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COGNITIVE PROCESSES UNDERLYING
PRETRIAL PUBLlClTY EFFECTS
Kelly Frame B.Sc., Dalhousie University, 1992 M.Sc., Dalhousie University, 1994
Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy
in the Department of Psychology
O Kelly Frame, 1999 SIMON FRASER UNIVERSITY September, 1999
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ABSTRACT
Media attention to an accused's case can threaten a defendant's right to a fair trial.
Many researchers have documented the pretrial publicity effect, a bias that is obsewed
in subjects' verdict decisions after they have been exposed to pretrial publicity (e.g.,
Ogloff & Vidmar, 1994). Although previous research has documented the kinds of variables affecting the bias, none have explored directly the cognitive processes
underlying the pretrial publicity effect. Through the application of theories from social cognition, this thesis explored a candidate cognitive process contributing to the formation of the bias. It was hypothesised that pretrial publicity initiates juror impressions of a defendant's guilt that subsequently affect their interpretation of the trial evidence. A dependent rneasure was designed to capture subjects' interpretations of the trial evidence.
In the fint experiment, positive pretrial publicity, but not negative pretrial publicity affected subjects' interpretations of the trial evidence, probability ratings of defendant guilt. and verdicts. In the second experiment. subjects were exposed to negative publicity about the defendant prior to reading the transcript of his trial. They were then instructed to either form an impression of the defendant or to check the trial transcript for comprehension purposes. Subjects who received impression formation instructions exhibited the pretrial publicity effect as measured by their interpretations of the trial evidence, probahility ratings of defendant guilt, and verdict decisions. As well, specific data patterns indicating subjects in the impression formation condition had formed their Pretrial Publicity iv
judgements on-line were observed. Subjects in the comprehension group were not affected by the pretrial publicity and the data from this group indicated that they had based their judgements on information recalled from memory.
These results implicate on-line impression formation as a candidate process in the formation of the pretrial oublicity effect. This process is automatic and relatively unconscious, indicating that jurors are likely to be susceptible to the damaging effectç of prejudicial media coverage and that they are unlikely to be aware of their bias or to be able to correct for it. Experirnental work on human biases has shown that once exposed to prejudicial information, people are unable to ignore this informatiori, even when instructed to do so.
Implications of this research to the legal cornmunity and recommendations for assessing juror bias due to pretrial publicity are discussed. Pretrial Publicity v
ACKNOWLEDGEMENTS
I wish to acknowledge and thank my senior supervisor for his guidance and support throughout the developrnent and completion of this dissertation. I also wish to thank Cathy McFarland for being there to discuss themes from the field of social cognition and for her enthusiasm during the undertaking of this research. Thank you to
Ray Koopman for his guidance on statistical matters.
To my grandparents, thank you for your support and faith. To mom and David, a special "thank you" for opening up your home during those crucial months of writing.
And to Eugenio, your love and support throughout the doctoral program and particularly during the dissertation have been essential to me. Pretrial Publicity vi
TABLE OF CONTENTS
APPROVAL ...... II
ABSTRACT ...... lIl
ACKNOWLEDGEMENTS ...... V
TABLE OF CONTENTS ...... VI
LIST OF TABLES ...... IX
INTRODUCTION. The Free SpeechIFair Trial Controversy...... 2 Structure of This Thesis ...... 4 Literature Review of Pretrial Publicity Effects ...... 6 Studieç Examining Cognitive Processes ...... 7 The Importance of Classifying the Type of Pretrial Publicity ...... 14 Judicial Pemedies for Pretrial Publicity Effects ...... 15 Challenge for Cause ...... 15 Adjournment ...... -18 Change of Venue ...... 20 Jury Deliberation ...... -21 Pretrial Publicity vii
Judicial Admonitions ...... 22 Considering Types of Juror Prejudice in the Choice of a Remedy ...... 25 Review of Relevant Court Rulings on Pretrial Publicity Effects ...... -26 Dagenais v . CBC (1994) ...... -27 Sherratt v . R . (1991) ...... 30 R v . Williams (1994) ...... 32 Understanding How Pretrial Publicity Affects Decision-Making: A Social Cognition Perspective ...... 35 Choosing a Theory from Social Cognition to Study Pretrial Publicity Effeds ...... 35 Person Memory and Judgement ...... -35 Pretrial Publicity May Initiate Jurx Impressions of Defendant Guilt ...... 36
EXPERIMENT 1: THE ROLE OF CONSPRUAL IN THE PRETRIAL PUBLlClTY BlAS ...... 39
Method ...... -40 Participants ...... 40 Procedure ...... 40 A Si.mmary of the Trial Arguments ...... 43 Dependent Measures ...... 45 Predictions...... -47 RESULTS . Discussion...... -53
EXPERIMENT 2: ON-LINE IMPRESSION FORMATION AND MEMORY- BASED JUDGEMENTS ...... 55 The Goal of the Decision-maker...... 57 Methodological Consideration ...... 59 Predictions ...... 60 Method ...... 60 Participants ...... 60 Procedure ...... 60 Results ...... 62 Reliability of Construal Measure ...... 62 Mean Construal Scores ...... 62 Pretrial Publicity viii
Probability Ratings of Defendant GuiIt ...... 64 Verdict Judgements ...... 65 Recalt Data ...... 67 Amount of Recall ...... 68 Prirnacy and Recency Effects...... 68 Memory-Judgement Correlation ...... 69 Construals and Judgements ...... 70 Discussion ...... 71
CONCLUSION ...... 74
Methodological Strengths and Weaknesses ...... -75 Application of Results ...... -77 Further Research ...... 78
REFERENCES...... 80
Appendix A: Background Information: A Short History of the Christian Brothers ...... 84 Appendix B: Experiment 1: Positive Pretrial Publicity ...... 85 Appendix C: Experiments 1 and 2: Negative Pretrial Publicity ...... 87 Appendix D: Experiments 1 and 2: Trial Transcript ...... 89 Appendix E: Constnial Measure ...... 106 Appendix F: Task Instructions for the Impression-set Group ...... 1 12 Appendix G: Task Instructions for the Comprehension-set Group ...... 113 Pretrial Publicity ix
LIST OF TABLES
Table 1: Construal Items and Scores for the Three Conditions in Experiment 1...... 50 Table 2: Surnmary of Results for Expenrnent 1...... 51 Table 3: Percentage of Subjects in the Positive. Control. and Negative Conditions Returning Not Guilty and Guilty Verdicts ...... 52 Table 4: Construal Items and Scores for the Three Conditions in Experiment 2 ...... 63 Table 5: Summary of Results for Experiment 2 ...... 65 Table 6: Percentage of Subjects in the Comprehension.set. Impression.set . and Control Conditions Returning Not Guilty and Guilty Verdicts ...... 66 Pretrial Publicity 1
INTRODUCTION
An important source of bias in juror decision making, downplayed by many members of the Canadian judicial system. is media coverage of defendants prior to their trial. Research showing the existence of this bias labels it the pretrial publicity effect. In a typical experimental situation, people are presented with negative publicity about an accused's case followed by the trial evidence. The pretrial publicity bias is observed in subjects' ratings of the defendant's guilt and their verdict decisions: Higher guilt ratings and more guilty verdicts are observed cornpared to the condition where subjects received the trial evidence but not the pretrial publicity. Although research on the pretrial publicity bias is not conclusive, much of the empirical work addressing human biases indicates that there is good reason to pay heed to the number of studies that show pretrial publicity effects (Wilson & Brekke, 1994).
One reason why little attention or weight is given by our judicial system to the influence of media publicity on juror verdicts is based, in part. upon a lack of understanding of the way a juror1smind functions. To the extent that niles of evidence and procedure reflect lay theories about the way people make decisions, it seems obvious that social science research could and should inform such procedures (Wilson &
Brekke, 1994). A simple theory supported by scientific data that shows how pretrial publicity influences jurors' cognitive processes would help provide the courts with the tools to better assess the kind of judicial action necessary to prevent the bias. To this end, it is the main purpose of this thesis to address two issues. Firstly, two experiments Pretrial Publicity 2
will address the contribution of a cognitive process involved in ths formation of the
pretrial publicity bias. Specifically, it is hypothesised that people engage in an on-line
judgement process in which pretrial publicity initiates jurors' impressions of the
defendant's guilt which then influences their interpretations of the trial evidence and
ultimately, their verdicts.
Another important reason the pretrial publicity bias is not considered a great
threat to the judicial process is that the court assumes that the remedies set up to deal
with it function properly. Another goal of this thesis is to explore, through a literature
review and the application of social cognition theory, the reasons why the existing
judicial remedies may not function. Not only are there theoretical reasons to question
the effectivzness of such remedies but much of the research on this issue has shown
their lirnited ability to cure the problem (Kerr, 1994).
It is ultimately under the judge's discretion to determine whether pretrial publicity
will pose a threat to the process of a fair trial. This assessment depends upon an
understanding of pretrial publicity effects. Research could help the courts establish
guidelines about when and how publicity might affect juror decision-making. To date,
behavioural research has faited to suggest how the potentially prejudicial impact of news
coverage can be reduced by judicial actions (Otto, Penrod, & Dexter, 1990).
The Free SpeechIFair Trial Controversy
When the media publish information about defendants and their cases prior to trial and when there exists a real potential for this coverage to bias prospective jurors, a defendant's right to a fair trial may be cornpromised. At issue are two fundamental Pretrial Publicity 3
dernocratic rights stated in ouf Charter of Rights and Freedoms (1982). Section 11 (d) states that "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal" (as cited in Gall. 1995, p. 83). By contrast, Section 2(b) asserts that
'Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication"
(as cited in Gall, 1995, p. 79).
P. survey of the empirical literature suggests that pretrial publicity probably does influence decision-makers' verdicts of defendants (Kerr. 1994). Based on this evidence, it is more likely than not that pretrial publicity violates defendants' rights to a fair trial
(Kerr, 1994). In light of this research, it may be argued that the rights of the defendant should prevail, and that the courts should exercise their power to prohibit negative media coverage prior to a defendant's trial. On this point the American and British legal systerns differ from the Canadian: Canadian law tends to emphasise the value of fair trial over freedom of the press (Vidmar, 1996). Striking a balance between these two rights is a difficult task. Chief Justice Lamer has stated that it is wrong for the courts to favour one Charter nght over another. and the courts must strive to balance both sets of rights
(Dagenais v. CBC, 1994).
The courts must address more adequately the fact that pretrial publicity may preclude a defendant's right to a fair trial by an impartial jury. A clear theory about the cognitive processes mediating pretrial publicity effects might aid in drawing the court's attention to this potential violation of rights. As well, if the cognitive processes implicated in the development of this bias are observed in a number of experiments that use Pretrial Publicity 4
various kinds of cases and that capture the relevant features of actual cases, this research may be more persuasive in initiating policy change.
Though the courts may be hesitant to apply the research findings from specific cases that manipulate single variables to the varied cases that are tried everyday, the experirnental method is the only technique we have to answer two important questions about the pretriai publicity bias: (1) the conditions under which media coverage is most likely to influence juror decisions, and (2) the most effective ways to prevent this media coverage from affecting verdicts. To this end, we need to undentand the nature of the cognitive processes responsible for the pretrial publicity effect. Knowledge of the mental events involved in creating the bias would provide a clue to researchen about how best to prevent it from developing. To date, most of the research has explored the influence of single variables on the pretrial publicity effed and has neglected the exploration of mediating factors. It is the main purpose of this thesis to explore one potentia! cognitive process contributing to the pretrial publicity effed.
Structure of This Thesis
The introduction of this thesis is divided into four parts in order to organise and integrate various lines of research. The studies that explore the cognitive processes involved in the pretrial publicity effect will be reviewed first. This review demonstrates the lack of understanding we have about this topic. Later, some of these findings are related to well-supported theories in the areas of cognition and social cognition such as work on human biases and the relationship between memory and judgement.
Following this review, the judicial remedies developed by the legal system to Pretrial Publicity 5
reduce fons of extralegal bias, such as pretrial publicity, will be described. These descriptions are accompanied by a survey of the studies that have investigated the efficacy of these remedies. Following the description of each remedy and a suivey of the studies, the application of research on human biases to the functioning of judicial remedies suggests reasons why these remedies are weak or ineffective.
In the third part, three cases relevant to the topic of juror bias are described and particular attention is given to how the ruling judge made his decision. This analysis underscores the importance of consulting research in the detemination of effective judicial rernedies to combat sources of extralegal bias such as pretrial publicity.
The fourth part of the introduction describes the relationship between person memory and judgement and applies it to the situation of a juror contemplating a verdict decision after exposure to pretrial publicity .
The Iast two sections of this thesis describe two experiments that test hypotheses about the kinds of cognitive processes that may underlie the pretrial publicity bias. The first experiment demonstrates the use of a dependent measure designed to assess peoples' interpretations of trial evidence. The second experiment uses the predictions from the area of person memory and judgement to propose one kind of cognitive process that may be involved in the formation of the pretrial publicity bias. lncluded in these last two sections are the rationales, descriptions, and results for the two experiments, followed by concluding remarks. Pretrial Publicity 6
Literature Review of Pretrial Publicity Effects
As a whole, the research on pretrial publicity effects is characterised by large
differences in methodology. Some researchers take great pains to provide a good deal
of realism by using actual pretrial publicity (e.g., Ogloff & Vidrnar, 1994) and stimulus
trials based on actual proceedings (Freedman & Burke. 1996). Othen differ in their use
of subjects: Some fortunate researchers have access to a jury pool (e.g., Holstein, 1985)
while most must be content with a university student subject pool (e.g., Otto et al., 1994).
On the one hand, a lack of experimental uniformity is a problem if one hopes to compare
the effects of a particular variable across studies. On the other hand, if similar results
are observed using various methodologies, we can be more cornfortable with the
application of these results outside the laboratory.
In the following section, research that has touched on the main concern of this
thesis will be reviewed. Although no study has directly explored the cognitive processes
involved in pretrial publicity effects, a few studies point to possible mechanisms for
creating the bias.
Otto et al. (1994) is the only study to explore some of the mediating processes
contributing to the pretrial publicity effect using a path analysis. They examined at the
kinds of inferences subjects may make about defendants and trial evidence. Other
studies testing the effects of different variables on the pretrial publicity effect have
speculated on the processes involved in creating the bias but in none of these studies was a process qüestion posed directly. These studies are Kramer. Kerr. and Carroll
(1WO), and Ogloff and Vidmar (1994). Studies Examining Cognitive Processes
Otto et al. (1990) explored the effects of five different kinds of negative pretrial publicity on juror verdicts that included (1) statements about the accused's character, (2) weak inadmissible statements by the accused's neighbour, (3) a report that the defendant had a prior police record, (4) reference to the accused's low status job, and
(5) strong inadmissible staternents by the accused's neighbour. As well as the pretia1 publicity conditions there were two control conditions: In one condition subjects read newspaper stories with no negative content and in another condition subjects viewed only the trial evidence.
Subjects participated in groups of 6 to 20 but they were instructed not to discuss the case among themselves. They were simply told to act as jurors for the case and they were then given two newspaper articles. The only information that they were given was that the newspaper clippings were taken from a local paper and that they provided some background information on the case. After reading the articles subjects were asked to indicate whether they belisved the defendant was guilty or not. Following this they viewed the trial and were asked for their verdicts again, their ratings of the people involved in the case on a variety of dimensions, and their evaluations of the trial evidence.
A path analysis was used to determine whether the different types of pretrial publicity affected subjects' pretrial verdicts and whether the introduction of trial evidence would attenuate the effects of the biasing publicity. Specifically, this analysis represented a general model of the hypothesised relationships between the manipulated pretrial publicity, subjects' pretrial verdicts, subjects' evaluations of the defendant and Pretrial Publicity 8
the strength of the evidence, and subjects' final verdicts. Hierarchical regression
analyses provided coefficients representing the strength of the relationship among these
variables.
Subjects' pretrial evaluations of the defendant's guilt were affected by some
types of pretrial publicity. Significant relationships between character information and
pretrial verdicts and between strong inadmissible evidence and pretrial verdicts were
observed. That is, subjects who received pretrial publicity with negative information
about the defendant's character, or those who read articles describing strong
inadmissible evidence were more likely to Say the accused was guilty before hearing the trial evidence than subjects who had read other types of pretrial publicity. There was also a significant negative relationship between weak inadmissible evidence and pretrial verdicts. That is, subjects who read articles describing weak inadmissible evidence were more likely to fÏnd the defendant not guilty than subjects in the other pretrial publicity conditions. Pretrial publicity containing comrnents about the defendant's prior police record or his low-status job did not affect pretrial verdicts.
These researchers were also interested in whether the introduction of trial evidence would attenuate the effects of the pretrial publicity. Results indicated that only the effects of the character pretrial publicity on verdicts were weakened significantly by the trial evidence. However, the effects of the character pretrial publicity were not eliminated. The fad that exposure to the trial evidence did not significantly influence the impact of the other foms of pretrial publicity suggests that some forms of publicity may be more resistant to evidence information.
Results also suggested that pretrial publicity effects may operate through Pretrial Publicity 9
people's assessments of the evidence and attributions about the defendant. All five mediating variables tested were related to final verdicts: the persuasiveness and likability of the defendant, whether subjects thought the defendant was a typical criminal, whetner the prosecution had a strong case, and whether they felt sympathy for the defendant.
Subjects who rated the defendant as persuasive and those who were sympathetic toward the defendant were more likely to find him not guilty. If they thought the defendant unlikable, a typical criminal, or if the evidence agajnst him was strong, they were more likely to find the accused guilty.
This study shows the importance of people's interpretations of the trial evidence and their inferences about the defendant in their contemplation of a verdict. There is one methodological Raw with the study however. The trial evidence may have had little effect on pretrial verdicts for two reasons. Subjects may have been rnotivated to appear consistent when rendering their verdicts because they were asked to give their verdicts twice. Another possibility is that having made a judgement, they may have attended to or sought information from the trial evidence that supported their first verdict.
Kramer et al. (1990) explored the effects of emotional and factual pretrial publicity upon mock juror judgements. This study is interesting because it hypothesised that factual and emotional publicity differ in the way in which they influence people during the decision-making process. It is also important because the effects of three types of judicial remedies for the pretrial publicity bias were tested. The researchers discussed briefly in process terms why these remedies may or may not function.
Kramer et al. (1990) were primarily interested in whether three judicial remedies. instructions to ignore pretrial publicity, deliberation, and adjournment, would affect the Pretrial Publicity 10
bias caused by two difFerent types of pretrial publicity. For example, they reasoned that emotionally-charged publicity may be particularly memorable and thus remedies such as delay would be ineffective. However, factually-biasing information may be more responsive to the delay remedy given the fallibility of hurnan rnemory. They predicted that the kind of publicity is an important consideration in the choice of remedy.
Subjects viewed a highly realistic videotape of a case at trial in which a black man was accused of robbing $10,000 from a store. The enactment contained al1 the standard trial elements including the judge's pretrial instructions to the jury and the judge's final instructions to the jury. A pilot test revealed that people recommended guilty verdicts 40%-50% of the time.
There were four pretrial publicity conditions: high factual bias, high emotional bias, low emotional bias, and low factual bias. The pretrial publicity and the courtroom trial enactment were presented on videotape. The publicity consisted of videotaped television and newspaper reports, the text of which was read on the audio track to accompany the clip. The highly emotional publicity included several television and newspaper clips about a 7-year-old girl who had been having health and family problems. These clips were designed to evoke sympathy in people. Later segments showed that the girl had been seriously injured by a hit-and-run accident that was caused by the defendant as he was leaving the crime scene. The highly factual publicity included information on the defendant's previous crirninal record, and a report that the police had found incriminating evidence against the defendant. In contrast, the low bias publicity was designed so that there was little possibility for the creation of a bias. The reports simply described the robbery, and the fact that the defendant had been arrested Pretrial Publicity 11
and charged.
Subjects were required to give their verdicts three times: After exposure to the pretrial publicity, after viewing the trial enactment, and after deliberation. There was no effect of pretrial publicity on subjects' pretrial verdicts.
The interval between exposure to the publicity and the viewing of the trial ranged from 1 to 53 days with a mean interval of 12 days. Though the delay factor was not controlled, the fact that there existed a range of delays is more realistic.
After exposure to the pretrial publicity and before seeing the trial, subjects were asked to rate how they felt on a series of seven-point scales such as happy-sad, and not shocked-shocked. This manipulation check revealed a main effect of emotion: subjects rated themselves as feeling more negative after exposure to the emotional publicity compared to subjects in the no bias condition. There was also a main effect for factual publicity: Subjects exposed to the factual publicity condition recalled more facts from the pretrial publicity than those in the no bias condition.
Subjects were required to give their verdicts a second time after viewing the trial enactment. Curiously, there was no effect of publicity in subjocts' verdicts posttrial. The bias was apparent however, in subjects' sentence recornmendations: Longer sentences were given by subjects in the high emotional and high factual groups compared to the low bias groups. Following this participants were instruded to deliberate for one hour and reach a unanimous verdict. The deliberations were videotaped.
At postdeliberation, subjects were again asked for their verdicts and sentence recommendations. There are three important results that anse due to deliberation.
Firstly, the effect of the emotional publicity on jury verdicts strengthened with Pretrial Publicity 12
deliberation. Subjects who had been exposed to emotional publicity were more conviction prone than those not exposed to such publicity.
Secondly, there was a Factual Publicity X Delay interaction. Subjects who viewed factualty biasing publicity were more likely to convict without a delay than with a delay. Thirdly, the effect of emotional publicity on juror verdicts remained strong after deliberation when there was a delay and when subjects had been instructed to ignore the publicity. These results suggest that adjournment may be effective for only some types of biasing pretrial publicity, such as factual publicity. Instructions to ignore emotional publicity did not decrease the effect of this type of publicity on juror's verdicts.
A content analysis of the deliberations revealed that admonitions merely increased the tendency for jurors to mention the publicity. The remedies tested in this study are discussed below in furttier detail under the "Judicial Remedies" section.
The next study to be reviewed is relevant to the goals of this thesis because the researchers implement dependent measures that allow them to assess subjects' awareness of their own biases resulting from exposure to prejudicial publicity. This study throws doubt on the ability of jurors to assess their own ability to function as impartial decision-makers.
Basing their stimulus materials on the pretrial publicity from a highly publicised sexual abuse scanda1 that occurred at the Mount Cashel Orphanage in Newfoundland,
Ogloff and Vidmar (1994) tested the effects of television and print media on subjects' perceptions of the defendant's guilt. The articles and television footage were chosen so that the content of both was as sirnilar as possible. The length of both the articles and the video footage was approximately the same. Three groups were included: Articles. Pretrial Publicity 13
video, and articles plus video.
The results of this study suggest that those who are exposed to both print and
video material are most affected by media coverage. Subjects in the articles plus video
group were more emotionally affected by the publicity compared to subjects in the
control group. The video and articles plus video groups rated the victim's testimony to
be more believable than those in the articles and control groups. Subjects' ratings of the defendant's guilt were significantly greater in al1 three media conditions compared to the control condition, with the articles plus video group showing the highest guilt rating.
Subjects also recommended longer sentences if they had been exposed to both video and articles compared to control subjects and to those who had been exposed to only the articles. They also assigned longer sentences after viewing the video versus reading the printed rnaterial.
One of the most interesting and important results from this study cornes from subjeds' responses to the question: "How likely would it be for you to be a fair juror in this case?" Ratings of this likelihood did not differ across groups. For example, even though print plus video subjeds were the most ernotionally affected by the publicity and assigned the longest prison sentences, they believed they could function as impartial jurors.
This study concurs with previous ones that have assessed how well people are able to assess their prejudice after pretrial publicity exposure. For example, Sue, Smith, and Pedroza (1975) asked subjects if they could rernain impartial after reading a negative article about the defendant. Of those subjects in the pretrial publicity condition,
26% adrnitted their bias whereas 5% in the control condition said they felt Siased. Pretrial Publicity 14
Though the biased 26% were then excluded from subsequent analyses, there were still significant differences in verdicts between the experimental and control conditions.
Thus, subjects in the pretrial publicity condition who did not admit their partiality still displayed the bias. A survey study by Moran and Cutler (1991) found that subjects' pretrial knowledge of the case was related to the perceived guilt of the accused.
However, their pretrial knowledge of the case was not correlated with their ratings of their ability to be impartial. The findings from Sue et al. (1975), Moran and Cutler
(1991), and Ogloff and Vidmar (1994) al1 indicate that people who have been exposed to pretrial media coverage are unaware that they have been affected by it. These studies cal1 into question the effectiveness of the challenge for cause remedy, which rests on the assurnption that jurors are able to assess their own biases.
The Importance of Classifying the Type of Pretrial Publicity
Sorne of the above studies point to the importance of classifying the type of prejudicial pretrial publicity for the purpose of recommending an effective remedy.
Surely, some types of cases such as a sexual abuse scanda1 is more ernotionally negative than a robbery where no one is physically or emotionally harmed. Thus, the presiding judge might consider that because emotional publicity is unlikely to be forgotten with the passage of time, a change of venue might be the most remedial choice. The effeds of factual publicity however, as suggested by the Kramer et al.
(1990) study, might be cured through the judicial action of delay.
To conclude, there are no studies that have investigated directly the cognitive processes that give rise to pretrial publicity effects. A few studies have pointed towards Pretrial Publicity 15
possible mechanisrns contributing to the bias. Otto et al. (1990) suggest that the type of pretrial publicity jurors are exposed to is important because it influences the inferences and evaluations of the defendant and trial evidence, thereby contributing to the bias.
Kramer et al. (1990) tested a general feature of pretrial publicity, and found that the emotionality of the publicity was more influential than purely factual publicity on final verdicts. Their results suggest that the emotionality of information may operate through rnechanisrns different from those of factual publicity.
Finally, the results of Ogloff and Vidmar (1994) are important because they indicate that people who are biased due to publicity exposure are unaware that they have been prejudiced and believe they are capable of deciding a verdict based upon the facts of the case, when in fact they cannot.
Judicial Remedies for Pretrial Publicity Effects
This section describes some of the studies that have addressed the effectiveness of judicial rernedies in combating the biasing effects of pretrial publicity. As reviewed below, the majority of studies suggest that such aids are, in fact, ineffective. Additional support for these research findings is drawn from theories of mental biases in the area of social cognition. These theories illustrate the reasons behind why judicial remedies for pretrial publicity such as challenge for cause and admonitions do not work.
Chal/enge for Cause
There are two types of challenges counsel may exercise during the jury selection process: peremptory challenges and challenge for cause. The provisions of these Pretrial Publicity 16
challenges are specified in Section 634 of the Criminal Code. A peremptory challenge
does not require the accused or Crown to give a reason for disrnissing a potential juror
from jury service. The number of peremptory challenges allotted to each side depends
on the type of crime. For example the accused and the Crown are allowed 20
challenges each if the offence is high treason or first-degree murder.
A challenge for cause, on the other hand, requires the accused or Crown to show why the person should not serve on the panel. A juror may be excused from the panel if
one of the following conditions specified under section 538 is satisfied:
(a) the name of a juror does not appear on the panel.. . ;
(b) a juror is no( indifferent between the Queen and the accused [italics added];
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;
(d) a juror is an alien;
(e) a juror is physically unable to perform properly the duties of a juror; or
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony (R.S.C. 1985, c. C-46, S. 638).
Challenges for cause are assessed by members of the jury, not the judge
(Brockman 8 Rose. 1996). With regard to the present topic, a challenge for cause would be exercised if there were reason to doubt the impartiality of the juror. The challenger would be required to show that the juror holds a bias through the presentation of evidence. This evidence may be in the form of media coverage documentation, sworn affidavits by people knowledgeable about the community, or expert opinion (Vidmar,
1996). Pretrial Publicity 17
In most cases, Canadian law ignores any potential prejudices a juror may possess. It assumes "sworn jurors can be relied upon to do their duty and decide the case on the evidence without regard to their penonal biases and prejudices" (R. v.
Parks, 1994, p. 360). In reality, challenges for cause are conducted in only a small percentage of criminal trials. It is more usual for jurors !O be selected without individual questioning at al1 (Vidmar, 1996).
A few studies have examined whether challenge for cause procedures can identify jurors who have been biased by press coverage. Sue, Smith, and Gilbert (1974) asked subjects whether they could rernain impartial to the defendant's case having viewed the negative publicity. Those who admitted they were biased were more likely to convict than those who did not admit they were biased. However, a strong exposure effect remained among those who claimed to be impartial after having viewed the pretrial publicity.
Though challenge for cause should eliminate any potentially prejudiced jurors. it is doubtful that mere questioning of people about their biases can identify thern as such.
Ogloff and Vidmar (1994) found that subjects exposed to pretrial publicity were more likely to believe the defendant was guilty and to assign longer sentences than subjects not exposed to this information. Nonetheless, when asked whether they believed they could function as impartial jurors, the subjects who had been exposed to and biased by pretrial publicity indicated that they could be fair jurors: Ratings of their own impartiality did not differ from those of subjects who had not been exposed to the pretrial publicity.
Social science research does not support the açsumption made by our judicial system that juron are capable of identifying themselves as potentially prejudiced and thus, the Pretrial Publicity 18
use of the challenge for cause procedure is at best questionable.
The research that demonstrates people are unable to identify their own prejudices in a legal context concurs with research on the cognitive processes underlying mental biases. Because a substantial amount of our mental processing occurs unconsciously, we are mostly unaware of the 'contaminantsn affecting our judgements and behaviours (Wilson & Brekke, 1994)
Wilson and Brekke (1994) have summarised nicely the work on mental biases.
They argue that biases can be divided into one of two subcategories: Those that are due to the fundamental properties of human information processing such as automaticity; and those due to source confusion, which occurs when 'people confuse two or more sources of a memory, thought, feeling, or judgementn (Wilson & Brekke, 1994, p. 126).
Biases arising from pretrial publicity are due to source confusion. That is, people are confused about the exact source of their verdicts, basing their judgements in part upon information that they should not. Other biases arising from source confusion include well-docurnented phenomena such as the 'halo effectn (Nisbett & Wilson, 1977); leading question effects (Loftus, 1979); and mere exposure effects (Bornstein 8 D'Agostino,
1990).
Adjoumment
Media attention to al1 but a few very sensational cases wanes over time. There is also the possibility that the public will forget the publicity by the time the case is tried.
One potentially effective remedy is for the judge to adjourn or delay the trial starting date in the hope that the impact of prejudicial publicity on potential juron may be reduced or Pretrial Publicity 19
eliminated through the process of forgetting .
There is only one published study addressing the effects of adjournment.
Kramer et al. (1990) manipulated two different kinds of remedies, adjournment (or delay) and cautionary instructions in order to test how effective they are in reducing the negative effects of emotionally biasing and factually biasing publicity on juror verdicts.
They were also interested in whether the deliberation process would influence the impact of these types of publicity on juror decisions.
They predicted that the biasing effects of different types of publicity might be more or less curable depending upon the remedy employed. Reducing the impact of publicity that arouses a strong emotional response, for example, might not be as amenable to judicial remedy as the effects of factually biasing publicity. As described above, participants saw a re-enactment of a trial in which a black man was accused of robbery. All the standard trial elements were included in the videotape including the judge's pretrial instructions and the judge's final instructions to the jury. The fadual and emotional publicity consisted of videotaped television and newspaper reports.
Results showed that subjects who viewed factually biasing publicity were more likely to convist without a delay than with a delay. As well, an adjournment of 12 days eliminated the negative effects of the fadually-biasing but not the emotionally-biasing pretrial publicity. Recall data showed that subjects forgot more factual than emotional information. These results suggest that adjournment may be effective for only some types of biasing pretrial publicity.
Besides the fa& that adjournment may not function to eliminate emotional publicity because it is memorable, this remedy rnay be ineffective for the simple reason Pretrial Publicity 20
that unless jurors are sequestered, they may still be exposed to the publicity during the course of the trial by various sources.
The fact that certain types of information are more mernorable than others may be due to a similar process that has been obsewed in research on persuasion. This work has shown that although people might forget the source of the persuasive communication, the content of the message remains in mernory a longer time. As a result, a "sleeper effectnoccurs in which people are more influenced by the information at a later tirne when they have no means to evaluate the source of the rnaterial
(Pratkanis, Greenwald, Lieppe, & Baumgardner, 1988).
Change of Venue
Usually, the accused is tried in the district where the crime occurred. Often, an application to have the trial moved to another locale is made where there has been enough media attention to the case that there is doubt whether it will be possible to select an unbiased jury. lt is for the judge to decide whether or not the publicity is sufficiently prejudicial in order to grant a change of venue. Factors considered in this determination include the nature, degree, and emphasis of the publicity, as well as timing in relation to the trial. Also considered is whether it is the only reason given for a change of venue and whether there is evidence of local reaction to the crime.
Section 599 allows the accused or the prosecutor to apply to have the trial moved to another territorial division of the same province. For a change of venue to occur, evidence that a fair trial cannot be held must be presented. As well, there must exist a reasonable probability of partiality or prejudice against the accused. If the only Pretrial Publicity 21
prejudice likely to occur is due to the nature of the offence, the application for a change of venue will be denied.
ln R. v. English (1 993),the accused was charged with a number of offences including abuse of wards at the Mount Cashel Orphanage in Newfoundland. There had been a significant amount of media attention due to the fact that the Hughes lnquiry was investigating a nurnber of different allegations of abuse at the orphanage. The trial judge refused to grant a change of venue and the Newfoundland Court of Appeal dismissed the accused's appeal of this judgement.
Thus, besides the courts' reluctance to use this remedy because they doubt the impact media information will have on jurors, it is also rare due to practical reasons such as expense to the courts (Moran & Cutler, 1991). As well, given the global nature of media transmission, it is unclear whether the courts could identify an appropriate community not exposed to the relevant publicity.
Jury Deliberation
This is not a judicial remedy perse. Rather, some have advanced the opinion that because there is more accountability in group decision-making, jury deliberation would elirninate the effects of prejudicial pretrial publicity (Kaplan & Miller, 4978).
Evidence for this from the laboratory setting is mixed, hawever.
Jury deliberation may attenuate juror biases through discussion of prescribed topics (trial evidence) and careful omission of biased items (pretrial publicity). Padawar-
Singer (1977) found that deliberation did not influence the impact of pretrial publicity on juror verdicts, though lack of statistical power for this analysis deems the study Pretrial Publicity 22
uninformative.
Kramer et al. (1990) found no effects of pubiicity bias at predeliberation.
However, at post-deliberation there were effects of both factually-biasing and
emotionally-biasing pretrial publicity. Although the juries seemed to be vigilant to the
use of inappropriate information in reaching their verdicts, deliberation somehow
strengthened the effects of the pretrial publicity. The authors conducted social decision
analyses that indicated that exposure to pretrial publicity might have created a bias in
the choice of arguments discussed during deliberation. For 54 of the 81 juries there was
at least one comment regarding the content of the pretrial publicity. In only 27 of these
54 were the comments identified as 'nontrivial'. Most of these comrnents were brief (less
than one minute of deliberation time) and most (26 of 27) were followed by reminden
that the jury should ignore such information.
Upon closer analysis of the deliberation in the Kramer et al. (1990) study , it
appeared that those who had been exposed to the negative publicity and who were pro-
conviction were more able to persuade or to resist persuasion. In fact, there were more
pro-conviction than pro-acquitta1 arguments expressed. The researchers interpreted this
to mean that the publicity rnay have influenced the choicc and presentation of arguments
during deliberation.
Judicial A dmonitions
A judge may instruct a jury to avoid contact with media information about the
case they are hearing if she has reason to believe that such information couid affect their judgernents. The bulk of research on cautionary instructions to disregard pretrial Pretrial Publicity 23
publicity has proven its inefficacy (e.g., Sue, Smith, 8 Gilbert, 1974; Padawar-Singer,
Singer, & Singer, 1977). Instructions to ignore information such as inadmissible evidence (Thompson, Fong, & Rosenhan, 1981) or a prior criminal record (Hans &
Doob, 1976) do not reduce the bias. One of the most am bitious and well-designed studies to date (Kramer et al., 1990) found that factually-biasing information (but not emotionally-biasing information) had no effect when subjects received no instructions to ignore it. Ironically. however, instructions to ignore the media coverage seemed to strengthen the effects of the factually biasing information. This finding is not new:
Studies by Wolf and Montgomery (1977) as well as Tanford and Cox (1987) also showed that those who were admonished were more affected by pretrial publicity exposure compared to those exposed but not admonished. This may occur because the instructions draw jurors'attention to the proscribed material or because reactance
(Brehm, 1966) is aroused in some jurors.
The courts assume that admonitions will reduce the impact of prejudicial information. Social cognition research suggests that people lack the cognitive control to prevent such information frorn affeding them (Wegner, 1994; Wilson & Brekke, 1994).
In particular, Wegner's (1994) work on thought suppression has shcwn that when people are instructed not to think about something, they actually think about the prohibited item more than subjects not given the instruction. According to his model, thought suppression occurs due to the interaction of two processes, the ironic monitoring process and the intentional operating process. The ironic monitoring process is relatively unconsciousness and automatic and searches for the prohibited item. Once detected, the intentional operating process, which is relatively conscious and controlled, Pretrial Publicity 24
is activated.
According to Wegner (1994), thought suppression breaks down when the operating process requires more cognitive capacity than the monitoring process.
Therefore, if cognitive capacity is reduced the operating process becomes less efficient and the monitoring process may override it. The result is that the monitoring process will increase a person's sensitivity to thoughts that ironically, are opposite to those desired.
The same processes may underlie the failure of instructions to ignore pretrial publicity in jury simulation studies. Subjects are typically presented with the publicity materials and then later are instruded to disregard this information when contemplating the verdict.
During deliberation, subjects' cognitive resources are spent on processing the trial information. Thus, attempts to suppress unwanted material may be disrupted through the decreased functioning of the operating process resulting in the expression of the forbidden material in subjects' decision-making. As predicted by Wegner (1994), a decrease in cognitive resources wilt increase the likelihood that the opposite effect of what was intended will occur. As discussed above, this is exactly what is often observed: Admonitions have been shown to increase the pretrial publicity effect (Kramer et al., 1990, Tanford & Cox, 1987; Wolfe & Montgomery, 1977).
To summarise, research on the effectiveness of judicial remedies, though relatively srnall, does not look promising. In particular, challenge for cause may not identify those jurors who have been biased by pretrial publicity because they are unaware that they hold the bias or believe that they are capable of disregarding this information. Adrnonitions to ignore biasing information have been shown to actually increase the pretn'al publicity bias. The nature of our cognitive functioning during Pretrial Publicity 25
thought suppression tasks may preclude our ability to disregard prohibited information.
The effects of deliberation on the publicity bias are inconclusive since only one study has actually manipulated this variable. The change of venue remedy might be a potentially useful remedy but it tends not to be used very frequently, primarily due to its cost.
Considering Types of Juror Prejudice in the Choice of a Remedy
The type of prejudice may influence which remedy a judge will recommend.
Vidmar (1996) has classified prejudice into four types: lnterest prejudice. specific prejudice, generic or general prejudice. and conformity prejudice. lnterest prejudice refers to a situation in which a juror's involvernent in the trial is personal due to his relationship to the defendant, witnesses, or outcome. Specific prejudice occurs when the juror's attitudes or beliefs may render him or her incapable of judging the particular case with an impartial mind. The presence of this fom of prejudice may be due to personal knowledge of the case, media news coverage, or public discussion and rumour within the juror's community. The existence of generic prejudice in a trial is the result of juror stereotyping of the defendant, victims, witnesses. or the actual crime. An example of generic prejudice is when a juror holds preconceived beliefs about a penon of a particular ethnic origin and these beliefs affect the juror's judgernent. Confonity prejudice occurs vrhen û juror perceives that the particular outcome of a case is of significant interest to the community. In this scenario the juror is biased toward a particular verdict based upon the perceived consensus rather than his or her own assessrnent and judgement of the facts. Pretrial Publicity 26
The above classification of existing pretrial bias in jurors is a useful scheme and
though used informally by the courts, it would help in the provision of an excellent
analytical scherne for recommending judicial remedies. For example, a change in venue
might be exercised where there exists confonnity prejudice, while those who hold
interest or generic prejudice would be challenged and excluded frorn serving as jurors. If
it is detemined that specific prejudice due to pretrial publicity exists, the court might
detemine the nature of this publicity and base its decision on the type of remedy to be
employed by referring to guidelines that social scientists recommend.
Review of Relevant Court Rulings on Pretrial Publicity Effects
This section reviews three Canadian cases in which counsel has brought into
question the partiality of jurors due to, in the first two cases, the presence of pretrial
publicity, and in the third case, the defendant's race. The purpose of this section is to
illustrate some of the assumptions about human information processing written into jury
procedure. As well. the efficacy of judicial remedies, such as instructions to ignore
biasing information and adjournment are questioned. In most cases the courts assume
that judicial actions for preventing juror bias function properly and they neglect to infon themselves of the social science research findings that indicate judicial remedies do not
always have the intended effect (Kramer, Kerr, & Carroll, 1990; Sue, Smith, & Pedroza,
1975).
In addition to the research that calls into question the efficacy of judicial actions, there exist an enormous number of experiments indicating that human biases are difftcult, if not impossible, to control once exposure to the prejudicial information has Pretrial Publicity 27
occurred (eg., Wilson & Brekke, 1994). One case in which the trial judge did use social science research on juror biases to help inform his decision will be reviewed (R.v.
Williams, 1994).
Dagenais v. CBC (1994).
One case, in particular, Dagenais v. CBC, 1994, addressed the conflict that anses between two Charter rights when the media publish information about a defendant: the right to a fair trial and the right to freedom of expression. This case illustrates an assumption held by many members of Our legal systern that people are able to ignore biasing information that they have been exposed to and that they are capable of following a judge's instructions to ignore such information. Social science research and theories of human biases indicate that this assumption is wrong.
Dagenais v. C8C1 1994, involved four defendants who were former and present rnembers of the Christian Brothers, a Catholic order. They had been charged with the physical and sexual abuse of young wards at an Ontario training school. During the tirne that the defendants' trials were scheduled to be heard before a judge and jury in the
Ontario Court of Justice, the CBC was planning to air The Boys of St. Vincent. This mini-series was a fictional account of sexual and physical abuse of wards in a Catholic institution in Newfoundland. Due to the negative emotional content of the television program, the similarity of the story to the case, and the heavily publicised trials of the defendants, defense counsel applied for a hearing for an injunction restraining the CBC from broadcasting the show.
At the trial court level, Madame Justice Gotlib granted defense counsel a Pretrial Publicity 28
Canada-wide publication ban of the mini-series until the end of the four trials. She also granted them an order allowing them to apply for the hearing on short notice and an order that prohibited the publication of the fact that they had applied for a hearing or any material related to it until the four trials had concluded.
Madame Justice Gotlib had recognised the potential for jurors to be affected by negative information related to this case:
In all, I am satisfied that the harm that would be caused by the showing of this particular film before the jury trials of the three remaining persons would be such that the possibility of impartial jury selection virtually anywhere in Canada would be seriously compromised. For this reason, I grant an interim injunction restraining the Canadian Broadcasting Corporation from broadcasting the TV programme, The Boys of St. Vincent, and from publishing further media information relating to the proposed broadcast until such time as the three remaining criminal trials are completed. (Ragenais v. CBC, 1994, p. 854)
The Ontario Court of Appeal reversed the order banning any publicity about the proposed broadcast and the fact that the proceedings gave rise to the publication ban.
The appellant judge concluded that Gotlib J. had not erred in directing that the show be postponed but that she had committed an error of law by postponing the broadcast throughout the whole of Canada, and by prohibiting the publication of any information related to the proposed broadcast. Subsequently, the ban was limited to the province of
Ontario and a television station in Montreal.
Upon appeal to the Supreme Court of Canada, Larner, C.J.C explained that there were many alternatives to the ban that Gotlib J. had not considered. Speaking for the court, he stated that jurors are capable of following instructions to disregard biasing information about a case:
To begin, I doubt that jurors are always adversely influenced by Pretrial Publicity 29
publications. There is no data available on this issue. However, common sense dictates that in some cases jurors may be adversely affected. Assuming this, I nevertheless believe that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of criminal proceedings. (Dagenais v. CBC, 1994, p. 884)
He also expressed doubts that jurors could be prevented from being exposed to the relevant publicity even under a ban due to the global nature of news and technology.
On this latter point, there can be no doubt. With regard to the first point, however, there are two issues that cast doubt on his assumption that jurors are capable of ignoring biasing information. Firstly, research on biases has shown that people are mostly unable to disregard prejudicial information (Wilson & Brekke, 1994). Wilson and Brekke
(1994) argue that because we lack awareness of our mental processes, have little cognitive control, and have difFiculty detecting our own biases, we are unable to avoid or undo "mental contaminationn by prejudicial material.
In expressing his belief that instructions to the jury to ignore potentially prejudicial information would cure any partiality in the panel, Lamer, C.J.C. was referring to a long- standing procedure in jury trials that is based on the legal system's assurnption that juron can put aside their prejudices. The second issue in question then is whether judicial instructions to ignore biasing information are effective. As discussed above many studies have shown that adrnonitions to disregard biasing information do not work
(Kline & Jess, 1966; Sue, Smith, & Gilbert; 1974; Sue, Smith, 8 Pedroza, 1975;
Padawar-Singer & Barton, 1975; Padawar-Singer, Singer, & Singer, 1974, 1977) and in some instances admonitions have the opposite effect (Wolfe & Montgomery, 1977;
Tanford & Cox, 1987; Kramer, Kerr, & Carroll, 1990). Pretrial Pubticity 30
In conclusion, the Supreme Court rejected the ban on a number of grounds.
Lamer, C.J.C. stated that it was inappropriate for the courts to favour one Charter right over another. He advised that the party claiming that a publication ban is necessary for the purpose of a fair trial rnust justify the limitation on freedom of expression. Because there are two Charter rights at stake, bans can onty be issued in exceptional cases where it has been detemined that a real risk to the fairness of a trial exists. The judge must evaluate the risk of an unfair trial against the importance of the expression of ideas, and consider alternative measures to reduce or eliminate the unwanted bias.
Sherratt v. R. (199f)
The next case illustrates the court's lack of understanding about the conditions under which pretrial publicity may affect jurors. Specifically, the question of a sufficient delay between exposure to prejudicial pretrial publicity and the occurrence of the trial is raised.
The appellant was convicted in the slaying of a pimp. There had been several media reports ten rnonths prier to the trial that had included information about the search and location of the victim's body, facts about the accused's identity and history, as well as information of his involvement in other murders. The accused in Sherralt v. R. sought to challenge for cause each prospective juror on the grounds that there had been substantial pretrial publicity that could potentially compromise the partiality of the juron.
The accused wanted to ask each member of the jury eleven questions to detemine whether they had been biased by the preirial publicity. The accused was denied the challenge for cause and an appeal to the Manitoba Court of Appeal was dismissed. This Pretrial Publicity 31
court heid that counsel was trying to construct a favourable jury panel rather than an impartial one.
At issue before the Suprerne Court in Shenatf v. R. (1991) was whether the trial judge was correct in rejecting the accused's right to challenge for cause of each prospective juror on the basis of partiality. Although counsel is entitled to detenine whether any potential juror is partial to the accused by reason of pretnal publicity or notoriety, the court made it clear that this type of challenge was not a "fishing expeditionn to obtain personal infonation about the juror. Section 638 of the Code states: (1) "A prosecutor or an accused is entitled to any number of challenges on the ground that (b) a juror is not indifferent between the Queen and the accusedn (Criminal Code. R.S.C. l985, c. (2-46,S. 638(1)(b)).
In the opinion of the supreme court judge, Madame Justice L'Heureux-Dubé, there was no realistic potential for pretrial publicity to bias jurors because the trial had occurred a substantial period after the publicity and the media infonation was not specific to the defendant. The court concluded that the appeal court was correct in not allowing each juror to be questioned about his or her partiality due to the existence of pretrial publicity .
In this case, L'Heureux- Dube assumed that jurors would forget the pretrial publicity during the delay between media exposure and the trial, thereby eliminating any prejudice. Only one study has addressed the effeds of adjournment on the pretrial publicity bias, the results of which do not unequivocally support the assumption relied upon in this case (Kramer et al., 1990). Krarner et al. (1990) found that a delay of 12 days was effective for factual publicity but not for emotional publicity. These authors Pretrial Publicity 32
speculated that information that has an emotional impact is a lot more difficult to "forcet" than factual information.
R v. Williams (1994)
The final case described here is meant to further illustrate the legal system's assumptions that the remedies designed by the courts to combat extralegal bias function in the proper rnanner. The defendant in R v. Williams was a native male who had been charged with robbery. Defense counsel had applied for a challenge for cause to detemine whether the prospective jurors held prejudices toward Natives. A number of written and oral reports by expert witnesses on the prejudices of non-Natives towards
Natives were submitted in defense of this applicrtion. The Crown however, did not give weight to this evidence arguing that even if penonal prejudices were present. this would not preclude jurors from putting aside their prejudices and deciding a verdict based upon the facts of the case.
As discussed in Shenatt v. R. (199 1), it is highly unlikely that a person can "put aside" their prejudices due to the nature of our cognitive functioning. Stereotyping members of minority groups is mostly an unconscious and automatic process (Devine,
1989). Monteith (1993) has developed a mode1 that can help people control prejudiced responding. However, this potential control is only possible if one possesses an awareness of the stereotype and if one is motivated to eliminate a prejudiced response.
These conditions are difficult to fill. Even if a person is aware of their potential for a prejudiced response, it may be difficult to adjust it properly because they are unaware of how much they are affected by the stereotype (Wilson & Brekke, 1994). Pretrial Publicity 33
The Crown further argued that there is a number of safeguards in place after the
jury has been selected to prevent personal biases from playing a role in juror decisions.
These include:
(a) the jurors' oath or affirmation which can be expected to bind the conscience of most pesons who might otherwise be disposed to decide on their own assumptions and preconceptions;
(b) the "diffused irnpartialitynwhich results from the melding of 12 individuals of varying backgrounds in a single decision making body, and thus tends to subdue personal prejudices;
(c) the seriousness of the jury's task and the solemnity of the trial process which can be expected to have the same effect;
(d) the dynamics of jury deliberations, with the rninds of 12 people focused on the issues so that the views and conclusions of each must withstand the scrutiny of 11 others, also tends to subdue reliance on prejudice;
(e) the warnings which can be expected to be given to the jury before they hear the evidence and in the course of the final charge, include warnings to guard against relying on pre-conceptions or biases, can be expected to be effective. (R. v. Williams, 1994, pp. 181-1 82)
In outlining the safeguards, it is apparent that the Crown expected that the usual procedures of adrnonishing the jury to disregard their prejudices (as in points a and e) and the process of jury deliberation (as in points b and d) would prevent the expression of a biased verdict. That deliberation can reduce the likelihood that a verdict will not be influenced by prejudice has yet to be dernonstrated. The Crown also submitted published research using jury simulations to support its position. One study for exarnple showed that the race of the defendant did not affect juror decisions (Bagby & Rector,
1991). However, the court did not refer to the number of studies that have shown that the race of the defendant strongly influences juror verdicts (for e.g., Wolfgang & Reidel. Pretrial Publicity 34
Though the judge alluded to a number of studies, he denied that he gave any weight to the studies supporting the Crown's position. Nevertheless he was impressed somewhat by the fact that the studies submitted did not contradict the practice of relying on jurors to fulfil their roles and used it to support his decision:
But I see some significance in the fact that the studies do not in any consistent way contradict the conventional wisdorn which has guided us for centuries in accepting that the jury system, by its nature, provides its own safeguards without the necessity for delving into the views of prospective jurorç. (R. v. Williams, 1994, p. 184)
Though the court did not deny the existence of partiality in the prospective jurors, it was unwilling to cast doubt on the long-held belief that people can put aside their biases and judge only the facts of the case. This is a belief clearly at odds with established research findings on biases.
Ernbedded in legal ptocedure are assumptions about the way a juror's rnind processes infornation. Some of these assurnptions have emerged in the description and analysis of these three cases. In particular, the law assumes that jurors can put aside their prejudices and base their verdict decisions solely upon the facts of the case.
It also assumes that tegal procedure has constructed safeguards to ensure the effective functioning of the jury including admonitions to ignore biasing information and the deliberative process of the jury. As discussed in the section on judicial admonitions, much of the evidence from social science research places into question our reliance on those assumptions. Pretrial Publicity 35
Understanding How Pretrial Publicity Affects Decision-Making:
A Social Cognition Perspective
Choosing a Theory from Social Cognition to Sfudy Pretrial Publicity Effects
The field of social cognition is weil known for the ease with which its theories can be applied to real world scenarios. From altruism and romance to persuasion and stereotyping. social cognition researchers have uncovered and continue to shed light on the intriguing nature of humans (e.g., Fiske & Taylor, 1991). There were two important issues to consider in the choice of a social cognition theory to explore the effects of prejudicial news coverage on juror decisions. Fintly. it was necessary to choose a fairly well-developed theory that could connect the cognitive process supporting the influence of pretrial publicity and the resultant judgement. Secondly, because research has shown jurors take their responsibility quite seriously (Hastie, Penrod, & Pennington, 1983) it was important to consider the effects of goals in the choice of a theory. To this end, the research that had explored the relationship between mernory and judgernent, and how the processing goals of the decision-maker affect this relationship was chosen. This relationship is described below.
Person Memory and Judgement
The relationship between person memory and judgement is not a simple one.
When a judgemeot is required, one would expect that the relevant information be retrieved from mernory and then used as a basis for the decision. There should be a correlation between the information people recall and the judgements they subsequently Pretrial Publicity 36
make. However, many studies have shown that several types of judgements are quite independent from the recalled material on which they were based. Initial studies were those on impression formation in which subjects were given trait descriptions of people and then asked for their likability ratings and to recall the trait adjectives (Anderson &
Hubert, 1963;Dreben, Fiske, & Hastie, 1979). The results of these studies showed that the likability ratings were most affected by the foremost adjectives but recall was strongest for the later adjectives. The most surprising result however, was that impression and recall were not correlated. The absence of a correlation between impression and recall was also found in studies on recall and attributions, person perception, judgements of guilt, and persuasion (Fiske & Taylor, 1991).
Subsequent research began to clarify the conditions under which the judgement- recall relationship could and could not be observed. Bargh and Thein (1985) showed that no correlation was observed when people had time to form their impressions on- line, or as they receive the information. On the other hand, a significant correlation between recall and judgement was observed for people who did not have time to fom impressions on-line. It seemed that these people were basing their judgements on the material that they recalled from memory. This type of judgement was temed 'memory- based". The on-line versus memory based distinction is useful and it describes nicely memory-judgement relations. It also underlines the importance of the perceiver's goals.
Pretnal Publicity May Initiate Juror impressions of Defendant Guilt
Experimental work sirnulating the jury situation can create a number of methodological problems. For sxample, after subjects receive the pretrial publicity Pretrial Publicity 37
information, they often are asked to indicate their verdict (e.g., Kramer et al., 1990; Otto et al., 1994). Trial evidence is presented following this and then subjects are asked to indicate their verdict a second time. This rnethodology introduces potential confounds:
Subjects rnay want to appear consistent from verdict to verdict; or, having made a judgernent, they rnay seek information that confirms their initial decision during presentation of the trial evidence.
This methodological problem of forming a judgement prior to hearing the trial evidence is related to what rnay be occurring naturally in actual and sirnulated juror decision-making situations. After exposure to biasing media publicity. jurors rnay fom a tentative impression of the defendant's guilt. Because the goal of jurors is to decide on a verdict, they rnay continue to update or weigh their impressions as additional pieces of information are presented. It is predicted that this tendency to update or weigh one's impression of the defendant as new information is received may influence the way subjeds process, construe, or attend to the trial evidence. Pretrial publicity effects then, rnay lie in the degree to which the pretrial information initiates juror impressions about the defendant's guilt, which then colours processing of the subsequent trial evidence.
This possible cognitive contribution to pretrial publicity effects is addressed below in
Experirnent 1.
Applied to the effects of pretrial publicity it was hypothesised that this impression of a defenaant's guilt rnay bias the way jurors process trial information: They rnay seek to confirrn their initial impression to appear consistent to themselves and others, the impression rnay bias the particular information they attend to, or the impression rnay bias their memory for the trial information. Another possibility is that the decision rnay Pretrial Publicity 38
influence their interpretations or construals of the trial information. The first experiment was conducted to determine whether prejudicial publicity influences subjeets' construals or interpretations of the trial evidence. Pretrial Publicity 39
EXPERIMENT 1:
THE ROLE OF CONSTRUAL IN THE PRETRIAL PUBLlClTY BlAS
The following study tested the prediction that pretrial publicity affects the interpretation of trial evidence. The main dependent measure consisted of a series of statements tha: were designed to tap subjects' interpretations of the trial evidence. This
'construal' measure is similar to the one developed by Buehler & Griffin (1994) who studied the effects of conformity decisions on the construals of past events. In one of their experiments, subjects were given three short newspaper clippings about a shooting incident involving the police and two youths who had been driving a stolen vehicle.
During the incident one of the youths was fatally wounded. The newspaper i'eports contained the comments of the police, the family of the victim, and an eyewitness.
Taken together, these conirnents attributed differential blarne to the police and the youths. The construal measure assessed subjects' interpretations of the true events of this incident based on their readings of the newspaper reports.
In the present study, subjects were presented with positive, negative or no pretrial publicity prior to reading the events of a trial. It was predicted that both positive and negative publicity would bias subjects' interpretations of the evidence as well as influence a variety of judgements such as probability ratings of defendant guilt, sentence recomrnendations, and verdict judgements. Pretrial Publicity 40
Method
Participants
Permission was granted by the Vancouver Law Courts to Jim Ogloff, students and researchers of the Simon Fraser University Law and Psychology Laboratory to conduct research with members of the public who had been surnmcned for jury duty.
Residents who are summoned for jury duty to the Vancouver Law Courts typically sit in the courtroom for a period of time before the court begins the jury selection process. It was during this time that Experiment 1 was conducted. Over a period of three days, three different groups of people were presented with the materials for Experiment 1.
After being informed about the nature of the study and that participation was voluntary, a package of materials was handed to al1 of the potential jurors. Those who did not wish to cornplete the study simply handed back the package of materials to the researcher. All data were collected in the morning during three half-hour sessions.
Approximately one-third of each group completed the study. The final subject pool consisted of 42 males and 53 fernales. The age range was 25 to 56 years.
Procedure
Participants were told simply that the study assessed people's memories for trial information. The package of materials was handed out to everyone seated. lncluded in the package was a brief description of the study, a consent form, the stimulus materials
(including two newspaper articles andlor a fact sheet), the trial transcript, and a booklet of dependent measures. The consent form was collected before subjects began the Pretrial Publicity 41
study.
The two experimental groups, the positive publicity and negative p~blicitygroups, as well as a control group received a one-page summary of the history of the Christian
Brothers (see Appendix A). This information was factual and emotionally neutral.' In addition to the fact sheet, participants in the positive and negative publicity conditions read honewspaper articles. Subjectç in the positive publicity condition were presented with positive pretrial publicity that provided information that exculpated the defendant of a crime; subjects in the negative publicity condition read negative pretrial publicity that provided information that implicated the defendant in a crime. The stories in these articles were based on actual newspaper articles that were taken from widely read newspapers previous to the defendant's trial.' The valence or degree of emotionality of the publicity was controlled across the positive and negative groupsa3Both experimental groups received pretrial publicity that described the character of the defendant and both groups received publicity in which a person peripherally tied to the case made comments about the validity of the allegation of abuse. Specifically, subjects in the positive group
l Ten people drawn from the university subject pool rated the background information. They were asked to rate the material on a scale from i(I feel negative emotion after reading this) to 7 (1 feel positive emotion after reading this). A score of 4 indicates that the subject felt no emotion. The mean score was 4.5. Newspaper reports had occurred throughout the duration of the year previous to the defendant's trial. Forty subjects rated one of the four articles on a scale from l(article describes defendant very positively) to 7(article describes defendant very negatively). A score of 4 indicates that the subject believed the defendant's description in the article was neutral. The two positive and the two negative articles received comparable rnean ratings in the degree to which they deviated from the neutral midpoint of 4. Pretria! Publicity 42
read about an interview with a former ward of the orphanage wtio described the noble nature of the defendant. The other article involved an interview with a former police chief who insisted that the witnesses were mistaken about the defendant's identity (see
Appendix B). Subjects in the negative group read about a ward who described the defendant as a cold and intirnidating man. The other article was an interview with the mother of a ward who had been physically abused during his stay at the orphanage (see
Appendix c).'
Following this, al1 subjects were presented with the sarne trial evidence (see
Appendix D). The trial was based on the true facts of the case, Dagenais v. CBC
(1994), though altered in two important ways: 1) the defendant was charged and tried with two counts of sexual assault by two different people, and 2) the number of prosecution and defense arguments were the same. The case thus involves two respondents, Smith and MacDonald. who each charge a member of the Catholic order of
Christian Brothers, Brother Stephens. with one count of sexual abuse, which supposedly occurred during their care at St. Luke's orphanage. As well, the names of al1 parties involved in the trial were changed.
The procedure for the study lasted approximately 30 minutes. While collecting the cornpleted questionnaires, the researcher perçonally thanked al1 subjects and they
The article describing the positive character of the defendant was altered to make a complimentary article describing the defendant in negative ternis. The second set of positive and negative articles referring to the mistaken identity and the rnother of an abused ward were not well-matched on content but were given comparable ratings on the degree to which they were positive and negative. Pretrial Publicity 43
were given a debriefing sheet that explained the purpose of the research in more detail.
A Summary of the Tnal Arguments
During the course of the trial proceedings, the two respondents and two witnesses took the stand to answer questions by both the defense and prosecution lawyen. There were four points of debate during the trial, each of which was manipulated by the lawyers to strengthen their own position. These four points of debate between the defense and prosecution are important to the dependent measures.
The complainant, Smith, was the first to approach the stand. During questioning by the prosecution about his abusive experience, it was revealed that the abuse occurred during a chicken pox epidemic and that the accused, Stephens. had assaulted him while applying a lotion to the rash. The abusive experience, according to Smith. caused him to rebel against his caregivers at the orphanage and eventually he was expelled. after which he turned to a life of crime. The implication here is that Smith's criminal behaviour was due to his abusive experience by Stephens. The defense lawyer tries to throw doubt on Smith's testimony by referring to events in which Smith himself admits that he lied.
The second cornplainant, MacDonald, takes the stand and is also questioned about his abusive experience. During his testimony it is revealed that the details of the abuse are almost identical to those of Smith's experience. The reliability of both his own and Smith's testimony is strengthened by the fact that the two witnesses had not met or talked before the trial. The defense then questions MacDonald about when he had contracted the chicken pox. It is revealed that Brother Stephens was not at the Pretrial Publicity 44
orphanage during the year the abuse supposedly occurred. The defense suggests that
MacDonald is confusing Stephens with someone else.
The defense then questions the first witness, Dr. Williams, who worked at a clinic where many of the orphanage's wards were treated. According to her records
MacDonald did not visit the clinic during the year the lotion was received by MacDonald and applied by Stephens. However, the prosecution's point reveals that her records did indicate MacDonald was using a cream obtained elsewhere. The prosecution suggests through this point that MacDonald may have confused medical centres that he visited over 20 years ago.
Finally, a second witness, Kerr, a former ward of St. Luke's, takes the stand and is asked about the character of the defendant. He describes how everyone at St. Luke's loved Stephens, that he had never witnessed any abuse, and he is adamant that
Stephens could never have committed the crimes of which he is accused. The defense counters this by revealing that many of the boys would have had to go to Stephen's office to have the lotion applied and that Kerr would not have been witness to the abuse.
In summary, the trial contained an equal number of arguments presented by both sides of counsel that are of fairly equal credibility. The trial was constructed in this manner so that guilty decisions would be observed approximately half the time when Pretrial Publicity 45
pretrial publicity was not given. This result was observed in a pilot study!
Dependent Measures
A construal measure was assessed to determine whether the publicity information affected the interpretation of the trial evidence as favourable or unfavourable to the defendant's case (see Appendix E). An exarnple of one of the construal items is as follows: One of the trial arguments centres on one of the cornplainant's memories of a visit to a medical centre as a child during the period of time that the abuse occurred.
During the prosecution's questioning of one of the witnesses, a medical doctor, it is revealed that the doctorls clinic has no record of the cornplainant's visit, thus throwing doubt on his claim. However, the defense counters this argument by asking the witness the question of whether it is possible that a child might confuse one medical centre with another, to which the witness agrees. If a subject has formed a tentative impression of
A pilot study was conducted for two reasons: (1) to check the reliability of the constructed construal rneasure, and (2) to ensure that the verdict measure did not yield either floor or ceiling effects. Forty university students participated in the pilot study. ). Reliability analyses were conducted to determine the interna1 consistency of the construal scale or the degree to which the items in the scale intercorrelated with each other. The item-total correlations for 8 of the 10 construal items were .3 or larger. The final construal measure was composed of 8 items that were originally theorised to reflect one's interpretation of the evidence. The reliability of the 8-item construal measure based on the data from the pilot study was acceptable (Cronbach's alpha = .62).This reliability score is comparable to that calculated for a similar construal measure designed by Buehler and Griffin (1994). As well, the correlation between the total construal score and the probability of guilt was significant in a one-tailed test for both the Smith (first charge) and the MacDonald (second charge) charges, r (40) = .73, p c ,001 and r (40) = 56,p < .001, respeclively. Al1 40 subjects recommended the same verdict for both charges. When pretrial publicity was not given, 57% of subjects recommended a guilty verdict and 43% recornmended a not guilty verdict. Pretrial Publicity 46
guilt or non-guilt based on the pretrial publicity, then they should favour one argument more than the other. To determine the direction of interpretation and the degree to which subjects accepted the trial arguments they were asked to indicate their response on a Likert scale in which the numbers 1 through 7 were replaced with Xs. In the above example of a construal item, subjects were asked "According to your image of the situation: What does Mr. MacDonald's testimony about his age at the time of the alleged events indicate?" The choice at one end of the scale is the defense argument "that his testimony is unreliable;" the choice at the other end of the scale is the prosecution argument "that he may be confusing one medical centre with another." Circling the middle 'X' would indicate a neutral interpretation of the events. Thus, the construal measure assessed how the individual trial arguments were interpreted or recalled by su bjects.
A number of questions designed to measure how culpable subjects believed the defendant to be followed the construal measure. Subjects were instructed: "Imagine that you are a juror and you have just heard this trial in court. It is your responsibility along with 11 other jurors to decide on a verdict for the defendant. Please respond to the following questions using the scales provided." Subjects were asked to rate the probability that the defendant was guilty of each of the two charges on a scale from 0% to 100%. Also they were asked to recommend a sentence length if the verdict turned out to be guilty and they were asked to rate how confident they felt about each of their verdicts (0% confidence to 100% confidence). Thus, subjects were required to give two probability ratings of guilt, two verdicts, two recommended sentence lengths, and two ratings of confidence in verdicts, one for the Smith charge and one for the MacDonald Pretrial Publicity 47
charge. Finally, participants were asked whether they had heard of the Mount Cashel
Orphanage scandal. how they had reached their verdicts. and whether they thought that the background information andior the newspaper articles affected their verdict decisions.
Predictions.
It is predicted that both positive and negative pretrial publicity will influence subjects' interpretations of the trial evidence. as measured by the construal questionnaire. Subjects who are presented with positive publicity will favour defense arguments compared to control subjects. Those who receive negative pretrial publicity will favour prosecution arguments compared to controls. Guilty verdicts will be given less frequently in the positive publicity condition and more frequently in the negative publicity condition compared to the control group. Subjects' ratings of the defendant's guilt as well as prison sentence recommendations will be lower in the positive publicity conditions compared to the control condition. As well. these two dependent measures will yield higher mean scores in the negative publicity group compared to the control.
There were no specific predictions regarding the measure of verdict confidence. Rather, this measure was included as a check that subjects who were exposed to pretrial publicity felt as confident about their verdicts as those in the control group. If subjects in the experimental groups suspect they may have been biased by the pretrial publicity, this measure might indicate it. Pretrial Publicity 48
RESULTS
Based on the results of a pilot study of the construal measure (see footnote 5), scores for the eight construal items were summed to yield a composite score that ranged from 8 (indicating an interpretation of innocence) tu 56 (indicating an interpretation of guilt). The reliability of the contrual measure based on the results of Experiment 1 was good (Cronbach's alpha = -71).
At the end of the questionnaire subjects were asked whether they had heard of the sex abuse scanda1 at Mount Cashel Orphanage in Newfoundland. Two subjects in the control group and one subject in the positive publicity group indicated that they had heard of the Newfoundland case. None of these subjects indicated that they were aware of the verdict rendered in this case. All arialyses were conducted with and without these subjects. Because there was no difference in the results when these subjects were excluded, their data was included in al1 final analyses.
As shown in Table 1, positive pretrial publicity affected subjects' interpretations of the trial evidence in favour of the defense as indicated by the mean construal score (M =
28.82) compared to those who read negative pretrial publicity (M = 35.94) and those who did not receive any pretrial publicity (M = 33.34)'F (2, 91) = 6.78, p = .002. The mean construal score for the positive publicity group differed significantly from that of the control group, t (91) = 2.26, p = 0.03.' The mean construal score for the negative publicity group did not differ from that of the control group though the means of the
For both Experïments 1 and 2 al1 differences among group means were tested using a priori Iinear contrasts unless indicated otherwise. Pretrial Publicity 49
positive and negative publicity groups were statistically different, t (91) = 3.63, p c .001.
An analysis of variance conducted on the probability estimates of the defendant's guilt for each charge showed that the positive publicity manipulation had the largest effect. The results of this analysis are presented in Table 2. For the first charge, subjects in the positive publicity group rated the defendant less guilty (M = 38.24%) than subjects in either the negative publicity or control groups (69.69% and 59.48%), F (2, 92)
= 8.08, p = .001. A contrast analysis revealed the cornparison between the positive publicity and the control groups to be significant, t (92) = 2.59, p = 0.01. As well, the difference between the positive and negative publicity groups was significant, t (92) =
3.93,p c 0.001.
For the second charge, the probability estimates of the defendant's guilt were
43.24%, 68.44%, and 55.00% for the positive, negative, and control groups, respectively, F (2, 92) = 5.09, p = .008. For this charge, only the comparison between the positive and negative publicity groups revealed a significant difference, t (92) = 3.19, p = .O02
Subjects were asked what sentence length they would recommend if the defendant was found guilty. As shown in Table 2, there was a marginal effect of pretrial publicity on sentence recommendations. For the first charge, mean recommended sentence lengths were 3.70 years, 4.61 years, and 5.67 years, for the positive, control, and negative publicity groups, respectively, F (2, 88) = 2.57, p = .08.A comparison of the positive and negative groups showed this difference to be significant, t (88) = 2.27,p
= .03.
For the second charge, the results were similar: There was a marginal effect of Pretrial Publicity 50
Table 1:
Construal Items and Scores for the Three Conditions in Experimenf 1.
Questions Conditions Positive Control Negat ive 1. What was Mr. Smith like growing up in the orphanage? (1 2.91 3.07 3.31 = rebellious to 7 = no more difficult than any other child) 2. Were the events that took place at the orphanage clearly 4.06 5.24 described by Mr. Smith? (1 = very clear to 7 = not very clear) 3. How likely is it that Mi. Smith remembered accurately the 3.44 4.62 details of past events that took place at the orphanage? (1 = very likely to 7 = not very likely) 4. What happened when Mr. Smith appeared on the Oprah 3.62 4.14 Winfrey show? (1 = he lied about his orphanage experience to 7 he became emotional and got carried away with his story) 5. Why did Mr. Smith have a hard time finding a job after 4.09 4.21 leaving the orphanage? (1= because he was a criminal and couldn't be trusted to 7 = because of his bad experience at the orphanage) 6. Were a lot of children abused during the time that Brother 3.26 3.59 Stephens worked there? (1 = none were abused to 7 = a lot, almost everyone had an abusive experience) 7. How likely is it that Mr. MacDonald remembered 3.50 3.69 accurately his abusive experience? (1 = not very likely to 7 = very likely) 8. What does Mr. MacDonald's testimony about his age at 3.94 4.79 the time of the alleged incidents indicate?(l = that his testimony is unreliable to 7 = that he may be confusing one medical center with another) 9. Did it appear from Mr. Smith's testimony that many of the 5.59 5.83 boys had to have an ointment applied to their bodies? (1 = only a few boys to 7 = a lot of boys) 10. How similar were the testirnonies of Mr. Smith and Mr. 5.68 5.76 MacDonald concerning their experience at the orphanage? (1 = very similar to 7 = not that similar) Composite Construal Score (based on the first 8 items) 28.82 33.34 a
Note: All questions begin with 'According to your image of the situation:" Higher scores indicate an interpretation of guilt. ltems 9 and 10 are filler items. ltems 2 and 3 were reverse-scored. Pretrial Publicity 51
pretrial publicity on prison sentence recommendations, F (2,87) = 2.55,p = .08.Mean
recommended sentence lengths for the positive publicity, control, and negative publicity
conditions were 3.88 years, 4.14 years, and 5.69 years, respectively. Again, only the
difference between the positive and negative groups was significant, t (87) = 2.12, p =
.04. Mean ratings of confidence in verdicts for either charge did not differ significantly
among groups.
Table 2:
Summary of Results for Experiment 1.
Question Positive Control Negative F P
How likely do you believe it is that Brother Stephens is guilty of lndecent Assault against: 1. Mr. Smith? 38.24% a.b 59.48% 69.69% a 8.08 .O01 34 29 32
2. Mr. MacDonald? 43.24% a 55% 68.44% a 5.09 ,008 (0% not guilty to 100% guilty) 34 29 32 How long of a sentence should Brother Stephens receive if he is found guilty of lndecent Assault against: 1. Mr. Smith? 3.70 a 4.61 5.67a 2.57 .O8 33 28 30
2. Mr. MacDonald? 3.88 a 4.14 5.69 a 2.55 .O8 (range from O prison time to 10 33 28 29 years) Note: Means and percentages that share superscripts are significantly different from each other. Where the means share a superscript but the p value for the omnibus F test is marginal, contrasts revealed that these means were significantly different at the p c .O5level or greater. The numbers below the means and percentages indicate the cell n.
Subjects' verdicts were collapsed across the two charges and a chi-square Pretrial Publicity 52
analysis was conducted. It was predicted that positive pretrial publicity wouid affect subjects' decisions favourably. Conversely, there should be more subjects in the negative publicity condition retuming guilty verdicts. Thirteen subjects rendered different verdicts for the two charges. These subjects came from al1 three of the conditions: there were four from the positive publicity group, five from the control condition, and four from the negative publicity group. They were excluded from the analysis. The hypothesis that verdicts and conditions are independent was rejected, X* (2. N = 95) = 15.59, p =
.0004.As shown in Tabie 3, 20% of subjects in the positive publicity condition rendered guilty verdicts. In cornparison, 71% of subjects in the negative publicity group rendered guilty verdicts. The control group was divided evenly on verdicts: 50% pronounced the defendant guilty .
Table 3:
Percentage of Subjects in the Positive, Negative, and Control Conditions Returning Not Guilty and Guilty Verdicts
Conditions
Positive Control Negative n n n Not Guilty
Guilty
Subjects' construal scores were significantly correlated with their likelihood ratings of the defendant's guilt: r (94) = .75, p < .00It for the Smith charge. and r (94) =
.74, p c .001,for the MacDonald charge. It appean from these highly significant Pretrial Publicity 53
correlations that subjects are basing their guilt ratings on the interpretation of the facts.
Discussion
It was hypothesised that negative pretrial publicity would significantly affect people's interpretations of the trial evidence in a direction less favourable to the defense compared to people who had not received any pretrial publicity. It was also hypothesised that positive publicity would bias people's construals of the events in favour of the defendant. This latter hypothesis was strongiy supported by the data from the construal measure, from the probability ratings of defendant guilt, and from the verdicts.
The data from subjects in the negative publicity condition are less but not unsupportive of a pretrial publicity effect. None of the means from any of the dependent measures in this group are significantly different from the control means, though they do differ from those in the positive pretrial publicity condition. However, the fact that the construal scores, probability ratings of guilt, recommended sentence lengths, and verdicts in the negative publicity condition al1 show the bias in the expected direction, even though these do not differ from controls cannot be ignored. A possible reason for the lack of a significant effect in the negative publicity condition is that subjects may have been more aware of the negativity surrounding the defendant and then consciously corrected their responses so as not to let it affect their judgements. This possibility however, suggests that subjects were aware of the nature of the study. During debriefing subjects were asked if they suspected the tnie purpose of the study and none indicated that they had. The more probable reason a significant effect was not observed Pretrial Pablicity 54
in the negative publicity group rnay be due to a lack of power. A calculation of the estirnate for the effect size in construal scores, for example was -43,which is relatively small. Unfortunately, use of the jury pool put constraints on the number of subjects I was able to obtain. In summary, positive pretrial publicity had a greater impact on subjects' interpretations of the evidence compared to negative pretrial publicity.
The correlation between subjects' construal scores and their ratings of the probability of the defendant's guilt was highly significant for both charges. These results suggest that subjects are using their interpretations of the trial evidence as a basis for their subsequent guilt ratings. It also appears that subjects are using their interpretations of the evidence to decide their verdicts. In a separate analysis, subjects in the positive publicity group and the negative publicity group were divided according to their verdicts, not guilty or guilty, and t-tests were conducted on ali eight of the construal items as well as the mean construal score. With the exception of the first construal item, the means for ail seven constnial items as well as the mean composite construal score differed significantly between subjects who had rendered not guilty verdicts and those who had rendered guilty verdicts. These results were consistent for both charges. All of these results taken together strongly suggest that participants' interpretations of the evidence were guiding their judgements.
The purpose of Experiment 2 is to examine whether impression formation or memory-judgement (or perhaps both) processes are involved in verdict decisions. Pr~triaiPublicity 55
EXPERIMENT 2:
ON-LINE IMPRESSION FORMATION
AND MEMORY-BASED JUDGEMENTS
As jurors contemplate the verdict of an accused. they are recalling from memory a vast array of information related to the case such as pieces of evidence. impressions they foned of the defendant. comments made by lawyers, etc. Though the complex decision process of juron appean to be impossible to describe exactly. it is possible to speculate on the relationship that exists between the contents of memory and the final judgement.
Research in the area of person memory and judgement can be applied to understanding how juron make their decisions as well as inform us about how pretrial publicity affects these decisions. The literature on person memory and judgement is rich and years of research indicate that people seem to form judgements using penon- relevant information in two different ways: on-line or memory-based (Fiske & Taylor,
1991).
On-line impression formation is an automatic process (Hastie & Park, 1986), often occurring without the awareness of the perceiver and beyond the perceiver's mental control (Wilson & Brekke, 1994). Everyday examples of spontaneous social jüdyernents abound. For example, trait and causal inferences are likely to be made automatically. Markus (1977) has shown that people spontaneously classify people Pretrial Publicity 56
along particular trait dimensions. Some people appear concerned with the intelligence of others, other people are concerned with the femininity-masculinity of those they encounter. Though people tend to make spontaneous inferences about those they meet, the traits they infer is an individual difference.
In most judgement tasks, the perceiver uses evidence information as it is received to form their evaluation. It has been proposed that because people are actively integrating target information in an attempt to form a social judgement, more associative links are formed leading to good recall of information about the target as well as a preprocessed impression of the target (Srull8 Wyer, 1989). A second processing outcome of impression-formation includes a primacy effect for recall because the early information is important to forming an impression of the target. Finally, because on-line judgements are made prior to the request, they will not be based on memory that is available at the time of judgement and therefore recall of information and judgements do not tend to be correlated (Hastie & Park, 1986).
Under different circumstances, perceivers may process information about targets without the goal or knowledge that they will need this information at a later time to make a judgement. In this situation, people have to draw on the contents of memory to inforrn their judgernent. Thus, one of the data patterns memory-based processing produces includes a high correlation between judgements and the recalled material. Mernory- based judgements will yield recency effects for recall because the recent items encountered will be the most available in memory. As well, recall of information is not as high as it is for impression-based recall supposedly because people are not integrating new information as it is received into a tentative prejudgement. Pretrial Publicity 57
To summarise the expected data patterns for the two kinds of judgement processes: Evidence for on-line impression formation consists of high levels of recall of information, a primacÿ effect in recall, and a lack of correlation between memory and evaluations. Evidence for mernory-based judgements consists of poor levels of recall, a recency effect in recall. and strong correlations between memory and judgement
(McConnell, Sherman, & Hamilton, 1994).
The Goal of the Decision-maker
An important variable affecting the memory-judgement relationship is the goal of the decision-maker (Hastie & Park, 1986; Fiske & Taylor, 1991). For example, by rnanipulating the processing goal of subjects, it is possible to induce either on-line cr memory-based information processing. Tasks that require subjects to form a detailed and integrated impression of the target lead to on-line processing. Tasks that require subjects to judge the grammaticality or a behaviourally unrelated dimension of the information prevents on-line inferences and subsequent judgements are made in a memory-based manner (Hastie & Park, 1986). As well, rnemory-based judgements are more likely to occur if during the task, the subject is unaware that an impression is required or if the subject is unable to form an impression (Fiske & Taylor, 1991).
By manipulating task instructions to subjects, the second experirnent will dernonstrate that people who engage in impression-based processing of the trial evidence are vulnerable to the influence of pretrial publicity. On the other hand, memory-based processing does not cause the perceiver to use the prejudicial publicity in this way. It is hypothesised that an impression of the defendant's guilt is initiated by Pretrial Publicity 58
the pretrial publicity, which subsequently influences the interpretation of the trial events.
This interpretation of the evidence then affects the verdict judgement. When this
impression formation is prevented, construals of the evidence will not be affected by the
pretrial publicity, and subsequently, neither will the verdicts show the publicity bias.
Furthermore, dependent measures will be implemented that reveal that the bias at
decision time in the impression formation group is not due to a recall of the events but to
a recall of the interpretations formed. On the other hand, the judgernent given by those
who engaged in memory-based processing is due to the material recalled and not due to
the interpretation of the evidence.
The application of these predictions to the situation in which jurors have
previously been exposed to pretrial publicity and then subsequently heard trial evidence
is as follows. The nature of pretrial publicity is usually presented in an easy to process format, ready to be absorbed by consumers of newspaper, radio and television. In many cases, the implication of guilt or innocence is given. Even if it is not given, people are aware that an accused may eventually be tried and thus the implication of a judgement is present. It is predicted in this scenario that impression-formation, an automatic process, wili occur. This initial impression may then be recalled at a later date and influence the material encoded andlor recalled in the courtroom. Jurors are aware of the processing goal in this situation: to make a verdict judgement for the accused. It seems apparent then, that on-line impression formation must occur as the juror synthesises the information given during course of a trial.
In the present study, one group of participants wilt be specifically instructed to process information in an impression-formation manner; another group will be prevented Pretrial Publicity 59
from doing this and be given a very different processing goal. Both groups will later be asked to give their interpretations of the trial events and to render verdicts for the accused. The purpose of manipulating people's processing goals is to observe the subsequent effect on the pretrial publicity bias.
Methodological Consideration
One potential problem with the following experimental hypothesis concerns the automaticity of the impression-formation process. This process tends to be initiated automatically when perceivers are in a social situation. Hastie and Park (1986) reported difficulty obtaining memory-judgement correlations early in their research. This difficulty was linked to the fact that subjects were forming spontaneous judgements on-line even though subjects were given instructions that should have prevented them from forming an impression. Spontaneous judgements do not occur when the task does not demand it and when there is another more pressing goal at hand to accomplish.
Spontaneous impression-formation in the comprehension-set group poses a problem if one hopes to observe the data pattern that memory-based processing yields.
To prevent spontaneous on-line impression formation in the comprehension-set group, subjects were distracted from the fairly obvious goal of reading the trial transcript -- that is, to make a verdict judgement of the accused. These subjects were required to check the materials for comprehension in a limited amount of time. Because the task was different from the final judgernent of interest, and because it required a fair arnount of cognitive resources, on-line impression formation should be minimal or absent. Pretrial Publicity 60
Predictions
If subjeds are prevented from forming spontaneous on-line impressions of the defendant, then pretrial publicity effects will be eliminated or attenuated as measured by subjects' construals of the trial evidence, compared to those who are instructed to forrn an impression of the defendant. It is also predicted that the probability ratings of the defendant's guilt as well as verdict judgements will not be affected by the negative publicity in the comprehension-set condition as they will be in the impression-set condition. These results would support an impression-based process underlying pretrial publicity effects.
Method
Participants
Due to the difficulty of obtaining a large number of people from the jury pool during the fall session, participants in Experiment 2 were recruited from the university subject pool of introductory psychology students. All subjects received 2% of their grade in an introductory psychology coune for their participation in the study. There were 45 females and 26 males that were randomly assigned to three conditions. Subjects' ages ranged from 19 to 35 with a mean age of 23.
Procedure
Subjects participated in groups of ten. They were instructed not to talk during the study, and to read the materials in the order they received them. They were casually Pretrial Publicity 61
monitored through a window during this time. A package of experimental materials was handed to subjects. They received the materials in the following order: a short description of the study, a consent form, the task instructions, a factual summary of the history of the Christian Brothers, Mo newspaper articles containing negative information about the defendant, the trial transcript, and a booklet of dependent measures that included a free recall measure. Participants were instructed to place the trial transcript back in the envelope once they had read it and to not refer to it once they had begun to answer the booklet of questions. The factual summary of the Christian Brothers, the negative publicity, the trial transcript, and part of the dependent measures were identical to those used in Experiment 1. The consent form was collected before subjects began the study. Because deception was used, at the end of the study subjects were debriefed and consent to use their data was sought. All subjects gave the researcher consent to use their data. The study took approximate!y 40 minutes to complete.
The independent variable was the task instruction given to subjects. Before reading the publicity information and the trial transcript, subjects were given the task instructions. The impression-set group was told to form an impression of the defendant
(Appendix F); the comprehension-set group was told to read the materials for the purpose of determining whether a 10-year old would be able to understand them
(Appendix G). Subjects in the cornprehension-set group were instructed to circle any word, phrase, sentence, or paragraph that they believed a 10-year old child would not be able to understand. They were also told to complete this task within 25 minutes. The control group was given the same materials as the impression-set and cornprehension- set groups except for the task instructions, the negative publicity, and the free recall Pretrial Publicity 62
measure. Control subjects were given the same instructions as control subjects in
Experiment 1.
Subjects received a string of dependent measures in the following order: a free recall measure, the construal measure used in Experiment 1, probability ratings of defendant guilt, and verdict judgements. Sentence recommendations and confidence ratings in verdicts were not included among the dependent measures in this experiment due to tirne considerations and to the fact that there were no specific predictions supplied by the impression- and memory-based processing theory for data of this sort.
The free recall measure included instructions to recall as much of the trial evidence as possible and to identify whether it was the prosecution or defense that gave the argument. Recall was scored for the number of prosecution and defense statements as well as primacy and recency features. These measures are described in more detail below.
Results
Reliability of Construal Measure
The same eight-item construal measure used in Experiment 1 was implemented in the present study. The reliability of the construal measure was acceptable
(Cronbach's alpha = .63).
Mean Construal Scores
As in Experirnent 1 and displayed in Table 4, subjects' responses to the fint eight construal items were summed to create a composite construal score ranging from 8 to Pretrial Publicity 63
Table 4:
Construal ltems and Scores for the Three Conditions in Experiment 2.
Questions Conditions - Comp-set Imp-set Control What was Mr. Smith like growing up in the orphanage? (1 = rebellious to 7 = no more difficult than any other chitd) Were the events that took place at the orphanage clearly described by Mr. Smith? (1 = very clear to 7 = not very clear) How likely is it that Mr. Smith rernembered accurately the details of past events that took place at the orphanage? (1 = very Iikely to 7 = not very likely) What happened when Mr. Smith appeared on the Oprah Winfrey show? (1 = he lied about his orphanage experience to 7 he became emotional and got carried away with his story) Why did Mr. Smith have a hard time finding a job after leaving the orphanage? (1= because he was a criminal and couldn't be trusted to 7 = because of his bad experience at the orphanage) Were a lot of children abused during the time that Brother Stephens worked there? (1 = none were abused to 7 = a lot, almost everyone had an abusive experience) How likely is it that Mr. MacDonald rernembered accurately his abusive experience? (1 = not very likely to 7 = very likely) What does Mr. MacDonald's testimony about his age at the tirne of the alleged incidents indicate? (1 = that his testimony is unreliable to 7 = that he may be confusing one medical center with another) Did it appear frorn Mr. Smith's testimony that many of the boys had to have an ointment applied to their bodies? (1 = only a few boys to 7 = a lot of boys) How similar were the testimonies of Mr. Smith and Mr MacDonald concerning their experience at the orphanage? (1 = very similar to 7 = not that similar) Composite Construe Score (based on the first 8 items) 32.60 40.1 2 a 35.55 a
Note: All questions begin with 'According to your image of the situation:" Higher scores indicate an interpretation of guilt. Items 9 and 10 are fillers. Items 2 and 3 were reverse-scored. Pretrial Publicity 64
56, with higher scores indicating a greater negative pretrial publicity effect. There was a significant effect of publicity, F (2, 67) = 7.25, p = .001. As predicted, the pretrial publicity bias was observed in the impression-set group. Mean construal scores for the comprehension-set, impression-set. and control groups were 32.60, 40.12, and 35.55, respectively. A contrast analysis revealed that only the difference between the impression-set and control groups was significant, t (67) = 2.17, p = .03.As predicted, subjects who were given comprehension instructions were not affected by the negative pretrial publicity: There was no significant difference between the comprehension-set and control groups, t (67) = -1.40, p = .17
Probabiljty Ra tings of De fendant Guilt
Subjects were asked how likely they believed the defendant to be guilty of each of the two charges. There was a significant effect of pretrial publicity on subjects' probability ratings of the defendant's guilt for the first charge, F (2, 67) = 4.14, p = .02..
The means are presented in Table 5. Only the difference between the impression-set
(M = 82.40%) and control groups (M = 63.00%) was significant, t (67) = 2.86, p = .006.
Comprehension-set subjects' probability ratings (M = 72.00%) were not influenced by the negative publicity: There was no significant difference between the mean probability ratings in the comprehension-set and control groups.
There was also a significant effect of pretrial publicity on subjects' probability ratings of the defendant's guilt for the second charge, F (2, 67) = 7.76, p = .001. The difference between the impression-set (M = 84.80%) and control groups (M = 68.50%) was significant, t (67) = 2.53, p = .01. The difference between the cornprehension-set Pretrial Publicity 65
Table 5:
Summary of Results for Experiment 2.
Question Cornp-set Imp-set Control F P
How likely do you believe it is that Brother Stephens is guilty of lndecent Assault against: 1. Mr. Smith? 72% 82.40% a 63% a 4.14 .O2 2 5 25 20
2. Mr. MacDonald? 61.40% 84.80% a 68.50% a 7.76 .O01 (0% not guilty to 100% guilty) 25 2 5 20 Note: The numbers below the means and percentages indicate the cell n.
(M = 61.40%) and control groups was not significant.
Consistent with predictions, the subjects in the impression-set group rated the defendant as being guiltier compared to subjects in the other conditions. The construals of the trial evidence and the guilt ratings of the defendant were significantly affected by the negative publicity for those subjects told to form an impression of the defendant.
Those given comprehension instructions did not process the trial evidence in the sarne way as those who were given the impression formation task: Their construals and their guilt ratings of the defendant remained unaffeded by the negative publicity.
Verdict Judgements
A chi-square analysis conducted on verdicts yielded results that compliment those of the ANOVAs conducted on the mean construal scores and mean guilt ratings.
Verdicts were collapsed across the two charges. Fourteen subjects gave different verdicts for the two charges so these subjects were excluded from this analysis. Four subjects from the comprehension-set group. three subjects from the impression-set Pretrial Publicity 66
group. and seven subjects from control group gave different verdicts for each charge.
One subject in the impression-set group did not indicate any verdict. The verdict rates are presented in Table 6. In the impression-set group 86% rendered guilty verdicts compared to 57% of comprehension-set subjects and 62% of the control subjects. This chi-square analysis was marginally significant, x2(2, N = 70) = 4.87 p = .09.This pattern of results for verdict judgements is consistent with the construal data and subjects' guilt ratings of the defendant.
Table 6:
Percentage of Subjects in the Comprehension-set, Impression-set. and Confrol Groups Returning No t Guilty and Guilty Verdicts.
Conditions
Comp-set I mp-set Control n n n Not Guilty 43% 14% 38% 9 3 5 Guilty 57% 86% 62% 12 19 8
To determine whether guilt ratings translated into verdicts subjects were divided according to the verdict they rendered and a t-test was conducted on their probability ratings of defendant guilt. This was done for both charges. Of the 70 subjects, 45 rendered a guilty verdict for the fint charge and had a mean probability rating of defendant guilt of 84.89%. Twenty-five subjects rendered a not guilty verdict: Their mean probability rating of the defendant's guilt was 52%. These mean differences were significant in a t-test, t (68) = 7.48, p c .0001. Pretrial Publicity 67
The results for the second charge were much the same. For the second charge,
47 subjects said the defendant was guilty. Their mean rating of his guilt was 83.09%.
The 23 subjects who pronounced the accused not guilty had a mean guilt rating of
48.70%. These mean differences were ako significant in a t-test, t (68) = 7.93,p =
.0001.
To summarise, the mean construal scores, the mean probability ratings of guilt, and the distribution of verdict judgements indicate that subjects who were told to form an impression of the defendant were rnost affected by the negative publicity. Subjects who were given a comprehension task were not affected by the negative publicity as rneasured by their interpretations of the trial evidence and their ratings of defendant guilt.
As well, comprehension-set subjects' verdict judgements were also not as affected as impression-set subjects' verdicts were. These results, taken together, suggest that forming an impression makes the perceiver vulnerable to the influence of pretrial publicity. Subjects whose goal it was not to forrn an impression were not influenced by the pretrial publicity.
We now turn to the analysis of the recall data to look for evidence that subjects in the impression-set group made their judgements on-line, or as the information was received; and that comprehension-set su bjects were making memory-based judgements.
Recall Data
It was predicted that there should be particular patterns in the recall data that indicate whether subjects were processing the trial information in an impression- or Pretrial Publicity 68
memory-based rnanner. Subjects who base their judgernents on an impression forrned previously should show high levels of recall of the evidence, there should be a primacy effect in recall, and there should be no correlation between memory content and judgements. In the comprehension-set group. levels of recall should be lower. there should be a recency effect in recall, and there should be a high correlation between the items in memory and judgements.
Amount of Recall
Subjects were asked to list as many arguments as they could rernember and to indicate whether the prosecution or the defense used the argument. The evidence presented by the prosecution and defense lawyen at trial circulated around four thernes.
Thus, there were 4 prosecution arguments and 4 defense arguments making a total of 8 arguments that could be recalled.
A t-test was conducted on the total number of items recalled. There was no difference in the number of items recalled between the impression-set (3.76) and comprehension-set groups (3.68). Although these numbers are not indicative of the patterns that should be observed for the two kinds of processing. the absence of a difference in the means is not cornpletely disappointing. It should be noted that a low level of recall in the group receiving comprehension instructions might be due to the fact that subjects are too cognitively taxed to process the information appropdately. This is not a criticism that can be applied to the present recall data.
Primacy and Recency Effects
It was predicted that subjects who processed the trial information in an Pretrial Publicity 69
impression-basedmanner would show a primacy effect for this information. Conversely, subjects recalling information in a memory-based manner should show a recency effect for the trial arguments. A primacy index, similar to the one used in McConnell et al.
(1994) for similar purposes, was created to assess the primacy and recency of argument items recalled. The proportion of arguments recalled from the last three items (the last third) was subtracted from the proportion of arguments recaiied from the first three items
(the first third). A positive primacy index indicates that a subject recalled more arguments from the first third of the trial arguments (a primacy effect] and a negative primacy index indicates that a subject recalled more arguments from the last third of the trial arguments (a recency effect).
The primacy index for the impression-set group was .31and for the comprehension-set group, it was .17. As predicted there was a primacy effect for the impression-set group. Contrary to expectations, however. there was no recency effed for the comprehension-set group. In fact, both groups showed a primacy effect. The t- test indicated a marginal effect for the primacy index. t (48) = -1 -89, p = .07.Subjeds in the impression-set group showed a higher mean primacy effect than subjects in the comprehension-set group.
Memory-Judgement Correlation
According to predictions, a significant correlation between the kind of information recalled and the judgement given will be observed in the comprehension-set group but not in the impression-set group. For each charge, the nurnber of prosecution and defense items recalled were correlated with the guilt ratings of the defendant for each Pretrial Publicity 70
charge. Thus, there were four correlations for each group. In line with predictions, the
impression-set group showed no significant correlations. The comprehension-set group
subjects however, showed a significant correlation between the number of defense items
recalled and the probability of guilt for the second charge, r (25) = .34, p = .05. This
positive correlation is a bit surprising. It was expected that a negative relationship
between the number of defense items and the probability of defendant's guilt would be
observed. Perhaps subjects were evaluating the defendant's guilt through the
assessrnent of how well the defense countered the prosecution.
Construals and Judgements
A correlation analysis was conducted on the maan construal scores and subjects' ratings of guiltiness of the defendant for each of the two charges. The correlation between impression-set subjects' interpretations and their ratings of guilt of the defendant were significant but relatively low: For the first charge r (25) = .48, p = .O1 5 and for the second charge, r (25) = 59,p = .002. For the comprehension-set group. the correlation between construals and ratings of defendant guilt were higher but they were not significantly different from those of the impression-set group: For the first charge, r
(25) = 72. p < .O01 and for the second charge, r (25) = .75,p c .001. To some extent then subjects in both grcups are basing at least their ratings of the probability of defendant guilt on their interpretations of the evidence. Pretrial Publicity 71
Discussion
The prediction that subjects who process trial information in an impression-based manner would be influenced by the negative pretrial publicity was supported by subjects' interpretations of the trial evidence as well as by their ratings of the defendant's guilt. As described by Hastie and Park (1986),when a person's goal is to form an impression, the level of information processing is deep and more associations among the different pieces of information occur. Though subjects were instructed to base their judgements on the trial evidence alone, the news articles coloured the construction of the crime events, as measured by the conçtruals, and influenced their judgements of the defendant's guilt, as rneasured by the ratings of defendant guilt and verdicts. In an attempt to fulfil the judgement goal, it is likely that the articles became an important source of social information for subjects and thus they were integrated into the impression decision. This did not happen in the comprehension group.
According to Hastie and Park (1 986) when people are given a cornprehension task, the level of processing is usually low and the information is not well-integrated and therefore less well-remem bered. However, the recall data showed that subjects in the comprehension-set group remembered as much of the information as those in the impression-set group. The lack of a pretrial publicity effect in the comprehension-set group then, cannot be attributed to the fact that subjeds were not able to process the information sufficiently due to a cognitive load. Rather, the lack of a pretrial publicity effict in the comprehension group must be attributed to the way subjects processed the information. Pretrial Publicity 72
A chi-square analysis of subjeds' verdicts indicated a marginal difference
between the three groups. Guilty verdicts were more frequent in the impression-set
group compared to the other two groups. This result substantiates those of the
construals and guilt ratings.
Perbaps the most important result from Experiment 2 is that evidence for the
hypothesised on-line impression formation process underlying the pretrial publicity effect
was observed. A primacy effect for the trial information recalled was observed in the
impression-set group. though no recency effect for this information was observed in the
comprehension-set group. In fact, the prirnacy index calculated for the comprehension-
set group was above zero indicating that this group recalled slightly more items from the
first part of the trial. However. a t-test conducted on these primacy indices indicated that there was a marginal difference between them. Thus, there was a stronger primacy
effect for trial information in the impression-set group.
Predictions regarding the recall-judgement relationship were fairly well supported. One correlation, between the number of defense items recalled and the judgement ratings for the second charge, was significant for the comprehension-set group. None of the comlations were significant for the impression-set group. This, along with the other results discussed above, lend support for on-line impression formation in the impression-set group.
Although not ail of the data pattern markers indicating on-line and memory-based processing were present, the observation of a pretrîal publicity effect in the construals, probability ratings of defendant guilt, and the verdict data, but particularly the prirnacy effect in recall and the absence of a recall-judgement correlation, indicate that there is Pretrial Publicity 73
strong support for the involvernent of on-line processing underlying the pretrial publicity bias. Pretrial Publicity 74
CONCLUSION
Both negative and positive publicity presented prior to the exposure of trial evidence can influence the interpretation of trial elements as wefl as ratings of the defendant's guilt and verdict judgements. On-line impression formation is a candidate process underlying the formation of pretrial publicity effects. Evidence of on-line judgement processes underlying a negative pretrial publicity effect was observed in
Experiment 2 as measured Sy a primacy effect in recall, and the absence of a correlation between recall and judgement in the condition where subjeds were instructed to form an impression of the defendant. The fact that a positive correlation between the number of defense items recalled and mean guilt ratings of the defendant was observed in the comprehension-set group may indicate that these subjects were basing their judgernents on an assessrnent of the defense arguments. In future research one could test the hypothesis that subjects rnay have recalled the negative publicity at decision time but it had little effect on their judgements because they evaluated the quality of the defense arguments. This possibility has interesting implications for combating the influence of the media on jurors.
As well, the presence of significant correlations between the construals and guilt ratings in both groups suggests that subjects' interpretations of the trial evidence may have influenced their guilt ratings and judgements somewhat. In the impression-set group, the construal-judgement correlation was low but significant. In the cornprehension-set group the same correlation was high and significant. These Pretrial Publicity 75
correlations indicate that the construals may provide a possible mechanism through which subjects evaluate their decisions.
The results of Experiment 2 demonstrate that people's impressions of the trial evidence change with the introduction of negative pretrial publicity in a way that probably makes it difficult for them to evaluate how their impressions of the defendant's guilt were formed. As described above, the pretrial publicity bias is an exarnple of source confusion, or the inability to determine the extent to which one's judgement was influenced by biasing material.
Taken together, these two studies indicate that impression formation is a candidate process in the generation of the pretrial publicity effect. It is a relatively automatic and unconscious process and as such, it is difficult to control. Automatic processing of social information has adaptive value in Our daily lives (Wilson & Brekke,
1994). The fad that juron' best intentions to render a fair verdict potentially may be undone by a characteristic of their information processing system is unfortunate. The value of these results to the legal cornmunity is cautionary. Though pretrial publicity mig ht affect jurors' impressions of the defendant's guilt or innocence, whether their verdicts are ultimately affected is a question extrernely difficult to amwer given the complexity of factors involved in any one case and decision-making ad by a jury panel.
Based on the present results, I would advise to err on the side of caution and make an assessment of juror bias due to pretrial publicity in the situation where it is a concern.
Methodological Strengths and Weaknesses
Obviously, the more realism a study conveys the more likely subjects' responses Pretrial Publicity 76
will be ecologically valid. As well, the courts may be more likely to consider the results of a given study if it captures the features of many cases. Diamond (1997) has reviewed the improvements in jury simulation studies that have taken place over the last twenty years. Some of the important rnethodological features that have been more commonly observed in jury research recently include the use of community-members or juror pools rather than university students; videotaped trials instead of shortened, written sumrnaries as experimental stimuli; and dependent measures that are more realistic such as the dichotomous guilty-not guilty verdict instead of continuous variables such as recommended sentence lengths that perhaps provide more information but that fail to impart the realism necessary for subjects to fulfil properly the role of the juror.
The two experiments conducted display many of the strengths hypothesised to improve the external validity of jury simulation results. The external validity of the experiments is fairly high because the stimulus materials were based on an actual case and on real media publicity surrounding it. As well, subjects in Experiment 1 were drawn from the same pool that actual jurors are drawn from. Though students participated in the second study, the fact that similar results were observed in both studies, particulélrly with regard to the construals, lends more validity to Experiment 2.
Perhaps the greatest strength is the fact that the construal measure was proven to be a reliable methcd for assessing the effects of media information on trial evidence.
Two experiments dernonstrated that the measure reliably shows a bias due to pretrial publicity, particularly as measured by construals of the trial evidence and guilt ratings.
The construal measure is a simple method for assessing pretrial publicity effects and it also shows directly how the eviaence is coloured by the pretrial publicity, item by item. Pretria! Publicity 77
With any empirical study there are some weaknesses. The fact that the first experiment demonstrated a significant positive pretrial publicity effect in the construals, probability ratings, and verdicts but a negative publicity effect was not shown using these same rneasures is not easy to explain. Presumably the impression-formation process induced in the impression-set group in the second study is the same process occurring in both the negative and positive publicity groups in the first experiment. Why then, were no significant pretrial publicity effects observed in any of the measures in the negative publicity group? A lack of power is the most likely answer because of the srnall effect size needed to observe differences. It is unfortunate that the sample size was constrained by the use of the more externally valid juror subject pool. However, a negative effect of publicity was observed in Experiment 2 strengthening the obvious suggestion of one in the negative publicity condition of Experiment 1.
Application of Results
On-line impression formation is an automatic process, and one that occurs when people are presented with a task such as deciding a verdict. Ouring this process a vast amount of information, both extralegal and legal, is integrated. The fact that people have little mental control over automatic processes should be taken into account when a judge has to decide (1) if the pretrial publicity is prejudicial enough to consider a judicial remedy and (2) what remedy will be employed.
The nature of the impression formation process tells us something about the kind of remedy we should not employ. Two common remedies used by the court include: (1) admonitions to disregard media coverage of the trial and (2) asking the juror whether he Pretrial Publicity 78
or she could function as an impartial juror when exposure to publicity has already occurred. Impression formation is a relatively automatic process and once an impression is formed it is diffkult to forget (Fiske & Taylor, 1994). Thus, telling jurors to ignore any publicity they have been exposed to is not likely to work if an impression has already been formed. As discussed before, research on human biases has demonstrated that we are often unaware we possess a bias (Wilson & Brekke, 1994).
Thus, asking a prospective juror to assess his own impartiality is a useless remedy.
A recommendation to the court about how to assess whether jurors have been influenced by pretrial publicity would include advice to the judge to assess this without relying on the two remedies just rnentioned. If exposure to media coverage has occurred then an assessrnent of whether a bias has formed is necessary. Based on the results of this thesis, the court could measure whether jurors hold an impression of the defendant. The presencs of an impression of the defendant might indicate that pretrial publicity has affected the juror and so he or she should be exduded from jury service.
As well, there is the possibility that jurors themselves can take responsibility to avoid unwanted sources of information. If properly informed about their vulnerability to source confusion (or the inability to determine what factors affect their judgements) they could be instructed by the judge to avoid exposure to media coverage (Wilson and
Brekke, 1994).
Further Research
As discussed previously, the use of social science research could help to inform the courts when pretrial publicity is most likely to affect jurors. As well, a set of Pretrial Publicity 79
guidelines could be constructed that advise the courts on what kinds of precautions to take in the event that a defendant faces potentially damaging pretrial publicity.
Guidelines that have been created with the present research in mind would not include adrnonitions to the jurors to ignore any publicity they have been exposed to nor would they include questions to the jurors about their irnpartiality. Further research should be conducted to determine whether impressions of the defendant can be measured simply and effectively.
Other research should be directed toward the assessrnent of other kinds of judicial remedies for cornbating the biasing effects of pretrial publicity. For example, research on the effects of instructions to ignore biasing publicity is still inconclusive. If jurors are made aware that they have been biased by publicity then instructions might help them to correct for it, though it is difficult to predict whether they will overcorrect or correct appropriately.
In conclusion, these two studies contribute a good deal of potentially useful information to both the field of social cognition and to those in the legal community who are interested in keeping the justice system alive and well. Pretrial Publicity 80
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Legal Cases Cited
R. v. Parks (1993), 84 C.C.C. (34) 353 (Ont. C.A.).
R. v. English (1993). 83 C.C.C. (3d) 511 (Nfid. C.A.).
R. v. Williams (1994), 90C.C.C. (3d) 194 (B.C.S.C.).
Sheratt v. The Queen (1991), 63 C.C.C. (3d) 193 (S.C.C.). Pretrial Publicity 84
Appendix A:
Background Information: A Short History of the Christian Brothers
Background Information
The case you are about to read concerns charges of sexual abuse against a mernber of the Christian Brothers, Brother Stephens, by two men, Mr. Smith and Mr. MacDonald, who were residents at St. Luke training school for boys in the early to mid 1970's. The following material provides you with some background information relevant to the case. A Short History of the Christian Brothers
The firçt group of four Christian Brothers arrived in Lower Canada (now Quebec) from France on November 7, 1837. By 1848, the order had grown to fifty-six men. Originally, the Brothers taught the children of Catholic families but by the end of the 19th century they also supervised and educated delinquent Catholic boys in a training school that was opened just east of Toronto. The education provided by the order was relatively advanced for its time: For example, the Brothers taught in French rather than the customary Latin. As well, the students were divided into groups based on their ability rather than their age. In 1956, a new training school was constructed on a 150-acre fan northeast of Toronto that had the capacity to house 200 boys. These boys worked in the school's carpentry shop, made their own shoes, tended fields of vegetables, and played a great deal of hockey, lacrosse, softball, rugby, football, and soccer. The wards had to be at least seven yeats of age and no older than seventeen. Many of the boys were sent to the training school by their school principals, priests, and parents who thought it would be beceficial to their development. Some had been abandoned by parents or had been taken from their homes by the Children's Aid Society for their own protection. Others had broken the law but were too young to be imprisoned and so were sent to the school for remediation. Pretrial Publicity 85
Appendix B:
Experiment 1: Positive Pretrial Publicity
Page 2, The Evening Telegram, Friday, October 20, 1989
Smith and MacDonald testirnonies contained inaccuracies, distortions former police c hief says
There are "clear and definite inaccuracies" However Devino says Brother Stephens and a "distortion of the real circumstances" was "clean". "He conducted himself in the testimony given by Al Smith and properly and was 3 mode1 figure for many James MacDonald to the Hughes inquiry boys", says Devino. says former police chief, Vic Devino. When asked why Smith and MacDonald The former police chief who investigated would lie about what happened at St. Luke complaints of sexual abuse at St. Luke Devino shakes his head and says, "maybe almost 15 years ago made the comment in a they're mistaken ... it was a long time ago". staternent to the Telegram Thursday. Devino, who also has a masters degree in "lt's true that sexual abuse was a problem psychology, says that children who feel at St. Luke in the mid 70's" said Devino, " unwanted often lash out at authority figures. but our investigation was thorough and we "They were abandoned by their parents and charged the ones who were responsible". their anger is a natural response to the pain Mr. Smith and Mr. MacDonald allege that they suffered as children", says Devino, "1 Brother Stephens sexually abused them just hope they recognize this before they while they were residents at St. Luke. ruin the life of an innocent man". Pretrial Publicity 86
The Evening Telegram, Friday, October 20, Stephens took hold of my hand and led me 1989 through a mansion-like hallway." ------The Christian brother opened a large Amidst the Pain and Anguish, a Far wooden door and the voices of 200 boys Different St. Luke Recalled came at him like a "large wave on a seashore," he said. by Lana Payne "1 had never seen so many boys in one Telegram Staff Writer room. These boys were soon to become farnily to me. To this day I regard them as kin." Donald O'Keefe remembers a different St. Mr. O'Keefe's childhood at the orphanage Luke Orphanage from the one that has shaped him and he attributes his musical made headlines across the country over interests to his years spent playing in the allegations of sexual and physical abuse. band. Mr. O'Keefe was illegitimate, or as he likes When asked about his opinion of the to put it, "a love child". recent abuse allegations against 8rother The orphanage was his home for 10 years Stephens, O'Keefe shakes his head sadly from 1967-77 and the Christian Brothers and replies "1 could never believe those were his parents-the only caregivers he can stories... Brother Stephens was like a father remember. to me... he just isn't the kind of man capable Now 30, he has kept his ties with the of that sort of thing." orphanage over the years and can't According to O'Keefe, he remembers that remember a time when he didn't seIl tickets a few of the boys were problem children and at the annual Christmas raffle. always seemed to get into trouble with the At the age of seven, after living with law. Says O'Keefe "it's a shame that some Salvation Army foster parents, Mr. O'Keefe of these individuals are still so confused as was brought to St. Luke and introduced to to create misery for a man who should be Brother Stephens. rewarded for the dedication he showed "To a small boy this man was a towering during his work at St. Luke". image of manhood, " he recalled. "Brother Pretrial Publicity 87
Appendix C:
Experiments 1 and 2: Negative Pretriai Publicity
The Evening Telegram, Friday, October 20, 1989
Amidst the Pain and Anguish, St. Luke Recalled by Lana Payne Telegram Staff Writer
Donald O'Keefe remembers very well his him like a "large wave on a seashore," he experience at St. Luke Orphanage. Though said. he daims to have experienced no abuse "1 had never seen so many boys in one himself during his stay there, he isn't room. I don? know what became of them as surprised by the recent headlines spread we never formed any close friendships across the country over allegations of sexual because there was an air of mistrust and and physical abuse. fear in the orphanage." Mr. O'Keefe was illegitimate, or as he likes O'Keefe's child-hood at the orphanage to put it, "a victim of the free-love shaped him and he attributes his distrust of generation". people to his years spent at the orphanage. The orphanage was his home for 10 years When asked about his opinion of the from 1967-77 and the Christian Brothers recent abuse allegations against Brother were the only caretakers he can remember. Stephens, O'Keefe nods his head and Now 30, he has not had contact with the replies "1 could believe those orphanage for about 12 years. stories... Brother Stephens was a strange At the age of seven, after living with Sal- sort of person; cold and mean ... he's the vation Amy foster parents, Mr. O'Keefe was kind of man capable of that sort of thing." brought to St. Luke and introduced to According to O'Keefe, he remembers that Brother Stephens. a few of the boys were problem children and "He was very stern and tall, and 1 felt always seemed to get into trouble with the intimidated by him from the beginning, " he law. Says O'Keefe "it's a shame that some recalled. "Brother Stephens led me through of these individuals' lives have been ruined a mansion-like hallway," he said. The by the actions of a sick man who held power Christian brother opened a large wooden over them ... he should be made to pay for his door and the voices of 200 boys came at crimes as far as I'rn concemed". Pretrial Publicity 88
Page 2, The Evening Telegram, Saturday, September 30, 1989
Victim's mother tells inquiry
Police knew of St. Luke abuse in 7975
By CARL WALSH Telegram Staff Writer
The rnother of a former resident of St. Luke David Arnold, CO-counsel for the training school says a police investigation commission, asked Ms. Horne not to into the school was launched in Uecernber, disclose the name or names of the people f975, after her son received a severe who Shane said beat him. He said Shane beating on his lower back and buttocks. Bateman will be called to testify. Carol Horne, forrnerly Carole Bateman, Ms. Horne said Billy and Shane stayed said Friday her sons Billy and Shane Bate- with her for several months and she man, who were at the boys' home in 1975 returned thern to St. Luke after she was were brought to her apartment in Decem- reassured by a social worker that the person ber, 1975, by Ken Riche, a volunteer responsible for Shane's beating had left the maintenance worker at the home. home. Ms. Horne told a judicial inquiry she took She didn't name the person responsible. nine-year old Shane to a room by himself Ms. Horne and her ex-husband William where she examined hirn. Bateman had seven children, four girls and "Shane was bruised on his buttocks and three boys, before they were divorced in his lower back," she told the Royal 1974. Commission of lnquiry into the Response of She said she didn't have the financial the Criminal Justice System into Complaints. ability to care for the children and they were "lt seemed like both sides (of his buttocks) placed under the care of child welfare. She to me - al1 I could see was black." asked that her three sons, Richard, Billy, Ms. Home said she took a picture of the and Shane, be placed in St. Luke which was bruises with a camera provided by Mr. operated by the Christian Brothers, a Riche. The following day she took Shane to Roman Catholic teaching order. the Janeway Child Healtb Centre where he "1 had a lot of respect for them (Brothers)," was examined by a doctor. Ms. Horne said. While they were at the Janway, she said, "1 thriught it w3s the best place for them to Mo plainclothes policemen arrived. She be brought up." recalled giving police a signed staternent Mr. Arnold said the Royal Ontario Consta- and being told by a social worker that the bulary cornpleted two reports following their incident was going to be investigated. December, 1975 investigation at St. Luke. However, she told the inquiry that she Those reports have been obtained by the didn't hear anything about that investigation commission, he said. until earlier this year. One of the commission's objectives is to Ms. Home said Shane told her he was determine why thete were no charges laid beaten at St. Luke because he lost a library after the investigation concluded. card. Pretrial Publicity 89
Appendix D:
Experiments 1 and 2: Trial Transcript
Her Majesty the Queen v. Michael Stephens
TABLE OF WITNESSES
Opening Jury Instructions Opening Statement by Mr. Lancaster (Crown) Opening Statement by Mr. Wilson (Defense Counsel) CROWN WITNESSES Alexander Smith James MacDonald DEFENSE WITNESSES Anne Williams (Physician) Ralph Kerr (Character Witness) Closing Argument by Mr. Lancaster (Crown) Closing Argument by Mr. Wilson (Defense Counsel) Final Jury Instructions Pretrial Publicity 90
Toronto, ONT. 10:OO A.M., May 16. 1994
Her Majesty the Queen v. Michael Stephens THE REGISTRAR: ln the Suprerne Court of Ontario, Monday this 16th day of May, 1994, Her Majesty the Queen against Michael Stephens, My Lord. MR. LANCASTER: My Lord, my name is John Lancaster, and I appear as prosecutor for the Provincial Crown in this matter. MR. WILSON: My Lord. my name is Mark Wilson. and I appear as Defense Counsel for Mr. Stephens seated behind me. THE COURT: Ladies and gentlemen of the jury we will now have the opening staternent by Mr. Lancaster who represents the Crown in this case. MR. LANCASTER: In this trial, you, the memben of the jury, are going to hear about events that took place many years ago. The Christian Brothers are a Catholic organization that have been in Canada for over a century. One of the main functions of their organization is to operate educational institutions and orphanages. The events you will hear about in this case took place at St. Luke. an orphanage for boys, run by the Christian Brothers. in Toronto. Ontario. You will hear disturbing evidence of indecent assaults that took place at this institution. You will hear the graphic details of the assaults provided by the victims and you will hear how these incidents scarred the victims. The two primary witnesses in this case will provide strikingly similar accounts of their experiences wirh Mr. Stephens. These accounts were given independently by each witness. As the evidence will make clear, these accounts could not be coincidental fabrications. In contrast the evidence will make clear that Mr. Stephens, the accused in this case, is guilty of two counts of indecent assault beyond a reasonable doubt.
The defense in this case will hinge on the contradictory evidence provided by the witnesses. In addition, the Defense Counsel will try to convince you that the accused, by his very nature, could not have committed these assaults against the boys under his care. You must remember to put aside your biases for Mr. Stephens as a person and make a judgment about his acts in the specific instances that will be brought to your attention in this trial. As the evidence will make clear. vour dutv in this case is to iudae the Pretrial Publicity 91
defendant guilty, as charged. THE COURT: Ladies and gentleman of the jury, you will now hear the opening statement of Mr. Wilson, who represents the accused in this case. MR. WILSON: The Crown talks about this case as if it is sewn up. According to the Crown, acts of abuse occurred at St. Luke and the guilty parties must pay for their acts. He is right. But, 1 want you to consider the evidence carefully, the people who provide the evidence and the contradictory nature of much of the evidence. Ask yourself a simple question, "am 1 sure, beyond a reasonable doubt, that the events testified to in this case actually took place, and am 1 sure that Mr. Stephens committed the acts, beyond a reasonable doubt?". The evidence in this case is far from solid against Mr. Stephens. In fact, it is so weak that you may question why the Crown even brought this case to trial.
The fact is that the Crown tried to right a wrong by going on a witchhunt. Al1 people, either centrally or remotely tied to St. Luke in the 19701s, were investigated. Any piece of evidence suggesting, even slightly, t hat the person had committed an offense, was followed by an indictment. In some instances, the Crown was right. But, as the evidence in this trial will make clear, this is not one of those instances.
As jurors, you must put aside the emotion in each of us that yearns to punish those who commit sexual atrocities against children. You must judge this case solely on the evidence. In doing so, only one just and fair conclusion can be drawn, that Mr. Stephens is not guilty. THE COURT: How shall we proceed Mr. Lancaster? MR. LANCASTER: The first witness, My Lord, will be Alexander Smith. REGISTRAR: Do you swear to tell the tnith the whole truth and nothing but the truth so help you God? MR. SMITH: I Do.
Examination in Chief by Mr. Lancaster
MR. LANCASTER: Where did you reside between 1973 and l976? MR. SMITH: At the St. Luke orphanage in Toronto. MR. LANCASTER: Do you know the accused seated across from me? Pretrial Publicity 92
MR. SMITH: Yes. MR. LANCASTER: How do you know him? MR. SMITH: Brother Stephens was in charge of St. Jude's. MR. LANCASTER: St. Jude's? MR. SMITH: Yes, that was the narne of our domitory. MR. LANCASTER: Was he in charge for the entire length of your stay at St. Luke? MR. SMITH: No, Brother Stephens was only at St. Luke's a couple of years. MR. LANCASTER: Can yod tell the court about the chicken pox epidernic that occurred at St. Luke? MR. SMITH: Well, it was in '74 or '75. Most of us got chicken pox. It spread like wildfire. All I remember is scratching and bleeding. It was awfu1. MR. LANCASTER: How did Mr. Stephens deal with the situation? MR. SMITH: Well, he got us some lotion and we had to apply it to ourselves or have him apply it to areas we couldn't reach. Application of the lotion was the only thing that would stop the itch. MR. MNCASTER: Did anything unusual happen when Mr. Stephens applied the lotion? MR. SMITH: Yes. Brother Stephens was applying the lotion to my body. He applied it to rny penis area and then to my buttocks and white applying it to my buttocks he inserted his finger into my rectum. MR. LANCASTER: And did you think it was nonal for him to do that? MR. SMITH: No. I sort of jumped when he inserted his finger. MR. LANCASTER: Did Mr. Stephens Say anything at the tirne? MR. SMITH: Yes. He said to me, "Did that hurt or did it feel good to you?" MR. LANCASTER: How did you respond? MR. SMITH: i didn't answer him. MR. LANCASTER: Did you tell anyone at the time what had happened? MR. SMITH: No. MR. LANCASTER: Why not? MR. SMITH: I was just an orphaned kid and he was one of the Brothers. No one would believe me and if they did, they were probably doing it too. So telling any of the other Brothers about what happened wouldn't have accomplished anything. Pretrial Publicity 93
MR. LANCASTER: How did you feel? MR. SMITH: I felt betrayed and alone. Like someone I had trusted had hurt me and I didn't have anyone I could tell about it. MR. LANCASTER: Did the incident affect your behaviour? MR. SMITH: Yes, 1 rebelled and eventually 1 was expelled from St. Luke. MR. LAiKASTER: In adolescence how did this affect your behaviour? MR. SMITH: I frequently got in trouble with the law and spent some tirne in a juvenile facility. MR. LANCASTER: Those are my questions, My Lord. Thank you. THE COURT: Mr. Wilson? MR. WILSON: Thank you, My Lord.
Cross-Examination by ML Wilson:
MR. WILSON: Mr. Smith, you Say Mr. Stephens inserted his finger into your rectum. Did anyone else see this happen? MR. SMITH: No, we were in his office at the time. MR. WILSON: In your recollection, Mr. Smith, how extensive was your chicken pox? MR. SMITH: Very extensive. MR. WILSON: Did it cover your whole body? MR. SMITH: Yes. MR. WILSON: Did it entirely cover your buttocks and penis area? MR. SMITH: As far as I can remernber. MR. WILSON: So it was, in fact necessary for the cream to be administered to your buttocks and penis area? MR. SMITH: Yes. MR. WILSON: Is there a reason why you didn't administer the cream yourself? MR. SMITH: lt hurt too much. MR. WILSON: So you asked Brother Stephens to administer the cream to your body? MR. SMITH: Yes. Pretrial Publicity 94
MR. WILSON: You trusted him to do this? MR. SMITH: Yes. MR. WILSON: 1s this the first time you have testified to these events in a courtroom? MR. SMITH: Yes. MR. WILSON: And have you ever given an account of what occurred at St. Luke outside the courtroom, Say to the media? MR SMITH: Yes, 1 spoke about my experiences at St. Luke on the Oprah Winfrey show. MR. WILSON: Is it true that you spoke of being sexually abused on the Oprah show? MR. SMITH: Y es. MR. WILSON: Did you Say, on the Oprah show, that Mr. Stephens sodomized you on multiple occasions at St. Luke? MR. SMITH: Yes. MR. WILSON: And why haven't you told the court about these instances of sodomy? MR. SMITH: What I said on the Oprah show was not totally factual. I got caught up in the emotional issue being discussed on the Oprah show and I realize now that I exaggerated what actually happened at St. Luke. MR. WILSON: And you now want the court to believe that the testimony you have provided in this trial is accurate? MR. SMITH: Yes. MR. WILSON: How can we believe you now knowing that you were willing to lie in front of millions of people? MR. SMITH: 1 regret what I said on the Oprah show and I am ashamed of myself for saying it. But I cannot change or take back what I said on Oprah any more than you can change what Brother Stephens did to me at St. Luke twenty years ago. MR. WILSON: Why should we believe you now? MR. SMITH: What I am saying here is the truth and Brother Stephens should be held accountable for his actions. 1 want you to understand the pain Brother Stephens has caused and I want to make sure no other kids have to experîence the pain I have suffered at the hands of Brother Stephens. Pretrial Publicity 95
MR. WILSON: You testified earlier that you had soms behaviour problems at St. Luke and later on in adolescence. MR. SMITH: Yes, I was pretty confused as an adolescent. MR. WILSON: Have you ever been convicted of a crime? MR. SMITH: Yes, I was convicted of Breaking and Entering. After ail I had gone through, I really wanted to get out of St. Luke quickly. After I was expelled, I had a hard time finding work and I got involved with the wrong crowd. But I have grown up a lot since then and I have chosen to put that lifestyle behind me. MR. WILSON: So why should we believe a confessed liar and an ex-convict? MR. SMITH: All I can do now is to tell the truth, and that's what I'm doing here toda y. MR. WILSON: Those are my questions, My Lord. THE COURT: Mr. Lancaster, do you have any re-direct? MR. LANCASTER: No, My Lord. THE COURT: Thank you, you're excused. (WITNESS EXCUSED) THE COURT: How shall we proceed? MR. LANCASTER: I would like to cal1 James MacDonald. REGISTRAR: Do you swear to tell the whole truth and nothing b'R the truth so help you God? MR. MACDONALD: I Do.
Examination in Chief by Mr. Lancaster
MR. MNCASTER: Where did you reside between 1972 and 1977? MR. MACDONALD: At the St. Luke orphanage. MR. LANCASTER: Do you know the accused seated across frorn me? MR. MACDONALD: Yes. MR. LANCASTER: How do you know him? MR. MACDONALD: Brother Stephens was my dorm Brother. MR. LANCASTER: Mr. Smith testified that there was a chicken pox epidemic in about 1974. Were you afflicted with chicken pox at this time? Pretrial Publicity 96
MR. MACDONALD: No, I was the lucky one who didn't get the pox, but I did have a rash during that time. MR. LANCASTER: Where was this rash? MR. MACDONALD: It was mostly on my legs. MR. LANCASTER: Was anything done about the rash? MR. MACDONALD: Brother Stephens took me to the Orchard Clinic to be examined. I was treated with an ointment. MR. LANCASTER: Are you sure that you went to the Orchard Clinic to receive the ointment? MR. MACDONALD: Well, that's where we usually went, but it was a long time ago, and I guess it may have been another Clinic. MR. LANCASTER: Please tell the court what happened when Mr. Stephens applied the lotion to your rash? MR. MACDONALD: Vvell, first, he would ask me to stand on a chair. He would apply the ointment to my legs and then he would apply it to my penis area and my buttocks. While administering the lotion to my buttocks, he inserted his finger up my rectum. MR. LANCASTER: Was the rash on your penis and buttocks area? MR. MACDONALD: No, it was just on my legs. MR. LANCASTER: And what did Mr. Stephens Say about applying it to your penis and buttocks? MR. MACDONALD: He said that it was necessary to prevent the rash from spreading. MR. LANCASTER: Did he Say anything else? MR. MACDONALD: Yes, he asked me if it hurt or if it felt good to me. MR. LANCASTER: On how many occasions was the ointrnent applied? MR. MACDONALD: About ten or twelve. MR. LANCASTER: Did you tell anyone what Mr. Stephens was doing to you? MR. MACDONALD: I tried to tell some of the other Brothers, but they just shnigged it off, like it didn't really matter. MR. LANCASTER: How did you feel about it? MR. MACDONALD: Dirty, like I was being used. MR. LANCASTER: Why did you keep going to Mr. Stephens for treatment of your rash? MR. MACDONALD: I had to. The doctor prescnbed it and the treatment became part Pretriai Publicity 97
of my schedule. In addition, the rash was painful and the lotion was helping to make it better. MR. LANCASTER: Do these incidents affect you now, as an adult? MR. MACDONALD: Yes. I have had a hard tirne trusting people and I feel that I am worthless as a person. I even tried to commit suicide once as an adolescent. MR. LANCASTER: Those are my questions, My Lord. Thank you. THE COURT: Mr. Wilson? MR. WILSON: Thank you, My Lord.
Cross-Examination &y Mr. Wilson:
MR. WILSON: About how old were you when the alleged incident between you and Brother Stephens happened? MR. MACDONALD: Well, I thought I was younger when I first gave a report to the Crown. But since, I think I was probably about 9 or 10. MR. WILSON: All right, could you tell us what your initial mernory of your age was? MR. MACDONALD: 1 thought I was seven years old. MR. WILSON: Could you tell the court when your eighth birthday would have been? MR. MACDONALD: December 6,...... 1973. MR. WILSON: And when did Brother Stephens arrive at St. Luke? MR. MACDONALD: I'm not sure. MR.WILSON: The records indicate that he came to St. Luke in 1974, sometime after your eighth birthday and left in June of 1976, before the summer of your tenth year. Is that accurate? MR. MACDONALD: I guess so. MR. WILSON: Those are rny questions, My Lord. THE COURT: Mr. Lancaster, do you have any re-direct? MR. LANCASTER: No, My Lord. THE COURT: Thank you, you're excused. MR. LANCASTER: I have nothing further, thank you, My Lord. The Crown rests at this time. Pretrial Publicity 98
THE COURT: At this tirne, Mr. Wilson, acting for the accused, will present the defense. Are you ready to proceed Mr. Wilson? MR. WILSON: As my first witness, I would like to cal1 Dr. Anne Williams to the stand. REGISTRAR: Do you swear to tell the truth the whole truth and nothing but the tnith so help you God? DR. WILLIAMS: I Do.
Examination in Chief by Mr. Wilson:
MR. WILSON: Dr. Williams, where do you work? DR. WILLIAMS: I am a general practitioner at the Orchard medical center. MR. WILSON: How long have you worked there? DR. WILLIAMS: 25 years. MR. WILSON: During that time have you treated some of the St. Luke boys? DR. Wl LLIAMS: Yes, frequently. MR. WILSON: Do you rernember treating Mr. MacDonald for a rash in 1974? DR. WILLIAMS: No. I have seen so many young children over the years. MR. WILSON: What do the Orchard center medical records indicate regarding the treatrnent of Mr. MacDonald? DR. WILLIAMS: According to our records, Mr. MacDonald was treated at the Orchard Center on Decernber 27, 1972, January 24, 1973 and October 6, 1976. MR. WILSON: So Mr. MacDonald was not treated by you or anyone on the Orchard staff between January 24th, 1973 and October 6th, 1976? DR. WILLIAMS: No. MR. WILSON: How old would Mr. MacDonald have been in 1973 Dr. Williams? DR. WILLIAMS: Our records indicate he would have been seven. MR. WILSON: And on October 6,1976, the next time you saw him? DR. WILLIAMS: Eleven. MR. WILSON: We heard testimony from Mr. MacDonald that he came to the Orchard Medical Clinic during the chicken pox crisis at St. Luke, in the winter of 1974 to get a treatment for his rash. Is that testimony Pretrial Publicity 99
consistent with your records? DR. WILLIAMS: No. MR. WILSON: Vlhen Mr. MacDonald was onginally questioned by police regarding the alleged incidents, he stated that the incidents occurred when he was 7 years old before Brother Stephens came to St. Luke. Would his coming to the Orchard at that age be consistent with your records? DR. WILLIAMS: Yes, that would have been around the iime of his January, 24, 1973 appointment. MR. WILSON: Those are my questions, My Lord. THE COURT: Mr. Lancaster? MR. LANCASTER: Thank you, My Lord.
Cross-Examination by Mr. Lancaster
MR. LANCASTER: Dr. Williams, do any of the records for Mr. MacDonald indicate that he was using a cream for a dermatitis condition? DR. WILLIAMS: Well, at the 1976 session, our records indicate that Mr. MacDonald was using a cream, but we didn't know what it was for. MR. LANCASTER: So it is possible that M;. MacDonald had received a crearn from another medical center prior to October, 1976? DR. WILLIAMS: Absolutely. MR. LANCASTER: Are there other rnedical centers in close proximity to the Orchard Medical Center? DR. WILLIAMS: Yes. MR. LANCASTER: And, in your opinion as a rnedical doctor, could a person recalling events that occurred some twenty years earlier when he was 9 or 10 confuse one medical center for another medical center? DR. WILLIAMS: 1 suppose itts possible. MR. LANCASTER: Those are my questions, My Lord. THE COURT: Any re-direct, Mr. Wilson? MR. WILSON: No, My Lord. THE COURT: Thank you, you're excused. How shall we proceed, Mr Wilson? MR. WILSON: As my next witness, 1 would like to cal1 Ralph Kerr to the stand. Pretrial Publicity 100
REGISTRAR: Do you swear to tell the truth the whole truth and nothing but the truth so help you God? MR. KERR: l Do.
Examination in Chief by Mr. Wilson:
MR. WILSON: Do you know the accused seated beside me? MR. KERR: Yes, he was my dom brother for two years. MR. WILSON: During that time did he ever engage in any unusual behaviour, such as sexual touching, with you? MR. KERR: No. MR. WILSON: Can you recall ever seeing or hearing of any such incidents committed by Brother Stephens? MR. KERR: Everyone loved Brother Stephens. He would never touch any of us in a sexual way. You could ask anyone who was under the care of Brother Stephens and they would al1 Say what I have said. He would never do what he is accused of doing in this trial. MR. WILSON: How would you describe the time that Mr. Stephens was your Dorm Brother? MR. KERR: They were the best years of my childhood. MR. WILSON: Those are my questions, My Lord. THE COURT: Mr. Lancaster? MR. LANCASTER: Thank you, My Lord.
Cross-Examination of Mr. Lancaster:
MR. LANCASTER: Mr. Kerr, do you remember the chicken pox epidemic? MR. KERR: Yes. MR. LANCASTER: Did you get the chicken pox? MR. KERR: Only one person in our whole dorm didn't get the chicken pox. MR. LANCASTER: Did you have to apply ointment to the chicken pox? MR. KERR: Yes. MR. LANCASTER: Did Mr. Stephens ever have to apply ointment to your chicken pox? Pretrial Publicity 101
MR. KERR: No. MR. LANCASTER: Did he apply the ointment to other boy's bodies? MR. KERR: Yes. MR. LANCASTER: Did you see him do this? MR. KERR: No, it would have been embarrassing to have someone rub ointment over your body in front of everyone. MR. LANCASTER: Sol some of the boys had to go into Mr. Stephen's office to have him rub the ointment on their bodies? MR. KERR: Yes. MR. LANCASTER: Those are my questions, My Lord. THE COURT: Any re-direct, Mr Wilson. MR. WILSON: No, My Lord. THE COURT: Thank you, you're excused. How shali we proceed, Mr. Wilson? MR. WILSON: I have nothing further, My Lord. The defense rests at this time. THE COURT: Ladies and gentlemen of the jury, we will now have the closing argument by Mr. Lancaster. MR. LANCASTER: You have heard evidence in this trial of events that took place in 1974 at St. Luke's orphanage in Toronto, Ontario. You have heard testimony that Michael Stephens, the accused in this case, committed indecent assaults against two boys who were entrusted to his care. You have heard that the acts that were inflicted on the boys came when they were afflicted with serious and painful dermatological ills. I'm sure most of you have had rashes or illnesses like chicken pox. lmagine going to a man you trust to help you ease the pain of your affliction and in the process have him assault your body in a sexually indecent manner. lmagine having to live with that man and not being able to tell anyone because no one would believe you.
The defense in this case has focused on times, dates, and memories of events. The defense, however, has not given any evidence to show that these events did not occur. Would you be surprised if an adult confused some dates or made a mistake about the exact location of a medical center that he had gone to twenty years earlier when he was only 9 or 10 years old? Would you be surprised if a boy who had experienced indecent assaults became difficult to manage? Would you be surprised if memories for boys of such emotionally traumatic events were slightly Pretrial Publicity 102
inaccurate?
Probably the most important issue you should consider is the consistency between the two stories you have heard. These men have never discussed these incidents with each other, yet the accounts of indecent assault are almost identical. The one common factor is that both incidents were perpetrated by Brother Stephens. Boys might forget dates, times, and places, but the assaults they experienced at the hands of Brother Stephens were remembered in almost identical detail. This could not be a coincidence.
In conclusion, the evidence given in this case points conclusively to the fact that Mr. Stephens assaulted Alexander Smith and James MacDonald indecently white in charge of a domitory at St. Luke in Toronto, Ontario. It is your duty, therefore, to return two verdicts of guilty of indecent assault. THE COURT: Ladies and gentlemen of the jury, you will now hear the closing argument by the Defense Counsel, Mr. Wilson. MR. WILSON: The basis of the Crown's evidence in this case is the testimony of two young men concerning incidents that occurred over twenty years earlier when they were young boys. The question you must ask younelf is whether you can believe what these men have told you. One witness is an ex-convict who was also expelled from St. Luke because of behavioural problems. Was his testirnony an attempt to 'get back" at someone who was a disciplinary figure in his childhood? On the Oprah Winfrey show, this man said he was sexually abused (involving intercourse). but has recanted the testimony of sexual abuse in this courtroom. Can you really believe what he has told you in this courtroom?
The second witness provided dates and times that were inconsistent with the times when Brother Stephens was at St. Luke. Those dates may have subsequently been altered by the witness to maintain consistency. He spoke of going to the Orchard Medical Center in 1974, but he didn't go there during the chicken pox epidemic. And, in fact, there is no record that he went to the Orchard Medical Clinic during the time Brother Stephens was at St. Luke. With al1 the inconsistencies in his testirnony, can you believe what he has told you regarding the alleged assaults?
The Crown tells you that when people recall childhood dates and places, they sometimes make mistakes. That's to be expected, Pretrial Publicity 103
he says. But, does this also mean that when adults recall childhood experiences of Say, indecent assaults, they might also make mistakes? Maybe the mistakes extend to the person they are accusing of the offense. We are not denying that these men were abused at St. Luke, but this abuse was not committed by Brother Stephens. Given that these men have made mistakes about what happened in their childhood, the question you must ask yourself is: Can you believe, beyond a reasonable doubt, that Brother Stephens committed acts of indecent assault against these men?
You must remember that the testimony of these witnesses represents the entire Crown case against the accused. There is no corroborating medical evidence to support their claims. In fact, there is no concrete evidence whatsoever to support what they have told you in this courtroom. If you choose not to believe their testimony, you must find the accused not guilty. With the inconsistencies in the testimony you have heard, you must have at least, and probably a great deal more than, a reasonable doubt as to whether the alleged offenses were actually committed by the accused. If you have such a reasonable doubt, it is your duty to return a verdict of not guilty. THE COURT: [FINAL JURY INSTRUCTIONS] One of your responsibilities as citizens of Canada is to participate in the system of justice by acting as jurors from time to time in criminal and civil cases. 60th society and the law benefit by your contribution. In return, I hope you have found it an interesting and rewarding experience.
The indictment is the foundation of the case for the Crown. The indictment reads as follows:
During the 1974 academic year, Michael Stephens sexually touched and inserted his finger into the rectums of Alexander Smith and James MacDonald at St. Jude's dormitory of the St. Luke orphanage and is therefore guilty of two counts of indecent assault under the provisions of section 156 of the Criminal Code of Canada.
The applicable provision of the Criminal Code regarding the indictment reads as follows:
156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offense and is liable to Pretrial Publicity 104
imprisonment for ten years.
I am going to spend a few minutes explaining some basic principles that are important for your consideration in this case. In this system, you are the judges of the facts and I am the judge of the law. As judges, it is your duty to consider the evidence carefully and dispassionately and to weigh it without any trace of prejudice for or against anyone involved in these proceedings. Refled upon the evidence you heard, weigh it, and make a decision as to whether you accept it, partially, or not at all. I will tell you what the law says about this case and you must accept rny interpretation of the law without question. If either the Crown counsel or the defense counsel said anything different about the law from what 1 Say, you must accept my version. This means that when you decide what the facts of this case are, you must apply the rules of law I give you. It also means you must apply the law as I explain it to you when you decide whether the Crown has proved the elernents of the offense beyond a reasonable doubt.
There are two basic principles which are fundamental to your role as jurors. They are the requirement for proof beyond a reasonable doubt and the presumption of innocence. The requirement of proof beyond a reasonable doubt means just what it says. No person accused of an offense can be found guilty unless the Crown provos each and every part or element of that offense beyond a reasonable doubt. Similarly, our system of law requires that an accused person be presumed (or considered to be) innocent. Michael Stephens, the accused in this case, has no obligation to prove that he is not guilty, or to explain the evidence offered to you by the Crown. The law presumes Michael Stephens to be innocent (or not guilty), until you decide otherwise.
You may be troubled by the difference between what is evidence and what is fad. Evidence is the body of testimony we heard. Facts are the things that you choose to believe from the evidence. The things that you choose not to accept must be taken into account when amving at your verdict. From the facts that you find, you may draw inferences with respect to other fads, and you rnay rely upon these inferences in determining whether the accused is guilty or not guilty.
It is your memory of the evidence that counts. It is your duty to place your own interpretation on the evidence because you are Pretrial Publicity 105
the judges of the facts arising from the evidence. Nonetheless you should give careful consideration to any submissions made by either counsel or me with regard to the evidence. Pretrial Publicity 106
Appendix E:
Construal Measure
The following questions ask about several aspects of the case of sexual abuse. Each scale represents two possible interpretations of information contained in the trial. If you agree completely with one of the views, circle the point at the end of the scale. If you partially agree with one of the views, circle a point that is nearer to that end of the scale than the other. The answer to some questions may seem obvious to you, while others rnay require you to guess. Simply make the best judgement according to how you imagine the events of the trial.
According to your image of the situation: What was Mr. Smith (1st witness) like growing up in the orphanage?
According to your image of the situation: Were the events that took place at the orphanage clearly described by Mr. Smith?
According to your image of the situation: How likely is it that Mr. Smith remembered accurately the details of the past events at the orphanage? very likely X- x---- x-- x ----x----x--- X not very likely Pretrial Publicity i 07
According to your image of the situation: What happened when Mr. Smith appeared on the Oprah Winfrey show?
According to your image of the situation: Why do you think Mr. Smith engaged in criminal activity after leaving the orphanage?
According to your image of the situation: Were a lot of children at the orphanage abused during the time that Brother Stephens (the defendant) worked there? none were X---- x--x---x ------x------)( ------X a lot; abused almost everyone had an abusive experience
According to your image of the situation: How likely is it that Mr. MacDonald (2nd witness) remembered accurately his sexual abuse experience? Pretrial Publicity 108
According to your image of the situation: What does Mr. MacDonald's testimony about his age at the time of the alleged events indicate? that his x ----- x ----- )( x------x ------x------X that he may be testimony confusing one is unreliable medical center with another
According to your image of the situation: Did it appear from the testimonies given by Mr. Smith and Mr. MacDonald that many of the boys had to have an ointment applied to their bodies?
According to your image of the situation: How similar were the testimonies of Mr. Smith and Mr. MacDonald concerning their experiences at the orphanages? Pretrial Publicity 109
Imagine that you are a juror and you have just heard this trial in court. It is your responsibility along with 1I other jurors to decide on a verdict for the defendant. Please respond to the following questions using the scales provided.
For the following two questions, each numerical rating corresponds to a probability of guilt for the crime (e.g. 0% probability of guilt (not guilty) to 100% probability of guilt (guilty)):
How likely do you believe it is that Brother Stephens is guilty of lndecent Assault against Mr. Smith? (Please circle your answer).
How likely do you believe it is that Brother Stephens is guilty of lndecent Assault against Mr. MacDonald? (Please circle your answer).
If you were required to decide a verdict, what would it be? (Please circle your answer).
For the first charge against Brother Stephens for lndecent Assault against Mr. Smith?
Guilty Not Guilty
For the second charge against Brother 5kpnens for lndecent Assault against Mr. MacDonald?
Guilty Not Guilty Pretrial Publicity 110
According to the Criminal Code, the maximum sentence for lndecent Assault is 10 years.
If Brother Stephens is found guilty of lndecent Assault against Mr. Smith, how long (in years) of a sentence should receive? (Please circle your answer).
If Brother Stephens is found guilty of lndecent Assault against Mr. MacDonald, how long (in years) of a sentence should receive? (Please circle your answer).
With regard to your verdict (guilty or not guilty) for the charge laid against Brother Stephens of lndecent Assault against Mr. Smith, how confident are you that the decision you made is the correct one? (Please circle your answer). not 00h--10%--20%--30%-40%---50%----60%----70%---8O%----9O%---l 00% very very confident confident
With regard to your verdict (guilty or not guilty) for the charge laid against Brother Stephens of lndecent Assault against Mr. MacDonald, how confident are you that the decision you made is the correct one? (Please circle your answer). not 0%-1 0%--20%---30%--40%-50%---60%-----70%---800h----90~-1 00% very very confident confident Pretrial Publicity 111
Are you aware that some members of the Christian Brothers have been charged with sexually abusing children at the Mount Cashel Orphanage in Newfoundland? (Please circle your answer).
To your knowledge, have any of the Christian Brothers been found guilty of these charges? (Please circle your answer).
We are interested to know how people reach their verdicts. In a few sentences, please describe how you made your verdict decision (guilty or not guilty).
Do you think that the background information on the case andlor the newspaper articles influenced your verdict decision? Pretrial Piiblicity 112
Appendix F:
Task Instructions for the Impression-set Group
Everyday we form impressions of the people we encounter. This study is designed to explore the kinds of impr3ssions we make. One important impression is the kind made by jurors during a criminal trial. Jurors must take the evidence they are presented with, form an impression of the events, and decide whether or not they believe the defendant is guilty or not guilty. This booklet contains a transcript of a trial that deals with a case of sexual abuse and some background information related to the case.
Your task is to simply read over the material provided. As you do this. form an impression of the defendant. Later you will be asked about the impression you have formed. Impressions are usually formed very quickly. Therefore. to simulate a real impression formation. please read over these materials quickly. There will be a time limit of 25 minutes to read over this booklet. Remember to make sure that as you read the material that you are thinking about the events of the case and what kind of person the defendant might be. Pretrial Publicity 113
Appendix G:
Task Instructions for the Comprehension-set Grcup
Children are often required to testify in court. Some research suggests that this
is a very complicated task for them, not just because of the emotiorial difftculty but
because of the legal language used in court. This study is part of a iarger research
project that is designed to investigate how rnuch of a trial children really do understand.
Adults are biased about what they believe children d=i and do not understand. Therefore,
it is important that both adults and children take part in this study. In the present study,
adult subjects will read over the trial material and decide what words, phrases, or ideas
they believe a child cannot understand.
This booklet contains a transcript of a trial that deals with a case of sexual abuse
and some background information related to the case. Your task is to read over the
m=!eir!prcvlded rcd cimp!y C!IC!= 8ny ??crr',phr=$e, cr sen!exe !hat yor! 2?!i=v= 2 ?9-
year child would not be able to understand. To indicate that you believe a 10-year child would not be able to understand a particular idea expressed in the material provided,
simply box any relevant sentences. There will be a time limit of 25 minutes to complete this task.