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Chapter 11
Chapter 6
Martensville Daycare
Linda Sterling
- Ran daycare center from home
- 2 ½ old daughter had diaper rash and redness around genitals
- The daughter responded “ stranger poked at my bum”
- When asked to repeat story daughter said poked w pink rope
- Doll was used to asked daughter to demonstrate what stranger had done
- Child responded Ravis (Linda’s son)and uncle
- Reported police force
- 17 families whose children attended sterling daycare were contacted
- 13 children were interviewed individually, many repeatedly by police, therapist and
medical practitioners
- One point called town meeting to inform parent their progress
- Parents and chdlren encouraged read The secret of Silver Horse, story about child
sexual abuse and disclosure of the abuse
- Few months into investigation, children have allegation of oral sex, threaten by guns,
and penetration w objects
- Children started to recall they were driving to a place called “devils church”. Where
put in cages, poled, pride and forced to drink urine ….
- Children started recall seen police uniforms present at event, which put Police
department under scrutiny
- 1992, Linda Sterling, her husband, their son, and unidentified minor, as well 5 police
officers faced 180 charges physical and sexual abuse inovling 24 chidlren who
attended daycare
- Appeal eventually overturned majority these charges
- Several psychologist provide expert testimony that was instrumental in success of
appeal
- Experts identified interviews as leading, coercive and suggestive, compromising and
corrupting the reliability of information obtained
- Martensville daycare case was not isolated story, 1980s and 1990s marked by
outbreak reports sexual abuse
- Young chidlren in daycare across Canada and United States reproted unusual acts
of sexual abuse at hadns thier cargivers
- Some adutls began rembmer long -forggoten episodes being sexually abused as
chidlren
- Outbreak sexual abuse alllegation inginted a heated debate among psyhoclgoists
- Debates were divisive, stimulated important research on memories of abuse and
encourage development new techniques on memories of abuse and encourage
development new teechips for eliciting reports of abuse
Contextualizing allegation of sexual Abuse
Canadian Incidende Study of Reported Child Abuse and Neglect (CIS)
- Comprehensive resource on the general prevalanece rate of child maltreatment
- Canada wide study has collected data on maltreatment -related investigation
involving children in three cycles (1998, 2003, 2008)
Nico Trocme & colleagues 2010
- Examined investigations child maltreatment during those period
- Sorted them into 5 categories:
1)physical abuse
2)sexual absue
3)neglect
4)emotional maltreatment
5) exposure to intimate partner violent (combination these different form of
maltreatment often experienced simultaneously)
6.1 summarizes thousands maltreatment investigations conducted in Canada in 2008
- Casese broken down by primary category of maltreatment as well as extent to which
maltreatment could be substantiated(ie. Balance of evidence indicating weather or
not abuse had occurred)
- Allegation of sexual abuse as primiary form of maltreatment
- Over quarter these allegation substantiated by investigation worker - fewer than for
other form of child maltreatment - underscoring challenges these cases can present
- For these reasons , sexual abuse often remains hidden from crimminal justice
- Very young victims not able talk yet so they are often incapable of reporting the
abuse
- Young chidlren may not intercept sexual exploitation as abuse , partic if abuser is
parent or trusted cargiver
- Chidlren any age may fear retaliation, and sexual abusers may explicitly threaten
chidren w retaliation if tell anyone about crime
The Reported Memories of Young children
-
very young children (Esp those under 5 years age) sometimes have difficulty
distinguishing between imagined and real events
- b/c ability to encode, store, and retrieve info not fully developed in young children ,
problems surrounding memory are significantly more pronounced when witness or
victim of crime is a child
- Risk of eliciting inaccurate reports of what happened is much greater when a young
child is interviewed using suggestive or biased questioning methods
- Considerable care needs to be taken when interviewing young witnesses ensure
their accounts are reliable and not tainted by interviewer
Interviewing Children
Problematic Interviewing Techniques
- Martensville case contains elements common to many daycare sexual abuses cases
that were occuring in North Ameircna in 1980s and 1990s
- Similar event occured in a daycare in New Jersey
Wee Care Nursery School
- Kelly Micheals accused sexually abusing 20 chidren b/t age 3 -5 years
- According allegation, Michaels palyed piano naked, licked peanut butter off chidlren
genitals, forced chidlren drink her urin and eat her feces, raped children w knives,
forks, spoons, and lego blocks
- Convicted 115 conuts child sexual abuse based on tstminly 19 chidren and
sentences 47 year prison but served only 5 years
- Released after New Jersey supreme court held she been denied fair trial b/c
interviews of children were highly improper and utilised coercive and unduly
suggestive methods
- After 4 days Kelly Michaels left her job at Wee care Nursery, a 4 year old former
student was having his temperature taken at pediatrician office , that what my
teacher does to me at school, he told nurse
- Child mother notified New Jersey child- [protective services agency
- Two days later, boy was interviewed by state prosecutor
- During interview , prosecutor used anatomically detailed doll
Anatomically detailed doll
A doll that has realistic male or female genitalia
- Dolls used help reluctant children show investigators what type sexual abuse may
been perpetrated agasint them
- When boy inserted his finger into anus of doll and told prosecutor two other boys at
school had their temperature taken, the investigation took off from there
- Neither boys seemed know anything about having their temperature taken, one boy
said Micheals touched his penis
- Mother first child told a parent member of school bord what children had said
- School board questioned his own son, who told michelad had touched his penis with
a spoon
- Some research indicates anatomically detailed dolls can increase number false
allegation of sexually abused from children under age 5
Karen Salmon & colleagues 2012
- Examined use anatomically detailed dolls ,as well as other nonverbal aids such as
human - figure diagrams, within an interview protocol that followed best practises of
interview techniques for children that it propos were only used to carlisty , not to elicit
, children account of being touched,and were only tend to when children
spontaneously disclosed being touched
- While use dolls did not increase errors under these optimal conditions, neither did
they improve quality children's report when compared to finor obtained through verbal
interview alone
- Interview techniques in 1980s and 1990s nowhere near current best practises
- As details of several daycare cases were made public, became clear children been
subjected to highly subjective and even coercive question
- When researchers examined transcript children interview, found interviewers began
interview with strong believe about what occurred (child been sexually abused)
- Interviewers then used varied questioning techniques that made it likely their preexisting suspicious would be confirmed
- These techniques included :
1)repeated questions
2) questions suggesting that particular events occurred
3) offering praise or reward for desired answers
4) critiquing or disagree w children who gave unwanted answers
5) inviting children speculate or imagine what might have happened
- Least coercive from is simply repeating question several times until child give desired
response
- Example of interview conducted w one of children in state v. Michaels :
1. By repeating question, interviewer may signal to child denial is unacceptable, so child
eventually changer her/his answer to please the interviewer
- In the Martensville case, one child was asked 19 different times “where else did
Linda touch you”?
- This was esp problematic since child had made no mention linda touching behaviour
when previously questioned
2. Suggestive or leading questions can shape an adult interviewee's response and
reduce accuracy of his or her account of events
- Young children acutely sensitive to this form questioning
- To explore effect of repeated questioning on children , researchers asked
preschoolers several times about events their parents said had never occurred (eg,
getting their finger caught in a mousetrap)
- 58% of children are able give detailed descriptions of at least one event they initially
said had never happened
- 25%children managed to create false memories for majority of fictitious events
The new info provided by an adult interview’s repeated question likely to be
incorporated into the child’s description of an event
3)Positive social approval
- Reward and praise
- When children made disclosures, and negative consequences (disappointment and
criticism )when they remained silent or denied abuse
- In the Martensville case, police offered children “colouring books and in one case a
visits to see police dog at end of interviews
- Although parents in Martensville case were warned not to ask children leading
questions or share information, most were warned not to ask children leading
question or to share info, most were heavily involved in the investigations
- Interviewers (and parents) would tell a child that they had heard from other children
about bad things that happened at daycare
- Example )when a child denies experiencing any abuse at the daycare, the parent
might respond with something lie “ some of the children .. saying some bad stuff
happened there, some bad things, and we just want to know if something bad
happened to you
-
Maggie Bruck
- Canadian expert in child psychology
- remarked this kind statement is highly suggestive component of an interviewer where
tone does provide information person being questioned about what interviewer is
looking for
- Where Bruck describes court research on effect of inducting a negative stereotype
when it is combine with misleading info
- To understand how these poor interviewing strategies can, in combination, impact
children's memories, a group of researchers designed a study based on their
analysis of the child witness interviews in two infamous American preschool abuse
cases : people v Raymond Buckey et al and state v. Michaels
- In this experiment, 3- 6 year olds children invited listen to a man came out their
classroom tell story of hunchback of Notre Dame
- After telling story, man handed out cupcakes and napkins, and said goodbye, and left
room
- One week later , children asked about things storyteller had done (talking his hat
off,giving out cupcakes, etc) as well things storyteller had not done (putting a sticker
on a child’s knee, throwing a crayon at a child who was talking )
- In control condition, neutral , non-coercive questions used, 4-6 years old said yes to
fewer than 10% questions about events that never happened
- 3 year olds said yes to 31% of such questions
- In conditions that used interview techniques employed in two preschool sexual abuse
casese, 4- 6 year olds anserd yes to 50% misleading questions while 3 year olds
answered yes to 81% of misleading questions
- Reported percentage of false positives in research studies are probably lower than
actual percentages of false-positive responses in real citations
- Questioning techniques used by interviewers in daycare cases were much more
forceful and intimidating than those used by researchers
- In real cases, children were questions several times by different interviews
-
These condone raised level anxiety and suspicion and served make claims of abuse
increasingly extreme
- Factors that bias the roots of children can interact to amplify negative effects
- Repeated interviews,if done very carefully, may increase number of accurate details
disclosed by children while reducing incidences of self- contradiction
- If repeated interviews are combine with a biased style (As daycare cases ) and there
is significant delay b/t alleged sexual abuse and interviews , the chidrens accounts
are likly to be contaminted and unreliaible
Effective Interviewing Techniques
- Interviewing techniques previously led to biassed and distorted reports and
recollections
How should children be interviewed to ensure their accounts are as complete and accurate
as possible ?
-
Vigilance on part interviewer is necessary avoid dangers of poor interviewing
techniques
- Simplified instructions that emphasise true and full disclosure by chid are
required
ex) preparing the child, interviewer might use a” don't know instruction”: “if I asked you a
question and you don't know answer, then just say I don't known
- An explicit statement that the interviewee does not know what happened would also
answer to my questions
- Several questioning techniques have been found to be effective for interviewing
children and to result in fewer problematic reports
1. NICDH investigative Interview protocol
- One questioning procedure designed to reduce bias has been developed by
researchers, interviewers, police officers ,and legal professional in cooperation with
National Institute of child Health and Development (NICHD) in the united States,
- Research shown that use of NICHD investigative interview protocol helps guide
interviewees away from biassed questions and toward a style of questioning that
more lily to elicit true response from children
- A recent reviewer of research into use of NICHD protocol advises against the use
of closed- ended questions (e.g.” Did he touch you on your bottom?”), which
requires a yes or no answer and recommended open- ended prompts (eg tell me
what happened or tell me more about that or what happened next )which encourage
children to provide as much info as possible
- Suggestive questions are to be carefully avoided
- Suggestive questions are those that include information not volunteered by child
(“ eg. did he put his hand on your private”) or those that imply that a particular
response is expected or desired by interviewer ( eg he wanted you to kiss him ,
didn't he”)
- Interviewers using NICHD protocol move through a series of phases designed to put
the child at ease and elicit uncontaminated reports of what the child has experienced:
1) During intro phase
the interviewer introduces himself or herself, emphasises that the child should
describe events in detail and tell the truth, and explains basic ground rules (Eg. child
can and should say “ I don't remember :) or I dont known when appropriate )
2) Rapport - building phase
- This portion of interview, goal to create relaxed , supportive environment for child nad
to establish rapport between child and interviewer
- To familiarise the child with the interviewing process, the interviewer may ask the
child to describe a recent non- threatening event in detail (Eg. a birthday or family
outing )
- This gives children an opportunity to practise giving interviewer a full narrative of
events
3) Substantive phase
- Open- ended prompts are used to fucs the child on incidence under investigation
- ex) interviewer might say “ I heard that ur mom is worried about something that might
have happened to you or I heard someone might have done something to you that
wasn't right )
- Such statements are followed up with prompts such as tell me everything about that
- If child makes an allegation of abuse , further info is solicited during follow-up phase
- Once child offers his or her account what happened, interviewer asks child weather
behaviour occurred one time or more than one tie, and ask for incident- specific
information based on the child account
- For example, the interviewer may ask if you said that ------- did ----.
- Tell me everything about that
- More directive questions are asked only after child free recall of incident been
exhaustively elicited by the interviewer
- Examples of directive questions include : “ When did it happen “? or what colour was
the car
- Examples of directive questions are in table 6.2
-
-
Researchers examined the effectiveness of French-language adaption of the NICHD
protocol using 83 interviews with 3- 13-year-olds in Quebec who were alleged victims
of sexual abuse
Interviews were conducted by police officers and social workers who been trained to
Same interviewers also provide recording 83 interviews that they had conducted prior
use NICHD protocolto their training
-
Two sets if interviewers were matched with respect to the children's age, childpredator relationships, and types and frequency of abuse
- They were coded for types of questions interviewers used and level of detail obtained
from children's responses
- The researchers found that following training with NICHD protocol , interviewers were
much more effective in their use of invitation prompts to elicit information from the
children
- Invitation prompts , in turn elicited a greater level of detail from the children
interviewed
Figure 6.3 and 6.2 are taken from NICHD training material that is based on researchers
data
-
Similar results were found in another Canadian study that examined effectiveness of
an intensive training program based on principles of NICHD protocol
- Study use a sample of 12 investigative interviewers who were either child- protection
workers or police officers
- Interviewers were asked provide recorder interviews that they conducted w children
in the month prior to their participation in the intensive program
- Interwers were trained over 8 months using NICHD protocol
- Pre-training interviews were compared to those conducted post- training
- Results were again quite encouraging
- Following program, interviewers more likely to use opened-ended questions and
prompts
- Most encouraging, interviewers elicited more information from the children in
response to their open- ended prompts
- Benefits were evident across the range of allegation investigated
2. Step-Wise Interview
-
Another protocol for interviewing child victims and witnesses that are commonly used
in Canada is Step- Wise Interview
This protocol was developed by John Yuille and his colleagues at the University of
British Columbia
Designed to maximize the amount of accurate info recalled by a child, while
minimizing any potential contamination of information
Much like, NICHD protocol , it involves a series of steps, moving from general to the
specific
In rarely stages interview, considerable time is spent building rapport with the child,
to ensure he or she is comfortable and relaxed with the interviewer
Child was asked to recall two familiar, non-threatening events such as a birthday or
special occasion
Meaning and importance of telling truth are discussed with child before turning to the
critical event under investigation
In steps that follow,1. child is first asked to provide an uninterrupted account of what
occured in an open- ended narrative fashion
This followed by 2. general non-leading questions based on what the child has
already told the interviewer ( you told me that or can you tell me more)
While Yuille 1988 noted that props such as dolls or drawings may be useful in some
cases to ensure contamination of information does not occur, props are seen as a
last resort and should only be used after disclosure by children already occred
Testimony by Children at Trial
- In 1988 , to facilitate testimony of children in court, Parliament enacted significant
reforms to the criminal code and section 16 of the Canada Evidence Act
- These reforms involved abolishing the corroboration requirements (that there be
independent evidence to support the child’s testimony) and relaxing the oath- taking
requirement of child witnesses
- With these changes, children under age of 14 or a person whose mental capacity
was challenged ) were permitted to testify in trial proceedings if it was determined
that child:
1) Able to communicate the evidence in the proceedings
2) Demonstrated an understanding of nature of an oath or a solemn affirmation
(ie understood the difference b.t truth and a lies and the consequences of lying
)
- Prior to testifying , competency of a child was assessed by the judged in what was
referred to a competency inquiry
- To demonstrate the child’s general ability to communicate the evidence, the judge
would explore whether the child was “ capable of perceiving events “, remembering
events and communicating events “ by asking series of simple questions (eg, age,
school , residence )
- This was followed by series of questions to determined if child understood meaning
of taking an oath or a promise to tel the truth
- At this stage inquiry , the judge might have asked child define words like truth,
promise or lie and to explain the consequences of lying
- The assumption underlying this part of inquiry was that children were less likely to be
truthful if they had no concept of truth and lies or if they did not understand the
moral consequences of telling a lie
-
Decade after its introduction, courts began to have serious doubts about competency
inquiry
A 1999 report by the Canadian Department of Justice suggested that
-
These concerns were echoed by special scientist
In 1999, an interdisciplinary research team called the Child Witness Project, led by
Nicholas Bala at Queen's University, set out to empirically examine a range of
issues relating to the competency inquiry
- Researchers focused on two questions directed at the validity of assumptions
underlying the inquiry utility:
1) Would children who demonstrated an understanding of lying and truth-telling
be more likley to tell the truth?
2) Would discuss the conceptual issues regarding truth-telling and promising, to
tell the truth, promote greater truth-telling in children?
- In series of studies, team assessed children’s conceptual understanding of
truth and lie- telling, and examined whether it was predictive of their actual
behaviour
Study #1
- Sample of 3- 7 year olds assessed regarding their conceptual understanding of truth
and lie telling (conceptual phase) and their actual truth- telling behaviour (behavioural
phase)
- Half of the children participating in concept phase first, half participants in the
behaviour phase first
In Concept phase
- Children were presented w following Situation: Katy ate a candy that her teacher told
her not to eat, later katy denied eating candy when asked if and if it was a lie,
weather telling was a little or very good/bad
- They were also about a hypothetical situation inviting themselves- example if your
mother told you not to play with glass but you did and broke it, what would you say
when your mother asked what happened?
- For the most part , children demonstrated a good understanding of a truth and a lie,
with conceptual knowledge increasing with age. Older children were also more likely
to tell the truth and to rate telling a lie as very bad,But how would this relate to the
children's actual behaviour ?
Behavioural phase of experiment
- Assed children's actual truth telling
-
-
-
-
-
Children were placed in a citation in which might be tempted to commit a
transgression (cheating in a game)
Playing a game, experimenter would tell child turn his or her back to the
experimenter
The experimenter would then bring out a toy and place it on the table
The experimenter would then bring a toy and palace it on the table
Child job was to guess identity of toy by sound it made
Halfway through game, experimenter left room and the child was left alone with the
toy
Before leaving , experimenter told child not to peek
When experimenter returned , child was asked if he or she had in fact peeked
82% children turn around and looked
Results revealed that children did not practise what they preached , children's
conceptual understanding of truth telling was not strongly related to their behaviour of
truth- telling ( confessing that they had actually peaked )
Even though, in the concept phase of experiment, regardless of weather it occurred
first or second, most children recommend that katy should tell truth about her
transgression
They claimed that they themselves would tell the truth about her transgression
They claimed that they would would tell truth about their own misdeed
If fact, when they were asked if they peeked to look at the toy , 75% of those who
had peeked denied doing so
Other researchers found similar results, children's abilities to answer questions about
truth and lies is not a reliable indicator of honestly of their actual testimony
Two followup- studies (study 2 and study 3) found similar results , children
conceptual knowledge about truth and lie telling was not related to their actual
truthfulness
Researchers did find some support , for notion that having children promise to tell
the truth ,before answering questions about their behaviour increased likelihood they
would tell truth
W some modification , the procedure used in the follow up studies was essentially
same as in study 1
Study #2
- Children first engaged in peeking game, thus providing data on their actual
behaviour
- This was followed by questioning component used in study #1, after which children
were asked to promise to tell the truth
- The children were then asked the critical question: when I was gone, did you peerk to
see what the toy was ?
- Researchers found that this procedure significantly reduced lying (down to 57%
compared to 74% in study 1 )
Study #3
-
Attempted to determine weather decrease in lying was due to the discussion about
lying, the promise to tell the truth, or both
- Results revealed act of promising to tell the truth alone was responsible for the
increase in children's truth - telling behaviour
- While their understanding of lies and truth does not appear to be diagnostic of honest
behaviour, simply asking children to promise to tell truth seems to increase their truth
telling behaviour
In 2006, amendments to the Canada Evidence ACT, section 16.2, established an entirely
new approach to establishing competency for persons under 14 years of age
- As you read on, u will note consistency of this part w body of psychological research
described previously
- The child witness project provide briefs and testimony to the commit that was
responsible for writing the amendments
- Persons under 14 years of age are now presumed to have capacity to testify and
would be qualified if they are:
1) Able to understand and respond to questions
2) Prepared to testify on a promise to tell the truth
- Based in part on social science research, the process of competency inquiry been
simplified and shorten
- As w previous competency inquiry, judges still conduct a brief inquiry into whether a
child has capacity to remember past event and can answer questions about those
events, but inquires into child’s understanding of the meaning of truth are no longer
permitted
- A survey of 34 judges estimated that typical inquiry lasts only about 12 minutes
Evaluating Children's Testimonies
- People ability to detect deception is quite limited typically faring no better than
chance
- Research examining how well adults can accurately assess truthful of children report
indicate they dare just as poorly children as they do with adults
Chrstine Saykaly & colleagues
- Recent findings from two studies
- Suggest that differentiating truthful children's report from fabricated ones may be esp
problematic when the event was stressful
- Children between the age of 4 to 9 years provided videotaped accounts of 4 events
1) True non- stressful event
2) A false non- stressful event
3) A true stressful event
4) False stressful event
- Children instructed to be convicinting as possible w interviewer
- Observers were the presented with the video clips and rendered judgement on the
veracity or truthful of the children's account:
Study #1
- Observers viewed 4 video clips, one of each type, presented by 4 different children of
same age
Study #2
- Observers viewed four clips, again one of each type. Presented by the same child
★ In both studies , observers were much better at discriminating between chidrens
report of truthful and fabricated events when the event was non- stressful (accuracy
rates of 71% in study 1 and 63% in study #2)
★ In contrast, observers performance ranged from below chance to chance when
judging veracity of the reports of stressful events ( accuracy rate of 38% in study 1
and 49% in study 2)
★ Implication of these findings are certainly troubling - level of stress in the events
reported by children in these studies pales in comparison to the actual level of stress
associated real events (e.g abuse or victimisation ) that children might be asked
about in court
★ The Canadian court have responded to these findings by providing special
accommodations when children are called upon to testify in the courtroom
Courtroom Accommodations
- Defenders are generally entitled to confront their accusers face to face in court, itis
usually unrealistic to expect children to speak freely in presence of someone who has
harmed them
- Sterility, formality, staginess of courtroom kept especially inhospitable and
intimidating setting for a young child
- A number of alternative ot in court testimony - one way screens , closed- circuit
television, videotaped testimony have been used for children and vulnerable
witnesses
- Other accommodation outlined by Bala 1999
1) Permitting presence of supporting adult of the child's choosing when testifying
( adult cannot be a witness at trial )
2) Admitting videotaped pretrial interviews with the child ( child has to view and
accept contents of tape before it admitted as evidence )
3) Imposing a publication ban on the court proceedings
4) Closing the courtroom to the media and public
Case of R.V Levogiannis 1993
- Court acknowledged that b./c children may react negatively to a face to face
confrontation with the accused accommodation might be required
- At the original trial, testimony of a clinical psychology indicated that the child , a 12
year old boy, experienced a great deal of fear and distress about testifying in
presence of the accused , a 28 year old volunteer mentor in his life
- To reduce boys distress, the judge permitted him to testify behind a one way screen
- The defence appealed the conviction the Supreme court of Canada, challenging the
constitutionality of the screen provisions
- Writing on behalf of the Supreme court of Canada , Madame Justice L’heureux Dube dismissed the appeal, holding screen was necessary obtain full and candid
account from child and its presencing not infringe upon rights of the accused
R.v. Milot 1994
-
-
-
7 year old child was prepared to testify the accused present in room
In the preliminary inquiry, even with a screen shielding her from the accused, she
began hyperventilating and unable to speak
Crown then turned to another alternative method for presenting children's testimony :
A closed- Circuit television (CCTV)
Using this technique, a large television in the courtroom enabled defendant , judge,
and jury to see the testimony , but the child , lawyers, and sometimes a support
person for the child are in another room
The Crowns application for CCTV was accepted by court, held that a defendant's
right to confront his or her accuser was outweighed by need to protect a child victim
from emotional harm
Decision was also based on reasoning that truth - finding function of the trial was
sometimes best served by allowing children to testify by means of CCTV
That is allowing children to testify outside courtroom serves goal of obtaining full and
truthful testimony
Researchers assessed use of CCTV with children to evaluate whether or not
procedure has an impact on children's testimony
Gail Goodman and Colleagues 1998
- Had 5-6 year olds, and 8 to 9 year old participate in a play session with a male
confederate who either placed sticker on their exposed body parts, (eg, toes, arms ,
belly buttons) or placed stickers on their clothings
- 2 weeks later, children testified about about play session in a real courtroom via live
testimony or CCTV
- Mock jurors recruited from community then viewed a stmialted trial containing the
children’s testimony
- Researchers found use of CCTV reduced amount of emotional distress experienced
by children and enabled them give more accurate testimony
- Benefits were achieved without lowering accuracy mock jurors judgments
David Ross , Rod Lindsey and Colleagues
- Used jury stimulation, investigated how these alternative formats for presenting
children's testimony might impact jurors
Study #1
- View video simulation of sexual assault trial involving a 2-year-old child which
presentational format her testimony varied:
1) Testified directly in court with the defendant present ( open court )
2) She testified from another room w testimony presented to the jury via CCTV
3) Testified in court w a screen separating her from the defense net ( open court with
screen)
- In condition 2 and 3 , judge warned mock jurors that barrier or video should not be
evidence of guilt
- No difference in judgement of guilt were found across the three conditions
- Presentation format of the testimony also had no impact on participants evasion of
defence or the credit of child
STUDY #2
-
Found similar results and offered conclusions that there appears to be little reason to
believe having children testify behind barriers or via closed-circuit television will bias
the trial against the defendant
- As final accommodation to spare young children the fighting and traumatizing
experience of testifying in court, Canadian judge also promised admission of children
prior out of court statements by allowing an exception to hearsay rule when a child is
alleged victim in a crime :
Hearsay Testimony
Testifying about what someone else said outside the court- is usually inadmissible
- The reasoning is person who made remakes cannot be cross-examined, and his/her
truthfulness cannot be assessed by jury
- When a child is an alleged victim, the court permits teacher, parent, physician, or
other adults to stand in for a child and testify about what child said
How do jurors respond to such evidence?
- An important study this issue , researchers questioned 248 jurors from 42 different
trials
- Each trial , there was a child testimony as well as adult hearsay testimony on behalf
of the child
- Findings revealed that testimony adult hearsay witnesses was seen as more
consistent, credible, complete and accurate than testimony child witness
- Results are not surprising
- Adults tend be more more confident and give more thorough , detailed response to
questions
- Another clue as to why adults perceived as more accurate has to do with the
attentiveness of jurors
- Jurors carefully scrutinized demeanour of child victims in a search for clues to
uncertainty and deceptions
- They paid careful attentions to children facial expression, eye contact, pauses,
hesitations, gestures, speech errors, and overall nervousness, and may have
interpreted some of the signs as uncertain or even deception
Recovered Memories of Sexual Abuse
- Mid-1990s, sensational claims of sexual abuse at preschools dropped sharply but
claims different type sexual abuse shot up
- Claims involved adults began remember they been sexually abused for years or even
decade earlier
- With no statute of limitation in Canda for indictable offence, delayed prosections of
child sexual abuse began to accumulate at an alarming pace as the 1990s
progressed
Statute of limitations
Amount of time that can elapse after which an individual can no longer be prosecuted for an
offence
- Controversy authenticity of what came known as recovered memories highlighted
important tension in field psychology and law
- Attempt by scientist evaluate accuracy recovered memories took palace in politically
charged atmosphere
-
-
Those who disputed claims of recovered memories were often accused being in side
of child molesters and encouraging denail of sexua abse
Those believed invalidity of recovered memories were sometimes accused of
supporting witch hunts that led criminal prosecutions of innocent ppl
Controversy deepened split between social scientists who tended to be highly
skeptical of recovered memories and practitioners (clinical psychologists and
psychotherapists ) who tende view recovered memories as credible
Practitioners heavily relied on clients reports and case studies , while social science
favoured laboratory field studies
Were the Memories Created or Recovered?
- Researchers examined accumulating cases recovered memories began identify
common patterns
- Patterns suggested to many psychologist that some memories of sexual abuse were
not recovered but implanted
- The typical series event leading discovery long- forgotten memory sexually abused
began w adult women turned to psychotherapy to deal w emotional or interpretational
problems
- The therapist fixed on clients childhood experiences and began to strongly suspect
sexual abuse
- Based on suspicions, client were encouraged, to be receptive to a vague inkling
of abuse as a return of repressed memories
- Some therapists encouraged clients to read books or watch videos that depicted
victims of child sexual abuse experiencing symptoms similar to epxreinced by
client ( depression, unsatisfying relationships)
- Over course weeks, months, therapist might try hypnosis, guided imagery or
dream interpretation to help the client recover her repressed memories
- Under hypnosis, or similarly realized and susceptible state, episodes of sexual abuse
be vividly imagined
- Client might be encouraged join a therapy group included others w recovered
memories of asexual absue
- Through this process, false memories were implanted during therapy
- As false memories became more vivid and elaborate, took on appearance of
authentic memories
- Many psychotherapists had simpler explanations: memories of abuse been
repressed and later recovered during therapy
- The concept of repression (popularised by Sigmund FREUD) holds painful,
threatening, or traumatic memories can be pushed out of consciousness awareness
- This repression of traumatic memories was thought to occur involuntarily and
unconsciously
Repression Hypothesis
- Traumatic memories could remain intact but locked away in the unconscious for
years or even decades
- To unearth these deeply buried memories, it might be necessary to use relaxation
and visualization techniques
-
-
-
Research psychologists documented the process of remembering and forgetting,
pointed out there is little evidence for the concept of repression from controlled
laboratory studies
After comprehensive review of commonly cited studies on repression, Canadian
researcher Don Read noted this body of research fails to provide a clear assessment
of accuracy of recovered and continuous memories
Even outside research laboratory, little evidence of repression
There is considerable evidence that most people have vivid memories of traumatic
events
Ex. Study of 5 to 10-year-olds children witnessed murder of one or both parent found no
evidence children repressed their traumatic memories
- They tried to keep these terrifying images of violence out their mind they could not
- Lok other victims traumatic events, problems was not repression but intrusion despite attempt suppress memory, memory intruded into consciousness
- Combat soldiers often bombarded by unwelcome flashes of battle rape vicitms often
haunted by memories of rape, ppl who been tortured have great difficult putting
memories that torture out of their minds
- This not say that some disturbing memories cannot be forgotten
- Important to note that most common response to traumatic experience is not
forgetting, but rather uncontrolled remembering
- b/c vividness and persistence of most traumatic memories, it is difficult to accept that
some traumatic memories could vanish from conscious awareness for years or even
decades
- Even the strongest evidence of repression is ambigious
Linda Williamns 1994 -- popular study
- Used hospital records to identify 129 adutls women who been victims sexual abuse
as chidlren
- Found 38% of these women said they did not remember events or chose not to tell
an interview about it
IS THIS EVIDENCE OF SUPPRESSION?
- Some of milder form of abuse ( such as inappropriate touching ) may not have been
experienced by chidlren as sexual abuse
- Hospital records may not have been accurate( e.g examining physician may have
been mistaken that abuse occurred because it happened during early childhood (
under age of age 5 )
- Or women were unwilling to admit to a stranger that they been abused
- Studies tell nothing about whether apparently forgotten memories could be recovered
The Ingram Case
- The man recovered memories not having been abused but of having been a sexual
abuser of his children
- Case illustrates some processes involved in creation of false memories
- Pillar of his community
- Sheriff’s deputy in the city of Olympia, Washington
- Deeply religious & active in his local church
- Most life considered good father
-
-
One his daughters accused him sexually abusing her years earlier
Ingram denied these charges,local police were not convinced by his denials
Over course 5 months , repeatedly questioned Ingram about details of his alleged
sexual abuse
They assisted his recall by telling him, over and over again exactly how he abused
his children
Ingram prayed and asked god restore his memories these horrible crimes
Investigators hypnotized him to dredge up old memories
Ingram confessed to raping how own daughters, to repeated violent assaults, to
animal sacrifices, to being a leader in a satanic cult that killed 25 babies
If confession were true, police had successfully exposed a prolific abuser, rapist and
serial killer
Story began unravel when Richard Ofshe- leading researcher false confession
joined the investigation
To test Ingram suggestibility , of she created a false accusation to see if Ingram
would construct a memory of the false event
False event (which was not one of the actual allegation in the case) was that Ingram
had forced his daughter and son to have sex with each other while he watched
At first, Ingram had no recollection this sordid event
But after thinking and praying for guidance, started to recall details event
One day later, confessed to committing the crime
His account what happened was detailed and vivid
Remembered time of day, week, room where act occurred, hus taught during event
and reaction of his son and daughter
Based on this evidence, Ofshe argued Ingram was susceptible and imaginative
person whose intense praying induce a trance like state
After imagining, acts of sexual abuse while in this state, imagined events became
difficult to distinguish from authentic memories
Despite massive police investigation - which included digging up several site where
bodies were allegedly buried - no physical evidence was ever linked ingram ot crime
or even to suggest crime ever happened , nevertheless Ingram was convicted and
sent to prison
Ingram case is unusual b.c it involved recovered memories of being a perpetrator of
sexual abuse
Recovered memories of being a victim of sexual abuse are far more comon
Many elements of Ingram case - vulnerable and suggestible person, an interviewer
who strongly suspected that sexual abuse occurred,d and use hypnosis or other
trancelike state- are typically at play in many cases of recovered memories
Research on Implanting False Memories
- During peak of recovered memory debate, psychologists who believed in repression
correctly point out there was no research showing that false memories could be
implanted and mistake for real memories and actual events
Elizabeth Loftus
- Mid 1990s
- Set out test proposition that false memories could be implanted
- Be cruel and unethical to implant a traumatic moemry sexual abuse intentionally
- create memory being lost at the mall
-
-
Study including 24 ppl, ranging age from 18 to 53, asked to tell what they
remembered about 4 childhood events,
Three out of 4 events actually happened- they experienced reported by parents or
other close relatives
Forth event never happened, that event involved being lost in a mall (or another
public place ) at around age 5, crying being rescued by an elderly woman, and then
being reunited w family
Participants asked about 4 events twice
After 2 interviews conducted over a period of weeks, 25% of people came to
remember most or all implanted ploy in the mall event as true
IRA Hayman and colleagues
- Attempted to create memories of other, more unusual false events
- Use same basic procedures and earlier lost in mall study
- Participants in study were told” when you were 5 you were at the wedding reception
some friends of family and u were running around w some other kidneys when u
bumped into the table and spilled punch bowl in parents of bride
- At first none participants could remember punch bowl event
- 27% eventually came to accept event as real
- Some false recollections were quite vivid:
-
These studies not only showed false memories could be implanted w relatively
little effort, they highlighted crucial importance visual imaginary in creating
false memories
- In punchbowl studies,ppl who scored higher on tests measuring vividness of
visual imagery also tended to develop most detailed and elaborate false
memories
- In action ppl who were instructed to relax and imagine an event they could not initially
recall were much more lily to develop a false memory of event
- Research later suggested memories midlely traumatic events - being attacked by
animal, a serious outdoor accident, or being hurt by another child- could be implanted
in about a third of people tested
- Several conclusion can be drawn from research on implanted memories:
1) False memories cannot be successfully implanted in everyone
- Only about a quarter to a third people came accept a false memory as real
2) Some techniques routinely used in therapy to search out childhood memories hypnosis, dream interpretation, guided imagery - facilitate the production of
detailed visual images that can later be mistaken for real memories
3) Expectancies seem to play a crucial role
- One study found people told that it's possible to remember what a coloured
mobile dangled above their crib the day after their birth are more likley to
remember seeing one
-
-
-
People who believe they lived before often initially remember even from their past
lives while under hypnosis
The relative success of experiments designed to implant false memories is surprising
b/c techniques sued by experimenters were relatively weak
In real cases , ppl who recovered moemreis sexual abuse were subjected greater
pressure over mcu longer peroid time
Controversy over recovered memories cooled during past few years , some residual
bitterness remains
Many claims recovered memories implanted through use suggestive therapy
techniques, also cases where forgotten episodes of genuine abuse are suddenly
recalled
For example one well-documented case, 30 years old became anxious and agitated
while watching movie which main character dealt w traumatic recollection being
sexually abused as a child
After movie ended, man experienced a flood vivid memories being sexually abused
by priest during camping trip 18 years earlier
Re-emergence this traumatic memory occurred without psychotherapy and prior to
widespread public awareness
Other cases where people recovered memories appear to be authentic, memories
came back spontaneously and person astonished by sudden, unexpected memory
Several explanations for forgetting and remembering sexual abuse proposed :
1) Transience memory
- Forgetting occurs with passage of time
- Transience is only small part story b.c most memories important event deteriorate
gradually, they do not simply vanish without a trace
- Researchers examined authentic (As opposed to ficus) recovery memories found
that forgotten sexual abuse was often not initially experienced by child as traumatic
- However, memory became emotionally distressed when recalled by adult who
recognized it as sexual abuse
- For authentic recovered memories was often a lack of reminders of abuse, ex if a
child family moved from the neighbourhood abuse occured or abuser left town or
died forgetting became easier
2) Ppl from the findings found that people who say they were sexually abused as
children more lilky ot temporarily forgot the abuse if abuser is family member
or trusted caretaker
- Some research suggest that forgetting may occur b/c child is physically and
emotionally dependent on abusive family members
- Memories of abuse would damage the essential relationship between caregiver and
child by creating fear and distrust
- To prevent this damage, and maintain an adaptive relationship w caregiver, child
might selectively recall positive memories
- By repeatedly, selectively retrieving positive memories, retrieval of negative
memories become increasingly deficit
- Negative memories nay only enter awareness when exposure to power cues(such
watching movie about child sexual abuse)allow memory to be retrieved
- The individual difference also part ostory
- Some ppl may be good at keeping unpleasant experiences out of their minds
Lyn Myers and Colleagues
- Identified people who appear to be especially good as denying their emotional
responses
- When physiological measures such as blood pressure, heart rate,and muscle tension
indicates that such people are experiencing high levels of stress and anxiety , they
report feeling relaxed and free of stress
- Ppl w this repressive coping style are less able to remember details of negative
events they do recall
- This appears to be the case where ppl have constructed false memories of sexual
abuse
- Seem to be cases where memories sexual abuse have resurface after having been
forgotten for years
How can we know which memories were created and which were recovered?
- Based on their review of scientific literature on recovered memories, Stephen
Lindsay & Don Read concluded that 5 criteria should be met when evaluating
claims of recovered memories of abuse:
- Esp we should be skeptical of alleged recovered memories that
1) Recovered over a period of time using suggestive or coercive techniques
2) Began as vague images or feelings instead of clear, detailed recollections
3) Involve repeated abuse that extended into adolescence (abuse after childhood
is unlikely to be forgotten)
4) Involve abuse occurs before age 3 or in very early childhood (Before enduring
memories can be formed)
5) Involve extremely rare form of abuse(sexual abuse as part satanic ritual)
Don Read & Deborah Connolly
- Canadian researchers
- Analyzed archival database of 2062 criminal cases delayed allegation child sexual
abuse occurred between 1986 and 2003
- The coded case along with a range of variables, one was the presence of repression
(non-continuous or recovered memory of abuse)
- The vast majority of cases 94% involved a continuous memory of abuse (no
evidence of repression)
- By the year 2000, claims of recovered memories had plummeted, which was good
reasons for sharp decline
- Ppl claimed recovered memories sexual abuse later retracted those claims
- Some ppl who accused or being abusers brought successful lawsuits against
psychotherapists who implanted false memories
- As a result many therapists use less suggestive approaches
IN conclusion
- Often, the only witness to child sexual abuse is a victim
- Full and accurate account of crime from child victim is a delicate process
- Children are more susceptible than adults and their account abuse can be corrupted
by suggestive interviewing techniques
- Biased questions can lead to false accusations against innocent people or thwart the
successful resection of actual sexual abusers
-
-
Researchers revealed how biased questioning can create distorted accounts of
abuse
Also developed unbiased techniques that allow interviewers to elicit fuller, more
accurate accounts from child victims
When adult victims of alleged child sexual abuse have recovered long-forgotten
memories being abused, it's important to examine whether those memories might
have been constructed thorough use of highly suggestive psychotherapeutic
techniques
Important treat human memory as carefully as crime scene investigators treat
fingerprints and DNA
Just as physical evidence, great care must be taken to prevent contamination
psychological evidence, only then can the legal system do the essential work of
convincing guilty and releasing innocent
Lecture 7
Overview of the Jury
Drawing a pool of jurors
- Jurors are drawn randomly from electoral rolls & summoned to court
- In-court selection of 12 (+2 alternate) jurors from larger pool
-
Eligible
- 18 yrs or older
- Canadian citizen
- Language proficiency
-
Ineligible
- Certain occupations
- Conflict of interest
- May be excused due to hardship
Can you ‘stack’ a jury?
- Why do different people interpret the same evidence differently?
- What role might gender, occupation, age, and income play on verdicts?
Scientific Jury Selection
- Jury consultants can be hired to profile ideal jurors for a case
- Unregulated, more often an ‘art’ than science
- Little agreement among lawyers or psychologists
- "…the substantive evidence presented in a trial is the most powerful determinant
of jurors’ verdicts”
- Bornstein & Greene (2011)
Similarity between Juror and Defendant
Similarity-leniency effect: tendency for jurors to be more lenient with defendants who are
similar to them
Black sheep effect: tendency for jurors to be harsher toward defendants who are similar to
them
Assumptions in the Law
- Legal view of the jury as decision makers may be faulty:
- as a blank slate
- withhold a verdict until all evidence is heard
- recall all details of trial
- evaluate evidence in light of Judge’s instructions
- able to judge case only on evidence
Halos and Horns
Halo effect: tendency for one trait to influence evaluation to other traits
- We tend to evaluate a person as having many positive traits because they have
one positive trait (e.g., attractive, wealthy = funny, successful, innocent)
- We also think a person will have many negative traits if they have one salient
negative trait (e.g., unattractive, poor = less funny, unsuccessful, guilty)
Representativeness & Impartiality
Requirements of Jurors
- The Canadian Charter of Rights and Freedoms specifies that the jury must be fair
and impartial.
1) Representativeness
- Jury should reflect the wider community (not necessarily your exact peer)
2) Impartiality
- Case should be judged on the evidence alone
1. Representativeness
- R. v. Kokopenace (2015, SCC)
- Defendant not entitled to a perfect crosssection of society
- Representativeness applies to the process used to compile a jury, not its
final composition
- Crown cannot deliberately exclude segments of the population
Jury Composition and Diversity
Diverse juries do a better job!
- Deliberate longer
- Discuss evidence in more depth, more accurately
- Consider more diverse perspectives
But there are barriers for some groups
- Distance, travel, cost, work, income, language, ability
Representativeness
- Iacobucci report (2013) found that First Nations persons living on reserve are
underrepresented on juries
- Many practical and cultural barriers, distrust of justice system
-
Series of recommendations
2. Impartiality
- An impartial juror is indifferent between the prosecution and the accused
- A partial juror has bias affecting verdict
- R.v. Parks (1993, Ont. CA): Partiality is “prejudice that involves the presence of
general attitudes, beliefs, and biases held by the juror that prevent the juror from
deciding the case with a fair and impartial mind”
Sources of Jury Bias
Sources of Juror Prejudice (Vidmar, 1997)
1. Interest prejudice: Occurs when a jury member has a vested interest in the
outcome of the case
- It may be DIRECT:
- e.g., Family member on trial, business interest in outcome of trial
-
or INDIRECT:
E.g., you suffer from the same injury as plaintiff, you have also been
victim of the crime def accused of
2. Normative prejudice: also called conformity prejudice – occurs when jurors feel
strong community interest in particular outcome
- e.g., Notorious case in a small town
3. Specific prejudice: attitudes and beliefs about specific case
- May involve famous defendants, heavy pre-trial publicity, gossip/rumours
- Pre-trial coverage may include
- confessions, prior criminal record, inadmissible info,
- stories that question defendant’s character, witness credibility
Martin Shkreli, the “pharma bro”
- In 2015, he bought the rights to Daraprim, an AIDS medication, raised it from
$13.50 per pill to $750
- Widely hated, smug
- Later charged with multiple counts of securities fraud
- Very difficult to get a neutral jury member, large panel
Pre-trial publicity example (specific prejudice)
- Luka Magnotta (2014 trial)
- Charged with gruesome and widely publicized murder of Lin Jun
- Interviewed and screened more than 1600 potential jurors for impartiality
- Many excluded because they ‘knew too much” about the case from media
Does pre-trial publicity really affect us?
- Ruva, McEvoy & Bryant (2007): Mock jurors exposed to pre-trial publicity
showed:
- increased guilty verdicts & longer sentences
- lower defendant credibility
-
- mistaken belief the PTP was presented at trial
Doesn’t matter if the juror believes they can stay impartial
Judicial instructions do not help
4. Generic prejudice: general attitudes/beliefs about certain groups of people or
certain types of crimes
e.g., racialized minority defendants, domestic violence, child abuse cases
Remedies for Jury Bias
Remedies for Partiality
1. Adjournment – delay the trial
2. Change of Venue – move trial to another jurisdiction
3. Challenge for Cause – ask jury members if their decisions will be affected by bias
-
Must be a reasonable possibility that potential jurors hold biases that would affect
their performance as jurors
Available for all racial minority defendants (R. v. Parks, 1993)
Assumptions Underlying the Challenge for Cause
- People are of aware of their biases
- People know how bias affects them
- People can/will correct for their biases
- We can recognize bias in others
Courtroom Observations (Schuller, Erentzen, Vo, & Li, 2015)
- Observed jury selection proceedings - in court or by transcript
- All employed a Parks type question
o Would your ability…be affected by the fact that the accused is Black? …is
East Indian?...a woman of colour?
- 28 defendants (24 men, 4 women)
- Range of cases (murder, sexual assault, drug related)
Results
-
8% of potential jurors reported bias (92% = said they were unbiased)
Bias more likely if def accused of a violent offences (10%) than nonviolent
offences (3%)
When given multiple choice options (e.g., I don’t know), only 60% believed they
could be impartial
If respond in presence of jury panel, 0% reported potential bias
Juror Simulation (Schuller, Kazoleus, & Kawakami, 2009)
- Schuller et al. (2009) examined whether the format of the challenge question
itself might affect jury decision making
- Conducted a mock trial with four conditions
1. White defendant, no challenge
2. Black defendant, no challenge
3. Black defendant, closed ended question
4. Black defendant, reflective question
Results
Chapter 7
The Jury in Canada
·
In civil trials, which involve a dispute between private parties (individuals or
corporations) and not the state, the right to a jury is not specifically preserved in the
Charter and its use has slowly declined over the last 200 years
·
The Canadian Criminal Code divides offences into three broad categories— 1.
summary offences, 2. indictable offences, and 3. hybrid offences—and the right to
a jury trial needs to be understood in these contexts
1. The least serious offences, referred to as summary offences, are tried in a lower
court by a judge alone and the accused has no right to a jury trial.
o Examples of summary offences include disturbing the peace, solicitation of
prostitution, and assault.
o Summary offences are punishable by no more than 6 months in jail, a fine
(typically no more than $5000), or both but there are exceptions. For
certain summary offences, such as assault with a weapon, the maximum
sentence may be as long as 18 months.)
2.
Juries are reserved for the most serious class of offences, indictable offences.
o In the most serious of these, which include murder, treason, and piracy,
the accused will be tried in a superior court before a judge and jury
o There may be some exceptions. For instance, if the Crown and defence
request a trial by judge alone, the request may be granted.)
3. For the majority of other offences, referred to as hybrid offences, or “either way
offences,” the Crown has the option to proceed either summarily (by the judge) or by
indictment (by judge and jury).
o In cases where the Crown elects to proceed by indictment, the maximum
sentence available on conviction will be much higher than if the Crown
had proceeded summarily and will vary depending on the sentence
specified for the particular offence (e.g., assault, assault with weapon,
forgery)
o If the Crown does proceed by indictment, then the accused has the choice
of how he or she would like to proceed, that is, whether by judge and jury
or by judge alone.
The Role and Function of the Jury
·
You may often hear the jury referred to as the fact finders.
·
In other words, it is the jury’s duty to determine the facts from the evidence
presented at trial and then apply those facts to the law (as given by the judge) in order to
reach a verdict
·
The Canadian criminal jury, unlike the civil jury in Canada or juries in the United
States, is always composed of 12 persons (Criminal Code, 1985, C-46).
·
The jury’s strength as fact finders, in comparison to the strengths of a single judge,
is that the jury uses the wisdom and perspectives of 12 ordinary persons selected from
the community who must unanimously agree on a verdict
·
Because jurors can apply their own understanding of justice in reaching a verdict
while not having to justify their decision, the jury can guard against oppressive or rigid
laws
Conflicts between the Jurors’ Sense of Justice and the Law
·
Nullify: to declare a law legally void
·
Unlike juries in Canada, juries in the United States do have the right to nullify the
law but, despite having this right, there is no obligation on the part of the court to inform
the jury of its nullification powers. In a series of juror simulation studies,
Out-of-Court Process
·
The composition of the jury list is controlled by the Jury Act.
o Federal, provincial, and territorial statutes stipulate how the court is to
assemble juries that constitute a “fair cross-section of the community.”
o The general rule is that the list is compiled by random selection from
electoral rolls in the territory, province, or local community
o This means that anyone who is a Canadian citizen, 18 years of age or
older (19 years of age in British Columbia, 21 years in the Yukon), and a
resident of the jurisdiction in which the crime was committed (and where
the trial will be usually held) is eligible.
·
Each province or territory has a detailed list of persons who are excluded from jury
duty
o For example, in Ontario, excluded persons include police officers, lawyers,
trustees-in-bankruptcy, and employees of the Ministry of the Attorney
General.
In-Court Process
·
Summons—a legal notice to appear in a particular courthouse at an assigned
date and time.
·
The group of prospective jurors that shows up is called the venire (from the Latin
meaning “cause to come” or “come when called”) or jury panel.
·
Canadian judges are increasingly taking an intolerant view of absenteeism.
·
More potential jurors are lost because of special pleas that jury service would
cause them “undue hardship or extreme inconvenience.”
·
This generalized category can be used to accommodate a vast number of reasons
for releasing someone from jury service.
·
Lawyers have two types of challenges at their disposal for removing a juror
o The first is known as a challenge for cause—the lawyer challenges a
would-be juror, claiming that it is unlikely that the juror will be able to
render an impartial verdict based solely on the evidence and the law.
§ In theory, there is no limit to the number of challenges for cause,
but this procedure is not invoked lightly.
§ This is the standard of proof used to demonstrate a “realistic
potential” for bias
o If neither of the lawyers seeks to use the challenge for cause or the judge
refuses to grant the challenge, the lawyers still have the peremptory
challenge.
§ Using this more powerful type of challenge, a lawyer can dismiss a
juror without giving a reason or obtaining approval from the trial
judge
§ Each lawyer, however, is allotted a limited number of peremptory
challenges.
§ The number varies depending on the seriousness of the charges
against the defendant
§ For the most serious of offences, such as murder and high treason,
the defence and prosecution each have 20 peremptory challenges
at their disposal.
§ The ability to eliminate persons with whom either side is
uncomfortable, no matter what the grounds for exclusion, provides
a perception of trial fairness.
Selecting a Jury
·
To use their peremptory challenges to best effect, lawyers must figure out which
potential jurors will be least favourable to their side of the case
·
The problem is that no matter what lawyers are able to find out by looking and
listening, they cannot possibly know in advance how a particular juror will respond to the
evidence in the case about to be tried.
·
And they cannot know how that juror will influence and be influenced by other
jurors in the deliberation room.
·
To guide their decision making, some lawyers have developed crude shortcuts for
selecting jurors
Juror Characteristics and Attitudes as Predictors of Verdict
·
Overall, the persuasiveness of the evidence presented at trial is the best predictor
of whether a defendant is convicted or acquitted.
·
The study made use of multiple regression—a technique that statistically
combines a large group of variables to predict an outcome variable (the verdict, in this
study).
·
These gender differences are often explained in terms of identification with the
victim (women are more likely to identify with the victim than men are), rape myth
acceptance (men are more accepting of rape myths than women are), and attributions of
victim blame (women are less likely to assign blame and responsibility to the victim than
men are).
Defendant–Juror Similarity
·
The similarity–leniency hypothesis predicts that jurors who are similar to the
defendant will empathize and identify with the defendant.
·
sometimes there was a boomerang effect—similar jurors were occasionally
harsher on defendants than dissimilar jurors were.
o For example, if the evidence against a black defendant was strong and
black jurors were in the minority on the jury, the black jurors judged the
defendant as guiltier than did white jurors.
o If the evidence was strong and whites were in the minority on the jury, they
were harsher with white defendants
o It appears that similarity produces leniency only when the evidence
against the defendant is inconclusive and when similar jurors outnumber
dissimilar jurors.
o Sometimes similarity causes jurors to be more, rather than less, harsh in
their judgments of a defendant.
Characteristics of the Jury
·
Representativeness
o Although jury selection procedures vary slightly across Canada, the basic
method is that individuals from the local community are randomly selected
and summoned to appear for jury duty
o First, from a statistical perspective, it is unrealistic to imagine that any
group of 12 jurors can be fully representative of a much larger community.
o Second, while a particular jury may include a diverse assortment of
people, no one person is expected to represent the views of a particular
constituency
o The process of obtaining a comprehensive list of eligible potential jurors
can, in and of itself, introduce the first layer of bias
o For instance, the jury list is often drawn from addresses within a certain
radius of the courthouse where the trial will occur, and if particular groups
do not reside in these locations they will not be included.
o An important independent review of First Nations representation on
Ontario’s jury rolls conducted by former Supreme Court Justice Frank
Iacobucci highlights the unique problems of obtaining a representation of
First Nations persons living on reserve communities
o Some of these challenges include distrust of the courts and practical
barriers to their participation (e.g., cost of transportation, inadequate jury
duty allowances, difficulty understanding the summons).
o Another significant obstacle is the cultural view held by many First Nations
people that one should not judge the actions of others. Criminal trials
require the jury to make a finding of guilt or innocence.
o This act may affect a person’s future in a negative way, and First Nations
people may feel unwilling to participate in that process.
·
Impartiality
o The logic was that previous dealings with the defendant and prior
knowledge of his or her reputation would be useful in assessing the
defendant’s credibility. In contrast, modern juries are intended to be
impartial
o Indeed, impartiality cannot be equated with ignorance of the facts of the
case.
o The courts, like social psychologists, recognize the important distinction
between the attitude (prejudice) and the behavioural expression of that
attitude (discrimination).
o Social psychologists define prejudice as “a negative prejudgment of a
group and its individual members
o Prejudice comprises both affect (feelings and emotions) and cognitions
(beliefs and in some cases stereotypes) in combination with behaviour
(actions).
Jury Bias and Remedies
·
Partiality
o 1. The first type, interest prejudice, involve biases that jurors may
harbour as a result of their direct interest or stake in the outcome of the
case (e.g., relation to the accused or to a witness who might be testifying).
o 2. A second type, specific prejudice, involves attitudes or beliefs about
the specific case that may interfere with the juror’s ability to decide the
case fairly
§ These beliefs may arise as a result of publicity through mass media
(e.g., newspaper and television coverage) or through discussions
and rumours circulating about the case through social networks
within the community
o 3. The third type, generic prejudice, concerns general attitudes and
beliefs about certain groups of people or certain types of crimes that may
prevent the juror from deciding a case without bias
§ .For example, racial or ethnic prejudices would be considered
generic prejudice.
§ The concern here is that a person who holds prejudicial beliefs or
stereotypes about a particular group (e.g., blacks, Aboriginals,
gays and lesbians) may judge an accused who is a member of that
group on the basis of their group membership rather than on the
facts of the case heard at trial.
§ The fourth type, normative prejudice, refers to biases that occur
when there is such strong community interest in a particular trial
outcome that a juror feels he or she must reach a verdict
consistent with community sentiment rather than with the evidence
presented at trial.
§ Considerable research demonstrates that our expectations and
beliefs about others—as well as how we think the world
operates—influence how we view and integrate information.
§ In other words, our expectancies, or what psychologists call
schemas, guide our attention (e.g., what information we notice
and attend to), our recall (e.g., what information we remember or
misremember), our interpretation (e.g., the meaning we assign to
the information), and our integration of the information (e.g., how
we fit the pieces together).
Pretrial Publicity
·
The Canadian courts may place tighter reins on media coverage immediately
before and during trials than American courts typically do, but high-profile cases can still
gain considerable media coverage well before the trial begins.
·
Given that news reports are based on information supplied by the police
department and the Crown attorney’s office, they tend to have a pro-prosecution slant.
·
They also focus on information that the public wants to know: details of the
crime, the ongoing police investigation, the effects of the crime on victims or their
families, and incriminating evidence against the defendant
·
Lawyers for the defence argued that the public inquiry would prejudice their
clients’ rights to a fair trial.
·
James Ogloff and Neil Vidmar (1994) conducted a study to test the hypothesis that
television coverage of the Mount Cashel abuse scandal was more prejudicial than the
newspaper coverage
·
In the study, they provided their undergraduate participants with one of four
information packages:
o (1) actual televised excerpts of the testimony presented at the inquiry
o (2) excerpts of the testimony from actual newspaper articles
o (3) both print and televised versions of the material
o (4) neutral material (as a control condition).
·
To assess the effects of pretrial publicity on prospective jurors’ post-trial opinions
and verdicts, Jonathan Freedman and his students at the University of Toronto exposed
study participants to either prejudicial or neutral publicity about a case they were to view
a week later
·
Immediately after reading the publicity, half of the participants were asked to form
an opinion about the guilt of the accused
·
The biasing effect of pretrial publicity is especially strong when news coverage is
emotionally arousing
Remedies
·
1. An adjournment is basically a delay of the trial
·
2. A change of venue involves moving the trial to a new location
·
Although the accused is normally tried in the community where the crime
occurred, the Criminal Code allows either the Crown or the defence to request that the
trial be held elsewhere
·
The standard for relocating a trial is that there is a “fair and reasonable
probability of partiality or prejudice” in the community
o For example, Paul Bernardo’s trial discussed earlier in this chapter, was
moved from St. Catharines (where he lived) to Toronto on the grounds
that a fair trial might not be held in St. Catharines given the emotional
impact the case had on the community
·
3. A third strategy used by lawyers is to invoke a challenge for cause.
o As we indicated earlier, this remedy is used for dealing with either specific
prejudice (e.g., pretrial prejudice) or generic prejudice (e.g., racial bias).
o It involves a limited questioning of the potential jurors to screen out those
who demonstrate potential bias.
o As with a change of venue, the challenge for cause is not the norm, and
the defence or the Crown must convince the trial judge that it is necessary
o In addition, the judge must ensure that the questioning is limited to the
potential juror’s state of mind; examining the juror’s personality or
background is not permitted
o To begin the process, two individuals are randomly chosen from the jury
panel and sworn to serve as “triers.”
An Overview of Trial Procedure
·
1. Trials begin with opening statements by the opposing lawyers.
o These statements are not considered evidence.
o Instead they are meant to highlight the issues at stake and to provide
jurors with an overview of the evidence that will be heard
o prosecutors and plaintiffs’ lawyers speak first because they are claiming
the defendant broke the law and, therefore, they must bear the burden of
proof for that claim
o In criminal cases, a defendant must be judged guilty beyond a
reasonable doubt, while in civil cases, the standard of proof for being
held liable (responsible for causing the alleged harm) is usually defined as
a balance of probabilities.
o These burden-of-proof standards are difficult for jurors to understand and,
unfortunately, the law does not supply unambiguous definitions.
2. Following opening statements, the prosecutor or plaintiff’s lawyer calls a witness to testify
and questions him or her; this is called direct examination.
o After the witness has been questioned by the prosecutor or plaintiff’s
lawyer, the defence lawyer may then cross-examine the witness (i.e., ask
questions of their own).
o Next, the prosecutor or plaintiff’s lawyer has an opportunity to question the
witness again in a process called redirect examination
o The last opportunity for questioning the witness is given to the defence
lawyer in recross examination
3. After all the evidence has been presented, each lawyer makes a closing argument, also
referred to as a “summation.” Like opening statements, closing arguments are not
evidence.
Chapter 8: Juries and Judges and Decision-Makers
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-
juries comprise people who may have little in common and have no established
relationships
Studying juries
social scientists in Canada cannot study the jury directly and must rely on
indirect methods.
- Mock jurors (typically undergraduate university students) are presented with
a simulated trial in written, audio, or video format. They then answer
questions about the case and provide a verdict.
The Jury Decision-Making Process
- One useful way of describing the decision-making processes of jurors is
through the use of mathematical models
the story model proposes that jurors create stories to make sense of
evidence presented at trial.
- the inferences necessary to complete the story are informed by a juror’s past
experience and pre-existing knowledge of similar events.
- According to the story model, jurors construct their stories while hearing
the evidence at trial. Next, they learn about possible verdicts (usually at
the end of the trial, when the judge reads the instructions to the jurors).
Finally, they select the verdict that best fits with the story they have
constructed to make sense of the evidence
-
The Impact of Evidence
Liberation hypothesis: This hypothesis proposes that, in most trials, jury
verdicts are determined by the strength of the evidence because the evidence
for conviction or acquittal is usually compelling
- lack of clear evidence favouring the defence or prosecution forces jurors to
base their decisions on factors such as prior beliefs, assumptions, pretrial
publicity, or even prejudice
-
The Effects of Non-Evidentiary Factors
- Defendant Characteristics
- Mazella and Feingold (1994)
- They found that defendants were judged less harshly if they
were attractive, female, and of high socioeconomic status.
Female defendants were treated more leniently than male
defendants, but only for the crime of theft
- Defendants were also judged more harshly if the victim was
female; other victim characteristics, however, did not affect
mock jurors’ judgments
-
Inadmissible Evidence
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-
-
inadmissible evidence (e.g., information that might be prejudicial) that
they may be exposed to during the trial.
may come from witnesses or lawyers
theory of ironic processes: the theory states that when we make an
effort not to think about something, it often dominates our thoughts,
especially when we are under stress and much of our mental capacity
is already in use
reactance theory: according to this theory, people are motivated to
maintain their freedom
impeachment evidence—evidence meant to damage the credibility of
a witness’s statements
Complex Evidence
- Research conducted by Regina Schuller and her colleagues
demonstrated that the expert’s gender might also affect mock jurors’
decisions in the face of complex testimony
expert testimony is not accepted uncritically by jurors and does not
appear to have an overpowering impact on verdicts. In some cases,
jurors regard it with special skepticism because they may perceive
experts as “hired guns”
-
In-Court Comprehension Aids
- Lack of comprehensibility is due to both the vagueness of the legal concepts
and the poor quality of the writing.
- The instructions are packed with legal terminology and are written in a
complex, convoluted style
- Pre-instructions (read to jurors before the trial begins) appear to provide a
schema that helps jurors organize the information presented at trial
- Smith, 1991 study
- two groups of mock jurors watched an auto theft trial and reached
verdicts based on the evidence
- One group (post-instruction group) received instructions at the usual
time (i.e., following evidence presentation) while the other (preinstruction group) received them before the trial started.
The conviction rate for the post-instruction group was 59%.
- The preinstruction group received the instruction before evidence was
presented. For the pre-instruction group, the conviction rate dropped
to 37%
- It appears that pretrial instructions create a mindset among jurors that
causes them to evaluate evidence differently
- Researchers found no evidence that note-taking was used as a memory aid
or that it increased juror satisfaction with the trial process or verdict
-
Jury Deliberation Dynamics
- strong jurors or key jurors or jury leaders: jurors who seem likely to have
a disproportionate influence on the deliberation process
Potential jurors judged to be strong are often well-educated, articulate, and
have high occupational status relative to other potential jurors
-
the leniency bias: evenly split or almost evenly split juries, where roughly
half the jurors favour guilty on the initial vote and the other half favour not
guilty, it is much more likely that the final verdict will be not guilty
-
Stages in the Deliberation Process
- based on observations of mock juries and post-verdict interviews with
actual jurors, it appears that many juries move through a three-stage
process
1. the first phase—the orientation stage—juries elect a foreperson, discuss
procedures, and raise general issues.
- verdict-driven deliberation style of structuring the
process tends to encourage jurors to sort the evidence
into two categories: supporting conviction or
supporting acquittal
- evidence-driven deliberation style, in which the first
vote is postponed until after there has been careful,
systematic discussion of the evidence
2. the second phase—the open conflict stage—differences in opinion among
members of the jury become apparent and coalitions may form between members of
the group.
- a process of informational influence: They change
their opinions because other jurors make compelling
arguments that convince them to alter their vote
- normative influence:, they give in to group pressure to
conform to the majority opinion, even though their view
of the case is different
3. the third and final phase—the reconciliation stage. During this final phase, attempts
may be made to soothe hurt feelings and make everyone feel satisfied with the
verdict
- a hung jury—one that cannot reach a unanimous
verdict—never makes it to the reconciliation phase
- Size of the Jury
- In the case of Williams v. Florida (1970), the U.S. Supreme Court
decided that it was permissible to reduce the size of juries to 6 people
in non-capital cases (any case where there is no possibility of the
death penalty)
compared to smaller juries, large juries deliberate longer, recall
evidence more accurately, generate more arguments, agree more on
their ratings of jury performance, are more representative of the
community, and produce more consistent verdicts
- Larger juries are also more representative in general—there is a
broader representation of demographic groups (e.g., by gender, race,
and ethnicity), there are more people with minority opinions, and there
is a greater range of opinion and expertise
-
Decision Rules (Unanimous or Majority Rule)
-
-
-
Michael Saks and Mollie Marti (1997) investigated decision rules and
found that juries required to reach unanimity deliberated longer than
majority-rule juries.
Saks and Marti found that the requirement of unanimity empowered
the minority to “effectively alter the course set by the majority”
Judges Compared to Juries
- Judges, like jurors, are susceptible to bias arising from their attitudes, life
experiences, and basic values, all of which are inescapable elements in
human decision making
- judges are routinely exposed to potentially biasing information as part of their
jobs
- Agreement Between Juries and Judges
- The Kalven and Zeisel study (1966) did collect some information on
the nature of the cases in which disagreement occurred
- findings suggest that jury–judge disparities are likely due to
reasonable differences of opinion in cases where the evidence
does not clearly favour one side.
- experienced jurors tend to be more conviction prone
Lecture 6
Child witnesses and false memories
Child Witness Research
1900 – 1914 – European research on children’s suggestibility
●
E.g, study where researcher showed children a board with an array of items them
took it away and asked them what they remembered (free recall most accurate).
Then later asked questions suggesting the presence of certain items and it affected
the childrens accuracy
1915- 1970s – very little done – general finding that accuracy improves with age
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Misinformation effect found. The way you ask questions of a witness can change
their memories and you can plant false details in their memory
The younger they are, the less likely to recall a memory
1980s and 1990s - resurgence of studies
1.
2.
Adult eyewitness research takes off
Reporting of child sexual abuse
“Chester the Janitor” Study (Clarke-Stewart, Thompson, & Lepore, 1989)
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5 and 6 yr olds watched Chester cleaning toys
Children questioned several times that day on what Chester did
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Variation in the way the children were asked
Neutral tone: accurate recall
Accusatory (was chester playing with those toys when he is suppose to be working?)
tone or Exculpatory tone (chester was doing a good job in cleaning those toys wasn’t
he):
75% supported examiner tone at T1
As the day went on kinds began to make factual errors
90% supported examiner tone at T2 (questions became more suggestive)
Children began to elaborate in the examiners tone
20% made factual errors (say things that didnt happen)
Children can interpret ambiguous things to be consistent w/ an interviewers
expectations
Some kids would start in one tone and switched their POV along with the inteviewer
and begin to agree with the new tone
“Dale” Study Lepore & Sesco (1994)
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4-6 yr olds play game with “Dale”, who asks them to take off his sweater
Kids interviewed in either
a) Neutral tone-“What did he do first? OK, what next?”
b) Incriminating tone with misleading questions suggesting contact -“He
wasn’t supposed to do that. That was bad! What else did he do?” (suggesting he did
something else inappropriate)
-
Suggest dale is a bad guy who does bad things
▪Incriminating condition showed more errors, endorsed biased suggestions (being kissed by
Dale) and 1/3 embellished responses (say Dale made them do things that arent true or did
not happen), especially to questions about Dale touching other children. More lilkley to agree
with suggetable questions compared to free recall group
“Park Rangers” study Pettit, Fagan & Howie (1990)
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1.
2.
3.
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Park Rangers visit school & knocks a cake on the floor & leaves
2 weeks later kids interviewed by an interviewer given either
Accurate info
Inaccurate info (false details of encounter)
No info
Misled interviewer used 4-5 times as many misleading questions
Children supplied expected info (false details from the interviewer) 41% of the time
If someone is interviewing a child whos experienced some form of abuse, and the
interviewer has some assumption about the case, they will get that from the child in
one way or another
“Simon Says” study – White, Leichtman, & Ceci, 1997
PHASE I
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Children play Simon Says, social worker interviews them 1 month later
Info given to the interviewer varied
When Social Worker has accurate report, 93% of kids give accurate info
When Social Worker has inaccurate report, kids corroborate a false story:
○ 34% of 3-4 yr olds
○ 18% of 5-6 yr olds
PHASE 2
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Interviewers’ notes given to 2nd Interviewer who re-interviews kids 2 months later
Children continue to
1) make errors consistent with SW’S beliefs 2) increase confidence over time
-
If someone plants false detail in a report even inadvertenly, that becomes the
narrative and can become easy for kids ot confirm the facts is true
Ppl can become wrongfully convicted if children are misled and give false information
as testimonys
“Sam Stone” Study Leitchman & Ceci (1995)
‘Sam Stone’ visits school age kids, says “Hello,” walks around, then “Goodbye”
Control group:
Non-suggestive questions (free recall)
Stereotype induction group:
-Told in advance “he is clumsy”
-Later shown ripped book and soiled bear, asked if Sam did it
-Repeated, misleading questions
Kids questioned 4 times over 10 weeks
-
Asked if sam got chocolate on the teddy bear or ripped a book
Kids were accurate 10% of 3-4 yr olds suggested sam had done it
1% thought sam mightve done it of the 5-6 yr olds. And non said they witnessed him
doing it
Sam stone: stereotype induction + suggestion
-
72% of 3-4 yr olds accuse sam of doing it and 40% claim they witnessed him doing it
40% of 5-6 yr old accuse sam of doing it and 15% say they witnessed him doing it
Problematic because many children added false details to embolish their stories
Easy to lead kids to give a testimony that is inaccurate by the way questions are
asked
Can easily be mislead
Child Witnesses – Forms of Biased Questioning
Problematic Questioning: Closed-Ended Questions (Ceci & Bruck, 1993)
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Using free narrative is best approach (simply asking them to recall)
Children are biased toward answering “yes” when asked yes/no questions
Problematic if questions are more one sided (did they do this to you)
Younger children are very susceptible to leading/ close ended questions
Time span between event and interview matters (likley distortion will occur, details
will be forgotten and accuracy will be reduced especially at 3-4 yrs old)
Problematic Questioning: Repeated Questioning
Repeating the question over and over can:
a. signify they gave the wrong answer (keep asking if not getting answers they want)
- Bc children like to please they will interpret the repeated questions as not
giving a satisfactory/ right answer. so they will…
b. Induce a false memory (they will change what they say and perhaps develop a false
memory of the event)
Ceci & Bruck (1983) Asked children about getting a finger caught in a mousetrap
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58% preschoolers gave detailed descriptions
25% created false memory of the event
Just by asking questions over again these findings prove how susceptible children
are
Problematic Questioning: Peer Pressure
-
Interviewer tells the child that other kids have been abused too => Child falsely
reports abuse in conformity with other kids
Creates normative pressure for the child to not be the only one not to have the
experience.
Problematic questioning: Power Differential
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Kids are sensitive to power and status of the adult (want to please especially high
authority figures)
Reluctant to correct the adult, may follow the narrative even if they know it’s wrong
(dont want to be rude, disrespectful)
Especially the case with police (when kids like the police they might be suceptipble to
this power defrencial)
Problematic Questioning: Rewards
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Kids might be offered a reward if they disclose the abuse (tell the officer what they
want to hear)
Tells kids what story the adults are waiting for
May disclose just to get the reward
Problematic Questioning: Stereotype Induction
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Describing the accused as a bad person who does bad things
Kids will help build and elaborate on the bad guy narrative, may make accusation
Can happen during interviews in cases of suspected abuse
Try to break the silence from the child to geth them comfortable and to feel
understood. Can backfire and end up building a faulty profile for a suspected person
to the point where they present false information
Problematic Questioning: Interviewer Beliefs
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Kids will provide narratives consistent withinterviewer’s expectation/ preconceived
ideas about the suspect. Even if they are fabricating it while they go along
Interviewer may pursue version of events (repeated questions, directing/ leading
questions => i heard something happened with your friend, tell me about it)
- Dont know if youre getting correct info or if the child is just confirming what
the interviewer suggested
tone of voice
non-verbal behaviour (bodily cues like head nods, thumbs up)
problematic questioning styles
Recommendations for Questioning Children (NICHD Interview Protocol)
1. Avoid confirmatory biases (no preconcievable ideas, go in with open mind)
2. Encourage child to describe in their own words (free recall no misleading or closed
ended question)
3. Express lack of knowledge for the events (dont know what happened)
4. Encourage child to correct mistakes (i need to be corrected if im wrong, allowed to
correct an adult)
5. Ask general questions to prompt recall (tell me what happened, can you tell me a
little more about this i’d like to know”
6. Move to more specific but non-leading questions
7. Document how reports were obtained
8. Videotape interviews (see whether the interviewer did a good job or was misleading,
better to have bigger picture than biased notes. Can help in discvovering accurate
information from any information )
Children as Witnesses in Court
Historical Approaches to Child Witnesses
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1800s: children deemed unfit to testify (considered prone to fantasy & suggestibility)
1900s: children can testify but must take an oath if children under 14 understand the
nature and consequences of doing so => evoke spiritual appeals and religious
consequences (no special accomadation for kids)
1988: competency inquiry (before trial or during hearing to determnine if child is
competent to give info- and if they know the difference between truth and lie and can
communicate efficiently)
Competency Inquiries
Criticized by many defence lawyers and psychologists
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Developmentally inappropriate questions (asking a 5 yr old what truth, lie or oath
means => abstract questions and is religion biased)
Not all children are religous or christian and may not fully understand an oath
therefore may be excluded from court
Often relied on religious insight
Leads to many appeals based on the judges ruling
Child Witness Project (Bala, Lindsay, & Talwar, 2001)
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Tested childrens ability to give testimony and recall accuratly
Children put into a situation where they would be tempted to cheat, then asked
whether they cheated (don’t look, don’t peak. I’ll be back to play the game)
75% of those who had peeked denied doing so
Understanding of lying and truth-telling was not related to honesty or predictive
Promising to tell the truth increased honesty (liklihood of telling the truth)
Current Test: s. 16(3) Canada Evidence Act
Under 14 yrs. = presumed capable to testify
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Test is simply that they are able to “understand and respond to questions (less
rules of defining truth from lies)
Don’t have to take oath but must “promise to tell the truth” (predictive of honesty)
In-court accommodations (helps to protect child)
1. Courtroom is closed to the public (cant have spectators as it reduces eyes on child
and promotes privacy)
2. Hearsay testimony permitted (in court statment)
● If child discloses info to a trustyed adult, that adult may be requested in court
to testify on the child behalf in a way
3. Child testifies from another room via closed circuit video (reduces anxiety, promotes
feelings of saftey & comfortableness, less traumatizing)
4. Pre-recorded video testimony (criticized bc child might change their testimony)
5. Child has a support person present (child worker, parent, support dogs to feel calm
etc.)
6. A screen separates the child and defendant (defendant cant see the child, prevents
intimidation)
Do accommodations influence juries?
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Accommodations might influence jurors decision making:
Child appears more relaxed and less emotional (less credible? Bc of expectations of
what victims look)
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Child’s need for accommodation might increase appearance of guilt (that they need
to be shielded bc they cannot lie in the face of the person they’re accusing vs.
needing these accommodations bc they’re so traumatized => different perspectives)
Ross et al. (1994) – type of accommodation does not influence conviction rate or
credibility ratings
Myers et al. (1999) – hearsay (out of court statments) from adults may seem more
influential and credible
Daycare abuse allegations & Satanic Panic
Moral Panic (sociological phenomenon
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Moral panic –intense concern (large populations) in pop’n about a social threat that
is empirically unjustified
E.g., Salem witch trials, AIDS virus (scared to use public fountians or public
transportation)
Height level of concern towards a specific group, everyone agrees, pop up and
disappear suddenly
Hostility toward “folk devils”
Disproportionate to actual risk
Volatile
Fear of satanic underground, going to take your children and murder or sexually
abuse your child and sacrifice them to satan
During this time daycare abuse allegations became popular
Wee Care Nursery (1985)
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Kelly Michaels accused of sexually abusing 20 children aged 3-5
Husband and wife run a daycare, wife accuses husband of sexually abusing children
and goes to police, police send letters to all parents with children in the daycare
telling them to question their child about witnessing or experiencing any abuse
Parents freak out and 306 children who allegedly were abused and were involved in
satanic practices
Ray and Peggy Buckey charged with 207 counts of child molestation
Little Rascals Day Care Centre (1989)
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7 adults accused of molesting 90 children
Satanic Panic – Martensville
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1992: Reports of bizarre Satanic sexual abuse in a home daycare
Sterling family and 5 others were charged with 190 counts of abuse against dozens
of kids
Interviews with children were conducted improperly (e.g, misleading, open ended),
elicited false evidence of abuse
Satanic Panic - General Problems
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Kids in day care claimed bizarre/impossible abuse (eg., alledged physical abuse but
no scarring)
No physical evidence of abuse
Repeated, suggestive questions used, rewards
Charges were eventually dropped, but reputations and finances ruined
Let’s Focus on Questioning Used
Examination of transcripts from these cases (Schreiber et al., 2006)
1. Repeated questions (communicates to child that their answer isnt satisfactory)
2. Suggestive questions (plant details, ask specific details =. Child would collaborate stories,
despite intentions of simply making the child comfortable)
3. Offered praise/rewards for desired answers (kids may not understand the consequences
of theat theyre saying)
4. Invited kids to speculate/imagine
5. Interviewers began with strong belief that the children had been sexually abused
(preconcieved ideas can mislead children and promote false memories)
False and Repressed Memories
Childhood amnesia
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We cannot remember things that happened before the age of 3-4 yrs (e.g, birth, the
cognitive processes of what what should be stored in short term and long term
memory arent fully developed)
Memory requires brain structures to be sufficiently developed (hippocampus/ frontal
lobe)
Before 3, everything is new and unfamiliar – don’tknow what to keep
Baby brains undergo neuronal pruning and reshaping (unuseful information gets
forgotten)
Repression and Recovered Memories
§Repression – Unconscious, involuntary process that prevents conscious remembering
§Repressed memories supposedly affect us indirectly (especially, painful, traumaticing or
scary events)
-
If we repress the associating emotions they will come up in other areas/ aspects of
life
§1980s & 90s - many people “recovered” memories of childhood trauma and abuse
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Rise in therepists suggeting abuse in paitents
Could it happen to you?
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Do you have strong reactions to certain people?
Do certain places or situations upset you?
Do you find it difficult to control your feelings sometimes?
Are you afraid of abandonment?
Do you sabotage yourself? (e.g., work, relationships)
Very general questions that most people would agree with but may raise questions of
suppressed abuse which is concerning
Are you impulsive?
Assisting Retrieval – Hypnosis
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Witness is placed in a state of deep relaxation in which they are walked through their
memories
Very susceptible to hypnotist’s influence
Leads to imagining, not remembering
As walking throu a guided remembering process false memories can take over
Memory hardening – an event “recalled” under hypnosis increases confidence that it is true
-
Gonna believe those memories are more true than if it happened randomly during the
day
Problems w? Recovered memories
-
-
If there is no corroborating evidence- cant prove or disprove (ppl have been
convicted bc of recovered memories popping up)
Traumatic memories are actually persistent and invasive (dont usually just forget
trauma, most ppl want to forget it. Though it is possible it just doesnt typically
disappear)
Families are falsey accused, lives and reputations ruined
Hard to know the difference between a repressed memory and a false memory
(usually has triggers and the other can just be imagined)
Implanting False Memories
●
●
●
Loftus (1997) – After 2 interviews, 25% of participants s developed a false memory of
being lost at the mall
Hyman, Husband, & Billing (1995) replicated with memory of spilling punch at a
wedding (ppl elaborated these stories and added details of things that never
happened)
Replicated with extreme and impossible memories
Recovered memories – markers for suspicion (Lindsay & Read, 1994)
-
Get particpsnts in a study, get info- from their parents and integrate facts and false
information to implement a false memory, as days go by these individuals about an
event that never occurred. Results were that 7-% of participants believed they
committed a crime that never happened
The following cues may suggest that a repressed memory is false:
1. It was recovered over time with suggestion (if it is a memory it comes in like a flood,
not in an agonizing process while slowly recalling detail by detail)
2. It emerged vaguely rather than with clear detail (i think the car was brown or red)
3. It involves repeated abuse that occurs into adolescence
4. It involves abuse that occurred before the age of 3 (no ability to retain long term
memories from then)
5. It involves rare or bizarre forms of abuse (unlikley to happen e.g, satanic panic)
- Easily to plant false memories
Lecture 8
-
-
Strength of evidence is the best predictor of judgement but how do different people
interpret the strength of that evidence
Liberation Hypothesis: when the evidence is close, jurors may feel liberated to
consider inadmissible or extralegal information; ex. attractiveness, victim
characteristics, stereotypes, pretrial publicity
Inadmissible evidence - irrelevant, over prejudicial info
- Character evidence: reputation or morality of the defendant cannot be
used to suggest they did/not commit the crime
- Rape shield evidence: info about victims sexual history may not be
admitted to suggest consent or challenge credibility
- Pre-trial publicity: often contains inaccurate or inadmissible content
-
“The jury will disregard those remarks”; studies show that these statements are
ineffective; may see boomerang effect, where suppressed evidence is more
persuasive
- Psychological reactance: juror wants to restore freedom of
thought/action
- Iconic process phenomenon: the harder one tries to control a thought,
the less one succeeds
- Belief perseverance: belief persists even when disconfirmed
-
Expert testimony may be confusing, complex, full of jargon
Jurors may rely on non-evidentiary factors to evaluate confusing evidence
Ex. older experts look more credible; ex. Credentials of expert; just cuz hes from
harvard he is probably right
- Comprehension aids:
1. Judicial instructions - usually complex and provided at the end of trial, may be
misunderstood
2. Trial transcripts - make available for jurors to refresh memory, but hard to navigate
and time consuming to prepare
3. Allow Jury to ask questions - would enhance understanding but could allow
inadmissible questions
4. Note taking during trial - may be concerning as notes may influence too much and no
evidence that note taking improves comprehension of evidence
Size of jury matters
- In canada has always 12 person jury
- In america it varies
- Larger juries are better as they are more presentative, more diverse opinions,
deliberate longer, recall more evidence
Decision Rules:
- Unanimous - all members must agree
Vs.
- Majority - most members must agree
Depends on state or country
Unanimous:
- What if they can’t agree on a unanimous decision? Hung juries may receive
exhortation to keep trying; hung jury results in mistrial and means that the jury is
undecided
Majority:
- Rarely will a lone, strong juror swing the verdict
- If jury begins with 8 members agreeing, the majority typically wins
- Leniency bias: if the jury begins evenly split, the verdict is more likely to be not guilty
Jury nullification:
- Nullification occurs when jurors refuse to apply the law
- This means they don't think law is ethical to be applied in the case
- American juries may nullify, canadian juries can not
Jury Decision making process:
1. Orientation stage
- Evidence driven: hold off on vote, discuss facts, longer deliberation
- Verdict driven: start with a vote, discuss how evidence relates to law
- Shorter deliberation
2. Open Conflict Stage
- Disagreement, debate, social influence
- Informational conformity (“I want to be right”): due to new information,
produces private conformity
- Normative conformity (“I want to be liked”): due to group pressure, desire to fit
in, produces public conformity
3. Recognition Stage
- Jurors tend to focus discussion around information; 75% on evidence, 25%
on law
-
Turn to normative and procedural legal issues as juror nears final verdict
Hung jury - if unable to reach a verdict, results in mistrial
Dynamite charge - judge sends a deadlocked jury back to keep deliberating
until it can reach a verdict
Story Model of Jury Decision Making:
1970s: mathematical models dominated
Jurors thought to combine evidence mathematically
Ex. eyewitness + circumstantial evidence + alibi = guilty/not guilty
- Unclear how it was weighted
- Evidence is always connected and not independent
Stage 1: Story construction
- Active construction of story using evidence, real world knowledge, expectations
about what makes a story complete
- What makes a good story? Coverage (how much the story covers the evidence and
details), coherence (is it plausible), uniqueness
Stage 2: verdict representation
- Jurors must understand verdict definitions and requirements (ex. 1st degree, 2nd
degree, etc.)
- Abstract legal concepts grouped into categories: identity, mental state,
circumstances, actions
Identity - right person
Mental state - intentionally killed the person
Circumstances - killing was premeditated and unprovoked
Actions - killing was unlawful and intentional
The jury must understand these legal concepts when giving a verdict
Stage 3: Story Classification
- Match the accepted story with one of the verdict options to determine the best fit
- Goodness of fit may depend on how well elements of the story match the attribute of
a given verdict category
Pennington and Hastie (1988):
-
Study on mathematical juror approach vs story approach
Story approach has the advantage and is more beneficial for the side
Rights to a Jury:
- Most modern democracies guarantee the right to trial by jury for criminal charge
- Juries date back to the magna carta (1215); at the time used to limit the power of the
king, giving power back to the people
Why a jury:
- Safeguard against state injustice; we don't have a king, but we still have people in
power
- Reflects community sentiments
- 12 heads are better than 1 (larger juries are better)
- Civic engagement in legal system; members of the community can contribute to the
legal system, gaining people more confidence in the system
Problems with juries:
- Expensive to the state and jurors; not just financially
- Juries might get it wrong
- Average person makes complex legal decision
- Many decisions are influenced by extra legal factors
- Juror trauma
Juror trauma:
- Jury duty exposes some people to horrific facts
- High stakes decision = anxiety, stress, ptsd
- Previously, little/no help available for jurors
Judge versus Jury
- Judges supposedly impartial and unbiased
- But both judges and juries sometimes fail to disregard inadmissible evidence, display
heuristic errors
-
Judges and juries agreed roughly 75-80% of time
Juries more lenient, especially with less serious offences
Lecture 9
Mental Competency at the Time of the Offence
Fitness vs. Criminal Responsibility
Fitness to Stand Trial
- Deals with mental status at the time of the trial
- Is defendant competent to appear at trial?
Criminal Responsibility
- Deals with mental status at time of the crime
- Was the defendant responsible for their actions?
*independent questions: one may be found fit to stand trial but found to not have mental
capacity when committing the offence and vice versa
Criminal Guilt
- Insanity – a legal definition, NOT a psychological one
- Criminal guilt requires two things:
1. Actus reus – the guilty action
2. Mens rea – the guilty mind
-
Mental illness can negate the mens rea of an offence
History of “Insanity”
- Good & Evil Test (1300s – 1500s): the insane cannot commit a sin because
they do not know the difference between good and evil
-
Wild Beast Test (1724): defendant is insane if “totally deprived of his
understanding and memory and doth not know what he is doing, no more than an
infant, than a brute, or a wild beast”
Insanity – History of Influential Cases
James Hadfield (1800)
- Soldier with brain damage, tried to kill King George III believing his death would
save the world
- Court distinguished between partial and total insanity
- Found not guilty; he had the ability plan/carry out the crime but clearly was
suffering from a delusion and did not understand the nature of his actions
M’Naghten Rule (1843)
- M’Naghten attempted to assassinate prime minister
- At the time he tried to shoot the prime minister he was suffering from paranoia
and delusions; thought he was being persecuted by the state
-
Creates presumption of sanity
To rebut, must prove that the defendant was suffering from “disease of the mind”
and did not appreciate the nature and quality of their actions
Current Legal Test - NCRMD
S. 16 Canadian Criminal Code: No person is criminally responsible for an act committed or
an omission made while
a) suffering from a mental disorder at the time of the offence that
b) rendered that person incapable of appreciating the nature and quality of an act or
omission or
c) knowing that it was wrong
Mental State at the time of the Offence
Assessing NCRMD
Rogers Criminal Responsibility Assessment Scale (R-CRAS)
- Assess symptom severity on five subscales
- Patient reliability
§ If they are pretending to have a mental illness or interfering with
accurate recall; the information may not be a reliable estimate
§ Individual could still be suffering from a mental illness at the time
thus the assessment may need to be delayed until they regain
competence
- Organicity
§ Effects of brain damage or developmental delay
-
-
-
-
§ Organic cause of the symptoms as opposed to mental illness
Psychopathology
§ Diagnosis in terms of what mental illness is being dealt with
§ Refer to the DSM diagnostic criteria
Cognitive control
§ Evaluates impairment in verbal abilities, awareness of their
behaviour, ability to plan
§ Higher order executive functioning
Behavioural control
§ Level and focus of the criminal activity
§ Ability to control their behaviour
Total of 30 items
Each question is rated on a scale of 0 – 6
0 – no information available, 1 – not applicable, 2 – present but not passing a
clinical threshold, 3-6 – clinical symptom present based on severity
A person with a high score is very impaired at the time of the offense, low
score is less likely to be impaired at the time of offense
Assessing Malingering
Malingering – faking or exaggerating symptoms to get a positive outcome or avoid a
negative one
Structured Interview of Reported Symptoms (SIRS)
- Targets different feigning styles:
- Rare symptoms scale
§ An suffering from symptoms seen with a low percent of the
population; very rare symptoms
- Blatant symptoms scale
§ An individual states the obvious symptoms associated with a mental
illness
- Subtle symptoms scale
§ Things that are not obvious, only people who have lived with the
illness know of
- Selectivity of symptoms
§ Someone states they have every symptom associated with the
mental illness
Raising NCRMD and Review Boards
Review Board – handles NCR cases
- At least five members with legal and psychological training
- Review Board will consider
- Police report, criminal record
- Transcripts
- Psychological assessments & clinical history
- Hospital/medical records
Outcomes for NCR Defendants
Three dispositions:
- Absolute discharge
- Defendant can go free without treatment order or sentence
- Pose no risk to the public and are managing symptoms well
- Very rare
- Conditional discharge
- Defendant will not be held at mental health facility but there are tight
restrictions on their release
- Pose low risk to public
- May be placed in halfway house, placed in care of family member, may
have to abide by certain rules (i.e., meet twice with psychiatrist, take
medication regularly)
- Psychiatric facility
- Those who are severely impaired and pose risk to public
- Required to stay at a secure, psychiatric facility indefinitely
Winko v. British Columbia (1999) – SCC
- Winko was experiencing hallucinations, was arrested for attacking pedestrians
with a knife and charged for aggravated assault
- Was found NCR and institutionalized in a mental health facility
- 12 years later got conditional discharge although he believed he should have
received absolute discharge for a one time offense
- Challenged whether the review board had the power to keep him there for so
long
-
NCR defs should be detained ONLY if a threat to society
Should choose the least onerous option for the defendant
Common Myths
1. Frequent Use:
Myth: public believes it is regularly used; estimates that it is raised in 33-43% of all
cases Reality: used in only 1% of felony cases, and fails 75% of the time
2. Crafty Cons:
Myth: NCR is a loophole that lets the guilty go free
Reality: Most NCR defendants spend their sentence in jail or a hospital; only 2-10%
of cases involve a “successful” NCR plea
3. Extremely Dangerous
Myth: mentally ill people are extremely dangerous and likely to reoffend
Reality: Most NCR cases are non-violent; there is either no difference or lower rates
of recidivism
4. Quick Release
Myth: all those found NCRMD get out early and quickly
Reality: Those found NCR are committed to mental institutions longer than they
would be in jail if found guilty; Extremely rare to get an absolute discharge
Who is found NCRMD?
- White male
- Late 20s – 30s
- Unmarried, unemployed
- Minimum education
- History of psychiatric hospitalizations
- Major mental illness (e.g., psychosis)
Fitness to Stand Trial
Mental Health in Prison
- 15-40% of new inmates have mental illness
- Factors that lead to mental illness also lead to criminal behaviour
- Poverty, homelessness, instability, trauma
- Most mentally ill defendants don’t plead NCR
- Mentally ill persons more likely to get caught/arrested
Fitness to Stand Trial – Who, Why, and When
Who: Anyone may raise the issue of fitness (defence, Crown, judge) for any defendant
showing active impairment
Why: If defendant is mentally unfit, cannot actively participate in their own trial
When: Any time mental illness becomes apparent (before or during trial)
Fitness to Stand Trial – How?
- All defendants presumed fit to stand trial, but this can be rebutted with evidence
- If judge is satisfied fitness is an issue, will order a fitness assessment by
PSYCHIATRIST
- If found unfit, pleas set aside, jury dismissed, and def placed under supervision of
Review Board
Fitness Standard
A defendant is unfit to stand trial if s/he is unable to:
1. Understand nature or object of proceedings
2. Understand possible consequences of proceedings
3. Communicate with counsel (limited cognitive capacity standard)
Assessing Fitness to Stand Trial
Review Board & Treatment Orders
- Treatment order must meet the following:
- Accused unlikely to become fit without treatment
- Patient will be made fit in a specified time (60 days)
- Benefit of treatment outweighs the risk
- Proposed treatment is least intrusive option
Assessment Techniques
Fitness Interview Test-Revised
16-item structured guide for clinicians,
Three sections:
1. Factual knowledge of criminal procedure
2. Appreciation of the nature and object of the proceedings
3. Ability to participate in one’s defence, communicate with counsel
Restoration of Competence
- Most common methods of competency remediation are medication and education
- Issues with medication in this context – side effects, inf. consent
- Chances of regaining competence reduced where:
- Older age
- Psychotic disorder
- History of lengthy psych. hospitalizations
- Intellectual/cognitive disability
Traits of those found Unfit to Stand Trial
- Middle aged man
- Single/never married
- Unemployed, limited education
- Severe mental illness
- Schizophrenia, bipolar
- Often intellectual impairment
If Competence is Not Restored
- Court can stay proceedings indefinitely if:
- Accused is unlikely to ever become fit
- Accused does not pose a significant threat to public safety
- It is in the interest of the proper administration of justice
Chapter 9
·
The Case of Vincent Li
o Li had a long-standing history of mental health problems and had
been previously diagnosed with schizophrenia—a serious mental
illness whose sufferers lose touch with reality
o People with schizophrenia exhibit a wide range of psychotic
symptoms, including hearing voices that are not actually there
(auditory hallucinations), difficulty thinking and speaking in a
coherent manner (thought disorder or disorganized thinking), and
holding false beliefs (delusions) that affect their behaviour.
o When Vincent Li’s trial began on March 3, 2009. Li’s lawyer entered a
plea of not criminally responsible on account of mental disorder
(NCRMD), meaning Li accepted that the offence had occurred but
claimed that he was unable to form the necessary intent to meet the
criteria for a charge of first-degree murder.
o Li was sent to Selkirk Mental Health Centre for further assessment,
and the Manitoba Review Board was left to propose an appropriate
sentence
§ A Review Board usually comprises a lawyer, medical
practitioner (e.g., psychiatrist), and lay person who has an
interest in mental health issues and preferably is or was a
consumer of mental health services
o Vincent Li’s case provides an excellent backdrop for discussing a
number of important issues, including the Canadian legal criteria for
fitness to stand trial (FST), and NCRMD evaluations and dispositions
o Similarly, not all defendants found NCRMD will have had a finding of
unfit to stand trial (UST) at some point during their prosecution
o There are many types of legal competencies relevant in the criminal
sphere, including competency to waive arrest rights, competency to
confess, competency to waive counsel, competency to plead guilty,
competency to be sentenced, and competency to stand trial (referred
to as fitness to stand trial [FST] in Canada and competency to stand
trial [CST] in the United States)
Table 9.1 Types of
Criminal Legal
Competencies
Competency to
waive arrest rights
and/or confess
Prior to
interrogating
suspects and
possibly eliciting a
confession, police
officers must
inform suspects of
their legal rights,
including the right
to remain silent and
the right to free
counsel. Suspects
must also be
informed that
anything they say
may be used in the
adjudicative
process against
them. In order to
validly waive these
rights, suspects
must both
understand their
rights (e.g., know
that they have the
right to a lawyer)
and appreciate the
meaning of that
right (e.g.,
understand that a
lawyer’s role is to
advocate for them
during the legal
process).
Competency to
waive counsel or
proceed pro se
Defendants who
opt to proceed pro
se, or without
representation from
a lawyer, act as
their own counsel
during a trial.
Defendants must
choose to waive
the right to counsel
wilfully and with
full understanding
and appreciation of
the consequences
of waiving this
right.
Competency to
plead guilty
Should defendants
opt to enter a guilty
plea at any stage of
criminal
prosecution, they
must do so with full
understanding and
appreciation for the
nature of pleading
guilty and the
consequences
associated with
entering a guilty
plea (e.g., taking
responsibility for a
crime and being
convicted of that
offence).
Competency to be
sentenced
Defendants must
be able to
understand why
they are being
sentenced, and
understand the
sentence itself. In
the United States,
this includes
competency to be
executed.
Defendants who
face execution
must be capable of
understanding why
they have received
the death penalty
and the effect that
penalty will have.
Providing treatment
to restore
competency to
death row inmates
in order to proceed
with an execution
represents an
ethical dilemma for
forensic mental
health
professionals.
Competency to
stand trial
Defendants must
have a mental state
and capacity that
allows them to
understand the
proceedings,
appreciate the
possible
consequences of
the proceedings,
and communicate
with their lawyer
Fitness to Stand Trial (FST)
·
what if the defendant cannot understand what is going on before or during
the trial because he or she lacks the mental capacity to understand all or some of
the complexities of the legal proceedings or is substantially impaired by mental
illness?
·
? If we judge some people to be too impaired to stand trial, how do we define
“too impaired” and how can we measure a defendant’s level of impairment?
·
To use the full power of the court to try, convict, and punish defendants who
do not understand the nature of the legal proceedings against them undermines
the perceived legitimacy of the legal system
·
Canadian Legal Standards
o The legal doctrine of incompetence originated in seventeenthcentury English common law
o Fitness to stand trial was considered critical because, at the time,
defendants usually had to argue their own case, and it was deemed
essential that the defendant demonstrate the capacity to engage in
his or her own defence
o Parliament enacted Bill C-30 in 1992, which resulted in significant
changes to fitness determinations within the Criminal Code (1985)
o Section 2 of the Criminal Code now explicitly defines persons who
are unfit to stand trial as those who are
§ unable on account of mental disorder to conduct a defence at
any stage of the proceedings before a verdict is rendered or
to instruct counsel to do so, and in particular, unable on
account of mental disorder to (a) understand the nature and
object of the proceedings, (b) understand the possible
consequences of the proceedings, or, (c) communicate with
counsel.
o An important case that clarified the elements required for
determining an accused’s capacity to communicate with counsel is
in R. v. Taylor (1992).
§ Dwight Taylor was charged with aggravated assault and
possession of a weapon for a purpose dangerous to the
public.
§ He was suffering from paranoid schizophrenia and had been
found unfit to stand trial for previous offences.
§ While the trial court found that he understood the nature and
implications of the trial process, the court argued that
because his delusions were “so pervasive and irrational,” he
was not only likely to disagree with counsel but was unable to
perceive his own best interests.
§ In Taylor, the Ontario Court of Appeal adopted the limited
cognitive capacity standard, indicating that an accused does
not need to be able to act in his or her own best interests but,
rather, that he or she must demonstrate the ability to recount
the facts necessary to allow the lawyer to properly present
the case
§ Occasionally, lawyers may request these evaluations for
purely strategic reasons
·
For example, a fitness evaluation may be requested
by either side to delay the trial, giving lawyers more
time to prepare
o Who Can Assess Fitness?
§ Fitness assessment orders typically require that an evaluation
take no longer than 5 days to complete, but the court can
order assessments for up to 60 days, given sufficiently
compelling circumstances
§ Currently, the Criminal Code specifies that a medical
practitioner (in this case, a psychiatrist) must conduct courtordered assessments of fitness and criminal responsibility,
although psychologists may assist in the process
§ During a typical assessment, an evaluator will assess a
defendant’s mental capacities using a variety of sources,
including clinical interviews with the defendant and
information from people who know the defendant, such as
friends and family members.
§ In addition, the evaluator will review the defendant’s history
and records, administer psychological tests, and write a
report.
§ Importantly, information from fitness evaluations cannot be
used later during the trial phase in determining guilt unless
the defendant raises his or her mental state as evidence at the
trial or sentencing stages
o Who Is Declared Incompetent?
§ Base rates refer to how frequently something happens.
§ It is quite rare for a judge to reject the conclusion of an
evaluator—especially if the defendant has been found
incompetent
§ If an evaluator reaches the conclusion that a defendant is
incompetent, the report typically contains recommendations
for treatments that might restore the defendant’s competence
§ Youth Criminal Justice Act (2002) does not permit young
offenders to be tried in adult criminal court
·
However, offenders between 14 to 17 years of age,
while tried in a youth court, may receive an adult
sentence for certain serious offence
§ Anne Crocker and colleagues (2002) found that among
defendants referred for a fitness assessment in Quebec,
women were twice as likely as men to be found unfit to stand
trial, even after controlling for offence and demographicrelated factors
§ Research indicates that incompetent defendants tend to be
socially isolated, unemployed, poorly educated, and of below
average intelligence
§ psychotic illnesses (such as schizophrenia), severe affective
disorders (such as bipolar illness), and serious cognitive
problems or intellectual disability (previously referred to as
“mental retardation”) are the most common mental health
problems diagnosed in defendants found to be incompetent
Techniques for Evaluating Fitness to Stand Trial
·
The development of psychological tests specific to legal issues is a growing
area in clinical and forensic psychology
·
Such tests are called forensic assessment instruments (FAIs) to differentiate
them from traditional psychological tests
·
In using such tests, many forensic psychologists have emphasized the
importance of being guided by a contextual approach or functional approach when
evaluating competence
·
The first CST FAIs were developed by researchers at the Harvard Laboratory
of Community Psychiatry and included the Competency Screening Test and the
Competency Assessment Instrument.
·
Ron Roesch at Simon Fraser University developed the only published
Canadian test, the Fitness Interview Test-Revised (FIT-R), for use by mental health
professionals in FST evaluations
·
The FIT-R was designed as a structured clinical judgment instrument that
guides evaluators through an assessment of the specific psycholegal abilities
required of a defendant to stand trial in Canada. It is composed of three sections:
o (1) factual knowledge of criminal procedure
o (2) appreciation of the nature and object of the proceedings
o
(3) ability to participate in one’s defence and communicate with
counsel.
·
The MacArthur Competence Assessment Tool-Criminal Adjudication
(MacCAT-CA) is another widely used CST/FST evaluation instrument developed by
a national network of researchers in the United States (funded by the MacArthur
Foundation).
o The MacCAT-CA assesses three key CST-related abilities over 22
items, including understanding, reasoning, and appreciation
Competency Restoration and Treatment
·
A defendant who is found unfit to stand trial has his or her plea set aside (if a
plea of guilty or not guilty has already been entered), the jury is dismissed (if
applicable), and the defendant is placed under the supervision of a Review Board.
·
The Review Board then determines what conditions should be imposed on
the accused, weighing both the need to protect the public from the offender and
the need for treatment of the accused to regain fitness.
·
If the Review Board directs a defendant to undergo treatment to restore
competency, an order must meet several criteria:
o (1) Evaluators must be of the opinion that the patient will be “made
fit” in a specified period of time (typically 60 days).
o (2) The benefits of treatment must outweigh the risks.
o
(3) The proposed treatment(s) must involve the least intrusive
option(s) available.
o 4) The treatment approaches must typically include either medication
or training about the court process or both.
·
If, after the stipulated treatment period, a defendant is still judged to be unfit
to stand trial, he or she will continue to be supervised by the Review Board until a
stay of proceedings (halting further process in a criminal trial) or absolute
discharge is recommended.
·
Because a defendant who is found unfit to stand trial cannot be held for an
indeterminate and lengthy period of time without mounting a trial, the prosecution
must re-establish its case again every 2 years.
·
To address this inequity, a further Criminal Code amendment in 2005 (Bill C10) determined that a court could order a stay of proceedings for an accused
deemed unfit to stand trial if the following conditions were met:
o (1) The accused was unlikely to ever become fit.
o (2) The accused did not pose a significant threat to the safety of the
public.
o (3) A stay of proceedings was in the interests of the proper
administration of justice
·
Competency remediation typically consists of two general approaches:
medication and education
·
Antipsychotic medication can reduce the severity and frequency of
hallucinations and delusions experienced by patients with severe mental illness;
sometimes, symptoms can even be eliminated
Not Criminally Responsible on Account of Mental Disorder (NCRMD)
·
The Evolution of Insanity Law
o The NCRMD defence and earlier iterations of Western insanity laws
are built on the principle that people who commit crimes without full
awareness should not be held fully responsible for their actions.
o Even in ancient Roman times, the law dictated that people found to
be non compos mentis—without mastery of mind—should not
blamed for their crimes
o The modern form of “mastery of mind” is mens rea, or the “guilty
mind” that must accompany wrongful behaviour
o To be found guilty, it is not enough to commit a criminal act (the
actus reus); one must also possess a guilty mind—an awareness of
the wrongfulness of the criminal conduct.
o This test is sometimes referred to as the wild beast test of insanity.
§ This revised instruction meant that insanity had become less a
moral failing (good versus evil) and more a cognitive failing—
that is, a mental deficiency involving “understanding and
memory.”
o At trial, nine medical experts testified that M’Naghten was insane,
and the jury found him not guilty by reason of insanity (NGRI)
o Public outrage following the sentence swiftly prompted changes to
the law, resulting in what came to be known as the M’Naghten rule.
The rule has three components:
§ (1) a presumption that defendants are sane and responsible for
their crimes
§ (2) a requirement that, at the moment of the crime, the
defendant must have been labouring “under a defect of
reason” or “from disease of the mind”
§ (3) a requirement that the defendant “did not know the nature
and quality of the act he was doing, or if he did know it, that
he did not know what he was doing was wrong.”
o It is sometimes referred to as a cognitive test of insanity because it
emphasizes knowing and understanding whether one’s actions are
right or wrong
o Section 16 of the Criminal Code outlines current Canadian law about
the NCRMD defence. It states that
§ [n]o person is criminally responsible for an act committed or
an omission made while suffering from a mental disorder that
rendered the person incapable of appreciating the nature and
quality of the act or omission, or of knowing that it was
wrong.
o One analysis of the Winko decision found that the significance of the
decision was threefold:
§ (1) The decision formally acknowledged that persons found
NCRMD are not criminally responsible in the same way as
persons not under the influence of mental illness.
§ (2) It provided guidance on how to interpret “significant threat
to the safety of the public” (real risk of serious physical or
psychological harm to persons in the community).
§ (3) It specified that in cases where the Review Board is unable
to make a clear determination of risk, an absolute discharge
must be ordered
Automatism
·
While not formally codified in the Criminal Code, Canadian case law provides
a history of legal precedents establishing the defence of automatism:
unconscious, involuntary behaviours.
o The defence of automatism recognizes that under normal
circumstances a person’s act or behaviour must be committed
voluntarily, as a result of choice or free will, and that he or she must
have the capacity to form mens rea, or a “guilty mind,” at the time of
the offence
·
Non-insane automatism refers to an involuntary action that does not arise
from a disease of the mind or mental illness; instead, it results from other
conditions, such as a blow to the head, poisoning, stroke, or hypoglycemia
·
insane automatism refers to involuntary actions or behaviour that result
from a disease of the mind, and it automatically triggers a verdict of NCRMD.
o For a defence of automatism to be successful, the trial judge must
first conclude that there is sufficient evidence to demonstrate that
the accused acted involuntarily, on a balance of probabilities,
usually confirmed by psychiatric evidence
·
Who Is Declared NCRMD?
o Most often they are men who have not previously committed a
violent crime, have no prior history of criminal offences, and have a
history of hospitalizations for severe mental illness
o Rather, some scholars argue that the effects of unsuccessful
deinstitutionalization policies (the process of replacing psychiatric
hospitals with community mental health services), coupled with a
lack of community-based services for individuals with mental illness,
has resulted in a “forensication” of this population in Canada
Assessing Mental Disorder and NCRMD
·
First, unlike assessing fitness to stand trial, assessing insanity involves a
retrospective evaluation of the individual’s mental state at the time of the crime
o This means that the evaluator must figure out how the defendant was
functioning in the past (sometimes years in the past
·
Second, the terms used in the legal definition of insanity are more vague
than those in the definition of fitness to stand trial
o For example, whether an individual is “incapable of appreciating the
nature and quality of the act or omission” is more difficult to
quantify than whether he or she has the ability to communicate with
a lawyer
·
One test, the Mental State at the Time of Offense Screening Evaluation (MSE),
attempts to screen out defendants whose crimes were not influenced by a
significant mental disorder
·
A more widely used alternative is called the Rogers Criminal Responsibility
Assessment Scales (R-CRAS).
·
Developed by Richard Rogers, the R-CRAS attempts to translate the legal
standards of insanity into functional components such as the ability to control
one’s thoughts or behaviour. It includes five scales to evaluate diagnostic issues:
o (1) malingering
o (2) organicity (significant brain disorder)
o
(3) major psychiatric disorder
o (4) loss of cognitive control
o
·
(5) loss of behavioural control.
Malingering
o Sometimes psychologists or lawyers suspect that a defendant is
malingering or faking symptoms of mental illness to avoid going to
trial or being held responsible for a crime.
§ Specifically, malingering is the deliberate feigning or gross
exaggeration of physical or psychological symptoms in order
to gain a positive outcome (e.g., an insurance payment or
compensatory damages) or to avoid a negative outcome (e.g.,
a long prison sentence)
o One example of such a test is the Structured Interview of Reported
Symptoms (SIRS)
§ In administering the SIRS, the evaluator asks the examinee
about various symptoms he or she may be experiencing,
including symptoms that are unlikely to be true even for a
severely disordered population
§ The SIRS is designed to detect a number of different feigning
styles and, through comparisons with actual patient samples
as well as groups who were intentionally malingering, offers
information on the likelihood that the examinee is responding
honestly, probably feigning, or definitely feigning.
o The Test of Malingered Incompetence (TOMI) was published in 2008
as a research instrument by Kevin Colwell and colleagues
§ The TOMI is a forced-choice 25-item scale designed to detect
malingered cognitive impairment in competency evaluations
Public Perceptions of FST and NCRMD
·
In such cases, testimony about the appropriate legal decision (e.g., whether a
defendant is in fact UST or NCRMD) in a particular case is known as ultimate issue
testimony, because it answers the question at the heart of the proceeding.
Lecture 10- psychopaths & risk assessment
Psychopath
- Cluster of interpersonal affective and behavioural traits
- Main characteristics
- Absence of empathy/ remorse
- Superficial charm
- manipulation
- Impulsivity
- They try to fit in for their own benefit
- Competing labels
- Psychopathology- mental illness ( depression, schizophrenia)
- Psychosis: this refers to forms of mental illness marked by hallucination,
delusions, intense mental distress- not psychopathy
- Sociopathy- this term has fallen out of use
- Antisocial personality disorder: often seen in psychopaths, but distinct
- ASPD
- Diagnose of aspd required 3 of the following along with developmental
history
- Deceitfulness
- Impulsivity, irresponsibility
- Irritability
- Reckless behavior
- Lack of remorse
- Repeated criminal acts
- Most psychopaths will have aspd
-
Not all people with aspd will have psychopathy
Aspd is focused on behavior, psychopathy incles emotion and
interpersonal aspects
- 60-80% of offenders in prison have aspd, while 15-25% jave
psychopathy
- Psychopathy and violence
- Psychopaths is an intraspecies predator- killing in their own species
- Traits that hold most people back from violence are absent or effective in
psychopaths- no empathy, emotional bonds and emotional inhibition
- Instrumental violence: (goal/reward-driven, calculated, planned
- Reactive violence (emotional, less controlled, intent or harm)
- Psychopaths are more likely to use instrumental violence
- The criminal psychopath
- Psychopathic criminals
- Engage in crime at an earlier age
- Commit greater variety of crimes- equal opportunity offender
- Greater risk of reoffence
- More victims, multipl;e victims
- More predatory - pre planned, calculated
- Assessment of psychopathy
- Hare psychopathy checklist- revised (pcl-r) is most common
- 20- item rating scale using semi structured interview and review of file
information
- Interpersonal aspects - grandiosity, manipulation
- Affective - no empathy/ remorse, shallow emotion
- Behavioural features- impulsivity, antisocial acts
- Self report cant be used because it requires honesty, insight, self reflection psychopaths won't admit these- they will lie
- PCL-R distribution
- Each of the 20 items is scored on a 3 point scale
- 0 item doesn't apply
- 1 item applies to some extent
- 2 item definitely applies
- Possible ranges: 0-4- 0-20- non psychopaths
- 20-30 mixed group
- 30-40 psychopaths
- 1% of population 15-25% of inmate smeet threshold
- Treatment
- Psychopathy 8is resistant to treatment
- Personality resists change - ex. Cant treat ones intelligence
- Psychopaths skilled at showing you what you want to see
- Neurological differences
- Lack of remorse or guilt- motivation lacking
Everyday psychopaths
- Not all psychopaths end up in prison
- Many psychopathic traits can be an advantage
- Lack of empathy - no concern for others
- Manipulation, charm
- Deception, glibness
- Corporate psychopathy
- There are 3.5 times more psychopaths in senior executive positions
- No concern for others- not caring about customers and workers
- “Pay the money, or you can die”
- persuasive , confident
- Traits bad for business
- Impulsivity, irresponsibility
- Poor emotion control
- Lack of realistic long term goals “ we’re gonna do great things, but its
not achievable”
- May lie about about credentials and degrees, manipulate people to act as
references
- Psychopathic traits may be misinterpreted
- Superficial charm - charisma
- Grandiose talk - confident, visionary
- Lack of empathy - ability to make tough decisions
- Measured psychopathy and performance indicators among corporate
executives
- Negative correlation for team player, management style, overall
performance
- Positive correlation - communication skills, creativity and innovation,
strategic thinking
- Are psychopaths all bad
- James fallon - neuropsychologist who discovered he was psychopath by
looking at how own brain scan
- Called himself a prosocial psychopath
- Psychopaths are good at making people think they are normal
- Diffs in moral decision making, facial emotion expression
- Mimic the way other people think
- Not good at distinguishing different facial expressions- but
good at faking them
The dark triad
- Narcissism
- Tarist of marcisim include
- Grandiosity ; big talks, “being best”
- Vanity -obsessed with oneself, can't handle criticism
- Fragile self esteem
- Entitlement
- Dominance and superiority - people are here to serve you, you are
above everyone
- Desiring admiration
- These people are difficult to live with
- Narcissistic personality inventory (NPI)
- Measures subclinical narcissism
- Test lists 40 itmens, choose between two option
- “I am” vs “I hope”
-
Higher levels of activity on facebook and more self promotion - posting innate
stuff all day -just about one self
- Aggression following ego-threat
- Short term mating success for men, but not long term relationships; possible
reproductive advantages
- Machiavellianism
- Traits include
- Charming and persuasive
- flattering and smooth talking
- Manipulative and exploitative
- Calculating and scheming
- “You can't be both loved and feared, so it's better to be feared”
- Mach IV inventory
- 20 items rated on a 5 point scale
- Never tell anyone the real reason you did something unless it
is useful to do so
- The best way to handle people is to tell the what they want to
hear
- Is it wise to flatter important people
Risk assessment
- Types of risk factors
- Historical risk factors: thing that cannot be changed or modified with
intervention - intelligence
- Dynamic risk factors: factors that can change over time
- Contextual risk management factors: situational factors that increase/
decrease the risk of reoffending
- Risk assessment :
unstructured clinical judgment
- More intuitive and subjective approach using opinions of clinicians
- No assessment tools
- No feedback on whether the assessment was not correct or not
- Actuarial technique s
- Relevant risk factors are combined statistically to calculate the risk of future
violence
- Violence risk appraisal guide- commonly used actuarial tool,
- Identities 12 items that statistically predict recidivism
- Structured professional judgements
- Combines accuracy of actuarial methods with flexibility of clinical judgment
- Clinical gathers information about various risk factors in the person life,
consider the relevance of each risk factor to the individual
- Evaluator uses formulas and weighing as they deem suitable
- Accuracy?
- Agreement between evaluators depend on who hired them
- High correlation between evaluators when neutral ( r= .87)
- When evaluators on opposite sides, agreement much lower (r=. 42)
- DANGEROUS OFFENDERS
- Do designation has important implications
- Mauy receive indefinite jail term
-
-
No eligibility for parole for 7 yrs
Constant supervision
- Serial pedophiles
- Violent offense
- High risk categories
Long term offenders
- For those convicted of a personal injury offense where there is
- A substantial risk of reoffense causing serious bodily harm, but
the risk can be managed in the community
- Will typically get frugal sentence, but extended supervision
after release - they will still be watched
- Crown must bring LTO application, court- appointed
psychiatrists make recommendations to judge
- Waiving confidentiality
- Smith v Jones ( 1999)- psychiatrists bright legal action ot allow
him to warn police about a clients intention to kidnap ad
murder a sex worker
- SCC set out a three part test for when to waive confidentiality
or privilege
- Risk is to clearly identified group of persons
- Risk is severe
- Risk is imminent
Chapter 10 Notes Predicting Violent Behaviour:
recidivism (relapsing into criminal behaviour).
Violence Risk Assessment
parole boards, prison release Review Boards, and forensic Review Boards must decide if
an inmate or defendant is likely to commit future acts of violence if allowed back into the
community
A risk assessment in this context might also include recommendations about what
supervision rules should be put in place to help manage the offender’s risk once he or she
returns to the community.
Risk assessment tools may be used to help render a conclusion on how likely the offender is
to reoffend if he or she is sentenced to a community probation
The assessment will also examine the types of treatment or probation conditions that should
be put in place to help manage those risk levels.
preventative detention— holding someone in a jail or hospital because he or she might
become violent—is ethically problematic
violence risk assessment to be valid and useful & beyond binary decision
1. What is the nature of the violence that may occur? For example, is it likely to be
physical, sexual, or both?
2. What is the likely severity or seriousness of the violence? For example, will the
individual punch or shoot his or her spouse?
3. What is the frequency of the violence or how often might the violence occur? Is it
likely to be an ongoing threat or a one-time act such as a planned bombing?
4. How imminent is the violence?
5. What is the likelihood or probability that violence will occur? Is the chance that the
individual will engage in future violence low, moderate, or high?
The overall purpose of risk assessment should go beyond merely hypothesizing about an
individual’s violence risk and should attempt to address risk management
Risk management involves reducing the probability that an individual will be violent by
describing the conditions that may increase or decrease the individual’s risk for violence
Methods and Outcomes of Risk Assessment
● predicted that a person would become violent and then that person does become
violent, it is called a true positive.
● true negative occurs when a person who was predicted not to become violent turns
out not to be violent
● false positive (prediction of violence that did not come true)
● False negative (prediction of nonviolence that did not come true)
Base Rates of Violence
-Base rates refer to how frequently something happens— in this case, we are referring to a
specific behaviour, such as a violent act
-If the base rate is low—that is, if the behaviour is very infrequent—our ability to predict that
behaviour will be very limited
-research shows that even when clinicians are made aware of base rates, they still tend to
ignore them and overpredict the likelihood of violence
Types of Risk Factors
three broad categories of risk factors (or markers) that are reliably associated with violent
behaviour:
(1) historical or static factors
(2) dynamic factors
(3) risk management factors
fourth type of marker, called protective factors. Unlike risk factors, protective factors are
those that decrease the likelihood that a person will be violent or reoffend.
Historical Factors
Risk assessment instruments rely on historical risk factors or static risk factors.
-historical and that past behaviour is often the strongest predictor of future behaviour.
-Psychopathy is a distinctive, extreme form of antisocial disorder characterized by a lack of
empathy for others and a lack of remorse for cruel or violent behaviour
-individuals with serious mental illness do not pose any more risk of engaging in violent
behaviour than do estimates from the general population.
Dynamic Factors
Dynamic risk factors are those variables that can fluctuate over time. Moods, attitudes, and
thought processes are not fixed and can be responsive to treat- ment
Impulsivity, the inability to exert control over one’s emotions, thoughts, and behaviours
lack of responsiveness to treatment are additional dynamic risk factors for violence.
Risk Management Factors
-supportive environments after release lower the risk of violence.
-Treatment after release is also critical. Those at highest risk for violence require more
intensive post-release supervision and treatment
-a person’s social environment can either encourage or discourage violence.
-Release into an environment that includes easy access to guns or drugs will lower the
barriers against violence.
Protective Factors
● Protective factors are those variables that can compensate for a person’s risk factors
and constitute strengths or resiliencies against adverse outcomes.
● higher IQ was protective for men who were at high risk for antisocial behaviors
compared to those with lower intellectual abilities.
● Secure attachment with a primary caregiver during childhood is another example of a
static protective factor that may contribute to lower risk for delinquency.
● External characteristics, such as having a positive or pro- social network of peers or
supportive adults or engaging in work or school activities, have a protective effect
against offending behaviour.
Types of Risk Assessment
● unstructured clinical judgment because no rules specify how a clinician should
collect and combine information
●
three major approaches to risk assessment are unstructured clinical judgment,
actuarial techniques, and structured professional judgment
Unstructured Clinical Judgment
● involved rendering a decision about violence risk based on traditional clinical
methods without the use of an assessment tool or approach.
● A weakness of clinical prediction is the lack of feedback about success or failure.
● Impossible to improve the accu- racy of predictions without knowing which
predictions turn out to be correct or incorrect
●
●
●
●
left to rely on biased thinking, a plausible but untested theory, mere intuition, or even
prejudice
Using only arrest records—as most early studies did—led to an underestimation of
violent behaviour because much violence is unreported or goes unnoticed by police
violent crime can be prosecuted as a lesser, nonviolent crime through plea
bargaining, so some truly violent behaviour never shows up in police reports or court
records
clinical prediction is an idiographic, qualitative approach that focuses on a specific
individual and relies on subjective judgments made by a clinician
Actuarial Techniques
Actuarial methods of prediction require that relevant risk factors be systematically
combined (typically using a statistical equation) to calculate an estimate of future violence.
nomothetic, quantitative approach. - risk characteristics that best predict violent behaviour
among that sample of individuals, and factors that are more strongly correlated with future
violence are weighted more heavily in the equation
Violence Risk Appraisal Guide (VRAG)
Majority of actuarial measures contain few if any dynamic or risk management markers and
no protective factors.
1.
2.
They are more difficult to measure than historical risk factors.
They generally contribute less to accurate prediction than historical risk factors
do.
3.
They are less well-studied than historical risk factors.
4.
They may require repeated measurements to be useful.
assessing only historical factors that are essentially unchangeable supplies limited
information to treatment providers for crafting management and intervention plans for the
offender
Generalizability refers to how well these instruments work in conditions that are different
from the original population and outcome on which they were based
● applying group- level data to individuals results in much higher error rates when
estimating risk levels for a given individual
● Actuarial risk prediction instruments do not often include rare factors that may be
especially predictive or protective of risk in a particular case. Actuarial instruments
simply overlook physical incapacitation
Structured Professional Judgment (SPJ) Instruments
Structured Professional Judgment (SPJ) instruments were designed to combine the
accuracy of actuarial methods with the flexibility of clinical decision making
SPJ model of risk assessment is meant to structure and augment the assessment practices
of qualified evaluators conducting risk assessments by providing an evidence-based
approach to risk assessment.
Historical Clinical Risk Management Scheme (HCR-20) - consists of a checklist of 6
protective factors and 20 risk factors: 10 assessing historical risk factors, 5 assessing
present clinical risk factors, and 5 assessing future risk factors
(1) Thorough assessment, including interviews with and observations of the
evaluate, interviews with collateral sources such as family members or past
victims, a review of records, and psychometric or psycho-diagnostic tests
(2) evaluators rate each of the 20 risk items as no (not present or does not apply),
possibly/partial (possibly or partially present), or yes (present).
(3) evaluators rate the relevance of each risk factor. Even though a risk factor might
be present, it may not play a very important role in the behaviour of the specific
offender being assessed.
(4) evaluators use formulas and weighting to integrate case information. This
involves thinking through possible risk scenarios or imagining what kind of
violence a person might commit in the future and why.
(5) Same as 4
(6) involves recommending strategies for managing violence risk based on
information from the earlier steps.
(7) evaluators document their judgments about overall risk and indicate whether
there are any risks other than violence, such as suicide.
The HCR-20 also allows clinicians to add relevant dynamic, risk management, or rare risk
factors to their predictions that were not included in the original list of 20 items
Short-Term Assessment of Risk and Treatability (START) is a newer SPJ tool that helps
evaluators consider their clients’ strengths and weaknesses in the process of risk
assessment
·
including violence, self-harm, suicide, substance abuse, unau- thorized leave,
self-neglect, and victimization.
Spousal Assault Risk Assessment (SARA) to assess risk of domestic violence and the
Sexual Violence Risk-20 (SVR-20) to assess risk for sexual violence
Weakness Clinicians using an SPJ instrument might combine risk factors in an appealing
but inaccurate manner and may be influenced by all the biases associated with clinicians’
unscientific predictions of risk
High-Risk Offenders and Canadian Law
1947- Repeat offenders as habitual offenders if they had been convicted of three or more
indictable offences and were “consistently leading a criminal life.”
Criminal Sexual Psychopath Act was enacted the following year, and required mental
health experts to identify and treat sexual offender
Dangerous Offenders (DO)
●
●
“dangerous” by the courts face indeterminate detention and have to wait 7 years for
parole instead of the original 3 years.
DO provisions, any person convicted of a serious personal injury offence, but not yet
sentenced, who constitutes a “danger to the life, safety, or mental/physical wellbeing” of others, may be subject to a DO application from the Crown.
Long-Term Offenders (LTO)
The LTO designation primarily targets sexual offenders and was developed in response to
concerns that many serious sexual and violent offenders did not meet DO crite- ria
Criteria For LTO
1.
He or she is convicted of a serious personal injury offence.
2.
A prison sentence of 2 years or more is appropriate for the current offence.
3.
There is a substantial risk the offender will reoffend, causing serious harm in the
future.
4.
There is a reasonable possibility that the risk posed can eventually be controlled in the community.
LTOs are typically managed through a regular sentence but can then be given an extended
term of super- vision after release from custody (up to 10 years
Profiling Canada’s Dangerous and Long-Term Offenders
● DO designations each year, the number of designations has been increasing, with an
average of 17 new designations per year in the 1990s,
● here was a drop in DO classifications in 2011, down to 26, but it remains to be seen
whether this signals a reverse in the trend
● majority of LTOs are male, with only eight women serving LTO supervision orders in
2011
Management Approaches to Reduce the Risk of Violence
Oldest models for conceptualizing forensic treatment—the Risk-Need-Responsivity (RNR)
model of offender rehabilitation
●
that there are key, empirically based social and psychological risk factors associated
with offending, including violent offending, and that targeting dynamic risk factors in
treatment will reduce reoffending rates
risk principle, the highest level of treatment resources should be focused on the highest
risk offenders.
need principle dictates that interventions should address dynamic risk factors or
criminogenic needs
Responsivity principle clarifies that treatment programs should be tailored to match the
individual characteristics and needs of offenders to effectively reduce risk.
Good Lives Model (GLM) considers offenders’ preferences, values, and goals, and draws
upon this understanding to motivate them to live better lives. The model also attempts to
equip offenders with new capabilities and resources needed to obtain primary goods in
socially acceptable ways.
Offenders who are hospitalized because they have been ruled unfit to stand trial should be
given shorter hospital stays and more focused treatment designed to restore competence
offenders who have been found not criminally responsible on account of mental disorder
need longer-term treatment that will equip them for eventual release into the community.
recidivism rates were lower among treated sex offenders compared to untreated sex
offenders
RNR principles showed the largest reduction in both sexual and general recidivism
Lecture 11 : Chapter 11
Part A- Sentencing
●
●
●
How we decide on appropriate punishment or response when someone has broken
the law, what we hope to achieve, canadian laws and beliefs, guidance of beliefs
Overarching goal for sentencing in canada is the Fundamental principle of
sentencing, how sentencing should be handed out. More serious = time should be
longer. Should take into consideration a person's responsibility and involvement in
the commission of the crime (moral blameworthiness), moral responsibilities, ie mens
rea, mental state, defences for behaviour, mental illness
Judge must consider at least one sentencing considerations in Canadian Criminal
Code
Sentencing Objectives:
● Deterrence: desire to deter future crime from occuring, general (general population)
and specific deterrence (specific individual from committing crime), very common
sentencing objective
● Denunciation - denouncing the behaviour. Goes along with deterrence. We
disapprove of this behaviour as a society - does not align with Canadian values.
Send a message, symbolic, emotion based sentence. (Ie: hate crimes, domestic
violence) - punishment is stronger bc of that
● Incapacitation - meant to keep offenders off the streets. They are put away from
society to protect from safety, prevented from committing future crimes (ie: repeat
offenders that do not improve on their own, high risk offenders) less common
● Rehabilitation: reform the offender back into society, help people improve their
situation and get them out of the criminal system. very common (probation,
counselling, jobs training, volunteering, community service) jail is not good for
rehabilitation at all. Opportunity to turn selves around
● Restitution/reparations: restore the victim if possible (ie: clean up graffiti, fix broken
window, volunteer in community)
Additional factors:
● Aggravating factors: need a harsher punishment (ie: hate crime, organized crime,
terrorism, underage victims, prior criminal record) crime is considered overall worse
● Mitigating Factors: more lenient punishment (ie: youth, first offence, showing
remorse, only involved in crime in limited way, plead guilty, inflicted abuse on
perpetrator from a young age)
Sentencing Options
● Absolute Discharge: found guilty but do not register conviction on record, no
sentencing, no conditions of release, unlikely
● Conditional discharge: probation. No criminal record but must report to the probation
officer and follow specific conditions, stay on record for 3 years then is gone. More
common - common in young people
● Suspended Sentence: similar to conditional but more serious, probation 1-3 years,
probation terms, stays on record - can apply for a pardon to have record removed
● Restitution: pay back something to the victim or community. Not always possible.
Volunteer in the community
● Fine
● Incarceration: jail, last resort bc it works against rehabilitation, typically used for
serious offences (ie: murder) because there is no other suitable option - usually
continous but not always, may be intermittent (ie: serve term on weekends, not too
serious of a crime, important job in community) - alternative or compromise for less
serious crimes
Parole
● Release from prison before end of sentence, eligible for early release
● Rehabilitation efforts
● Established by parole board - eligible after ⅔ of sentence or for longer sentences,
about 7 years. Formal hearing in front of board and risk assessment done
● Possible accelerated parole options for first offenders or non violent crime (⅙ of
sentence)
● Still serve out sentences but in community and not behind bars. Similar conditions to
probation (abstain drugs/alcohol, stay within jurisdiction, no weapons, don't hang out
with certain people)
● Why do people get released early? -- motivation to show good behaviour. Reward is
a good way to reward behaviour rather than punishment. Going to get out eventually
regardless, might as well give motivation. Prison is also very expensive - parole
lowers cost, improves reintegration and success
Misconceptions:
● Parole reduces your sentence - false. You just serve it in the community. If you
violate your parole terms you can go back to prison.
● Parole is automatically granted when an inmate becomes illegible. Not true, board
can say no, especially with bad behaviour
● Many people on parole reoffend - most people don't. People want to stay out of
prison. People let out on parole are less likely to reoffend because of their good
behaviour. Misconception comes from the media. Recidivism rate: 20-25% for
conditional sentences. 30-40% for those with a 6 month sentence. Low risk
●
assessment 2-4% chance of recidivism. High risk 50%. Most people are in low risk
category
Victims do not play a role in parole decisions - not true, their family and themselves
can help give opinion about decision, can give a statement that board will consider,
can attend parole hearing, and courts will consider the impact that the crime had on
the victim's life
B- Sentencing Disparity
- Sentence should be proportionate to the crime and morality of offender
- However, 2 judges may make different decisions on sentences
Sentencing Principle: judges should hand down similar sentences for similar offences and
circumstances
● Not always the case (disparity) -- variations in sentences handed down for similar
offenders committing similar offences. However no 2 cases are completely the same
● Some variability is warranted on a case by case basis
● Unwarranted sentencing disparity -- to much variation not accounted for. Judge may
rely on things not actually related to case facts
● Systematic factors: how lenient a judge is generally on sentences (ie: prosecutor
lawyer becomes a judge, more strict overall)
● Non systemic factors: mood, changes on day to day basis
● There is sentencing disparity in Canada
Brock Turner Case
● Stanford rapist/swimmer. Was on the swim team, had a promising career as a
swimmer. Went to a party and left with women blackout drunk, she was passed out in
alley and he SA her, 2 people caught him and called
● No question he committed the offence, only 6 month sentence, Brock tried to appeal
and was unsuccessful. Got an early release after 3ish months
● Judge didn't want to ruin Brocks future as a swimmer
Brian Banks
● Convicted 6 years in jail, 5 years probation term
● Accused of SA, but wasn’t true (woman lied). Had promising career in football
● Falsely claimed SA at school, didnt want to tell mom she was pregnant (unrelated) so
made up story about him raping her. Convicted at trial - looking at significantly longer
in prison but plead guilty to get a 6 year sentence.
● Eventually got proof of false claim and exonerated, but after time has been served
● Woman sued school as well for unsafe environments and won, had to pay money
back
● Recently signed contract to play football, ended up on pathway to good career
Difference between cases, obviously committed crime (red handed) vs didnt even commit
crime. Racism and privilege issues. Judge itself was from Stanford, which led to bias. 2
people can face wildly different fates in the justice system. USA is even more complicated
than Canada bc of differing state laws/precedents
Anchoring Effect
●
●
●
●
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Cognitive bias; Applies to all people but focusing on judges for the lecture
Mental shortcut, first number you are given (anchor) can influence future decisions.
Determines the number you give, acts on a baseline
Ie: every sweater in a store is $300, one sweater is $100. Seems like a good deal.
VS in one store everything is $20, vs one sweater is $100. Seems like a ripoff
(because anchor is different)
Ie: asking price on a house/car. Original asking price effects appropriate reference
point
Judicial sentencing - numerical game (months/years in community and incarceration)
- prosecutor and defence give recommendations for length of sentence
Anchoring in Court Study
● SA mock case. Half told 1 year or 34 months as anchor
● 10 month gap in final judicial decisions, therefore affected by what the prosecutor
recommended. Same case facts
● Didn’t matter if it was a prosecutor or student - recommendations still same
● Real judges regardless of experiences manipulated based on what lawyers ask for
False Consensus Effect
● Overestimate how many people in the world agree with you. Tend to think people
have the same beliefs/ see the world the way you do. Egocentric bias
● Judges believe that all other judges would come to the same decision they did, even
though sentencing varied greatly
● 30% of college students believe that aliens are in outer space and have technology
to use against us. They believe that 60% of people also agree. (really only 30%).
● Same thing with common interests. Leads to glibness
● Makes sense to us, rational and reasonable to them, assume they would make sense
to someone else
● We tend to believe other people have same beliefs because it gives us a sense of
interconnectedness, and we tend to spend time with people who have similar beliefs
as us
● Judges have inflated confidence in accuracy of decisions. Lack of consistency in
verdicts (seems reasonable to them, doesn’t think any more about it)
C- Incarceration in Canada
● What happens to people when they are inside a prison?
Inside a Prison
● Not meant to be nice place, but prison rights are protected
● Prisonization: process of adapting to prison. Subcultures in prison. Norms and rules
in prison to follow, inmate code (ie: prisoners not supposed to side w correctional
officers).
● Gangs in prison, street gangs that have been convicted, biker gangs, specific prison
gangs, asian gangs, white supremastists, organized crime, indigenous gangs,
random gangs, loners gang
● 40k people in custody in every given time in Canada, average rate of 131 people per
100k
● 95k on parole on probation
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Maximum security - confined to self most of time, high patrol and security, armed
guards
Minimum security: less likely to have fences/heavy fences, less heavy guarded cells,
more freedom, more opportunities to work
Less serious = minimum security. Nicer place. Rehabilitative protection greater
Violence within a prison - sexual assault,
loss of freedom, loss of agency, substance abuse, addiction, loss of privacy, strip
searches, overcrowding (USA worse but Canada has problems too)
Solitary Confinement/Segregation
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Administrative Segregation: people who cannot be in regular population, high risk of
violence, pedophile, gang member, form of protective custody for their own safety
Disciplinary: punishment, threat
Kept alone in a very small cell for almost all of the day. Limit in CAN is supposed to
be 15 days but may be much longer than that
SIUs: Structured Intervention Units (another word for segregation units)
Form of tortutre (defined by UN) - want us to abolish this or use it for as little as
possible time periods
Specific psychiatric condition: hallucinations, panic attacks, paranoia, lose impulse
control, hypersensitivity to external stimuli, loss of sense of time/space, crippling
obsessions, self harm, sucidie attacks
Makes you a danger to yourself. 50% of suicides in prison from shu. Only 5% of
prison population in here
⅔ of psychiatric patients - they do not know what else to do with them, unequipped to
handle mental health issues. Just exacerbates the problem
Solution for transgendered people (not really)-- need specialized care
Adam Capay - Indigenous man held in segregation for 1647 days. Never turned light
off for him - he lost circadian rhythms (sense of time), was never tried, waiting for
trial. Grew up in a violent home, first nation reserve north of thunder bay.
Psychological damage, juvenile record, destroyed mothers car in baseball bat.
Waiting to be tried in court. Having psychological problems - thinking about killing
people, ended up killing an inmate. No one did a psych assessment - put him in
solitary confinement. Basically forgot about him. May have had drug abuse psychosis
but never followed up. No one was allowed to talk to him. Argued that charter rights
were violated
Thought of that 1 day in segregation is like 3.75 days in regular sentence. Put a stay
in proceedings
Ashley Smith - behavioural problems, in and out of juvenile system, committed
suicide while being watched by prison guards, no one did anything for 45 mins
New York Prison - one of worst prisons in America
Sweden Prisons much nicer, more resources - more focus on rehabilitation
Norway - even different. Mentality of helping a person turn life around (lowest recidivism
rates in whole world, where America has one of highest) Reform and help. 20% vs 60%
Returning to life After Prison
● Programs to help people with education, find job, etc
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Try to give prisoners good start but it is difficult (prejudice)
Habits can be difficult to overcome after prison (ie walk in yards)
Can be difficult to socialize with people, show emotion
Feel on guard / prone to attack. Especially if you were held in solitary environment
May forget to speak with body language
Overall difficult transition back
Complex PTSD - post incarceration syndrome. We usually see chronic forms of
trauma (ie: war, child abuse, domestic violence) - repeated exposure over and over.
Complex PTSD based on long term dramatic exposure to situations - nightmares,
flashbacks, hyperarousal - anxiety and stress, hypervigilant, persistent to avoidance,
emotional numbing
May engage in other addictive behaviours to avoid PTSD symptoms
Possible factors of incarceration: poverty, impulse control, abuse, ad decision,
trauma, risk factors. People don’t really take into consideration sentencing when
committing a crime, other things lead them to it
Prison - expensive, severe trauma, hard to rehabilitate
D- Cognitive Heuristic & Public Attitudes
● 70-80% of Canadians believe sentences are too lenient
● Problematic question; acontextual, very basic. People don't have context
● People do not typically know average crime sentences based on crimes
(problematic)
● Basing their judgements without any information
Judgemental Heuristics
● Mental shortcuts that reduce complex problem solving to simpler judgements
● Typically useful shortcut that is correct MOST of time - saves you from filtering
through things, takes less time
● Ie: prototype of basketball player (ie: tall black male), leaving out lots of good players
● Availability Heuristic: what comes to mind most quickly? Correct usually but not
always. Relying on what's available but nots accurate
● Same goes for crime/jail. Likely to recall violent crime bc media but in fact it is quite
rare (10%)
● Representativeness Heuristic: tendency to judge something based on how
representative they are of your prototype
● People think of violent offences, people that got off early. Prototype is unfair
sentence
● Base Rate Fallacy: ignoring statistical probability, base rate. Ignoring that 89% of
crimes are not violent. Ignoring representativeness, does not typically/statistically
happen
● Estimate of punishment of crimes is underestimated
Media - selling papers, getting views, they report the frightening stuff because its more eye
catching
Most reported = more common than it is. Plus, creates prototype
Also, people who get light sentences are likely to be reported more so than heavy/normal
sentences
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Heavy tendency to over report violent crimes in the media. Info can be very
misleading and inaccurate
Headline and people’s opinions not accurate
Pro prosecution, pro victim slant. Makes us angry, want to make offender pay
Media doesn’t report base rate and distorts views
Murder only 1% of crimes in Canada but 25% of crimes in Canada
Violence is only 9% of crimes, but 50% reported
Would people think differently if had correct info?
- Present participants with case facts (course transcripts) or news coverage. Ask about
sentencing
- NEWS - 68% found too lenient
- Case facts: 19% found too lenient OR even punished too harshly
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People imagine a repeat offender and most serious violences when asked the
question of sentencing quality
Majority of people think crime is on increase; not true. Steady freefall since 90s
Do people actually want tougher sentences?
- What would you like to do? Give people a choice, -- jail for longer OR did something
else before crime occurs. People want precautions (ie: biggest thing was reducing
unemployment)
- Most vulnerable people are most likely to commit crimes. Thought process is
completely different. Harsher sentences don’t deter people from committing crimes
- Not going to change rates of crime but spend money on prison, meaning less money
for other things. Substantial disruption in people’s lives
- People prefer alternatives over prison (ie: build school in high risk community to
avoid crime, investment in jobs, etc)
Mandatory Minimum Sentences
- They do not deter crime
- Judges feel forced to give out unjust sentences. Many said hate mandatory minimum
sentences because they do not have flexibility to tailor sentence to people’s needs -has to go to jail making much people worse
- More money into jails
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Crimes are on decline. Mandatory minimum in 2008 by Harper. Number of
mandatory minimums unconstitutional, slowly being knocked down
Property victimization - no significant impact. Crime been on low for past 30ish years