Lecture 7 - The trial process: procedures and pre trial Flashcards
(13 cards)
what is the legal standard in the defendant’s competence to stand trial
Whether the defendant has sufficient present ability to consult with their legal representative with a reasonable degree of rational understanding – and whether they have a rational as well as factual understanding of the proceedings against them
malingering
Malingering
An attempt to feign responses (verbal) and presentations (non-verbal) on psychological issues in order to present as challenged (e.g., non-competent, insane, etc.)
Tests/Assessments:
* Competency Assessment Instruments (e.g., Competency Screening Test)
what ages are for children to be in the kids court - US
4 to 17
jury
ultimate trier of fact (i.e., responsible for the guilt determination) it is important to ensure that it is an objective entity.
psychological research has been conducted in 3 areas related to pre trial jury issues
change of venue
jury size
jury selection
change of venue
trial must take place in a locale that is unbiased.
in order to attain a change of venue, one must demonstrate that prejudicial pretrial publicity or local knowledge must be so inflamed to make it nearly impossible to select an impartial jury
jury size
common law jurisdictions must be composed of 12 individuals
historically the jury was composed of people who know the accused very well - now reversed
legal standard - must be demonstrated that the size of the panel successfully fulfills the “purpose of the jury”
psychological aspects - 12 person juries are less likely to provide biased decisions due to a number of social psychological factors
what has the US courts accepted re jury size
6 member juries are allowed for civil cases
6 member juries are allowed for all criminal trials except capital trials
5 member juries are unconstitutional - violates the purpose of the jury
jury selection
Revolves around the issue of ensuring that the members of the jury are not likely to employ “extra-evidential” factors in their decisions.
to assemple a representative cross-section of the community and ensure that any pre-existing biases or prejudicies do not impact their ability to fairly assess the evidence
the 5 step survey process of jury selection
- Reliable Base Rate Sample – sample of eligible jurors from the community of interest
- Reliable Comparative Sample – sample of eligible jurors from a similar community. Difficult for jurisdictions with one major urban centre.
- Questions – asking questions reflecting those asked within the legal context (e.g., guilty/not guilty)
- Analysis – rigorous analysis of data (quantitative and qualitative)
- Evidence – introducing the results through an expert who is able to demonstrate a significant difference between the selected locations
main differentiation between the US and VIC model for jury
challenges for cause - removal of a juror based on proof or demonstration of a bias that would impede their ability to be objective (attitude-behaviour question)
peremptory challenges - removal of a juror with no basis for dismissal required (limited number)
the venire process
- Identification of potential jurors (e.g., health card registration, electoral rolls)
- Notification to attend including questions relating to exclusion (disqualification/exemption based on age, citizenship, etc.)
- Creation of a venire (jury pool)
- Removal from the venire relating to excuses (e.g., hardship, lack of comprehension of the language of the court)
the selection process - from venire to the jury - the process of voir dire
- Purpose is to examine those in the venire to select the final 12 jurors
- Varies across jurisdictions (e.g., Australia, Canada, US)
- Each side may ask for the removal of an individual as a juror based on a challenge for cause (proof of a bias that would impeded the ability to be objective) or through a limited number of peremptory challenges (no basis for dismissal required)
- Voir Dire and the Death Penalty (Witherspoon Excludables)
