Question Trails & Commonsense Justice

1. Question Trails & Commonsense Justice Catriona McKay Supervisors: Associate Professor Mark Nolan & Professor Mike Smithson

2. Background • QTs on the agenda of legal system and Law Reform Bodies (E.g. NZLC, 2001; NSWLRC, 2007; VLRC, 2009; QLRC, 2009) • But, limited research • Lack of research on context • Theoretical foundations • Aim to examine specific contextual factors influencing QTs • QTs fit in broader decision-making context

3. Theoretical Models – Cognitive Load Approach • Extra-legal factors are less cognitively demanding default • Lead to poor decision-making outcomes • Extra legal references should mediate beneficial effects of QTs

4. Commonsense Justice • Extra-legal factors as part of conscious, deliberate decision-making process • QTs may reduce cognitive load but won’t necessarily reduce extra-legal references and/or improve decision quality ? ?

5. The Present Study • Effectiveness of QTs • Objective decision quality • Percieved difficulty & decision confidence • Role of extra-legal factors/commonsense justice • Contextual factors • Individual cognitive differences • Need for cognition • Need for closure • Verbal probabilities • Seriousness • Standards of proof; Structural biases

6. Hypotheses • QTs will improve the overall quality of decision-making • This will be mediated by the number of extra-legal references i.e. More extra-legal references will be associated with lower quality decision-making • By reducing cognitive load QTs will lead participants in QT conditions to perceive the task as less difficult and to be more confident in their decision

7. Design & Participants • Individual mock jurors • 3 conditions: • No QT – oral instructions only • 2 x oral instructions + QT conditions • 93 participants – convenience sampling • 32 male; 59 female; 1 other • 71 students; 21 community • Age 17 – 79 (M = 28)

8. Procedure • Cognitive Questionnaire – for individual cognitive variables • Read factual scenario – retained for remainder of study • Heard recorded oral instructions • Completed outcome questionnaire (with or without QT) • Decision task – verdict + justification • Subjective confidence and difficulty

9. Materials • Facts and QTs: Chambers (NZ) reproduced in VLRC Report, 2008 • 3 offences • Aggravated Robbery • Kidnapping • Indecent assault • Adapted for Australian law/context • Oral instructions written/recorded for the study – based on NSW Bench Book

11. Coding Procedure • Verdict justification – coded for: • Overall quality • No. of extra-legal references • Relevant e.g. “even though there was no child lock it’s hard to get out of the moving vehicle, let alone on a busy road in a speeding car” (Guilty kidnapping verdict, QT condition) • Irrelevant/Incorrect e.g. "it is assumed that the pleasure of almost having sex make [it] not an indecent assault.” (Not guilty, indecent assault verdict, instruction only) • No. of legal/factual references

12. Results • Subjective measures • Confidence • Difficulty • Decision Quality • Extra-legal references • Implications for theoretical models, future research and the use of question trails

13. Subjective Measures Hypothesis: Participants in QT conditions will be more confident in decisions and rate task as less difficult. Results • Difficulty: No significant effect • Confidence: Mixed results

14. Mean Confidence Ratings • Generally no significant difference • BUT for guilty kidnapping verdicts • QT  lower confidence (p = 0.048)

15. Why? • QTs draw attention to specific elements which might have otherwise been completely overlooked • May reduce confidence because participants are more engaged therefore more aware of the possible doubts in their reasoning

16. Decision Quality Quality ratings for aggravated robbery: Significant effect for QT for guilty verdicts (p = 0.022) Quality ratings for indecent assault (above) and kidnapping (below) No significant QT effects on quality

17. Extra-legal factors • Extra-legal factors did not mediate improvement for aggravated robbery • No main effects for extra-legal factors on overall quality • Except for guilty aggravated robbery verdicts: • More extra-legal references  higher quality reasoning (p = 0.026) • May reflect greater engagement with the law

18. Offence-level differences • Very little (if any) previous research • Possibly artefactual • Fatigue/boredom effects • Offence complexity (e.g. Semmler & Brewer, 2002) • Need for future research including difficulty for separate offences • Moral ambiguity (e.g. Horowitz, 1985) • Implications for use of QTs in certain types of trials

19. Key findings • Weak support for question trails improving decision-making • No evidence that they make it worse • Surprising results for confidence and difficulty • Challenges cognitive load approach • Extra-legal factors not necessarily bad • Contextual factors • Offence level differences • Individual differences • Incorporation of standard of proof

20. Conclusions • Question trails may be useful but they are not a “silver bullet” • Effectiveness likely to be influenced by various contextual factors • Offence characteristics • Individual differences • Impact at the group level • Probabilities and biases • Both future research and future implementation must consider QTs in context