Chaos in the Courtroom Reconsidered: Emotional Bias and Juror NullificationAuthor(s): Irwin A. Horowitz, Norbert L. Kerr, Ernest S. Park, Christine GockelReviewed work(s):Source: Law and Human Behavior, Vol. 30, No. 2, Emotion in Legal Judgment and DecisionMaking (Apr., 2006), pp. 163-181Published by: SpringerStable URL: http://www.jstor.org/stable/4499467 .Accessed: 02/01/2012 10:02

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Law Hum Behav (2006) 30:163-181 DOI 10.1007/s10979-006-9028-x

ORIGINAL ARTICLE

Chaos in The Courtroom Reconsidered: Emotional Bias and Juror Nullification

Irwin A. Horowitz ? Norbert L. Kerr . Ernest S. Park .

Christine Gockel

Published online: 23 May 2006 C American Psychology-Law Society/Division 41 of the American Psychological Association 2006

Abstract A widespread presumption in the law is that giving jurors nullification instructions would result in "chaos"-jurors guided not by law but by their emotions and personal biases. We propose a model of juror nullification that posits an interaction between the nature of the trial (viz. whether the fairness of the law is at issue), nullification instructions, and emotional biases on juror decision-making. Mock jurors considered a trial online which varied the presence a nullification instructions, whether the trial raised issues of the law's fairness (murder for profit vs. euthanasia), and emotionally biasing information (that affected jurors' liking for the victim). Only when jurors were in receipt of nullification instructions in a nullification-relevant trial were they sensitive to emotionally biasing information. Emotional biases did not affect evidence processing but did affect emotional reactions and verdicts, providing the strongest support to date for the chaos theory.

Keywords Juror nullification . Chaos hypothesis . Emotional bias

The jury's power to decide a criminal case by its own lights without fear of reprisals has been a hallmark of Anglo-American jurisprudence. The power of jurors to return verdicts that are counter to both the law and the evidence is known as jury nullification and its occurrence in both criminal and civil trials has been documented (e.g., Noah, 2001; Pepper, 2000). Jurors have this power because jury deliberations and verdicts are opaque (i.e., no explanation or justification is required of the jurors). This nullification power has been the subject of a resurgence of scholarly

I. A. Horowitz (Q]) Oregon State University, Corvallis, Oregon 97331-4501 e-mail: ihorowitz@oregonstate.edu

N. L. Kerr . C. Gockel Michigan State University, East Lansing, Michigan 48824

E. S. Park North Dakota State University, Fargo, North Dakota 58102

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and public interest in recent years, partly as a response to a number of high profile criminal trials

(e.g., the 0. J. Simpson criminal case and the Rodney King case; (Brown, 1997; Green, 1985; King, 1998; Leipold, 1996; Marder, 1999; Pepper, 2000).

Although jurors clearly have the power to nullify, given the opaque nature of verdicts, the

question of whether jurors have the right to nullify has been the subject of much legal discussion (Brown, 1997; Conrad, 1998; Leipold, 1996; Marder, 1999). The "right" of the jury to nullify has more support among legal academics than among judges (Amar, 1998; Butler, 1995; Magliocca, 1998 Scheflin & Van Dyke, 1991). Most legal scholars appear to strongly oppose the jury's exercise of its nullification power (Schopp, 1996; Scott, 1989; St. John, 1997). On the other hand, there is at least some public support for legitimizing juries' nullification powers; for

example, some grass roots organizations have attempted to amend state constitutions to permit juries to be fully informed of their power to nullify (Conrad, 1998), although see Hannaford-Agor Hans, (2003).

The prevalent view of the courts is that laws should flow out of deliberate procedures, derived from the lawmaking powers of duly elected officials, to which jurors must strictly adhere (Pepper, 2000). This perspective concedes that although juries in English Common Law had been given the power which permitted sympathetic juries to acquit those who are legally guilty but morally upright, this power was vitiated when the United States Supreme Court in Sparf and Hansen v. United States (1895) ruled that no such explicit right existed. Subsequent appellate decisions, although sparse, have conformed to Sparf (see, notably, United States v. Dougherty, 1972).

Nonetheless, the competing view concedes nothing to the normative perspective. Indeed, nullification proponents note that courts (e.g., Dougherty) have routinely recognized and even commended the history of nullification beginning in the colonial period and extending into the

present. Examples of nullification involving acquittals of legally guilty but morally sympathetic defendants are numerous including, among others, cases involving seditious statements, viola- tions of the 1850 Fugitive Slave laws, infractions of the 18th Amendment prohibiting the sale of liquor, refusal of some juries to convict Vietnam War era draft evaders and jurors' reluctance to enforce draconian drug laws (Conrad, 1998). Jurors who return verdicts that are merciful are

exercising what we term "conventional" nullification (Horowitz, Kerr, & Niedermeier, 2002). Juries, however, nullify for a variety of reasons and in a variety of circumstances (Brown, 1997). Perceived injustice can arise from the notion that illegal behavior was justified to some degree. That is, jurors may believe that any reasonable person would have acted the same way in similar circumstances (Finkel, 1995). A second variant of nullification can occur when jurors reason that the defendant was not a free agent and acted under compulsion or diminished capacity (Scheflin & Van Dyke, 1991). Or, jurors may conclude that a defendant's actions were prompted by admirable motives or intentions. This may be exemplified in some cases of euthanasia or doctor assisted suicide (Brown, 1997). Even if jurors do not regard a defendant's behavior as

justified, they might nullify if they believe that the penalty prescribed by law is disproportionate to the offense, either because the usual penalty is seen as too severe or because the defendant has "already suffered enough" (St. John, 1997). Nullification can also be motivated by jurors' rejection of the law or statute itself, rather than by concern for the fate of particular defendants (Solan, 2003).

Juridic biases and nullification instructions

The chaos theory

The issue in Dougherty was whether it was proper for a trial judge to issue a nullification instruc- tion to the jury, a request made by the defense. The defense at trial petitioned, unsuccessfully,

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that a nullification instruction be included as an addendum to the standard jury instructions

provided by the trial judge. This addendum would have informed the jury that they could return a verdict counter to the law and evidence if they felt such a verdict would be unfair or unjust. The Dougherty Court decided, by a 2:1 majority that, the trial judge had acted properly in his decision not to include such a nullification instruction. The reasoning of the court (both the

majority and minority) is relevant and crucial to the present study. First, in the majority opinion, Judge Howard Leventhal conceded that jurors had the power to nullify and had used that power in an appropriate and even laudatory manner on many occasions.

... the pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. (p. 1130)

Nevertheless, the majority held that to overtly inform jurors of that power would focus the

jury on emotional rather than evidentiary factors and thereby invite "chaos" into courtrooms.

... to compel a juror ... to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. .... To tell [a juror] expressly of a nullification prerogative ... is to inform him, in effect, that it is he who fashions the rule that condemns. This is an overwhelming responsibility, an extreme burden for the jurors' psyche. (p. 1136)

The majority view was that informing jurors of the nullification option would allow or

encourage jurors to stray from the facts and decide cases primarily on their emotional reactions, personal biases, and other nonevidentiary factors. Thus, the Dougherty majority suggested that nullification may occasionally be a good thing, but jurors definitely ought not be informed of this option.

Judge David Bazelon, writing the minority opinion in Dougherty, suggested first that there is no reason

... to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation, we must re-examine a great deal more than just the nullification doctrine. (p. 1142)

For Bazelon, the key issue was not anarchy but candor. Tell the truth, argued Bazelon; inform

jurors that they have nullification powers but caution them to use it carefully, sparingly, always in the service of those deserving mercy. By doing so, the law can channel this power into avenues that strengthen the law, and increase its credibility, rather than raise havoc with it.

Empirical evidence on the chaos theory

What happens when jurors are explicitly informed of the nullification power? The empirical findings are mixed. On the one hand, some mock jury studies suggest that juries in receipt of standard judicial instructions are more focused on the evidence and the judge's presentation of the relevant law than those jurors in receipt of instructions that explicitly permit nullification, who tend to concentrate relatively more on nonevidentiary matters (Horowitz, 1985; Horowitz, 1988; Pfeifer, Brigham, & Robinson, 1996). However, we should note that these nonevidentiary matters are prompted and encouraged by nullification instructions which suggest that jurors ought to apply their notions of justice. Pfeifer et al. (1996) found that mock (nondeliberating) jurors were significantly less likely to find a defendant accused of euthanasia guilty when in receipt of nullification instructions and when the act was committed compassionately (disconnecting a respirator) rather than violently (two gunshots to the head); this difference was not significant under standard instructions. Similarly, Hill and Pfeifer (1992) found that defendant race in a rape trial had a significant effect on juror judgment under strong nullification instructions, but not with standard instructions. On the other hand, in neither of these studies was the key interaction effect between the biasing factor (means of death; defendant race) and type of instruction significant,

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nor were comparable interaction tests in Meissner, Brigham, and Pfeifer (2003). In fact, Meissner et al. (2003) found that following mock jury deliberation, the relationship between euthanasia attitudes (a potential source of juridic bias) and juror guilt ratings were actually weaker for those receiving nullification instructions.

There is also considerable evidence directly contradicting the chaos theory. In a series of four experiments (Niedermeier, Horowitz & Kerr 1999; Niedermeier, Horowitz, & Kerr, 2001) reported that although a number of extralegal biases significantly affected mock jurors' verdicts (viz. defendant gender, severity of penalty, defendant occupational status, defendant remorse, defendant ethnicity), nullification instructions generally did not directly magnify jurors' biases. The only exception was that defendant occupation showed a stronger biasing effect among individual jurors in receipt of nullification instructions; however, this interaction did not replicate at the jury level.

In summary, although there are some hints that nullification instructions might increase jurors' susceptibility to biasing information, there is little strong or direct evidence for the chaos hypothesis advanced in Dougherty.

Varieties of bias and a hypothesis

The concept of bias implies deviation from some prescribed standard of judgment (cf. Hastie & Rasinski, 1988; Kerr, MacCoun, & Kramer, 1996). In juries, this could involve paying attention to information which is legally irrelevant (e.g., evidence ruled as inadmissible) or failing to pay attention to information which is legally relevant (e.g., ignoring judicial instructions on the burden of proof). In its broadest interpretation, the chaos theory of Dougherty implies that any and all such juror biases could be exacerbated by judicial instructions that legitimize jury nullification. But, as we have seen, there is at best mixed evidence for this prediction.

But perhaps this is too broad a reading of the chaos theory. Perhaps it is only certain types of juror biases that are facilitated by nullification instructions. In Dougherty, the court was confronted with a particularly volatile trial. Nine members of the Catholic clergy were charged with breaking into and ransacking offices of the Dow Chemical Company and smearing fake blood around the offices to protest that firm's manufacture of napalm, which was being used widely in the Vietnam War. More than the typical criminal case, this trial touched on many emotionally charged issues for the jurors-their feelings about the Vietnam war, the effects of napalm bombing, jurors' religious convictions, and the motives of the defendants. In addition, the defense and the defendants were rather rambunctious and indecorous. It was in the context of these strong emotional factors that the Dougherty majority expressed their concern about the likely effect of providing nullification instructions.

A distinction has been drawn (e.g., Kramer, Kerr, & Carroll, 1990; Wilson, & Bornstein, 1998) between juror biases that are factual versus those that are emotional. Factual biases stem from information which alters jurors' interpretation or evaluation of the facts of the case. An example of a factually biasing event might be knowledge of a prior conviction in an unrelated case. Factual biases involve the use of information which, from a strictly legal point of view, is not probative. Emotional biases, on the other hand, stem from information which alters jurors' emotions but is neither directly or indirectly probative. An example of emotionally biasing information is irrelevant negative character information about the victim of a crime; e.g., celebrated defense attorney Percy Foreman (e.g., Dorman, 1969) suggested that the best defense in a murder case was to so vilify the victim that the jurors would themselves have willingly committed the murder. There is considerable research evidence that such emotional reactions to trial evidence can affect juror judgments (e.g., Bomstein, 1998; Feigenson, 2003; Feigenson, Park, & Salovey, 1997; Voss & Van Dyke, 2001).

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Kramer et al. (1990) suggested that these two types of bias can sometimes have qualitatively different effects. For example, in their study, they found that a continuance--delaying the start of a trial-reduced the impact of a factually biasing piece of prejudicial pretrial publicity (PTP; viz. inadmissible physical evidence and the report of a prior conviction) but did not attenuate the impact of some emotionally biasing PTP (viz. personal familiarity with a crime victim). Highly emotionally charged information seemed to persist and bias longer than less emotionally charged, factual information.

In a similar vein, we hypothesize here that if nullification instructions accentuate any juridic biases, they are most likely to do so for emotional juridic biases. Most proposed nullification instructions (e.g., Conrad, 1998; Van Dyke, 1970) tell jurors that their personal sense of justice or conscience are valid concerns as they reach their verdict. Common experience as well as research (e.g., Eisenberg, Smith, & Sadovsky, 2004; Roberts, 2003; van de Bos, 2003) suggests that judgments of justice or morality tend to be highly emotionally charged. Thus, nullification instructions legitimize focusing on how one feels as a valid criterion for evaluating one's verdict- if one does not feel that a particular verdict is fair or just, one may refuse to accede to it, regardless of what the law requires.

Nullification instructions could accentuate emotional biases in several ways. First, emotional responses that stem from the emotionally biasing information, per se, may be confused with or attributed to the emotional responses resulting from justice or fairness concerns (and vice versa). The emotional distress one would feel at reaching an unjust verdict (e.g., sending someone to jail for reasonable or defensible actions) may be indistinguishable from the distress one would feel at the prospect of convicting, say, a well-liked defendant. If it feels wrong to convict a defendant, then information which affects those feelings might be expected to have particularly strong effects on jurors' verdicts if one's feelings are made a valid basis for evaluating one's verdict. Similarly, when nullification instructions are combined with emotionally charged trial elements (e.g., a very sympathetic victim; a defendant with praiseworthy motives), jurors may make judgments by relying on "how-do-I-feel-about-it" heuristics (Schwarz & Clore, 1983). From such an affect-as-information perspective, if a juror is making a justice decision, sympathy and emotional upset may be perceived as relevant to the judgment (Forgas, 1995). Finally, an instructional license to consider personal conscience or fairness concerns may, by legitimating reliance upon one's emotional reactions, reduce self-corrective actions to minimize emotional biases (Wegener, Kerr, Fleming, & Petty, 2000).

As noted earlier, there is only weak empirical evidence that nullification instructions ac- centuate juridic biases. This pattern is unsurprising if the biases that have been considered in previous studies have primarily been factual rather than emotional biases. It is possible (and usually plausible) to make this argument for most of the prior research. For example, knowledge that a defendant is female could lead to reliance on gender stereotypes, which-although not legally permissible evidence---could bias jurors' judgments about the plausibility of elements of the prosecution vs. defense narratives. Unfortunately, there is no conceptual or empirical basis for definitively classifying these various juror biases as factual. And, it is also possible that some pieces of information are biasing in both ways (e.g., euthanasia by shotgun may both emotionally distress jurors and have factual implications [e.g., an animus toward the victim; motives other than relieving suffering]; a rape defendant's race may both trigger racial prejudice and reliance on probative features of a racial stereotype). The weak and nonsignificant hints of instructional moderation could derive from the emotional rather than the factual aspects of the biasing information used in prior studies. Clearly, what is needed to test our hypothesis is examining biasing information that should strongly affect juror emotion without having any implications for the defendant's culpability. Providing such a test was the primary purpose of the present study.

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Stimulus Trial

Law or If No Emotionally Procedure Compliant Verdict biasing info?

Unfair?.

If Yes ~f Yes

Emotional Response Negative Emotional Response I Emotional Response

Nullification IfZYes Instructions?

Emotional Bias

IfNo

Compromise Pro Nullification Verdict (Just) Verdict

Individual Juror Predeliberation Verdict

Jury Deliberation

Fig. 1 Model of juror decision-making

A model of nullification instruction effects

In order to make our logic more explicit, we present in Fig. 1 a tentative model of juror nullification.1 The model incorporates both the factual and emotional pathways to juror bias. We assume that the juror proceeds through several decision points before an individual verdict is reached. The model assumes that a juror makes a judgment as to whether the case (i.e., fact

situation, law, procedures, and judicial instructions) raises the possibility of unjust outcome. If

not, a compliant verdict, consistent with the law and rules of evidence will tentatively be reached.

However, if an unfair outcome is seen as possible, two things should occur sequentially: (1) the

juror experiences some negative emotional responses (e.g., anxiety about contributing to an unjust verdict; dissatisfaction with the law or procedures; sympathy towards certain legal actors), and

(2) a second nullification judgment must be made, based on the instructions received. If the instructions prescribe strict adherence to the law (i.e., if there are no nullification instructions), relatively few jurors will nullify (e.g., only those who strongly believe that a just outcome is

1 Our logic also has implications for nullification at the jury level, but this portion of the model is beyond the scope of the present paper.

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more important than fidelity to the law, or who see the injustice that would result from obedience to the law as particularly noxious in the present case). However, if instructions do permit juror nullification, a number of distinctive effects may occur (along the "Ifyes" path). First, jurors will be relatively likely to favor a "pronullification verdict"- that is, one that results in an outcome that they personally view as just. Second, the legitimization of emotion-laden judgments (of conscience, of fairness) should facilitate mutual influence between the different sources of emotion. In particular, emotional responses that stem from emotionally biasing information (e.g., one's attitude toward the defendant or victim) may be confused with or attributed to the emotional responses resulting from justice concerns, per se. Third, an instructional license to take conscience and fairness concerns may legitimate reliance upon one's emotional reactions. The latter two moderating effects are represented by the dashed arrows in the figure; they signify the enabling effect of nullification instructions on both the mutual influence of the two sources of emotion and on emotional biases, per se. The net effect of these two processes should be to magnify the emotional bias. The model also presumes that nullification instructions would not moderate the effects of any purely factual biases.

In the present study, we manipulated three factors. To induce an emotional bias, we varied the characterization of a victim. In one condition, the victim was portrayed in highly attrac- tive and sympathetic terms; in the other, he was portrayed very unsympathetically. Care was taken to insure that the depiction of the victim had no evidentiary implication for the guilt or innocence of the defendant-that is, the resulting bias should be wholly nonfactual in nature. We expected jurors to be less upset at the killing of the unsympathetic victim and conse- quently to be less inclined to convict in this condition. The second manipulation was of judicial instructions-standard judicial instructions versus standard instructions with a nullification ad- dendum. Finally, the same basic fact situation was used to create two parallel trials, one which raised no question about the fairness of the application of the law to the defendant (a charge of murder where the defendant's motive was simple greed) and another that did (a euthanasia case, where the defendant's motive was to relieve the suffering of the victim, a terminally-ill patient).

Our conceptual model suggests that a nullification instruction should actually increase the degree of emotional bias if the case raises issues of justice (e.g., the euthanasia case), but not otherwise (e.g., the murder case). Thus, the model predicts that the emotional bias ef- fect (i.e., effect of victim sympathy) should be greater when a nullification instruction is used for the nullification case than in any other combination of trial and instructions. Confirma- tion of this prediction would confirm the Dougherty court's worst fear-that a kind of chaos can emerge as a result of nullification instructions. Here, this takes the form of what one might term "juror vilification," a dark side of nullification, in which defendants accused of crimes against unsympathetic victims are treated more leniently than the evidence warrants after receiving nullification instructions for a trial that raises questions about the fairness of the law.

Method

Participants

Mock jurors were 520 volunteer participants (207 males, 303 females, 10 not reporting sex). Most (442) were recruited from basic psychology courses at a large midwestern university, but some (viz. 78) were volunteers recruited through on-line websites for those interested in social science research. Participants ranged in age from 18 to 64 (mean = 21.0, SD = 6.05).

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Design

Two versions of a Trial (nonnullification/murder vs. nullification/euthanasia), two levels of Victim Sympathy (sympathetic victim vs. unsympathetic victim), and two types of Judicial Instructions (standard pattern, standard plus nullification) were combined in a 2 x 2 x 2 between- participants design.

Stimulus trials and manipulation of independent variables

We created two trials, both of which contained the same essential fact situation. The basic trial scenario involved an elderly man who died as a result of a drug overdose administered while he was a hospital patient.2 In the nonnullification murder case, the defendant was the victim's doctor and the prosecution alleged that his motive was to obtain access to the victim's fortune. The nullification, euthanasia version suggested that the defendant could not have profited financially from the defendant's death; rather, the prosecution alleged that the defendant euthanized the victim to alleviate suffering caused by a terminal cancer. Thus, in the nonnullification version, the defendant's alleged motive was greed; if the elements of the charge of murder could be proven beyond a reasonable doubt, then there should have been little reason for jurors to nullify. In the nullification version, on the other hand, the defendant's motive was to relieve his patient's pain; even if the elements of the charge could be proven beyond a reasonable doubt, many jurors might see a conviction as unjust and be willing to nullify. We should note here that unlike historically classic nullification trials, in these trial versions the defendant did not explicitly concede guilt. We suspect that such a scenario is more typical than those which contain overt or veiled appeals from the defense for nullification.

Manipulation of victim sympathy

This was accomplished via manipulation of the characteristics of the victim, Mr Henry Bates. In one condition, Bates was portrayed as a sympathetic grandfather and generous philanthropist, bravely enduring a 2-year ordeal of battling a terminal illness while living in the house of his

granddaughter, Nurse Nancy Kepes. In the other condition he was portrayed in most unsympa- thetic terms. Evidence was presented showing that his fortune, mainly in offshore depositories, was made during his career as a mobster. To further embellish this unsympathetic picture,

2 The basic trial involved a charge of murder against Dr Daniel Wood. Dr Wood treated patient Henry Bates,76, who was ill with cancer and suffered from severe abdominal pain when he arrived at the hospital where Wood was a senior physician. Dr Wood had not previously provided medical care for Mr Bates, but was casually acquainted with Bates who was the grandfather of his surgical nurse, Ms Kepes. Mr Bates had been cared for by Nurse Kepes in her home since he had become ill. Wood performed surgery on Bates to repair a perforation in the proximal duodenum which had led to diffuse peritonitis, an inflammation of the stomach wall. Over the next 8 days, patient Bates remained under Dr. Wood's care in the surgical intensive care unit. On the ninth day, Bates took a turn for the worse. The evidence suggested that there were chemical imbalances in Bates' blood work and Dr Wood treated that condition vigorously. Dr Wood administered a drug in dosages well above the hospital's guidelines and at a much faster rate than deemed safe. The testimony of the other doctors and some nurses suggested strongly that Dr Wood, who brusquely dismissed the concerns of other nurses and physicians, was in fact too aggressive and Wood's treatment very likely was the immediate and proximate cause of the patient's death. The county coroner agreed with this assessment. The hospital investigated and so did the local police. The hospital suspended Dr Wood pending the outcome of judicial proceedings. The investigation took a number of months, and subsequently Dr Wood was indicted for the murder of Henry Bates. In all trial versions Dr Wood was portrayed as a rather abrasive surgeon, aggressive, self-assured, dismissive of the opinions of others, but highly competent.

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evidence showed that Bates was a convicted child molester and a most ungrateful and demand- ing guest while living in Ms Kepes' home. Evidence also intimated that Mr. Bates may have made improper advances to Ms Kepes' two young daughters during that period.

Manipulation of judicial instructions

All jurors were given standard instructions containing all essential components (e.g., elements of a charge of murder, admonitions to focus solely on the evidence, and reminders of the burden of proof and reasonable doubt criterion). However, mock jurors assigned to the nullification instructions condition were also provided with an addendum to the usual judicial instructions, based on recommendations of Van Dyck (1970).

While you must give respectful attention to the laws about which you have just been instructed, you have the final authority to decide whether or not to apply a given law to the acts of the defendant on trial. As jurors you represent the community and it is appropriate to bring into your deliberation the feelings of the community and your own feelings based on your conscience. You must respect the law, that is clear. However, regardless of your respect for the law nothing should stop you from acquitting the defendant if you feel that the law, as applied to the fact situation in this case, would lead to an injustice.

Procedure and dependent measures

Mock jurors, who were randomly assigned to one of the versions of the trial, accessed that version at a website. They read a version of the 27-page trial transcript. The trial included photographs, ostensibly of all of the participants. The judge's instructions were presented at the conclusion of the trial.

We then presented jurors with an extensive verdict form. Primary interest, of course, was in jurors' verdicts, but a number of additional measures were also collected, including ratings of confidence in verdict, probability of guilt, and sentence recommendation. In addition, mock jurors were asked to assess the defendant and the victim on a number of bipolar evaluative measures (viz. bad-good, sympathetic-unsympathetic, likeable-unlikable). The victim-relevant items served as a check of the effectiveness of the Victim Sympathy manipulation. We examined the effectiveness of the case manipulation by checking jurors' views on the defendant's motive and key elements of the prosecution and defense cases. These were assessed through true- false items (e.g., "The prosecution theory of the case was that Dr Wood killed Henry Bates to obtain money.") embedded in a 30-item memory test. To probe our suggestion that nullification instructions can accentuate emotional reactions in certain trials, participants were asked to indicate their emotional reactions to the trial on three bipolar scales (viz. not angry-angry; upset-not upset; calm-agitated). Finally, jurors provided some demographic information (e.g., gender and age). Following completion of the response instrument, participants were given a written debriefing.

Results

Manipulation checks

The primary objective was to confirm the effectiveness of the emotional bias manipulation. The three evaluative measures of the victim (bad-good, sympathetic-unsympathetic, and likeable- unlikable) were examined in a 2 x 2 x 2 MANOV The only significant multivariate effect was the main effect for Victim Sympathy, Wilks'A(3, 502) = .449, p < .001, r2 = .551. Likewise,

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the only significant effect in the univariate ANOVAs of these scales was the Victim Sympathy main effect, F(1, 504) > 330, q2 > .39, p < .001 for each. As intended, the sympathetic victim was evaluated much more positively than the unsympathetic victim; the latter was seen as less good (3.26 vs. 7.45 on the 9-point bad-good scale), more unlikable (3.20 vs. 6.80), and more unsympathetic (2.90 vs. 6.43).

To confirm that the differences between the nonnullification (murder) and nullification (eu- thanasia) versions of the trial were perceived as intended, the association between trial condition and participants' true/false responses on a number of relevant questions was determined. As intended, mock jurors in the murder case were (compared to those in the euthanasia case) significantly more likely to agree that the defendant's motive was greed, X 2(1) = 7.36, p < .01, N=516, 9(2 =.014) and that this was the prosecution's claim, X2(1) = 176.6, p < .001, N=514, (2 = .344, and less likely to recall the victim's pain as constant and severe, X2(1) = 120.2, p < .001, N= 516, (2 = .233, or that the prosecution claimed that relieving this pain was the defendant's motive, X2 (1) = 91.3, p < .001, N= 516, (2 =.177.

Juror verdicts and related judgments

The dependent variable of primary interest was the dichotomous, guilty/not guilty verdict. Prior to the main analyses of the verdict data, we did some preliminary analyses to see whether the verdicts were moderated by any of three juror attributes-juror sex, participant population (student vs. nonstudent sample), and participant citizenship (US vs. non-US). Strictly speaking, some of our participants (viz. the 30 identifying themselves as noncitizens and perhaps some of the 11 who failed to provide this demographic data) were not eligible to serve on a US jury, and it was of some interest to see if verdicts were affected by such eligibility. The only significant effect to emerge from these analyses was a main effect of juror sex, F(1, 492) = 6.88, p < .01, q2 = .014; women overall were less likely to convict (49.8%) than men (61.7%). It is noteworthy that there was no overall difference in conviction rate for the student vs. the nonstudent sample, F(1, 502) = 1.90, ns). In no case did any of these juror attributes moderate the effects of any of the independent variables; in particular, the key predicted 3-way interaction effect was unmoderated by any of these juror attributes (ps > .47). Thus, the analyses reported hereafter are based upon the full sample; small variations in degrees of freedom are due to occasionally missing data, reflecting failures to respond.

Verdict data were analyzed using a planned contrast to test the model's key prediction, and to examine other effects, the usual contrasts implicit in a standard 2 x 2 x 2 ANOV [Note that if con- viction rates are not too extreme and the degrees of freedom for error are sufficiently large (con- ditions met in the present data set), analysis of variance of such dichotomous data is quite robust to the violation of usual ANOVA assumptions (e.g., of normality; Lunney, 1970). Our model's

key prediction was that of all conditions, the emotionally biasing victim information would have its greatest impact when nullification instructions were used in a nullification-relevant case (such as the euthanasia case). This was tested with a planned contrast comparing the size of the bias effect (viz. the simple effect of victim sympathy) in the nullification instructions-euthanasia case with the corresponding simple effects in the remaining conditions. This contrast was significant, t(510) = 2.12, p < .03, r2 = .008. The plot of the conviction rate data in Fig. 2 shows that, as our model suggests, jurors who had received nullification instructions for the euthanasia case did show greater sensitivity to the biasing victim information than the jurors in any of the remaining conditions. It was in this condition only that the simple effect of Victim Sympathy was significant, t(510) = 2.49, p < .02, 72 = .012; here, conviction was much more likely when the victim of the crime was highly sympathetic (59% guilty) than unsympathetic (37% guilty), whereas victim sympathy failed to significantly affect verdicts in any of the other Trial/Instruction conditions

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O Symp. Victim [ Unsymp. Victim 0.75

0.5

Murder Euthanasia Murder Euthanasia

0 0.45

0.35

0.25

Standard Instructions Nullification

Fig. 2. Verdict means

(t < .77, p > .44 for the remaining simple effect tests) . Thus, for the present case, the extra-legal information about the crime's victim only biased jurors' verdict when they received nullification instructions for a nullification-relevant case; by itself, the emotionally biasing information was not biasing enough to significantly affect jurors' verdicts. The ANOVA on verdicts revealed only two other significant effects: the conviction rate was higher for the murder case (61.6%) than for the euthanasia case, 51.1%; F(1, 510) = 5.81, p < .02, q2 = .011, and with standard instructions (60.9%) than with nullification instructions, 51.7%; F(1, 510) = 4.47, p < .05, 72 = .009. Al- though our focused contrast was significant, as noted above, the unfocused test of the three-way interaction effect was not, F(1, 510)= 2.30, p = .13.

The same main effects also emerged on estimates of "the probability that Daniel Wood deliberately and intentionally killed Henry Bates" (Trial main effect F(1, 512) = 6.36, p < .02, 72 =.012; Instruction main effect, F(1,512)= 8.49, p < .01, 172 = .016. However, it is noteworthy that the model contrast was not significant, t(512) =. 84, ns; indeed, there was no indication that information about the victim had any effect on this judgment (neither the overall Victim Sympathy main effect, nor any of the simple main effects were sig- nificant). Thus, as intended, the bias induced by the victim sympathy treatment was not a factual bias, that altered jurors' beliefs about the defendant's likely culpable behavior. Nor was their sensitivity to the victim information in the euthanasia-nullification instruction condition a result of some evidentiary inference from the information provided about the victim.

Finally, as a probe of how punitive the mock jurors were toward the defendant, partic- ipants were asked to rate how severe a penalty he should receive, if he were convicted (ranging from minimum under the law to maximum under the law on a 9-point scale). Un- surprisingly, they were more punitive for a defendant with a motive of greed (5.76) than a

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motive to relieve pain, 5.09; F(1, 511) = 10.57, p < .001, 2 = .020. In addition, they were more punitive when given standard instructions (5.63) than nullification instructions, 5.23; F(1, 511) = 3.87, p < .05, -q2 = .008. However, the latter effect was not moderated by the nature of the case and how sympathetic the victim was [model contrast t(511) = 1.13, p > .25]. Thus, the penalty data did not mirror the more complex pattern shown in Fig. 2 for the verdict data.3

Emotional reactions

Our model suggests that in a trial that raises nullification issues, nullification instructions may result in confusion and misattribution of emotional responses. In the present design, this means that a particularly strong emotional response to the victim information should occur under these conditions, and further, that this emotional response should mediate the resulting accentuated- emotional-bias effect. To examine these possibilities, the data on mock jurors' emotional reactions to the trial were analyzed in the same way as the verdict data (viz. with the planned model contrast along with omnibus 2 x 2 x 2 ANOVAs). Participants were asked to rate how they felt when they finished reading the trial transcript on three scales, assessing how angry, upset, and agitated they felt. There were no significant effects on the agitation measure, but there were significant three-way interaction effects on both the anger, F(1, 504) = 5.43, p < .02, 72 = .011, and upset F(1, 505)= 3.88, p < .05, q2 = .008, measures. The interaction effect for anger was complex and did not parallel or illuminate the model prediction for verdicts; the model contrast was not significant, t(504) = 1.13, ns, and neither were any of the victim sympathy simple main effects (p > .19 for all). However, the interaction pattern "for feeling upset" did parallel and illu- minate the verdict data. As Fig. 3 indicates (with the scale reversed for readability, such that high values indicate feeling more upset), it shows the pattern predicted by our model [model contrast t(505) = 2.17, p < .03, 12 = .009]. Specifically, it is only when jurors received nullification in- structions for the nullification-relevant trial that the attributes of the crime's victim affected how upset they felt [t(505) = 2.62,p < .01, 92 = .013; t<.89 for the remaining victim sympathy simple effects].

We then looked to see if feelings of being upset could mediate the pattern predicted by our model (i.e., Fig. 2), following the procedures recommended by Baron and Kenny (1986). First, to recapitulate the original verdict analyses, verdicts were regressed on the model contrast along with the other two effects that were found in the original ANOVA, Trial and Instructions (all dummy coded). Again, all three predictors significantly predicted verdicts, and in particular, the regression weight for the model contrast was significant, / = .096, t(514) = 2.20, p < .03. Second, we confirmed the link between the model contrast and the presumptive mediator, feeling upset. When participants' upset ratings replaced verdicts as the criterion in the preceding

3 The penalty recommendation asked "If the defendant were to be found guilty, how severe a penalty would you favor?" Responses were made on a 9-point bipolar scale anchored by minimum under the law and maximum under the law. Hence, our mock jurors were asked to assume the same role as the trial judge, and determine an appropriate sentence regardless of their own personal verdict preferences. However, it is possible that those who had found the defendant guilty would find it difficult to recommend a sentence. To explore this possibility, two additional analyses were conducted. First, we added participant verdict as a factor in the ANOVA of the penalty data. Unsurprisingly, those who thought that the defendant was guilty recommended a harsher penalty (mean = 6.12) than those who acquitted [mean = 4.52, F(1, 501) = 62.56, p < .001, r12 = .111], but the verdict factor did not interact significantly with any of the remaining factors. The Case main effect remained significant, F(1, 501) = 6.75,p < .015, r/2 = .013, but the Instruction main effect did not. Second, the penalty data were reanalyzed excluding all participants who had acquitted the defendant. Again, the model contrast was not significant, t(283) = 1.26, ns; the only other significant effect was the Case main effect, F(1, 283)= 5.61, p < .02, 92 = .011.

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Law Hum Behav (2006) 30:163-181 175

EJ Symp. Victim M Unsymp. Victim

5.5

U, 4.

5

LLD

4.5

4

Murder Euthanasia Murder Euthanasia Standard Instructions Nullification Instructions

Fig. 3 Means for feelings of upset (scale has been reversed so that higher values indicate feeling more upset)

analysis, the model contrast was again a significant predictor, 3 = .093, t(509) = 2.12, p < .04. Third, we confirmed the link between the mediator and verdicts. When verdicts were again the criterion and upset ratings (rather than the model contrast) was included as a predictor, the

presumptive mediator, upset ratings, predicted verdicts significantly, / = .258, t(507) = 6.08, p < .001. Fourth, when both the model contrast and upset ratings were included as predictors of verdicts, the latter still predicted verdicts significantly, 3 = .251, t(506) = 5.89, p < .001, but the former did not, / = .078, t(506) = 1.84, p > .05. Finally, a Sobel test indicated that the mediation effect was itself significant (z = 1.99, p < .05). These findings are consistent with the complete mediation of the prediction for verdicts by mock jurors' emotional responses (viz., feelings of

being upset).

Discussion

The American jury represents an attempt to produce a solution to the tensions between law and

anarchy. No issue so much stands at the nexus between law and anarchy as does the concept of

juror nullification. We expect juries to follow the law but we also expect them to occasionally deviate from the strict application of the law when unjust outcomes might result. Indeed, although the United States v. Dougherty (1972) majority did not allow a nullification instruction, the judges expressed a sotto voce hope that juries would intuit when to nullify and when not to do so. The Court's fear, now enshrined in case law, was that if juries were made explicitly aware of their

power to return nullifying verdicts, juries would recklessly ignore evidence and the law, and the furies of emotion and prejudice would be released. We have called this view the chaos theory.

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The empirical nullification literature is, at best, agnostic on the theory's predicted "chaotic" effect. Some research has hinted that nullification instructions produce an amplification of certain juror biases (e.g., Hill, & Pfeifer, 1992; Pfeifer, Brigham, & Robinson, 1996), whereas others find that several juror biases (e.g., of race, social class, ethnic origin, and gender) are not potentiated by nullification instructions (Meissner, Brigham, & Pfeifer, 2003; Niedermeier, Horowitz, & Kerr, 1999). Our theoretical model proposes a resolution to this mixed empirical pattern. It suggests that nullification instruction would strengthen a particular kind of juror bias (viz. emotional bias) in a particular kind of trial (viz. trials in which there could be confusion between the emotions aroused by the injustice of the law and by the biasing information). Most if not all of the prior work on nullification effects have been concerned with biases that are clearly or arguably factual (not emotional) biases. The model suggests that perceptions of justice are emotionally charged and nullification instructions may tend to legitimize emotions as valid information to be used in deciding a verdict (Alicke, 2000). Thus, the chaos effect should emerge when jurors are most likely to use their emotional reactions as valid information as they seek a just outcome.

The present study offered a first empirical test of this model. And, as the model predicted, jurors considering a case in which the fairness of the law was in question (viz. a euthanasia case) who received nullification instructions were especially sensitive to emotionally biasing information (viz. how sympathetically the victim was portrayed). Only in this condition did we observe a robust emotional bias effect. Thus, the chaotic effect occurred in only in the delimited circumstances identified by the model.

It should be noted that the unsympathetic victim was strongly disliked by jurors in all condi- tions. However, when given standard instructions jurors' verdicts were not significantly affected by this emotionally biasing attitude. In other words, they functioned in a legally appropriate manner. Moreover, even when given nullification instructions, jurors followed the law when no fairness issues were evoked by the trial (i.e., in the murder trial). When a murder defendant was motivated solely by greed, jurors saw nothing wrong with convicting that defendant re- gardless of how they felt about the victim. However, in the euthanasia trial version, the fairness of law became a prominent issue-is it just to convict a physician of murder when he hastens the death of a terminally- ill patient, solely to relieve his suffering? And how much less just would a conviction be if that patient is a very unlikable human being (a violent criminal, a child molester)? In this latter event, jurors invoked the nullification addendum and let their feelings about the victim influence their verdicts. Clearly, the euthanasia case is precisely the type of trial where we might expect (and even want) jurors to nullify, with or even without nullification instructions. It was not chaos to refuse to treat a mercy killer as a murderer; rather, it was jurors' inability to ignore other emotionally charged but extralegal information about the victim that might fairly be characterized as "chaotic." One would presume that the majority in Dougherty would not have been distressed if, when in receipt of nullification instructions, jurors acquitted a sympathetic defendant who, driven by nothing but generous motives and a courageous spirit, euthanized a sympathetic victim. That would have been a result easily rationalized and one in which most observers would have intuited. But that is not what we found. What appears to happen is that euthanizing a particularly admirable victim caused a strong negative emotional reaction ("upset"), whereas euthanizing a very unsavory victim caused little emotional upset on the part of jurors (and, we speculate, a "good riddance" attitude). The defendant was not held as culpable in the latter circumstances. This seems to us not to be the kind of benign or "principled" nullification that either Judge Leventhal in his majority opinion in Dougherty, nor Judge Bazelon in his dissent, had in mind. It appears that the decision was driven by a judgment about the worth of the life of the liked versus the disliked euthanasia victim when jurors were in receipt of a nullification instruction. Clearly there may have been something idiosyncratic about

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this victim or this "crime," but if chaos means unpredictable and perhaps mean-spirited verdicts, then these results are indeed "chaotic."

This pattern of verdicts could not plausibly be attributed to jurors' inferences about the defendant's likely behavior; the pattern was not mirrored in jurors' estimates of the probability that the defendant broke the law. This judgment was influenced by the trial manipulation; greed seemed to be a more plausible motive than compassion for intentionally giving a drug overdose. But it was not affected by the portrayal of the victim. The jurors got the facts right; they did not let their reactions to the victim distort the weight of evidence. The pattern of verdicts could, though, be attributed to the effects of jurors' emotional responses to the trial. The verdict pattern was both mirrored and mediated by jurors' reports of upset emotion. Of course, it will be important in future research to probe the relative susceptibility of factual vs. emotional biases to moderation by nullification instructions by systematically constructing such biases and comparing them directly (e.g., in a single study).

Jurors' recommendations of an appropriate sentence produced a less complex pattern of effects. Reasonably, jurors recommended a more severe sentence when the defendant had com- mitted murder for profit versus euthanasia out of compassion. More relevant to our current focus on nullification instructions, such instructions also mitigated recommended sentences. However, unlike for their verdicts, our mock jurors were never swayed by emotional biases in their sen- tencing. Apparently, it was in the uncertain realm of judging guilty and responsibility, and not in the more prescribed realm of assigning punishment that the present "chaotic" effects emerged. Given that juries currently do assign penalty in all US death penalty cases, and may, in light of recent Supreme Court rulings (Blakely v. Washington, 2004), be more directly and frequently involved in sentencing decisions, this pattern is noteworthy.

Implications and limitations of the present findings

These results provide the strongest empirical evidence to date for the chaos theory of nullification instructions. At least in some circumstances, appellate courts' aversion to nullification instruc- tions can be justified. It would, though, be an overstatement to say the theory has been vindicated. Most prior work (ostensibly involving factual biases) provides little evidence for the theory. And the support of our model and data is very limited-to emotional biases for nullification-relevant trials. It took a special set of circumstances to entice jurors to eat the forbidden fruit. Indeed, for those who would promote the jury's independence in deciding guilt, there is the not insubstantial consolation that in most conditions of this experiment, chaos did not reign.

Moreover, our findings strictly apply only to the particular nullification instructions employed here. Those instructions told jurors that they could nullify if conviction violated their sense of justice or their consciences, but did not identify and warn against the danger of confusing different sources of emotion in a trial. Even advocates of nullification instructions, like Judge Bazelon in the Dougherty ruling, grant that it might be risky to give jurors extremely broad or unlimited nullification powers. Bazelon argued that limits must be placed on such powers, that jurors must be cautioned to use them carefully, sparingly, and exclusively in the service of those deserving mercy. It remains an open but interesting question whether more carefully constructed, alternative nullification instructions could simultaneously achieve the several ben- efits imputed to nullification instructions in general (i.e., being honest with jurors, occasional but appropriate nullification of laws they view as clearly unjust, general insensitivity to factual biases, insensitivity to emotional biases in nonnullification cases) and avoid the particular kind of chaos observed here (viz. sensitivity to emotional biases in nullification cases).

Our conclusions are clearly circumscribed by the particulars of our study-not only a specific nullification instruction, but a specific set of trial facts and a particular manipulation of victim

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characteristics that evoked specific attitudinal and emotional reactions. Psycholegal scholars have only begun to pose a number of fascinating questions about the role of emotion in juror behavior. What aspects of a trial will trigger which emotions? Which emotions then affect which juror judgments? In the present study, juror verdicts could be reliably predicted from their emotional feelings of being upset-presumably at the potential fate of the defendant-but the other emotions that were assessed (viz. anger and agitation) either were not affected by the victim sympathy factor or, if affected, did not mediate juror verdicts. It may be that a diffuse emotion, without a particular referent (e.g., being upset), may capture the net effect of the emotional confusion and misattribution predicted here better than an emotion with particular (and perhaps, several potential) referents (e.g., anger toward the law, toward the defendant, toward the victim, etc.) Elsewhere, Bornstein (1998) has reported that sympathy for a victim can mediate the effect of outcome severity on mock jurors' responsibility judgments. In a product liability lawsuit against the manufacturer of a birth control pill, mock jurors were more sympathetic to the more seriously injured plaintiff, and this greater sympathy led to more liability verdicts against the defendant. Emotions tend to produce actions that are congruent with the appraisals that engendered those emotions. Thus, for example, anger (which did not appear to mediate juror verdicts in the present study), is generally associated with a blaming appraisal and presumably with a more harsh reaction to the source of that anger (e.g., Tiedens, & Linton, 2001). Hence, we might expect that when jurors are asked to sentence, any feelings of anger would prompt more punitive sentences (Feigenson, 2003). Here, jurors' dislike of the unsympathetic victim or upset feelings did not appear to affect their penalty recommendations; but would biasing information which aroused their anger have done so? And which such emotional effects can be controlled and which cannot? Limiting judicial instructions have often been shown to rather ineffective (Wissler & Saks, 1985). However, in the present study, the effects of jurors' feelings about the victim were controlled through standard judicial instructions, but were released by nullification instructions. These and other related questions clearly deserve further systematic study.

We are aware of certain limitations of the present research. Like the modal experimental study of juror behavior (Bornstein, 1999; Bray & Kerr, 1982), our simulation was fairly unrealistic. Its mock jurors were fairly unrepresentative (e.g., were, on average, younger and better educated than the typical actual juror). It presented participants with a relatively brief written trial transcript rather than a live trial. The stimulus trial was presented and responses were obtained not in a courtroom but via the Intemet. And it focused on the behavior of individual jurors, not deliberating juries. These methodological choices were made deliberately, primarily for reasons of cost effectiveness, experimental control, and statistical power (cf. Kerr & Bray, in press). Nevertheless, it is possible that one or more of these artificialities could limit the ecological validity of our findings. It is encouraging that the student/nonstudent status of our participants did not moderate any results of interest, the usual conclusion of studies that have made this contrast (Bornstein, 1999). And a number of recent studies by (e.g., O'Neil, 2002; O'Neil, Penrod, & Bornstein, 2003) similarly found few differences between findings obtained on Web- based and comparable laboratory-based studies. The absence of jury deliberation could be of particular interest. Some (e.g., Marder, 1999) explicitly argue that nullification is defined by a conscious exercise of the jury's power to nullify to avoid an unjust outcome. This implies that jury deliberations may play an important role in nullification. Indeed, some researchers have suggested that jury deliberations generally cure jurors' judgmental biases (e.g., Kaplan & Miller, 1978; Kerwin & Shaffer, 1994). However, other research has shown that juries do recruit information selectively to support their initial, prejury biases. (e.g., Sommer, Horowitz, & Bourgeois, 2001). Reviews of the literature reveal that juror-level bias may not be ameliorated by jury deliberation and may, in some instances, even be enhanced by it (Devine, Clayton, Dunford, Seying & Pyrce, 2001). Kerr et al. (1996) also show both theoretically and empirically

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that biases exhibited at the individual juror level are generally more likely to be accentuated rather than attenuated at the jury level. Thus, there are a number of reasons to believe that our present findings may well generalize beyond the confines or our artificial simulation study. Of course, such issues of external and ecological validity can ultimately only be settled empirically.

Conclusions

Contrary to most prior research, the present study suggests that at least some instructions designed to describe and legitimate jurors' nullification powers can indeed result in a kind of "chaos"-a

greater susceptibility to emotionally charged, biasing information. Courts have widely accepted the validity of a pervasive chaos theory. As a scientific matter, however, much remains to be learned about the effects of nullification instructions and about jurors' and juries' willingness to

nullify the law. Through such research, psycholegal scholars may be able to better inform the

judges and policy makers who must ultimately decide whether risks of nullification instructions, like those demonstrated here, outweigh a number of demonstrable benefits of such instructions.

Acknowledgements This study was supported by a Grant #SES-0214428 from the National Science Foundation to the first two authors. The authors thank James Warmels for his help in data collection and coding. In addition we thank Thomas Willging, Barbara O'Brien, and Kristin Sommer who offered cogent comments on earlier versions of this manuscript.

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