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Pretrial publicity & jury deliberations

Friday, June 17, 2011
posted by Douglas Keene

There was much discussion when the Supreme Court decided Jeffrey Skilling had gotten a fair trial despite extreme pre-trial publicity. The letter published in the Orlando Sentinel from a dismissed Casey Anthony trial juror raises the issue again.

I was one of the 50 potential jurors excused from service on the Casey Anthony trial today because of “tainting” caused by one juror, who discussed her first-hand knowledge of the case in the presence of several others.

I want to suggest, to avoid a repeat of my experience, that during the remainder of the selection process for this and all other highly sensitive cases coming through the 6th Judicial Circuit, you tell each and every person who reports for jury service that HE/SHE IS NOT TO DISCUSS ANYTHING ABOUT ANY CASE PRIOR TO, OR DURING, THE PROCESS OF VOIR DIRE (I.E. BEFORE BEING EXCUSED FROM SERVICE).

It’s a huge concern for those going into trial in high-profile cases. A newly published research study does little to alleviate those concerns.

Researchers examined transcripts of 30 mock jury deliberations to assess whether pre-trial publicity affects jury deliberations. The short answer is:  Yes. It absolutely does.  But we figure you might want more than that. Here is an excerpt from the article abstract [article text is in bold, followed by our commentary].

The pattern of results suggests that PTP has a powerful effect on jury verdicts and that PTP exposure can influence the interpretation and discussion of trial evidence during deliberations.

Not only did pre-trial publicity have powerful effect—that effect was consistent across all thirty juries. Every single one of the juries exposed to PTP discussed what they had read/heard about the trial. Rarely did a juror in any of the thirty groups halt the PTP discussion despite pre-deliberation admonitions to not discuss PTP and to halt any discussion that should arise during deliberations. Rather, they acknowledged the information came from PTP and then agreed to discuss it anyway! The researchers opine courts cannot rely on the jury to correct fellow jurors who raise PTP information.

Jurors who were exposed to negative PTP (anti-defendant) were significantly more likely than their non-exposed counterparts to discuss ambiguous trial facts in a manner that supported the prosecution’s case, but rarely discussed them in a manner that supported the defense’s case.

This finding is pretty disturbing—to defense attorneys anyway. Negative PTP seems to be lumped in with the prosecution’s ambiguous evidence as though it is more support for the prosecution’s case. So ambiguous evidence is strengthened by negative PTP. As in, “Well, I heard…”. The researchers offer two different theories (predecisional distortion theory and persuasive argument theory) as to why this happens but the bottom line is, negative PTP predisposes jurors to the prosecution side of the case.

This study also found that PTP exposed jurors were either unwilling or unable to adhere to instructions admonishing them not to discuss PTP and rarely corrected jury members who mentioned PTP.

In this study, the researchers discuss how negative PTP appears to have biased jurors’ ability to process ambiguous evidence and jurors remain unaware of their bias.

In essence, what this study says is that jurors’ ability to hear and interpret ambiguous evidence is damaged by negative pretrial publicity. They are simply unable to process the evidence in a balanced fashion and skew their interpretation to support the prosecution.

Research shows that only a small percentage of cases go to trial and those cases that make it to trial are often ambiguous as to guilt. Therefore, the typical trial is likely to have many ambiguous facts. This is important because the biased interpretation of ambiguous facts was found to be a mechanism through which PTP imparted its biasing effects on jury decisions.

We’d repeat that but we think they are pretty clear. We beg to differ with the much-respected Supreme Court justices. Pre-trial publicity does affect your case. And negative PTP stacks the deck for the prosecution.

 

Ruva, CL, & LeVasseur, MA. (2011). Behind closed doors: The effect of pretrial publicity on jury deliberations. Psychology, Crime & Law

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