Forensic Psychology For Dummies (117 page)

Directed choices.
When lawyers offer a set of options, this approach can distort the jury’s perception of what’s at issue as well as putting witnesses in a position where they can seem unhelpful or awkward if they don’t choose one of the options. ‘Would you say the wounds caused death or were serious?’ is a question that requires strong conviction to answer by saying that the wounds were neither, and yet the jury has already been led to believe that, at the very least, they were serious.

Short questions.
The legal ritual often supports the use of short questions, especially those containing two sharply contrasting parts, such as, ‘Would you say this was a dangerous action or not?’ Such questions imply that a simple answer must exist to such a simple question. Expert witnesses may want to quibble around being given such a simplistic choice, but any attempt to develop a more subtle answer, for example along the lines of, ‘It all depends on what you mean by dangerous,’ can be seen as pedantic and unhelpful. Short questions therefore give the lawyer much more control over how the evidence is revealed to the court than may seem apparent at first sight. The lawyer can guide the direction in which the witness unfurls the facts without the jury necessarily being aware of what’s happening.

Casting doubt.
Because the law in criminal cases requires that the decision is beyond reasonable doubt, any suggestion of doubt can be used, especially by the defence, to raise questions in the minds of the jurors. The most prevalent way of doing this is to ask whether some alternative is possible such as, ‘Is it possible these injuries occurred when paramedics examined the body?’ Such a question can force experts or other witnesses into making categorical assertions or seeming wishy-washy if they admit to some doubt. If doubt exists, further questioning can give weight by asking whether this isn’t a ‘reasonable’ assumption.

Facts or opinions?
Courts allow only expert witnesses to give opinions (as I discuss in Chapter 11); other witnesses are supposed to limit themselves to the facts. So if a lawyer can imply a witness is offering an opinion and not facts, this can persuade the jury not to take what the witness says seriously. The problem is that no simple division exists between facts and opinion when people are drawing on their memories. ‘Can you be sure the car was red?’ leads to the possibility that what the witness is saying isn’t a hard and fast fact, but an opinion of what’s likely to be the case.

Exchanges.
The question-and-answer sequence is the essence of giving evidence in court. Although this approach can appear to be a cumbersome way of informing people of the facts as the witness sees them, it gives the lawyer the possibility of setting up a rhythm of questions and answers that can corner unsuspecting witnesses into revealing weaknesses in their evidence.

Here’s an example from my own experience of giving evidence to challenge the opinion of another expert, whom I call Reverend Q:

Barrister: Is it true Professor Canter that you invited Reverend Q to give a presentation at a conference you organised?

Me: Yes.

Barrister: Is it also the case that you give lectures on Reverend Q’s work on your postgraduate course?

Me: Yes.

Barrister: Yet you’re now telling the court that his work is of no value.

The barrister was clearly expecting me to be flustered by this sequence of events and to give some less than convincing answer. However, I saw his trap coming and answered:

Me: Yes. I think it’s important for my students to see poor science so that they can distinguish it from work to be trusted!

Getting the Desired Jury: How Psychologists Can Help

One area in which forensic psychology expertise can directly help is in giving guidance on how to select a jury, as I describe in this section. The use of juries in courts is to ensure that anyone accused of a crime is judged by people similar to him from his community, the assumption being that they understand his way of life and are able to make sense of his actions. The belief is that members of a jury will make honest, objective judgements of the facts presented to them.

Various legal systems, however, accept that if a juror holds prejudices that are relevant to crucial issues in the case, that person can’t make unbiased decisions on that case. For example, if a juror thought that female doctors can’t ever be trusted, they should not be allowed to sit on a jury in any case involving a female doctor. Therefore, legal systems allow challenges to the presence of individual members of the jury on the grounds that they’d be biased. This bias can be the simple matter of the juror knowing the defendant.

In the UK, requests by the defence or prosecution to challenge any member of the jury are very rare and have to be based on clear legal issues, but in the US the possibility of challenging the presence of one or more people on the jury is accepted in many states. This objection may even be allowed without the need for any explicit or distinctly legal reason. This can become a major aspect of the court procedure in the US, requiring hundreds of jurors being asked to attend court for possible jury service (as happened in the trial of O.J. Simpson for murder).

Psychologists can offer some general principles on jury selection, such as older people being more willing to convict someone. Another suggestion is that people who have had previous experience of a trial are more likely to support a conviction. However, no strong evidence exists for any simple relationship between the characteristics of people and the decisions they’ll make after they’ve heard the evidence and discussed it with other jury members. Even unexpected findings (for one such phenomenon, check out the later sidebar ‘The black sheep effect’) can confound any simple assumptions about a jury.