In a recent New Statesman article Jolyon Maugham QC describes it as an ‘epidemic’ that only 1.1 to 1.8% of rape victims see their rapist convicted [see FN1, below]. He says that a criminal justice system that produces these results is failing and he questions whether jury trial serves the public interest in rape cases. In reply, Francis Fitzgibbon QC argues that the research does not suggest there is anything “peculiar about rape trials that sets them apart from others” and he resists the temptation to change the rules of rape trials [see FN2]. Neither article considers recent groundbreaking research in the field of psychology on these very issues which suggests very strongly that Jolyan Maugham is right to be concerned.
In the most extensive project to date, Dr Dominic Willmott [see FN3] of Huddersfield University used modern psychological methods to examine the question of rape cases and juror misconceptions and prejudices in realistic mock ‘acquaintance rape’ trials.
In the absence of the lead researcher, Dr Dominic Willmott, who is presently on an overseas research trip, this is my attempt to introduce the research findings into the debate.
Research before the Huddersfield Project
Previously, the role of inherent bias emerging from individual juror characteristics and psychological constructs themselves was less well documented. Such inherent biases included in the main the extent to which individuals held inaccurate and negative assumptions surrounding the crime of rape widely known as ‘rape myth acceptance’.
Finkel (1995) found that there were two types of “law” when it comes to jury deliberations: first there is the “black letter law” enacted by legislators; secondly there is the “law” that “reflects what ordinary people think is just and fair. It is embedded in the intuitive notions jurors bring with them .. when judging both a defendant and the law. It is what ordinary people think the law ought to be”.
Groscrup and Tallon (2006) summarise it in this way: “the two concepts come into conflict when jurors are asked to base their decisions on black letter law as against what they themselves understand as fair and just”.
Further, Vidmar (1997; 2003) characterized the concept of “generic prejudice” as existing where “the nature of the crime or the type of parties involved cause the juror to classify the case as having certain characteristics, thereby invoking stereotyped prejudices about anydefendant accused of the crime”; that it involves “the transfer of pre-existing prejudicial attitudes, beliefs, or stereotypes about categories of persons, entities or events to the trial setting in a legally appropriate manner”.
Hitherto there had been significantly less empirical work on the issue of generic prejudice of jurors in a criminal trial. That is a gap that the Huddersfield research aimed to fill.
The Huddersfield Project in 2017
The research aim was to investigate whether there was evidence of a relationship between psychological traits, juror attitudes and individual verdict decisions within rape trials, specifically in an ‘acquaintance rape’ case.
The Project did something new. Selecting people at random from the electoral roll, researchers sent out mock summonses to members of the public inviting them to come and sit on a jury and hear a criminal trial. Nine mock juries were assembled, and nine verdicts ultimately taken. The jurors were told that the trial was based on a real case. The trial was conducted, and presided over, by criminal barristers of many years’ standing. It proceeded exactly as a criminal trial would, with exhibits produced appropriately.
I declare straightaway that I had a role in the research. I am not a psychologist, I’m a criminal barrister mainly prosecuting and defending rape cases. My role was to convert a factual scenario into a mini-trial, creating realistic procedure and ensuring compliance with the law and with the rules of evidence, in particular with regard to the content of the summing up. The application of psychological profiling to mock-jurors, and the interpretation of the resulting data, was way outside my remit: that, I leave to the experts.
The findings in summary
The interesting part comes in the advanced analytical scrutiny of the decision-making process. There was substantial evidence found of high levels of rape bias, strongly suggesting that preconceived prejudices surrounding the issue of rape tend to have a significantly greater influence on the fairness of the trial than had previously been thought.
The research project found that among all those individuals with the identified existing biases, 13% of them changed their mind after deliberation. Deliberation, being shown to change the minds of little more than one in 10 jurors, makes the impact of these preconceptions especially significant. While it is difficult to draw a direct link between the findings of this research and miscarriages of justice when it comes to rape cases, these results would suggest that as a result of a biased panel of jurors, there is a greater risk of a verdict being arrived at that is not in accordance with the evidence.
The research in a bit more detail
The research deployed advanced methods of analysis including:
- Pre-trial psychosocial assessment of every juror
- Pre-deliberation verdict decision of every juror
- Group deliberation
- Post-deliberation individual verdict decisions of jurors
The pre-trial psychosocial assessments of every juror consisted of a demographics questionnaire and of questions designed to elicit individual juror scores on the following psychological traits considered important:
- Affective Responsiveness: the ability to respond to emotions and the feelings of others, similar in nature to the concept of affective empathy (Boduszek, Debowska, Dhingra, & DeLisi, 2016);
- Cognitive Responsiveness: differing from the concept of affective empathy, cognitive responsiveness pertains to one’s ability to cognitively understand the emotional state of others, while not necessarily feeling those emotions personally (Boduszek, Debowska, & Willmott, In Press);
- Egocentricity: the failure to pay any or, any sufficient, regard for the interests, beliefs, or attitudes others with focus directed largely onto one’s own beliefs and self-interests (Boduszek et al, 2016);
- Interpersonal Manipulation: reflective of the individual’s expression of grandiosity, superficial charm and intentional deceptiveness in their day-to-day interpersonal interactions with others. A personality trait involving such tendencies to manipulate others appears particularly important within the content of jury deliberations (Willmott, Boduszek, & Booth, 2017);
- Place on theAcceptance of Modern Myths About Sexual Aggression Scale(AMMSA Scale): (Greger et al (2007))eg “If a woman invites a man to her home for a cup of coffee after a night out this means that she wants to have sex”
Measures completed post-trial included assessments of:
- The individual juror’s pre-deliberation verdict decision followed by completing the Juror Decision Scale (Willmott et al, 2018)
- A post-deliberation assessment of collective and individual juror verdict decisions, again asking jurors to complete the Juror Decision Scale which seeks to assess the extent to which defendant and complainant accounts are deemed believable (Willmott et al, 2018)
Results – psychopathic traits of jurors
Evidence was found of three distinct psychological trait profiles whereby those who scored high in egocentricity and interpersonal manipulation, but low in both affective and cognitive responsiveness/empathy, were significantly more likely than low and moderate scoring jurors (on such traits) to return a not guilty verdict within the sample tested. Importantly the result was consistent both pre- and post-deliberation.
To reiterate, analysis revealed jurors with high scores in particular psychological traits were significantly more likely to return a Not Guilty verdict than jurors who scored low in psychopathic traits, scientific evidence in itself of how juror characteristics appear to predispose jurors towards particular verdict outcomes at trial.
Crucially however, and pertinent to current on-going debate in the UK, rape myths (as measured using the established and scientifically valid AMMSA scale) were directly indicative of verdict outcomes. What does this mean? Well, the results suggest that those jurors high in rape myth acceptance (or, alternatively put, those who hold the greater number of inaccurate assumptions surrounding what occurs in a typical rape) are significantly more likely to :
- disbelieve the complainant
- return a Not Guilty verdict both pre- and post-deliberation
The research showed clear evidence of a relationship between psychological constructs and verdict outcome. It asks some very difficult questions about how impartial jurors really are in rape cases.
[FN1] Quoting 2013 research from the Home Office
[FN2] Pointing to research by Professor Cheryl Thomas, retained by the Ministry Justice, who “spoke to hundreds of jurors about their deliberations”. (Professor Thomas, D.Phil, Politics with Law, 1989; M.Phil, Politics, 1984; BA, Political Science, 1980; Professor of Judicial Studies, UCL.)
[FN3] The full research report can be accessed via email request to Dr Dominic Willmott at firstname.lastname@example.org