Don’t miss the response from Christina Marinakis at the end of the article.

The right to a trial by a jury of your peers is an integral part of the United States judicial system. The burden of determining the guilt or innocence of a defendant falls squarely on the shoulders of the jury, average individuals whose only training consists of instructions provided by the judge at the time of the trial. As such, a considerable amount of research has been devoted to understanding how jurors make decisions in the courtroom (Devine, 2012). However, much of the research performed relies on the standard method of having participants read or listen to a trial transcript or trial summary and provide a verdict. While this method is useful for determining how participants will react to a specific piece of evidence or an entire trial, it has limited use when examining the underlying thought processes of the potential juror. It is also limited in its usefulness in incorporating the multitude of layers of evidence that make up a trial. The current research proposes a new method designed to address these specific problems. To illustrate the new method, this research examines the application of current theoretical models to a rather unexamined area: Excuse Defenses.

Excuse Defenses

In typical criminal trials, defendants begin with a plea of either guilty or not guilty. If they plead not guilty, they are essentially claiming that they did not commit the crime; that the police actually arrested the wrong person (Mueller & Kirkpatrick, 1995). However, a second type of trial exists in which the defendant pleads neither guilty nor not guilty, but rather offers up an excuse; typically referred to as an excuse defense. The goal of the current research is to examine the theory behind how jurors make decisions regarding excuse defenses.

These so-called excuse defenses are a bit of a conundrum. In one sense, the defendant is saying “Yes, I committed the crime”, which is, in essence, an admission of guilt. However, at the same time they are also saying, “But I’m not guilty because ….”. An excuse defense is formally defined as “a defense in which a person states that his or her mental state was so impaired that he or she lacked the capacity to form sufficient intent to be held criminally responsible” (Siegal, 2009, p. 149). So, with regard to an excuse defense, a juror is not trying to determine whether the defendant committed the crime, but rather if the defendant intended to commit the crime. Although there are a variety of excuse defenses, they are all based on the idea that the defendant’s mental capacity to form intent was impaired for some reason. The question then becomes: how does a jury member determine whether the defendant had all the mental tools necessary to form intent? In an attempt to answer this question, two separate theoretical areas were examined in relation to excuse defenses: the traditional jury decision-making Story Model and Attribution Theory.

Jury Decision-making: Story Model

Jurors bring with them different variations of world knowledge and use this knowledge to help interpret the evidence, and these variations result in different stories being formed by each juror, resulting in potentially different verdicts (Hastie & Pennington, 2000). According to the story model, a juror makes a decision regarding the guilt or innocence of a defendant by first constructing stories of how the event may have occurred and then evaluating those stories utilizing four standards or “certainty principles”: coverage, coherence, uniqueness, and goodness-of-fit.

Coverage refers to whether or not all the information provided by the evidence can be integrated into the story. The more evidence is integrated into the story, the greater the coverage; however, if critical pieces of evidence are not integrated well, the perceived coverage will decrease (Pennington & Hastie, 1993). Coherence meanwhile is governed by how complete, consistent, and plausible the story is. Uniqueness refers to whether or not the story is the only coherent story provided. A story at first may seem to have high coherence, but if a second opposing story is also able to explain the evidence just as well, the initial story will suffer from a lack of uniqueness. Finally, the last certainty principle, Goodness-of-Fit, does not actually come into play until the jurors are trying to choose between the possible verdicts. The jury will take the story they chose based on the previous three certainty principles, and attempt to compare it to the criteria for each of the verdicts. The criteria that their story fits best will be the verdict they choose. However, if the story does not fit any of the set criteria, the juror will pick the default verdict. Given the typical standard of innocent until proven guilty, the default verdict is not guilty, therefore if the stories do not fit any of the criteria for a guilty verdict, the juror will vote not guilty.

Although the Story Model would seem to be a good starting point for understanding juror decision-making in excuse defense cases, it might not fully explain how jurors make such decisions. In a typical case, jurors are only required to determine whether or not the defendant is the individual who committed a specific crime. In such a case, it makes both intuitive and empirical sense that jurors would form stories to aid in their decision-making process. However, in a case where an excuse defense is utilized, the jurors are attempting to determine whether the defendant should be held responsible for his/her actions. Although the Story Model framework would likely include an evaluation of the motives and internal states of the defendant, the Story Model does not explicitly focus on the underlying causes for those motives and states.

Jury Decision-making: Attribution Theory

There have been a number of approaches regarding Attribution Theory; however, the current research focuses on the covariation theory (Kelley, 1971), due to the similarities between aspects of that theory and the duties of jurors in an excuse defense case. According to Kelley, to infer causality, an individual focuses on the covariation, or relatedness between potential causes and effects, using three forms of information, consistency, distinctiveness, and consensus, to help them determine whether a behavior was caused by an individuals’ disposition or some outside force beyond their control.

Consistency information refers to the idea that the actor is likely to perform the same action toward the same target every time (Kelley, 1971). From a legal standpoint, the defendant will commit the same crime toward the same type of victim each time. If the defendant had committed the same crime in the past, it is unlikely that they were unable to form intent every time and the jury is likely to find in favor of the prosecution. This is especially true in the context of entrapment where consistency could be a strong indicator of predisposition.

Distinctiveness refers to how normal or unusual a behavior is in a given circumstance. Distinctiveness could have either a positive or negative effect on the defense’s case. Consider a trial in which the defendant is pleading insanity to a charge of assault. If the defendant has schizophrenia and a history of going into uncontrollable rage and attacking others because of that disorder, the behavior is normal, not distinctive and the defense will likely succeed. However, consider a defendant attempting to plead entrapment to a drug trafficking charge. The defendant has never been arrested for drug trafficking, but has been arrested for a number of other crimes, indicating law-breaking behavior is normal for the defendant. In this case, the defense is unlikely to be successful.

Finally, consensus information has potentially the most impact on excuse defenses, especially the entrapment defense, because it alludes to the fact that individuals other than the defendant would have acted in the same way to toward the same object or situation (Kelley, 1971). In other words, it compares the defendant’s behavior to how most people would behave under similar circumstances. This is a direct parallel to the entrapment defense’s concept that the police had acted in such a way that it would have convinced the average law abiding citizen, rather than just the average criminal. However, given that most jury members are “average law abiding citizens” (or at least are supposed to be), they are likely to attempt to compare the defendant to themselves. Furthermore, given the high likelihood of a self-serving bias (Heider, 1958) on the part of the juror, they are unlikely to believe they would have acted in such a criminal fashion.

As can be seen, there are several ways in which attribution processes could be applied; however, attribution processes are also insufficient to solely explain jury decision-making in excuse defenses. First, although attribution can work to explain the final parts of how jurors determine a defendant’s intentions, it is unable to explain the process or how the jurors organize all the evidence to aid them in their attributions. The way the legal system is organized can create a particularly difficult scenario for jurors to make a coherent attribution. Two competing sides produce and adduce conflicting evidence. Furthermore, jurors must make sense of all sorts of evidence received from a variety of sources.

The Current Research

Although some research has been done on excuse defenses, the focus has been almost exclusively on verdicts and opinions rather than on exploring the mental processes that lead to juror decisions. The goal of the current research is to use a novel method to empirically examine how attribution processes and the story model may relate to jury decision-making for different excuse defenses. To this end, two types of excuse defenses were chosen: Entrapment and Brain Damage.

Entrapment

In an entrapment defense, the defendant’s ability to form intent is impaired due to the actions of law enforcement (Siegal, 2009), for example, in a sting operation. The courts have established strict guidelines on the use of undercover sting operations (e.g. Jacobson v. United States, 1992). When law enforcement oversteps these guidelines, the possibility of an entrapment defense exists (Mitchell, Wolak, & Finkelhor, 2005). Of all the excuse defenses, entrapment places the entire burden of determining intent on the juror as there is no expert testimony on the subject.

Brain Damage

The brain damage excuse defense is similar to an insanity defense. In an insanity defense, a defendant makes the claim that at the time the crime was committed, they were unable to understand the wrongfulness of their actions due to mental illness. A brain damage excuse simply shifts the cause to a physical injury. While the expert witness plays an important part in jurors’ decision-making regarding insanity (Rendell, Huss, & Jensen, 2010), verdicts are also highly influenced by the ambiguity of the evidence and jurors’ previous viewpoints on mental illness (Tezza, 1996; Eno Louden & Skeem, 2007). Brain damage was selected instead of other versions of insanity, such as schizophrenia, to avoid the potential stigma that is often associated with mental illnesses (Byrne, 2000).

These defenses were chosen for two reasons. First, they have both recently received a fair amount of media coverage as utilized defenses in actual cases. Second, they actually represent two separate areas for the origin of the excuse. When an excuse defense is being utilized, the defendant is claiming that something interfered with his or her ability to form intent. When an entrapment defense is utilized, the source of the interference is the actions of the undercover agent, which is clearly something external. As a result, it is not hard to see why a juror would be making an external situational attribution if they were to accept the excuse defense. With a brain damage defense on the other hand, the claim is that the actions of the individual are due to some internal disposition or cause, but the normal functioning of these internal mechanisms has been impaired such that they do not reflect the true nature of the individual.

The novel method utilized in our research was a card selection task based on Payne’s (1976) method designed to examine consumer decision heuristics. In his study, Payne wanted to determine the pathways individuals go through when making a decision. To accomplish this, the experimenter presented participants with “information boards” concerning single bedroom apartments that the individual had to choose between. On the board were a set of labeled envelopes from which the participant pulled a card that provided information on different things the individual would be interested in, for example price or noise level. The participant could choose the information in any order and could choose to make a decision at any time. This revealed the relative importance of each piece of information.

In our research, Payne’s method was modified for a jury decision-making task in which participants were given an abridged trial summary and offered the choice of which evidence they wished to see. It was expected that participants would choose what they believe to be the most important evidence to making a decision first. Given that the participants were attempting to determine whether the defendant was responsible for his actions, it was predicted that participants would lend higher weight to evidence related to covariation information. It was also predicted that given the differences in the two defenses a different pattern of importance would arise for the evidence depending on the type of defense.

The experiment consisted of 101 university student participants recruited from a participant pool at a large state university in the south central part of the United States. Only three participants claimed to have actually served on a jury before.

Participants were presented with two trial scenarios: one involving an Entrapment defense and one involving a Brain Damage defense. In the Entrapment scenario, the defendant claimed that his actions were caused by the undercover officer. In the Brain Damage scenario, the defendant claimed that a previously incurred brain injury made him prone to impulse control problems.

In each case, there was a likely verdict, the verdict all the evidence available was likely to push the participant to make. In other words, the evidence was stacked (based on previous research) in favor of either the prosecution or the defense. For example, in the trial that favors the prosecution, the prosecution’s evidence was more coherent and plausible, while the defense’s was not. This was necessary to examine the relative importance of each of the types of trial evidence with regard to making a guilty verdict or a not guilty verdict. It was possible that the two verdicts may have different information that was important to the mock jurors.

Different types of evidence could have been chosen by the participant. Pure Facts cards consisted of items that were completely factual and relevant to the trial, however do not appear to have a direct theoretical underpinning, for example, the fingerprints of the defendant being found on the bicycle. Coherence cards consisted of items that were directly or indirectly related to the Coherence facet of Pennington and Hastie’s (1986) Story Model. For example, the defendant claimed that he did not need a bicycle, despite the fact that he is a bicycle delivery boy and his bicycle was in disrepair. The Attribution cards were directly related to aspects of Kelley’s (1971) model, specifically the two components of Consensus and Distinctiveness. The Opening Statement cards were solely the opening statements made by either the Defense Attorney or the Prosecuting Attorney. While not evidence per se, it was thought it would be interesting to examine what sort of emphasis jurors would place on the opening statements. Finally, the Foil cards were information related to the trial, but that should be entirely irrelevant, for example, the name of the neighborhood where the alleged crime took place.

Participants were directed toward a large desk upon which a number of envelopes were placed. On the outside of each of the envelopes was a question that involved different pieces of evidence or aspects of the trial. Inside each envelope was a card answering the question written on the outside. The envelopes were organized in a random order prior to the participant’s entry and in such a way as to all be clearly visible. The research assistant then handed an abridged trial summary to the participant, which only included the defendant’s name, what he was accused of, and a very basic outline of the crime.

In the summary, a defendant was accused of purchasing stolen property (a stolen bicycle) and attempted to utilize one of two types excuse defenses: Entrapment or Brain Damage. In the Entrapment defense trial, the defendant purchased the bicycle from an undercover police officer during a sting operation, while in the Brain Damage defense trial he purchased it from a thief who was already under surveillance. In both cases, the defense purported that the defendant lacked the ability to form intent, a requirement to be found guilty. In the Entrapment defense condition, the defense lawyer asserted that his client’s ability to form intent was impaired by the actions of the police officer. Meanwhile, in the Brain Damage condition, the defense lawyer claimed that the defendant’s ability to form intent was impaired by brain damage he had previously incurred earlier in his life.

The research assistant then read the following instructions out loud to the participant while they followed along on paper:

“In this experiment you will be examining evidence from an actual criminal court trial. The trial evidence has been reviewed by a panel of legal experts who have come to a consensus as to the correct verdict. You have been handed an outline of a trial and in front of you is a variety of possible evidence that could be presented in that trial. Your job is to play the part of a juror who must decide the guilt or innocence of the defendant. To accomplish this, you will choose which evidence you wish to examine one piece at a time from the envelopes in front of you. You have as long as you want and may choose any piece of evidence in any order; however, you are encouraged to think about your choices thoroughly before choosing. The goal is to come to the correct verdict in as few flips as possible.”

Participants were required to examine the cards until they felt that they could make a decision. Each envelope chosen was recorded.

Discussion

Based on the assumption that participants would choose the evidence they believed most important first, it was hypothesized that evidence related to the Story Model (Pennington & Hastie (1986) and the covariation approach to attribution (Kelley, 1971) would be selected more often and earlier than other pieces of evidence. Substantial evidence was found in favor of this hypothesis. More importantly, the pattern exhibited for each type of defense differed significantly.

Both the average number of times each type of evidence was selected as well as the average ranking for each type of evidence were examined. The patterns were highly similar.

PetersGraph1

 

The cards most often selected first were the opening statements for both sides, indicating a preference to know each side’s story before looking at the evidence. Following the selection of the opening statement cards, the type of evidence selected differed significantly depending on the type of defense. For the Entrapment Defense, Consensus, Distinctiveness, and Coherence evidence were all ranked significantly more important than purely Factual evidence. Meanwhile, for the Brain Damage Defense, Distinctiveness was key, outstripping all other types of evidence except Coherence.

PetersGraph2

This ranking makes sense in that while all three types of evidence are important when attempting to determine whether Entrapment occurred, only evidence that seems to provide proof of the truth of the defendant’s disability should be important in a Brain Damage Defense. This includes evidence surrounding the sequence of events at the crime (Coherence), as well as evidence for how the defendant acts in other circumstances (Distinctiveness). Meanwhile, Consensus only seemed to matter for participants when they were presented with the Entrapment Defense. This also makes sense for Entrapment, because whether others fall for the same sting operation could be an indicator that the police were out of line and tricked innocent individuals. However, for Brain Damage what does it matter to a juror if others are committing the same criminal act? All that matters is what this specific individual did, since he is claiming something specifically wrong with himself caused him to act that way.

Practical Implications

The above research has two implications for practical application by trial lawyers. First, the experiment itself has practical implications for litigators involved in a trial where an excuse defense is utilized. In a trial involving an entrapment defense, focusing on evidence that would indicate whether or not other individuals would have acted in the same way is key for both the prosecution and the defense. Meanwhile, the previous actions of the defendant are important in both entrapment and brain damage defense cases.

Secondly, the new card selection method has implications beyond just the theoretical. The same method could be utilized to assist trial lawyers in determining which evidence they should spend more time on, or which of their adversaries’ evidence they should focus more heavily on discounting. It could also help the lawyers when planning their cases. Based on the serial positioning effect (Ebbinghaus, 1913), it is important to place the most important evidence at the beginning and end. The current method could help to clarify which evidence should be placed in these prime positions and which evidence could be sacrificed to the obscurity of the middle.

In conclusion, further support was found for the application of the Story Model and Attribution theories to jury decision-making with regard to excuse defenses; however, a great deal more research is necessary. How jurors make decisions in a trial where a defendant utilizes an excuse defense promises to be a fruitful and important area of future research. Furthermore, the newly proposed method has strong possibilities both as a mechanism for testing theories of jury decision-making, as well as practical uses for trial lawyers.

 

Christopher S. Peters, PhD ([email protected]<mailto:[email protected]>) is an Assistant Professor at Arkansas State University in Jonesboro, Arkansas. His research interests include jury decision making, excuse defenses, and protecting vulnerable witnesses.

James Michael Lampinen, PhD ([email protected]<mailto:[email protected]>) is a Professor at the University of Arkansas in Fayetteville, Arkansas. His research interests include person prospective memory, eyewitness identification, and finding missing persons. You can review Dr. Lampinen’s research and contact information on his webpage at http://experts.uark.edu/details.php?id=990

References

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Heath, W. P., Stone, J., Darley, J. M., & Grannemann, B. D. (2003). Yes, I did it, but don’t blame me: Perceptions of excuse defenses. The Journal of Psychiatry and Law, 31, 187-226.

Heider, F. (1958). The Psychology of Interpersonal Relations. New York: Wiley.

Jacobson v. United States, 503 U.S. 540 (1992).

Kelley, H. H. (1971). Attribution in social interaction. In E. E. Jones, D. E. Kanouse, H. H. Kelley, R. E. Nisbett, S. Valins, & B. Weiner (Eds.), Attribution: Perceiving the causes of behavior (pp. 1-26). Morristown, NJ: General Learning Press.

Lampinen, J. M., Odegard, T. N., & Leding, J. K., (2004). Diachronic disunity. In D. R. Beike, J. M. Lampinen, & D. A. Behrend (Eds.), The self and memory (pp. 227-254). New York, NY: Psychology Press.

Lord, K. (1998). Entrapment and due process: Moving toward a dual system of defenses. Florida State University Law Review, 25, 463-517.

McArthur, L. A. (1972). The how and what of why: Some determinants and consequences of causal attribution. Journal of Personality and Social Psychology, 22, 171-193.

Miceli, T. (2007). Criminal solicitation, entrapment, and the enforcement of law. International Review of Law and Economics, 27, 258-268.

Mitchell, K. J., Wolak, J., & Finkelhor, D. (2005). Police posing as juveniles online to catch sex offenders: Is it working? Sexual Abuse: A Journal of Research and Treatment, 17, 241–267.

Mueller, C. B., & Kirkpatrick, L. C. (1995). Modern evidence: Doctrine and practice. Boston: Little, Brown.

Payne, J. W. (1976). Task complexity and contingent processing in decision making. Organizational Behavior and Human Performance, 16, 366-387.

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

Pennington, N., & Hastie, R. (1993). The story model for juror decision-making. In R. Hastie (Ed.), Inside the juror: The psychology of juror decision-making (pp. 192-221). Cambridge, England: Cambridge University Press.

Peters, C. S., Lampinen, J. M., & Malesky, L. A., (2013). A trap for the unwary: Juror decision-making in cases involving the entrapment defense. Law and Human Behavior, 37, 45-53.

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Christina Marinakis, J.D., Psy.D. is a Senior Consultant with Litigation Insights. In addition to conducting pre-trial jury research, she specializes in drafting voir dire and juror questionnaires, frequently assisting counsel in court during jury selection. She has worked on a variety of civil and criminal matters in jurisdictions throughout the United States. www.litigationinsights.com

Christina Marinakis responds:

Dr. Peters and Dr. Lampinen propose an innovative approach for studying the process of jury decision-making that could be implemented in pre-trial jury research to gain further insight into the facts and evidence jurors deem most important. Traditionally, this information is gathered qualitatively, by asking mock jurors via open-ended questionnaires and during post-verdict moderated debriefings about the facts, evidence, and arguments that influenced their leaning or decision in the case. Information about important evidence can also be gleaned by observing jury deliberations and taking note of the topics or facts jurors discuss and appear to influence them the most. However, all of these traditional methods require interpretation from a consultant and involve some degree of subjectivity. They also require jurors to examine their thought processes retroactively, which could result in some answers being influenced by primacy and recency effects (i.e., jurors are more likely to recall facts presented at the beginning and end of a lawyer’s argument or a witness’s testimony). The card selection task suggested by the authors provides a method of contemporaneously identifying and quantifying the steps in jury decision-making. I agree with the authors that such an exercise could be helpful in situations where goals of the research include identifying topics to explore in deposition or formulating a presentation strategy for trial.

My biggest concern about the article, however, is its mischaracterization of the legal issues surrounding an excuse defense. While researchers and jury consultants aren’t expected to have the thorough understanding of criminal law that a law school graduate would possess, it is important to accurately depict the legal issues when the target audience members are attorneys. This is particularly true when an article begins with an extensive explanation of legal issues. Misstatements of the law can have the effect of detracting from your message and turning off audience members before they have the opportunity to consider the important implications of the social science findings.

Throughout their discussion, the authors repeatedly confuse “act” with “crime.” For instance, the authors begin their explanation of excuse defenses by stating that individuals who plead “not guilty” are claiming the police arrested the wrong person (i.e., they did not commit the act), while those who use an excuse defense plead neither “not guilty” nor “guilty” and essentially admit to committing the crime, but offer an excuse as to why they aren’t responsible. These misstatements of law will likely be distracting for readers with a legal background – the audience members whom you must convince to engage in this novel type of jury research.

In criminal law, all crimes involve two components: actus reas (the act) and mens rea (the mental state). To be found guilty of a crime, the jury must find that the defendant both committed the act and had criminal intent. Thus, what the authors label as a “typical criminal trial” (i.e. “It wasn’t me”) just means the defendant claims he did not commit the act. In an excuse defense, the defendant still pleads not guilty to the crime – even though he acknowledges committing the act – because he lacked the requisite criminal intent. Thus, the authors might connect better with a legal audience by distinguishing the act from the crime.

Later in the article, the authors note that “of all the excuse defenses,” the burden of determining intent lies squarely with the jury in entrapment cases and “there is no expert testimony on the subject.” In truth, the burden of determining intent always rests with the jury – even in cases where the defendant denies committing the act. Although expert testimony is expected in insanity and brain damage cases, in most states, experts are prohibited from making opinions on the “ultimate issue” – whether the defendant did or did not have the requisite mental state to form intent. Furthermore, expert testimony may also be presented in entrapment cases, typically from a Police Procedures Expert. Thus, the article would benefit from a much more limited discussion of law and an increased focus instead on the social sciences.

Despite these mischaracterizations of the law, the authors do a fine job explaining attribution theory and the story model. Indeed, it is especially important for the prosecution to construct a coherent, convergent, and unique story of the crime, given that it carries the burden of proof. Although defendants often offer a competing story, the defense can succeed merely by identifying that the government’s position lacks any of these elements. In practice, an attribution theory overlaps greatly with the story model, and may really just be two names for the same phenomena. That is, when constructing and evaluating a story that involves intentions, jurors will also consider consistency, consensus, and distinctiveness. The nuanced differences identified by the authors are notable and interesting, but for jury research purposes, largely irrelevant.

The greatest contribution of the article is in its practical implications and ability to quantify the importance of various types of evidence. Traditionally, information at mock trials and focus groups are presented by the attorneys or moderators in a pre-planned order. There could be great value in asking mock jurors to participate in a card selection task or similar research design, such as a focus group where jurors determine the direction of the lawyer’s presentations by asking questions and receiving information in the order of their choosing. However, the card selection task does not take into account the influence of deliberations on jury decision-making and cannot test the persuasiveness of testimony and argument as it actually would be presented at trial. Thus, this novel approach may be used to supplement – not replace – the traditional forms of jury research.