.s. not significant

Inst. Instructions

* marginally significant

79

Table 8

Summary Statistics for the ~ x ~ Log-Linear Model (Juror

Decisions)

Variables Chi-square Degrees of Significance

2 p

< .05 Type of

Instructions

Timing of

Instructions

6.85

10.04

Type of

Timing of Inst.

2.96 n.s. not significant

Inst. Instructions

2

1 p < .05 n.s.

80

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