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Question Trails Discussion A/Prof Mark Nolan ANU College of Law

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1 Question Trails Discussion A/Prof Mark Nolan ANU College of Law

2 2 Question Trails: Discussion (1) Even more empirical psychological research on QTs (2) What legislative change is required to permit use of QTs? (3) Methodological issues when conducting research on QTs

3 3 Ede (2012) (1) Even more empirical psychological research on QTs separate ppt slides from Tamsin Ede (Honours Graduate in Psychology, Charles Sturt University, 2012) Tamsin Ede and Jane Goodman-Delahunty, ‘Question Trails in Trials: Structured versus Unstructured Juror Decision Making’ (forthcoming) Criminal Law Journal

4 4 Legislative Change Needed? (2) What legislative change is required to permit use of QTs? Some Australian legislation already permit use of QTs Criminal Procedure Act 2009 (Vic) (s 223; see also s 222) –the indictment; –summary of the P opening; –D’s response to that summary; –opening and closing addresses; –D’s response to pre-trial admissions of the P; –any document admitted as evidence; –any statements of fact; –any s 222 address by judge to jury; –any schedules, chronologies, charts, diagrams or other explanatory material; –transcripts of evidence or (transcripts of) audio or audiovisual recordings of evidence –the trial judge’s s 238 directions to the jury, –and any other document that the trial judge considers appropriate

5 5 Legislative Change Needed? (2) What legislative change is required to permit use of QTs? Some Australian legislations already permit use of QTs: Jury Act 1977 (NSW)? 55B Judge or coroner may give directions to jury in writing Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so. Some case law already authorises use of something like QTs: –R v Ford [2003] NSWCCA 5 (written directions plus 5 Qs)

6 6 Legislative Change Needed? (2) What legislative change is required to permit use of QTs? Other procedural matters? Clarify that answers to individual questions on question trails do not form part of the court record, meaning that –Preserve the secrecy of jury deliberations –Clarify there is no appeal on the ground of apparent (in)compatibility between answers to individual Qs and the general verdict? Clarify the relationship between jury directions and QTs –NB cl 19 relating to “integrated directions” in Jury Directions Bill 2012 (Vic)

7 7 Methodological Issues in QT Research What type of decision-making aid are QTs? –does relevant, generalisable, prior legal psychological or decision- making under uncertainty literature exist? eg. Are QTs like flow-charts, psychologically? – CA Semmler & N Brewer (2002) ‘Using a Flow-Chart to Improve Comprehension of Jury Instructions’ 9(2) Psychiatry, Psychology and Law 262-270 eg. Are QTs in criminal trials like SVFs in civil trials, psychologically? –EC Wiggins, & SJ Breckler, ‘Special Verdicts as Guides to Jury Decision-making’ (1990) 14 Law and Psychology Review 1-42. eg. What are the psychological distinctions if any between different juror aids? –ie. “issue tables” and question trails (see suggestions for juror aids in the NSWLRC Jury Directions in Criminal Trials reference (3) Methodological issues when conducting research on QTs

8 8 Methodological Issues in QT Research Mock trial research? –logistics of jury research and choice of experimental design –choice of individual-level or collective deliberation level –statistical assumptions relevant and statistical analysis required for analysis of collective deliberations –experimental control vs external validity (Comparative) Field Research? –comparability of trials within and across jurisdictions eg. different QT practices with in jurisdictions where QT processes not regulated eg. number of charges and case type/complexity eg. differences in rights of election / mandated jury trials and judicial experience with jury trials eg. different legal tests between jurisdictions – (such as “are you sure” in QT as BRD) (3) Methodological issues when conducting research on QTs

9 9 How to measure psychological success of QTs, what is “good” juror decision-making, and how to measure it? –no verdict bias (eg. leniency or punitive bias)? –must test recall for facts, inferences about facts, AND “complex comprehension of applying law to facts –“simple” comprehension of legal rules states in jury directions measured via a pop-quiz seems less useful when have QT in front of juror and/or written versions of oral instructions –subjective perception of juror experience and ease –relevance of prior research on juror “bias” and use of extra-legal factors / “juror nullification” How to isolate the impact of QTs in the context of (reformed) jury process? Is this isolation desirable?

10 (3) Methodological issues when conducting research on QTs Are there further under-researched reform suggestions? Facilitated jury trials? Elsa Gilchrist (2003) (Law Honours Thesis, ANU College of Law) facilitator is just one more stranger bound by professional and secrecy obligations under law, but, would hear all of the deliberations neutrality important staged approach from ADR process facilitator as legal advisor? facilitator as a group dynamics umpire of last resort? Is the role of the jury foreperson even more challenging when must keep jury on task with a QT? Should the foreperson be supported and the deliberating group discussion be facilitated by a professional facilitator?

11 Jury research methodology DJ Devine, LD Clayton, BB Dunford & RP Seying, ‘Jury Decision Making: 45 Years on Deliberating Groups’ (2001) 7(3) Psychology, Public Policy, and Law 622-727. archival research questionnaire studies post-trial juror interviews / interviews with experts mock jury trials shadow juries memoirs by ex-jurors

12 Some Criticisms of Mock Trials External Validity participants (who? & how recruited?) stimulus materials unit of analysis appropriate DVs corroborative data role playing –but Rose & Ogloff (2001) 25(4) Law and Human Behavior 409, 410; 427-8.

13 Rose & Ogloff (2001), p 410 “Apart from attempting to make the simulations more realistic, the various criticisms of jury simulation research may not be of much concern if the research in question is performed solely to examine a question of inherent psychological interest. The criticisms are of greater concern, however, if the research purports to be relevant to the law.”

14 S Saikal, Mandatory Madness: Criminal Jury Trials in the Australian Capital Territory (Unpublished Hons Thesis, ANU College of Law, Nov 2011) ACT had historically (since 1993) allowed Ds more control over election of trial by judge alone / jury trial than in other jurisdictions 56% trials for indictable offences held without a jury; 40% more than other jurisdictions Some had suggested that the high rate of acquittals for homicide in particular was due to trials by judge alone no murder convictions upheld in ACT between 1998-2011 intent to cause serious harm as MR for murder only from 2009 Could the high rate of acquittals be due to strength of evidence and defences available etc? Jury Law: Mandated ACT Jury Trials

15 Jury Law: ACT Jury Trials (Saikal, 2011) Financial year ACT Supreme Court acquittal rateAverage national acquittal rate of equivalent higher courts 2009/1011%7% 2008/0916%8% 2007/0813%7% 2006/0711%8% 2005/0613%8% ACT Supreme Court Acquittal Rates 2005-09 (Saikal, 2011), p 16.

16 BEFORE 7 July 2011 reforms: Supreme Court Act 1933 (ACT) 68B Trial by judge alone in criminal proceedings (1) An accused person in criminal proceedings shall be tried by a judge alone if— (a) the accused person elects in writing to undergo such a trial; and (b) the accused person produces a certificate signed by a legal practitioner stating that— (i) he or she has advised the accused in relation to the election; and (ii) the accused person has made the election freely; and (c) the election is made before the court first allocates a date for the person’s trial; and (d) if there is more than 1 accused person in the proceedings— (i) each other accused person also elects to be tried by the judge alone; and (ii) each accused person’s election is made in relation to all offences with which he or she is charged. (2) An accused person who elects to be tried by a judge alone may, at any time before he or she is arraigned, elect to be tried by a jury. (3) If an accused person makes and then withdraws an election, he or she shall not make another election. Jury Law: ACT Jury Trials (Saikal, 2011)

17 AFTER 7 July 2011 reforms: Supreme Court Act 1933 (ACT) 68BTrial by judge alone in certain criminal proceedings (1) A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if— (a) the person elects in writing to be tried by a judge alone; and... (4) In this section: excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone—excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2. SO, if it is an “excluded offence” a jury trial is mandated Jury Law: ACT Jury Trials (Saikal, 2011)

18 AFTER 7 July 2011 reforms: Jury Law: ACT Jury Trials (Saikal, 2011) column 1 item column 2 legislation column 3 provision and case (if any) column 4 description 1Crimes Act12murder 2Crimes Act15manslaughter 3Crimes Act17suicide—aiding etc 4Crimes Act29 (2) or (3)culpable driving of motor vehicle causing death 5Crimes Act42child destruction 6Crimes Act49Cindustrial manslaughter—employer offence 7Crimes Act49Dindustrial manslaughter—senior officer offence 8Crimes Act51sexual assault in the first degree 9Crimes Act52sexual assault in the second degree 10Crimes Act53sexual assault in the third degree 11Crimes Act54sexual intercourse without consent 12Crimes Act55sexual intercourse with young person 13Crimes Act56maintaining sexual relationship with young person 14Crimes Act57act of indecency in the first degree 15Crimes Act58act of indecency in the second degree 16Crimes Act59act of indecency in the third degree 17Crimes Act60act of indecency without consent 18Crimes Act61acts of indecency with young people 19Crimes Act62incest and similar offences 20Crimes Act63abduction (for sexual purposes) 21Crimes Act63Abestiality 22Crimes Act64using child for production of child pornography etc 23Crimes Act64Atrading in child pornography 24Crimes Act65possessing child pornography 25Crimes Act66using the internet etc to deprave young people 26Crimes Act74prohibition of female genital mutilation 27Crimes Act75removal of child from ACT for genital mutilation 28Crimes Act79sexual servitude offences 29Crimes Act80deceptive recruiting for sexual services 30Prostitution Act20causing child to provide commercial sexual services etc 31Prostitution Act21receiving proceeds of child prostitution 32Radiation Act55, if failure causes deathfailure to comply with safety duty causing death Part 2.2Excluded offences

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