When innocent confess: Modern potential jurors’ attitude toward false confessions

When innocent confess: Modern potential jurors’ attitude toward false confessions

Modern potential jurors are more aware of the false confession phenomenon, with media promoting knowledge about interrogation and confession process. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 430–448

A survey of potential jurors’ perceptions of interrogations and confessions

Authors

Amelia Mindthoff, Florida International University
Jacqueline R. Evans, Florida International University
Gissel Perez, Florida International University
Skye A. Woestehoff, George Mason University
Alma P. Olaguez, University of California, Irvine
J. Zoe Klemfuss, University of California, Irvine
Christopher J. Normile, Central Michigan University
Kyle C. Scherr, Central Michigan University
Marianna E. Carlucci, Loyola University Maryland
Rolando N. Carol, Auburn University at Montgomery
Christian A. Meissner, Iowa State University
Stephen W. Michael, Whitman College
Melissa B. Russano, Roger Williams University
Eric L. Stocks, University of Texas at Tyler
Jonathan P. Vallano, University of Pittsburg at Greensburg
William Douglas Woody, University of Northern Colorado

Abstract

Confessions represent one of the most influential types of evidence, and research has shown that mock jurors often fail to dismiss unreliable confession evidence. However, recent studies suggest that jurors might believe in the false confession phenomenon more than they once did. One possible reason for this could be increased publicity regarding false confession cases. To assess this possibility, we administered an extensive online survey to a sample of potential jurors in the United States from 11 universities and Amazon Mechanical Turk. Perceptions of confession behaviors (as related to others and oneself), Miranda waivers, interrogation methods, dispositional risk factors, and confession admissibility and evidentiary weight were assessed, in addition to respondents’ self-reported crime-media activity and familiarity with disputed confession cases. Respondents’ perceptions were generally consistent with empirical research findings. Respondents believed suspects do not understand their Miranda rights; gauged interrogation tactics usage relatively accurately; viewed psychologically coercive tactics as coercive and more likely to result in false, rather than true, confessions; and recognized that confessions elicited via coercive measures should be inadmissible as evidence in court. However, respondents’ perceptions did not align with research on interrogation length, and respondents did not fully appreciate the risk youth poses in interrogations. Moreover, being familiar with disputed confession cases resulted in more negative views of interrogations and confessions. Overall, potential jurors are seemingly more cognizant of false confessions and the tactics that elicit them than in the past, and evidence suggests that media outlets can be used to promote interrogation and confession knowledge.

Keywords

Interrogation, confession, juror, Miranda rights

Summary of the Research

“Of 125 known false confession cases, 37 cases were presented at trial (note: the remaining cases did not make it to trial for various reasons such as dismissals or guilty pleas). Consequently, 81% of these 37 cases resulted in a wrongful conviction, meaning 30 innocent people were wrongfully sentenced to serve time in prison on the basis of a confession that was factually false. […] In these cases, all of the safeguards intended to either prevent false confessions in the first place or to minimize their influence failed. Past research indicates that false confessions result from various situational and dispositional risk factors, and despite demonstrations of false confessions in case studies, people have historically found it difficult to believe that innocent suspects would confess to crimes they did not commit. However, recent experimental studies indicate that potential jurors’ confession knowledge may have improved. Assessing these possibly shifting beliefs is the primary goal of the present study, in which we gathered current data regarding lay knowledge of a broad range of interrogations and confessions topics and assessed potential predictors of this knowledge (e.g., familiarity with actual disputed confession cases).” (p. 431)

“Even before questioning begins, innocent suspects encounter risk, as they are more likely than guilty suspects to waive their Miranda rights and undergo police questioning. This is presumably due to innocent suspects’ naïve belief that “the power of their own innocence [will] set them free.” Although this innocence-waiving association is generally accepted in the field, jurors’ perceptions of these Miranda-related decisions have not been extensively examined.” (p. 431)

“Once inside the interrogation room, innocent suspects are at risk of falsely confessing because of the accusatory and psychologically coercive nature of the tactics typically used in U.S. interrogations—a risk that jurors might not fully appreciate. Psychologically coercive tactics minimize suspects’ perception of their freedom of choice and can increase the likelihood of false confessions, and such tactics are more likely to be used when investigators believe a suspect is guilty. […] Fortunately, jurors appear in-tune with the coercive nature of such tactics; however, this is undermined by findings that demonstrate that jurors do not believe that these coercive tactics are likely to result in false confessions. Additionally, dispositional risk factors that enhance susceptibility to coercive techniques can further increase the likelihood that suspects falsely confess, with juveniles emerging as a particularly vulnerable population. Other dispositional risk factors include low IQ, cognitive or developmental disabilities, and mental illness. Generally, jurors appear to understand that such risk factors have the propensity to result in false confessions.” (p. 431)

“Once a confession is elicited, interrogators may mold the postadmission narrative into a script that fits their knowledge of the crime and the existing evidence. […] Furthermore, confessions can be legitimized via corroboration inflation, as other evidence (e.g., forensic and eyewitness evidence) can become biased by the presence of a confession, subsequently appearing to substantiate false confessions. Such inflation can influence jurors’ perceptions of confession evidence, as potential jurors have been shown to perceive high-pressure interrogations as less coercive when evidence corroborated the confession. Overall, research on jurors’ perceptions of interrogations and confessions has indicated that confessions are extremely powerful pieces of evidence that increase the likelihood of conviction. […] While potential jurors do acknowledge that false confessions can sometimes occur, they generally agree that a confession is a strong indicator of a person’s guilt and that people who confess are probably guilty. These beliefs may be driven by the fundamental attribution error, whereby people are more likely to attribute others’ behaviors to dispositional factors (e.g., the suspect’s internal feelings of guilt) at the expense of considering the influence of situational factors (e.g., psychologically coercive interrogation methods).” (pp. 431–432)

“Recent studies examining mock jurors’ perceptions of confession evidence have suggested that jurors might be more cognizant of false confessions than they once were. […] Although these findings are promising, they conflict with the majority of past research on mock juror evaluations of confession evidence and with other recent studies. […] Given these conflicts in the literature, potential jurors’ perceptions of interrogations and confessions should be reassessed to clarify their core understanding of interrogation and confession phenomenon, which can help to better interpret experimental findings.” (p. 432)

“Jurors’ knowledge may have improved as a function of exposure to high-profile disputed confession cases. […] [The] media-exposure hypothesis is also consistent with the availability heuristic, which posits that people tend to determine the probability of events based on how easily applicable instances come to mind. Jurors exposed to greater amounts of crime-related media should more readily accept that some interrogation methods are coercive and believe that false confessions exist because cases supporting this belief should more easily come to mind.” (p. 432)

“The present study aimed to examine potential jurors’ perceptions of interrogations and confessions more generally in order to offer researchers and practitioners better (and updated) insight on potential jurors’ core knowledge of these topics. […] Furthermore, the present study sought to enhance the generalizability of results by systematically recruiting a large sample from across the United States. […] In light of recent findings, we expected to see a shift in knowledge as compared with past surveys. Additionally, we hypothesized that those familiar with popularized disputed confession cases would express different views regarding interrogations and confessions (e.g., belief that false confessions occur, that false evidence ploys are coercive), as compared with those unfamiliar with disputed confession cases.” (p. 432)

“A total of 968 participants completed the study. The student subsample (n = 768) was collected from 11 university sites, with at least one site representing each of the U.S. Census Bureau defined regions. […] The community member subsample (n = 200) was collected via Mechanical Turk (MTurk), and participants earned $1 for participation. […] The final student subsample included 648 participants and the final community member subsample included 177 participants, for an overall sample size of 825 participants. […] Participants completed the survey online via Qualtrics. After consenting to participate, respondents were asked questions regarding six topics: general perceptions of confessions (as related to others and oneself), Miranda waivers, perceptions of interrogation methods (including frequency of police use, coerciveness, and relation to true and false confessions), perceptions of the relationship between dispositional risk factors and false confessions, admissibility of confessions and weight of evidence in verdict decisions, and personal characteristics (e.g., crime media engagement and familiarity with disputed confession cases) and demographics.” (pp. 432–433)

“It appears that potential jurors continue to view confessions as relatively strong indicators of guilt; however, potential jurors seem to be more accepting than they once were of claims that suspects might falsely confess. […] Despite these shifts, people still generally believe that they themselves are relatively unlikely to falsely confess. Specifically, respondents indicated that others were more likely to falsely confess in general, and for various specific reasons, than they themselves were. […] The current data do not speak to the basis for this difference, but it could be rooted in the fundamental attribution error and people’s belief that they are immune to the negative effects of coercive interrogations.” (p. 442)

“To the authors’ knowledge, this is the first study to comprehensively examine potential jurors’ perceptions of suspects’ interactions with Miranda waivers. […] In the current study, potential jurors typically believed that suspects do not understand their Miranda rights, were generally aware that police are likely to use manipulative tactics to get suspects to waive their rights, and believed that innocent suspects are generally more likely than guilty suspects to waive their rights. All three ideas have been supported by past research showing that people typically do not have a working understanding of their Miranda rights, police sometimes use manipulative tactics to get suspects to waive their rights, and innocents are more likely than guilty individuals to waive their rights. Yet, it remains unclear what, if any, influence such juror knowledge would have during a trial.” (pp. 442–443)

“Potential jurors believed that confrontation with true evidence is highly likely to be used by police officers during interrogations. […] Additionally, potential jurors accurately gauged the extent to which threat/use of harm and false evidence ploys are used, offering these the lowest and second lowest use ratings, respectively. […] Contemporary potential jurors appear to have a better sense of what methods police actually do use.” (p. 443)

“One concerning finding is how long potential jurors think an interrogation should last. Respondents indicated that interrogations generally last more than eight hours, and that this amount of time is needed in order to elicit a confession. […] it is possible that some jurors might not question a confession’s reliability if it resulted from a prolonged interrogation. This can be detrimental when jurors make decisions about a confession’s reliability, especially considering that over 80% of interrogations in a proven false confession sample exceeded six hours.” (p. 443)

“Participants offered the highest coerciveness ratings for confrontation with false evidence, threat/use of harm, and, critically, evidence bluffs and promises of leniency. […] Our sample of potential jurors perceived the coercive nature of evidence bluffs as not different to that of false evidence confrontation. This perception is consistent with experimental evidence demonstrating that bluffs result in false confessions at a rate that does not differ from explicit false evidence ploys and that mock jurors do not differentiate between these tactics. Additionally, respondents reported the two least coercive methods to be true evidence confrontation and rapport building.” (p. 443)

“Overall, false evidence confrontation, evidence bluffs, rejecting denials, and threat/use of physical harm were perceived as more likely to lead to false confessions than to true confessions, thus hinting at potential jurors’ ability to recognize the detrimental impact of these tactics on confession diagnosticity. […] It is reassuring that potential jurors are able to recognize that such methods create an elevated risk for false confessions. However, these findings do not align with existing research that suggests that jurors might not be able to apply this knowledge when determining a confession’s reliability. […] The “jury’s still out” on whether potential jurors can effectively apply this improved knowledge.” (pp. 443–444)

“Of further interest, the present results revealed that true evidence confrontation and rapport building were deemed to likely elicit true, rather than false, confessions. […] It seems that contemporary jurors harbor beliefs similar to those held by researchers, who recommend that psychologically coercive interrogation tactics be replaced with strategic and information-gathering methods that elicit more comprehensive suspect reports and diagnostic confession evidence. In conclusion, it is possible that potential jurors have the ability to recognize when interrogation methods result in a more reliable or a less reliable confession, and as such, they might be able to make better decisions in light of confession evidence.” (p. 444)

“Respondents generally recognized the risk for false confession created by all nine of the dispositional factors noted. […] Having a mental illness received the highest mean score. […] Being under the influence of alcohol, under the influence of illegal drugs, and under the influence of prescription drugs, all factors that have not been examined in past jury-confession research, were also rated as strong contributors to false confessions. […] Additionally, having a low IQ, a poor memory of the time of the crime, and being sleep deprived were perceived as contributors to false confessions, which is consistent with past research on contributing factors. Adolescence was viewed as one of the lowest contributors to false confessions. This is disconcerting, given that the developmental phase of adolescence renders teens more prone to falsely confessing and that teens are overrepresented in known false confession samples. […] Overall, it seems that a considerable proportion of potential jurors do not recognize the full extent to which age is a risk factor for false confession.” (p. 444)

“Potential jurors in our sample perceived that they would place more weight on DNA and forensic evidence than they would on confession evidence when reaching a verdict. Eyewitness identification evidence similarly outweighed confession evidence, but only in relation to oral and retracted confessions, not written confessions (which itself outweighed oral and retracted confessions). Additionally, when asked whether confessions elicited using different interrogation methods should be admissible in court, potential jurors tended to report that confessions elicited using confrontation with true evidence and rapport building should be admissible. Conversely, they tended to believe that disputed confessions elicited by more overtly coercive methods (i.e., rejection of denials, evidence bluffs, implicit promises of leniency, threats, lies about the evidence, physical harm, lack of Miranda rights reading, and denial of food or an attorney) should not be admissible. As such, respondents seem to partially understand the law, given that confessions elicited using rapport building and confrontation with true evidence are indeed admissible, and confessions elicited from some coercive tactics are likely inadmissible (e.g., physical harm; but others are generally admissible, like those elicited using false evidence ploys). […] These findings are comforting, considering that coerced (and hence, unreliable) confessions can ultimately be presented as evidence at trial, and judges might not be fully aware that false confessions have led to wrongful convictions or of the detrimental effects of coercive interrogation methods on confession reliability. […] Given the present findings, there is hope that potential jurors can recognize the “circumstances” that can result in coerced, and possibly false, confessions, and thus place less weight on those confessions.” (p. 444)

“General crime-related media behavior did not emerge as a strong correlate for interrogation and confession perceptions. However, as hypothesized, we found that potential jurors familiar with a specific disputed/false confession case (e.g., Central Park Five) perceived several tactics as more coercive and more likely to result in false confessions relative to participants not familiar with such a case. Most importantly, compared with nonfamiliar respondents, familiar respondents were more pessimistic about interrogations and confession evidence on a host of measures (e.g., less likely to perceive confessions as indicators of guilt, more likely to believe that innocent people in general might falsely confess). Nonetheless, it is important to remember that these findings are correlational as it is possible that either familiarity informs beliefs or beliefs influence media engagement behaviors (e.g., disputed confession media viewing). Overall, these findings can be explained by the availability heuristic, as potential jurors who know about false confession cases might think that such instances occur more often than do potential jurors who do not, leaving them more open to the possibility that a given confession is false. Thus, knowledge of disputed/false confession cases should be considered as a covariate in the development of future mock juror confession studies, especially since such knowledge appears to be prevalent.” (p. 445)

“Although there were some differences between the subsamples […], the more striking finding was the extent of the agreement between students and community members. […] Findings derived from student samples are largely generalizable to potential juror populations, making participant recruitment easier for future studies, and suggesting that we can be more confident when basing policy decisions on research employing student samples.” (p. 445)

Translating Research into Practice

“Overall, our results suggest that contemporary jurors are aware that Miranda waivers may be uninformed or the result of manipulation. To the extent that triers-of-fact are able to appreciate these factors and weigh them accordingly, policy reform should mandate the video recording of Miranda administrations that could be presented and evaluated in court. However, it is also possible that jurors, despite being aware of reasons innocents would waive their rights (e.g., respondents reported that innocents may waive their rights to appear not guilty to police and triers-of-fact), would draw negative inferences when a suspect remained silent or otherwise invoked his rights. […] Hence, a policy reform to better protect innocent suspects may be to reestablish the initial precedent of the Miranda ruling and not allow any negative inferences to be used against suspects who remain silent and invoke their rights.” (pp. 445–446)

“Regarding false confessions, relative to potential jurors of the past, contemporary potential jurors generally appear to be more accepting of the possibility that false confessions can occur. Furthermore, they seem to possess insight as to the coercive nature of certain interrogation methods and the propensity of these methods to result in less diagnostic confessions. These updated findings should be considered in the development of future research hypotheses, as it seems that researchers should no longer assume that jurors automatically presume guilt in the presence of a confession.” (p. 446)

“In addition, our potential jurors’ belief that coercive tactics can result in false confessions and should not be admissible in court paves the way for possible policy change. […] It is possible that jurors will be less likely to rely on confession evidence that was elicited using such tactics. This phenomenon can be detrimental to police and prosecutors, as it can result in an increase in acquittals. Thus, prosecutorial legal players should consider ceasing the use of especially detrimental tactics (i.e., nondiagnostic interrogation techniques) and instead proactively implement evidence-based interrogation trainings for police officers.” (p. 446)

“Furthermore, our findings have implications for policies regarding juvenile interrogations. As previously mentioned, juveniles are typically treated similarly to adult suspects in interrogative contexts, despite being at greater risk for falsely confessing. This is particularly problematic because, as indicated by the present findings that potential jurors do not fully comprehend the detrimental impact youth can have on confession behaviors, jurors may not be effective safeguards against negative impacts of juvenile false confessions. […] Policies at the interrogation-level should be assessed and modified to help protect juvenile suspects.” (p. 446)

“Last, even though potential jurors are generally more knowledgeable than they once were, their knowledge is still far from perfect. […] Our finding that media regarding false confession cases may influence potential jurors’ perceptions of interrogations and confessions indicates that expert researchers could use media outlets as a way to promote better understanding of how the coercive nature of certain interrogation methods can result in false confessions. It is further important that researchers take on this task in order to ensure that the information presented in such outlets is accurate and empirically supported. By engaging in public awareness, researchers might eventually influence policy regarding coercive interrogation methods and confession admissibility from the bottom-up. Ultimately, this promotion of knowledge may reduce wrongful convictions stemming from false confessions.” (p. 446)

Other Interesting Tidbits for Researchers and Clinicians

“Although we sought to collect data from jury-eligible participants, it is possible that some of our respondents were not jury-eligible. Specifically, our eligibility exclusions were not comprehensive […]. Thus, caution must be exercised when generalizing the present results to all potential jurors, and future research could benefit from collecting data from potential jurors at courthouses who are serving jury duty. Furthermore, generalizability concerns are commonly expressed when data is collected via MTurk. […] Additionally, we only assessed perceptions of general interrogation technique categories rather than individual tactics (e.g., we assessed true evidence confrontation, which can refer to a number of specific tactics such as early evidence disclosure or presenting crime scene photos). […] It would be interesting for future research to assess potential jurors’ perceptions of individual interrogation tactics. Future research could also assess jurors’ perceptions of the cumulative effect of multiple tactics employed at once; for example, jurors’ perceptions of an interrogation during which rapport building is used in conjunction with false evidence presentation.” (p. 445)

“Last, it is important to note that our results do not necessarily attest to jurors’ sensitivity or skepticism regarding confession evidence. […] It is possible that media surrounding disputed confession cases, while increasing prospective jurors’ knowledge of false confessions, simply could be making jurors skeptical of confession evidence. Future research should address this question.” (p. 445)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

Caution!: Underdiagnosis of Substance Use Disorders in Forensic Populations Overlooks Criminogenic Treatment Need

Caution!: Underdiagnosis of Substance Use Disorders in Forensic Populations Overlooks Criminogenic Treatment Need

Research suggests that co-occurring substance use disorder (SUD) is prevalent among adults with psychiatric illness. To help determine how widespread co-occurring disorders (CD) are internationally, we compared current clinical diagnoses recorded in the clinical record with clinical evidence gathered during forensic assessments in an inpatient forensic facility in Ontario, Canada. The majority of the sub-sample (61%) met criteria for CD, but only 19% were diagnosed as such. Underdiagnosing SUD has a potential impact on understanding substance use as a criminogenic treatment need in forensic mental health. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 2018, No. 17, 145-153

Co-Occurring Mental Illness and Substance Use Disorders in Canadian Forensic Inpatients: Underdiagnosis and Implications for Treatment Planning

Authors

N. Zoe Hilton, Department of Psychiatry, University of Toronto, Toronto, Canada; Waypoint Research Institute, Waypoint Centre for Mental Health Care, Penetanguishene, Ontario, Canada
Shari A. McKee, Department of Psychiatry, University of Toronto, Toronto, Canada; Waypoint Research Institute, Waypoint Centre for Mental Health Care, Penetanguishene, Ontario, Canada
Elke Ham, Waypoint Research Institute, Waypoint Centre for Mental Health Care, Penetanguishene, Ontario, Canada
Michelle Green, Correctional Services of Canada, Beaver Creek Institution, Gravehurst, Ontario, Canada
Lauren Wright, Waypoint Research Institute, Waypoint Centre for Mental Health Care, Penetanguishene, Ontario, Canada

Abstract

Research suggests that co-occurring substance use disorder (SUD) is prevalent among adults with psychiatric illness. Studies with forensic patients in Australia indicate that co-occurring disorders (CD) are underdiagnosed. To help determine how widespread CD underdiagnosis is in forensic populations internationally, we compared current diagnoses recorded in the clinical record with clinical evidence gathered during forensic assessment meeting DSM-IV criteria for SUD, in a Canadian sample of 638 male forensic inpatients. Among 491 with a major mental illness diagnosis, most (61%) met criteria for CD but only 19% were diagnosed as such. CD was associated with longer hospitalization, and with greater evidence of criminal history, antisociality, and risk of violent recidivism, regardless of how CD was defined. Identifying CD based on documented evidence, though, allowed for slightly greater detection of group differences. Underdiagnosing SUD has a potential impact on understanding substance use as a criminogenic treatment need in forensic mental health.

Keywords

Substance use, forensic inpatients, diagnosis, criminogenic needs

Summary of the Research

“The term co-occurring disorders (CD) is used to describe the presence of both a substance use disorder (SUD) and a psychiatric illness…Having both a mental disorder and SUD is associated with the poorest mental health status and greatest prevalence of unmet mental health needs in the Canadian population. Among psychiatric patients in Canada, the United States, and Australian, substance use increases hospitalization risk, readmission, and is associated with longer length of stay…The goal of the present study was to estimate presence of CD in a sample of forensic inpatients, and to identify the rate at which SUD is formally diagnosed” (p.145).

“In Canada’s forensic services, particularly those providing court-ordered psychiatric assessments, the presence of a major mental illness has important legal implications and may affect whether a person is fit to stand trial or is eligible for a plea of ‘not criminally responsible on account of mental disorder.’ Accurate assessment of other disorders, however, is also important in forensic practice because both recovery from mental illness and the reduction of criminal offending are important goals of intervention…In the present study, we aimed to replicate findings reported by Ogloff et al. (2004, 2015) in a Canadian sample of male forensic inpatients, based on an analysis of clinical documentation rather than conducting a clinical assessment of diagnoses ourselves for the purpose of the study” (p.146).

“We studied the presence of SUD and CD among forensic inpatients according to the current diagnosis recorded in the medical record following formal court-ordered assessment by forensic psychiatrists working with a multidisciplinary clinical team (‘current diagnosis’). Then, as a comparison, we used a standard coding form to quantify the clinical evidence gathered and documented on the medical record during this assessment in order to determine whether the DSM-IV criteria for SUD were met (‘documented evidence’). Previous research reporting that SUD is underdiagnosed among forensic patients…led us to expect that the proportion of patients with a current diagnosis of CD would be significantly lower than the proportion meeting the documented evidence criteria (Hypothesis 1)” (p.146).

“A second goal of this study was to examine the implications for forensic treatment planning, by testing the association of CD with hospital length of stay and with criminal history and recidivism risk…we expected that CD would be positively associated with length of stay in the forensic hospital (Hypothesis 2). Based on previous research indicating that forensic patients with CD had more serious and frequent offending histories than those with mental illness alone, we expected that CD would be positively associated with violent and nonviolent criminal histories, past antisociality, and a history-based measure of criminal recidivism risk (Hypothesis 3). We explored differences in Hypotheses 2 and 3 as a function of whether CD was identified by current diagnosis or documented evidence, to help elucidate the effect of under-diagnosis, if any, on understanding the profile of forensic patients with CD. The present sample was drawn from a longitudinal study of 638 men admitted to a secure forensic assessment program in the Province of Ontario, Canada, from January 2009 to December 2012” (p.146).

“A total of 491 patients had a current diagnosis of a major mental illness (i.e., psychotic or mood disorders) and the reported results were based on this sub-sample. Current diagnosis resulted in only 95 (19%) patients being identified as having both a major mental illness and a co-occurring SUD. Documented evidence resulted in an additional 205 patients being identified, for a total of 300 (61%) with CD by either definition. That is, two-thirds of patients with CD based on the DSM-IV criteria for SUD had not been diagnosed with SUD. The proportion of patients identified with CD was significantly lower using current diagnosis alone…than using documented evidence…consistent with Hypothesis 1” (p. 149).

“The mean length of stay was 152 days (SD = 261). Using either the current diagnosis or documented evidence, patients with CD stayed longer in the forensic hospital. The mean length of stay for patients without a current diagnosis of SUD was 130 days…compared with a current diagnosis of CD, M = 293…Controlling for year of admission, CD was associated with a longer length of stay…consistent with Hypothesis 2. Using documented evidence, the mean length of stay for patients without CD was 122 days…compared with patients with CD, M = 184…Controlling for year of admission, documented evidence of SUD was associated with a longer length of stay…Thus, the hypothesis that CD would be associated with longer stay was supported, whether using current diagnosis or documented evidence of CD” (p.149).

“Most patients in the total sample had prior criminal charges for nonviolent offenses (382, 60%) and half (322, 50%) had prior violent charges…First…we observed no significant differences in CLCH [Cormier-Lang Criminal History] scores between groups defined using the current diagnosis. Using documented evidence, there were differences in CLCH violent history between the CD group…and group without CD…but not for nonviolent criminal history…Second, we observed a significant overall effect of CD on criminality measures when using the current diagnosis…The CD group had higher APD [Antisocial Personality Disorder] total scores…than the no-CD group” (p.149).

Translating Research into Practice

“…Interventions targeting problematic substance use have been shown to reduce risk of reoffending in a CD population, and are associated with a general reduction in criminal behavior. Furthermore, planning for the provision of such treatment services would be aided by accurate estimates of SUD in a patient population. Once SUD is suspected, comprehensive screening and assessment of substance use is recommended, including the type of substances used, as each may have different criminogenic and treatment implications. The present study also supports calls for further development and evaluation of substance use treatment programs for forensic patients, particularly the need for integrated treatment for CD” (p.150).

“Formal diagnosis is often a needed first step to assessing appropriate clinical care, and the present study indicates that forensic assessment professionals are well positioned to make a formal diagnosis of CD, given that the necessary clinical evidence is often already gathered and documented during the assessment process. Therefore, we encourage forensic clinicians to assess substance use, and record diagnoses of SUD, regardless of the instant question before the court (e.g., criminal responsibility, competence to stand trial)…The presence of a SUD diagnosis would highlight the need for treatment and remind all practitioners involved with a patient to target this key criminogenic factor” (p.151).

Other Interesting Tidbits for Researchers and Clinicians

“…Discovering that missed diagnoses of SUD occur even when clinical information indicating the presence of diagnostic criteria is documented on the medical record suggests a systematic problem. That is, underdiagnosis is not entirely attributable to failure to collect adequate information. Instead, it could be related to the way forensic assessment is conducted, whereby practitioners focus on specific disorders in order to answer particular legal questions…The present study raises the possibility that this problem begins with sub-optimal assessment and diagnosis…It is hoped that these diagnoses will inform care planning, result in integrated treatment of mental illness and addiction problems, and lead to improved mental health outcomes and reduced recidivism” (p.152).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

Two Early Intervention Targets for Juvenile Recidivism: Prior Victimization and Substance Use

Two Early Intervention Targets for Juvenile Recidivism: Prior Victimization and Substance Use

Prior victimization significantly predicted whether a youth had future contact with the juvenile or adult criminal justice system, even while considering other factors, such as risk level and youth characteristics. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 6, 558-569

The Impact of Victimization and Mental Health Symptoms on Recidivism for Early System-Involved Juvenile Offenders

Authors

Lindsey E. Wylie, University of Nebraska Omaha
Katrina A. Rufino, University of Houston–Downtown and The Menninger Clinic, Baylor College of Medicine

Abstract

Although research has linked mental health symptoms and prior victimization to recidivism for youth on probation or in detention, little attention has been given to these risk factors for early system-involved youth. We conducted a survival/hazard model to estimate the impact of official records of abuse/neglect, crime victimization, and mental health issues (mood, anxiety, disruptive, and substance use disorders) on recidivism in a sample of 2,792 youth in a large Midwestern diversion program. Results indicated that youth with official records of abuse/neglect, person crime victimization, and property crime victimization were more likely to recidivate sooner than those without these victimization experiences (hazard ratio: 1.37, 1.42, and 1.52, respectively). Findings from the present study also demonstrated that substance use disorder was the only mental health cluster that predicted quicker time to recidivism. As one of the earliest points of entry into the juvenile justice system, diversion programs are in a unique position to address trauma from multiple types of victimization and adapt diversion programming to be responsive to each juvenile’s mental health needs.

Keywords

juvenile recidivism, juvenile diversion, mental health, victimization

Summary of the Research

“In 2016, there were approximately 856,130 juvenile arrests in the United States—many for nonviolent offenses such as larceny–theft, other assaults, drug abuse violations, liquor law violations, vandalism, disorderly conduct, and curfew/loitering. As such, the juvenile justice system is often tasked with how to address youth who commit less serious offenses. One approach is to divert them away from formal juvenile justice system involvement through diversion programs. As the gateway to the juvenile justice system, diversion programs are in a unique position to address the needs of early system-involved youth, including needs related to victimization and mental health symptoms, to reduce future involvement in the juvenile or adult criminal justice system” (p. 558).

“Developmental models of antisocial behavior propose that ‘delinquency is marked by a reliable developmental sequence of experiences,’ in which childhood experiences and social environment put children at risk for social maladjustment and criminal behavior. Specifically, studies find that experiences with victimization, broadly defined as maltreatment, adverse childhood experiences, and general crime victimization, are related to mental health issues and that both victimization and mental health issues are related to juvenile justice involvement. Although the association of victimization and mental health symptoms within juvenile justice populations are well-documented, especially within samples of serious juvenile offenders (e.g., adjudicated or incarcerated), fewer studies have examined these risk factors in a sample of early system-involved youth” (p. 558).

“The present study utilized a sample of early system-involved youth referred to a juvenile diversion program in a large Midwestern city. The purpose of this study was to examine reoffending for youth with reported experiences of victimization, as well as mental health symptoms at the time of diversion intake. Although research has examined the recidivism trajectory of youth at the deeper end of the juvenile justice system, fewer studies have linked victimization and mental health problems to recidivism in a sample of early system-involved youth. Juveniles in the diversion program are typically first-time offenders referred because of minor offenses (e.g., shoplifting, possession of marijuana, status offenses) and assessed as low to moderate risk. The present research contributes
to the larger body of literature by examining whether the association between victimization, mental health problems, and recidivism is similar for early system-involved youth to better inform diversion efforts. Furthermore, the present study extends prior research by including a broader measure of victimization that includes abuse/neglect, sexual assault, property crime, and person crimes that have been reported to law enforcement” (p. 560).

“In both the bivariate comparisons and multivariate model examining time to recidivism, abuse/neglect and person crime victimization were related to both discharge from diversion and recidivism (property offense victimization was only related to recidivism). It is unclear from this data whether victimization in these types of incidents directly relates to difficulties in completing diversion or future reoffending, or whether these rates are an artifact of exposure to system involvement because of victimization. Moreover, the relationship between being the victim of a person or property crime and recidivism, could be the product of delinquent peers or engaging in delinquent lifestyles” (p. 565).

“Our results demonstrate that two thirds of these early system-involved juveniles experience one or more mental health symptoms, with one in five reporting substance use or mood symptoms, one in three reporting anxiety symptoms, and almost half reporting disruptive disorder symptoms. In comparing these proportions to research using the same mental health assessment tool involving juveniles referred to probation and incarcerated juveniles, it appears that early system-involved juveniles may experience similar mental health symptoms as deeper end justice-involved juveniles. In examining the symptom clusters specifically, a higher proportion of our sample endorsed anxiety, mood, and disruptive symptoms, but fewer endorsed substance use symptoms when compared to McReynolds et al. (2010) and Wasserman et al. (2002). Even though this sample differed from these previous studies in specific proportions, across all studies, disruptive disorders are most common among justice-involved youth and mood disorders are least common. As such, there may be few differences between early justice-involved juveniles and later justice involved juveniles in terms of how mental health symptoms are presented” (p. 566).

“Furthermore, the results of the present study show the impact of victimization and mental health on early justice-involved youth. In support of the first hypothesis, juveniles with a history of victimization recidivated sooner than juveniles without a history of victimization. Although previous literature on mental health and recidivism in juvenile justice is mixed, the bivariate analyses and multivariate analyses demonstrated that participants endorsing substance use were more likely to recidivate, which is supported by previous research. The bivariate comparisons also found that those who endorsed the mood disorder symptoms were less likely to recidivate, which differs from studies that have not found a significant relationship between mood disorders and recidivism. One
possibility is the mood cluster acts as a protective factor against recidivism, as juveniles who are feeling depressed are less likely to engage in social activities with peers, where they would be more likely to encounter peer pressure or engage in risky shift behaviors. Furthermore, juveniles who are feeling depressed may be experiencing anhedonia and a lack of energy” (p. 566-567).

“As partially hypothesized, however, once the mental health clusters were included in the multivariate model with demographic variables, the modified risk level score, and victimization, only the substance use mental health cluster predicted time to recidivism, while the mood mental health clusters did not. Although substance use remained a significant predictor of time to recidivism even while controlling for criminogenic risk factors, youth in this sample with mental health issues did exhibit higher criminogenic risk and needs profiles as measured with the YLS/CMI compared with those without mental health issues as previous research has indicated” (p. 567)

Translating Research into Practice

“The results of the current study demonstrate the importance of addressing mental health concerns in juvenile diversion programs, which are one of the first points that youth may touch in the juvenile justice system. While research guided by the Risk-Needs- Responsivity model has generally found that only treating mental health issues is mostly ineffective, research has demonstrated that addressing mental health issues and criminogenic needs can be effective because it adheres to the responsivity principle. The data from this study demonstrate there is a relationship between mental health needs and discharge reason—namely, that youth endorsing substance use and disruptive disorders were less likely to successfully complete the diversion program. Perhaps by specifically attending to these mental health needs, diversion programs can adapt programming for youth with these issues, which may contribute to more positive outcomes such as successful completion of the program and reduced recidivism” (p. 567).

“Juvenile diversion programs embrace the mission of the juvenile justice system, namely that youth can be rehabilitated by linking them to services and that juveniles who commit less serious offenses should not be formally processed through ‘the system.’ This study provides preliminary evidence for some of the risk factors of juveniles most likely to recidivate after being connected to those services and diverted from the system. The three victimization type variables were the strongest predictors of recidivism, even while controlling for risk level and other juvenile characteristics. As such, programs should specifically focus on trauma informed programming that addresses the form of victimization a youth has experienced. Moreover, there is a need for early intervention tailored to the needs of abused, neglected, and victimized youths before they interact with the justice system or when they first enter the juvenile justice system. Early interventions should provide victimized youth with resources to increase resilience and teach positive and proactive coping strategies to minimize the effects that victimization may have on mental health functioning, and subsequent justice involvement” (p. 567-568).

Other Interesting Tidbits for Researchers and Clinicians

“Overall, the most frequent reported type of victimization was person crimes, followed by abuse/neglect and property offenses, with fewer reported incidents of sexual assault. We attempted to compare the rates of victimization in this sample to other studies, however because victimization has been operationalized in multiple ways, comparisons were not meaningful. Future research should compare whether early system-involved youth experience similar rates of victimization using official records and varying types of victimization to adjudicated and/or detained youth” (p. 565).

“Although previous research has consistently found various types of victimization do predict recidivism, better understanding how the types of victimization differ by sample characteristics and how different types of victimization impact recidivism warrants further investigation. The victimization variable was limited by using official law enforcement reports, which was likely an underestimation of victimization incidents in general. Official reports of victimization may also result in an underestimation of certain types of victimization that go unreported to law enforcement (e.g., child abuse/neglect, mutual assault). Future research may consider utilizing a range of victimization measures, including self-report data and official law enforcement records. Finally, although we know that victimization and mental health symptoms are related to recidivism, at least in bivariate comparisons, our data does not explain why these risk factors contribute to recidivism. Researchers may consider specifically testing theoretical frameworks aimed at measuring for the underlying relationships between victimization, mental illness, and reoffense” (p. 567).

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Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

Dialectical Behavioral Therapy within the Risk Need Responsivity Framework Reduces Recidivism

Dialectical Behavioral Therapy within the Risk Need Responsivity Framework Reduces Recidivism

Dialectical Behavioral Therapy (DBT) exemplifies all the components of Cognitive-Behavioral programs that have been found to reduce recidivism rates. The results of the following literature review offer preliminary evidence that DBT has the potential to reduce recidivism in criminal justice systems if it is applied within a Risk-Need-Responsivity framework. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 17, No. 1, 72-95

A Theoretical and Empirical Review of Dialectical Behavior Therapy Within Forensic Psychiatric and Correctional Settings Worldwide

Authors

Monica F. Tomlinson, Department of Psychology, The University of Western Ontario, London, Ontario Canada

Abstract

Cognitive-behavioral programs which are structured, skills-based, and risk-focused have been found to reduce recidivism rates by up to 55%. Dialectical behavior therapy (DBT) exemplifies all of these components, and has been rapidly adapted and implemented in correctional and forensic psychiatric facilities worldwide to reduce recidivism. Regrettably, the widespread implementation of adapted DBT has outpaced the research on its effectiveness for this purpose. Thus, it is currently unclear whether these programs are meeting the rehabilitation needs of these systems. In the following article, a qualitative systematic literature review of all DBT programs within forensic psychiatric and correctional populations using the PRISMA statement guidelines is presented, along with a detailed exploration of how these programs align with best practices in offender rehabilitation, and whether they are effective in reducing recidivism risk. Results offer very preliminary evidence that DBT has the potential to reduce recidivism risk in criminal justice systems if applied within a Risk-Need-Responsivity framework.

Keywords

Criminal justice policy, dialectical behavioral therapy, DBT, offender rehabilitation, systematic literature review

Summary of the Research

“Prototypical programs designed to reduce recidivism in adolescent and adult forensic populations include Reasoning and Rehabilitation, Moral Reconation Therapy, and Aggression Replacement Training. These interventions focus on restructuring cognitions related to antisocial behavior…and introducing morally-based, pro-social ways of thinking and behaving…Meta-analytic findings from methodologically rigorous outcome studies on these (and other similar) interventions indicate that CBT programs are significantly more effective in reducing recidivism when they have additional program elements to standard CBT…and when they include higher numbers of sessions…While there is strong evidence for the continued success of these programs…researchers have also been cognizant of rapid developments in third-wave approaches, such as Acceptance and Commitment Therapy and Dialectical Behavior Therapy (DBT)…DBT already includes several of the additional components of effective CBT programs…and it has shown its effectiveness among difficult-to-treat populations…Personality disorders and substance use disorders are specifically important to treat in forensic settings…as they are significantly associated with recidivism” (p.72-73).

“Although this connection has not been made explicit in the literature, DBT also theoretically aligns with the most prominent and evidence-based risk reduction model in the recidivism literature, the Risk-Need-Responsivity (RNR) model. The RNR model posits that offenders should receive interventions that target the most acute risk factors for crime, that are matched in intensity to the person’s level of risk, and that are responsive to their individual needs…given the significant adaptations made to these programs, a quantitative review of current findings continues to be premature. As a result, a systematic qualitative review of DBT programs within forensic and correctional facilities is needed to determine whether the DBT programs currently in existence are being implemented within best practices for forensic rehabilitation, according to the RNR model, and whether there is any evidence that these programs are successful in reducing criminogenic needs, and subsequently, recidivism” (p.73-74).

“Alterations made to DBT programs within forensic settings included changes to the length of the program, the components of DBT used…and the materials presented during the skills training sessions…Arguably the most significant changes discussed in extant implementations of DBT within forensic settings pertained to the changes in skills training materials…For practical reasons, many implementations changed the wording of the skills manuals to have simpler language…less jargon…more gender neutral language…and more activities that apply to a custodial environment…Many implementations integrated crime review or crime cycle analysis components where participants would specifically discuss the factors that contributed to their past crimes…These additions to the DBT protocol were aimed at understanding what risk factors related to criminal behavior and how to ensure that crime is prevented in the future” (p.82).

“…The emotion regulation and distress tolerance modules also have theoretical support for targeting the criminogenic need, substance use. These modules specifically teach individuals to develop healthy patterns of reducing heightened emotionality and self-soothing, which may lower their propensity to use substances as a way of managing heightened emotions through self-medication…Reducing these needs may increase the chances that individuals will engage in prosocial activities, maintain employment, and seek further education, thus reducing the criminogenic needs lack of academic achievement and antisocial leisure activities…There is some evidence to suggest institutions are being sensitive to the gender-specific criminogenic needs of women in forensic populations, but not necessarily to those of men. The ‘responsivity’ principle of the RNR model asserts that rehabilitative programs should be tailored to the individuals’ learning styles, motivation, strengths, and abilities…The present literature on DBT programs within forensic settings suggests that programs are being adapted to better target criminogenic needs and are generally being delivered within an RNR framework” (p.88-89).

“There is also some evidence that program fidelity was related to reduction in criminogenic needs. Across studies, the programs that adhered more faithfully to the program elements of DBT (e.g., skills training, individual counseling, consultation groups, and between-session coaching) were more effective in reducing criminogenic needs, such as poor impulse control, hostility, anger, emotional dysregulation compared to programs that did not implement all program elements of DBT. Furthermore, the programs that were applied faithfully within an RNR framework…were associated with reductions in institutional defiance and aggression more than programs did not adhere to the RNR framework” (p.90).

“…Overall, the findings from this review provide some indication that adapted implementations of DBT are able to reduce both risk and recidivism, and that programs which most successfully accomplish this goal adhered closely to standard DBT protocol (in terms of their program components) and fit within an RNR network” (p.90).

Translating Research into Practice

“…Thus, information on individuals’ risk level should be used to determine who participates in DBT, and to adapt programs to correspond with the varying needs of individuals with different risk levels…The present review of DBT programs within forensic settings demonstrates that forensic institutions and evaluating their programs. Organizations…have written extensively on their standardized adaptations and preliminary evaluations. Many of these organizations have developed their own DBT manuals to better meet the needs of their populations. These manuals have integrated best practices for offender rehabilitation and incorporated the wealth of research on risk and rehabilitation…These evaluations could also evaluate the theoretical ‘active ingredients’ or ‘mechanisms of change’ in forensic populations” (p.87-90).

“Future research in this area is needed to improve the quality of studies, the size of research samples, and the fidelity with which programs are implemented. Such research can help lead criminal justice policy into an ear of prison reform that has the unprecedented luxury of standing upon empirically supported approaches to offender rehabilitation” (p.91).

Other Interesting Tidbits for Researchers and Clinicians

“While all existing studies on DBT in forensic settings focused on emotional dysregulation, it is important to note that Dr. Thomas Lynch and colleagues have recently proposed a new form of DBT called Radically Open DBT (RO-DBT) for emotional overregulation. These researchers have adapted the biosocial theory to suggest that gene-environment interactions causing heightened threat sensitivity and diminished reward sensitivity lead some individuals to view mistakes and intolerable and unwavering self-control as necessary…RO-DBT focuses on increasing emotional expression, increasing disinhibition, increasing interpersonal experiences (including healthy interpersonal conflict), and decreasing behaviors associated with perfectionism” (p.91)

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Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and is a second year Masters student at Fairleigh Dickinson University. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

Predeliberation Juror Discussion Leads to Bias in Jury Deliberation

Predeliberation Juror Discussion Leads to Bias in Jury Deliberation

Discussion of trial evidence by jurors, prior to jury deliberation, can introduce a systematic bias in jury verdicts. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 5, 413-426

Should Jurors Be Allowed to Discuss Trial Evidence Before Deliberation?: New Research Evidence

Authors

Norbert L. Kerr, Michigan State University and Claremont Graduate University
Jiin Jung, Claremont Graduate University

Abstract

Traditionally, jurors are not permitted to discuss trial evidence with one another prior to jury deliberation. Allowing such discussions, at least in civil trials, is a jury innovation that has become increasingly popular. Prior field research has generally supported the assumption that this innovation is benign and, in particular, introduces no systematic bias in jury verdicts. These issues are examined again here within an experimental jury simulation study. The opportunity for predeliberation juror discussion (PJD) between the plaintiff and defense cases-in-chief was manipulated. The results revealed that PJD biased jury verdicts. The nature of this bias was not, as commonly suspected, a commitment to evidence heard prior to PJD, but rather a greater weight placed on evidence heard following the PJD. One good explanation of this bias was that jurors acted as if evidence heard prior to PJD had “already been covered” during the PJD, and so primary attention was given to post-PJD evidence in jury deliberations. Little evidence was found to corroborate several other purported benefits or drawbacks of PJD.

Keywords

jury, predeliberation discussion, jury innovation, bias, recency effect

Summary of the Research

“Traditionally, the first real opportunity that jurors have to discuss a trial’s evidence with one another occurs during jury deliberations at the end of the trial. Indeed, jurors are routinely instructed at the outset of the trial that they must not discuss the trial evidence with anyone— fellow jurors, friends, or even a spouse—before such deliberations begin. The primary reason for this prohibition is a concern that such discussions could lead jurors to make up their minds about the key issues in the case prematurely—that is, before they have heard all the evidence or been instructed on the law governing their verdicts” (p. 413).

“However, in the last few years a number of states (e.g., Arizona, Colorado, the District of Columbia, Indiana, Maryland, Michigan) have relaxed this prohibition, permitting jurors to discuss the evidence prior to deliberation under certain conditions. For example, in Arizona civil trials jurors are now permitted to discuss the evidence during trial recesses, but only among themselves in the jury room and only when all jurors are present. Furthermore, jurors are cautioned that they must not form final opinions about any fact or about the outcome of the case until they have heard and considered all of the trial evidence. A number of other states (e.g., California, North Dakota) have actively considered making similar changes to their procedures. Others (e.g., Anderson, 2002) have called for permitting such discussion to occur in criminal or military juries as well. And there are indications that even in states where predeliberation discussion is prohibited, judges are allowing it if counsel consent” (p. 413-414).

“The general structure of trials require that one side present its case before the other—defendants cannot answer charges until the plaintiff/prosecution first present their case. If jurors have heard one side (e.g., the plaintiff’s) first, and then discussed the case before hearing the other side (e.g., the defendant’s), prejudgment and early commitment would appear to advantage the plaintiff in civil trials (and the prosecution in criminal trials). This reasoning has reasonably made a prediction of a type of “primacy effect” (viz., more verdicts for the side presenting first, the plaintiff or prosecution) in prior PJD [predeliberation juror discussion] research the most popular alternative to the null hypothesis (i.e., same verdicts in juries permitted and forbidden to discuss). But an opposite, “recency effect” could also be predicted. For example, if jurors tended to discount, ignore, or underweigh in final deliberations evidence presented prior to their discussions (which would tend to favor the side that presents first) for any of several reasons (e.g., “we’ve already covered that”; more confidence in one’s evaluation of evidence after an opportunity to socially validate one’s understanding of evidence heard prior to discussion), then a recency/prodefense effect would result” (p. 415).

“Both of these predictions also make a simplifying but questionable assumption—that each side’s prospects for winning the trial hinge primarily on the evidence presented in each side’s case-inchief (i.e., during the early plaintiff/prosecution case or the late defense case). Although this may often be true, at the end of the trial it is not the relative strength evidence presented early versus late that is crucial, but rather the relative strength of the totality of each side’s supporting evidence that should determine the trial outcome. This means that a primacy effect— greater weight placed on information presented early—need not result in more proplaintiff/prosecution verdicts, and that a recency effect— greater weight placed on information presented late—need not result in more prodefense verdicts. For example, suppose in a civil trial the plaintiff’s case-in-chief is much weaker than the defense’s casein- chief. A primacy effect might manifest itself as highlighting the weakness of the plaintiff’s case, and hence lead to more prodefense verdicts. Conversely, a recency effect might result in more proplaintiff / prosecution verdicts if the defense case-in-chief were extremely weak” (p. 415-416).

“The primary objective of this article was to explore whether predeliberation juror discussion (PJD) is verdict neutral—that is, whether such discussion has no systematic impact on juror/jury verdicts, as the prior literature has suggested, or whether such discussion does have some impact. Our results clearly indicated that PJD is not verdict neutral, at least under the conditions examined here. The impact of PJD on verdicts was significant and strong (e.g., overall, the difference in jury pro-plaintiff-verdict rates between those denied and permitted PJD was 26.5%). However, the effect of PJD was not a simple proplaintiff/proprosecution bias, as has been suspected in most prior commentary and research. Rather, the effect of PJD was a type of recency effect— the evidence presented later in the trial (and after the jury’s PJD) had relatively greater impact on the jury’s verdict than the evidence presented early in the trial (and prior to the jury’s PJD). This kind of recency effect would not produce a simple proplaintiff or prodefense bias unless the timing of evidence (early vs. late in the trial, and hence, usually before vs. after PJD) was strongly correlated with which side the evidence favored (plaintiff vs. defendant). It may well be true that the strongest plaintiff evidence often appears early (during the plaintiff’s case-in-chief) and the strongest defense evidence often appears late (during the defense’s case-in-chief). But it is also quite possible for the opposite to occur—strong defense evidence appearing early or strong plaintiff evidence appearing late—or for there to be no clear correlation between timing and side favored. If across all trials, this correlation were weak or absent, we would not expect any net effect of PJD on verdict, which is just the general pattern observed in the prior field research. Our experimental design permitted us to tease apart the timing of strong evidence (early vs. late) and the side favored by that evidence (plaintiff vs. defense). And our results suggest that the net effect of permitting PJD will be to bias verdicts in favor of whichever side would profit more from the jury paying greater attention and giving greater weight to the evidence presented after PJD than before PJD” (p. 422).

Translating Research into Practice

“For the sake of argument, let us momentarily assume that the recency bias found here will occur for a wide range of civil (or criminal) trials; what might be done to minimize it? If it could be shown that some ways of timing PJD were less likely to produce the bias (e.g., regular and frequent PJDs), perhaps juries might be encouraged or required to time their discussions accordingly. However, the evidence for such an ideal patterning of discussions would have to be compelling to justify such an intrusive remedy. Judges instructions might describe the bias and caution the jury not to consider evidence discussed during a PJD session as “already covered” and hence, worth less consideration during their final deliberations. Unfortunately, the research evidence on the effectiveness of such cautionary judicial instructions is not encouraging. Pending the research required to understand the full impact of permitting PJDs, and the effectiveness of alternative remedies, the safest option would appear to be to follow the long-standing tradition of prohibiting PJD” (p. 424).

“There are many trial practices which jurors dislike, such as being denied information on a defendant’s past criminal history, being denied access to sidebar conversations, or reaching verdicts without knowing exactly what sentence might be imposed. But in these and many other practices, the goal of unbiased jury decision making trumps juror preferences. Our results suggest that prohibiting predeliberation juror discussion might well be another such practice, and that the rush to implement this jury innovation should be reconsidered” (p. 425).

Other Interesting Tidbits for Researchers and Clinicians

“An ever-present issue for experimental jury simulation studies like this one is whether the key findings would be materially different under more realistic conditions (e.g., a more representative jurors; with a live trial; if the verdicts determined tangible consequences for the litigants). Fortunately, there is practically no evidence that results from mock jury simulation studies are materially altered by increasing realismalong such dimensions. A separate issue is the particular form the PJD took in our study—a brief discussion of the evidence between the two cases in chief. Of course, there are many other forms that PJD might take in actual trials, and some of these seem likely to modify the recency effect we observed. For example, the closer the last juror discussion occurred to the start or the end of the trial, the less impact a greater focus on the postdiscussion evidence should have. At the limits, all/none of the trial evidence would remain to be heard if there were only a single discussion at the start/end of the trial. And the length of a trial or of a jury’s discussion might well affect any recency bias; for example, the shorter the discussion, the harder it would be to maintain that the jury had “already covered” all the evidence presented prediscussion. Also, for good experimental reasons, our mock juries only considered trials in which the cases-in-chief for both sides were nicely balanced. But if there were a strong contrast between the strength of the plaintiff’s and the defense’s cases, the recency bias might be altered—it might be attenuated / bolstered if the defense case were patently weaker/stronger than the plaintiff case. Clearly, much more research is required to settle such external validity questions” (p. 424).

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Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.