Forensic Psychology For Dummies (113 page)
Read Forensic Psychology For Dummies Online
Authors: David Canter
Many constraints are placed on how the proceedings are conducted. Witnesses aren’t usually allowed in court until they give their evidence, so that they aren’t influenced by the evidence of other witnesses. The defendant is brought into the court after everyone else has assembled, except for the judge, who enters last. When the judge comes in, everyone stands as a sign of respect. In all criminal courts the judges and often the lawyers wear some sort of distinguishing costume, usually a gown. In the UK they also wear wigs, whose length and style relates to their seniority. Like any costume, this distinguishes the key players from the general mass of people and demonstrates that they’re playing a special role.
Getting to grips with legal definitions
Loads of technical terms are used for all the different jobs associated with legal professions. Just about anyone with a legal qualification can be called a
lawyer.
An
advocate,
though, is someone who speaks on behalf of another person. Advocacy is usually taken to mean the ability to support someone else’s case, and so in US courts the person who presents the case for or against the charge is known as an advocate.In the UK and British Commonwealth countries, a select group of lawyers are allowed to be advocates in the higher courts, known as
barristers, or counsels.
Junior and senior counsels work in most significant cases, but don’t expect the juniors to wear shorts and chew gum; the term simply means that the person is an assistant to the senior counsel who manages the prosecution or defence case in court.By legal definition,
attorneys
are people who can act on behalf of others, but the term is most common in the US. In the UK, people who help others with legal matters are called
solicitors.
They can’t present cases in a higher court, but appoint barristers to do so for their clients. In English-speaking legal systems, judges are typically selected from among experienced barristers or advocates, which is why they’re often quite elderly, although this is changing now that they have to retire at 70. In other jurisdictions, such as France and Spain, being a judge is a direct career choice with its own training, and so they’re much more likely to be young, and yes, female. In some of the lower courts, the person presiding over the court is known as a
magistrate,
which is the term used in France and other countries for the person who English speakers call the
judge.
(The French TV serial
Spiral (Engrenages)
is an excellent illustration of how the French legal system works, and shows the magistrate sometimes assisting with the investigation of crimes, which could not really happen in the UK.)
The terms magistrate and judge are interchangeable for the issues that I explore in this book.
This whole dramatic layout exists to demonstrate the seriousness of the proceedings and create a psychological impact on all involved. You know you’re not in a place of casual conversation, where any sort of informal behaviour is acceptable. Many judges and lawyers believe that the rituals and setting increase the likelihood that the truth is going to be revealed in court. They think that the power of the legal ceremony influences people to take the whole situation extremely seriously and so be honest.
These processes can be very daunting for people who don’t experience them daily and can cause considerable confusion as to what’s considered appropriate behaviour and what is being discussed (flip to the later section ‘Comprehending the legal rituals and terms’ for more).
Understanding the court process: Order of ceremony
Besides the symbolic rituals and layout of the court that I describe in the preceding section, legal proceedings under the English-speaking, adversarial system, and most other systems, also follow a standard process – an
order of ceremony.
You need to have some idea of this process to understand the various psychological issues that arise along the way:
1. The judge and lawyers discuss what evidence can be acceptably introduced and how the trial is going to proceed
before
the jury is brought in.
This part is known as the
voir dire,
which is derived from the Latin meaning to ‘tell the truth’. In particular there’s a discussion of what evidence is going to be allowed and which experts will be called. The judge makes the final decision but there’s often a lot of give and take between the opposing lawyers at this stage. In the US, it’s also the opportunity for lawyers to object to particular jurors in the process of jury selection (see the later section ‘Getting the Desired Jury’ for more on this practice).
2. The jury is selected and swears an oath to act honourably.
3. The judge explains its task to the jury.
4. The prosecution counsel presents a summary of the case and the evidence that is to be brought, followed by the defence counsel’s summary of the evidence and the issues to be aware of.
5. The prosecution calls its witnesses to give evidence. The sequence is as follows:
• The prosecution counsel questions the witness.
• The defence counsel
cross-examines
the witness (check out the later section ‘Cross-Examining the Psychology of Cross-Examination’).
• The prosecution counsel is allowed a few more questions for clarification.
6. The defence calls its witnesses to give evidence, following the same sequence of questioning as in step 5.
7. The prosecution and defence counsels present their closing arguments.
8. The judge instructs the jury on what it needs to consider.
This stage often includes a recounting of the key points in the evidence and, for example, whether the jury needs to decide whether a key witness was telling the truth or not. The judge also draws the jury’s attention to key points of law, such as the need for the defendant to have intended to commit the crime, especially for a verdict of murder.
9. The jury is sent to the private jury room, where the members deliberate on what they’ve heard without any contact with people outside.
When they’ve reached a decision, they return to the court and the person chosen by the jury to represent its view,
the foreman,
reports the jury’s conclusion to the judge.
Delving Into Jury Psychology
A joke goes as follows: a jury is a group of 12 men and women who have to decide whether the defence or prosecution has the best lawyer! This somewhat cynical take on court procedures is useful in drawing attention to the huge power of how evidence is presented in court, and the significance of the skills of the lawyers in laying the case before the jury.
People used to assume that judges were able to ensure that jury members knew what they were doing, how to respond to the legal processes and make sense of the legal arguments with only limited guidance. Over the last 50 years or so, however, various studies show that juries don’t necessarily act in the logical, informed way that the law assumed. For this reason, psychologists started demonstrating to lawyers and judges the problems that members of the jury face and how best to inform them. I discuss some of these psychological issues in this section.
Facing decision time: How juries act and make decisions
In the legal systems that put great store by jury decisions, the jury members are kept protected from any outside influence. Their deliberations are secret and they aren’t allowed to tell anyone what went on in the jury room. This secrecy makes it extremely difficult to study jury decision-making in real trials or to determine how individual members reach their conclusions. From necessity, what’s known about jury decision-making comes from indirect sources (which has to be treated with some caution) and from more general examinations of the relationships between personal characteristics and legally relevant decisions.