Teaching legal psychology as an application of social psychology

1. Teaching legal psychology as an application of social psychology Michel Sabourin, Ph.D. Dept. of Psychology University of Montreal, CANADA

2. OUTLINE Introduction (1) Applying social psychology • Trial consultation • Jury selection • Pretrial attitudes and biases • Credibilityasessment • Eyewitnesstestimony

3. OUTLINE(cont’d) • Pretrialpublicity • Jury deliberation • Psychological expertise (2) Experientiallearning Conclusion

4. Introduction During the pasttwentyyears, I have been teachingundergraduate classes and graduateseminars in legal psychology, assuming as well the training and supervision of graduatestudentsboth in researchprojects and in the numerous applications of psychology to the legalfield .

5. Introduction • Two major influences on the core curriculum of my lectures and on the deliverymethod: (1) the ideadevelopped by Sharon Brehm and Saul Kassin (in their Social Psychology textbook) that legal psychology is one of the direct applications of social psychology (2) the need to rely on experientialactivities to promotelearning

6. Applying Social Psychology • Theories and researchfindings of social psychology allow us to increaseourunderstanding of settings and problems of the real world • According to Brehm & Kassin (1990 and the followingeditions), three major aplied areas to social psychology: LAW, BUSINESS and HEALTH

7. Applying social psychology • The applications to lawinclude areas, like (1) trial consultation, (2)jury selection, (3) pretrial attitudes and biases, (4)credibilityassessment, (5)eyewitnesstestimony, (6)pretrialpublicity, (7) thejury deliberationprocessand (8) psychological expertise • Each of these areas islinkedwithspecifictheories and researchfindings in social psychologythatstudents must review

8. Applying social psychology • The trialitselfillustrates the profound importance of social psychologyatwork in the legal system • Whatkinds of people do lawyers select as jurors and why ? • Can eyewitnessaccuratelyrecall the details of traumaticevents ? • How do juries manage to reachunanimousdecisions, oftenaferdays of deliberation ?

9. (1) Trial consultation • This involvesassisting the attorney (in criminal cases, the defencelawyer) in the different aspects of trial preparation, like, for example, evaluation of the evidence and itspresentationstrategy, preparation of the openingstatements and closing arguments, witnesspreparation and order of appearance, etc…

10. (1) Trial consultation (cont’d) • Thesedifferent areas linkwith the following social psychologysub-areas : • Persuasion :social influences on attitude • How attitudes are measured • The linkbetween attitudes and behavior • Methods of changing attitudes • Persuasion by means of communication • Two routes to persuasion • The source, the message and the audience

11. (1) Trial consultation (cont’d) • Persuasion by ourown actions • Roleplaying • Cognitive dissonance theory • Alternative routes to self-persuasion Most important for the student to master these basic areas to betterunderstand and applythem to trial consultation

12. (2) Jury selection • Three stage process = • (1) Pool of eligiblecitizens • (2) Pretrialexamination of prospective jurors • (3) Peremptory and for cause challenges What guides the decision to accept certain jurors, whilerejectingothers ?

13. (2) Jury selection(cont’d) • From a social psychologystandpoint, jury selectioninvolves a good knowledge of: • Stereotype formation: social categorization, outgrouphomogeneitybias, illusorycorrelations, subcategorization, contrasteffect • Implicitpersonalitytheories • Impression formation

14. (2) Jury selection(cont’d) • Prejudice: individualdifferences, authoritarianpersonnality • Trait differences : implicitpersonalitytheories and the power of first impressions • Confirmation bias • Researchmethods (observation, self-reports, surveys, etc…)

15. (3) Pretrial attitudes and bias • Systematic jury selection: Findingvalid and objective indicatorsallowing the lawyer to identifyindividualscomingfrom the pool of potentialjurorswhowillbe favorable or neutralwith respect to the theory of the client represented and to rejectunfavorable or biasedindividuals • Verdict predictiondepends on the specific issues and details of a particular case

16. (3) Pretrial attitudes and bias(cont’d) • Scientific jury selectioninvolvesknowledge of: • Demographics and attitudes relevant to trial • Confirmation bias and confirmatoryhypothesistesting • Kohlberg’s stages of moral development • Researchmethods

17. (4) Credibilityassessment • Identification of the behaviors (nonverbal, paralinguistic and verbal) allowing an evaluator (judge, police officer, custom officer, etc…) to distinguishbetweenthosetelling the truth and thoselying (or deceiving)

18. (4) Credibiityassessment(cont’d) • For a betterunderstanding of this concept and its applications, the studentshould master : • The linkbetween attitudes and behavior • Persuasion by means of communication • Behavioral observation methods • Social psychophysiology: sympathetic and parasympatheticreactions • Role of scripts and self-schemas

19. (5) Eyewitnesstestimony • The testimony (or evidence) given by someonepresentduring an eventwhoactuallysawwhathappened and whoiswilling to testify in court to help the judge or jury arrive at a decision . • General research conclusions = (1) eyewitnesses are imperfect, (2) manywellknownfactorssystematically affect their performance, (3) judges and juries are usuallyunaware of thesefactors • The main cause of wrongful convictions

20. (5) Eyewitnesstestimony(cont’d) • Involves the knowledge of: • The three stage process in memory: • (1) acquisition: relation between arousal and performance (Yerkes-Dodson Law), cross-racial identification bias • (2) storage: theory of reconstructive memory • (3) retrieval: line up construction, identification, instructions • Role of self-confidence and accuracy • Over-estimation of eyewitnessaccuracy

21. (6) Pretrialpublicity • The more information the people have about a case from the media, the more likelythey are to presume the defendantguilty • Doesthis information have an impact on jury verdict ? • Pretrialpublicitycanseverely compromise a defendant’s right to a fair trial • The closest social psychology concept thathelpsbetterunderstandwhat’sgoing on is the power of first impressions

22. (7) Jury deliberation • Group deliberationprocessdesigned to produce a binarydecision : guilty or not guilty • Involves a large number of social psychological concepts: • Group polarization • Conformity, • Majority influence • Effect of group size, social change, leadership, etc…

23. (8) Psychological expertise • Expert witnesses: individualwhotestify in court on technicalmattersrelated to their expertise • Psychologists are beingaskedwithincreasingfrequency to testify as expert witnesses (mostly in custody cases, but also in areas more familiar to the social psychologist, like cameras in court, eyewitnesstestimony, trademarklitigation, etc… • What do weneed to know about social psychology to become a better expert ?

24. (8) Psychological expertise • An overview of researchmethods • Ethics and values in social psychology • Again, social influence and persuasion • The expert witnessisallowed to voice opinions (inferencefromobservedfacts), to report hearsay, to speculatebased on a recognized (even if not exact) science

25. Promotion of learningthroughexperientalactivities • In each area thatwe have justlookedat, I have, throughout the years, made special efforts to design learningactivitiesrelateddirectly to the issues underscrutiny • The ideawas to supplyundergraduates, in some cases, and graduatestudents in other occasions, with the chance to live an experiencethatwouldprovidethemwith a bettercomprehension of the phenomenon

26. Trial consultation in real cases • Since 1985, I have been involved as a consultant in over 30 jury (criminal) trials in sometimeshighlypublicized cases • Each time, I would profit from the occasion to involvemygraduatestudents as assistants, either for the gathering of data and/or the discussions concerning the specific issues of a particular case. Theywouldalsobepresentduring the trial and the debriefingswith the lawyer

27. Trial consultation in real cases • Various types of services canbeoffered to help lawyerswith case preparation: • Organization of a mock trial (frompaperpresentations to highlysophisticated « trial » withactors in « real » courtrooms) • Videotaping (and thoroughreviewing) of openingstatements and closing arguments in light of social psychologyprinciples: Ex.: primacy and recencyeffects, one or two-sided arguments, etc…

28. Trial consultation in real cases • Goal of theseprocedures: (1) to test the reactions of laypersons to the arguments thatcouldbeused and to identifypotentialproblems of comprehension, (2) to gatherdemographic information thatcaneventuallybeused for jury selection

29. Jury selection • Usingsystematic jury selectionmethodology, information isgatheredthrough the application of survey techniques or by using questionnaires withmockjurors and/or results of credibilityassessments. • Data collectedallow us to define the favorable and unfavorable profiles of potentialjurors

30. Jury selection • In highlypublicized cases, whereprejudicial information has circulated, data canalsobeprovided by using the public opinion pollmethodology • Graduatestudents are involved in the design of the questionnaire, the actual polling and the data analysis. Thustheylearnconcretely how things are done

31. Jury selection • General scheme of a pretrialsurvey: • First, spontaneousrecall, then recognition. • Thenspecific questions concerning attitudes toward the arguments to beused by the defense and/or the prosecution • Judgment call on the degree of perceivedguilt of the accused

32. Jury selection • Measure of general attitude toward certain issues, v.g. racial prejudice • Finally, gathering of socio-demographic data • Throughappropriatestatisticalanalysis (multiple regression), possible to establish the relation betweendifferent variables and drawveryprecise profiles • Importance of proceeding in a systematicfashion for jury selectionusing data gathered

33. Credibilityassessment • Important to know how the accusedisperceived to enable attorney to decide if he/shewilltestify, sincethereis no obligation to do so. • Also important to know the credibility of the major witnesses for the prosecution • In Canada, obligation for the prosecution to demonstratesufficientevidence to support the charges laid against the accusedduring a preliminaryhearing.This information canbeused for credibilityassessment.

34. Credibilityassessment • Also, a videotapedmock interrogation (with a cross-examination by a mockprosecutor) of the accusedcanbeevaluated for credibility by a sample of laypersons • Test using Adjective Check List devised to performthisevaluationboth for the witnessitself and his/hertestimony ; administered to large samples and resultscompiled. Again, graduatestudents are directlyinvolved in data collection • Decisions made are thereforebased on empirical data

35. Credibilityassessment • Samematerialused for credibilityassessmentcanbeused to stage a mock trial withbalancedpresentation of the evidence and mock jury deliberations • Multiplied a certain number of times, thesemock trials provideusefulempirical data thatcanbeused for jury selection • Also, in-depthviewing and analysis of the videotapes of the mock jury deliberationscanbeveryuseful to assessproperunderstanding of legal concepts involved

36. Credibilityassessment • For teachingpurposeswithstudents (in psychology or in lawschool), as well as for judges and custom officers, an experiential workshop wasdesigned • First activity: gathering information on whatindicators are spontaneouslyused by the participants to identifytruthtellers or liars. Degree of confidence of indicators

37. Credibilityassessment • Second activity: viewing the testimonies (on video) of an allegedvictim and an allegedaccused in a « university » case seeminglyinvolvingsexualharassment. Evaluation of the credibility of both and listing of indicatorsused to arrive at conclusion • Thirdactivity: evaluating the pertinence of a list of 25 indicators to help identifyingtruthtellers or liars and notingtheirdegree of confidence in theseindicators.

38. Credibilityassessment • Fourthactivity: Beinggiven a 45-min. lecture involvinggeneral notions of credibility and researchresultsconcerning the validity of a certain number of indicators (all in previouslist) to distinguishbetweenliars ans truth-tellers • Fifthactivity: Results of thirdactivity have been compiled and generalresults (means of the group) are presented and discussed. Indications are given as to the mostvalidindicators and thosewho are anecdotic

39. Eyewitnesstestimony • Twoexperiments have been designed to enableundergraduatestudents to bettergrasp the reality (and difficulties) surroundingeyewitnesstestimony • (1) A confederateaccompliceknocks and entersmyclassroomwith a bigproblem: a specific car isblockinghisown and needs to beimmediatelyremoved. It happens to bemy car ; I lendhimmykeyswith the promise thattheywillbereturnedimmediately

40. Eyewitnesstestimony • Doesn’t come back after 10 minutes. I call for a pause to go seewhat has happened. Car isstolen. Universitysecurity (otheraccomplices) iscalled in, and sinceit’stoo long to interview everyoneindividually, theydistribute a paperwithvarious questions for proper identification of culprit ; in order to follow up only the sure indicators, students are asked to rate theirdegree of certaintyconcerning the variouselements of their report.

41. Eyewitnesstestimony • Once all students have completed the task, I informthemthat the car theftis a hoax ! The « culprit » comes back into the room… • Each one then compiles hisown report, notingnumber of correct and incorrect items, as well as the degree of certainty for each items • The experimentendswith a long discussion of the difficultiessurroundingeyewitness identification…

42. Eyewitnesstestimony • (2) The second experimentisalsopresented as a true story. A Swedishcolleagueinvolved as a consultant to the prosecution has asked me to evaluate the construction and validity of a lineup made by the Stockholm police during the inquirysurrounding the assasination of Prime Minister Olof Palme in 1986. (True)Reason: the convictedmurderer has appealed to the SwedishSupreme Court advocatingthat the videolineupwasinvalid

43. Eyewitnesstestimony • Student are asked to view the video of the lineupwithtwelve suspects and to identifywhotheythinkwouldbe the culprit • If the lineupisvalid, each suspect has one chance out of twelve to bechosen. If any one suspect or suspects are chosensignificantly more oftenthan chance, and if the murdereriscorrectlyidentified, then the videois not valid • Answers are compiled and thereis discussion

44. Pretrialpublicity • Usually the main argument for asking for a change of venue and/or supporting the need to ask questions during the voir dire (selection of jurors) • The large amount of prejudicialpublicity in the written articles or in media broadcastsis not sufficient to show convincinglythat a trueprejudiceexists • There must be a causal relationship

45. Pretrialpublicity • Again, this factor isevaluated by means of public opinion polling with first, the measurement of spontaneousrecall, thenthat recognition • The impact of the mostprejudicial informations thatcirculatedisevaluated • Graduatestudentsparticipate in all stages of questionnaire preparation, administration and data analysis

46. Jury deliberationprocess • Following the trial part (or after the presentation of evidence by the prosecution and the defence and the closing arguments) of a mock trial, the mockjurors are given instructions and asked to deliberate, as if for real, in a special room equipedwithvideorecording

47. Jury deliberationprocess • Viewing and analysis of thesevideosisvery instructive for students (or for lawyers !) with regard to whatisrememberedfrom the evidencepresentedinitially, whatisused to reach a verdict, whatisclear, whatisunclear, whatisunderstood, whatis not understood, how legal concepts are interpreted or understood, etc…

48. Jury deliberationprocess • Also, itgives information on how the group structures itself and whatdegree of polarizationcanbewitnessed • Very instructive to look at the waysidingdevelops and ultimately, how is consensus reached • Observing for specificbehaviors or arguments (in terms of frequency and duration) isalsoveryhelpful to betterunderstand the deliberationprocess

49. Psychological expertise • Over the years, I have been involved as expert witness or consultant not onlywithcriminal jury trials, but also in various cases dealingwith lie detection in civil proceedings, the impact of cameras outside the courtroom and presently, with the identification and control of vexatious litigants (at the request of the Chief Justice)

50. Psychological expertise • In most of these occasions, and whenever possible, I have tried to involvemygraduatestudents in the discussions surroundingthose cases, but also in the main activitiesderiving or required by the expertise. • In a way, it’slikesupervisinginterns in the application of psychology to law