Gillian Guess: Juror in Vancouver murder trial

2. Gillian Guess: Juror in Vancouver murder trial • Convicted of obstruction of justice after becoming romantically involved with a murder defendant while she was a juror in his trial. • Her case is significant because it set legal precedents in three areas of Canadian Law: • Her case is the first known case where a juror has had sexual relations with a murder defendant • The only case where a juror has faced criminal sanctions for the decision he or she has made • The only case in Canadian law where jury room discussions were made part of the public record.

4. Gillian Guess was convicted of obstruction of justice because other jurors claim she harassed them into acquitting Gill. She was sentenced to 18 months in prison, plus one year of probation . • "I have been convicted for falling in love" Gillian Guess June 19, 1998"You have been convicted of obstructing justice" The Legal System - June 19, 1998 • Her story was made into a TV movie named "The Love Crimes of Gillian Guess."

5. Definitions of a jury • 12 people too stupid to get out of jury duty. • Jury - A group of 12 people, who, having lied to the judge about their health, hearing, and business engagements, have failed to fool him. -H.L. Mencken • We have a jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men who don’t know anything and can’t read. • Mark Twain

6. Never accept a juror whose occupation begins with a P. This includes pimps, prostitutes, preachers, plumbers, procurers, psychologists, physicians, psychiatrists, printers, painters, philosophers, professors, phoneys, parachutists, pipe-smokers, or part-time anythings. • – William Jennings Bryan (U.S. Congressman, Democratic presidential nominee, and former Secretary of State).

7. Charter Rights to a Jury • S. 11(f) • guarantees the right of a person who is charged with an offence,except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

8. Jury Selection:Representative “Provincial legislation guarantees representativeness, at least at the initial array. The random selection process, coupled with sources from which this selection is made, ensures the representativeness of Canadian criminal juries • R. v. Sherrat, 1991, Madam Justice L’Heureux-Dube,

9. How is a Sample Representative? • All members of the parent population have an equal chance of being selected • The sample is a random selection • The sample is large enough

10. How does Jury Selection Deviate? • The entire parent population is not fully identified • Not everyone in BC is on the voters list • There are systematic omissions from the sample • The Jury Act excludes a lot of persons • The array may not be large enough • Peremptory challenges

11. The Right to a Jury Trial 8-3

12. Selecting a Jury Selected from list Part of jury pool Peremptory Challenges Selected as juror 8-6

14. Jury Selection: Representativeness Peremptory Challenge 20 each if murder 12 each for crimes with penalty >5 years 4 each for lesser penalties Can also have challenge for cause. Must give a reason. Rarely used since lawyers have little information about person. In certain instances, judge may allow some limited questioning, such as whether they or close friends work with child victims, or would your feelings about child abuse prevent you from giving defendant a fair trial based only on evidence presented in court.

15. People below are DISQUALIFIED from Jury Service in BC* (1) A person is disqualified from serving as a juror who is: (a) not a Canadian citizen; (b) not a resident of the Province of British Columbia (c) under the age of majority (19 years of age); (d) a member or officer of the Parliament of Canada or of the Privy Council of Canada; (e) a member or officer of the Legislature or of the Executive Council; (f) a judge, justice or court referee; (g) an employee of the Department of Justice or of the Solicitor General of Canada; (h) an employee of the Ministry of the Attorney General of the Province; (h.1) an employee of the Legal Services Society or of a funded agency, as defined by the Legal Services Society Act; (i) a barrister or solicitor; (j) a court official; (k) a sheriff or sheriff's officer; (l) a peace officer; (m) a warden, correctional officer, or person employed in a penitentiary, prison or correctional facility; (n) blind, deaf, or has a mental or physical infirmity incompatible with the discharge of the duties of a juror; (o) a person convicted within the previous 5 years of an offence for which the punishment could be a fine of more than $2,000 or imprisonment of one year or more.

16. Jury Deliberation Select a foreperson; Review evidence; May take an initial vote. • Must reach consensus. If initial vote indicates disagreement, some will have to change vote or result will be hung jury. • Research has shown that initial preference is a strong predictor of final verdict, about 90% of the time. • When a strong early majority favoring conviction (75% or more of the jury), a guilty verdict is usual result, but if 50% or less, not guilty likely outcome. • Murder trial in Bellingham. 11-1 for acquittal. Juror said she had confidence in the prosecutor that he would not have brought this person to trial if she was not guilty. We will see later that attitudes toward defence or prosecution can be predictive of outcome.

17. Why does group polarization occur? • A. PERSUASIVE ARGUMENTS THEORY • Opinions of group members will shift toward an extreme of the majority opinion (conform) because there are simply more arguments (more information) and better quality arguments put forth in favor of the initial majority opinion because, by definition, there are initially more persons that hold that opinion, and therefore more people to generate and elaborate on information in support of it

18. B. SOCIAL CONTEXT OR NORMATIVE INFLUENCES • Minority members may comply with the group norm to fulfill selfish needs to gain social approval from the other jurors. We fear the consequences of being considered different, so we go along with what others are saying.

19. When do minorities maintain their positions without conforming? • One important factor is whether or not the minority person has the support of other people. Even the support of one additional person can make a big difference. Ash(1952) study. Subjects put into a group of 7 and shown three lines. They had the task of saying which of three lines was the same length as a target line. The catch is that the 7 people were trained confederates, trained to say the wrong answer before the real subject gave an answer. The wrong answer was to point to the line that was obviously not the right line. Even though it was obviously wrong, 1/3 (32%) of the real subjects also gave the wrong answer. However, when one of the 7 confederates also gave the correct answer before the subject answered, the error rate dropped to 5.5%.

20. Why opt to be tried by a jury?Kalvin & Ziesel (1966) • 78% agreement between judge and jury on whether or not to convict. • When they disagreed, judge would have convicted when the jury acquitted in 19% of the cases. • When jury convicted, judge would have acquitted in 3%. • In civil cases, also 78% agreement, but disagreement almost equally divided. But juries gave awards about 20% higher than judges.

21. Jury Functions • Fact finders: • Apply the law to the evidence and render a verdict of guilt or innocence regarding the defendant • Act as the community conscience 8-14

22. Characteristics of a Jury • Representative: • Representative of community • Ensured through random selection from community • Impartiality: Biases, prejudices, attitudes 8-5

23. Impartiality means… • Set aside pre-existing biases, prejudices, and attitudes that might influence how the case is evaluated. • Ignore all information that is not admissible evidence. • There is no connection with the parties involved in the case.

24. Threats to Impartiality Pretrial publicity • Prejudices that are so prevalent that they almost certainly will influence some potential jurors • Fair trial possible? Consider this case: BELLEVILLE, Ont. - The Canadian military was rocked to its core Monday following the bombshell allegation that the colonel in command of the country's largest air force base had killed two women and sexually assaulted two others. • Col. Russell Williams, a 46-year-old career member of the Canadian Forces, was charged Monday with first-degree murder in the deaths of Jessica Lloyd, 27, of Belleville, and Marie France Comeau, a 38-year-old corporal with CFB Trenton's 437 squadron who was killed last November.

25. Pretrial Publicity • Are jurors exposed to pretrial publicity more likely to believe person is guilty? • Are jurors more aware of evidence that may be inadmissible? • Did Pickton get a fair trial?

26. We find the defendant guilty as charged by the media.

27. Pretrial Publicity: Kramer, Kerr, and Carroll (1990) • Pretrial publicity that was presented shortly before mock jurors were presented with the evidence lead to more negative outcomes after deliberation, and this was especially pronounced when the pretrial publicity was emotionally arousing.

28. Pretrial Publicity: Ogloff and Vidmar (1994) • Negative effect of pretrial publicity even when mock jurors reported that they could ignore it

29. Pretrial Publicity • On balance, the evidence indicates that pretrial publicity has a negative effect on trial outcome in spite of • Continuance—maybe they’ll forget in time • Judicial instructions to ignore the information • Jury deliberations • May influence outcome even when jurors believe they can ignore the publicity

30. Can race be considered a factor in Canada, in terms of jury composition? • R. v. Kent says that absence of members of a particular race does not constitute proof of discrimination, although it implies that deliberate exclusion of a particular race might be grounds.

31. A Crown attorney assigned to a double-murder trial was wrong to secretly compile research on the ideological leanings, criminal records and personal habits of prospective jurors, according to a ruling from an Ontario Court judge.

32. Some of prosecutor Alain Godin's notes on prospective jurors: • Dim bulb. • Too old. Drunk. • Young mother. Pro-police. Could convict. • Work for CBC. Smart. Doesn't care for police. • Rebellious. Doesn't like cops. • Few bricks short. • Bob's wife. Could convict. Husband says so. • Gun club guy. Could convict. • Intelligent, Chatty Cathy nickname. Could convict. • Good, hard working guy. Could convict quickly. • Day care. Hate to convict. Bleeding heart. • Separated. Abusive complaints from wife. • Reported drugs to police. Solid person. Knows guns.

33. Addressing Bias in the Jury Pool • Three options to overcome bias: • Adjournment • Change of venue • Challenge for cause (only option for prejudice)

34. Adjournment Trial is delayed so any biasing effects can dissipate • Infrequently granted Limitations: • Potential loss of evidence • e.g., witnesses may move, die, or forget • Jurors may not forget

35. Change of Venue • Requires moving the trial to another community • The case typically stays within the province or territory • The party requesting the change must demonstrate a reasonable likelihood that the community is biased against the defendant • Not granted very often

36. Studying Juror/Jury Behaviour • Post trial interviews • Archival records • Simulation techniques • Field research 8-16

37. Post Trial Interviews • Not possible in Canada, jurors are forbidden by law from disclosing content of their deliberations. • Fine of up to $2000 and possible imprisonment up to six months. • Post trial interviews with jurors from the U.S. can provide a valuable data source. • Weaknesses: Jurors may recall details inaccurately, may forget, may not want to be honest about their reasons for their decision. 8-17

38. Archival Records • Uses prosecution files, police records, and trial transcripts, etc. • Codes variables of interest, e.g., victim traits, race, etc. Limitations: • No control over biases that influenced how information was collected • Limited in what questions can be asked by the information collected 8-18

39. Simulation Techniques Mock jurors are presented with a simulated trial. They are asked to render a verdict and answer questions. • Variables can be altered so jurors are exposed to alternative forms of the case. Limitations: • Questionable ability to apply to real life cases. 8-19

40. Field Research Research is conducted within an actual trial. • Enables researchers to observe the process as it is occurring. • High external validity. Limitations: • Problems obtaining permission from the court and cooperation from jurors. • Variables of interest cannot be controlled. 8-20

41. Expert Testimony Expert witnesses may be called to explain evidence to jurors. • Influence of expert testimony can vary depending on: • Race and gender of the expert • Complexity of the testimony • Credentials of the expert 8-35

42. Expert Testimony • Nietzel average effect size for 149 studies was .15, looking at effect of expert testimony on jury decisions. Some differences found for type of testimony, ranging from insanity es = .08 to eyewitness = .18 • Impact increases when testimony is more specific or conclusory about case at hand, but effects still moderate.

43. Jury Consultant Services “It’s gotten to the point where if the case is large enough, it’s almost malpractice not to use [a jury consultant].” – Donald Zoeller (New York attorney), 1989. • What do Jury consultant services do: • Focus Groups • Mock Trials • Community Attitude Surveys • Prospective Juror Questionnaires • Jury Selection • Witness Preparation

44. Scientific Jury Selection: U.S. • The thinking used to be that if a lawyer could present enough evidence to favor his client, he would be able to win his case. Now most people realize this is not always the case, as time and time again it is the ability to tap into the jury's emotional state that will persuade their decision. • SJS uses predetermined characteristics to identify jurors who would be sympathetic or unsympathetic to the case • Two approaches: • The broad based approach • Case specific approach 8-11

45. Broad Based Approach Traits/attitudes that are believed to impact the verdict are assessed in potential jurors. • Provides lawyers with knowledge about the type of person to try and screen out of the jury. • Questions assessing these traits can be asked during the voir dire. 8-12

46. Case Specific Approach Develop a specific questionnaire regarding the critical aspects of the case. • Questionnaires are administered to potential jurors in the community. • Responses are used to develop a profile of the ideal juror. • Lawyers ask the prospective jurors questions, to assess if they fit the profile. 8-13

47. Jury consultants primarily rely on two methods: telephone surveys and mock trials (trial simulations). During a survey of the community where the trial is taking place, jury consultants ask about: 1. Background characteristics of the jury pool such as race, sex, marital status, age, income, and job; and perhaps more specific questions that depend upon the case itself; 2. Beliefs and attitudes likely associated with a favorable or unfavorable verdict; and 3. (after reading a summary of the facts of the case) which verdict the survey respondent would favor.

48. Questions asked in Laci Peterson case • -Feelings about Death Penalty-Have they ever lost a child-Have they been a victim of a violent crime-What Magazines they subscribe to or read-What Bumper Stickers are on their car-What they think about extramarital affairs-Attitudes toward Law Enforcement-Have they ever considered a career in law enforcement-Attitudes towards Lawyers-Gun Ownership-Religious issues-How often do you use or view pages on computer-Do you have negative feelings towards prosecutors-Do you listen to Country Music or Rock and Roll-Have you served in the military-How avid a Fisherman or Boater are you-How often do you watch Geraldo, Greta or Larry King-What is your opinion of DNA

49. Nonverbal Cues What the jurors tell us that is beyond what they say. Here, we are looking at the nonverbal communications of jurors. That is, cues or clues to anxiety or nervousness on the part of jurors or cues to positive or negative affect. Now, when we say anxiety, of course, jurors are nervous simply because they are being questioned in a group or being questioned in court. What we're looking at is does that level of nervousness, or in psychology what is called anxiety, rise as a function of who asks the questions and what areas you're going into? If someone is not being straight-up with me, then they are going to be more anxious because they're trying to deceive somebody. It's an important deception. As a result, you're going to see changes in anxiety levels. Taken from a trial consultants webpage

50. Is Jury Selection Effective? • Trial consulting is estimated to be a $400 million industry, with over 400 firms and over 700 practitioners (Strier, 1999). • Quantitative studies of jury trials have estimated that jury selection accounts for between 5% and 15% of verdict variability; the extra-jury aspects of the trial therefore account for the vast majority of verdict variance (85%-95%) (Fulero & Penrod, 1990). • These numbers suggest that, even if SJS practices were found to be influential, there is little room for SJS practices to have an effect if they only “count” for 15% of the final trial “grade.”