Deliberating about terrorism: Prejudice and jury verdicts in a mock terrorism trial
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| DOI | 10.1177/0004865811419067 |
| Author | David Tait |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
44(3) 387–403
!The Author(s) 2011
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DOI: 10.1177/0004865811419067
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Article
Deliberating about terrorism:
Prejudice and jury verdicts
in a mock terrorism trial
David Tait
University of Western Sydney, Australia
Abstract
Juries in many Western countries are being asked to make decisions about defendants charged
with terrorist-related offences, in situations where heightened anxieties and hostility to out-
groups may make a fair trial difficult. What impact can deliberation have in addressing any such
prejudice? This study estimates the impact of several forms of prejudice on juror verdicts in a
mock terrorism trial. The study provides a more realistic setting than most previous studies,
with an authentic heritage courtroom, actual jury assembly room and jury deliberation rooms
in the NSW Supreme Court, a one-hour live trial and one-hour deliberation. Strong relation-
ships are found between conviction rates and prior attitudes before jury discussion, consistent
with other literature. Deliberation significantly reduces the proportion of guilty verdicts; it also
reduces the impact on verdict of two forms of prejudice – fear of terrorism and punitiveness.
On the other hand it tends to increase the impact of cognitive prejudice, measured both by a
modified version of the Jury Bias Scale and a terrorism-specific scale based on attitudes to
Australian Guantanamo Bay detainee David Hicks.
Keywords
jury deliberation, mock juries, terrorism
Introduction
The problem of terrorist trials
Should juries be used to hear trials of persons accused of terrorist-related
1
offences? It is
argued that crimes against the state should be treated as acts of war rather than simply
criminal activities (Madison, 2006). Juries may be unduly swayed by personal or group
prejudice, influenced by media stories, or, conversely, sympathetic to those accused of
terrorism (Donohue, 2006). They may feel intimidated or threatened by suspects or their
supporters (Jackson and Doran, 1993). Finally, on the one hand, national security inter-
ests can be affected by releasing classified intelligence to juries (Crona and Richardson,
Corresponding author:
Professor DavidTait, Justice Research Group,College of Arts, University of Western Sydney, LockedBag 1797, Penrith
South DC, NSW 1797, Australia.
Email: david.tait@uws.edu.au
1996), although on the other hand a fair trial may be jeopardised by withholding such
information.
However, it is precisely when cases have a political character, when issues divide the
community and when the state has been covertly monitoring citizens that the jury is most
required as a check on arbitrary government authority (Abramson, 2000). The democratic
institution of the jury, in this view, is the best institution for deciding on the appropriate
balance between free speech and security, and distinguishing between real conspiracies
and state persecution of minorities (Koh, 2002).
Juries have been replaced by judges in terrorism-related trials in Northern Ireland,
Russia and elsewhere because of threats to the safety of jurors and the potential juror
bias (Garapon, 2005; Smith, 2009; Thaman, 2007). Where juries are used in terrorism
related cases, measures to reduce risk of juror intimidation or bias include moving or
delaying trials, using anonymous juries, vetting and special judicial instructions (King,
1996; Macdougall, 1981; Rose and Ogloff, 2001; Vidmar, 2003). Reasons given for these
measures included threats to the safety of jurors and juror bias.
Deliberation may contribute as much as any of these measures to achieving a fair trial
(Devine et al., 2001). Jurors bring a range of backgrounds, attitudes and expectations. As
they come together to deliberate, unquestioned assumptions may be exposed and preju-
dices challenged. Twelve people may hear or remember the same evidence in several dif-
ferent ways, and disagree about the relevance of the information to the charges
(Pennington and Hastie, 1992). They may have different views about the credibility of
the witnesses or the persuasiveness of lawyers, the weight of evidence, the culpability of the
accused, or how to apply the standard of proof. The requirement to achieve consensus (or
near-consensus) may ensure that minority viewpoints are considered (Marder, 1987).
Alternatively, the debate might reinforce established positions, and confirm deeply-held
views (Bray and Noble, 1978). The chance of trench warfare rather than democratic
debate in the jury room could be greater for cases, like terrorism, where people have
strongly held views (Ullrich and Cohrs, 2007).
Juror prejudice and verdict
Prejudice can be understood as an ‘antipathy’ to others ‘based upon a faulty and inflex-
ible generalization’, typically resulting from the membership in a group (Allport, 1954:
9), such as age or race. For jurors, prejudice may also result from personal features of the
trial participants, including the attractiveness of the defendant or the witnesses, the
demeanour of the judge or the behaviour of the legal representatives (Mazzella and
Feingold, 1994). Prejudice about particular defendants may result from negative
media coverage (Kramer et al., 1990; Ogloff and Vidmar, 1994). Apart from general
and specific prejudices, a terrorism trial may engender a third form of prejudice, ‘con-
formity prejudice’ resulting from perceived peer pressure or community expectations
(Vidmar, 2003).
Prejudice in jury research is typically operationalized in relation to ‘authoritarianism’,
including uncritical attitudes to authority, dogmatism and lower values placed on human
rights (Bray and Noble, 1978). A distinction is made between ‘legal’ authoritarianism,
attitudes that privilege law and order over individual rights, and ‘traditional’ authoritar-
ianism, attitudes related to the family, religion and other areas of life (Kravitz et al., 1993).
388 Australian & New Zealand Journal of Criminology 44(3)
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