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.

General Intelligence Is a More Robust Predictor of Competency Restoration than a Measure of Externalizing Behaviors

General Intelligence Is a More Robust Predictor of Competency Restoration than a Measure of Externalizing Behaviors

The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized in a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days. No MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. 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. 2, 167-180

Personality, Psychiatric, and Cognitive Predictors of Length of Time for Competency to Stand Trial Restoration

Authors

Laura M. Grossi, M.A., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Debbie Green, Ph.D., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Melanie Schneider, M.A., School of Psychology, Fairleigh Dickinson University, Teaneck, NJ, USA
Brian Belfi, Psy.D., Department of Psychology, Kirby Forensic Psychiatric Center, New York, NY USA
Shanah Segal, Psy.D., Department of Psychology, Kirby Forensic Psychiatric Center, New York, NY USA

Abstract

Certain defendant characteristics, including psychiatric diagnosis, externalizing problems, and cognitive deficits, are associated with longer periods of restoration of competency to stand trial and general lack of treatment success. Prior research has called for a more detailed examination of symptom-level differences between defendants rapidly restored to competency and those who require lengthier treatment for competency restoration. The present study evaluated whether specific aspects of psychopathological constructs assessed by the Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2-RF), and specific cognitive abilities assessed by the Wechsler Abbreviated Scale of Intelligence (WASI/WASI-II), were associated with length of competency restoration among 344 male pretrial defendants hospitalized at a maximum security forensic psychiatric hospital. Higher Juvenile Conduct Problems (JCP) scores were associated with restoration within 90 days, and Antisocial Behavior (RC4) predicted restoration status at 90 days; no MMPI-2-RF or WASI/WASI-II scales predicted restoration status at 180 days when controlling for age. Overall, results suggested that externalizing behaviors are among factors that may play a role in predicting restoration status at select time points.

Keywords

Competency to stand trial, competency restoration, symptoms, MMPI-2-RF, WASI-II

Summary of the Research

“In the United States, defendants facing legal charges must be competent to stand trial (CST) in order to move forward with their legal proceedings…Accurate evaluations of CST are imperative, as the courts generally defer to the opinions of forensic evaluators with regard to the competency of defendant…Although prior research has examined the extent to which defendant characteristics including psychopathology, personality, and intellectual abilities predict length of stay and treatment completion in other settings, this approach has not yet been used with regard to length of treatment for competency restoration. The current study examined whether the MMPI-2-RF and WASI/WASI-II have clinical utility in predicting the length of time that IST defendants undergo restoration of competency to stand trial, operationalized as the number of days from admission to the hospital to the date in which they passed a formal CST evaluation” (p. 167-170).

“We hypothesized that scores on the MMPI-2-RF scales assessing problems in thinking and externalizing problems would be positively associated with length of time for competency restoration, with the length of restoration variable defined (1) continuously, reflecting the number of days from hospital admission until a passed formal CST evaluation, and (2) dichotomously, representing restoration status at 90 days and 180 days…we additionally hypothesized that composite scores (FSIQ-2) and subtest scores (Vocabulary and Matrix Reasoning) of the WASI/WASI-II would be negatively associated with length of time for restoration of competency to stand trial…Finally, the present study explored whether reasons for MMPI-2-RF profile un-interpretability were predictive of time to achieve competency restoration” (p.170).

“Analyses examining whether IST and CST defendants could be differentiated at 90 days based on MMPI-2-RF and WASI/WASI-II scores indicated that only JCP scores significantly differentiated those who were restored and those who were not, although RC4 approached significance. However, both the results of JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in child and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days…the hypothesis that MMPI-2-RF and WASI/WASI-II scales would be predictive of restoration status at 180 days was not supported…Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored” (p.176-177).

“Further, a large proportion of defendants were excluded due to invalid or inconsistent MMPI-2-RF profiles (42.4%), which calls into question the generalizability of the findings for the major analyses to the broader population of IST pretrial defendants…Thus, the exclusion criteria may have obscured our ability to assess fully the combined impact of cognitive abilities and personality characteristics on competency restoration. The exclusion criteria used in this study were consistent with prior research examining treatment adherence and completion in other settings but may be too stringent considering the severity of mental illness in the present sample…” (p.178).

Translating Research into Practice

“As measures of behavioral instability and oppositionality (i.e., scales nested under BXD within the MMPI-2-RF interpretation hierarchy), the JCP and RC4 scales likely have implications for management in the forensic psychiatric hospital, in terms of reflecting chronic behavior problems and lack of cooperation…Instead, the ability of JCP to differentiate IST and CST defendants at a time point as early as 90 days may indicate that forensic psychiatric hospitals are well-equipped to work with defendants with antisocial characteristics and to ensure that legal and hospital resources are allocated appropriately. Furthermore, these scales may be indicators of familiarity with the legal system, and thus better response to psychoeducational aspects of competency restoration. Alternatively, these scales may serve to differentiate patients whose traits are more criminogenic, and less psychiatric in nature, and thus require a lesser degree of pharmacological intervention than their peers…” (p.176-177).

“Overall, exploratory findings suggest that estimated general intelligence and level of education may be more robust predictors of requisite time for competency restoration, such that low intelligence is associated with greater time until competency is restored…These findings raise important implications for clinicians, who can quickly assess estimated general intelligence, gaining information regarding a defendant’s relative time for competency restoration, without the administration of more extensive cognitive tests or other additional measures” (p.177).

Other Interesting Tidbits for Researchers and Clinicians

“…Both the results of the JCP and RC4 analyses were contrary to prediction, with those defendants who remained IST endorsing fewer conduct-related problems in childhood and adolescence, and fewer antisocial beliefs, than those who were CST at 90 days. These findings…are inconsistent with literature indicating that elevated RC4 and JCP scores…predict treatment failure in non-forensic contexts. The achievement of competency is not necessarily comparable to treatment success in other therapeutic contexts, and this finding may be interpreted in a straightforward manner, to mean that different personality characteristics have different predictive utility in different contexts. Notable tendencies toward antisocial or criminogenic behaviors…may lead evaluators to believe that a defendant in this context (i.e., a maximum security forensic hospital) is more likely to possess competency-related abilities…which would not be typically perceived as beneficial in non-forensic clinical contexts (e.g., civil hospital)” (p.176).

“Given the exclusion rate, future research might examine the ability of tests of personality and intelligence to predict time until competency restoration using a much larger sample. Larger samples might include female participants, as the present findings are not necessarily generalizable to the broader population of incompetent pretrial defendants. With a much larger sample, future research might examine whether elevations on specific scales…are predictive of time for competency restoration, as opposed to relatively high or low scores. Such an approach would be more informative for clinicians, who could then interpret scores above or below a particular threshold as indicative of alternative treatment…” (p.178).

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.

Self-Reported anti-social attitudes may not be a valid indicator of risk of reoffending .. and more

Self-Reported anti-social attitudes may not be a valid indicator of risk of reoffending .. and more

Self-reported within-treatment change in antisocial attitudes may not provide valid information about change in offenders’ risk of reoffending as a result of completing treatment. This is the bottom line of a recently published article in X. 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. 4, 321-335

Within-Treatment Change in Antisocial Attitudes and Reoffending in a Large Sample of Custodial and Community Offenders

Authors

Mark V. A. Howard, Corrective Services New South Wales, Australia
Gerard van Doorn, Corrective Services New South Wales, Australia

Abstract

This study tested evidence for antisocial attitudes as a mechanism of change in offender treatment by examining whether the Measures of Antisocial Attitudes and Associates (MCAA) and within-treatment change in scores on this scale have predictive validity for risk of reoffending. Pretreatment and posttreatment scores on the MCAA were obtained from a large sample of 1,858 offenders who had completed offender treatment programs while in custody (n = 854) or in the community (n = 1,004). Individual within-treatment change was calculated with simple difference scores as well as categorizations of clinically significant change. Results showed that discrete scores on a number of MCAA measures were associated with reoffending hazard at pretreatment and at posttreatment. Change over treatment was also highly significant at the group level whereas a modest proportion of offenders achieved clinically significant change. None of the measures of within-treatment change were significantly associated with reoffending, however. The results suggest that self-reported antisocial attitudes may not be a valid indicator of causal mechanisms of treatment or change in offenders’ risk of reoffending as a result of completing treatment.

Keywords

antisocial attitudes, recidivism, within-treatment change, mechanism of change, clinical significance

Summary of the Research

“In recent years a substantial body of research has developed to support the effectiveness of offender treatment in reducing reoffending. Meta-analytic reviews have also indicated that offender treatment is increasingly effective when it adheres to principles of the RNR [risk-need-responsivity] model. However, there has been surprisingly little empirical study to examine how treatment reduces reoffending, or more specifically to validate the role of dynamic risk factors as mechanisms of change in accordance with the need principle. To understand the causal effect of within-treatment change in dynamic risk factors, it is necessary to establish that the factor has a predictive relationship with reoffending; that treatment induces change in the factor; and that there is an association between factor-specific change in treatment and reoffending outcomes” (p. 321-322).

“There is an identified need for further research to assess mechanisms of change within offender treatment programs. Understanding the relationships between change in dynamic risk factors and reoffending outcomes is critical to identify the content and processes of interventions and how targets may be prioritized in the development and delivery of programs. It is also important to better understand processes of individual within-treatment change because not all offenders will require treatment for specific risk factors and not all offenders will achieve change as a result of treatment, which has implications both for identification of target samples and interpretation of treatment outcome evaluations. Research into treatment effects of offender programs typically evaluates average group-level differences relative to controls and, therefore, tends to be insensitive to intraindividual dynamics. In addition, while some studies have examined the predictive validity and within-treatment change on the [Measures of Criminal Attitudes and Associates] MCAA, further research is required to integrate and improve the statistical rigor of analyses relevant to mechanisms of change” (p. 323).

“The aim of this study was to examine relationships between self-reported antisocial attitudes, individual change in attitudes over the course of treatment, and reoffending outcomes. To achieve this we developed a large and diverse sample of offenders who had completed pretreatment and posttreatment administrations of the MCAA as part of their participation in treatment while serving sentences in custody or in the community. This study sought to address three conditions that have been identified as necessary for a putative mechanism of change, including: (a) discrete scores on the MCAA have temporally relevant relationships with reoffending outcomes; (b) scores on the MCAA change over the course of treatment; and (c) change in scores over treatment correspond with differences in reoffending outcomes” (p. 323).

“A secondary aim of the study was to examine patterns of responses on the MCAA and their associations with reoffending separately for offenders who completed self-reports of antisocial attitudes when in custody and those who were assessed in the community. Offenders in the community have closer temporal and contextual proximity to risk factors at the time of treatment that may influence the extent to which their reported antisocial attitudes and change in attitudes transfer to reoffending outcomes. This difference may partially account for findings that treatment in the community tends to have larger effect sizes compared with treatment in custody. On the balance of the existing literature we hypothesized that associations between MCAA scores and reoffending, and between within-treatment change and reoffending, would be more pronounced when assessed for offenders in the community compared with offenders in custody” (p. 323).

“The results of this study showed that measures of antisocial attitudes derived from the MCAA meet a number of conditions for being mechanisms of change in offender treatment, including predictive validity for reoffending outcomes and evidence for significant change over the course of treatment. Within-treatment change in MCAA scores did not correspond with change in risk of reoffending, however. This pattern of results indicates that while discrete scores on the MCAA can contribute to an understanding of an offender’s risk of reoffending and case management needs, change in scores over treatment are not a reliable indicator of how the offender’s risk has been influenced by participation in treatment. We do not propose to conclude that change in antisocial attitudes is not a meaningful target for offender interventions or causal factor in the relationship between treatment and reoffending. However, the findings add to those of other research on offense supportive attitudes in highlighting the ongoing empirical challenges with measuring and identifying such dynamic risk factors as mechanisms of change. Further research into factors that influence offender responding over the course of treatment and potential change to methods of assessing offenders is required. At present, and in regards to the MCAA, it appears that the search for the ‘Holy Grail in assessing offender change’ continues” (p. 331-332).

Translating Research into Practice

“The results of within-treatment change analyses were disappointing, particularly considering that in contrast to some previous studies of offender change, discrete scores on the MCAA were found to have predictive validity for reoffending in our sample. Taken together, it appears that the MCAA did not meet this critical condition for a mechanism of change because the magnitude or nature of change over the course of treatment did not have a meaningful relationship with reoffending. One interpretation of the results is that change in MCAA scores reflects actual offender change in dynamic risk factors associated with antisocial attitudes; however, these factors do not ultimately have an effect on likelihood of reoffending. The outcome of recidivism is one of multiple determinants and change in antisocial attitudes may be necessary but not sufficient for a reduction in risk to occur. For example, treatment may act to simply reduce antisocial attitudes without developing compensatory prosocial attitudes that facilitate desistance over time. Similarly, discussed the potential that antisocial attitudes act as a proxy for other individual propensities that affect the likelihood of antisocial behavior under conditions of risk. A related interpretation is that change in antisocial attitudes contributes too small an effect size to influence outcomes, particularly given the insensitivity of formal measures of reoffending. However, in this case it is uncertain why discrete measures of antisocial attitudes would be independently predictive of reoffending. It is also noted that the EQUIPS programs contain multiple modules that address a range of general and offense-specific risk factors that include but are not
limited to antisocial attitudes” (p. 330).

“Perhaps a more parsimonious explanation of the results is that change in MCAA scores between pretreatment and posttreatment may be attributed to measurement factors that are not related to underlying attitude change. In particular, different contextual and temporal influences between pretreatment and posttreatment may affect reporting of antisocial attitudes. Declines in antisocial attitudes following completion of treatment may represent transient effects of treatment or temporarily activated sentiments that do not persist over time. A study by Polaschek and Dixon (2001) showed that while both recidivists and nonrecidivists reported significant reductions in anger over the course of treatment, only nonrecidivists continued to report those changes at follow-up whereas recidivists showed a regression in scores. In addition, completion of treatment is likely to be associated with demand effects that incentivize prosocial responding, such as efforts to demonstrate successful outcomes of treatment or the development of a working alliance with therapists, which are not present before treatment. Offenders are often motivated to participate in treatment for external gains such as receiving parole that may be contingent on evidence of positive treatment progress” (p. 330).

Other Interesting Tidbits for Researchers and Clinicians

“There is the possibility that offenders in the community have different contextual influences on their responding and likelihood of response bias compared with those in custody. However, an examination of the data suggests that the results may be most likely attributed to differences in sample characteristics. Offenders in custody had a wider distribution of MCAA scores and were more likely to reoffend compared with those in the community, which would be expected to influence the power of measures of association. Offenders in custody also reported more dysfunctional antisocial attitudes on average compared with those in the community. There are indications that reoffending risk and related dynamic risk factors such as antisocial attitudes have a negative association with social desirability bias and impression management response bias in particular. This suggests that as offender risk increases the relationship between responses and underlying latent constructs may be less prone to these sources of measurement error. The results emphasize the importance of sampling factors, including selection of offenders according to the extent and homogeneity of criminogenic need, when assessing the psychometric properties of measures of dynamic risk factors. It is noted that whereas the only previous study of within-treatment change on the MCAA was conducted with offenders in the community, available data to support the predictive validity of the MCAA for reoffending have been derived from custodial samples. Conversely, the results suggest that proximity factors such as time in custody between assessment and release may have had only limited influence on the predictive utility of the MCAA” (p. 329).

“There is evidence to suggest that offender self-reports of antisocial attitudes can convey information about risk of reoffending that is robust to response biases, including but not limited to findings for the predictive validity of MCAA measures reported here. However, it is less clear how the context of assessment has an influence on the nature or extent of responding bias. The influence of context specific socially desirable responding may explain findings that discrete posttreatment scores on self-report measures have weaker relationships with reoffending compared to pretreatment scores. The relative contributions of trait-like response tendencies and contextual demands to socially desirability bias is a subject of ongoing discussion, with evidence for the role of both factors. We are currently conducting research to explore how changing context affects offenders’ self-reported antisocial attitudes over multiple administrations across consecutive treatment programs. Further study is also required to better understand and implement procedures under which within-treatment change can be best assessed to minimize response bias” (p. 330-331).

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.

Parents’ understanding of the child welfare system

Parents’ understanding of the child welfare system

Although parent’s understanding of the juvenile dependency system is crucial to the case outcome, the current study shows that their understanding is limited and not appropriately assessed, which may lead to uninformed decisions that bear high costs to the families. 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. 4, 459–473

Parents’ Understanding of the Juvenile Dependency System

Authors

Kyndra C. Cleveland, Vanderbilt University
Jodi A. Quas, University of California–Irvine

Abstract

A great deal of attention has been devoted to documenting the legal experiences and knowledge of children involved in the juvenile dependency system (i.e., child protection system). Such insight is critical to inform policies that profoundly affect children and families. However, the experiences and knowledge of another population involved in the dependency system are also critically important—namely those of the children’s parents. Parents’ understanding has enormous potential to affect their behaviors, ongoing decisions in the case, and the eventual case outcome. In the current study, 105 parents involved in ongoing juvenile dependency cases were interviewed about their general and case-specific dependency understanding, including their understanding of commonly used dependency terms, the role of dependency professionals, and the purpose of key hearings. Parents, on average, evidenced a limited or partial general understanding of the system. More than half of the sample demonstrated a limited understanding of the judge’s specific decisions in their hearings, with 12% demonstrating no knowledge of the decisions rendered. Parents at particular risk for low understanding included fathers, those who were new to the system, those with no prior dependency contact as children, and those from low educational and minority backgrounds. Practical implications and recommendations for family dependency policy, including the need for a standard assessment of parent understanding and programs to improve knowledge, are discussed.

Keywords

demographic, juvenile dependency, knowledge, parent, understanding

Summary of the Research

“When children experience neglect, abuse, or other forms of maltreatment at the hands of their parents, the entire family can become involved with social services, and eventually, the juvenile dependency system. This system has a primary goal of ensuring children’s safety and well-being, while also providing services to parents to help them improve upon the challenges that led to the initial social service and legal intervention. For children and parents, being a part of the juvenile dependency process is lifechanging: The decisions rendered throughout the case determine the amount of contact parents and children have with one another; what rehabilitative services are delivered, to whom, and for how long; and the permanent legal guardianship arrangement for children that will last into adulthood. […] We use the formal term, juvenile dependency system, to refer to the legal system that oversees cases of child abuse and neglect. Other related terms may include child welfare, child protection, or foster care.” (p. 459)

“Despite the gravity of the decisions made in juvenile dependency cases and the effects of those decisions for the entire family, virtually nothing is known about the extent to which all relevant participants in a case understand what is happening. […] Studying children’s understanding and experiences is critical. However, parents are also directly and personally involved, and their understanding is perhaps equally critical, at least for the progression and eventual outcome of the case and, as a consequence, for the children’s and family’s future.” (p. 459)

“From a practical and theoretical perspective, insight into parents’ understanding of the dependency system is relevant to a number of ongoing debates. These include debates concerning parental rights, family autonomy, and whether formal standards need to be established to ensure adequate participation in what is often viewed as a less formal system. Theoretical debates exist as well, concerning how court experiences shape perceptions of legal legitimacy and fairness, and the psychological health and well-being of participants in legal cases. In light of these debates, as well as the undeniable gravity of the decisions rendered in dependency cases, we conducted a much-needed investigation of parents’ legal understanding of the dependency system. We specifically examined how well parents involved in ongoing juvenile dependency cases understand the dependency court process generally (i.e., their ability to define common dependency terms and answer questions about a hypothetical dependency case) and their case specifically (i.e., comprehension of the judge’s decision in a hearing that they just attended). We also examined whether general and case-specific understanding were related, and whether demographic and individual-level factors (e.g., race, education, income) predicted legal understanding.” (pp. 459–460)

“Recent national data indicate that there are 4.1 million reports of child maltreatment in the U.S. annually. Of these, 42% are screened out because of insufficient evidence, leaving child protective services (CPS) with 2.3 million reports to investigate further. […] Upon investigation of these allegations, some families may receive in-home services from CPS. However, if it is determined that the maltreatment is severe or the child appears to be at risk of imminent harm, CPS will submit a petition to refer the child to the juvenile dependency system. Once a dependency case is filed, the child may be removed from home and placed in a temporary out-of-home placement. Parents may secure their own legal representation, or if they cannot afford to do so, the court may assign them an attorney. If both parents are involved, each typically has individual representation. Another attorney is assigned to the child(ren). Each attorney is required to represent the interests of their assigned party.” (p. 460)

“Although juvenile dependency cases have a common underlying structure, there are also highly variable components, players, and procedures. In addition, court hearings and documents are imbued with legal jargon (e.g., de facto, concurrent planning) that can be difficult to comprehend, especially among individuals with low educational attainment, like many dependency-involved parents. All of this, combined with the complexity of the system and the multiple variations in the case, likely makes the dependency court process particularly difficult to understand for the population involved. If parents do not understand what is happening, their responsibilities, the roles of the professionals with whom they interact, the purpose of hearings, and the court orders, it is highly unlikely that parents will be able to comply with court mandates, putting reunification in jeopardy.” (p. 461)

“Current legislation regarding dependency cases is largely guided by the Adoption and Safe Families Act of 1997, which aims to improve the timeliness of child permanency (i.e., safe and stable homes for children). […] relevance to the current study, parents are entitled to constitutionally afforded due process rights and rights related to their legal relationships with their children. […] Central to these rights is the need to understand the legal process, its potential consequences, and what is occurring in each hearing. In light of the central need for legal understanding when navigating a dependency case, it is perhaps surprising that there is no “legal right” to a basic understanding of the dependency system and one’s case. In criminal and some civil cases, competency standards exist to safeguard defendants who may otherwise have a poor understanding of the legal system and to facilitate defendants’ effective participation in their case. […] No such standards or expectations exist for parents in dependency cases, and in fact, until the present research, the level of these legal participants’ understanding generally and of their case specifically has not been the subject of empirical investigation. […] the extent to which parents’ attorneys provide them with necessary and requested information is unknown. And, even if attorneys provide this information, it is unknown whether parents are able to digest it and apply it to their cases. The current study served as an important initial investigation of what parents actually know about the system.” (p. 461)

“Insight into dependent parents’ legal understanding can also inform theoretical models of justice. […] If parents understand the dependency system, they may more readily perceive the system as fair or transparent and therefore legitimate. Such parents may then be more likely to comply with court orders, be present at court hearings, reunify with their children, and, of importance, not recidivate. Investigating parents’ understanding is a critical starting point for further tests of procedural justice concepts in the context of juvenile dependency court.” (p. 461)

“Finally, legal understanding is relevant to therapeutic jurisprudence, which is concerned with how the law relates to one’s psychological well-being and the ways in which the law can act as a therapeutic agent. […] Identifying gaps in parents’ understanding and then finding ways to fill those gaps may serve to improve parents’ psychological well-being during the case and ability to follow court mandates. […] If understanding affects compliance and reunification outcomes as well-established justice models would suggest, improving parents’ knowledge is in the best interest of all parties involved. Likewise, insight into dependent parents’ understanding may offer important ideas about new directions for procedural justice and therapeutic jurisprudence research, both of which have yet to be studied in this important population.” (pp. 461–462)

“Although prior research has not systematically examined legal understanding in dependency-involved parents, such understanding has been investigated in multiple other samples that share common characteristics with parents in the dependency system. […] Of particular relevance to the present research are studies of legal understanding of the juvenile justice system. […] Findings across these lines of work are fairly consistent in revealing significant gaps in general knowledge, with understanding at times being entirely nonexistent or even incorrect. […] Similar deficits exist in youth’s knowledge of their own case, which is perhaps not surprising given relations between children’s general and case-specific legal knowledge. […] Very few studies exist concerning parents’ legal knowledge, and those that do concern parents’ understanding of their child’s rights as a defendant and their rights as the child’s parent. Results reveal naïve and sometimes incorrect perceptions, among community samples and parents with a child in the delinquency system. […] Together, these lines of work reveal fairly low levels of knowledge among dependent and delinquent youth and parents of delinquent youth.” (p. 462)

“In the current study, parents involved in ongoing juvenile dependency cases in Florida were interviewed about their general and case-specific legal understanding. To assess general knowledge, parents were asked to define commonly used dependency terms and were asked questions about a hypothetical vignette involving a dependency case. To assess case-specific understanding, parents were asked about recent decisions and hearings. Finally, parents provided information about their background, family, and prior legal experiences. Hypotheses were as follows: (a) A majority of parents would lack comprehensive general and case-specific understanding, similar to that observed in other high-risk populations of children, adolescents, and adults; (b) A positive relation would emerge between general and case-specific understanding; (c) Regarding demographic and background characteristics, being from a lower SES background (i.e., lower income and education) would predict less understanding. Tentatively, with income and education controlled, minority parents would evidence less accurate knowledge than majority-race parents. Finally, although length of time in the system is not consistently related to legal understanding in other populations , given nuances in the dependency process, and the number of hearings parents are required to attend, parents whose cases had been going on longer would evidence better legal understanding, in general and about their own case.” (p. 463)

Participants: 105 parents involved in ongoing juvenile dependency cases; in each case either mother or father participated – in two cases both parents participated individually; 79% were mothers; ages 19–62 (M = 31.87); had between one and nine children (M = 3, SD = 1.64); 61% African American, 34.3% White, 3.8% Hispanic/Latino, 1% multiethnic or other.

“Parents’ reported level of education varied as follows: some high school (36.3%), high school diploma (24.5%), some college (32.4%), 2-year degree (2.9%), and 4-year degree (3.9%). No parent reported postgraduate training. For 76.5% of the parents, annual household income was less than $25,000. The remaining parents reported $25,000 –34,999 (15.7%), $35,000-$49,999 (5.9%), and $50,000-$74,000 (2.0%). […] Approximately one quarter of the parents had been involved with the dependency system as a child or teenager.” (p. 464)

“The current study was the first of its kind to systematically examine legal understanding in parents involved in ongoing juvenile dependency cases. […] Our first prediction, namely that knowledge would be limited, was confirmed. Parents demonstrated, on average, a limited or partial general understanding of the system (e.g., they could only marginally define such terms as guardian, petition, or case plan). Moreover, when understanding of hearing decisions was examined, parents fared only slightly better. […] As confirmation of our second hypothesis, the more parents understood generally, the more they understood about the decision in their specific hearing. The deficits in knowledge we found among parents in the current study in response to our questions are similar to deficits observed in other legal populations across multiple types of measures.” (pp. 467–468)

“Our third hypothesis was that several parent characteristics would predict variability in knowledge. Understanding was expected to be significantly lower for African American than White parents and those with lower rather than higher income and education. Poorer general legal understanding emerged among African American parents and those with lower levels of education, but not among parents who reported lower annual incomes. […] certainly greater education or perhaps nuances in quality of education could account, at least in part, for the differences in understanding of legal terms and processes. However, because education was included in our models, it does not fully account for our observed racial differences. Perhaps the way in which African American parents approach the system (e.g., with more caution given their general distrust of the justice system) or the way in which dependency professionals approach these parents (e.g., presentation of less information given perceptions of parents’ ability to understand legal concepts) contributed to the evident racial differences in legal understanding.” (p. 468)

“Other noteworthy characteristics also predicted general legal knowledge. With age and greater time in the system, understanding improved. However, parents’ case-specific understanding was unrelated to time spent in the system. […] Finally, parents who had previous involvement with the dependency system as a child and mothers (compared with fathers) understood the system better.” (p. 468)

“Despite these limitations, our study contributed valuable new knowledge. That is, we systematically examined, for the first time to the best of our knowledge, legal understanding in a critically important and marginalized population of legal participants We assessed their understanding empirically, so that we could begin to lay the groundwork for what is typical in terms of parent understanding, where gaps exist, and where interventions to augment understanding might be needed. We also laid the groundwork for future work assessing more nuanced facets of legal understanding, and critically, whether better understanding predicts increased compliance and engagement. Ultimately, the decision to fully engage in the dependency system is up to the parents and families involved. However, to engage, parents also need to fully understand their cases. Such understanding would provide them with the power to improve the plight of their families.” (p. 470)

Translating Research into Practice

“Several theoretical and practical implications can be drawn from the study’s results. First, when situated within the broader literature and theorizing on legal rights, procedural justice, and therapeutic jurisprudence, our findings suggest that more consideration be given to parents’ experience of due process in juvenile dependency cases. Low levels of understanding may inhibit parents from receiving the intended benefits of their due process rights. […] Moreover, parents’ understanding may be related to important facets of procedural justice such as participant “voice” and “neutrality” in decision-making. […] If parents do not have a basic, general understanding of the system, it may be difficult for them to articulate or even hold a specific viewpoint about their case. In addition, judges may provide information about decisions made in hearings, but if parents do not understand these decisions, the judgments and outcomes can hardly be deemed “transparent.”” (p. 469)

“With regard to therapeutic jurisprudence, if poor understanding is not addressed, parents’ well-being may be adversely affected. That is, they may experience harm or stress stemming from confusion in an already difficult process. Second, in practical terms, our findings shed light on those parents at greatest risk of poor understanding within the dependency system. As has been found in the criminal justice system, minority families are particularly at risk of having a lower understanding of the dependency system, both generally and with regard to specific details of their case. Third, our findings highlight the need for assessments and programs to ensure that parents understand the general dependency process and important aspects of their case. […] although creating and enforcing knowledge standards in dependency cases would potentially place a burden on the judicial system, failing to adequately address low parental understanding in dependency cases is likely far more costly—to families and society as a whole, and also to the children of these parents who need permanency and stability. […] At the very least, jurisdictions should invest in programming aimed specifically at increasing parents’ understanding, particularly programs that help all families understand, including fathers, parents who are new to the system, parents who have not had prior dependency contact as children, and parents from low educational and minority backgrounds. All of these parents are at high risk of poor understanding, and evidence-based programs may be especially beneficial in improving long-term outcomes for these children, parents, and families.” (p. 469)

“In future directions of this work for practice, juvenile dependency courts may consider investing in families in two key ways: (a) Assessing parents’ understanding of their cases and (b) Providing opportunities for parents to increase their understanding. Of importance, implementing these procedures may be less costly than other measures (e.g., hiring more attorneys or social workers or paying for more of their time) and may contribute tremendously to parents’ engagement in the system, including their presence at hearings and active participation in court-mandated services (e.g., counseling). […] Assessments of parent understanding can be included in initial case planning and may provide an opportunity at the outset for parents to ask questions about how their case will work and to coordinate a plan for remaining informed as the case progresses.” (p. 469)

Other Interesting Tidbits for Researchers and Clinicians

“The study was […] limited, in part, by the nature of how data were collected, highlighting the need for continued research on legal understanding and experiences in this important population. For one, the stressful nature of having participated in these perhaps confusing and challenging hearings may have increased parents’ difficulty attending to and recounting case details, particularly because the interviews occurred on the same day as their hearings. Although this was advantageous in terms of recruitment, it may be valuable to question parents several days after their hearing to assess their knowledge in a potentially less emotionally laden context. Also, our sample comprised exclusively parents who showed up at court, and included more mothers than fathers. Mothers are more likely to be involved and participate in their dependency cases than fathers, and certainly their understanding is critical to the case. […] Obtaining information from both parents, whether they are together or not, would be a valuable addition to the study, as would collecting information from parents who fail to show for court. […] Finally, our initial cross-sectional study must be followed by longitudinal research to evaluate, in a temporal and causal manner, the links between parents’ understanding, behavior, and the case’s outcome, especially in terms of parents’ understanding of their own case and its requirements. Such investigations could further consider the broader culture and climate of social services and the courts to gain more comprehensive knowledge of parents’ understanding and experiences.” (p. 470)

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.

Getting a second chance: Public support for reintegrative and disintegrative shaming for ex-offenders

Getting a second chance: Public support for reintegrative and disintegrative shaming for ex-offenders

The public supports rehabilitation efforts for all tested crime scenarios; however, when offense severity is high, the public is less likely to support giving an ex-offender a clean slate following punishment and more likely to demand retribution. 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. 4, 503–517

Third-Party Support for Retribution, Rehabilitation, and Giving an Offender a Clean Slate

Authors

Michael R. Brubacher, University of Johannesburg

Abstract

When crimes occur, there is third-party support for retributive justice, but is there also support for the idea that punishments should give offenders clean slates? In addition, how might support for rehabilitation compare with support for retribution, and with support for giving a clean slate? Two studies tested how crime severity affected support for the 3 sentencing objectives: retribution, rehabilitation, and giving an offender a clean slate. Further, the studies tested whether anger and compassion toward the offender mediated the relationships between crime severity and the sentencing objectives. Results show that as crime severity increased, support for retribution increased, support for rehabilitation was unaffected (in Study 2), and support for giving a clean slate decreased. In addition, the relationship between severity and retribution, and the relationship between severity and clean slate, were both mediated by anger and compassion. For rehabilitation, there was an indirect effect involving compassion but not anger.

Keywords

retribution, rehabilitation, clean slate, crime severity, restorative justice

Summary of the Research

“One reason why criminal offenders are punished is to attain retribution. One notion of retribution is that the harm or moral wrongfulness caused by a crime disrupts a moral balance between the offender and the victim, or between the offender and society. When a punishment is issued to the offender, then the balance is reestablished and justice is achieved. The offender therefore needs to suffer for the crime, a suffering which might be achieved in part through the humiliation or degradation that can come from being punished. An additional outcome of retribution, which may accompany the reestablished moral balance and the acquisition of justice, is that the offender has then paid off a debt that was owed to the victim or to society. Such a notion can imply that the offender should be given a clean slate, once the punishment has been completed. […] While third-party support for retribution has received a fair amount of attention in the research literature, support for the idea that punishments should also give offenders clean slates has received less attention.” (p. 503)

“The notion of a clean slate following punishment, and whether it receives third-party support, is relevant to several policy debates concerning exoffenders who have completed their sentences. For example, having a criminal record can interfere with attaining employment, housing, and financial aid for education. […] Additional policy debates related to the notion of a clean slate include felony disenfranchisement and preventing exoffenders from getting professional licenses.” (p. 503)

“Investigating third-party views about sentencing objectives, such as retribution and clean slate, is important for a number of reasons. First, policymakers often consider and accommodate public views in order to maintain the public’s trust in criminal justice institutions. Therefore, should different degrees of public support exist for the sentencing objectives, then this could influence the priorities that are set by policymakers. […] A second reason for investigating third-party views is the social restrictions that exoffenders can experience after completing their criminal sentences (e.g., acquiring employment and housing). Some of these restrictions are called hidden sentences because they inflict harm on exoffenders, they are sanctioned by legislative statutes, but they go beyond the sentences that are issued by criminal courts. […] Investigating the psychological factors that influence third-party support for various sentencing objectives, particularly clean slate, may provide insight as to why hidden sentences occur.” (pp. 503–504)

“The notion of a clean slate may be defined, in part, as removing the shame and stigma that can come from committing a crime. Shame and stigma may be supported by third-parties because they are perceived as ways of managing an offender’s future behavior and protecting the larger social group from potential harm. […] The idea that punishment should achieve retribution but should also give an offender a clean slate is part of the theory of reintegrative shaming. In the process of reintegrative shaming, an offender is issued a punishment that communicates society’s disapproval of the criminal act. When the punishment process is complete, however, the offender no longer needs to experience shame, and is no longer a target of public concern. Rather, the individual is accepted and restored as an equal member of the community. On the other hand, if the offender is not given a clean slate then disintegrative shaming occurs. With disintegrative shaming, the offender is punished but remains stigmatized and set as a social outsider. The theory of reintegrative shaming is part of an overarching theory called restorative justice, which is gaining attention internationally within criminal justice systems as well as academic research” (p. 504)

“Reintegrative shaming is therefore composed of two sentencing objectives: the sentence should (a) achieve retribution and (b) give the offender a clean slate. […] The positive relationship between crime severity and support for retributive punishment has already been established by a number of studies. One reason for the relationship is that as crime severity increases, there is greater support for inflicting some type of suffering on the offender, such as by humiliating or degrading the offender through punishment. […] The proposed negative relationship between crime severity and support for giving the offender a clean slate has not been investigated previously, but has theoretical support. One rationale for the relationship is that crime severity might have an impact on the perceived in-group status of the offender. […] Support for giving the offender a clean slate would decrease as crime severity increases.” (p. 504)

“The present studies tested the effects that crime severity would have on third-party support for achieving retribution and giving the offender a clean slate. The studies also included a third sentencing objective, which was whether the offender should be rehabilitated. […] It was predicted that an increase in crime severity would be related to an increase in support for retribution and a decrease in support for giving an offender a clean slate, thereby moving from a reintegrative shaming orientation toward a disintegrative shaming orientation. In addition, an exploratory approach was taken regarding the effect of severity on support for rehabilitation. As severity increases, and the punishment orientation moves toward disintegrative shaming, would support for rehabilitation decrease, increase, or be unaffected?” (pp. 504–505)

“Along with testing the effects that crime severity might have on the three sentencing objectives (retribution, rehabilitation, and clean slate), the studies also tested whether these effects would be mediated by feelings of anger and compassion toward the offender. […] Two emotions that may be particularly relevant to the three sentencing objectives are anger and compassion. […] Regarding the relationships between crime severity and the two emotions, it was expected that an increase in severity would cause an increase in anger and a decrease in compassion. […] Changes in anger and compassion may subsequently affect the degree to which each sentencing objective is supported. Regarding retribution, it was expected that anger would have a positive effect while compassion would have a negative effect. […] Whether support for giving a clean slate is affected by crime severity, and whether that effect is mediated by anger and compassion, has not been tested. […] It was anticipated that anger would be negatively related to support for giving a clean slate. […] Along with support for giving an offender a clean slate, the studies also included support for rehabilitation, in order to investigate the effects that severity, anger, and compassion might have on this sentencing objective. […] Regarding the relationship between anger and rehabilitation, it was anticipated that anger would either be negatively related to rehabilitation or that anger would have no relationship to rehabilitation.” (p. 505)

“Two studies were conducted to test the hypotheses. In Study 1, participants were randomly presented with one of four crime scenarios and then responded to questions about the severity of the crime, their emotions toward the offender, and their support for the sentencing objectives. Structural equation modeling was then conducted to test the hypotheses. Study 2 was similar to Study 1 except the crime scenarios manipulated crime severity in an experimental manner.” (p. 505)

Study 1: 489 participants recruited through Amazon’s Mechanical Turk website; 57% female, ages 18 to 72 (M = 34.43 years, SD = 12.76 years), 84% White, 7% Black, 3% Asian, 2% Latino/a, 4% other race or multiracial.

Study 2: 464 participants recruited through Amazon’s Mechanical Turk website; 53% female, ages 18 to 70 (M = 36.08 years, SD = 11.99 years), 78% White, 8% Asian, 7% Black, 5% Latino/a, 2% other race or multiracial. In the Pilot version of Study 2, three scenarios (one assault scenario, one theft scenario, and one drug dealing scenario) were developed for each of the three severity conditions (low, medium, and high). The nine scenarios were then used in the Main Study 2.

“The present studies looked at third-party support for retribution, rehabilitation, and giving offenders clean slates. […] The present studies […] found that retribution and clean slate were two distinct constructs, and support for the two objectives diverged as crime severity increased.” (p. 512)

“There is some evidence that reintegrative shaming processes can reduce crime rates. […] The present studies found that third-party support for reintegrative shaming decreased as the severity of criminal activity increased. One explanation for the transition from support for reintegrative shaming to support for disintegrative shaming comes from the two emotions that were included as mediators. The studies found that as crime severity increased, anger toward the offender also increased while compassion for the offender decreased. Both changes in emotion then led to an increase in support for retribution but a decrease in support for giving offenders clean slates once their punishments had been completed.” (p. 512)

“The studies also looked at how crime severity affected third-party support for offering offenders rehabilitation programs. It was found that support for rehabilitation remained constant as crime severity increased (according to Study 2; support increased in Study 1). Further, support for rehabilitation was constant across different types of crime (i.e., assault, theft, and drug dealing). […] Support for rehabilitating offenders was therefore unaffected by crime severity, which is in contrast to the decrease in support that occurred for giving offenders a clean slate. These two relationships may therefore depict an ambivalence within third-party views of offenders, particularly as crime severity increases: Third parties may support the idea of rehabilitating offenders while still opposing the idea of reintegrating them into society. One reason for the different relationships was that anger toward the offender was negatively related to support for giving a clean slate but was unrelated to support for offering rehabilitation programs. A second potential reason may rest in how the sentencing objectives were perceived. While giving a clean slate may have been seen as primarily benefitting the offender, offering rehabilitation programs may have been seen as benefitting society at large.” (pp. 512–513)

“One of the ongoing challenges of criminal justice systems is to enable released offenders to successfully reintegrate into the social systems of society, while simultaneously addressing the needs of third parties regarding justice and safety. Continued research into third-party views concerning sentencing objectives, and of public preparedness for offender reintegration, could serve to improve the overall effectiveness of criminal justice processes in terms of meeting the needs of the various parties.” (p. 514)

Translating Research into Practice

“The present studies have implications for policy development and also for understanding existing policy. One implication for understanding existing policy stems from the influence that public opinions can have on shaping policy priorities. The studies found that, for the more severe crimes, retribution received the most support, followed by rehabilitation, and then clean slate. This rank order of the objectives, provided by third parties, is mirrored in the mission statement of the United States Federal Bureau of Prisons. According to the statement, the objectives of the bureau are to (a) “protect society by confining offenders” and (b) “provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens.” These two statements are related to the objectives of punishment (e.g., retribution) and rehabilitation. However, reference to the clean slate objective (e.g., “allow offenders to pay for their crimes and be reintegrated into society”) is absent, which is consistent with the low level of importance that third parties gave this objective for the more severe crimes.” (p. 513)

“The studies also have implications for adjusting policies, and these pertain to crimes that are less severe. The studies found that third-party support for giving a clean slate was present for minor crimes. Currently, however, even minor crimes can produce a permanent criminal record, which can then lead to collateral consequences for exoffenders who have completed their sentences (e.g., difficulties acquiring employment). […] Since third parties supported the notion of giving clean slates for minor crimes, a policy implication is that minor crimes should not be treated in the same manner as severe crimes in terms of collateral consequences. […] Policies might therefore be developed, or adjusted, to remove collateral consequences for minor offenses (e.g., criminal record expungement, “ban the box”). Providing a clean slate in this manner can improve offender functioning and reduce recidivism rates. The present studies also show that giving a clean slate is consistent with third-party views regarding the objectives that sentences should accomplish.” (p. 513)

Other Interesting Tidbits for Researchers and Clinicians

“There are several areas of future research that are associated with the present studies. First, future research could continue investigating the factors that influence third-party support for giving offenders a clean slate. […] Future research could also continue to investigate the factors that affect third-party compassion for offenders, as the present studies found that compassion was related to all three sentencing objectives. […] Additional research could also be done on third-party support for rehabilitation. The present studies found that support for rehabilitation did not decrease even as compassion for the offenders decreased. Future research could explore the reasons why rehabilitation received consistent third-party support, particularly when support for giving a clean slate to offenders decreased. […] Another area for future research is to look at the various factors that affect a crime’s perceived severity, and to determine how those unique factors affect emotions toward offenders and support for the different sentencing objectives. […] In addition, studies on support for the sentencing objectives, particularly for giving offenders a clean slate, could be conducted with officials who operate within the criminal justice system. This could be done to test whether the findings from the present studies generalize to that particular population. […] Finally, future research could address a limitation of the present studies, which is that the crime scenarios were not exceptionally high in their severity.” (pp. 513–514)

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.

The usual suspects: Unintuitive findings about the medium used in lineups

The usual suspects: Unintuitive findings about the medium used in lineups

Contrary to popular belief, live lineups are not superior to video and photo lineups; however, more research is needed for a clear policy recommendation. 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, 307–325

Eyewitness Identification: Live, Photo, and Video Lineups

Authors

Ryan J. Fitzgerald, University of Portsmouth
Heather L. Price, Thompson Rivers University
Tim Valentine, Goldsmiths, University of London

Abstract

The medium used to present lineup members for eyewitness identification varies according to the location of the criminal investigation. Although in some jurisdictions live lineups remain the default procedure, elsewhere this practice has been replaced with photo or video lineups. This divergence leads to two possibilities: Either some jurisdictions are not using the lineup medium that best facilitates accurate eyewitness identification or the lineup medium has no bearing on the accuracy of eyewitness identification. Photo and video lineups are the more practical options, but proponents of live lineups believe witnesses make better identification decisions when the lineup members are physically present. Here, the authors argue against this live superiority hypothesis. To be superior in practice, the benefits of live presentation would have to be substantial enough to overcome the inherent difficulties of organizing and administering a live lineup. The review of the literature suggests that even in experimental settings, where these difficulties can be minimized, it is not clear that live lineups are superior. The authors conclude that live lineups are rarely the best option in practice and encourage further research to establish which nonlive medium provides the best balance between probative value and practical utility.

Keywords

photo lineup, video lineup, live lineup, corporeal lineup, identity parade

Summary of the Research

“There seems to be a conflict— or at least a perceived conflict—between choosing the lineup medium that best facilitates accurate eyewitness identification and choosing the lineup medium that is most practical to construct and administer. Unlike live lineups, which require the lineup members (and other relevant parties) to be physically present for the identification procedure, photo and video lineups can be conveniently constructed by recording an image of the suspect and then choosing fillers from a repository of similarly recorded images. Live lineups are nevertheless preferred in some jurisdictions, which seems to be the consequence of a live superiority hypothesis: The belief that live presentation of lineup members yields the best eyewitness identification outcomes. There are theoretical grounds to predict that an eyewitness would fare best at a live lineup, where the lineup members are observed in their entirety and can even be seen walking or talking. Compare this to a photo lineup, normally composed of static mugshots, and the notion of live superiority seems all the more plausible. Even video lineups, as conventionally practiced, only show the lineup members from the shoulders up, neutrally posed, turning from side to side. To make the right decision, a witness might need access to cues available only at a live lineup. Nevertheless, in spite of its appeal to intuition, we have reservations about the notion of live superiority.” (pp. 307–308)

“We are confident that the live superiority hypothesis exists, but doubtful that it is true. Our review of five countries shows that all either once had or still have policies suggestive of live superiority. But our review of the research literature reveals that empirical tests of the hypothesis are scarce. And from the small corpus of experiments available to review, we find no strong indication that live presentation improves lineup performance. What we do find, however, are numerous factors that could compromise the reliability of eyewitness identification from live lineups.” (p. 308)

England and Wales: “In recent years, video lineups have become the preferred procedure in England and Wales. Police forces now have access to continually growing databases of videos depicting people who have volunteered to be recorded as fillers. […] Current guidelines specify that a suspect should normally appear in a video lineup, but a live lineup may be administered if a video lineup would be impractical. Although photographs may be presented at the detection phase, this is not advised at the evidentiary phase if the suspect is available for a video or live lineup.” (p. 308)

United States: “In the United States, eyewitness identification policies have been conspicuously neutral on the lineup medium. American guidelines typically include separate provisions for live and photo lineups, with no hint at a preference between the two. […] In a nationally representative survey of U.S. police agencies, 94% reported use of photo lineups and only 21% reported use of live lineups. […] At the national level, photo lineups are likely to remain the predominant medium. […] As long as photo lineups continue to be admissible in U.S. courts, it seems only a matter of time before all police agencies in the country discontinue the use of live lineups and rid themselves of the hassle of finding fillers to physically attend the identification procedure.” (pp. 308–309)

Canada: “Photo identification has become the most widely used lineup method in Canada. Surveys show that Canadian police agencies from across the country all use photo lineups, a practice enabled by the admissibility of photo lineup evidence in Canadian courts. […] To our knowledge, video lineups have not been considered for use in Canada.” (p. 309)

Australia: “Australia is unique in that live lineups are preferred in policy, but photo lineups are common in practice. The Evidence Act, 1995 states that lineups should be presented live, provided that (a) the suspect is in police custody at the time of the identification procedure and (b) the suspect does not waive their right to participate in a live lineup. […] The Act makes no reference to video lineups but advises that photo lineups should be inadmissible unless a suspect is unwilling to participate in a live lineup, the suspect’s appearance has changed since the offense, or it would not be “reasonable” to hold a live lineup. To assess whether it would be reasonable, the Act permits consideration of the availability of fillers, the severity of the offense, and the importance of the identification to the case. These contingencies may partly explain the divergence between policy and practice in Australia. Another factor is that suspects are explicitly instructed that they can refuse a live lineup and request a photo lineup instead.” (p. 309)

South Africa: “Although photo lineup evidence has been admitted in South African courts, live lineups remain the common practice. […] The argument is not that photo lineup evidence should be excluded in all circumstances, but rather that live lineups are the better option and that evidence from photo lineups, if presented at trial, should be treated with caution and skepticism.” (p. 310)

Experimental research, Live Versus Photo/Video: “Live lineups are a rarity in eyewitness dentification experiments. Much like the trend toward nonlive procedures in criminal cases, eyewitness scientists have relied almost exclusively on photo lineups (though video lineups are becoming increasingly common, particularly in U.K. research). The paucity of experimental research presents a challenge for the live superiority hypothesis; even if every experimental result supported it, the evidence would not be compelling. […] The experimental literature lends no empirical support for the live superiority hypothesis. If anything, the data converge on the conclusion that witnesses are less likely to identify any of the lineup members if they are observed in person than if they are viewed with videos or photos. Keep in mind, however, that the small number of empirical comparisons involving live lineups limits what can be inferred from this literature.” (pp. 310, 313)

Experimental research, Photo Versus Video: “In our review of empirical comparisons between photo and video lineups, we found some indicators of a benefit for video lineups, but such experiments were exceptions rather than the rule. Further, none of the experiments favoring video lineups had the sample size needed for confidence in the findings. […] In sum, the empirical literature provides no compelling evidence in favor of either photo or video lineups.” (p. 316)

“We can draw three main conclusions from this review. First, international practices and preferences regarding the identification medium are anything but uniform. […] Second, based on the current state of knowledge, the live superiority hypothesis at present is merely a belief—not a fact. The experimental literature provides no clear direction on which medium, if any, is inherently better than the others. Ignoring the obvious practical constraints of organizing a live lineup, we considered whether live identification tests would be superior to nonlive identification tests if all external factors could be neutralized. In spite of our efforts to be as charitable as possible to the live superiority hypothesis, we found little reason to support it. The empirical evidence is inconclusive, and most of the theoretical mechanisms that could be considered consistent with live lineup superiority, such as availability of body and motion cues, could be incorporated into modifications of current video lineup practices. […] Third, a policy preference for live lineups is untenable, due to (a) the lack of empirical support for the live superiority hypothesis; (b) the difficulties of administering a fair live lineup; and (c) the inherent practical advantages of nonlive procedures. Photo and video lineups are more practical, fairer, and seem to be no less reliable than live lineups. Live lineups are hard to organize and difficult to control. The inability to recruit suitable fillers or to prevent any of the lineup players from emitting unwanted cues could easily compromise the fairness of a live lineup. And the proposed safeguards that have been associated with live lineups (right to observe, rogues’ gallery, and transference of familiarity) do not hold up to scrutiny. Contrary to the live superiority hypothesis, we identified several real-world confounds associated with live lineups that could reduce their reliability.” (pp. 320–321)

Translating Research into Practice

“In the absence of clear empirical guidance on which medium best facilitates eyewitness identification, police might choose to adopt the most practical medium that the courts in their jurisdiction will admit as evidence. Live lineups, which require witnesses, suspects, fillers, legal representatives, and police personnel to all appear in the same place at the same time, are unquestionably the least practical option.” (p. 316)

“From an investigative perspective, the appeal of photo and video lineups requires no stretch of the imagination. The ability to create and electronically store vast databases of photos and videos transforms the filler recruitment process from hunting for physical people who resemble the suspect (or the culprit’s description) to the mere act of browsing through a computer database filled with images. Once an image of the suspect has been obtained, the primary reason for live lineup cancellations—suspects not showing up—is no longer a concern. Witnesses are also more likely to appear if they do not have to be in the same proximity as the perpetrator. Photo or video lineups can also be presented with a computer, which could be used to deliver clear and consistent instructions, record the witness decision automatically, and visually represent response options that might not be obvious to the witness, such as “not here” or “not sure”” (p. 316)

“In spite of their practicality, the use of nonlive lineups in some jurisdictions runs the risk that the evidence will be given less weight (or even excluded) at trial. Photo lineups are widely used in Canada and the United States because they are practical and judges in these jurisdictions have a history of accepting them as legitimate evidence. But in other jurisdictions, judges consider photo identification to be inferior to live identification. This preference for live lineups has been primarily supported by two overarching claims: (a) identifications from live lineups are more reliable than from nonlive lineups, and (b) live lineups are fairer than nonlive lineups.” (p. 316)

“There are intuitive reasons to believe that, all else equal, live presentation would be the best method to facilitate an accurate eyewitness identification. […] If a crime has been witnessed live, benefits may come from an identification procedure that is also administered live. When the cognitive processes at encoding and retrieval overlap, transfer appropriate processing is theorized to occur. From this perspective, the processes engaged while witnessing a live event would be more likely to be reengaged at a live lineup than at a photo or video lineup. Matching the test medium with the event medium would also conform to the encoding specificity principle, which emphasizes the correspondence between the encoding and retrieval contexts. […] Identification success should be enhanced by the availability of encoded details at test. The availability of dynamic cues, in particular, may increase through live presentation of the lineup members. […] Another potential benefit of live lineups is that the lineup members’ bodies are normally in view, whereas in photo and video lineups usually only the head and shoulders are visible. […] Although the points discussed in this section may provide ammunition for believers in the live superiority hypothesis, we nevertheless remain skeptical of its application to lineups in practice. In addition to the absence of experimental data in support of live lineup superiority, there have been few experimental tests even on the broader issue of live identification superiority. […] Even when issues of fairness or practicality are not considered, the live superiority hypothesis has few legs to stand on. And when these factors are taken into account, the case for live lineups over other procedures falls apart.” (p. 317)

“Live lineups have been frequently cited as the fairest identification procedure. […] We believe that photo and video lineups are at minimum as fair as live lineups (and more likely, fairer). […] Live lineups do not ensure the critical aspects of the testing conditions will be observed. The only meaningful difference between lineup medium types from a right to observe standpoint is that the suspect is present at a live lineup. However, witnesses are commonly permitted to make the identification from behind a one-way screen. And even if the suspect is able to observe the identification, it would be naïve to expect a nonexpert to know about and detect the myriad of factors that could compromise the procedure. From our perspective, the right to observe would be best served by video-recording the lineup procedure whatever the medium—and preserving the conduct of the identification proceeding […] The rogues’ gallery effect is another idea that may have been a legitimate concern in the past, but seems no longer relevant in the digital age. Rogues gallery presumes that if witnesses know that police possess a photograph of the suspect, they will infer that the suspect has a criminal record. But photographs can now be obtained in a variety of ways. […] the rogues’ gallery can be avoided with easily implemented safeguards and the use of photographs in itself need not imply that the lineup members have criminal pasts.” (p. 318)

“The last of the three arguments rests on the assumption that live identifications are inherently superior to photo identifications. Transference of familiarity, which occurs when the memory of a person identified at a photo identification procedure replaces the memory of the criminal observed at the witnessed event, is a legitimate concern associated with repeated identification procedures. Not much is gained from a live lineup if a photo identification has already been conducted because at the second lineup it is never clear whether the suspect was remembered from the witnessed event or from the first lineup. If live identifications were more reliable than photo identifications, there could be an argument against administering a photo lineup because it would taint the witness’s memory and ruin the opportunity to obtain evidence via the more reliable, live procedure. Here lies the problem: the reliability of live over photo identification has not been established. Without clear evidence of live superiority, transference of familiarity has no relevance to the question of whether photo lineups are a suitable alternative to live lineups.” (pp. 318–319)

“A central concern about the fairness of live lineups is that suspects are likely to emit cues and, contrary to nonlive procedures, there is no opportunity for a second take to prevent the witness from observing these cues. […] With video and photo lineups, lineup administrators have greater control over the behaviors of suspects and fillers. If a filler or suspect emits a cue during a live lineup, there are limitations in what can be done to minimize the cue’s influence on the identification decision. […] The risk of the administrator leaking cues to the eyewitness may also be heighted at a live lineup because simple methods of reducing administrator influence like computer-based administration are more difficult than with photo or video lineups. […] Computer administration can reduce the possibility of influence even further by minimizing the social interaction between the administrator and witness or, in the case of self-administration, eliminating interaction altogether while the images are in view. […] The suitability of fillers is central to the fairness of a lineup. Although common practice in the field is to select fillers who resemble the suspect in physical appearance, researchers have proposed that a fair lineup comprises members who all match the witness description of the culprit. […] Constructing a lineup with implausible fillers has the effect of increasing suspect identifications, regardless of whether the suspect is guilty or innocent. Whether trying to match fillers to the witness description or to the suspect’s appearance, the objective would be more easily met by selecting images from an electronic database than by recruiting locally for a live procedure.” (p. 319)

“Previously we considered whether live identifications might be more reliable than video or photo identifications, all other factors held constant. It is important to be mindful, however, that external factors are not held constant in the field and that in practice the lineup medium is inherently confounded. […] First, live lineups are likely to increase witness stress and anxiety. Victims of violent offenses probably do not ever want to see the perpetrator again, but this is precisely what happens at a live lineup. Even witnesses who were not victimized may find live lineups stressful. […] Although witnesses may feel threatened by the prospect of identifying the perpetrator irrespective of the medium, the thought of a live procedure seems to amplify such concerns. […] The second factor, which also has clear implications for memory performance, is cue consistency. Photo and video images provide a record of the suspect at the time of arrest, which may help to increase the consistency between the cues encoded at the event and those available at retrieval. Suspects who are released from custody have the opportunity to make an intentional appearance change prior to appearing at a live lineup. […] Third, live lineups are particularly susceptible to long delays. […] Archival studies suggest that the majority of nonlive lineups occur within a month of the event, but this rarely happens for live lineups. […] Numerous characteristics of live lineups make them difficult to organize quickly: fillers must be recruited to appear in person; a time when all the relevant players are available must be scheduled; and everyone must show up. Timely identification procedures are desirable not only for the efficiency of the justice system, but also because reliability is increased if witnesses are tested when their memory of the perpetrator is fresh.” (p. 320)

“We recommend against live lineups, but believe more evidence is needed before a preference between photo and video lineups can be established. Photo lineups are the most practical option, but the availability of dynamic information in video lineups may improve identification outcomes. More research is needed to determine whether video lineups lead to outcome benefits that justify their practical costs.” (p. 321)

Other Interesting Tidbits for Researchers and Clinicians

“One avenue for future research would be to modify existing video techniques to maximize their potential benefits. […] There have long been calls to test video lineups that show the entire body and provide additional cues of gait or voice. […] Virtual or augmented reality may be another technological advance with a potential application for lineups. Although the realism of immersive environments could be problematic for victims of traumatic events, some witnesses could benefit from the increased viewing angles and physical context reinstatement that would be possible. Another consideration is whether ethnicity plays any role in lineup medium effects. For example, image quality and the availability of dynamic cues associated with a medium may be more critical when the witness and lineup members have different ethnic backgrounds.” (p. 321)

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.