Published: 22 November 2015
How can jurors (or judges) better understand the law? What is "reasonable doubt"?
This is Gerry Gaffney with the User Experience podcast.
It's a bit hard to do justice in a brief introduction to my guest today. He trained as a lawyer and psychologist. He has an expertise in forensic psychology, forensic mental health, mental health law and the assessment and management of offenders.
He's published over a dozen books. He has received awards from the Canadian Psychological Association and the Australian Psychological Association. He's the director of the Centre for Forensic Behaviour Science at Swinburne University of Technology in Melbourne, Australia.
And this year he received the Order of Australia award.
Professor James Ogloff, welcome to the User Experience podcast.<
Prof James Ogloff:
Jim, I was fortunate enough to hear you speak at a dinner organised by the Victorian Juries Commissioner Paul Dore this year and I was particularly interested in your comments about “beyond reasonable doubt”. Do jurors understand what that means? And in fact what does it mean?
Generally many of the legal instructions that jurors are provided by judges, they really struggle to understand those instructions and “beyond reasonable doubt” is a very good example because, particularly in the Western adversarial legal system, it's probably the most important maxim which is that no-one should be convicted of an offence until they're found guilty beyond reasonable doubt. And what that really means is that there's no doubt that the individual has done it beyond really the smallest amount that a reasonable person could dismiss.
Do you think that that's something that the average person on the street will understand, I mean given that juries are made up of these ordinary people?
I think in general they struggle and I'll give you two examples.
One is that when we think about probability... For example, if you think about a trial where there's a particular element where people might have some doubts. So, for example, imagine that there's a piece of evidence that reduces the likelihood that an individual committed a crime, and say it reduces it to say 60 or 70% certainty.
So the evidence presented by the prosecution is convincing except maybe there's one piece of evidence that people have a significant degree of doubt. Say, again, rather than being 90% sure or 95% sure, they're only about 60% sure. So the way jurors tend to think, we've found, is that for, say, one individual characteristic or issue about which they have doubt, if there were now five characteristics and they, for each of them they were 60% certain, in a probability perspective that means that overall their certainty is still about 60%. It's not an additive feature. But what we've found is that many jurors do, if there's degrees of doubt about particular pieces of evidence, rather than seeing that it's the overall probability, they actually start to add them up.
So for example, if there are five pieces of evidence about which they're say 75% certain then they'll, rather than think about overall we're 75% certain, what they do is they really say okay well this piece of evidence, that's 25%, this piece of evidence, that's another 25%, this piece of evidence, it's another 25, this piece of evidence, another 25. And so sometimes they do say, well, that's then there's too much doubt, the person wouldn't be guilty. So one of the issues is really just people's misunderstanding about probability.<
But probability is one of those really weird areas. I've worked with people involved in accident and injury compensation areas and I find that they were as experts were very, very poor at agreeing on the probability of any given event. How can we expect ordinary people to do it?
That's exactly right. And I guess partly for that reason the legal system deliberately doesn't speak about certainty in terms of percent and probability but that example shows you that people have a tendency, if there's a small amount of doubt across many different areas, to really add those bits of doubt up rather than to realise that it's almost the case that in all evidence there'll be a degree of uncertainty.
So that's one problem we find. The other problem though, which is probably equally troublesome, is that in a lot of the research I've done we've actually asked people to define in their own words what they mean by beyond “reasonable doubt” or what they believe “beyond reasonable doubt” means. We've done it in two ways; one is just having people explain it to us and then two is we have asked them to tell us how certain they need to be to believe someone is guilty beyond reasonable doubt and we give them an opportunity to indicate the percent certainty.
So both with written definitions and with the percent certainty option, what we find is quite troublesome. With written definitions, we find that people really struggle. On one hand some believe that it has to be absolutely certain, which is of course a standard too high, and on the other hand, people say phrases even such as “well it has to be more likely than not that they've done it.” And of course that's a problem because guilt beyond a reasonable doubt certainly is a very high standard.
And then when we ask them using, you know, when they give us a percent certainty we get ranges all the way from 10%, believe it or not, all the way to most commonly 100%. So most people, by most I mean about 40%, choose 100% which again is certainty and we can't be certain about much in this world. But then on the other hand we get a lot of people endorsing really from 50% upward.
So just using one example of the concept like “beyond reasonable doubt,” people really do struggle with that and of course it's a concern because it really lies at the heart of the criminal system in the Western countries.
Now you've mentioned, and I don't know what the term was because I can't recall it, but you spoke about something like a question trail that's being used in New Zealand courts. Is that the right term and can you tell us a little bit about that?
Yes, that's right. It's not really an entirely new concept. Over many years, researchers, and for that matter, judges and lawyers have struggled to think about how can they better inform jurors about the law. And, as you probably know, in most countries in again the adversarial countries with the Western tradition, the English tradition which includes the Commonwealth countries, the United States and other countries, what happens at the end of a trial is in all countries except the United States the judge actually summarises the evidence, and then in all countries including the United States, the judge essentially reads the law to the jurors and tries to explain the law. So they read the letter of the law, they try to explain it to the jurors and then of course it's the jurors' job to go away and to apply the law as they understood it to the facts that they heard at trial.
Now over years that's met with very little success and beginning really in the 1970's researchers began to look at the extent to which jurors could understand and apply the law. And they found that really there were great difficulties. So beginning again, probably in the mid-1970's, efforts began really to try to improve comprehension. And where they began is probably the most obvious place which is to use what's called the “plain language” approach which is to try to define the legal concepts in a way that people can plainly understand, so rather than using terms of art or jargon from law, trying to explain it a simple way.
Now to make a very long story short, other techniques were also tried such as allowing jurors to take notes, providing them with the copies of the transcript, providing them with written copies of the evidence, sorry the information or directions the judge provides and lo and behold research showed that those sorts of approaches could only incrementally increase the comprehension.
So what began probably now up to 15 years ago is that lawyers, researchers and others began to think about this problem, and one of the things that's happened probably in the last decade really in New Zealand, which has been the leader in the world, is that judges have adopted a very different method of directing the jury. So, again rather than doing the standard summing up the evidence, reading the law, explaining the law and then providing them, you know, with the opportunity to go and deliberate as they see fit, judges have developed what are called “question trails.”
Now question trails actually embed the law into the question so that in answering the question the jurors are actually applying the law. So what it does is it takes away the need of the juror to actually understand the law and apply it rather by answering a series of questions which is both a question trail, then the jurors can actually ensure that they really do have the capacity to apply the law to the particular fact pattern in the case.
That sounds interesting and useful and exciting and also somewhat mechanistic. I mean you could almost think about it and say well if we're going to direct the jury that carefully maybe we should just remove them from the equation and use an AI to come to the decision.
Yeah, now that may be something people think but the reality is that really you're not directing the jury in any way. So you're not presupposing any decision. What you're doing is you're helping frame the questions in a way that's legally relevant. So if I can just give a couple of examples. In our work of course primarily over many years there are different techniques that people use to study the jury. One is actually what we call “simulated studies” where in varying degrees of reality people either read trial information or they watch a videotaped trial and then they answer questions and, in some studies, deliberate.
So, for example, in recent research we've done we've had more than a thousand people who come to the courthouse in Melbourne, in Victoria and they're people who've been summoned to be on a jury but for whatever reason they're not selected that day. And that's because obviously the Juries Commissioner brings many more people into the court because a number of people will be excluded from jury panels.
So what we're able to do with the permission of the court is obtain permission that if once people are not selected on a jury, the leftover jurors, what we do is we invite them to participate in a research study. And in these studies, and the studies we do, we have very realistic stimulus. So we recreate a trial, which is an actual trial. It's videotaped with actual judges and lawyers and what we do is we present the very same trial to every juror but across different groups of jurors we have different conditions or techniques the judges use to actually instruct them and then we video tape the deliberation.
And what we find is in cases where people are just given the traditional instructions by the judge and are then left on their own to, for want of a better word, decide what to do, we find that they rely largely on very unstructured discussions, relying many times on anecdotal information. So, for example, they'll say things like “yeah, well I knew somebody who was a lot like that guy and you know this person was quite a liar and therefore the guy seems to be lying.” So what they do is they really discuss pieces of evidence in this kind of haphazard way.
Now what we find is that, and also in previous research what I found is that they'll spend incredibly small amounts of time discussing the law. So in one study I did when I was still in Canada, believe it or not in deliberations that averaged up to two hours, they would spend 90 seconds on average discussing anything to do with the law.
So what the question trail does then is it really doesn't presuppose in any way, and that's a very important point, it doesn't presuppose in any way exactly what jurors should think or what their decision should be.
Rather what it does is it helps frame the questions that the law needs to know. So, for example, if it's say a trial about rape then what it'll do... In rape trials instructions can be very complex because very often in modern rape trials there's sometimes no question that there's been a sexual encounter. But the question is was it a consensual encounter. So jurors will struggle with the whole idea of how you determine whether there's been consent. So what happens is in those circumstances, rather than just leaving it to the jury to discuss in whatever way they think is, you know, makes sense to them, what is done is the judge frames a series of questions that really breaks down the laws, sorry the legal issues that surround something like consent. So, for example, in most countries the person doesn't have to formally say ‘no’ in order for the person who's raping them to know that they should stop. So you don't have to come out and say “No, do not do that.” You can imply it in many ways. So rather than the judge just giving them instructions and letting them go, the judge will ask a series of questions in the question trail which they have to answer. And it will be framed in a way, for example, when Mr Jones was, you know, commencing intercourse with Ms Smith did the fact that she was not, you know, participating, say, voluntarily enough to believe that he was guilty beyond a reasonable doubt? So they'll take the person through each of these elements but then at the end of course it's for the jury still to decide the verdict however they do.
For many years, and you mentioned it yourself earlier on, there's been this movement towards plain language in the justice and legal systems but from my experience in the last couple of years of sitting in on a lot of courts, there's still a fine selection of stilted, formal and arcane language. Are there jurisdictions that are making real headway in this regard?
I think, I mean, many have tried, again the United States was the leader probably as early the 70's the United States there was actually a psychologist who was also a psycholinguist, meaning understanding language and the psychology of language who was also a lawyer and law professor, and his name was Bruce Sales and he actually authored the first book “Making Jury Instructions Understandable.” And he also was involved in the movement in the United States about what's called “pattern instructions.” So in the United States more than any other country they do have across the States pattern instructions where committees of judges draft instructions and the judges and lawyers rely on those instructions.
Now the reality is that there are attempts to make them plain language but the law is very, very obviously not only technical, that's an obvious thing, but the words mean, they have very, very precise meanings. And so the difficulty is that it's difficult to make the law plain language. So you know if we return to that issue around “beyond reasonable doubt,” how do you actually make that plain language? Now some countries have tried and they use terms like “sure”, “Are you sure that this happened?” But then people debate well is “sure,” you know when I think somebody's... if somebody said, “Are you sure?” I would think that means basically am I absolutely certain? When in fact that's probably a standard that's too high.
So I think the answer in short, although people wouldn't want to hear it, is that although there's been attempts made to try to make instructions plain language, we have still failed quite miserably in that. And the difficulty I think is that they're constructed, understandably by lawyers and judges and even if they have the input of linguists it helps only to a limited extent because you simply can't move away from the fact that some of the concepts themselves, even if the language is plain, are actually quite sophisticated.
A New South Wales detective told me that judge-only trials were preferable to jury trials given the complexity of the law and the inability of jurors to understand it. What do you think of that?
Yeah, I think that's actually misguided. I can see where people might think that. But the reason it's problematic is really twofold. So we've been speaking you know focusing almost entirely on just one aspect of the juror's job which is the ability to comprehend the law enough to apply it to the facts.
And, as I've mentioned, jurors do struggle with that.
On the other hand though the more important task of the jury is to actually evaluate facts and apply it, you know, to the particular case. And in a trial by jury, the judge's role is very much limited to making legal decisions and, as I've mentioned, instructing the jury. Whereas the jurie's job is to listen to the evidence and then make sense of what actually happened. And over many, many years I've spoken to literally hundreds of judges and the vast majority with whom I've spoken have agreed that the jurors can do that job as well, if not better, than individual judges. And the reason is that... there are really two reasons. One is just the reality that there'll be twelve jurors so twelve jurors from different walks of life with different areas of experience, different life experiences and backgrounds rather than one individual judge who, however wise she or he might be, doesn't have the breadth of experience of the jury.
And the second reason of course is that the jury, not only do individuals have to think about it but they have to discuss it at length in order to come to some shared understanding. And what we've seen is that while juries do struggle with the law, if you modify facts even slightly in a case it will often change the verdicts quite substantially. So while I've got, you know, a high degree of concern that jurors struggle to comprehend the legal instructions, I'm quite confident that, on average, across cases, they work very seriously, they take their task seriously and that, as judges will tell you, more often than not they actually get it right. And if they don't agree in the end with what the judge ultimately thinks, research shows again that usually the judge still believes the verdict is reasonable under the circumstances and it would be matters about which the judges themselves wouldn't be certain. So there are very, very few cases where the judge, you know, if the judge was sitting alone would have made a decision that's in stark contrast to the jury where they believe the jury really got it wrong.
So I think that in our legal system, the role of the jury's critical, not only for the sort of cosmetic reason that in a democracy you want to make sure that no individual has the power to make decisions about, you know, an individual's liberty without the benefit of being judged by others. And then second, that the research shows, and I think experience shows, that jurors do generally get it right.
It's certainly very powerful to watch panels of potential jurors coming in, go through the selection process and then potentially sit on juries and they themselves tend to describe it as a very positive experience and a very useful one.
Well that's right. We've done some research here in Australia where, even while I was still in Canada we interviewed ex-jurors and looked at issues. But here we've done research looking at broad numbers of jurors and people who have served on juries and they take the task incredibly seriously. And the other thing we've found in some work is that people who serve on a jury and have had the experience of sitting and seeing how the legal system works, as compared to people who have never been on a jury, the ones who have been on a jury have a much greater regard for the legal system and understand it in a much greater way. So I think in a democracy it's very important to continue to have participation of jurors. Although I do think, as I mentioned, it needs to be done, like every other area of justice, we need to evaluate it and improve it as much as possible.
Now to change tack slightly, and I know we're coming to the end of our time Jim, Victorian Judge Gerard Mullaly spoke about the need for judges and staff within the court systems to have more empathy for citizens who are encountering the justice system in whatever capacity but it seems to me that a lot of judges, and you've kind of alluded to this, a lot of judges because of their background are quite distanced and have little sympathy for, and maybe little understanding of the people they're dealing with and I'm thinking of one particular judge whose name probably luckily escapes me who sort of you know was suggesting that people who use social media during trial as jury members should have extremely severe sentences imposed upon them and it's like the expectation that you can expect a modern citizen to forgo Twitter and Google entirely for weeks at a time seems to me unreasonable.
Yeah I do think judges have to be, you know, try to keep up really with the times and the courts have struggled you know forever really in order to keep up with changes in society. Significant ones even occurred when, you know, in the 1800's really, more and more people on juries were well educated and could actually read and so forth. It's still the case in a lot of countries, including Australia that say there's an expert witness, the jury still doesn't actually get a written copy of the expert's report. I think trying to simply say you mustn’t, for example, follow social media: one of the things we believe is that if you're actually able to, if you can explain to jurors why relying on social media might be problematic that's probably going to be much more likely to curtail their behaviour or at least to have them think critically about what they see on social media rather than trying to ban it altogether.
So what does the courtroom of the future look like?
Well I think we're, there's a lot of people who have a lot of thoughts on this. I think where technology's taking us is in a few directions. One is I think how evidence is presented to people. That's probably one of the most important things. So what we know is that people today, even up to 40 years old for example, have largely grown up with digital media and so more and more how evidence is presented is moving away from the oral tradition of explaining things and actually showing recreations and diagrams, one is sort of using technology.
With respect to the jury itself, I'm quite excited by the fact that many trials now are actually video recorded and it is possible, though it doesn't happen yet, it is possible certainly in the not too distant future for jurors to really quickly in the deliberation go back and re-hear bits of evidence and see what's happening. In most places jurors are now given transcripts but reading transcripts is very, very different than watching pieces of the case. So that's one of the things. And I think the other thing is of course, we talked earlier, using techniques such as question trails or what in some jurisdictions is called “integrated instructions” to really change in many ways the role of the jury from one where they're relying on anecdote and sort of, for want of a better term, fumbling ahead with decision making to really helping them focus their decisions on the facts and the law that really matters to come to a fair and just verdict.
I know this is a terribly complex area and we're obviously not going to you know do more than scratch the surface in a conversation like today's. For anyone working in user experience who is interested in working in this area, do you recommend a particular set of reading or what should they do to bring themselves up to speed if they're interested?
Yeah that's an interesting area. There are certainly articles and books that have been written about this. There's a Handbook of Psychology and Law that has a chapter which is authored by me and a colleague which summarises the information which is quite easy to find on the internet and certainly there are now a number of studies and papers that have been written about this area.
Professor James Ogloff, thanks so much for talking to me today on the User Experience podcast.
Thank you very much Gerry.