Law and Justice

Posts Tagged ‘Decisions’

Courts make determinations in law and in equity. By ‘in law’ is meant following a specific law – constitutional law, state law, etc. By ‘in equity’ is meant determining what is ‘fair’ to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are ‘guiding truths’. Adhering to them helps judges make fairer decisions. They’re ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent ‘self-evident’ truth – as mentioned in our Declaration of Independence when it referred to ‘all men’ as being created equal.

* serve to guide judicial determinations in the same way that ‘axioms’ guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice – a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court’s wanton discretion in equity law determinations.

Examples of Maxims:

Let’s take a look at some examples to see the nature of maxims -as self-evidently fair. Here’s an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people’s rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he’s breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the ‘best interest of the child’ standard – used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can’t prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can’t prove that they don’t have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury – which is a felony (a serious crime) – if he can be found to be intentionally lying. No ‘swearing in’ means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity – so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man’s home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he’s an orphan – but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It’s natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place.

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Introduction

There have been numerous applications of psychology in the courtroom. This scenario has become quite common to the point that it is replacing religious witness evidence. However, it should be noted that most of the time, there are instances in which psychology may not be appropriate. This is because the objectives for these two areas of specialty i.e. psychology and the criminal justice system. The criminal justice system aims at giving punishment for those who have done wrong while the field of psychology mostly focuses on the reasons behind the offender’s actins. When the criminal justice system pays too much attention to psychology, it may result in the excusing of various issues and this will impair the administration of accountability. (Vidmar,1989, p1-8)

However, one must not undermine the role that psychology plays in the process of determining the true offender and in the protection of victims. In relation with this, there are also certain factors that have to be considered when dealing with particular such as experts. Details of psychology in the courtroom and in other aspects of the criminal and civil system will be examined in detail below.

Analysis of how law and psychology interact in the civil and criminal justice system

The psychological role of non-verbal communication in the justice system

There are certain psychological factors that come into play when analysing the criminal and civil justice system. The first one to be considered is communication. Communication is the transmission of information. It can be divided into three main components. These are

verbal communication
vocal communication
non-verbal communication

Verbal communication involves the use of written or oral formats to convey specific messages to other parties. Vocal communication involves all the audible aspects of communication such as tone, pitch of voice, rate of speech, intonation and inflexion. In this form of communication, focus is kept on how the message is conveyed rather than the subject matter itself. Lastly, there is non-verbal communication; here, there is consideration of visible elements such as personal appearance, facial behaviours, body orientation, posture, touch, gestures, eye contact and even eye movement. Auditory cues are the main consideration in this form of communication.

Psychologists normally assert that the most influential form of communication in the courtroom is the non-verbal form. Others have argued that in case jurors or judges are faced with situations where the statements presented to them are in contradiction with each other, then chances are that those jurors will rely on non-verbal forms of communication rather than the actual word spoken. It has been shown that many jurors have been convinced by some forms of communication that are not as direct as the spoken word. So influential are these gestures, postures etc, that some jurors may judge the case in favour of the defendant or the prosecutor depending on which side produced the most appealing or positive form of non-verbal communication. (Pennington and Hsati, 1986, 242-258)

As a matter of fact, there are numerous attorneys who use this psychological aspect to sway their jurors’ decisions. They may inform their clients; witnesses, suspected offenders and victims about some these tactics so as to win the hearts of the jurors. For example, when a victim wishes to depict feelings of insecurity and lack of confidence in themselves, then they are likely to avoid eye contact. Some may be slump their shoulders and talk in mild tones. However, this can also work against them because those same gestures can be interpreted to mean that that given individual does not believe in themselves. Sometimes when lawyers want to make their clients seem influential and powerful, then they may advice them to make use of expansive gestures. This is because such gestures normally make those given clients take up more space and thus seem more powerful. (Pennington and Hsati, 1986, 242-258)

It should be noted that non-verbal communication also applies top members on the other side of the bench. During the selection of jurors, there are certain indications that may depict a give juror’s personality. Attorneys have been made aware of some of these features. For example, jurors who do not make eye contact often are less likely to pay attention during court proceedings or chances are they may not focus on details. Psychologists have been quick to asset that not all of these signs are accurate and they must not be interpreted on their own. Psychologists assert that when attorneys wish to include non-verbal communication as an element during the process of jury selection, they should be look at it in the context of other broader psychological theories. This is something that should be done with the help of experts in this particular field. It should also be noted that when lawyers wish to make this form of communication work for them, they should conduct mock trials where they will read signs depicted by neutral parties and then apply it when coaching their witnesses, defendants or victims.

One can therefore conclude that non verbal communication is something that can be used by lawyers to manipulate the jury in order to bias them. Attorneys are usually bound by the law to defend their clients enthusiastically. They should therefore employ all methods available to them in order to defend their clients. This is why some trail lawyers may even hire behavioural scientists in order to coach their clients on appropriate non-verbal methods of communication. The reason why this method of coaching can work for them is because victims/defendants/offenders are more likely going to pay attention to a specialist than their own lawyer. They normally realise the seriousness of the case after they see that a psychologist has been hired specifically for the purpose of coaching them on their conduct in court. Consequently, they will listen to every word that the psychologists tell them and will implement in court. The same could not have been witnessed if it was just their lawyer who was advising them on their behaviour in court. (Ellsworth, 1989, p205-224)

The use of non-verbal communications or tactics to woo jurors is not something that poses lots of ethical implications for the trial lawyer. Ethical considerations mostly apply to forensic psychologists hired within the trial. This is because forensic psychologist have certain guidelines that control the way the conduct themselves when giving expert testimonies. However, this is something that is still; under debate today. Psychologists have not fully exploited the area of behaviour consultation. Some have argued that there is nothing wrong with the involvement of psychologist in the process of jury selection. The jury is normally biased towards the prosecution, it would thereafter be appropriate for trail lawyers to bring in additional elements to help them tip the stakes. However, there are some who believe that involving psychologists in the trial will affect how neutral the jury will be.

The psychological role of race in the criminal and civil justice system

In the UK, most jurors are normally involved in conducting criminal rather than civil cases. It should be noted that jurors are selected randomly. This is in line with statutory requirements for the process. This may sometimes result in a jury that has a larger percentage of whites or blacks. This may eventually affect their decisions; a fact that has been debated and challenged in courts within the UK ever since the 1980s.

However, some people have argued that race is not an issue that may bias jurors’ decisions in the courts. In R v Bansal et al [1985] Crim. L. R. 151, there was a defendant who claimed that the jury was going to be bias towards him because they were all of a different race. However it was ruled that this should not be a factor that should be considered during the process of selecting the jury since this would have an influence of the degree of randomness of the election process. In another case, R v Smith, the defendant had been accused of assaulting a white victim. At the same time, the jury selection process resulted in the formation of a jury that had only white members. The defendant felt that these members would have a bias towards him and he therefore petitioned the case. This petition showed how there are certain preconceived notions that may exist based on race. (Gordon, 1990, 971-983)

In the European Convention on Human Rights, Article 6, there is a strict requirement that all defendants have the right to fair trial. This Article was applied in the case of Saer v UK. Here, one of the jurors made racists statements about the defender during the trial. A complaint was lodged to dismiss the juror but the judge in question ruled in favour of the juror. When the European Court intervened, it found that the judge had violated Article 6 since he was denying the defendant a right to have a fair trill. The European Court requires that all jurors should be seen as objective in the process of administering cases; something that was distinctly missing in this particular case.

One can therefore conclude that the main psychological factor that comes into play during the judging process especially among jurors is a bias against ethnic minorities. Some jurors may have the preconceived notion that certain ethnic groups have higher probability of committing crimes than others and may prematurely conclude that they are guilty without considering all the evidence presented before them. This psychological factor arose as early as ion the thirteenth Century. At that time, there was a need to defend Jewish offenders against bias. This necessitated the idea of a split jury where half of the members of the jury had a Jewish background. This is especially relevant in the nineteenth Century where there were other ethnic minorities that were incorporated into the ethnic minority issue. It should also be noted that most of these biases are likely to arise when the cases to be tried deals with race related issues. Research conducted in the US by Gordon (1990, p 81) on this topic depicted that there are more chances for bias when black jury members dominated the bench rather than white juror. This is because they tended to have preconceived ideas about the actual defendant.

Gordon (1990, p 81) found that judges or jurors tended to have stereotype tendencies. He claimed that certain offenders would be affected by demographic characteristics and that judgement tended not to favour them depending on the kind of background they had. For example if a white person has been accused of fraud, then chances are that most jurors will have a bias against them and may decide that they are guilty of the crime. Similarly, most jurors will decide against the defendant if he was a black person and had been accused of committing armed robbery. Overly, however, it was found that black jurors tended to be less sympathetic towards criminals and gave them seemingly severe sentences even when the crime committed did not fit that particular crime.

Psychological factors relevant at each stage of the criminal justice system for victims, witnesses and suspected offenders

Pre-trial

There are certain psychological factors that come into play during consideration of the victim before they are taken into trial. One of the pre-trial factors that must be considered is the emotional damage that occurs to these victims during the process of waiting for trial. Sometimes the anxiety created prior to the trail might affect the way the present their case to court. It may be possible to find that certain victims, especially younger ones, tend to get scared and choose not to reveal all the necessary information to convict the offender of their crimes.

During the trail

During the actual trial, there are numerous psychological factors that come into play at that time. For example, if a certain case is being tried by a jury, judges are still relevant in order to control the court process. There are certain psychological factors that do come into play during such trials. Blanck, Rosenthal and Cordell (1985, p 82) assert that if a judge has a bias it may eventually change the final outcome of the trial. They go on to add that his influence is normally not seen directly but manifests itself in less obvious ways. They claim that judges expectations for certain trails usually make them predict how the outcome will become, consequently, this will affect how they go about administering the trail and what the jury will decide at the end of the trial.

It was found that sometimes certain judges develop a bias if the defendant happens to have a past criminal record. (Blank et al, p92, 1985) Such judges will conduct the trail in such a way that the defendant will have it difficult to plead his case. Similarly, defendants are also at a disadvantage during appeal cases. This is because reports read at that time normally do not contain information about certain gestures or signs that could have caused a bias in the court. All the appellate court will have going for them are written words that may not necessarily give the true picture of the entire process.

Ellsworth (1989) conducted a research on the effectiveness of jury systems in the civil and criminal justice system. He found that jurors are indeed effective because there is some group psychology that comes into play when there are many numbers that are required to make a decision about something. He asserted that such larger numbers tended to be more objective and tended to have higher chances of coming up with fairer decisions. On the other hand, there are certain cases in which psychological factors in group psychology negatively influence the jury as oput forward by Vidmar (1989). This is because he believes that sometimes some jurors may have greater experience when dealing with certain types of cases. However because of group psychology, it is often seen that these expert opinions are denounced from the case. It should be noted that this will make the jury less competent.

Vidmar (1989 continues to argue that there is little evidence to show that if one individual was to carry out judgement rather than many; i.e.  a judge rather than a jury, most of the time the same conclusions are made. A research examining 3000 cases found that about seventy eight percent of the decisions arrived t by the group was similar to that made by individuals.

Post trial

Vidmar (1989) claims that the remaining twenty two percent tended to favour defendants rather than prosecutors. In group psychology, there is a tendency to do good will. So most of the jurors felt that it would be better if they let someone who was guilty of an offence go free rather than placing an innocent man behind bars.

It is also of fundamental important to understand the psychology behind the decisions made by jurors after trials have been completed. Pennington and Hsati (1986) found that most of the time, jurors make their decisions based on establishment of a story that fits their particular situation. They usually try and make fixes within stories through this type of approach. Most of the time, there may be missng links, juries usually establish stories to fill in those gaps. The stories themselves re related to the fact that actions themselves have cause and effect. Ellsworth (1989, p223) found that as the juries continue deliberating the case, they eliminate facts that may seem irrelevant or they may decide to eliminate all the scenarios that seem illogical and unreasonable.

Reskin and Fisher (1986) found that most of the time, there is application of community norms and values during the decision making process. Most of the time, jurors do understand the importance of the law but may not fully understand it. But part of the reason why the Constitution allowed jury laws is such that the criminal justice system would try and balance between the law and community norms. Jurors normally mix the evidence presented before them community values.

Tanford and Penrod (1986) bring out fundamental issues regarding the voting process made by juries and psychological factors that come into play. First of all, it is extremely difficult to determine whether or not a certain jury will decide on verdict then create a story around it or the opposite. If they choose the opposite, then chances are there will be some forms of bias when making the final decisions. MacCoun (1989) showed that in about ninety five percent of all the cases judged by juries, the final outcome depended upon the initial vote made at the beginning of deliberations. This brings out the important issue of conformity pressure. Most jurors would prefer not to derail the process of deliberation by giving opposite opinions to the norm. Conformity pressure is quite influential even when there may be evidence that is supposed to sway juror’s decisions to the contrary side. This severely affects the level of fairness of such a system and comes in the way of administration of justice.

Another psychological factor that affects jurors and hence the lives of the potential offenders is the attractiveness of the defendant. Darby and Jeffers (2000, p67) found that there in cases where the defendant was perceived to be attractive, jurors tended to see them as individuals who can be trustworthy and who are happy with their lives, they were more likely to be a given a ‘not guilty’ verdict. However, this was affected by the attractiveness of the jurors. When jurors were not attractive and they were handling cases in which the defendants themselves are unattractive, then chances are that they would let them go because they perceive them as similar to them. That is, they both have common characteristics. On the other hand, if a juror was dealing with an attractive defendant and they themselves were unattractive, they would still pass moderate sentences towards them. On the other hand, it was found that offenders who had neutral looks were recipients of severe punishments. (Downs and Lyons, 1991)

Wiener, Staebler, Habert and Shkordriani (1991) found that there were certain preconceived ideas that affected the offenders’ fate within the court room. For example, when a juror had been working with a certain judge for a very long time then chances are that they would not consider their instructions during their deliberations as much as they would have if this was the first time they were dealing with that judge. It was also found by the same authors that jurors who have a lot of experience gave very severe sentences. Psychologists assert that this could be because they no longer hold the belief that one is always innocent until they have been proved guilty. Another factor that could sway their decisions against the offender and towards the victim could be because of the fact that prosecutors representing the state are appear more commonly than defence lawyers. This means that jurors would rule in favour of the prosecutor since they have learnt to trust them. Because of holding these beliefs, such jurors would be likely to pass judgements that are biased.

In order to tackle some of these biases, some countries have opted to blindfold their jury. This would make those particular jurors blind to some of the visual elements that would create the biases.

Current perspectives and insights on legal decagons making based on contested/incomplete data relevant to law and psychology and conclusions

Because the law does not allow conducting research during jury deliberations, it may be difficult to obtain hard data on the psychological factors that affect their decision making process. However, analysts have gone about this deficiency in other ways. For example, one can create a mock trial where certain factors to be determined are assessed. On the other hand, it may also be possible to come up with conclusions on the matter they want to decide. Artificial jury conditions are quite helpful in the process of understanding jury deliberation processes.

Gakuen (2004) conducted a research on the factors that determine the decision making process within groups. He achieved this through the use of experimentation. He created a group in which there were high status members and also low status members. It was found that contrary to popular belief high status members really influenced the mock jury’s decision to influence despite increasing the numbers of the low status members. This depicted clearly as the group’s membership was being decreased. The analysis involved the use of group numbers that ranged from five, four and three. The high status members were found to be quite influential even when there ere greater increases in the numbers of low status members. This experiment was conducted through the Social Decision Scheme analysis.

Role and limitations of expert testimony

Expert testimonies are usually given when the person under consideration is posses enough knowledge and skill in a certain field of specialty. It should however be noted that not everyone with these qualities can be allowed to give testimonies. Besides possessing thwse qualities, one should also posses the qualities given by the Federal rules of Civil Procedure Rule 702. Some of the qualities include possessing;

education
training
skill
experience
knowledge
etc

(Tanford & Penrod, 1986, p322-347)

All these must be found to be relevant to the actual case under consideration. They must have the ability to apply their expertise in the process of scientific research pertaining to the question under consideration. On top of this, the evidence presented by the expert must be founded on research. Even the way they collected the evidence should be scientifically based or it should be done with methods that are scientifically admissible. Normally these experts are used in the process of determination of some clinical cases. A good example of this is the assessment of parents’ response to children after adoption, some experts may be brought in to assess whether or not certain witnesses are capable of understanding the intricacies involved in the case and whether the evidence they provide can be relied on. It should be noted that experts are not just limited to psychologists. There are other types such as doctors.

Some of the limitations that have been presented for expert testimonies is the cat that they should limit their opinions to knowledge acquired professionally during their service. This is something that may not be adhered to by some experts. Some tend to give information that may not be related to their profession. Besides this experts re suppose to give evidence that has been collected through the use of tools that are appropriate to the specific scenario that they are dealing with. These are some of the ethical considerations affecting the way psychologists go about their business.

It should be noted that there are certain instances when experts; especially psychologists, may give evidence that is not based on scientific validation. There are numerous theories out there that can be used in the process of determining the diagnosis and treatment. There is also scientific information out there that can give explanations about these treatments. Some psychologists hardly apply the right scientific explanation for theories chosen. One example is through syndrome testimony. This form of testimony has exposed a lot of inefficiencies in the legal; system and especially in giving expert testimony. (Darby & Jeffers, 2000, p 67)

Another limitation that exists in the issue of testimonies is the accessibility of draft reports by the other party. The law provides that an opposing party cannot ask for draft reports made by experts in the process of preparing a case for their side. This is so as to protect the witness. Another limitation is that when there happens to be some form of communication between a lawyer and the expert, and then this communication should not be addressed unless it is in very special circumstances. Another limitation exists during the examination of a certain expert. The opposing party is allowed to examine all the relevant facts that the expert used during the process. Besides this, there could be an assessment of whether or not the expert considered all the alternatives available.

Recommendations

Psychology in the pre-trial phase can be witnessed before a certain witness meets the jury. If such a witness happens to be the victim, then chance are that they would develop anxieties about the court and might decide to skip certain crucial information when giving their testimony. It is therefore advisable to minimise waiting periods before witnesses can testify otherwise psychological factors can come into play and impede the administration of justice.

During the trial process, there may be chances of bias that come into play as a result of the non-verbal forms of communication. The best way to deal with this could be through blindfolding the jury for cases that seem particularly susceptible to racial or other forms of visual biases.

Another issue that may result in the trial process is expert testimony. There are certain limitations that may occur. The best way to ensure the best application of expert testimony is through ensuring that the best instrumentation is used and that collection and analysis of the evidence to be presented is scientific. Ethical considerations must be adhered to especially when dealing with issues concerning psychologists as expert opinion. However too much attention should be given to psychological causative factors as those may not be relevant to the particular case.

Conclusion

Psychology has gained wide application in the courtroom scenario so much so that it is replacing religious consultations. Some lawyers normally apply psychology when preparing their witnesses, victims, and even offenders. This is seen as a form of manipulation by some, but my opinion is that there is nothing wrong with it since lawyers must protect their clients.

There are numerous psychological factors that must be considered during the judging process. Sometimes judges may have racial biases, other times they may be influence by too much experience and over familiarity and other times they are affected by conformity pressure.  (Diamond et al, 1989, p 246-267)

The utilisation of expert opinion is also quite instrumental in the criminal and civil justice system. There are certain psychological opinions that may not be relevant to the case or those that were not obtained in a scientific way. IT is therefore necessary to ensure that this is first established before and expert takes the stand.

Reference:

Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985): The appearance of justice: judges’ verbal and nonverbal behavior in criminal jury trials; Stanford Law Review, 38, 89-151.

Darby, B. W., & Jeffers, D. J. (2000): The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, p 67

Diamond, S. S., Casper, J. D., & Ostergren, L. (1989): Blindfolding the jury; Law and Contemporary Problems, 52, 246-267

Downs, A. C., & Lyons, P. M. (1991): Natural observations of the links between attractiveness and initial legal judgments; PSPB, 17, 541-547

Ellsworth, P. C. (1989): Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224

Gordon, R. A. (1990): Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions; Journal of Applied Social Psychology, 20, 971-983

Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991): Effects of prior juror experience on jury sentencing; Behavioral Science and the Law, 9, 97-106

MacCoun, R. J. (1989): Experimental research on jury decision making. Science, 244, 1046-1049

Pennington, N., & Hastie, R. (1986): Evidence evaluation in complex decision making; Journal of Personality and Social Psychology, 51, 242-258.

Reskin, B. F., & Visher, C. A. (1986): The impacts of evidence and extralegal factors in jurors’ decisions; Law & Society Review, 20, 423-438

Tanford, S., & Penrod, S. (1986): Jury deliberations: discussion content and influence processes in jury decision making; Journal of Applied Social Psychology, 16, 322-347

Vidmar, N. J. (1989): Empirical research and the issue of jury competence; Law and Contemporary Problems, 52, 1-8

Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991): The social psychology of jury nullification: predicting when jurors disobey the law; Journal of Applied Social Psychology, 21, 1379-1401

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