comiskey lsa presentation jury comp may final 2010

8/8/2019 Comiskey LSA Presentation Jury Comp May Final 2010

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STUDYING JURY COMPREHENSIONSTUDYING JURY COMPREHENSION

OF LEGAL CONCEPTS IN CANADA:OF LEGAL CONCEPTS IN CANADA:CAN THE STAGNANT POOL BECAN THE STAGNANT POOL BE

REVITALIZED?REVITALIZED?

Marie ComiskeyMarie Comiskey

May 2010May 2010Presentation to the Law & SocietyPresentation to the Law & SocietyConferenceConference

[email protected]@umich.edu


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3 Areas I would Like to Discuss3 Areas I would Like to Discuss

1.1. My Impetus for Doctoral ResearchMy Impetus for Doctoral Research

2. Limited Canadian Research & My2. Limited Canadian Research & MyProposed ResearchProposed Research

3. Canadian Courts reactions to Jury3. Canadian Courts reactions to JuryComprehension ResearchComprehension Research


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ImpetusImpetus

1. Law School Course on Advanced1. Law School Course on Advanced

Criminal ProcedureCriminal Procedure

2. Early Jury Trial Experiences2. Early Jury Trial Experiences


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THE PROBLEM OFTHE PROBLEM OF

COMPREHENSIONCOMPREHENSION

American studies haveAmerican studies have overwhelminglyoverwhelmingly

shown that while jurors are able to recallshown that while jurors are able to recallthe factual evidence in a case, theythe factual evidence in a case, they

experienceexperience significant problems insignificant problems in

understanding and applyingunderstanding and applying the judgesthe judges

legal instructionslegal instructions


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Sources of Jury Instructions inSources of Jury Instructions in

CanadaCanada Criminal Law uniform across CanadaCriminal Law uniform across Canada

Watts InstructionsWatts Instructions versusversus CRIMJICRIMJIOntario judge B.C. originOntario judge B.C. origin

More SuccinctMore Succinct LengthyLengthy


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Canadian ResearchCanadian Research

1.1. 1979 Canada Law Reform Commission1979 Canada Law Reform CommissionReport on JuriesReport on Juries

2.2. 19971997 -- Joint Unpublished Study betweenJoint Unpublished Study betweenProf Freedman & Judges of the OntarioProf Freedman & Judges of the OntarioSuperior CourtSuperior Court

3.3. 20012001 -- Rose & Ogloff Study of CRIMJIRose & Ogloff Study of CRIMJIConspiracy InstructionsConspiracy Instructions


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1979 Canada Law Reform1979 Canada Law Reform

Commission Report on JuriesCommission Report on Juries Jones & Meyer found that the averageJones & Meyer found that the average

comprehension score in a murder chargecomprehension score in a murder charge

was only 55%was only 55%

Pattern instructions not used in Canada atPattern instructions not used in Canada at

this timethis time


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FREEDMAN JURY STUDYFREEDMAN JURY STUDY

Requested by the Judiciary in TorontoRequested by the Judiciary in Toronto

UNPUBLISHED STUDYUNPUBLISHED STUDY

The average no. of correct answers on the 11The average no. of correct answers on the 11true/false questions was:true/false questions was: American Instruction: 54.5%American Instruction: 54.5%

British Instruction: 49%British Instruction: 49%

Canadian Instruction: 46%Canadian Instruction: 46%


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ROSE & OGLOFF STUDY(2001)ROSE & OGLOFF STUDY(2001)

CRIMJI Conspiracy InstructionCRIMJI Conspiracy Instruction

300 participants300 participants

Conclusion: ability to apply instructionsConclusion: ability to apply instructions

abysmally lowabysmally low

Criticism: a notoriously difficult area of lawCriticism: a notoriously difficult area of law

even for lawyers, no evidence showneven for lawyers, no evidence shown


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MY STUDY DESIGNMY STUDY DESIGN

How is it going to add to the literature?How is it going to add to the literature?

1. 11. 1stst Comparative Study of CanadianComparative Study of CanadianInstructionsInstructions

2. Dramatized Re2. Dramatized Re--Enactment of an ExcerptEnactment of an Excerptof a Trialof a Trial


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RERE--ENACTMENTENACTMENT

Based onBased on R. v. ThibertR. v. Thibert

Obtained the trial transcripts from theObtained the trial transcripts from the

defence lawyerdefence lawyerReal Judge, Real Crown & Real DefenceReal Judge, Real Crown & Real Defence

Lawyer, Hired 2 actors to play the roleLawyer, Hired 2 actors to play the role

Chose to reChose to re--enact the 2 key witnesses,enact the 2 key witnesses,Joan & Norman ThibertJoan & Norman Thibert

Edited & truncated the testimonyEdited & truncated the testimony


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Canadian Courts & JuryCanadian Courts & Jury

Comprehension ResearchComprehension Research The LAMENT over the paucity of researchThe LAMENT over the paucity of research

. Researchers cannot carry out studies involving. Researchers cannot carry out studies involvingreal Canadian juries to gain more insight into thereal Canadian juries to gain more insight into themechanics of the jury process and the effect of judicialmechanics of the jury process and the effect of judicialinstructions upon the deliberations and verdict of theinstructions upon the deliberations and verdict of the

jury.jury. Instead, we are made to rely on extrapolations fromInstead, we are made to rely on extrapolations fromAmerican studies and from simulated exercises to testAmerican studies and from simulated exercises to testthe assumptions upon which many of our rules developthe assumptions upon which many of our rules develop..

R. v. Pan: R. v. Sawyer, 2001, Supreme Court of Canada)R. v. Pan: R. v. Sawyer, 2001, Supreme Court of Canada)


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Two Contrasts:Two Contrasts:

R. v. Jensen (2005)R. v. Jensen (2005)

--Ontario trial judge &Ontario trial judge &Ontario Court ofOntario Court of

Appeal hostile to theAppeal hostile to the

Freedman affidavitFreedman affidavit

about intoxicationabout intoxicationinstructioninstruction

--American studies notAmerican studies not

applicableapplicable

R. v. Poitras (2002)R. v. Poitras (2002)

--Ontario judge citesOntario judge citesAmerican literature toAmerican literature to

support his decisionsupport his decision

to provide writtento provide written

instructions to the juryinstructions to the jury


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Jury QuestionsJury Questions May ProvideMay Provide

Evidence of MiscomprehensionEvidence of MiscomprehensionR. v. Layton (2009) Canadian SupremeR. v. Layton (2009) Canadian Supreme

CourtCourt Repetition of an approved reasonable doubtRepetition of an approved reasonable doubt

instruction insufficientinstruction insufficient

Jurys question revealed failure to understandJurys question revealed failure to understand

Risk of miscarriage of justice realRisk of miscarriage of justice real

Retrial orderedRetrial ordered


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CONCLUSIONSCONCLUSIONS

1.1. Comparison data on CRIMJI versus WattComparison data on CRIMJI versus Watt

neededneeded

2.2. Courts lament the paucity of CanadianCourts lament the paucity of Canadianjury research on instructionsjury research on instructions

3.3. Mixed judicial reaction to juryMixed judicial reaction to jury

comprehension researchcomprehension research

comiskey lsa presentation jury comp may final 2010

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