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 Trial consultation Jury selection Jury selection Pretrial attitudes and biases Pretrial attitudes and biases Credibility asessment Credibility asessment Eyewitness testimony Eyewitness testimony

OUTLINE (cont’d) Pretrial publicity Pretrial publicity Jury deliberation Jury deliberation Psychological expertise Psychological expertise (2) Experiential learning Conclusion 3

4 Introduction During the past twenty years, I have been teaching undergraduate classes and graduate seminars in legal psychology, assuming as well the training and supervision of graduate students both in research projects and in the numerous applications of psychology to the legal field.

5 Introduction Two major influences on the core curriculum of my lectures and on the delivery method: Two major influences on the core curriculum of my lectures and on the delivery method: (1) the idea developped 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 experiential activities to promote learning

6 Applying Social Psychology Theories and research findings of social psychology allow us to increase our understanding of settings and problems of the real world Theories and research findings of social psychology allow us to increase our understanding of settings and problems of the real world According to Brehm & Kassin (1990 and the following editions), three major aplied areas to social psychology: LAW, BUSINESS and HEALTH According to Brehm & Kassin (1990 and the following editions), three major aplied areas to social psychology: LAW, BUSINESS and HEALTH

7 Applying social psychology The applications to law include areas, like (1) trial consultation, (2) jury selection, (3) pretrial attitudes and biases, (4)credibility assessment, (5)eyewitness testimony, (6)pretrial publicity, (7) the jury deliberation process and (8) psychological expertise The applications to law include areas, like (1) trial consultation, (2) jury selection, (3) pretrial attitudes and biases, (4)credibility assessment, (5)eyewitness testimony, (6)pretrial publicity, (7) the jury deliberation process and (8) psychological expertise Each of these areas is linked with specific theories and research findings in social psychology that students must review Each of these areas is linked with specific theories and research findings in social psychology that students must review

Applying social psychology The trial itself illustrates the profound importance of social psychology at work in the legal system The trial itself illustrates the profound importance of social psychology at work in the legal system What kinds of people do lawyers select as jurors and why ? What kinds of people do lawyers select as jurors and why ? Can eyewitness accurately recall the details of traumatic events ? Can eyewitness accurately recall the details of traumatic events ? How do juries manage to reach unanimous decisions, often afer days of deliberation ? How do juries manage to reach unanimous decisions, often afer days of deliberation ? 8

(1) Trial consultation This involves assisting the attorney (in criminal cases, the defence lawyer) in the different aspects of trial preparation, like, for example, evaluation of the evidence and its presentation strategy, preparation of the opening statements and closing arguments, witness preparation and order of appearance, etc… This involves assisting the attorney (in criminal cases, the defence lawyer) in the different aspects of trial preparation, like, for example, evaluation of the evidence and its presentation strategy, preparation of the opening statements and closing arguments, witness preparation and order of appearance, etc… 9

(1) Trial consultation (cont’d) These different areas link with the following social psychology sub-areas : These different areas link with the following social psychology sub-areas : Persuasion :social influences on attitude Persuasion :social influences on attitude How attitudes are measured How attitudes are measured The link between attitudes and behavior The link between attitudes and behavior Methods of changing attitudes Methods of changing attitudes Persuasion by means of communication Persuasion by means of communication Two routes to persuasion Two routes to persuasion The source, the message and the audience The source, the message and the audience 10

(1) Trial consultation (cont’d) Persuasion by our own actions Persuasion by our own actions Role playing Role playing Cognitive dissonance theory Cognitive dissonance theory Alternative routes to self-persuasion Alternative routes to self-persuasion Most important for the student to master these basic areas to better understand and apply them to trial consultation 11

(2) Jury selection Three stage process = Three stage process = (1) Pool of eligible citizens (1) Pool of eligible citizens (2) Pretrial examination of prospective jurors (2) Pretrial examination of prospective jurors (3) Peremptory and for cause challenges (3) Peremptory and for cause challenges What guides the decision to accept certain jurors, while rejecting others ? 12

(2) Jury selection (cont’d) From a social psychology standpoint, jury selection involves a good knowledge of: From a social psychology standpoint, jury selection involves a good knowledge of: Stereotype formation: social categorization, outgroup homogeneity bias, illusory correlations, subcategorization, contrast effect Stereotype formation: social categorization, outgroup homogeneity bias, illusory correlations, subcategorization, contrast effect Implicit personality theories Implicit personality theories Impression formation Impression formation 13

(2) Jury selection (cont’d) Prejudice: individual differences, authoritarian personnality Prejudice: individual differences, authoritarian personnality Trait differences : implicit personality theories and the power of first impressions Trait differences : implicit personality theories and the power of first impressions Confirmation bias Confirmation bias Research methods (observation, self- reports, surveys, etc…) Research methods (observation, self- reports, surveys, etc…) 14

(3) Pretrial attitudes and bias Systematic jury selection: Finding valid and objective indicators allowing the lawyer to identify individuals coming from the pool of potential jurors who will be favorable or neutral with respect to the theory of the client represented and to reject unfavorable or biased individuals Systematic jury selection: Finding valid and objective indicators allowing the lawyer to identify individuals coming from the pool of potential jurors who will be favorable or neutral with respect to the theory of the client represented and to reject unfavorable or biased individuals Verdict prediction depends on the specific issues and details of a particular case Verdict prediction depends on the specific issues and details of a particular case 15

(3) Pretrial attitudes and bias (cont’d) Scientific jury selection involves knowledge of: Scientific jury selection involves knowledge of: Demographics and attitudes relevant to trial Demographics and attitudes relevant to trial Confirmation bias and confirmatory hypothesis testing Confirmation bias and confirmatory hypothesis testing Kohlberg’s stages of moral development Kohlberg’s stages of moral development Research methods Research methods 16

(4) Credibility assessment Identification of the behaviors (nonverbal, paralinguistic and verbal) allowing an evaluator (judge, police officer, custom officer, etc…) to distinguish between those telling the truth and those lying (or deceiving) Identification of the behaviors (nonverbal, paralinguistic and verbal) allowing an evaluator (judge, police officer, custom officer, etc…) to distinguish between those telling the truth and those lying (or deceiving) 17

(4) Credibiity assessment (cont’d) For a better understanding of this concept and its applications, the student should master : For a better understanding of this concept and its applications, the student should master : The link between attitudes and behavior The link between attitudes and behavior Persuasion by means of communication Persuasion by means of communication Behavioral observation methods Behavioral observation methods Social psychophysiology: sympathetic and parasympathetic reactions Social psychophysiology: sympathetic and parasympathetic reactions Role of scripts and self-schemas Role of scripts and self-schemas 18

(5) Eyewitness testimony The testimony (or evidence) given by someone present during an event who actually saw what happened and who is willing to testify in court to help the judge or jury arrive at a decision. The testimony (or evidence) given by someone present during an event who actually saw what happened and who is willing to testify in court to help the judge or jury arrive at a decision. General research conclusions = (1) eyewitnesses are imperfect, (2) many well known factors systematically affect their performance, (3) judges and juries are usually unaware of these factors General research conclusions = (1) eyewitnesses are imperfect, (2) many well known factors systematically affect their performance, (3) judges and juries are usually unaware of these factors The main cause of wrongful convictions The main cause of wrongful convictions 19

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

(6) Pretrial publicity The more information the people have about a case from the media, the more likely they are to presume the defendant guilty The more information the people have about a case from the media, the more likely they are to presume the defendant guilty Does this information have an impact on jury verdict ? Does this information have an impact on jury verdict ? Pretrial publicity can severely compromise a defendant’s right to a fair trial Pretrial publicity can severely compromise a defendant’s right to a fair trial The closest social psychology concept that helps better understand what’s going on is the power of first impressions The closest social psychology concept that helps better understand what’s going on is the power of first impressions 21

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

(8) Psychological expertise Expert witnesses: individual who testify in court on technical matters related to their expertise Expert witnesses: individual who testify in court on technical matters related to their expertise Psychologists are being asked with increasing frequency to testify as expert witnesses (mostly in custody cases, but also in areas more familiar to the social psychologist, like cameras in court, eyewitness testimony, trademark litigation, etc… Psychologists are being asked with increasing frequency to testify as expert witnesses (mostly in custody cases, but also in areas more familiar to the social psychologist, like cameras in court, eyewitness testimony, trademark litigation, etc… What do we need to know about social psychology to become a better expert ? What do we need to know about social psychology to become a better expert ? 23

(8) Psychological expertise An overview of research methods An overview of research methods Ethics and values in social psychology Ethics and values in social psychology Again, social influence and persuasion Again, social influence and persuasion The expert witness is allowed to voice opinions (inference from observed facts), to report hearsay, to speculate based on a recognized (even if not exact) science The expert witness is allowed to voice opinions (inference from observed facts), to report hearsay, to speculate based on a recognized (even if not exact) science 24

Promotion of learning through experiental activities In each area that we have just looked at, I have, throughout the years, made special efforts to design learning activities related directly to the issues under scrutiny In each area that we have just looked at, I have, throughout the years, made special efforts to design learning activities related directly to the issues under scrutiny The idea was to supply undergraduates, in some cases, and graduate students in other occasions, with the chance to live an experience that would provide them with a better comprehension of the phenomenon The idea was to supply undergraduates, in some cases, and graduate students in other occasions, with the chance to live an experience that would provide them with a better comprehension of the phenomenon 25

Trial consultation in real cases Since 1985, I have been involved as a consultant in over 30 jury (criminal) trials in sometimes highly publicized cases Since 1985, I have been involved as a consultant in over 30 jury (criminal) trials in sometimes highly publicized cases Each time, I would profit from the occasion to involve my graduate students as assistants, either for the gathering of data and/or the discussions concerning the specific issues of a particular case. They would also be present during the trial and the debriefings with the lawyer Each time, I would profit from the occasion to involve my graduate students as assistants, either for the gathering of data and/or the discussions concerning the specific issues of a particular case. They would also be present during the trial and the debriefings with the lawyer 26

Trial consultation in real cases Various types of services can be offered to help lawyers with case preparation: Various types of services can be offered to help lawyers with case preparation: Organization of a mock trial (from paper presentations to highly sophisticated « trial » with actors in « real » courtrooms) Organization of a mock trial (from paper presentations to highly sophisticated « trial » with actors in « real » courtrooms) Videotaping (and thorough reviewing) of opening statements and closing arguments in light of social psychology principles: Ex.: primacy and recency effects, one or two-sided arguments, etc… Videotaping (and thorough reviewing) of opening statements and closing arguments in light of social psychology principles: Ex.: primacy and recency effects, one or two-sided arguments, etc… 27

Trial consultation in real cases Goal of these procedures: (1) to test the reactions of lay persons to the arguments that could be used and to identify potential problems of comprehension, (2) to gather demographic information that can eventually be used for jury selection Goal of these procedures: (1) to test the reactions of lay persons to the arguments that could be used and to identify potential problems of comprehension, (2) to gather demographic information that can eventually be used for jury selection 28

Jury selection Using systematic jury selection methodology, information is gathered through the application of survey techniques or by using questionnaires with mock jurors and/or results of credibility assessments. Using systematic jury selection methodology, information is gathered through the application of survey techniques or by using questionnaires with mock jurors and/or results of credibility assessments. Data collected allow us to define the favorable and unfavorable profiles of potential jurors Data collected allow us to define the favorable and unfavorable profiles of potential jurors 29

Jury selection In highly publicized cases, where prejudicial information has circulated, data can also be provided by using the public opinion poll methodology In highly publicized cases, where prejudicial information has circulated, data can also be provided by using the public opinion poll methodology Graduate students are involved in the design of the questionnaire, the actual polling and the data analysis. Thus they learn concretely how things are done Graduate students are involved in the design of the questionnaire, the actual polling and the data analysis. Thus they learn concretely how things are done 30

Jury selection General scheme of a pretrial survey: General scheme of a pretrial survey: First, spontaneous recall, then recognition. First, spontaneous recall, then recognition. Then specific questions concerning attitudes toward the arguments to be used by the defense and/or the prosecution Then specific questions concerning attitudes toward the arguments to be used by the defense and/or the prosecution Judgment call on the degree of perceived guilt of the accused Judgment call on the degree of perceived guilt of the accused 31

Jury selection Measure of general attitude toward certain issues, v.g. racial prejudice Measure of general attitude toward certain issues, v.g. racial prejudice Finally, gathering of socio-demographic data Finally, gathering of socio-demographic data Through appropriate statistical analysis (multiple regression), possible to establish the relation between different variables and draw very precise profiles Through appropriate statistical analysis (multiple regression), possible to establish the relation between different variables and draw very precise profiles Importance of proceeding in a systematic fashion for jury selection using data gathered Importance of proceeding in a systematic fashion for jury selection using data gathered 32

Credibility assessment Important to know how the accused is perceived to enable attorney to decide if he/she will testify, since there is no obligation to do so. Important to know how the accused is perceived to enable attorney to decide if he/she will testify, since there is no obligation to do so. Also important to know the credibility of the major witnesses for the prosecution Also important to know the credibility of the major witnesses for the prosecution In Canada, obligation for the prosecution to demonstrate sufficient evidence to support the charges laid against the accused during a preliminary hearing.This information can be used for credibility assessment. In Canada, obligation for the prosecution to demonstrate sufficient evidence to support the charges laid against the accused during a preliminary hearing.This information can be used for credibility assessment. 33

Credibility assessment Also, a videotaped mock interrogation (with a cross-examination by a mock prosecutor) of the accused can be evaluated for credibility by a sample of lay persons Also, a videotaped mock interrogation (with a cross-examination by a mock prosecutor) of the accused can be evaluated for credibility by a sample of lay persons Test using Adjective Check List devised to perform this evaluation both for the witness itself and his/her testimony ; administered to large samples and results compiled. Again, graduate students are directly involved in data collection Test using Adjective Check List devised to perform this evaluation both for the witness itself and his/her testimony ; administered to large samples and results compiled. Again, graduate students are directly involved in data collection Decisions made are therefore based on empirical data Decisions made are therefore based on empirical data 34

Credibility assessment Same material used for credibility assessment can be used to stage a mock trial with balanced presentation of the evidence and mock jury deliberations Same material used for credibility assessment can be used to stage a mock trial with balanced presentation of the evidence and mock jury deliberations Multiplied a certain number of times, these mock trials provide useful empirical data that can be used for jury selection Multiplied a certain number of times, these mock trials provide useful empirical data that can be used for jury selection Also, in-depth viewing and analysis of the videotapes of the mock jury deliberations can be very useful to assess proper understanding of legal concepts involved Also, in-depth viewing and analysis of the videotapes of the mock jury deliberations can be very useful to assess proper understanding of legal concepts involved 35

Credibility assessment For teaching purposes with students (in psychology or in law school), as well as for judges and custom officers, an experiential workshop was designed For teaching purposes with students (in psychology or in law school), as well as for judges and custom officers, an experiential workshop was designed First activity: gathering information on what indicators are spontaneously used by the participants to identify truth tellers or liars. Degree of confidence of indicators First activity: gathering information on what indicators are spontaneously used by the participants to identify truth tellers or liars. Degree of confidence of indicators 36

Credibility assessment Second activity: viewing the testimonies (on video) of an alleged victim and an alleged accused in a « university » case seemingly involving sexual harassment. Evaluation of the credibility of both and listing of indicators used to arrive at conclusion Second activity: viewing the testimonies (on video) of an alleged victim and an alleged accused in a « university » case seemingly involving sexual harassment. Evaluation of the credibility of both and listing of indicators used to arrive at conclusion Third activity : evaluating the pertinence of a list of 25 indicators to help identifying truth tellers or liars and noting their degree of confidence in these indicators. Third activity : evaluating the pertinence of a list of 25 indicators to help identifying truth tellers or liars and noting their degree of confidence in these indicators. 37

Credibility assessment Fourth activity: Being given a 45-min. lecture involving general notions of credibility and research results concerning the validity of a certain number of indicators (all in previous list) to distinguish between liars ans truth- tellers Fourth activity: Being given a 45-min. lecture involving general notions of credibility and research results concerning the validity of a certain number of indicators (all in previous list) to distinguish between liars ans truth- tellers Fifth activity: Results of third activity have been compiled and general results (means of the group) are presented and discussed. Indications are given as to the most valid indicators and those who are anecdotic Fifth activity: Results of third activity have been compiled and general results (means of the group) are presented and discussed. Indications are given as to the most valid indicators and those who are anecdotic 38

Eyewitness testimony Two experiments have been designed to enable undergraduate students to better grasp the reality (and difficulties) surrounding eyewitness testimony Two experiments have been designed to enable undergraduate students to better grasp the reality (and difficulties) surrounding eyewitness testimony (1) A confederate accomplice knocks and enters my classroom with a big problem: a specific car is blocking his own and needs to be immediately removed. It happens to be my car ; I lend him my keys with the promise that they will be returned immediately (1) A confederate accomplice knocks and enters my classroom with a big problem: a specific car is blocking his own and needs to be immediately removed. It happens to be my car ; I lend him my keys with the promise that they will be returned immediately 39

Eyewitness testimony Doesn’t come back after 10 minutes. I call for a pause to go see what has happened. Car is stolen. University security (other accomplices) is called in, and since it’s too long to interview everyone individually, they distribute a paper with various questions for proper identification of culprit ; in order to follow up only the sure indicators, students are asked to rate their degree of certainty concerning the various elements of their report. Doesn’t come back after 10 minutes. I call for a pause to go see what has happened. Car is stolen. University security (other accomplices) is called in, and since it’s too long to interview everyone individually, they distribute a paper with various questions for proper identification of culprit ; in order to follow up only the sure indicators, students are asked to rate their degree of certainty concerning the various elements of their report. 40

Eyewitness testimony Once all students have completed the task, I inform them that the car theft is a hoax ! The « culprit » comes back into the room… Once all students have completed the task, I inform them that the car theft is a hoax ! The « culprit » comes back into the room… Each one then compiles his own report, noting number of correct and incorrect items, as well as the degree of certainty for each items Each one then compiles his own report, noting number of correct and incorrect items, as well as the degree of certainty for each items The experiment ends with a long discussion of the difficulties surrounding eyewitness identification… The experiment ends with a long discussion of the difficulties surrounding eyewitness identification… 41

Eyewitness testimony (2) The second experiment is also presented as a true story. A Swedish colleague involved 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 inquiry surrounding the assasination of Prime Minister Olof Palme in (True)Reason: the convicted murderer has appealed to the Swedish Supreme Court advocating that the video lineup was invalid (2) The second experiment is also presented as a true story. A Swedish colleague involved 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 inquiry surrounding the assasination of Prime Minister Olof Palme in (True)Reason: the convicted murderer has appealed to the Swedish Supreme Court advocating that the video lineup was invalid 42

Eyewitness testimony Student are asked to view the video of the lineup with twelve suspects and to identify who they think would be the culprit Student are asked to view the video of the lineup with twelve suspects and to identify who they think would be the culprit If the lineup is valid, each suspect has one chance out of twelve to be chosen. If any one suspect or suspects are chosen significantly more often than chance, and if the murderer is correctly identified, then the video is not valid If the lineup is valid, each suspect has one chance out of twelve to be chosen. If any one suspect or suspects are chosen significantly more often than chance, and if the murderer is correctly identified, then the video is not valid Answers are compiled and there is discussion Answers are compiled and there is discussion 43

Pretrial publicity 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) 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 prejudicial publicity in the written articles or in media broadcasts is not sufficient to show convincingly that a true prejudice exists The large amount of prejudicial publicity in the written articles or in media broadcasts is not sufficient to show convincingly that a true prejudice exists There must be a causal relationship There must be a causal relationship 44

Pretrial publicity Again, this factor is evaluated by means of public opinion polling with first, the measurement of spontaneous recall, then that recognition Again, this factor is evaluated by means of public opinion polling with first, the measurement of spontaneous recall, then that recognition The impact of the most prejudicial informations that circulated is evaluated The impact of the most prejudicial informations that circulated is evaluated Graduate students participate in all stages of questionnaire preparation, administration and data analysis Graduate students participate in all stages of questionnaire preparation, administration and data analysis 45

Jury deliberation process 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 mock jurors are given instructions and asked to deliberate, as if for real, in a special room equiped with video recording 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 mock jurors are given instructions and asked to deliberate, as if for real, in a special room equiped with video recording 46

Jury deliberation process Viewing and analysis of these videos is very instructive for students (or for lawyers !) with regard to what is remembered from the evidence presented initially, what is used to reach a verdict, what is clear, what is unclear, what is understood, what is not understood, how legal concepts are interpreted or understood, etc… Viewing and analysis of these videos is very instructive for students (or for lawyers !) with regard to what is remembered from the evidence presented initially, what is used to reach a verdict, what is clear, what is unclear, what is understood, what is not understood, how legal concepts are interpreted or understood, etc… 47

Jury deliberation process Also, it gives information on how the group structures itself and what degree of polarization can be witnessed Also, it gives information on how the group structures itself and what degree of polarization can be witnessed Very instructive to look at the way siding develops and ultimately, how is consensus reached Very instructive to look at the way siding develops and ultimately, how is consensus reached Observing for specific behaviors or arguments (in terms of frequency and duration) is also very helpful to better understand the deliberation process Observing for specific behaviors or arguments (in terms of frequency and duration) is also very helpful to better understand the deliberation process 48

Psychological expertise Over the years, I have been involved as expert witness or consultant not only with criminal jury trials, but also in various cases dealing with 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) Over the years, I have been involved as expert witness or consultant not only with criminal jury trials, but also in various cases dealing with 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) 49

Psychological expertise In most of these occasions, and whenever possible, I have tried to involve my graduate students in the discussions surrounding those cases, but also in the main activities deriving or required by the expertise. In most of these occasions, and whenever possible, I have tried to involve my graduate students in the discussions surrounding those cases, but also in the main activities deriving or required by the expertise. In a way, it’s like supervising interns in the application of psychology to law In a way, it’s like supervising interns in the application of psychology to law 50

Conclusion We strongly believe that relating concretely social psychological concepts to the reality of the real world of law enables the students to better comprehend sometimes difficult to grasp theoretical concepts We strongly believe that relating concretely social psychological concepts to the reality of the real world of law enables the students to better comprehend sometimes difficult to grasp theoretical concepts For doing so, involving personnally and experientially the learner surely enhances significantly the learning process For doing so, involving personnally and experientially the learner surely enhances significantly the learning process 51