Persuading a Jury – Effect of order of testimony Reaching a Verdict Persuading a Jury – Effect of order of testimony

Objectives To understand the basic background of how a case is presented To describe and evaluate evidence on the importance of order of testimony. To describe and evaluate the key study for persuading a jury by Pennington and Hastie (1988).

Background – The Courtroom

Background adversarial system inquisitorial system voire dire - In the UK they have this. two sides argue the case in front of a judge and jury). The jurors have the final decision, but the judge has to make sure that there is a fair fight and that one side does not get an advantage over the other In France they have this system. Where clients are still represented by solicitors, but a judge calls their own witnesses and counsel and reaches a judgement independently. In the USA they have this. Where a juror is interviewed about their fitness to be a juror and if they hold any preconceived ideas or attitudes that could bias the trial.

Listen to the following words and recall them in order

Background - How is a jury selected? From the age of 18, you are added to the electoral roll (computer selection program) and you become eligible for jury service which normally lasts about 2 weeks. If you are selected, you will be sent a letter, giving good notice, asking for your service. Those who are not eligible: prisoners, ex-prisoners and those with mental illnesses. Jurors are unpaid as it is known to be a duty as part of a British citizen, although expenses are paid. Jurors must take an oath that they will give their full attention to the court and that they will make their judgements fairly and truthfully. There is a lot of information to absorb over a short period of time, even in a simple case, and the juror’s task is not easy. The decision-making process is a lengthy one and they are aware that their decision will make a significant difference to that individual, the families involved and society.

Persuading a Jury – The effect of order of testimony Is it more effective to present evidence in story order or witness order? Psychologists have known for a long time that how we receive information affects how well we process and remember it. Murdoch (1962) – The primacy effect in memory Using word lists he demonstrated that in serial recall, the first words of a list to be remembered were always more likely to be recalled than those from the middle or the end. Why is this? Arousal level at start of task, its novelty, how much effort we put in, our learning styles and methods. How does this apply to the courtroom? The jury arrive to the court fresh and interested at the start of the case when the opening statement is presented by the prosecution. Does this mean that the prosecution has an advantage over the defence at this point?

Persuading a Jury – The effect of order of testimony Glanzer and Cunitz (1966) presented two groups of participants with the same list of words. - Group 1 – recall immediately - Group 2 – count backwards as a distraction, then recall Which group do you think will show better recall? What does this show and how can it be applied to the courtroom? The recency effect is due to short term memory as the most recent words in the list are recalled. The primacy effect is more due to long term memory as the words at the beginning of the list are not so recent so have been remembered. When applying this to the courtroom, although the defence closes last…….

Pennington and hastie (1988) Effects of memory structure on judgement To investigate the best ways for cases to be presented. Should counsel (i.e. Prosecution or defense lawyers) take advantage of the primacy and recency effects and present their best pieces of evidence/witnesses first and last? Or should they provide their evidence in a chronological (story) order?

Persuading a Jury – The effect of order of testimony How should the counsel structure their cases? Story (chronological) order Witness order (primacy and recency effect) Pennington and Hastie (1982) Do primacy and recency effects occur in trials? Study involved a simulated rape trial. The author rated each witness’s testimony according to how beneficial or damaging it was to the defendant. Pennington then manipulated the sequence in which both the prosecution and the defence witnesses were called. The primacy effect order went from the most beneficial witness first to the most damaging witness last. The recency effect order was the opposite of this. They found that good to bad (primacy) use of witnesses led to the least number of guilty verdicts. Therefore the primacy effect order reigned supreme. Pennington and Hastie (1986) – even if evidence is presented in witness order, the jury will make a chronological story out of it anyway before they reach a decision.

Persuading a Jury – The effect of order of testimony Key study Pennington and Hastie (1988) Effects of memory structure on judgement Make notes as we go along!!

Persuading a Jury – The effect of order of testimony Aim Are story order cases true causes of the final verdict decisions? What extent does the order of the case affect the confidence in these final verdict decisions?

Persuading a Jury – The effect of order of testimony Method Laboratory experiment Independent variable – story or witness order is manipulated Dependent variable – number of guilty verdicts 130 participants from Northwestern University and Chicago University were paid for participation for an hour-long experiment These participants were allocated to one of four conditions: 39 prosecution items in story order 39 prosecution items in witness order 39 defence items in story order 39 defence items in witness order. In all cases, the stimulus trial began with the indictment and followed the normal procedure, ending with the judge’s instructions.

Persuading a Jury – The effect of order of testimony Method continued.. Procedure 1. Participants listened to a tape recording of the stimulus trial (Commonwealth of Massachusetts v Caldwell) 2. Then taken to a booth (they were separated by partitions and did not interact with each other) where they responded to written questions. They were told to reach either a guilty or not guilty verdict on a murder charge 3. Then asked to rate their confidence in their own decision on a 5-point scale. 4. In the story order condition, evidence was arranged in its natural order. In the witness order condition, evidence items were arranged in the order closest to the original trial.

Persuading a Jury – The effect of order of testimony Results Table to show percentage of guilty verdicts

Persuading a Jury – The effect of order of testimony Results What can you draw from this data? If you look at each individual case in isolation, you will see that if a defence case was in story order and a prosecution case was in witness order, which one had more guilty verdicts? Compare this to if it was the other way around and the defence case was in witness order and the prosecution was in story order? How many guilty verdicts then? What does this show? If there were more guilty verdicts (in favour of prosecution) in the case where the prosecution was in story order, this means that the story order persuaded more jurors. Confidence scores were also measured, and the greatest confidence in their verdict was expressed by those who heard the defence or prosecution in story order (least confidence in witness order).

Persuading a Jury – The effect of order of testimony Discussion/ Evaluation Because the primacy and recency effects were controlled for, P&H are confident that they have shown the persuasive effect of presenting information in story order. But, when data was looked at more closely (see the mean scores) overall there were more guilty verdicts than not-guilty. What does this show? This shows that the defence cases were not as persuasive as the prosecution cases, even when presented as a story. However, with this specific case the defence case was generally less plausible so cannot be generalised to defence cases in general. Ecological validity? – adapted from a real life case - Consequences?

Persuading a Jury – The effect of order of testimony More evaluation Devine and Ostrom (1985) found greater discounting of an inconsistent witness occurred when evidence was organized in story order. Pennington and Hastie (1992) found stronger and more confident decisions when evidence was organised in story order.

Pennington and hastie (1988) Effects of memory structure on judgement Evaluation Does the study have ecological validity? How useful is it? How reductionist is it? How deterministic is it? Consider both sides of the argument and use evidence for your answers.