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38 Law & Hum. Behav. 462 (2014)
Examining Pretrial Publicity in a Shadow Jury Paradigm: Issues of Slant, Quantity, Persistence and Generalizability

handle is hein.journals/lwhmbv38 and id is 464 raw text is: Law and Human Behavior 2014. Vol. 38. No. 5. 462-47 © 2014 American Psychological Association 0147-7307/14/$12.00 DOI: 10.1037/lhb0000081 Examining Pretrial Publicity in a Shadow Jury Paradigm: Issues of Slant, Quantity, Persistence and Generalizability Tarika Daftary-Kapur Fairleigh Dickinson University Steven D. Penrod, Maureen O'Connor, and Brian Wallace John Jay College of Criminal Justice, CUNY The purpose of this study was to examine the influence of pretrial publicity (PTP) on mock juror decision making. Specifically, we examined the influence of quantity and slant of the PTP (proprosecution vs. prodefense), the persistence of PTP effects over time, and whether the PTP effects demonstrated in research laboratories would also occur in more naturalistic settings (generalizability). Using a shadow jury paradigm we examined these effects using a real trial as stimulus. Mock jurors included 115 jury-eligible community members who were naturally exposed to PTP in the venue in which the actual case occurred and 156 who were experimentally exposed. We found mock jurors were significantly influenced by both the slant and quantity of the PTP to which they were exposed, such that those exposed to proprosecution or prodefense PTP tended to render decision in support of the party favored in the PTP, and those exposed to greater quantities of PTP tended to be more biased. Additionally, PTP effects persisted throughout the course of the trial and continued to influence judgments in face of trial evidence and arguments. A finding of no significant difference in the effect of exposure slant between the naturally exposed and experimentally exposed samples provides support for the external validity of laboratory studies examining PTP effects. This research helps address some of the concerns raised by courts with regard to the durability of PTP effects and the application of laboratory findings to real world settings. Keywords: pretrial publicity, juror, decision making, court, effects, external validity As news coverage has become progressively more accessible via newspapers, TV, and the Internet, the influence of pretrial publicity (PTP) on jurors has become an increasing concern. PTP refers to any information disseminated via the media about a case that is making its way toward trial (Greene & Wade, 1988; Studebaker & Penrod, 1997). As has been pointed out by the courts, not all publicity is problematic. The standard is not that jurors should be ignorant of the case and have no knowledge whatsoever regarding the defendant, but rather that they not have formed an opinion regarding guilt or innocence based on this knowledge (Newcomb v. State, 1990). Exposure to basic facts in the indictment or an outline of the facts in the case might not be considered prejudicial, whereas publicity that is inherently inflam- matory, for example, inadmissible evidence, and emotionally charged editorials might be (see, e.g., Newcomb v. State, 1990; Vidmar, 2002). This article was published Online First June 16, 2014. Tarika Daftary-Kapur, Department of Criminal Justice and Legal Stud- ies, Fairleigh Dickinson University; Steven D. Penrod, Maureen O'Connor, and Brian Wallace, Department of Psychology, John Jay College of Crim- inal Justice, CUNY. This article was supported by National Science Foundation (NSF) Grant SES- 0617152 to S.P. and SES- 0819392 to S. P and T. D.-K.). Any opinions, findings, and conclusions or recommendations expressed in this material are those of the authors and do not reflect the views of the National Science Foundation. Correspondence concerning this article should be addressed to Tarika Daftary-Kapur, Fairleigh Dickinson University, Criminal Justice and Legal Studies, 1000 River Rd., Teaneck, NJ 07666. E-mail: tdkapur@fdu.edu Given the strong constitutional protections afforded the free press in the United States, the justice system must deal with the possibility that a citizen who has been called for jury duty has been exposed to information about the case on which he or she is being asked to sit in judgment (Posey & Wrightsman, 2005). If that information presents biased, inflammatory, false or incomplete facts about a party in the case, then it has the potential to under- mine the constitutional guarantees to trial by an impartial jury (as guaranteed under the sixth amendment) and to due process in both civil and criminal trials. Courts have devised and implemented a number of remedies to help eliminate the potentially biasing effect of PTP and the Amer- ican Bar Association has developed guidelines to protect against the dissemination of prejudicial information before trial (see ABA Standards, Rule 3.6 for specific standards for lawyers dealing with PTP issues). Thus, it is clear that there is a level of sensitivity to the issue and an understanding of the harmful effects on decision making. At the same time empirical evidence suggests that these judicial safeguards may not be effective (Liberman & Arndt, 2000; Liebrman, Arndt, & Vess, 2009). Despite research that has shown that extralegal evidence such as PTP can influence juror decision making (see Steblay, Hosch, Culhane, & McWethy (2006) meta- analysis on inadmissible evidence for a review), judges have sometimes been reluctant to accept social science research findings concerning PTP effects. For example, Judge Matsch's opinion in the change of venue hearing for the Oklahoma City bombing trial of Timothy McVeigh indicated that Judge Matsch had greater faith in his personal experience as a trial lawyer and judge than psy- chological research consisting of largely simulated trials (United States v. McVeigh, 1996, p. 1473). In this study we attempt to 462

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