General Pre-Trial Publicity And Jury Bias - University Of Toronto

ucould have biased the jury against the Brothers. However, the publication ban was appealedto the Supreme Court of Canada and was eventually lifted when the judge noted that therewere no research data to support the claims of the Brothers that the film would bias the jury 'snatural decision making process. On the other hand, the judge noted that, "common sense"dictates that it would (Dagenais v. Canadian Broadcasting Corp., 1994).Out of similar concems, another judçe scheduled the trial of an Illinois businessman,accused of the murders of his wife and three children, for unusually late night sessions in orderto prevent the jurors fiom watching an NBC broadcast of "Fatal Vision," a dramatizationwhich depicted a man murdering his wife and two children. The lawyers were concerned thatthe similarities between the two cases might prejudice the jury ("Court Reschedules MurderTrial so Jurors Cantt Watch TV Drama," 1984).Implicit in both of these cases is the assumption that jurors could be biased by themedia in cases where there are merely similar tiesbetween the trial at hand and events beingrepresented in the media. In an attempt to test this assumption, Polvi, Jack, Lyon, Laird, andOgloff ( 1996) conducted a study using the television movie "The Boys of St. Vincent" as thepublicity. They found that mock jurors who were exposed to the film were more likely to findthe defendant in a sexual abuse case guilty than were those who were not thus exposed. Aswell. the mock jurors were more likely to find the victim's testimony believable and were likelyto assign longer sentences than those exposed to other, unrelated video conditions.There have been a few other attempts to examine the hypothesis that jurors can bebiased even by media coverage only thematically related to a specific trial. Greene and Loflus( 1984) noticed that subjects who were participating in an eyewitness identification study were

less likely to believe the eyewitness when the local news was mnning a story about aninnocent man who had been falsely identified by a witness. The subjects who participated inthe study at the time that the mistaken identification story was being covered in the news wereless likely to convict the defendant than subjects who participated in the study at two othertirne periods (in which the story was not in the news). Greene and Loftus (1984) also foundthat subjects who had read a maçazine article about a mistakenly identified man were lesslikely to convict a defendant on trial (a hypothetical trial) for a crime involving significanteyewitness testimony.AAer finding this so called "softening" effect, whereby mock jurors were more lenientin their decision making, Greene and Wade (1988) attempted to find out if they could producea "hardening" effect whereby some mock jurors would become more tikeiy than others toconvict a defendant after exposure to certain publicity. In this experiment some of theparticipants were exposed to news stories about a series of heinous crimes while others wereexposed to a news story regarding a miscarriage of justice. When asked to give a verdict on amurder-robbery case, subjects were more likely to convict the defendant in the robberymurder scenario when they had previously read the series of heinous crimes than those whoread of the miscamage ofjustice. However, their conviction rates did not differ significantlyfrom those of a control group's. Thus, there was no strong evidence for a hardenin effect, atleast with the type of publicity that they used.In a second part of the same study , Greene and Wade ( 1 988) found that the degree ofsintilm-ity between the publicized case and the case that mock jurors had to judge was animportant factor mediating the "sofienin "effect of the publicity. The effect of the publicity

bon the jurors was smaller when the publicity was less specificalIy related to the issues in thetrial on which the jurors had to reach a verdict. This is important in that it indicated that asoftening effect did not occur when the publicity was more general, merely reminding peoplethat miscarriases ofjustice are possible. The softening effect only occurred when the publicitywas specifically about a mistaken identification (the specific issue involved in the trial waseyewitness testimony). The results of this second study suggest that the publicity is morebiasing the more closely it mirrors the detaiis of the trial at hand.Riedel (1993) found that sentencing by mock judges was more severe followingexposure to publicity about a mistaken acquittai and that sentencing was less severe followingthe judges' exposure to publicity about a mistaken conviction. These results lend fùrthersupport to the hypothesis that "general" pre-trial publicity may directly influence trialoutcornes.Several researchers have defined various types of "specific" pre-trial publicity. Ogloffand Vidmar (1994) as well as Kramer, Kerr, and Carroll (1990) refer to "factual" versus"emotional" publicity and suggest that these different types of publicity affect jurorsdifferently. There are also different types of "general" pre-trial publicity which rnay affectjurors diferently. For instance, there is publicity which couid bias a juror against (or for) aparticular class of people. Greene ( 1990) suggests that nationally and intemationallypublicized events may influence the treatment of, and attitudes towards, certain defendants.For example, in the case of the lranian citizens on trial in the United States during a hostagecrisis in which the terrorists had been Iranian, jurors may have been harsher as a result ofdisplaced hostility towards lranians in general. Loftus (1979) examined the effectiveness of

insurance companies7multimillion-dollar publicity campaigns designed to urge consumers tocurb excessive damage awards. The advertisements were designed to convince people that iflarge settlements were awarded t o plaintiffs, everyone's insurance premiums would increase.Loflus found that jurors in a persona1 injury case were not willing to give as high an awardafler being exposed to even one of the ads.Another kind of "general" pre-trial publicity is one in which general media coveragewould bias a juror against a particular type of evidence. For example, as previously noted,Greene and Wade ( 1988) found that subjects were less likely to convict a defendant in a casewhich relied heavily on eyewitness testimony after reading another case (othenvise unrelated)where it was found that eyewitness testimony was mistaken. It is as if, once aware of the factt hat eyewitness accounts can be mistaken, the jurors were biased against eyewitness testimonyin general.There may be a more subtle type of "general" pre-trial publicity, one which shifis thecriterion for "reasonable doubt." It is possible that jurors would lower their criterion for"reasonable doubt" if exposed to negative publicity regarding another case which wasthematically related to the trial in which they were involved. That is, media coverage of acertain type might change the personal decision system of a juror responsible for interpretingthe rules of judçments and the criterion of "reasonable doubt." There is no research to datewhich deals with this more subtIe and more elusive possible type of general pre-trial publicity.There is another distinction to point out with regards to general pre-trial publicity.That is the distinction between what can be referred to as "negative" pre-trial publicity whichmight "harden" the jurors rnaking them more "conviction prone" and general pre-trial

publicity which may "soften" the jurors making them less likely to convict a defendant (seeGreene & Loftus, 1984). In the case of "specific" pre-trial publicity, "ne ative"publicity mayinclude such things as incriminating evidence, a defendant's prior criminal record, or storiesregarding the heinousness of the crime and the devastating aftereffects of the crime. In thecase of "general" pre-trial publicity, it is not quite so obvious what "negative" signifies.Nevertheless, simply stated, negative publicity is publicity which would bias the jurors agnit srthe defendant.Although the general idea that something gleaned from the media could bias a juror issimilar for both specific and general publicity, the theoretical bases for and the practicalmanifestations of the biases may, in fact, be quite different.The processes NwdvedAs well as being of practical consequence to the constitutional gyarantee of a fair trial,the issue ofjuror bias is also interestinç from a theoretical point of view. It is necessary toexplore how, and the reasons why, the general media could have a biasing effect on jurors.Such an exploration entails examinin3 the psychological processes involved.Social psychologists might explain these phenomena of distorted judgement by thenitnilahili/y hewisiic (Tversky & Kahneman, 1973). This cognitive heuristic suggests that theease with which one estimates the frequency of a class of events depends upon how readilyinstances of it can be brought to mind. For example, the stereotypical offender may be socommonly portrayed in the media that we are more likely to imagine a person who fits thestereotype as capable of committing a certain crime than someone who does not match the

I Istereotype. According to the nix-zilnbilityhewisfic, it would be easier for people to imasinethat an African American inner city gang member committed a violent crime than that a whitemiddie class suburban businessman did, simply because the former is a far more commontarget of media coverage. lt would, for the same reason, be easier to accept that a whitesuburban tax broker is guilty of a white collar crime (e.g. tax fraud) than that the AfiicanAmerican gang member is. The reason for this is that 'white collar' and 'blue collar' crimesare stereotyped images which are reinforced by the media.The availability heuristic affects perceived iikelihooh. For example, Sherman,Cialdini, Schwartzman and Reynolds ( 1985) found that when subjects were asked to imaginecontracting a certain disease with easy to imagine symptoms, the subjects rated the disease asmore likely to occur than did subjects who were asked to imagine another disease withdifficult to imagine symptoms. This result is important in more general terms because itshows that an event is irnagined to be less likelj to occur simply because it is difficult toimagine. Events are less imaginable where there are no readily accessible cognitiveconstructs. Thus, it seems possible that the media's depiction of certain crimes and criminaismay make it easier for people to imagine that particular crime and a particular defendant ascriminally culpable than if they had not been exposed to the media's barrage of images.According to the previous research and the availability heuristic, heavy media coverage wouldinctease peoples' belief in the likelihood of a particular crime being perpetrated by a particularindividual. People wouId, theoretically, think it more likely that the crime has occurred orcould occur because the media has provided a foundation of images for the public to consult.Crïrriitial 'scartdals' usually refer to situations i r i which the alleçed criminal activity is in

conflict with a generally accepted social construct, as in the case of sexual abuse perpetratedby members of the clergy. Another example of a sensational news event would be a casewhere an innocent man was convicted and jailed or a guilty man set fiee on the basis of atechnicality. As a function of the media's supply of the public's demand, it seems thatsensational events are much more commonly reported or represented. lncreased mediacoverage of a certain class of crime (e.g. murder), according to the availability heuristic,would create the public perception that such crimes are more likely to occur. Theoretically, ifa juror has images and example which they can bring to mind of a crime and a particular classof criminals, they will be more likely to believe that a defendant somehow related to that classcommitted a similar crime. In other words, a bias will have been created which affectsaccurate and objectivejudgements.Another process affecting the cognitive processing of information may be involved inmedia generated bias. Research has suggested that a story of a mistaken identification has agreater biasing effect on a jury than a story about an accurate and just outcome (Greene &Wade, 1989). This suggests that people are more likely to remember and be influenced byexceptional or surprising information. It is possible that mistaken convictions or mistakenacquittais have more emotional impact then the just outcomes people are expecting.Discovering that an innocent person spent thirty years in prison or a guilty person no time atail, may arouse more emotion than learning that a murderer was sentenced to a long prisonterm or that an innocent person was acquitted. The emotions which are aroused may be thecause of a bias in judgement. For instance, reading about a criminal who perpetrated a violentcrime but did not serve much time in jail may provoke retributive emotions which may then be

displaced by a juror ont0 another defendant.Social cognition theory presents another explanation of how information obtained pretrial rnay affect jurors during a trial. Haney and Manzolati (1984) suggest that peopleinternalize the attitudes to crime and t o the criminal justice system which television crimedramas provide. What is particularly interesting about this suggestion is that the media maybe providing the structure and content of personal schemata. That is, the media may be theprimary building materials in the construction of a personal reference system regarding crimeand the law. Greene (1 990) postulates that these schemata may allow individuals to storeinformation in an abstract and generalized form, a f o m which functions as a template forsubsequent processing of new information. She also suggests that schemata which have beenheavily influenced by the media provide the primary filter through which al1 subsequentinformation presented in a trial will pass and be organized. If the filter itself is distorted then itis likely that things which are processed through this filter will also be distorted. Thus, a biasis created.Facf ver.s .s,fictiortMany studies have offered possible theoretical perspectives regarding the occurrenceof and the possible processes involved in media generated bias. However, it is important tonote that the media's coverage of crime includes both fictional m d factual crime. Often, it isnot obvious to the general public whether the crime and criminals portrayed in the media arerepresenting real occurrences, pure fiction, or whether they represent an amalgamation ofboth. Even when the case is obvious, the question remains: are people influenced by fictional

media? To date, no research has asked to see if there is a differential biasing effect on jurorsof fictional vs. factual coverage that is thematically related to a trial.Melhodulogicnl c i c e r t sPrevious research in the area of pre-trial publicity suffers from major methodologicallimitations. Demand characteristics present a particular problem in research on pre-trialpublicity because the cues in the experiment which could indicate the behaviour that isexpected are quite obvious. Ofien subjects are given newspaper articles to read andimmediately after asked to judge a trial; with no other explanation, it is quite obvious to thesubjects that there was a connection between the articles and the trial. Therefore, it isnecessary to present a believable cover story to the subjects so that they are not prompted toact in accord with previous demands; however, a number of previous studies did not utilizecover stories to prevent or minimize potential demand characteristics (Polvi et, al., 1996).There have been survey studies conducted on responses to publicity alone without atrial scenario even being introduced (Moran & Cutler, 199 1 ). Studies such as these sufferfrom a whole host of inethodological and validity problems, not the least of which involve thedifficulty of determining the direction of causality when interpreting correlations between pretrial publicity and punitiveness. Another problem with simply measuring a group's reaction topublicity is that, although it can tell us about the group's opinions about a certain case, it lacksa great many of the characteristics of a real trial setting. People's judgements formed on thebasis of newspaper articles tell us little about their judgements based on the prosecution anddefense trial arguments, judge's instructions, and jury deliberations.

13In some studies subjects were presented with a short written sumrnary of the trial inlieu of video coverage of the trial (Sue, Smith, & Gilbert, 1974), while in others, jurors werenot allowed to deliberate (Sue, Smith, & Gilbert, 1974; Ogloff & Vidmar, 1994). Without avisual trial and deliberations, these experimental conditions lack realism.More psychological research is necessary to determine if any bias is caused fiomgeneral publicity, and if it is, to determine how this bias is affecting the "justness" of thejudicial system. The present study addressed the following questions: Are jurors biased bymedia coverage which is only thematically related to a trial? And, if they are, are they affecteddifferently by information which they believe is fictional and by information which they believeis factual? In order to avoid some of the methodological problems descnbed earlier, it uses abelievable cover story, simulated newspaper articles, a videotape of an actual trial, andsubsequent mock jury deliberations.The hyyo hesesThe specific hypotheses for the present study are as follows:1. Mock jurors will be biased by negative thematically related media coverage. This bias willmanifest itself so that jurors exposed to such coverage:a) are more likely to reach a "guilty" verdictb) are more confident about a "guilty" verdict or less confident about a "not guilty" verdictC)have stronger feelings that the defendant is guilty2. T

Other biasing effects of pre-trial publicity have been sugçested. For instance, pre-trial publicity can increase the believability of the victim's testimony (Ogloff & Vidmar, 1994). It has also been found that emotionally-arousing pre-trial publicity can increase the severity of sentencing that individuals are willing to impose upon the