Canadian jury research: the contributions of Anthony N. Doob.

Author:Hans, Valerie P.
Position:University of Toronto Canada Criminology Centre professor

On a propitious day in 1970, the telephone rang in the Department of Psychology's main office at the University of Toronto. It was early in the morning; the office was not even officially open. The perennially early riser Tony Doob was the only one around. He answered the phone, and a journey began.

On the other end of the line was a Toronto defence attorney, calling for help in what seemed like a hopeless case of misidentification. His client Ronald Shatford had been identified in a line-up, and he was personally convinced that the man was innocent. What, if anything, did psychology have to offer in a case like this? Intrigued, Doob conferred with the lawyer and assisted in the client's case. What is more, he devised an innovative new way to test the fairness of line-ups. With his student Hershi Kirshenbaum, Doob showed a photograph of the client's line-up to a group of people who were not witnesses, gave them a few details, and asked them to attempt to pick out the perpetrator from the line-up (Doob and Kirshenbaum 1973). Even though they had not seen the crime, many of them were able to select the perpetrator from the line-up, suggesting that the line-up was biased. This approach to testing the fairness of a line-up identification procedure had never taken place before. The line-up fairness project became a foundational study for all subsequent work on the assessment of lineup fairness (see, e.g., Malpass, Tredoux, and McQuiston-Surrett 2007: 161). Doob entered the field of psychology and law and never looked back.

Around the same time, in the early 1970s, I was an undergraduate at the University of California at San Diego, mulling over the possibility of graduate school in psychology. Dan Bernstein, then a graduate student at UCSD, had been an undergraduate at Stanford University, where Doob had been Bernstein's teaching assistant. They had kept in touch. Knowing of my interest in applications of psychology to real world problems, Bernstein gave me a copy of a pre-print Doob had sent him. The article, which was then in press at the Criminal Law Quarterly, was rather mysteriously titled "Some Empirical Evidence on the Effect of s. 12 of the Canada Evidence Act upon an Accused." It was an early mock juror experiment that applied the experimental methods of psychology to a significant legal question, the effect of a defendant's criminal record (Doob and Kirshenbaum 1972).

A section of the Canada Evidence Act (the mystifying section 12 of the title) permitted the criminal record of a defendant to be entered into evidence if the defendant testified. Under these circumstances, juries were instructed that they could use the prior conviction information to assess whether the defendant was telling the truth on the witness stand. However, they were not permitted to use the prior misconduct to infer guilt directly, even though it might be tempting to assume a link between previous and current offending.

Drawing on psychological insights, Doob and his collaborator thought the assumptions underlying section 12 were surely wrong. In a simple, elegant experiment, they gave one of four versions of a scenario describing a case of breaking and entering to study participants, who made judgments about the defendant's guilt. In one version, the participants read only the facts of the case. Another group read the facts and were told that the defendant did not take the stand because there was no need for him to do so. A third group read the facts and heard that the defendant testified but "did not give any important evidence." In this condition, they also learned that he had a criminal record. Since the defendant did not provide any important evidence, the credibility of that testimony should not have been an issue. The fourth and final group of participants read the facts, learned about the testifying defendant's criminal record, and was instructed that the evidence was to be used to assess only credibility and not guilt, as would be required in an actual trial in Canada.

Not surprisingly, when the defendant had previous convictions, the mock jurors were significantly more likely to see him as guilty of the present offence. Credibility was not an issue; so it was likely that mock jurors used the criminal record to infer guilt. Even more notable to legal observers was the disturbing fact that the judicial instructions had absolutely no effect. For those participants who heard about a defendant's criminal record, there was no difference in the guilt ratings of those who received judicial instructions and those who did not. The results cast doubt on the assumption underlying section 12 that jurors could appropriately limit their use of criminal record information.

Doob and Kirshenbaum's empirical documentation of the deleterious effects of criminal record information and the inefficacy of jury instructions to remedy these effects was one of the first juror simulation studies in Canada. (2) It was also the first to take an empirical approach to evaluating an assumption about the Canadian evidence code. The article has been cited many times, and the results have been replicated in Canada (Hans and Doob 1976), Great Britain (Lloyd-Bostock 2000), and the United States (see Eisenberg and Hans 2009, reviewing the collected studies).

I found the article fascinating in many ways. It was a psychology experiment but one deeply immersed in its legal context. I puzzled over the title. What psychologist would put a Canadian Evidence Code section number in the title of a research article? Unless you knew that section number, you had no idea what the article was about! The title was a clue. It underscored Doob's familiarity and facility with the relevant legal rules and their underlying assumptions. It reflected his comfort and willingness to speak to lawyers on their own turf using their terminology. That willingness helped explain why the article was not published in a psychology journal, as one might have expected of an associate professor of psychology whose promotion to the professor rank was still in the future. Instead, it appeared in a well-respected legal journal where the results would have greater visibility to judges, lawyers, and policy makers.

Doob and Kirshenbaum were mindful of their legal audience in other ways. In the article, they carefully assessed the strengths and limitations of their simulation research in terms of its applicability to the real world of juries, providing a model that would take other jury researchers some years to emulate. Their conclusion emphasized their own vantage point: "[I]t seems to us, as psychologists looking at s. 12 (1) of the Canada Evidence Act that on the basis of psychological knowledge and empirical data this section strongly works against the accused person" (Doob and Kirshenbaum 1972: 96). Implied in that conclusion was the recognition of multiple vantage points and multiple justifications for legal provisions. These features--perceptive insights, elegant experimentation, deep familiarity with legal context, and sensitivity to the concerns of the legal and policy making audience--have characterized Tony Doob's remarkable scholarship, including his significant contributions to Canadian jury research.

Finally, the article had personal significance. I applied and was accepted as one of Doob's University of Toronto Ph.D. students and began...

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