Jury Reforms

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Further Readings Posey, A. J., & Wrightsman, J. S. (2005). Trial consulting. New York: Oxford University Press. J URY R EFORMS Over the past 15 years, courts have begun implement- ing a host of reforms to the jury system in response to growing criticism about jurors’ competence to decide cases. Of particular concern was the ability of jurors to set aside preexisting biases and to understand increasingly complex evidence and legal principles. This entry describes the efforts undertaken by the courts to address these concerns. In particular, the sec- tion on voir dire focuses on efforts to elicit complete and candid information from prospective jurors dur- ing jury selection while balancing competing interests in courtroom efficiency and juror privacy. The second section focuses on the techniques employed by judges and lawyers during trial to enhance juror comprehen- sion and performance. Voir Dire The process of selecting trial jurors from a panel of prospective jurors is called voir dire , a term derived from 14th-century legal French, which, loosely trans- lated, means “to speak the truth.” Typically, voir dire consists of a limited question-and-answer period in which the trial judge and attorneys examine prospec- tive jurors to determine if they can serve fairly and impartially on that trial. If the judge concludes from this examination that a particular juror has life experi- ences, opinions, or attitudes that would prevent him or her from serving impartially, that juror will be removed “for cause.” After all the “for-cause” jurors have been excused, the attorneys have the opportunity to remove those jurors who they suspect may be pre- disposed against their clients by using a statutorily defined number of “peremptory challenges.” After all the for-cause and peremptory challenges have been executed, the jurors who remain are sworn as the trial jurors. The amount of time needed to select a jury varies according to the type of case to be tried (e.g., felony, misdemeanor, civil), the legal requirements and mechanics of voir dire, and the local legal culture, but it generally ranges from 1 to 3 hours. A number of concerns about the voir dire process have risen in recent years. Some of these focus on the legitimacy of the criteria that judges and attorneys employ when deciding to remove or retain jurors. Most often, these debates take place in the context of pro- posals to reduce the number of peremptory challenges in order to minimize the opportunity for attorneys to discriminate on the basis of race, ethnicity, or gender—a practice ruled unconstitutional by the U.S. Supreme Court in Batson v. Kentucky (1986) and its subsequent progeny. The counterargument by the prac- ticing bar is that peremptory challenges are needed as a remedy for the failure of trial judges to grant chal- lenges for cause, even when a juror’s responses to voir dire questions indicate bias or prejudice. Thus far, Maryland is the only state to successfully reduce the number of peremptory challenges, and that legislation was driven as much by cost considerations as by con- cerns about the discriminatory use of peremptory chal- lenges. However, several other jurisdictions—notably California, New Jersey, and the District of Columbia— are seriously considering legislation that would sub- stantially reduce the number of peremptory challenges. Other proposals for improving voir dire focus on the efficacy of the voir dire process in eliciting candid and useful information from jurors. Empirical studies have repeatedly found that up to one in four prospec- tive jurors fail to disclose case-relevant information during voir dire. In some instances, jurors are reluc- tant to reveal personal or sensitive information to a courtroom full of strangers. In other instances, jurors are unwilling to disclose information that they believe is not relevant to the case. Often the mechanics of the voir dire process—for example, whether the judge or lawyers question the jurors, whether jurors are told to raise their hands or respond orally to questions—send subtle messages about the judge’s desire, or lack thereof, for complete disclosure by jurors. Attorney-conducted voir dire, which is the predom- inant practice in most state courts, but not in federal courts, is considered the better practice insofar as jurors are more likely to respond with candid, rather than socially desirable, answers to questions posed by lawyers rather than judges. Moreover, attorneys typi- cally are more familiar with the nuances of the case and thus are in a position to question jurors about issues that a judge might not immediately view as relevant. Another technique that is gaining in popularity is the use of written questionnaires asking either general background information or case-specific information, Jury Reforms ———417 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 417 which gives jurors the opportunity to disclose sensitive information to the judge and attorneys without having to do so orally in open court. This technique is also use- ful for trials involving substantial pretrial publicity because it permits jurors to disclose their knowledge of the case without tainting other jurors who may not have read or heard as much about it. Many judges now invite jurors to indicate if they would prefer to respond to questions about potentially embarrassing or sensitive information (e.g., criminal background, substance abuse, or criminal victimiza- tion) privately in a sidebar conference or in chambers with the attorneys; approximately 30% of jurors take advantage of this opportunity. A small, but increasing, number of judges now advocate giving all prospective jurors an opportunity for individual voir dire, regard- less of the nature of the case or the questions to be posed, as it alleviates some of the intimidation of the courtroom environment and invites jurors to disclose any information that they believe relevant to their impartiality even if no question has directly solicited that information. In spite of increased awareness about how tradi- tional voir dire techniques can discourage fully candid and complete self-disclosure by jurors, trial judges in many areas of the country have been reluctant to embrace voir dire reforms, largely out of concern over the additional time and effort that they might cause in the jury selection process. Many judges also voice skepticism about the need for a more expansive voir dire, claiming that lawyers’ desire for more informa- tion about jurors’ backgrounds too often intrudes on jurors’ privacy without actually eliciting useful infor- mation about jurors’ ability to serve impartially. Because of the traditional deference given to judges’ management of the voir dire process by reviewing courts and legislatures, reforms to voir dire have taken place more slowly and incrementally than reforms to other stages of the trial process. Jury Comprehension and Performance The most dramatic reforms to jury trials in recent years are those designed to enhance juror comprehen- sion and decision making during the trial and deliber- ations. The growing popularity of these reforms among judges, lawyers, and policymakers reflects a change in the traditional understanding of how jurors perceive and process evidence and what, given this new understanding, the appropriate role of jurors should be in the trial. Traditional jury trial procedures were developed with the intent of reinforcing juror passivity, which was believed essential to maintaining their neutrality throughout the evidentiary portion of the trial. Con- sequently, jurors were traditionally discouraged from taking notes because it might distract them from observing the witnesses’ demeanor or they might con- fuse their own notes with the evidence actually pre- sented. Jurors were prohibited from asking questions of witnesses because they might become inappropri- ately adversarial. They were prohibited from dis- cussing the evidence among themselves or with others because they might begin to draw conclusions before hearing the entire case. And they were not informed about the legal principles that they would be required to apply until just before deliberations because it might cause jurors to disregard evidence that seemed unre- lated to those principles. All these restrictions were intended to ensure that nothing interfered with jurors’ ability to accurately remember, understand, and con- sider all the evidence presented to them at trial. A substantial body of research from the field of social and cognitive psychology emphatically contra- dicts this traditional understanding of juror decision making. Empirical studies have conclusively estab- lished that jurors are not simply “blank slates” or “empty vessels” waiting to be filled but instead actively process and interpret information as it is received dur- ing the trial, in spite of the restrictions imposed on them. Indeed, many of those restrictions have been found to actually hinder jurors’ ability to efficiently and effectively process information. Thus, the reforms that have been introduced in recent years are intended to capitalize on jurors’ natural ability to understand and process information while emphasizing to jurors the continued importance of their neutrality during trial. The least controversial reform, and the one that appears to have caught the attention and support of the legal community most strongly, is permitting jurors to take notes during trial, which helps jurors remember evidence. In a recent study of jury trial practices nationwide, jurors were permitted to take notes in 70% of trials in state and federal courts. Moreover, jurors in 64% of the trials were actually given notepa- per and writing instruments with which to do so. Only two states—Pennsylvania and South Carolina— prohibit juror note taking in criminal trials, and only South Carolina prohibits it in civil trials; all other 418 ———Jury Reforms J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 418 states either mandate that jurors be permitted to take notes (Arizona and Indiana) or make the practice discretionary. Other techniques have encountered somewhat greater resistance in actual practice, in spite of empirical studies documenting their effectiveness, favorable reports from jurisdictions that have implemented those techniques, and endorsement by prominent judicial and bar organizations (e.g., the American Bar Association, the Conference of Chief Justices). Two of the tech- niques involve permitting jurors to submit questions in writing to witnesses and permitting jurors to discuss the evidence among themselves during trial provided that they refrain from making conclusions about ulti- mate issues (guilt/innocence, liability/no liability). Both of these techniques are intended to provide jurors with an opportunity to clarify confusing or ambiguous evidence while it is still reasonably fresh in their minds. The vast majority of states (37 in civil trials, 36 in criminal trials) grant trial judges the discretion to permit juror questions to witnesses; however, only 15% of judges routinely exercise this discretion. Only 11 states permit civil jurors to discuss the evidence before the final deliberations, and only 10 states permit criminal jurors to do so. Nationally, juror discussions were permitted in less than 2% of all trials. Juror comprehension of instructions also continues to be a challenging area for many courts. Unlike dis- agreements over factual issues, in which jurors rou- tinely combine their collective memories and judgments to make accurate conclusions, jurors’ unfamiliarity with the form and substance of the law often prevents them from correctly interpreting and applying the law. In addition to poorly drafted jury instructions, the form and timing of their delivery—typically orally and immediately before deliberations—also con- tributes to juror confusion. To address these issues, the majority of judges and lawyers (69%) now provide jurors with a written copy of the instructions—if not during the oral delivery of the jury charge, at least for their use during deliberations. Increasingly, judges are delivering jury instructions earlier in the trial. More than 40% of judges instructed juries before the clos- ing arguments in their most recent trial, and 18% gave preliminary instructions on substantive issues before the evidentiary portion of the trial. In addition to pro- viding jurors with the legal context in which to consider the evidence and closing arguments, the rep- etition of instructions at different points in the trial also helps jurors understand and retain that information. Finally, judicial and bar leaders have become increasingly aware of the importance of pat- tern jury instructions, especially their credibility to trial judges, lawyers, and reviewing courts in terms of both legal accuracy and clarity to jurors. This has led to efforts by pattern jury instruction committees across the country to improve the comprehensibility of instructions for laypersons and to increased educa- tion for trial judges on the appropriate use of pattern jury instructions. Empirical studies of these various techniques pre- sent a mixed picture of their effectiveness. Juror note taking has conclusively been found to enhance juror recall of evidence, but it has a less apparent effect on juror comprehension. Studies of juror questions and juror discussions have arrived at differing conclusions about their impact on juror comprehension—most finding a small effect in longer, more complex cases but little or no impact in routine trials. Improvements in the clarity and organization of jury instructions have been found to improve juror comprehension of the law, but recent revisions to pattern jury instruc- tions have not been rigorously evaluated. Virtually all investigations of these techniques have reported greater juror satisfaction in jury service and confi- dence in their verdicts, and concerns initially raised about these techniques—for example, that they would disrupt the trial process or undermine juror impartiality—have been unfounded. Paula L. Hannaford-Agor See also Juries and Judges’ Instructions; Jury Competence; Jury Deliberation; Jury Questionnaires; Jury Selection; Pretrial Publicity, Impact on Juries; Story Model for Juror Decision Making; Voir Dire Further Readings American Bar Association. (2005). Principles for juries and jury trials . Chicago: Author. Batson v. Kentucky , 476 U.S. 79 (1986). Dann, B. M. (1993). “Learning lessons” and “speaking rights”: Creating educated and democratic juries. Indiana Law Review, 68, 1229–1279. Hannaford-Agor, P. L., Waters, N. L., Mize, G. E., & Wait, M. (2007). The state-of-the-states survey of jury improvement efforts: A compendium report. Williamsburg, VA: National Center for State Courts. Hastie, R., Penrod, S. D., & Pennington, N. (1983). Inside the jury. Cambridge, MA: Harvard University Press. Jury Reforms ———419 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 419 Munsterman, G. T., Hannaford-Agor, P. L., & Whitehead, G. M. (Eds.). (2006). Jury trial innovations. Williamsburg, VA: National Center for State Courts. J URY S ELECTION Before a jury trial begins, attorneys must select a jury from a panel of community members who have reported for jury duty. Rather than choosing jurors to sit on the jury, attorneys choose people to exclude from the jury. The attorneys may excuse anyone who exhibits demonstrable bias that would interfere with his or her ability to serve as a juror. Attorneys are also given a limited number of challenges that they may exercise for any reason except an attempt to exclude members of certain identifiable groups. When attorneys make their decisions to exclude potential jurors based on intuition or experience, the process is known as traditional jury selection. Scientific jury selection refers to the process where attorneys rely on social science surveys of com- munity members to determine which types of jurors will be most favorable to their case. Definition of Jury Selection Jury selection is the process of choosing a petit jury of independent fact finders from a pool of venire mem- bers for a criminal or civil trial. Potential jurors are subjected to a system of examination known as voir dire, which allows judges and attorneys to obtain infor- mation about individual venire members. During voir dire, the judge and attorneys pose questions to individ- ual jurors and the panel as a whole. Although the term jury selection gives the impression that the people are selected to remain seated on the jury, the process actually involves removing prospective jurors for a number of reasons. The Sixth Amendment of the U.S. Constitution gives defendants the right to be tried by an impartial jury. To fulfill the requirement of impar- tiality, jurors who harbor biases or cannot be fair to both sides are excluded from the jury through chal- lenges. Individual venire members certainly have vari- ous expectations, beliefs, and experiences, but the legal system requires that members of the jury agree to set aside any preexisting biases and decide the case solely on the evidence. Although the Sixth Amendment states that jurors must be chosen from a representative cross-section of the community, this does not mean that the petit jury is representative of the community once the jury selection is finished. However, there are rules in place to protect against discrimina- tion in the jury selection process, such as the Jury Selection and Services Act of 1968, which was created to ensure nondiscrimination in federal jury selection and services. During jury selection, there are two types of chal- lenges that attorneys can use to remove venire persons from the jury: challenges for cause and peremptory challenges. A challenge for cause is a request to remove a potential juror when there is reason to believe that he or she cannot serve as an impartial juror. When challenges for cause were first introduced, very few circumstances warranted their use. Only jurors who were related to the defendant by blood or marriage or those who possessed an economic interest in the case were excused for cause. Apart from those reasons, a juror could not to be removed from the jury for cause. In 1911, the Sixth Amendment was codified, and it provided both parties the right to challenge jurors for cause. Currently, the challenge for cause may be used to exclude prospective jurors who possess biases and are unable to follow the law in a given case. In addition, most states now acknowledge that poten- tial jurors may be challenged for cause if they have a relationship with anyone involved in the trial, if the juror has prior experience with a similar case, or if an obvious bias or disability exists that would warrant removal. Judges are usually in charge of exercising the challenges for cause and striking out those people who appear to have a conflict with the case that cannot be corrected through juror rehabilitation. The peremptory challenge is the second type of challenge offered to attorneys during voir dire. Peremptory challenges allow attorneys to remove a prospective juror without having to offer a reason for doing so. Attorneys from each side of the case are afforded a predetermined number of peremptory chal- lenges with which to eliminate jurors and the number of peremptory challenges allowed varies depending on the state, the case, and even the judge. Initially, the peremptory challenge was permitted only in capital cases, and only the prosecution was allowed to use this device. Now, however, defendants are also afforded the use of peremptory challenges, and depending on the nature of the case, they may be allowed a greater num- ber of peremptory challenges than the prosecution. Although the adoption of the Federal Rules of Criminal Procedure in 1946 attempted to reduce this prodefense advantage for capital, noncapital, and felony cases, the prosecution is still typically awarded 420 ———Jury Selection J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 420 fewer challenges than the defense. Once judges have struck ineligible jurors for cause, attorneys may still have concerns about prospective jurors that are insuffi- cient to justify a challenge for cause. The peremptory challenge is intended to serve as a curative device for removing potentially biased jurors who cannot be removed for cause. For example, this type of challenge is appropriate to remove a juror who has avoided answering questions to remain on the jury, when the attorney suspects that the juror holds a bias that could not be demonstrated. Peremptory challenges are legitimate provided that attorneys are not targeting people who are members of cognizable groups. According to the ruling in Batson v. Kentucky (1968), attorneys may not use peremptory challenges to exclude prospective jurors on the basis of race. The Supreme Court recognizes that excluding certain populations from jury service is a form of dis- crimination and jeopardizes the integrity of the justice system and has extended the Batson rule to include other cognizable groups such as gender, sexual orien- tation, and religion. Accordingly, if a peremptory challenge is contested by the opposing side, a reason for the removal must be stated, and the rationale for the challenge must be neutral to the cognizable groups. More commonly known as the Batson test, there are three steps taken to remedy the misuse of peremptory challenges. First, complainants have to demonstrate a prima facie case of discrimination, then the court needs to uncover the prejudice motives, and finally the attorney has to provide a valid reason for removing the prospective juror. Recently, the Supreme Court’s decisions have supported a more stringent enforcement of Batson’s requirements after a chal- lenge was found to be racially motivated, in which a prosecutor excluded 10 of 11 qualified Black venire members from the panel. Some insist that the courts are unable to control the mandated use of peremptory challenges appropriately and suggest that they should be eliminated altogether to constrain attorney discre- tion. However, others argue that peremptory chal- lenges provide parties with essential protection from the risk of partiality. Many attorneys believe that the ability to sculpt a jury can have considerable bearing on the outcome of the trial. Currently, attorneys employ both traditional jury selection and scientific jury selection techniques to shape the jury. However, research is inconclusive as to which approach is more likely to achieve a desired outcome or result in a less “biased” jury. Traditional jury selection entails reliance on attorney experience and intuition to identify undesirable jurors, whereas scientific jury selection identifies unfavorable jurors by collecting case-relevant attitudes and demographic information from the community and analyzing it using statistical techniques. Each party then attempts to use peremptory challenges to exclude the prospec- tive jurors who have been identified as possessing a bias, an opinion, a trait, or a characteristic that may be injurious to that party. Attorneys can use challenges to remove a potentially harmful juror; however, there are legal limitations to these challenges. That is, attorneys are not legally permitted to remove whomever they like for whatever reason. While the legal purpose of peremptory challenges is to eliminate jurors who may be biased, in practice, peremptory challenges are used for a variety of goals. Attorneys’ objectives may not necessarily be to obtain a fair jury but instead to obtain the jury that is most advantageous for their side of the case. In contrast, the court aims to seat a jury that best replicates the collective sentiment of the community and that is able to be fair to both sides of the case. Traditional Jury Selection Traditional jury selection refers to the strategies and techniques that derive from attorney experience and legal folklore. Traditional jury selection encompasses strategies such as previous experience with juries, common sense, expectations, intuition, and implicit stereotypes. Simply put, attorneys attempt to collect as much meaningful information as they can during voir dire and rely on stereotypes, instinct, hunches, and common sense to interpret that information. However, critics of this approach opine that in some cases, commonsense stereotypes can lead to opposite conclusions about the favorability of a particular of a juror. On the one hand, a prosecutor might assume that females are ideal jurors for a rape case because women are more inclined to identify and sympathize with the victim and are more likely to render a guilty verdict. On the other hand, a defense attorney might prefer female jurors on a rape case because women may need to believe that the victim put herself in a vulnerable position so that they can continue to believe that the world is just. Some civil attorneys assume that poor jurors should be avoided because they are more likely to make large awards of money due to their resentment of their own situation, whereas other civil attorneys assume that poor people would be less likely to award such large sums because they are not accustomed to that amount of money. These Jury Selection ———421 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 421 examples highlight the difficulties inherent in using stereotypes to formulate reliable assumptions about juror favorability. Another factor that attorneys often consider during jury selection is juror nonverbal communication. It has been suggested that factors such as posture, pitch of voice, and willingness to express opinions go into the decision of who should stay on the jury and who should be removed. Other attorneys use informa- tion such as f acial expression and perceived level of friendliness or extroversion to make decisions about prospective jurors. Although research has not proved traditional jury selection to be superior to other meth- ods, it does not necessarily follow that the traditional approach should be abandoned. It is quite possible that in individual cases, attorneys may use their implicit theories about jurors based on years of experience to exercise peremptory challenges in their favor. Scientific Jury Selection Scientific jury selection refers to the use of community surveys and data analysis to yield probabilities that dif- ferent types of prospective jurors will be favorable to a particular side. Scientific jury selection is a systematic method for identifying information that would be use- ful to elicit during the voir dire process and to rely on when deciding which jurors to challenge. The core of this approach assumes that different people who view the same evidence may render different verdicts and that verdict preference can be predicted by individual juror characteristics. This approach also assumes that attitudes and individual differences can be measured accurately; the attitudes themselves or proxies for the attitudes, such as demographic characteristics, must be discernable during voir dire. In addition, this approach requires that these attitudes and characteristics can ultimately be used to predict verdicts. When conducting a community survey, trial consul- tants recruit a random sample of participants from the same pool from which an actual jury is being selected. These surveys are often conducted over the telephone by using a random digit dialing sampling technique. Respondents are asked questions that measure demo- graphic characteristics, attitudes toward the legal sys- tem, knowledge of case facts, and case-relevant attitudes. Participants may also be provided with evi- dentiary information about the case. Participants are then asked to render a verdict. By using statistics to test for significant relationships between demographic characteristics, general attitudes, and case-relevant attitudes, trial consultants can educate attorneys about the likelihood that prospective jurors with certain atti- tudes or demographic characteristics will be favorable or unfavorable to their side. The techniques used dur- ing scientific jury selection must take into account the nature and scope of voir dire. For example, the infor- mation gleaned from a community survey that indi- cates that political affiliation is likely to be a strong predictor of verdict preference is helpful only if the judge allows the venire panel to be questioned about political affiliation. Because the judge determines which questions attorneys are allowed to pose to the venire panel, the scope of voir dire can vary widely. When only minimal voir dire is permitted, attorneys may not have any opportunity to pose any questions to the potential jurors, let alone questions that have been identified through the community survey to be predic- tive of verdicts. In more expanded voir dire situations, attorneys may be allowed to administer a questionnaire to the panel that could contain questions known to pre- dict verdicts. Individual Characteristics as Predictors of Verdicts An abundance of research has been conducted on the relationship between individual juror characteristics and jurors’verdict preferences. Research generally sug- gests that there is no single set of personality or demo- graphic predictors that can be used for all types of cases. Unfortunately, those characteristics that are the most visible, such as gender and race, tend to be weakly correlated with verdict across cases. Although these characteristics are not good predictors in general, race and gender may be good predictors in specific types of cases in which these racial and gender issues are salient. For example, although juror gender is important when gender is an issue in the trial, such as in rape or sexual harassment cases, gender is not a stable predic- tor of verdicts in other types of cases. There is also evidence that personality characteristics such as author- itarianism, liberalism, and the need for social approval affect juror decisions. For example, jurors who score high on measures of authoritarianism are more convic- tion prone. It is arguable that group membership and political beliefs may have a greater influence on verdict judgments than race or gender because, unlike gender and race, people choose their affiliations. Jurors are affected by their cultural backgrounds, prior 422 ———Jury Selection J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 422 experiences, and personal affiliations. These factors influence the manner in which they understand and judge the details of the case. Social psychological research on in-group/out-group bias suggests that jurors may have an inclination to judge a witness who is similar to them as more credible and reliable than a witness who is dissimilar to them. However, research on the black sheep effect indicates that jurors may per- ceive in-group members more negatively than out- group members when the in-group member has committed a transgression. Therefore, the nature of the interaction between jurors’ group memberships and the defendant and witnesses’ group memberships will depend on the context of the particular case. Although demographic and personality variables are not stable predictors of verdict judgments across cases, research suggests that case-relevant attitudes, such as death penalty attitudes or attitudes about busi- ness, predict verdicts. Studies on death penalty atti- tudes indicate that those who are pro–death penalty are more likely to render a guilty verdict than those who are against the death penalty. Finally, some research indicates that attitudes toward business and tort reform predict verdicts and awards in civil cases. Efficacy of Jury Selection A number of mock jury studies and field studies have been conducted to investigate the influence of jury selection strategies on jury verdict. In general, the research in this area indicates that the evidence accounts for the greatest amount of variance in juror verdicts, and that juror’s individual characteristics account only for approximately 5–15% of the vari- ance. However, in cases such as capital cases where defendants have a possibility of receiving the death penalty, it can be argued that factors influencing this small percentage of variance become very important to study. Research has also demonstrated that case- relevant attitudes, such as attitudes toward the death penalty or attitudes toward the insanity defense, are better predictors of verdicts than general attitudes or demographic characteristics. Investigating the utility of scientific jury selection is often done using mock jury simulations. Critics of this method argue that mock jury studies provide little practical utility for real jury selection because it is vir- tually impossible to replicate every aspect of a trial. Because participants know that their decisions in a study have no impact on a defendant in a real case, they may find it easier to render a guilty verdict because there are no real consequences for doing so. Jury selection research has not conclusively estab- lished the superiority of one technique over another, in part because research in this area is difficult. To demon- strate that scientific jury selection is efficacious, it is necessary to establish its superiority over traditional jury selection and the random selection of jurors. However, some research suggests that traditional jury selection may result in a jury with attitudes similar to a jury composed of the first 12 jurors to be considered for the jury or a jury that is randomly selected from the jury pool. Nevertheless, instead of trying to identify which approach is more useful, it may be possible that a com- bination of an attorney’s experience and a trial consul- tant’s advanced research methodology would prove to be the most effective approach. Because the role of the jury is an integral part of the legal system, the process of selecting the jury is important and needs further empirical evaluation. F. Caitlin Sothmann, Caroline B. Crocker, and Margaret Bull Kovera See also Scientific Jury Selection; Voir Dire Further Readings Batson v. Kentucky , 106 S. Ct. 1712 (1986). Diamond, S. S., & Zeisel, H. (1974). A courtroom experiment on juror selection and decision-making. Personality and Social Psychology Bulletin, 1, 276–277. Hepburn, J. R. (1980). The objective reality of evidence and the utility of systematic jury selection. Law and Human Behaviour, 4, 89–101. Horowitz, I. A. (1980). Juror selection: A comparison of two methods in several criminal cases. Journal of Applied Social Psychology, 10, 86–99. Kovera, M. B., Dickinson, J. J., & Cutler, B. L. (2003). Voir dire and jury selection. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 161–175). New York: Wiley. J URY S IZE AND D ECISION R ULE Both the size of the jury and the number of jurors who must be in agreement for a verdict to be concluded (the group’s “social decision rule”) have been the sub- ject of litigation at the U.S. Supreme Court as well as Jury Size and Decision Rule ———423 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 423 a subject of research by psychologists and other social and behavioral scientists. The number of jurors and the minimum proportion of them who must be in agreement are set by formal legal rules (e.g., state statutes, federal rules of civil procedure), and those rules are in turn subject to constitutional require- ments. The Supreme Court has framed its analysis of jury size and decision rule questions in terms of the effects of those variables on jury behavior. Thus, the findings of research on group decision making as a function of group size and social decision rule are of central relevance to the Court’s constitutional analy- sis. Yet a considerable tension exists between the Court’s conclusions and the empirical findings. Jury Size For 600 years of common-law history and 200 years of American constitutional history, the jury was con- sidered to have 12 members. But several states and federal districts in the United States began to use smaller juries, and in the 1970s, challenges to the use of juries with fewer than 12 members reached the U.S. Supreme Court. The Court analyzed the consti- tutionality of smaller juries by rejecting the guidance of history, tradition, and its own precedents. Instead, the Court reasoned that because the size of the jury was not specified in the Constitution and the framers’ intentions regarding jury size could not be divined, the answer would have to be found through a “func- tional” analysis of the jury’s purpose: If smaller juries did not behave differently from juries of 12, then they were their functional equivalent and therefore were constitutional. In a series of cases— Williams v. Florida (1970) (state criminal juries of 6), Colgrove v. Battin (1973) (federal civil juries of less than 12), and Ballew v. Georgia (1978) (state criminal juries numbering 5)— the Supreme Court held smaller juries to be constitu- tionally permissible because it found no important differences between 6- and 12-member juries in the reliability of their fact finding, the quality or quantity of their deliberation, their cross-sectional representa- tion of the community, the ability of jurors in the minority to resist the social pressure to conform, or their verdicts. These findings were reached through a combination of judicial intuition, misconstruing non- studies as empirical studies, misreading the findings of actual empirical studies, and failing to see elemen- tary flaws in actual empirical studies. What the empirical research findings actually indi- cate is that smaller groups foster behavior that is ben- eficial in some respects, but in view of the purposes for which juries are employed, most of the advantages appear to favor keeping juries at 12. On the positive side, in smaller juries, members share more equally in the discussion, find the deliberations more satisfying, and are more cohesive. A meta-analysis of studies specifically of juries (both simulated and actual) found that larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, hang more often, and recall trial testimony more accurately. Turning to studies of small-group behavior generally, one finds that larger groups tend to discuss and debate more vig- orously, collectively recall more information, and make more consistent and predictable decisions. The latter finding means that as juries grow smaller, they will tend in criminal cases to make more errors of acquitting the guilty or convicting the innocent; and in civil cases, not only will the rate of erroneous verdicts rise, but juries will tend to render damage awards that are more vari- able and unpredictable. (Because such differences will be small, very large sample sizes would be necessary to detect them.) In accord with classic research on the psy- chology of conformity, because in larger groups there is greater likelihood that a dissenter will have at least one ally, a dissenter in larger juries will usually find an ally and therefore be better able to resist the pressure to sub- mit to the majority. In short, the Williams Court had scant support for its conclusion that “there is no discernible difference between the results reached by the two different-sized juries”; the little research evidence that existed then and most of the evidence that developed later sup- ported the opposite conclusion: that 6-person juries did behave differently from 12-person juries and most of those differences represented less-desirable deci- sion-making processes. In the Ballew case, the Supreme Court drew the line, holding juries of 6 to be the constitutional minimum. Justice Harry Blackmun’s opinion announc- ing the judgment of the Court extensively reviewed the empirical research on the subject, much of it having been prompted by the Williams decision. Curiously, although the research summarized in the opinion mostly compared 6- and 12-person juries and indicated that the former did not perform as well as the latter, the Court did not reverse its earlier holdings. Instead, it reaffirmed the earlier decisions finding 424 ———Jury Size and Decision Rule J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 424 equivalence between large and small juries, but it now held that juries smaller than 6 were unconstitutional because, in Justice Blackmun’s opinion, the studies raised serious concerns about the performance of juries of fewer than 6 members. The research findings have been recognized in other legal settings. The Standing Committee on Federal Civil Rules recommended 12-person juries for federal civil trials (a recommendation not adopted by the Judicial Conference). During the administra- tion of President Reagan, the Department of Health and Human Services promulgated a model medical malpractice statute for the states that specified 12-person juries (specifically for their greater pre- dictability). And the New Hampshire Supreme Court— citing the factual findings of Ballew but rejecting its legal holding—ruled that a reduction in jury size below 12 would violate the New Hampshire State Constitution (which similarly did not specify a jury size). Social Decision Rule From the 14th century in England until the latter part of the 20th century, juries had been required to reach unanimous verdicts. Several American states began to permit quorum verdicts, and in the 1970s, challenges to the constitutionality of quorum verdicts came before the U.S. Supreme Court. The principal motivation for eliminating the una- nimity rule seems to have been a desire to reduce the incidence of hung juries. Without quorum verdicts, hung juries occur at a national rate of about 5% or 6%, and allowing quorum verdicts reduces that rate by a few percentage points. In Apodaca v. Oregon (1972) and Johnson v. Louisiana (1972), the Supreme Court held verdicts split as widely as 9:3 to be constitutional, and in Burch v. Louisiana (1979), the Court held that the verdicts of 6-person juries had to be unanimous. The Court’s reasoning was much the same as in the jury- size cases: As to the social decision rule for a jury verdict, the Constitution does not say and the inten- tions of the framers are unknown, so the “inquiry must focus upon the function served by the jury in contemporary society.” The main issues about group behavior that were debated in the Court’s functional analysis were whether juries required to reach only quorum deci- sions would pay less attention to the arguments of the unneeded minority, whether the jury’s verdicts would be less accurate, and whether the weight of evidence sufficient to produce a conviction would be reduced. The last of those questions is an especially interesting one. The standard or proof (preponderance, beyond a reasonable doubt) is directed at individual jurors, seemingly separate from the issue of the rules for com- bining individual views into a group decision. But the two together will surely have a bearing on the group’s collective confidence in their verdict and on the quan- tum of proof needed to lift the jury over those several individual-to-group decision thresholds to a verdict. The Supreme Court’s opinions assert that jurors will not behave differently when a nonunanimous decision rule is in place—at least not when the jury numbers 12—or not differently enough to matter. Less research has been done on social decision rules than on group sizes, but what research has been conducted does not generally support the Court’s majority. Compared with unanimous rule juries, juries oper- ating under a nonunanimous decision rule deliberate for a shorter time, do not let dissenters have sufficient say so as to change the minimum consensus once it is achieved (while in unanimous rule juries, jurors in the minority participate disproportionately in the deliber- ation), are more vote oriented and less evidence ori- ented, are less certain of the defendant’s guilt when convicting, and are less likely to end in a deadlock. In research on group decision making generally, groups required to reach unanimous decisions are found to be more likely to reach correct solutions (on problems with clear right/wrong answers) than groups working with less-demanding social decision rules. Notwithstanding the Supreme Court’s rulings per- mitting nonunanimous verdicts under the federal Constitution, the great majority of states continue to require unanimous verdicts in felony trials, and all do in capital murder trials. Michael J. Saks See also Jury Deliberation; Jury Reforms; U.S. Supreme Court Further Readings Apodaca v. Oregon , 406 U.S. 404 (1972). Arnold, R. S. (1993). Trial by jury: The constitutional right to a jury of twelve in civil trials. Hofstra Law Review, 22, 1–35. Ballew v. Georgia , 435 U.S. 223 (1978). Burch v. Louisiana , 441 U.S. 130 (1979). Jury Size and Decision Rule ———425 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 425 Colgrove v. Battin , 413 U.S. 149 (1973). Hastie, R., Penrod, S., & Pennington, N. (1983). Inside the jury. Cambridge, MA: Harvard University Press. Johnson v. Louisiana , 406 U.S. 356 (1972). Saks, M. J. (1977). Jury verdicts: The role of group size and social decision rule. Lexington, MA: Lexington Books. Saks, M. J., & Marti, M. W. (1997). A meta-analysis of the effects of jury size. Law and Human Behavior, 21, 451–467. Williams v. Florida , 399 U.S. 78 (1970). Zeisel, H. (1971) …. And then there were none: The diminution of the federal jury. University of Chicago Law Review, 38, 710–724. J URY U NDERSTANDING OF JUDGES ’ I NSTRUCTIONS IN C APITAL C ASES Research has shown that jurors in many types of cases frequently fail to understand the jury instructions they receive. However, this failure to understand has special implications in capital, or death penalty, cases. As in other cases, juror comprehension of instructions in death penalty cases is very low, and the difficulty of some of the terms and concepts used in the death penalty context exacerbates their confusion. But this misunderstanding carries with it an additional set of consequences in capital cases. Not only will jurors who misunderstand a judge’s instructions in a death penalty case have difficulty in applying the law accurately, but these jurors may also be more easily influenced by bias or prejudice in their decision-making process and may be more likely to vote for a sentence of death. Guided Discretion In 1972, in Furman v. Georgia , when the Supreme Court held that the death penalty was unconstitu- tional, it based its decision in part on the fact that the jury’s decision-making processes in capital cases at the time seemed “arbitrary” and “capricious.” When the Supreme Court approved new death penalty laws 4 years later, in Gregg v. Georgia and several other cases, it was because the Court felt that the new laws provided jurors with a framework intended to guide their decision-making process, guaranteeing that the jury’s discretion was controlled or channeled. Because this sort of guided discretion (communicated to the jury through jury instructions) was central to the Court’s decision to bring back the death penalty in the United States, it is important that jurors in capital cases actually understand the jury instructions intended to provide that guidance. Several components of death penalty cases make the jurors, the trials, and the jury instructions in those trials unique. During the jury selection process, for example, the death qualification process eliminates from service those potential jurors who have such strong views about the death penalty that those views might affect their ability to make an unbiased decision in an individual case. In addition, a capital trial is fre- quently divided into two phases: a “guilt phase,” in which jurors are asked to decide if the defendant is guilty or not guilty, followed by a “penalty phase” if the defendant was found guilty during the first phase. In the penalty phase, the same jurors are asked to decide whether a defendant should be sentenced to life in prison without the possibility of parole or to death. Penalty Phase Instructions A significant amount of research has focused on the jury instructions used in the penalty phase of capital trials. This research has focused on several concepts that are central to the penalty phase and the structure approved by the Supreme Court. First, the term aggra- vating circumstances is used in death penalty cases to describe the evidence that suggests that the defendant should receive a death sentence. This evidence is usu- ally presented by the prosecution. Aggravating evi- dence includes those aspects about the crime or the defendant that, if true, should encourage jurors to vote for the death penalty. Aggravating factors are fre- quently limited to those listed in state statutes and can include things such as prior felony convictions or the circumstances of the crime in question. The term mit- igating circumstances , on the other hand, describes the evidence to be considered by jurors that weighs in favor of a life sentence. Mitigating evidence is infor- mation about the crime, the defendant, or his or her life circumstances that, if true, should encourage a life sentence. Sometimes, specific examples of mitigation are included in jury instructions (e.g., the age or men- tal capacity of the defendant or social history), but mitigating evidence is not limited by law. The Supreme Court has said that jurors in death penalty cases should be able to consider any and all mitigating circumstances. As a result, death penalty statues fre- quently include a “catch all” category to let jurors 426 ———Jury Understanding of Judges’ Instructions in Capital Cases J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 426 know that mitigating evidence can include anything they believe should weigh in favor of a life sentence. Both aggravating evidence and mitigating evidence are presented during the penalty phase of a capital trial, to inform the jury’s life and death decision. Although most jury instructions refer to these terms, many instructions do not provide definitions of the terms for jurors. Similarly, some states provide a list of “factors” that can be considered in the penalty phase but do not indicate whether the individual factors should be con- sidered as aggravating or mitigating. In most jurisdic- tions, jurors are instructed to “weigh” aggravating and mitigating evidence in order to decide on the appropri- ate punishment. However, no specific formula for this weighing process or information about how it should take place is provided to jurors. Juror Confusion Evidence from mock jury studies, case studies, and interviews with actual jurors in death penalty cases shows that jurors have a great amount of trouble understanding these terms and applying the concepts. In some studies, jurors understood less than half the instructions they heard. This confusion extends beyond a failure to understand the words used; it also affects the ability of jurors to identify whether partic- ular types of evidence should be used in favor of a life sentence or a death sentence and their ability to weigh the evidence presented in a legally appropriate man- ner. For example, studies have shown that many jurors believe that they are required to impose a sentence of death in certain situations, when in fact a death sen- tence is never required by law. Many possible explanations for this confusion have been advanced. For example, some explanations focus on the use of confusing, passive language and the excessive use of jargon in the instructions. Others have suggested that jurors may become confused because they hold incorrect assumptions about crime and punishment at the time of the trial and these assumptions prevent them from understanding the accurate legal meanings of terms and instructions. It is significant to note that in addition to the gen- eral lack of comprehension of instructions in the penalty phase of capital cases, the confusion does not seem to be evenly distributed, or to have a neutral impact. Although jurors have trouble with all these concepts, they seem to have more trouble understand- ing the concept of mitigating (the evidence that should be used in support of a life sentence) than aggravating circumstances. There are several possible explana- tions for this confusion. For example, in cases where the terms are not defined, jurors may rely on their per- sonal knowledge of the terms. Because aggravating is a term we use more often than mitigating in our daily lives, it may be more familiar to jurors. No matter what the reason, this confusion means that sometimes jurors may not recognize mitigating evidence as being relevant to their decision. At other times, jurors may mistake mitigating evidence as being aggravating instead and use it against the defendant (to vote for death) rather than in his or her favor (by sparing the defendant’s life). This sort of error, a direct result of juror confusion, can have significant consequences for the accuracy of the decision-making process and for the defendant’s future. Jury Decision Making This lack of comprehension affects the jury decision- making process in capital cases in both direct and indirect ways. For example, as described above, research suggests that the skewed nature of the con- fusion may bias jurors toward death, rather than life, sentences, although the specific impact of juror com- prehension on verdict choice is currently unclear. There is also some concern that this bias toward the death penalty embedded within the jury instructions works in combination with several other aspects of the capital-sentencing structure (including the use of two phases with the same jury for both and the death qualification process) to make death verdicts even more likely. In addition to the direct impacts of juror confusion on verdict choice, research shows that jurors who are confused by the instructions will rely instead on the things they know and understand—if jurors do not understand the judge’s instructions, they are more likely to make their decisions based on their personal schemas and stereotypes. While a juror with a good understanding of the instructions is likely to base his or her decision on the relevant evidence and adhere to the weighing process in a legally appropriate way, the confused juror’s reliance on stereotypes allows for bias and prejudice to enter the decision-making process. Research has shown, for example, that mock jurors with lower comprehension levels are more likely to sentence a Black defendant to death than those with higher comprehension levels. In addition, Jury Understanding of Judges’ Instructions in Capital Cases ———427 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 427 mock jurors with lower comprehension levels find mitigating evidence to be more persuasive in the case of a White defendant than in the case of a Black defen- dant. Mock jurors with high comprehension levels do not exhibit the same discriminatory behaviors. Finally, above and beyond the impact of low com- prehension on juror verdict choices, it is clear that jurors—citizens who are being called away from their everyday lives and asked to make a very difficult decision—experience frustration with the instructions themselves, and many feel confused and upset during the decision-making process. Improving Comprehension Despite the limitations of the capital-sentencing instruc- tions being used today, several studies have demon- strated that it is possible to improve comprehension levels using a variety of techniques. For example, sev- eral studies using psycholinguistic improvements designed to simplify and clarify the language in the penalty phase instructions have shown improved com- prehension levels in jurors. Similarly, researchers have experimented with penalty phase instructions that incorporate case-specific details, instructions that include definitions of the terms aggravating and miti- gating , enhancements designed to improve both the declarative and the procedural knowledge of jurors, and other innovations, all of which have been successful in improving jurors’ comprehension of penalty phase instructions to some degree. Although there is a significant body of social sci- entific evidence documenting the limitations of juror comprehension in capital cases, and providing tech- niques and suggestions for improvement, juror com- prehension of capital penalty phase instructions continues to represent an area of tension between psychology and the law. The Supreme Court has consistently upheld the death sentences of defen- dants challenging the instructions used in their trials, reasoning that there is a presumption that the jury both uses and understands the instructions provided in any case. Amy E. Smith See also Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases; Aggravating and Mitigating Circumstances in Capital Trials, Effects on Jurors; Death Penalty; Death Qualification of Juries; Juries and Judges’ Instructions Further Readings Diamond, S. (1993). Instructing on death: Psychologists, juries, and judges. American Psychologist, 48(4), 423–434. Furman v. Georgia , 408 U.S. 238 (1972). Gregg v. Georgia , 428 U.S. 153 (1976). Haney, C., Sontag, L., & Costanzo, S. (1994). Deciding to take a life: Capital juries, sentencing instructions, and the jurisprudence of death. Journal of Social Issues, 50 (2), 149–176. Luginbuhl, J. (1992). Comprehension of judges’ instructions in the penalty phase of a capital trial: Focus on mitigating circumstances. Law and Human Behavior, 16 (2), 203–218. Lynch, M., & Haney, C. (2000). Discrimination and instructional comprehension: Guided discretion, racial bias, and the death penalty. Law and Human Behavior, 24 (3), 337–358. Ogloff, J., & Chopra, S. (2004). Stuck in the dark ages: Supreme Court decision making and legal developments. Psychology, Public Policy and Law, 10, 379–416. Wiener, R. L., Rogers, M., Winter, R., Hurt, L., Hackney, A., Kadela, K., et al. (2004). Guided jury discretion in capital murder cases: The role of declarative and procedural knowledge. Psychology, Public Policy, and Law, 10, 516–576. J UVENILE B OOT C AMPS Correctional programs designed to be similar to mili- tary basic training are called “boot camps.” Although there are some programs for youths at risk of delin- quency, these vary widely, and most juvenile boot camps are designed for children adjudicated as delin- quent. This entry describes the program and opera- tions of typical boot camps for adjudicated youths, reviews the development of correctional boot camps, and examines how they have changed over time. It then discusses controversies concerning the risks and benefits of boot camps, including the issue of net widening, and reviews research on their effectiveness. Most boot camps for adjudicated juveniles require that they serve 3 to 6 months in a boot-camp-type facil- ity. The programs resemble those of military boot camps; for example, staff are usually called drill instruc- tors, and staff and juveniles wear military-type uni- forms. Youths must say “Yes, sir” or “Yes, ma’am” in response to staff, and they cannot speak unless spoken 428 ———Juvenile Boot Camps J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 428 to or given permission to speak. There is a rigorous daily schedule of activities. Strict rules govern all facets of the juveniles’activities and comportment. They are required to respond immediately to staff commands. Rule viola- tions are punished immediately, referred to as summary punishments, often with some physical activity (e.g., pushups, running laps). If they do not comply with the rules of the program, the juveniles may be required to serve a longer period of time in another type of juvenile detention facility. A Day in a Boot Camp On a typical day in a boot camp, participants arise before dawn, dress quickly, and march in cadence to an exercise area, where they do calisthenics and other physical exercise. They return to their dormitory for quick showers and then march to the dining hall for breakfast. After breakfast, they may practice drill and ceremony until they march to their classrooms for the required educational activities. Later in the day, they may have other classroom activities such as cognitive skills training or drug treatment. Before dinner, they may again be required to practice drill and ceremony or participate in additional physical exercise. Evenings may include additional therapeutic programming or required homework. They are not permitted to watch television unless it is an educational pr

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ogram, nor do they have access to radios, other musical devices, or computer games. Strict rules exist at mealtimes. Participants are required to stand at parade rest when the serving line is not moving and execute crisp military movements and turns when the line does move. They are often required to approach the table and stand at attention until ordered to sit and eat. Frequently, they must eat without conversation. The Development of Correctional Boot Camps Boot camps began in the adult correctional systems of Georgia and Oklahoma in the early 1980s. By the early 1990s, there were more than 21 programs for adults in 14 state correctional systems. Juvenile boot camps developed in the late 1980s. By the mid-1990s, approximately 35 juvenile boot camps were operat- ing. The number of camps keeps varying because some of the old camps have closed down while other new camps have opened. Several factors account for the rapid growth of cor- rectional boot camps. One important influence was the conservative political climate of the 1980s. Politicians felt the need to be tough on crime. Many sanctions appeared to be “soft” on the criminal. Boot camps were a different story. Boot camps appealed to the “gut instincts” of a public that wanted criminals punished swiftly and harshly in a place where they were required to respect authority and obey rules. Another important factor influencing the rapid development of the camps was the media. Boot camps provided powerful visual images of juveniles snap- ping to attention in response to staff members. The tough drill sergeant yelling at the young street thug made great television for a public that wanted to get tough responses to crime. It was ideal for the 60-second feature in the evening news. Differences in Boot Camps Juvenile boot camps have changed dramatically over time. The biggest change was in the move away from an emphasis on the basic training model. The first boot camps emphasized the basic military training with strict rules and discipline, physical training, and hard labor. Later, the camps began to emphasize other aspects such as education, leadership training, drug treatment, or cognitive skills. In fact, many of the camps no longer referred to themselves as “boot camps.” They used a variety of other names for the programs, such as lead- ership academy, leadership development, highly struc- tured program for juveniles, or challenge program. While these programs still had strict rules and disci- pline, physical training, and drill and ceremony, they placed a greater focus on leadership, education, and other therapeutic activities. Camps differ greatly in the amount of time devoted to different activities. Some still emphasize basic train- ing, and the juveniles spend a great deal of time in physical training and drill and ceremony. Other camps focus on therapeutic activities such as drug treatment, cognitive skills training, vocational training, or educa- tion, and the daily schedule reflects this emphasis. Furthermore, the follow-up supervision and aftercare vary among camps. Some have a long-term aftercare program with therapeutic activities, other camps may have intensive supervision, and others may have little follow-up supervision or care. These differences depend, in part, on the philosophy of those who man- age the programs or the correctional administrators Juvenile Boot Camps ———429 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 429 who oversee the programs. Money available for pro- gramming is also an important factor in determining the type of activities included in the boot camp; therapeutic programming and aftercare may greatly increase the cost of the program. Controversies Over Juvenile Boot Camps Boot camps have been controversial since they first opened. Advocates believe that the strict discipline and control in these camps is what these youths need. Many adults who have spent time in the military argue that this was a life-altering and positive experience for them, and camps can have the same impact on juve- nile delinquents. Others point to the fact that the orderly environment and control help the youths focus on their problems and make positive changes in their lives. They believe that these undisciplined youths will prosper in an environment that requires them to obey and respect adults. Critics of boot camps have other concerns. Cor- rectional psychologists argue that the confrontational nature of the interactions do not reflect the type of sup- portive interpersonal interactions that are conducive to positive change. They maintain that 90 days of verbal abuse, push-ups, and marching cannot be expected to address the problems related to addiction, low educa- tional attainment, or gang membership and other prob- lems faced by these juveniles. In their opinion, boot camps do not include components that are associated with effective correctional treatment, such as therapeu- tically trained staff and individualized treatment. Furthermore, military training in the armed forces is followed up by 2 years or more of service that empha- sizes the skills learned in basic training. Juvenile boot camps do not continue to give participants such long- term follow-up services and treatment. The Problem of Net Widening Boot camps appear to be a deceptively seductive alter- native for youths with behavior problems. Thus, there is a good chance that low-risk juveniles may be sent to boot camps when they would otherwise have been given a community alternative such as probation. This essentially widens the net of control over juveniles. Net widening is viewed as a disadvantage because increased numbers of juveniles are incarcerated in facilities when there is little advantage in incarcerating them. There may be little risk that they will commit future delinquencies. Also, these low-risk youths may be negatively affected by the programs. From the per- spectives of both costs and the impact on youths’ lives, there may be little advantage in widening the net of control. Dangers of the Boot Camp Environment The rigorous physical activity, confrontational interac- tions, and summary punishments in boot camps carry with them the chance of abuse or injury. The environ- ment is apt to be mentally and physically stressful for the participants. There have been several deaths in the juvenile camps, and law cases are pending regarding responsibility for the deaths. Many people question whether the dangers of the boot camp atmosphere out- weigh any benefits of the programs. While physical activity can be healthy, some of the camps have been criticized for requiring activities that are beyond the health status of the participants (e.g., the required long- distance running for overweight juveniles). This is a particular concern if the staff has not had adequate training to be able to determine when juveniles are experiencing extreme mental or physical stress. Do Juvenile Boot Camps Work? The effectiveness of correctional programs can be mea- sured in many ways. For example, boot camps may have an impact on the conditions of confinement. From this perspective, research may investigate whether boot camps are safer than other facilities or whether they increase positive changes such as increased educational attainment or decreased antisocial attitudes. Often the major interest of policymakers and the public is whether correctional programs reduce the recidivism or future criminal activities of participants. There is some research examining the effectiveness of correctional boot camps in reducing recidivism. MacKenzie and her colleagues conducted a meta- analysis comparing the recidivism of boot camp par- ticipants with the recidivism of comparison groups. A meta-analysis is a statistical analysis that uses studies as the unit of analysis. The meta-analysis of boot camps included 44 different studies of adult and juve- nile boot camps. The studies used different measures of recidivism, including rearrests, reconvictions, and reincarcerations. For each study, an effect size was 430 ———Juvenile Boot Camps J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 430 calculated. The effect size indicates whether recidi- vism was lower for the boot camp participants or the comparison group and how large this difference was. The researchers found that the recidivism rates of the participants and of the control group that did attend a boot camp were almost exactly the same. This was true for both the adult and the juvenile programs. Thus, from this research, it does not appear that juve- nile boot camps are effective in reducing the later criminal activities of juvenile delinquents. Some research has indicated that boot camps have a positive impact on participants’ attitudes. In this research, the participants were found to have become less antisocial and develop better attitudes toward staff and programs. However, these results are not consis- tent. It may be that the results differ depending on the emphasis of the camp. Boot camps that emphasize therapeutic treatment may have a more positive impact on attitudes than camps that emphasize basic military training, consisting of physical training, drill and ceremony, and hard labor. We don’t have enough research to clearly assess whether the camps have a positive impact on attitudes. Another way the effectiveness of boot camps can be studied is to examine the cost of the programs. It is costly to build and operate facilities. If the boot camps widen the net by putting juveniles in facilities when they would otherwise have been in the community, there may be a substantial cost to the programs. On the other hand, if the camps reduce the amount of time juveniles spend in facilities, they could reduce costs. Most juvenile programs are relatively small, so the costs of the programs may not have a large impact on the jurisdictions operating them. This may be the rea- son why there is no research investigating the issue of the cost of juvenile boot camps. The Future of Juvenile Boot Camps Boot camps were a popular correctional approach that fit the philosophy of the conservative 1980s and 1990s. The programs appeared tough on crime and therefore answered politicians’ needs to show that they supported tough programs. They answered the public’s desire to punish juveniles instead of coddling them. The media liked them because they made good short news pieces for national television. But will they last? This is a question that many people are asking. There have been deaths of both staff and juveniles in the boot camps; as a result, people are beginning to question whether this is good correctional practice. Critics continue to advo- cate the elimination of the camps because they do not follow the principles of effective correctional practice. It is impossible to tell at this point whether boot camps will continue to operate. Given the disappointing results of the recidivism analyses, it appears that there is little reason to continue to operate the camps. Unless some additional justification for the camps is discov- ered, most likely there will be fewer and fewer juvenile boot camps in the future. Doris Layton MacKenzie See also Antisocial Personality Disorder; Juvenile Offenders Further Readings Gover, A. R., MaccKenzie, D. L., & Styve, G. J. (1999). The environment and working conditions in juvenile boot camps and traditional facilities. Journal of Criminal Justice, 28 (1), 53–68. Lutz, F., & Murphy, D. (1999). Ultra-masculine prison environments and inmate adjustment: It’s time to move beyond the “boys will be boys” paradigm. Justice Quarterly, 16 (4), 709–733. MacKenzie, D. L. (2006). What works in corrections? Examining the criminal activities of offenders and delinquents. Cambridge, UK: Cambridge University Press. MacKenzie, D. L., & Armstrong, G. S. (Eds.). (2004). Correctional boot camps: Military basic training or a model for corrections? Thousand Oaks, CA: Sage. J UVENILE O FFENDERS Interest in juvenile offenders has increased in the past few decades due to the large number of youths com- ing into contact with the law and the rising violent crime. Research by Howard Snyder and Melissa Sickmund provides extensive juvenile population and crime statistic data, and some of their pertinent infor- mation is summarized here to provide a rough picture of the characteristics of juvenile offenders in the United States. From 1989 to the mid-1990s, juvenile violent crime was on the rise, and it peaked in 1994. From 1994 to 2003, the juvenile crime rate decreased, with a particularly steep decline of 48% in the juve- nile violent crime arrest rate. Juvenile offending remains a significant social problem, and subgroups Juvenile Offenders ———431 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 431 of juveniles engage in different levels of criminal behavior. Specifically, the arrest rate for female juve- niles has increased over this 10-year period, while the juvenile male arrest rate has declined. Furthermore, while the violent crime arrest rate for Black youth has declined, it still is greater than the rate for any other racial group. Several environmental factors, social factors, and personal traits contribute to the persis- tence or desistance of juvenile delinquency. While dif- ferent developmental trajectories for the progression of delinquency and different risk factors for male and female juveniles exist, juvenile offenders generally are at greater risk for mental health problems, less education, substance abuse problems, and low socioe- conomic status. Juvenile Population and Crime Statistics In 2002, the juvenile population in the United States was nearing 73 million. Just over 2 million juveniles (i.e., under age 18) were arrested in 2003, but fortu- nately, over the 10-year period from 1994 to 2003, juvenile arrests declined by 18%. Property crimes (e.g., burglary and larceny), which accounted for 463,300 juvenile arrests in 2003, constituted the largest crime category, and violent crimes, such as murder, accounted for 92,300 juvenile arrests. The overall trend for very young offenders, but not for juvenile female offenders, mirrored that for juvenile offenders in general. In fact, the rate of offending for girls increased. Additionally, arrest rates differed by racial group but were similar to the overall pattern for juveniles. V V e e r r y y Y Y o o u u n n g g J J u u v v e e n n i i l l e e O O f f f f e e n n d d e e r r s s Marked differences in the rate of offending across age exist, and there are also general trends in the extent to which very young people engage in antisocial con- duct. Very young offenders are of particular concern because it is not expected that young children would be breaking laws. This phenomenon might also signal sub- stantive problems with our parenting practices and broader problems with communities in that both may be less than effective in developing prosocial behavior in youth. Recent trends show that among very young juvenile offenders (10–12 years of age), the arrest rates for violent ( + 27%) and drug-related ( + 105%) crimes increased, while their overall arrest rate declined, from 1980 to 2003. Furthermore, for most offense types, more females were arrested than males in the 10- to 12-year age range. For example, the violent crime index for young juvenile female offenders increased by 135% between 1980 and 2003, while it increased only by 14% in the same time period for young juvenile male offenders. Very young juvenile offenders form a unique subgroup in that they are particularly at risk for substance use and gang affiliation. G G e e n n d d e e r r T T r r e e n n d d s s Taking into account the total number of arrests in 2003, the arrest rate for juvenile females was higher than that for juvenile males (20% vs. 15%). Additionally, from 1994 to 2003, the arrest rate for juvenile males declined by 22%, which is greater than the decrease in the juvenile female arrest rate ( − 3%) over this period. Additionally, the juvenile female arrest rate either increased more or decreased less than the juvenile male arrest rate for most offense types. For example, simple assault arrests increased by 1% for juvenile males and by 36% for juvenile females from 1994 to 2003. Juvenile females accounted for 29% of all juve- nile arrests and were disproportionately arrested for prostitution (69%) and running away from home (59%). These findings indicate the importance of examining gender differences in juvenile offenders and that trends found with boys do not necessarily reflect what will occur with girls who are offending in the community and vice versa. R R a a c c e e T T r r e e n n d d s s White juveniles accounted for 71% of all juvenile arrests in 2003, while Black youths were responsible for 27% of juvenile arrests. Sixteen percent of Black and of White arrests in 2003 were attributed to juve- niles. However, Black juveniles, who represented only 16% of the juvenile population (ages 10–17), accounted for 63% of the arrests for robbery, 48% of murder arrests, and 40% of the arrests for motor vehicle theft. The proportion of juvenile arrests varied across offense type. For example, 9% of all arrests for mur- der involved juveniles, while 51% of all arrests for arson involved juveniles. The proportion of White and Black juvenile arrests also differed across offense types. Juveniles were responsible for a larger propor- tion of Black arrests than of White arrests for robbery (27%) and motor vehicle theft (33%), while the pro- portion of White arrests attributed to juveniles was 432 ———Juvenile Offenders J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 432 greater for arson (53%) and vandalism (41%). However, Black and White juveniles were both responsible for the same proportions (9%) of Black and White arrests for murder in 2003. Although there has been some discussion about the inequity in charges across race, it is difficult to determine the specific causes of these disparities. V V i i o o l l e e n n t t C C r r i i m m e e T T r r e e n n d d As mentioned, the violent crime rate varied across years, with the late 1980s to early 1990s evidencing high rates of juvenile violent crime. The Violent Crime Index for juveniles was generally stable from 1980 to 1988, but by 1994, it had increased to 61%. By 2003, the Violent Crime Index for juvenile arrests had dropped below its level in the early 1980s. The juvenile male arrest rate, which was 8.3 times the rate for juve- nile females in 1980, dropped to 4.2 times the female arrest rate in 2003. From 1988 to 1994, the increase in the arrest rate for juvenile females (98%) was larger than it was for juvenile males (56%). Additionally, the greater decline in the male than the female rate (51% vs. 32%) from 1994 to 2003 was largely responsible for the decline in the overall rate of juvenile violent crime. While some of these statistics are encouraging, there continue to be a large number of juvenile offenders. Surprisingly, the murder arrest rate increased 110% from 1987 to 1993. For juvenile males, the arrest rate for murders increased 117% in this time period, which accounted for the overall rise in the juvenile murder arrest rate. The juvenile female arrest rate did not con- tribute to the overall increase because this rate increased only by 36% during this time period. In 2003, the murder arrest rate for both juvenile males (78%) and juvenile females (62%) declined the most since 1980 or earlier. The violent crime trend for sev- eral minority groups, including Black, Asian, and Native American, mirrored the trend for White juve- niles, with each group’s arrest rate peaking in 1994. The rate for Black juveniles declined the most, but their violent crime arrest rate was still higher than the rate for any other racial group in 2003. In 2003, the violent crime arrest rate for Black juveniles, which had decreased by 35%, was approximately four times the rate for White juveniles, which was the next high- est rate (800 arrests vs. 200 arrests per 100,000 juve- niles, respectively). The large number of youths who come into contact with the law, which affects their own personal mental health, ability to excel in school, and other aspects of life that could lead to well-being, has led researchers to attempt to better understand youths with conduct problems. This research has led to further efforts to understand juvenile offenders and, thus, further subtyping of juvenile offenders and of youths with conduct problems. Developmental Pathways of Delinquent Behavior and Juvenile Offending C C h h i i l l d d h h o o o o d d - - V V e e r r s s u u s s A A d d o o l l e e s s c c e e n n t t - - O O n n s s e e t t A A n n t t i i s s o o c c i i a a l l B B e e h h a a v v i i o o r r According to Terrie Moffitt, childhood-onset or life-course-persistent antisocial behavior has a differ- ent developmental pathway from adolescent-onset antisocial behavior. Early-onset antisocial behavior is the result of a child’s characteristics and a poor family and social environment. Traits increasing a child’s risk of antisocial behavior include a difficult temperament, cognitive deficits, developmental motor delays, and hyperactivity. Environmental influences include weak or broken familial bonds, poverty, poor parenting, and strained relationships with teachers and peers. Childhood-onset antisocial behavior commonly per- sists into adulthood, and these children have much poorer prognoses than children with adolescent-onset behavior. Additionally, the life-course-persistent group of antisocial youth, which is much smaller than the adolescent-limited group, is responsible for a dis- proportionately large amount of crime. In contrast, adolescent-onset antisocial behavior is considered developmentally normal and occurs in otherwise healthy children. Adolescent-onset antisocial behavior is deemed normal because it is a means by which youths establish independence from their parents, and these children generally outgrow this behavior as they progress into young adulthood. However, desistance in adolescent-onset youths may be delayed if they encounter problems, such as addiction. T T r r i i p p l l e e - - P P a a t t h h w w a a y y M M o o d d e e l l Rolf Loeber and David Farrington identified three categories of troublesome behavior in children aged 7 to 12 years. These authors developed a triple-pathway model to explain the links between various pathways in the context of increasingly severe delinquency. First, children exhibiting disruptive behaviors, such as Juvenile Offenders ———433 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 433 aggression, should be considered at risk of becoming juvenile offenders because they frequently exhibited similar behaviors early in life. Approximately, one quarter to half of these children are at risk of pro- gressing to delinquency. Next, low-level juvenile offenders commit less serious and generally nonvio- lent crimes (e.g., shoplifting), but these delinquent behaviors frequently serve as precursors to more seri- ous crimes. Serious juvenile offenders, who have committed homicide, rape, or arson, are of greatest concern because they are responsible for 10% of all juvenile arrests. Additionally, this subset of offenders committed 2%, or 600, of the murders attributed to juveniles, and weapons were used in more than 50% of these murders. Furthermore, juveniles who had access to weapons began committing crimes at a younger age than those juveniles without access to weapons. The development of delinquent behavior in boys has been shown to occur through three pathways— overt, covert, and authority conflict. Juveniles on the overt pathway initially engage in low levels of aggression but graduate to physical fighting and then violence. In contrast, the covert pathway is associ- ated with the commission of minor acts of delin- quency (e.g., shoplifting) before 15 years of age and progresses to property damage (e.g., fire setting) and then to moderately severe forms of delinquency (e.g., fraud). Finally, in juveniles under 12 years of age, the authority conflict pathway is characterized by defiant behavior at low levels and by avoidant behavior (e.g., running away) at the highest level. For these boys, higher levels of avoidant behaviors are associated with a greater risk of covert and overt delinquent behaviors. In all three pathways, as the severity of behaviors increases, the number of juveniles engaging in these behaviors decreases. Additionally, juvenile males with an earlier onset of delinquency are more likely to progress to the more severe behaviors within each pathway. Another trend in the development of delinquent behavior is the expansion of such behavior from the home to the community. However, normal levels of disruptive behavior are commonly seen in 2- and 3-year-old children and, therefore, must be distinguished from problematic levels. Two major indicators of future delinquency are developmentally inappropriate (i.e., elevated) levels of disruptive behaviors in terms of frequency and severity and the persistence of these behaviors beyond 3 years of age. G G e e n n d d e e r r D D i i f f f f e e r r e e n n c c e e s s i i n n R R i i s s k k F F a a c c t t o o r r s s f f o o r r D D e e v v e e l l o o p p i i n n g g A A n n t t i i s s o o c c i i a a l l B B e e h h a a v v i i o o r r Female and male juvenile offenders share many risk factors, including poor academic histories, living in high-crime neighborhoods, family dysfunction, and poverty. However, female juvenile offenders are more likely than male juvenile offenders to have experienced physical or sexual abuse. For girls, having at least one parent with a criminal record greatly increases the like- lihood that they will be arrested by age 15. While the overall juvenile female arrest rate exceeds the rate for juvenile males, young females are less likely than boys to possess the risk factors associ- ated with the life-course-persistent trajectory of anti- social behavior. For example, female children exhibit fewer developmental motor delays, temperamental difficulties, and neuropsychological and cognitive problems, including learning and reading difficulties. As predicted, fewer females than males were classi- fied as life-course-persistent, but their backgrounds were similar in that they shared several of the life-course-persistent risk factors. However, adolescence- onset antisocial girls are expected to be more numer- ous than their life-course-persistent counterparts because they are exposed to the same antisocial peers as are adolescent boys. Yet the opportunities to engage in antisocial behavior may be more limited for ado- lescent girls than for adolescent boys because girls are more likely to experience physical harm (e.g., sexual assault), which may reduce their involvement in delin- quent behaviors. Predictors of Desistance and Persistence The initial commission of a criminal act by age 13 is associated with a 2 to 3 times greater risk of chronic, violent offending. Depending on environmental fac- tors and personality or behavioral traits, criminal behavior in juveniles can be prolonged. The presence or absence of snares (e.g., delinquent peers) could respectively limit or promote desistance of criminal behavior in juveniles. For example, economically depressed neighborhoods have high rates of juvenile crime and violence, and they have more risk and fewer protective factors. Within neighborhoods, additional sources of influence include a youth’s family and peers, and the interaction of these microsystems must be collectively considered to gain a more complete 434 ———Juvenile Offenders J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 434 understanding of juvenile delinquency. Additional environmental factors associated with juvenile offend- ing include poverty, tenuous community bonds, minimal social control from other residents in the neighborhood, and low parental supervision. A con- sistent finding in juvenile delinquency research is that associating with a delinquent peer group is a strong predictor of serious, chronic offending. In contrast, protective factors include consistent discipline and positive, warm parental interactions. Personality traits of juveniles also influence the fre- quency and severity of their committing delinquent or criminal acts. Callousness and impulsivity have both been linked to future juvenile delinquency. Low restraint (e.g., impulsivity) and high distress (e.g., anxiety) are associated with rearrest. However, high-restraint youth committed fewer but more severe crimes. Callous and unemotional traits (e.g., lack of empa- thy) have consistently been linked to a subgroup of antisocial youth with particularly severe aggressive behavior. Furthermore, callous children also express a preference for arousing, dangerous stimuli and have lower levels of reactivity to threatening or emotionally upsetting stimuli. Consequences of Juvenile Offending Several consequences of juvenile offending exist, and they are particularly salient for juveniles with early- onset of delinquency. Early-onset juvenile offenders are more likely to continue engaging in delinquent behavior, and the repeated commission of such acts throughout childhood is also a factor in persistent delinquency. In other words, involvement in delin- quency precludes juveniles from engaging in prosocial behaviors and is associated with low educational attainment, inadequate social skills, limited employ- ment opportunities, low socioeconomic status, and, for males, early parenthood. These juveniles also have higher rates of externalizing behaviors (e.g., aggres- sion), internalizing behaviors (e.g., depression), sub- stance abuse, and suicide. The increased number and sever ity of mental health problems in juvenile offenders lead to their greater involvement with child welfare service, mental health providers, and the crim- inal justice system. Juvenile offenders and their victims have more psychological and occupational problems and, overall, a lower quality of life. Moreover, juvenile delinquents who develop into chronic offend- ers cost society $1.3 to 1.5 million. Because of the great impact juvenile offending has on the children involved in criminal activity and on society, further research into prevention and intervention needs to be conducted. Haley L. Ford and Randall T. Salekin See also Juvenile Offenders, Risk Factors; Juvenile Psychopathy Further Readings Grisso, T., Vincent, G. M., & Seagrave, D. (2005). Mental health screening and assessment in juvenile justice . New York: Guilford Press. Loeber, R., & Farrington, D. P. (2000). Young children who commit crime: Epidemiology, developmental origins, risk factors, early interventions, and policy implications. Development and Psychopathology, 12, 737–762. Moffitt, T. E. (1993). “Life-course-persistent” and “adolescence-limited” antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. J UVENILE O FFENDERS , R ISK F ACTORS Broadly defined, a risk factor for juvenile offending is any experience, circumstance, or personal charac- teristic that increases the probability that a given youth will commit a legal transgression. No single risk factor causes offending; many youths who have been exposed to various risk factors never commit a crime. Rather, juvenile offending typically emerges as a result of complex interactions among a wide variety of risk and protective factors that vary from child to child. Combined risk factors tend to exhibit additive effects, with the likelihood of offending increasing as the number of risk factors increases. Also, the impact of a given risk factor varies across the life course; some may have an effect only at a par- ticular developmental stage. Attempts to mitigate possible risk factors must, therefore, take into account a youth’s developmental status. The risk fac- tors for different types of offending vary as well. Studies have found that juvenile offenders tend to Juvenile Offenders, Risk Factors ———435 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 435 follow one of two possible patterns of offending. The majority exhibit adolescence-limited offending, which begins during adolescence and subsides during the transition to young adulthood. Life-course-persistent offenders, in contrast, tend to exhibit conduct prob- lems early (prior to adolescence) and continue to offend into adulthood. Risk factors for juvenile offending are numerous and wide-ranging. Some (such as gender) are unalter- able. Others (such as neighborhood conditions or family dynamics), though changeable in theory, are systemic and difficult to control. Nevertheless, by understanding the wide range of risk factors for juve- nile offending, prevention programs and treatments can be tailored to meet the unique needs of the various populations of youths they aim to help. The predomi- nant factors can be grouped into three broad cate- gories: individual characteristics, social influences, and community conditions. This entry describes well- established risk factors in these domains. Individual Characteristics A A n n t t i i s s o o c c i i a a l l B B e e h h a a v v i i o o r r One of the best predictors of future delinquency is a history of antisocial behavior in childhood. Adolescents who engage in antisocial behavior (e.g., theft, fighting, vandalism, fire setting, etc.) before puberty (prior to age 13) are more likely to be delin- quent than those who have not engaged in these acts prior to puberty. Research also suggests that violent careers often begin with relatively minor forms of antisocial behavior that escalate over time. Those with an early arrest (before age 13) are more likely to become chronic offenders by age 18. Such chronic offenders make up a small percentage of the offending population but are responsible for the majority of seri- ous violent crimes. In addition, youths whose delin- quent careers begin early tend to engage in a broad range of antisocial behavior rather than specialize in a particular type of offending. Early childhood may thus be an important developmental period to target for the prevention of juvenile delinquency. S S u u b b s s t t a a n n c c e e A A b b u u s s e e Chronic abuse of drugs and alcohol is a precursor to other dangerous behaviors, including criminal activity. Although some degree of experimentation with drugs and alcohol is not unusual during adolescence, excessive use is a risk factor for delinquency. C C o o g g n n i i t t i i v v e e D D e e f f i i c c i i t t s s Cognitive deficits have also been implicated as a risk factor for delinquent behavior. Low intelligence quotient (IQ) scores, weak verbal abilities, learning disabilities, and difficulty with concentration or attention have all been associated with subsequent delinquent behavior. Social-cognitive development is especially important because it affects one’s ability to learn social norms and expectations. For example, studies have shown that delinquent youths are more likely than their peers to think that other children’s behavior is deliberately hostile, even when it is not. Though not conclusive, studies suggest that such cog- nitive deficits usually precede the development of delinquency and not vice versa. P P s s y y c c h h o o l l o o g g i i c c a a l l F F a a c c t t o o r r s s Youths who are impulsive, hyperactive, and engage in risk-taking behaviors are more prone to delinquent acts than those who are not. In fact, self-control (or the lack thereof) has been suggested by some to be the root individual-level determinant of crime throughout the life course. Persons with low self-control lack dili- gence, find it difficult to delay gratification, have little tolerance for frustration, lack interest in long-term pursuits, and have little ability to resolve problems through verbal rather than physical means. While youths who react to new stimuli with anxiety or timid- ity tend to be less likely to commit antisocial acts, youths who approach new stimuli impulsively or aggressively tend to be more likely to offend. Interest- ingly, motor restlessness (fidgeting, or the inability to sit still) in kindergarten is a stronger predictor of delinquency between 10 and 13 years of age than low anxiety or a lack of prosocial behavior. In fact, children who become persistent offenders are more likely than their peers to suffer from attention- deficit/hyperactivity disorder (ADHD). B B r r a a i i n n D D e e v v e e l l o o p p m m e e n n t t Neuropsychological deficits (often initially mani- fested as subtle cognitive deficits or a difficult tempera- ment) have been linked to delinquency and chronic offending. Anatomical, chemical, and neurological 436 ———Juvenile Offenders, Risk Factors J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 436 abnormalities are more prevalent among chronic crim- inal offenders and those exhibiting recurrent antisocial behavior than among the general population. These abnormalities may be caused by damage to a specific brain region (i.e., through injury) or by a variety of behavioral or environmental factors (e.g., poor nutri- tion, exposure to violence, substance abuse). For exam- ple, research has found that prenatal and perinatal complications have been associated with later antiso- cial behavior. Adolescence is a time of marked brain development in many regions, including areas impli- cated in various aspects of self-control. As such, neuro- logical development during adolescence has a significant effect on emotion regulation. Researchers are actively investigating the complex interrelations among biolog- ical and psychological factors as correlates of conduct problems. Social Influences F F a a m m i i l l y y Family structure, family characteristics, and family dynamics have all been connected to juvenile offend- ing. The effect of family characteristics is most pro- nounced in early childhood. While some research has reported that children from single-parent households are at increased risk of delinquent behavior, these dif- ferences are often found to be negligible when differ- ences in socioeconomic status are taken into account. Interestingly, family size has been connected to juve- nile offending, with youths having more siblings being more likely to engage in delinquent behaviors. The most powerful family-level predictors of juvenile delin- quency include lack of parental supervision, inconsis- tent discipline, and hostile or rejecting parenting styles. Also, children who witness or are victims of abuse in the home are at even greater risk of engaging in antiso- cial behavior. Aggressive behavior has been found to run in families: Having an antisocial sibling, especially one who is close in age, increases a child’s likelihood of engaging in delinquent behavior, and youths whose parents engage in antisocial behavior are more likely to do so themselves. P P e e e e r r s s The importance of peers in youths’ social networks grows substantially during adolescence. It is thus not surprising that most youths commit crimes in groups and that certain characteristics of a youth’s peer group increase his or her likelihood of offending. Foremost, individuals with delinquent friends are more likely to offend than individuals without delinquent friends. While peers are known to influence an individual’s behavior (known as socialization ), research also demon- strates that adolescents who are delinquent are more likely to seek out and befriend other delinquents (known as selection). Antisocial peer influence can thus be self- reinforcing. The age and gender of an adolescent’s peers are also important factors; having older friends is asso- ciated with a greater likelihood of offending, and male peers are generally more likely to encourage antisocial behavior than female peers. Gang membership reflects the most extreme example of deviant peer influence on offending. Interestingly, aggressive children who are universally rejected by their peers are at greater risk of becoming chronic juvenile offenders than are aggressive children who are not rejected. The negative influence of peers tends to arise as a key risk factor later in development, whereas family influences typically are most important during earlier stages. Nevertheless, the influence of peers is magni- fied when the family environment is not healthy. Community Conditions N N e e i i g g h h b b o o r r h h o o o o d d Children raised in disadvantaged neighborhoods are at greater risk of becoming juvenile offenders than children from more affluent neighborhoods. This neighborhood effect remains significant even when dif- ferences in school quality and family socioeconomic status are taken into account. Since disadvantaged neighborhoods have weak social controls due to isola- tion and high residential turnover, delinquent behavior is more likely to go unnoticed or be ignored by others in the community. The lack of social control in poorly monitored neighborhoods not only provides more opportunities for antisocial behavior but also increases youths’ exposure to criminal behavior by others in the community. Such exposure is yet another risk factor for subsequent offending. S S c c h h o o o o l l Youths who experience problems at school are at increased risk of becoming delinquent. Problems at school can include a wide range of experiences, such Juvenile Offenders, Risk Factors ———437 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 437 as poor scholastic performance, weak connections to school, and low educational aspirations. Such factors are associated with delinquent behavior even when cognitive factors (such as intelligence or attention deficits) are taken into account. Youths who drop out of high school are more likely than those who gradu- ate to engage in delinquent activities. School policies such as suspension and expulsion have been found to exacerbate delinquent behavior among at-risk youths. Prediction Risk factors combine in complex ways to influence individual behavior. Although these factors can be used to predict the relative probabilities of offending in large groups with similar characteristics, they can- not be reliably used to predict the behavior of specific individuals. Even among groups with numerous risk factors, the majority of youths generally do not offend, making it extremely difficult to use such fac- tors to identify individual future offenders with mean- ingful accuracy. The number of “false positives” from such predictions would exceed the number of “true positives,” and the potential stigma of being labeled as a “future offender” would itself be detrimental. Elizabeth Cauffman See also Child Maltreatment; Child Sexual Abuse; Classification of Violence Risk (COVR); Conduct Disorder; Criminal Behavior, Theories of; Divorce and Child Custody; Extreme Emotional Disturbance; Juvenile Offenders; Juvenile Psychopathy; Mental Health Needs of Juvenile Offenders; Risk Assessment Approaches; Substance Use Disorders; Victimization Further Readings Farrington, D. P. (1995). The development of offending and antisocial behavior from childhood: Key findings from the Cambridge Study in Delinquent Development. Journal of Child Psychology and Psychiatry, 36, 929–964. McCord, J., Widom, C. S., & Crowell, N. A. (2001). Juvenile crime, juvenile justice. Panel on juvenile crime: Prevention, treatment, and control. Washington, DC: National Academy Press. Moffitt, T. (1993). Adolescence-limited and life-course- persistent antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Office of the Surgeon General. (2001). Youth violence: A report of the Surgeon General. Washington, DC: U.S. Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office of the Surgeon General. Retrieved from http://www .surgeongeneral.gov/library/youthviolence/toc.html Tremblay, R. E., & LeMarquand, D. (2001). Individual risk and protective factors. In R. Loeber & D. P. Farrington (Eds.), Child delinquents: Development, intervention, and service needs (pp. 137–164). Thousand Oaks, CA: Sage. J UVENILE P SYCHOPATHY Despite disagreement about its exact contours, most conceptualizations of psychopathic personality disor- der emphasize traits of emotional detachment, includ- ing callousness, failure to form close emotional bonds, low anxiety proneness, remorselessness, and deceitful- ness. Nevertheless, most measures of psychopathy go beyond these interpersonal and affective features to assess repeated involvement in antisocial behavior, which many scholars view as peripheral to the con- struct. Chiefly, this is because most measures are based on the Psychopathy Checklist–Revised (PCL–R), which weighs past violent and antisocial behavior as strongly as traits of emotional detachment. Over the past decade, researchers have extended this adult mea- sure of psychopathy downward to adolescents and children, with the goal of assessing “juvenile psy- chopathy.” This research has gained considerable momentum, despite ongoing controversy about the appropriateness of diagnosing psychopathy before youths’ personalities have reached a period of relative developmental stability. Most contemporary research and virtually all practical interest revolve around the reliability and utility of measures of juvenile psy- chopathy in forecasting youthful offenders’ violent and antisocial behavior. In this entry, this movement is noted, but research on the validity of extending this construct to youths is emphasized. Theoretically dri- ven research on the potential mechanisms that under- pin psychopathy reveals the importance of emotional detachment as a likely manifestation of psychopathy in youths. However, there is no compelling evidence that the purported traits of psychopathy (a) remain stable during the transition to adulthood or (b) do not respond to treatment. This limits the utility of measures of psy- chopathy for informing legal decisions with long-term consequences concerning youth. Although relevant measures have been developed for children as young 438 ———Juvenile Psychopathy J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 438 as 3 years, the focus of this entry is on preteens and adolescents. Extending Psychopathy From Adults to Youths Several factors have encouraged the extension of psy- chopathy from adults to youth. Foremost among them are (a) the recognition that the chief tools for diagnos- ing psychopathy predict violence and criminal recidi- vism and (b) the juvenile justice system’s increasingly punitive policies, which have created a demand for identifying inalterably dangerous youths. Although researchers hoped that psychopathy assessments would be used to identify a subgroup of at-risk youths to target for intervention, recent legal reviews suggest that the youths identified are likely to be excluded from treatment and set up for harsh sanctions. Most measures of juvenile psychopathy modify the PCL–R items and scoring criteria to reference youths’ peer, family, and school experiences. They are built on the assumption that the features of psychopathy man- ifested by adult psychopaths will, when exhibited in youths, identify a small subgroup of offenders who are maturing into psychopaths. That is, psychopathy is manifested similarly, whether one is 13 or 33 years old. This assumption is challenged by a study of clin- ical psychologists’ conceptions of juvenile psychopa- thy. Clinicians viewed some of the features of adult PCL–R psychopathy (e.g., impulsivity, the failure to accept responsibility, a parasitic lifestyle, criminal versatility) as nonprototypic of juvenile psychopathy. Although this raises the possibility that the manifesta- tions of psychopathy differ as a function of develop- mental stage, no “bottom-up” measures of juvenile psychopathy have been developed. Reliability and Predictive Utility of Juvenile Psychopathy Measures The most widely validated measures of juvenile psy- chopathy were derived from the PCL–R, including the Psychopathy Checklist: Youth Version (PCL:YV), the Antisocial Process Screening Device (APSD), and the Child Psychopathy Scale (CPS). Like its parent mea- sure, the PCL:YV is based on a clinical interview and file review; the other measures are based on self- or collateral report. Perhaps, given these method differ- ences, the PCL:YV correlates only moderately with the remaining measures. These measures share two general strengths. First, each has been shown to be reliable (interrater, internal consistency, and/or short-term test-retest). Second, each has demonstrated some utility in predicting youths’ violent or antisocial behavior. The typical degree of association with these behavioral outcomes is similar to that observed in adults (i.e., r ≠ .25). Although most prospective studies follow youths for only 1 to 2 years, one retrospective study indicates that youths’ (mean age = 16) file-based PCL:YV scores moderately predict violent recidivism over an average 10-year follow-up period. Most of the PCL:YV’s pre- dictive utility in this study, however, was attributable to its assessment of an impulsive, antisocial lifestyle rather than traits of emotional detachment. This find- ing is consistent with much of the adult literature and challenges the assumption that the measure’s associa- tion with violence is an indication that emotionally detached psychopaths use violence to prey on others. Instead, the measures may tap traits of aggression or externalizing features that predict violence but are not specific to psychopathy. Construct Validity of Juvenile Psychopathy: Potential Mechanisms and Etiology For such reasons, predictive utility (which seeks clinical utility) cannot be mistaken for construct validity (which seeks construct identification). To determine whether psychopathy is a valid construct when applied to youths, juvenile psychopathy must be (a) evaluated against a validation hierarchy dictated by a theory of the disorder and (b) shown to be a stable personality disorder that does not dissipate as youths become adults. Despite the differences among them, most theories describe psychopathy as a largely inherited affective or cognitive processing deficit. These theories dictate a validation hierarchy that places pathophysiologic and etiologic mechanisms at the top, as they offer the greatest potential for explaining the disorder and potentially altering its course. The question is whether diagnostic criteria for juvenile psychopathy identify a homogeneous group of youths with clearly delineated deficits and largely genetic pathophysiology. Paul Frick and his students have begun to address this question. Their work highlights the importance of features of emotional detachment, or “callous/ unemotional” (C/U) traits, in defining juvenile psy- chopathy. Theoretically, traits of emotional detachment Juvenile Psychopathy ———439 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 439 are underpinned by a fearless temperament and defi- cient processing of emotionally distressing stimuli, which causes insensitivity to socializing agents and interferes with the typical development of conscience. At the symptomatic level, Frick and his colleagues have found that youths with traits of emotional detachment tend to be fearless, thrill and adventure seeking, and low in anxiety. At the pathophysiological level, they have found that emotionally detached traits identify— among a pool of youths with early and persistent antisocial behavior—those who possess information- processing and emotional deficits similar to those found among psychopathic adults. These include reduced sensitivity to cues of punishment when a reward-oriented response set is primed and diminished reactivity to threatening and emotionally distressing stimuli. Although such results might be interpreted as evidence that psychopathy is genetically influenced, caution should be exercised in drawing premature inferences because the heritability of these laboratory variables is unclear. Only one behavioral-genetic study of psychopathy has been conducted with youths to date. In this study, psychopathy was operationalized using teachers’ rat- ings of C/U traits on an unvalidated but internally consistent scale. Based on a selection of 661 7-year- old probands with extreme C/U traits (>1.3 SD ), the authors found concordance rates of 39% and 73% for dizygotic and monozygotic twins, respectively, yield- ing an estimate of moderate heritability for C/U traits ( h = .67). Although observational studies suggest that childhood maltreatment relates more strongly to anti- social behavior than features of emotional detach- ment per se, more research is needed to determine whether features of emotional detachment are more highly heritable. In summary, existing research provides some sup- port for the validity of emotional detachment or C/U traits in defining juvenile psychopathy. The impor- tance of these traits is bolstered by psychometric studies. Studies that apply item response theory indi- cate that interpersonal and affective items convey more information about the underlying juvenile psy- chopathy construct than items that tap aggressive and antisocial conduct. Some of the recently developed measures of juvenile psychopathy (e.g., the Youth Psychopathic Traits Inventory; the Inventory of Callous Unemotional Traits) focus on emotional detachment, de-emphasizing antisocial behavior. It remains for future research to determine whether these measures more “cleanly” assess the construct than their predecessors. Malleability of Juvenile Psychopathy The fact that we can reliably assess features of emo- tional detachment in youths that relate in a theoretically coherent manner to cognitive and affective deficits pro- vides some support for extending psychopathy mea- sures downward from adults to youth. Presently, however, we lack the necessary collateral evidence that what we are assessing in youths is psychopathy, a per- sonality disorder that will remain stable into adulthood. Scholars have expressed two main concerns about the stability of juvenile psychopathy. First, downward translations of the PCL–R include normative and tem- porary features of adolescence such as impulsivity, stimulation seeking/proneness to boredom, poor behavior controls, and irresponsibility. At least one study indicates that measures of juvenile psychopathy correlate moderately with measures of psychosocial maturity. To the extent that measures of juvenile psy- chopathy tap construct-irrelevant variance related to psychosocial maturity, a youth’s score will gradually decrease as he or she matures. It is possible that recent measures of juvenile psychopathy that focus specifi- cally on emotional detachment may capture less construct-irrelevant variance related to psychosocial maturity. Indeed, a cross-sectional item-response the- ory study indicates that PCL:YV items that assess emotional detachment are more defining of psychopa- thy across age groups than items that tap impulsive, antisocial behavior. The second concern is that there is no compelling evidence that youths assessed as psychopathic will mature into psychopathic adults. Because personality and identity may not be well formed until adulthood, our nosological systems generally forbid applying diagnoses of personality disorders to children and adolescents. Although psychopathic adults probably manifested similar traits when they were younger, rel- atively few youths with psychopathic features may mature into psychopathic adults. Reasoning by anal- ogy, the majority of children with conduct disorder desist acting out and do not mature into adults with antisocial personality disorder. Three relevant studies have been conducted. In the first, the APSD was repeatedly administered to 100 nonreferred fourth graders. Across a 4-year period, the stability of APSD scores and rank order was excellent 440 ———Juvenile Psychopathy J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 440 (interclass correlation [ICC] = .80), suggesting that parent ratings change little from late childhood to early adolescence. The two remaining studies focused on the transition from adolescence to adulthood. In the second study, more than 200 youths were admin- istered the CPS at age 13 and a screening version of the PCL at age 24. Over this 10-year period, there was relatively poor stability (ICC = .27), and most of the shared variance was between the CPS and PCL’s anti- social scale. Of the adolescents who obtained extremely high CPS scores (i.e., the top 5%) at age 13, less than one-third (29%) were classified as psychopathic at age 24. In the third study, PCL measures were repeat- edly administered to approximately 200 adolescents and 100 adults. Over a 2-year period, the stability of adolescents’ PCL:YV scores was limited (ICC = .34). Adolescents’ PCL:YV scores decreased significantly more than adults’ PCL–R scores, indicating that psy- chopathy assessed during adolescence is less stable than that assessed during adulthood. The apparent features of psychopathy can change not only as a function of maturity but also as a function of intervention. The results of recent research chal- lenge the long-standing therapeutic pessimism about psychopathy. Although three studies of youth have been conducted, only one is prospective and includes a control group. In this study, of approximately 150 youths with pronounced PCL:YV scores and long his- tories of acting out, those who participated in an inten- sive treatment program were 2.4 times less likely to recidivate violently the year after release than those who participated in treatment as usual. Legal Implications Although juvenile psychopathy is a promising con- struct, the available evidence cannot support its appli- cation to legal decisions about youth that have long-term consequences. First, given the lack of evi- dence that these measures identify inalterably danger- ous youths who will mature into adult psychopaths, it is inappropriate to apply these measures to determine whether a youth should be tried in the adult court sys- tem. Second, these measures should not be used as an exclusion criterion for treatment programs. Indeed, juveniles with high psychopathy scores should be reframed as high-risk cases in need of intensive treat- ment rather than hopeless cases to incapacitate. What legal uses of these measures might be appropriate? Given their predictive utility, one might use a measure of juvenile psychopathy as a risk assessment tool to inform short-term decisions about placement (particularly levels of security). However, risk assessment tools that have been designed and validated for youth are available. Before selecting a diagnostic measure of psychopathy over a validated risk assessment tool, one must consider the potential for stigmatizing a child or an adolescent with the unsavory label “psychopath.” Studies of juvenile jus- tice professionals and mock juries alike indicate that this label invites assumptions that the youth is inal- terably dangerous. Although this assumption does not enjoy empirical support, it pushes decision mak- ers away from rehabilitative efforts toward harsh sanctions and incapacitation. Because adolescence is a time of significant developmental change, it is imperative to learn more about the stability, nature, and manifestations of psychopathy before embracing this construct as a component in the evaluation of juvenile offenders. Jennifer Skeem, Eva Kimonis, and Sarah Vidal See also Conduct Disorder; Hare Psychopathy Checklist–Revised (2nd edition) (PCL–R); Hare Psychopathy Checklist: Youth Version (PCL:YV); Psychopathy Further Readings Edens, J. F., Skeem, J. L., Cruise, K. R., & Cauffman, E. (2001). Assessment of “juvenile psychopathy” and its association with violence: A critical review. Behavioral Sciences and the Law, 19, 53–80. Frick, P. J., & Dickens, C. (2006). Current perspectives on conduct disorder. Current Psychiatry Reports, 8, 59–72 . Salekin, R. T. (2006). Psychopathy in children and adolescents. In C. J. Patrick (Eds.), Handbook of psychopathic traits (pp. 389–414). New York: Guilford Press. J UVENILES AND THE D EATH P ENALTY The controversy surrounding the juvenile death penalty is not new; the courts have struggled with the issue for decades. Meanwhile, psychologists have pre- sented research results on both the capabilities of juveniles and the public’s support for the juvenile death penalty. Although the Supreme Court has not Ju

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veniles and the Death Penalty ———441 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 441 consistently relied on psychological findings, those findings are relevant to the legal debate. Supreme Court Rulings In 1988, the U.S. Supreme Court in Thompson v. Oklahoma overturned a death sentence for a 15-year- old offender because it violated the Eighth Amendment prohibition against cruel and unusual punishment. The Court found that the community’s “evolving standards of decency” were incommensurate with the execution of a juvenile. The Court considered four factors: the number of state statutes prohibiting the juvenile death penalty for 15-year-olds, jury sentencing statistics, the opinions of national and international organizations, and the Court’s analysis of whether the juvenile death penalty accomplished the goals and purposes of the punishment. A year later, the Court reexamined whether the death penalty should be available for 16- or 17-year- olds in Stanford v. Kentucky (1989). This time, the Court failed to find consensus in state statutes and held that the death penalty for these youths was not in violation of the Eighth Amendment. Surprisingly, the Court ignored all other measures of evolving commu- nity standards that were considered in Thompson. Making matters even more confusing, the Court did an about-face in 2005, finding the juvenile death penalty unconstitutional in Roper v. Simmons and determining that the community’s standards of decency had evolved to oppose executing juveniles of any age. Furthermore, relying on psychological research, the Court found that the juvenile death penalty did not sat- isfy the punishment goals of deterrence and retribution, due in part to juveniles’ immaturity and their inability to make rational judgments that consider the outcomes of committing violent crimes. Psychologists have contributed to these legal developments in two ways. First, they have conducted polls to measure community support for the juvenile death penalty. Second, they have conducted research testing the development of juveniles. Public Opinion Research The Supreme Court has sometimes referred to the results of public opinion polls measuring the “evolv- ing standards” of the community. Polls have shown changing support over time. Although 28% of respon- dents supported the juvenile death penalty in 1936, only 19% supported the punishment in 1953, and only 11% were supportive in 1957. Surprisingly, a 1965 poll reported 21% support for juvenile executions, despite declining public support for the death penalty in general. Demonstrating even more variability, a 1988 poll showed 44% support and a 1989 poll showed 57% support for juveniles over 16. At the same time, another 1989 poll found 25% to 30% sup- port for executing offenders as young as 14 years. More recently, a 2002 Gallup poll found 31% support for juvenile executions. Exhibiting regional differ- ences, a 1991 poll in the southeastern United States found that 64% supported executing juveniles aged 16 or over and 35% supported executing those under 16. Still, the level of support (83%) for executing adults was much higher. Support is not uniform, however, as Whites and con- servatives are typically more supportive of the death penalty in general than their counterparts. Similarly, participants who are older, male, White, and conserva- tive are more supportive of the juvenile death penalty. Despite this variability among polls, the trend indi- cates a general disfavor among respondents especially when it comes to executing juveniles as compared with executing adults. The Roper ruling did not rely on polling results; nevertheless, findings from this research do agree with the Court’s judgment that the juvenile death penalty now does offend the commu- nity’s evolving standards of decency. Research on Juvenile Development A second line of psychological research argues against executing juveniles because their limited developmen- tal judgment capacities mitigate their culpability. The American Psychological Association filed an amicus brief in the Roper case that referred to research demon- strating that juveniles are biologically, psychosocially, and cognitively less developed than adults. These dif- ferences suggest that the death penalty does not fulfill its purposes when the state invokes it against juveniles who commit homicide. It is not possible to deter juve- niles from committing homicide if they do not engage in a rational cost-benefit analysis before engaging in violence. As adolescents progress to adulthood, they develop capabilities, attention, information-processing skills, and memory, which makes them more reasoned decision makers. Some research suggests that older juveniles are similar to adults in their reasoning skills, at least when 442 ———Juveniles and the Death Penalty J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 442 tested in laboratory settings (e.g., participants imagine how they would react to hypothetical situations). However, critics argue that differences between adult and juvenile judgments are much more likely to emerge in real-world settings than in laboratories. Some researchers concluded that juveniles’psychoso- cial development remains immature even in later adoles- cence. As a result, juveniles are more susceptible to peer influence, are ineffective in weighing the risks and rewards of their behavior, have difficulties in reasoning about the long-term consequences of behavior, and have a lower capacity for self-management (e.g., impulse con- trol). These deficiencies affect their cost-benefit analysis, leading them to make immature decisions. A growing body of neuropsychological research has confirmed that juveniles differ from adults in important ways. For instance, recent research has indicated that the areas of the brain that control rea- soning (e.g., the prefrontal cortex) are the last to develop. As such, juveniles are less competent than adults, with less-developed capabilities for concentra- tion, control of impulsivity, self-monitoring, and deci- sion making. Because these areas of the brain are underdeveloped, juveniles rely more heavily on the amygdala, the area of the brain that processes emo- tions. Thus, juveniles are biologically different in ways that may decrease criminal culpability. In sum, the age at which an offender is legally eli- gible for the death penalty is 18. At least for now, the legal debate surrounding the juvenile death penalty is settled, due in part to the work of psychologists study- ing public opinion and the development of cognitive, emotional, and neurological capacities. Monica K. Miller and Richard L. Weiner See also Death Penalty; Mental Illness and the Death Penalty; Mental Retardation and the Death Penalty; Racial Bias and the Death Penalty; Religion and the Death Penalty Further Readings Boots, D. P., Heide, K. M., & Cochran, J. K. (2004). Death penalty support for special offender populations of legally convicted murderers: Juveniles, the mentally retarded and the mentally incompetent. Behavioral Sciences and the Law, 22, 223–238. Kalbeitzer, R., & Goldstein, N. E. S. (2006). Assessing the “evolving standards of decency”: Perceptions of capital punishment for juveniles. Behavioral Sciences and the Law, 24, 157–178. Roper v. Simmons, 543 U.S. 551 (2005). Stanford v. Kentucky, 492 U.S. 361 (1989). Steinberg, L, & Scott, E. S. (2003). Less guilty by reason of adolescence: Developmental immaturity, diminished responsibility, and the juvenile death penalty. American Psychologist, 58, 1–10. Thompson v. Oklahoma, 487 U.S. 815 (1988). Juveniles and the Death Penalty ———443 J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 443 FM-Cutler (Encyc) Vol-2-45463.qxd 11/18/2007 12:42 PM Page iii 445 L EGAL A UTHORITARIANISM In its broadest sense, legal authoritarianism refers to the constellation of beliefs held about the legal system that is relevant to juror decision making. Because jurors enter trials with preconceived notions about evidence, criminal conduct, and the criminal justice system in general, understanding these beliefs allows researchers to better understand how jurors process information and render decisions about the case. Furthermore, because one of the goals of the jury selection process and voir dire is to assess attitudes that individuals might hold that could affect their role as jurors, the study of juror attitudes is of great rele- vance to judges and trial attorneys, trial consultants, and researchers of jury decision making. Early Measures of Attitudes Relevant to Juror Decision Making Early attempts to measure attitudes relevant to juror decision making relied on measures generally not intended for those purposes. Some commonly used measures were internal or external locus of control, just-world beliefs, and authoritarianism. Of these con- structs, authoritarianism was the most frequently used in conjunction with juror decision making and had the most success in predicting juror judgments. Individuals scoring high on measures of authoritarian- ism express stereotyped beliefs toward out-groups, support conventional norms and authority, and advo- cate harsh sanctions against deviates. These beliefs have obvious implications to how one might react to evidence presented at trial. And, not surprisingly, measures of authoritarianism have been shown to have a weak but positive relation to juror verdicts. A meta-analysis revealed the average correlation between authoritarianism and verdicts to be .11. Measures of Legal Authoritarianism As noted, measures of authoritarianism such as the California F Scale contain items removed from a legal context. Yet these same themes present in authoritar- ian attitudes (e.g., the tendency to support and trust institutionalized authority, the willingness to advocate harsh sanctions against deviates) are telling features about how one views the legal system. It was noted at the outset that, broadly, any measures of legal atti- tudes are frequently termed legal authoritarian mea- sures. However, in a more narrow interpretation, because authoritarian beliefs are so central to how one views the criminal justice process, any measure of legal attitudes relevant to jury decision making must address these authoritarian themes to one extent or another. As a result, each of these existing measures of juror attitudes can be reasonably characterized as legal authoritarianism measures. Although it was not conceived as a measure of atti- tudes relevant to jury decision making, Herbert L. Packer’s identification of the due process and crime control model provides an early example of legal authoritarianism. Packer articulated these two per- spectives on the criminal justice system in the influ- ential 1968 text The Limits of the Criminal Sanction. These perspectives reflect a series of attitudes one holds surrounding the legal system that have important L L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 445 446 ———Legal Authoritarianism consequences about how one views a criminal trial. According to Packer, individuals who hold strong crime control values regard the control and reduction of criminal conduct as the primary goal of the crimi- nal justice system. To do so, one seeks efficiency in the criminal justice process to be maintained at all costs. They, therefore, tend to have greater confidence in law enforcement and other criminal justice actors to correctly and competently carry out their duties of apprehending and convicting criminals while acquit- ting the innocent. These individuals see the presump- tion of innocence and burden of proof as unwanted obstacles and encourage the power of institutionalized authority over the rights of the accused. Conversely, those holding due process values question the ability of the criminal justice system to properly carry out their duties in apprehending and trying offenders. They stress the rights of the accused, are fearful of innocent persons wrongfully convicted, and empha- size the importance of procedural safeguards in main- taining the integrity of the process, even at the expense of releasing persons who may be factually guilty. The crime control and due process models con- ceptually covary with legal authoritarianism. That is, those who place trust in the system and seek to appre- hend and punish wrongdoers at the expense of their liberties demonstrate authoritarian values, whereas those who question unfettered police powers and seek to maintain procedural safeguards to protect the rights of the accused demonstrate antiauthoritarian values. In the same year, Packer published his theory of the crime control and due process models, and Virginia Boehm published the Legal Attitudes Questionnaire (LAQ). The scale measures three constructs: authori- tarianism, antiauthoritarianism, and equalitarianism. This 30-item scale was grouped into 10 sets of triads, each containing a statement reflecting each construct. Participants rank ordered agreement with the statements within each triad. Authoritarian items expressed unquestioned support for authority and lim- its on the rights of the accused (e.g., “Evidence ille- gally obtained should be admissible in court if such evidence is the only way of obtaining a convic- tion.”). Antiauthoritarian items reflected beliefs that challenged authority and expressed the need for procedural safeguards to protect the accused (e.g., “Wiretapping by anyone and for any reason should be completely illegal.”). Equalitarian statements reflected neither authoritarian nor antiauthoritarian values, but instead reflected beliefs that fell some- where within these extremes (e.g., “Citizens need to be protected against excessive police power as well as against criminals.”). Researchers later developed the Revised Legal Attitudes Questionnaire (RLAQ) in an effort to improve the psychometric properties of the scale. Ranked agreement within the 10 triads was aban- doned in favor of Likert scoring for all 30 items. This led to a sizable reduction in items scored incorrectly. It also revealed some limits to the construct validity of the scale. For the RLAQ, significant negative correla- tions emerged for the authoritarian and equalitarian subscales, whereas the antiauthoritarian subscale failed to correlate with the others. Moreover, although the authoritarian subscale significantly positively corre- lated with a traditional measure of authoritarianism— the Balanced F Scale—it was scores on the equalitarian subscale and not the antiauthoritarian subscale that negatively correlated with this measure of authoritarianism. This finding suggested that equal- itarian items on the scale are better conceptualized as antiauthoritarian and vice versa. In 1983, Saul Kassin and Larry Wrightsman pub- lished the Juror Bias Scale (JBS). The goal was to cre- ate a measure of “generalized pretrial bias.” They noted that typical models of jury decision making assume that verdicts reflect two judgments—the likelihood that the defendant committed the crime charged, or probability of commission (PC), and a judgment of threshold nec- essary to convict, or reasonable doubt (RD). The authors surmised that jurors may differ along two theo- retically independent dimensions (i.e., PC and RD). The scale contains 9 PC items (e.g., “Generally, the police make an arrest only when they are sure about who committed the crime.”) and 8 RD items (e.g., “If a majority of the evidence—but not all of it—suggests that the defendant committed the crime, the jury should vote not guilty .”). Here again, these same elements of authoritarian beliefs (e.g., trust in authority) as well as antiauthoritarian beliefs (e.g., need for safeguards to protect the rights of citizens) emerge. Researchers, in developing the most recent mea- sure of juror attitudes—the Pretrial Juror Attitudes Questionnaire (PJAQ)—used a dual approach to item generation. Here, items were derived from a sample of participants in addition to using items present in existing scales. The initial pool of items was reduced to a man- ageable size based on a separate sample’s consensus that the items reflected attitudes that could bias a juror’s judgment in the case, along with factor analytic meth- ods. For the final 29-item scale, the separate constructs of cynicism and confidence reemerged, along with L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 446 additional constructs labeled social justice (e.g., “Rich individuals are almost never convicted of their crimes.”), racial bias (e.g., “Minority suspects are likely to be guilty more often than not.”), and innate criminality (e.g., “Once a criminal, always a criminal.”). Therefore, we see that even when relying on empirical means to generate items, constructs emerge that reflect these authoritarian and antiauthoritarian beliefs. Legal Authoritarianism Measures as Predictors of Individual Verdicts in Criminal Cases There have been multiple studies assessing the predic- tive validity of legal authoritarianism measures. A meta-analysis revealed that legal authoritarianism measures demonstrate an average effect size of r = .16. However, this correlation is somewhat reduced by the inclusion of studies that have used rape trial scenarios. Measures of legal authoritarianism appear to be poor predictors of verdicts in rape trials, and although researchers have offered some explanations as to why this might be, it has yet to be investigated. Moreover, many of the studies on which the analysis was conducted used college students and/or written tran- scripts and trial summaries. However, a general pat- tern is that as the ecological validity (in terms of sample used as well as presentation medium) of the study increases, so too does the relation between authoritarianism and verdicts. In a recent study comparing the predictive validity of the JBS, a shortened version of the Revised Legal Attitudes Questionnaire (RLAQ–23), and the PJAQ, researchers found that the JBS and RLAQ–23 com- bined were able to account for approximately 4% of the variance in guilt judgments. By comparison, the PJAQ by itself accounted for approximately 7% of the variance in guilt judgments. Consequently, when we speak of the value of these scales as a predictor of guilt judgments, the relation remains relatively modest. Moreover, this relation is further weakened as the evi- dence against the defendant becomes less equivocal. In other words, attitudes that one carries to trial can influ- ence final judgments, but evidence still provides the bulk of the explanation about how we decide cases. Of course, examining the beliefs jurors hold about issues relevant to the legal system and their final ver- dict in a case ignores myriad ways in which these beliefs might indirectly affect verdicts. That is, the attitudes jurors hold concerning trust in law enforce- ment, for example, can influence the weight they assign to evidence brought to trial from these sources (e.g., police searches, confessions), or their ability to recall certain facts, or the sources of evidence at a later time when deliberating over the case. Researchers are just beginning to grapple with these issues, but it highlights the potential for the study of pretrial atti- tudes in general, and specifically measures of legal authoritarianism, to aid our understanding of how jurors decide cases. Because it is well accepted that jurors are not immune to the biasing role that these attitudes likely play in their decisions, no model of juror decision making can be complete without accounting for these attitudes and the role they play in the decision-making process. While researchers are probably correct in warning that these measures of legal authoritarianism can only have limited applied impact, as judges tend to place strict limits on the use of questionnaires submitted to members of the venire, their greatest impact may likely lie in their potential for researchers to better understand the decision- making process of jurors. Bryan Myers See also Jury Selection; Scientific Jury Selection; Trial Consultant Training; Trial Consulting; Voir Dire Further Readings Kassin, S. M., & Wrightsman, L. S. (1983). The construction and validation of a juror bias scale. Journal of Research in Personality, 17, 423–442. Kravitz, D. A., Cutler, B. L., & Brock, P. (1993). Reliability and validity of the original and revised Legal Attitudes Questionnaire. Law and Human Behavior, 17, 661–667. Myers, B., & Lecci, L. (1998). Revising the factor structure of the Juror Bias Scale: A method for the empirical validation of theoretical constructs. Law and Human Behavior, 22, 239–256. Narby, D. J., Cutler, B. L., & Moran, G. (1993). A meta- analysis of the association between authoritarianism and jurors’ perceptions of defendant culpability. Journal of Applied Psychology, 78, 34–42. Packer, H. L. (1968). The limits of the criminal sanction. Stanford, CA: Stanford University Press. L EGAL N EGOTIATION Negotiation is extremely common in legal settings. In the criminal context, most cases are resolved through Legal Negotiation ———447 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 447 the plea bargaining process rather than through trials. Similarly, many more civil disputes are resolved by private settlement than go to trial. Transactional lawyers spend much of their time negotiating deals and contracts. In practice, lawyers will negotiate with opposing parties and their counsel, with insurers, with regulators, and with their own clients. Psychologists have studied negotiation in a variety of contexts, including negotiation as it occurs in the legal system. Research indicates that negotiation outcomes may be influenced by such factors as cognitive heuristics and biases, social perceptions, emotions, social influence, and the legal background of the negotiators. Basic negotiation theory holds that negotiation out- comes are a function of the negotiator’s reservation price, or bottom line. That is, negotiators will identify a point at which they would prefer to walk away from the negotiation without an agreement rather than accept terms that fall below that point. Where negotiators set this reservation price along a continuum of possible agreements is affected by their expectations about the outcomes that would likely result in the absence of a negotiated agreement. So, for example, a civil plaintiff’s reservation point (i.e., the lowest amount for which he or she would settle) is informed by his or her prediction about what would happen if the case was decided at trial. Similarly, a party negotiating a sales agreement on behalf of a buyer sets his or her reservation price (e.g., the highest price he or she would pay) in light of the availability and value of a possible agreement with an alternative contracting partner. Negotiators with more attractive predicted alternatives are likely to have higher reservation prices and to reach more favorable agree- ments. Negotiators have also been shown to be influ- enced by their aspirations, or goals, for the negotiation, with negotiators who set higher goals achieving more favorable agreements. At the same time, however, high reservation prices and aspirations have both been shown to lead to a higher likelihood of impasse (i.e., failure to reach a negotiated agreement) and to a decreased level of satisfaction with the same objective outcomes. Within this general framework, however, it is clear that negotiators are influenced by a number of addi- tional factors. Going beyond expected value theory, in which negotiation decisions are determined by a com- parison of the expected value of forgoing a negotiated agreement with the expected value of the proposed agreement, psychological research demonstrates that negotiation decision making is also affected by nego- tiators’ construal of and judgments about the other party or parties, the context, and themselves. Heuristics and Biases Legal negotiators, like other negotiators, can be influ- enced in their decision making by psychological heuristics or biases. For instance, legal negotiators on different sides of a dispute tend to make biased evalu- ations of the merits of the case such that their evalua- tions favor their side, overestimate their likelihood of prevailing at trial, and are more likely to believe that the fair outcome is one that favors their side. In part, this is because those who are exposed to only the information that is available to a particular side of a dispute tend to be optimistically overconfident—that is, to be more confident and less accurate in their pre- dictions of the likelihood that they will prevail than those who have information from both sides. Similarly, when they seek out additional information, negotiators exhibit the confirmatory bias as they seek and evaluate data in ways that are consistent with their already existing views. In addition, however, even when they have access to the same objective facts, negotiators often interpret those facts and make judg- ments about them in ways that are consistent with their own (or their clients’) interests—a manifestation of the self-serving (or egocentric) bias. Negotiators may also be influenced by anchors. Anchoring and adjustment refer to a phenomenon by which available values provide a starting point (or “anchor”) for a judgment; adjustments are then made away from the anchor, but these adjustments are often insufficient. In the legal context, anchors have been shown to influence settlement decision making in civil cases by anchoring negotiators’ evaluation of the appro- priate settlement amount. For example, the availability in memory of sizable verdicts that are reported in the media may anchor negotiators’ perceptions of a case’s potential settlement value. In addition, the first offer made in a settlement negotiation has been shown to influence the final negotiated agreement—the higher the opening offer, the higher the ultimate settlement. Similarly, research has found that disputants are more likely to agree to a particular final settlement amount when that final offer is preceded by a more extreme opening offer than they are when the offer is preceded by an opening offer that is only slightly different from the final offer. Because the initial offer anchors expectations about the appropriate settlement amount, the value of any concession is measured against those expectations. In addition, experimental research has demonstrated that negotiators can be influenced by contrast and com- promise effects as they generate and consider options 448 ———Legal Negotiation L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 448 for negotiated outcomes. Contrast effects occur when the options in an initial set are evaluated differently rel- ative to each other when an additional option is added that is similar, but inferior to one of the initial options, making that initial option appear relatively more attrac- tive. For example, a disputant involved in a dispute over a piece of property might consider selling the property and dividing the proceeds with the other party or allow- ing the other party to keep the property in exchange for a particular sum of money. When a third option is intro- duced, for example, allowing the other party to keep the property in exchange for the same sum of money, but paid over time—an option that is similar but inferior to the option involving a lump sum payment, more people are inclined to choose the lump sum payment option and fewer are inclined to sell the property and divide the pro- ceeds than in the absence of the additional option. Compromise effects, on the other hand, occur when an extreme option is introduced into the set of options under consideration. The introduction of an extreme value alters the range of options that are in the middle of the choice set. Because negotiators are more likely to choose an option when it appears to be a moderate choice, this shift in range tends to increase the attrac- tiveness of a choice that would have appeared extreme in the smaller set, but appears moderate in the presence of the additional, more extreme, option. For example, negotiators are more likely to enter into a land purchase contract when the property at issue is considered among a set of alternative properties that make it appear to be a compromise, or moderate, option. Thus, while it is useful for legal negotiators to actively generate cre- ative options for agreement, it is also useful for them to attend to the ways in which additional options affect their evaluation of existing alternatives. Finally, legal negotiators are also influenced by how the negotiation is framed. Prospect theory sug- gests that negotiators compare proposed outcomes with the status quo. When the negotiator’s choices are perceived as gains, the negotiator is likely to behave in a manner that is risk averse—thus, civil plaintiffs in ordinary litigation may be more inclined to settle. In contrast, when the negotiator’s choices are per- ceived as losses, the negotiator is likely to behave in a risk-seeking manner—thus, typical civil defendants may be more inclined to gamble on a trial. Social Factors Negotiations in legal settings are also influenced by a variety of social and interactional factors. For example, legal negotiation is influenced by the nego- tiators’ perceptions of fairness. Negotiators are con- cerned both with the distributive fairness of a negotiated outcome and with the procedural and inter- actional fairness of the negotiation process itself. Importantly, negotiators resist agreeing to substantive outcomes that do not comport with their notions of substantive fairness. Similarly, fair interpersonal treat- ment has been shown to diminish self-serving bias, reduce the likelihood of impasse, and increase satis- faction with substantive outcomes. Social factors can also influence the perceived fair- ness of a proposed settlement. For example, options that are otherwise perceived to be fair seem less so when proposed by the other side in the negotiation—a phenomenon known as reactive devaluation. Similarly, the negotiators on each side tend to value the conces- sions that they make (and thus are perceived as losses) more highly than they value those concessions that are made by the other side (and thus are perceived as gains). This “concession aversion” consequently influ- ences perceptions of the relative fairness of reciprocal concessions and of proposals offered by the parties. In some instances, legal negotiators may also be influenced by a need to restore or maintain a sense of equity between the parties or to achieve vindica- tion. T hus, they may reject compromises that seem inequitable, even when accepting them would be eco- nomically rational. Negotiators may also seek out ways to achieve a sense of equity or the acknowledg- ment of a harm. Thus, for example, apologies have been shown to influence legal settlement decision making. Research has shown that when a wrongdoer apologizes (particularly if the apology accepts respon- sibility for having caused harm), the injured party may make more favorable attributions about the opposing party and the incident, be less likely to seek legal counsel for assistance in pursuing a claim, set lower aspirations, find lower settlement values to be fair, be less likely to desire punishment, and be more likely to accept an offer of settlement than when the wrongdoer does not apologize. Influence Scholars of legal negotiation have also drawn on the psychology of influence and persuasion to better inform their understanding of negotiation strategies. In particular, legal negotiators may adhere to princi- ples of reciprocity when engaging in the back-and- forth concession making that characterizes most Legal Negotiation ———449 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 449 negotiation. The norm of reciprocity holds that when one negotiator makes a concession to the other, the other is obliged to respond in kind. Thus, a legal nego- tiator may elicit a concession from the other side by offering a concession of his or her own. Moreover, a legal negotiator might make an extreme demand that is likely to be rejected, followed by a more moderate request—the moderation of the request may be per- ceived as a concession and, thus, may elicit a recipro- cal concession. In psychology, this is known as the “rejection-then-retreat” strategy. Legal negotiators may also invoke authority, scarcity, social proof, or familiarity and liking as strategies of social influence in negotiation. Emotion Legal disputes can involve intense emotions, such as anger, and such emotions are known to play a central role in negotiation. Negotiators experiencing positive emotions tend to make more concessions and to be more likely to engage in problem-solving behavior. Conversely, negotiators experiencing negative emo- tion tend to be more likely to use hard-bargaining strategies and less likely to create joint gain. One specific emotion that has been explored in the legal context is the role of regret in legal negotiation. Research has found that disputants may prefer to reach negotiated settlements in legal cases rather than go to trial, in part due to a desire to minimize the regret they anticipate experiencing following their decision. Disputants who choose to settle are not able to know what the outcome of their case would have been had it gone to trial and are, thus, able to avoid the regret that would attend the knowledge that a trial would have resulted in a better outcome. In contrast, disputants who choose to go to trial will ultimately be aware not only of the outcome of the trial but also of any settlement offers they had rejected. Therefore, it is possible that they will experience the regret of know- ing that they could have obtained a better result through settlement—regret they would prefer to avoid. Agents/Lawyers One of the distinctive features of much legal negotia- tion is that the principal parties—the legal clients—are often represented by attorneys as agents. As agents, attorneys are likely to engage in settlement negotia- tions in ways that differ from those of their clients. For example, as nonparties, attorneys can be more detached from the emotions underlying the dispute. Similarly, attorneys are selected and trained to be highly analytical. Moreover, given their role as legal advisors, attorneys are likely to be more familiar with and attuned to the legal rules than are their clients. These differences give attorneys some advantages in handling legal disputes. For example, attorneys may be able to avoid the impasse that might result when the parties are too emotional to negotiate with each other. However, these differences also present attorneys with some challenges in representing clients in negotiation. For example, attorneys may need to pay special atten- tion to clients’ nonlegal psychological, emotional, and social interests to negotiate effectively on their behalf. Jennifer K. Robbennolt See also Alternative Dispute Resolution; Plea Bargaining; Procedural Justice Further Readings Birke, R., & Fox, C. R. (1999). Psychological principles in negotiating civil settlements. Harvard Negotiation Law Review, 4, 1. Korobkin, R., & Guthrie, C. (1997). Psychology, economics, and settlement: A new look at the role of the lawyer. Texas Law Review, 76, 77–141. Loewenstein, G., Issacharoff, S., Camerer, C., & Babcock, L. (1993). Self-serving assessments of fairness and pretrial bargaining. Journal of Legal Studies, 22, 135–159. Ross, L., & Ward, A. (1995). Psychological barriers to dispute resolution. Advances in Experimental Social Psychology, 27, 255–304. Schneider, A. K., & Honeyman, C. (Eds.). (2006). The negotiator’s fieldbook: The desk reference for the experienced. Washington, DC: American Bar Association Section of Dispute Resolution. L EGAL S OCIALIZATION Legal socialization is the process of developing atti- tudes toward rules, laws, and the legal system. Legal socialization research studies this process and also examines why individuals choose to obey or disobey the law. In fact, the first approaches to studies of atti- tudes toward the law appear in the legal socialization literature. Factors that affect how these attitudes develop include cognitive developmental variables, such as legal reasoning, and social learning variables, 450 ———Legal Socialization L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 450 such as salient features of the environment. Other fac- tors that need to be considered are resiliency, psy- chosocial maturity, individual difference variables (e.g., belief in a just world, authoritarianism), culture, and attitudes. Contemporary work on legal socializa- tion has focused on the effect of legal socialization on rule-violating behavior and compliance with the rules. Socialization itself connects individuals to society, as socialization operates through family, schools, and other institutions. The study of socialization attempts to elucidate how individuals become engaged in cul- ture and how culture and its affiliated institutions are preserved. Legal socialization is the development of standards, attitudes, and behaviors regarding the legal system. The legal socialization literature also under- scores how legal contexts influence and are influenced by citizen behaviors. Two Theoretical Approaches Two approaches exist in the legal socialization litera- ture. The individual-oriented cognitive developmental perspective argues for the importance of cognitive dif- ferences in legal socializa tion. The en vironment-based social learning perspective investigates environmental influences on legal socialization. C C o o g g n n i i t t i i v v e e D D e e v v e e l l o o p p m m e e n n t t T T h h e e o o r r y y The earliest work on legal socialization was that of June Tapp and Felice Levine. In the 1970s, they approached the understanding of legal socialization from a cognitive developmental framework based on the moral reasoning work of Lawrence Kohlberg. They argued that one’s level of legal reasoning varied based on one’s age, with cognitive structures supporting the maturation from Levels I through III: Level I, precon- ventional reasoning, focuses on obeying rules based on obedience to authority and fear of punishment from authorities. Level II, conventional reasoning, empha- sizes law maintenance or obeying rules to conform to the norms of society. Finally, Level III, postconven- tional reasoning, focuses on law creating, or obeying rules based on independent judgments of fairness. S S o o c c i i a a l l L L e e a a r r n n i i n n g g T T h h e e o o r r y y Other researchers expanded the original cognitive developmental notion of legal socialization to include factors in the environment that affect social learning. This view suggests that it is through an individual’s interaction with the environment that legal socializa- tion occurs. With age, individuals are exposed to increasingly expansive legal contexts. In environmen- tal contexts (neighborhood, school, etc.), reward and punishment are doled out both formally (based on written law) and informally (peers, family, school). When punishment is fair and even, legal legitimacy is strengthened; whereas when punishment is capricious or inequitable, it contributes to legal cynicism. Legitimacy is the degree to which people feel obli- gated to follow the laws or rules established by legal authorities. Legal cynicism measures whether people act in ways that are outside the law and social norms. Legal socialization researchers also have varied in their conceptualizations of environment. For example, in a study of rule following on college campuses, Ellen Cohn and Susan White manipulated the rule- following environment by including a peer commu- nity wherein residents established rules and decided on enforcement and an external authority community wherein residents had no say over rules or enforce- ment and instead authorities had absolute power. In an international study of legal socialization, other researchers defined environment in terms of country, focusing on seven countries that varied in the extent of time they had been democratized: Russia, Bulgaria, Poland, Hungary, Spain, France, and the United States. Similarly, James Finckenauer also used coun- try as the environment in his comparison of Russian versus American culture for teenagers. Research Current research has embodied both the individualistic cognitive development and the social learning view- points. This work has examined the developmental aspects of legal socialization; gender, environmental, and cultural differences in legal socialization; as well as the relation between legal reasoning and delinquency. D D e e v v e e l l o o p p m m e e n n t t a a l l D D i i f f f f e e r r e e n n c c e e s s In Felice Levine’s legal socialization research, ele- mentary and high school students answered questions about legal reasoning, moral reasoning, legal atti- tudes, and legal behaviors. There was a significant relation between subjects’ age and their level of legal and moral reasoning; students in high school had sig- nificantly higher moral reasoning scores than elemen- tary students. In addition, legal and moral reasoning had a direct influence on attitudes about roles and Legal Socialization ———451 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 451 rights and mediated the effect of age but did not influ- ence attitudes about compliance independent of age. G G e e n n d d e e r r D D i i f f f f e e r r e e n n c c e e s s The one piece of research that did find gender differences in predictions of rule-violating behavior was work that used a legitimacy measure of atti- tudes toward the criminal legal system. The partici- pants in this study were high school students. They answered questions about attitudes toward the crim- inal legal system, belief in a just world, and author- itarianism. It was found that, for boys, negative attitudes toward the legal system were the sole sig- nificant predictor of delinquent behaviors. In con- trast, for girls, negative attitudes toward the legal system mediated the negative relation between belief in a just world and delinquency and partially mediated the negative relation between authoritari- anism and delinquency. E E n n v v i i r r o o n n m m e e n n t t a a l l D D i i f f f f e e r r e e n n c c e e s s Some researchers have focused on the environ- ment or the behavioral context. In one study, researchers manipulated the legal contexts within two different university dormitories. The external authority condi- tion allowed no input or influence on rule enforce- ment, whereas in the peer community condition, dorm residents participated in the making of rules and ensuing disciplinary action. Results suggested that the individuals in the external authority condition violated fewer rules than individuals in the peer com- munity condition. Over time, however, rule-violating behavior decreased in the peer community condition and increased in the external authority condition. Furthermore, legal reasoning increased in the peer community condition and decreased in the external authority condition. Some researchers have found that jury deliberation has an effect on people who differ in the level of legal reasoning. In a study of a highly politicized and pub- licized case known as the Wounded Knee Trial, June Tapp and her associates investigated the hypothesis that the jury acts as a socializing agent. The researchers tested legal reasoning levels before and after partici- pants served as jury members in the trial. Results showed that legal reasoning levels increased for the jury participants. In another study, people who differed in their legal reasoning level deliberated about one of three legal cases that varied in the behavioral context of the relation between norms and rules. In one case of a physical assault, the norms concerning the behavior agreed with the rules; people did not approve of the behavior and agreed with the rule against the behav- ior. In another case, that of a beer-bottle-throwing game, the norm and the rule did not agree; people approved of the behavior and did not agree with the rule against it. Finally, in the last case of sexual harassment, people were divided. For some, the norm and the rule agreed; for others, the norm and the rule did not agree. The findings showed that the jury deliberations affected postconventional reasoners most with the physical assault case and preconven- tional reasoners most with the sexual harassment case. Conventional reasoners were not affected by the jury deliberation in any of the cases. C C u u l l t t u u r r a a l l D D i i f f f f e e r r e e n n c c e e s s Researchers have studied legal socialization in a number of different countries. In one study, legal socialization was studied as a mediator of rule-violating behavior. In this study, Heath Grant examined legal reasoning as a form of resilience in Mexican youth and found that legal reasoning mediated the relation between risk factors (such as negative peer influence) and delinquency. In another study, juveniles in Russia were compared with juveniles in the United States to understand different legal contexts. Overall, there were no differences between Russian and American youth in legal reasoning. Furthermore, differences in legal socialization have been measured in seven countries, three older democ- racies (the United States, France, and Spain) and four countries more recently democratized (Russia, Bulgaria, Poland, and Hungary). The countries did not differ in the level of legal reasoning. They did differ on other legal measures such as procedural and dis- tributive justice, with procedural justice being more important in the older democracies and distributive justice more important in the newer democracies. L L e e g g a a l l R R e e a a s s o o n n i i n n g g a a n n d d D D e e l l i i n n q q u u e e n n c c y y A few studies have inv estigated the r elation between legal reasoning and delinquency. In a com parison of 452 ———Legal Socialization L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 452 Russian and U.S. youth, delinquents reported lower levels of legal reasoning than nondelinquents. This finding was replicated in an American study of college students. In a study of serious juvenile offenders, Alex Piquero and colleagues investigated the developmental course of two aspects of legal socialization: legitimacy and legal cynicism. They found that both factors remained relatively stable for more than 18 months. The researchers also found that older adolescents viewed the law as less legitimate than younger adoles- cents and that a greater number of prior arrests was associated with greater legal cynicism. Conversely, Tom Tyler and Jeffrey Fagan’s cross-sectional research on children aged 10 to 16 years did find age differences, with legal cynicism increasing with age and legitimacy dissipating with age. Measures of Legal Socialization Researchers have measured legal socialization differ- ently. Early researchers developed open-ended ques- tions about legal reasoning that are coded into the three levels. More recently, investigators have devel- oped a closed-ended version of the legal reasoning measure. In addition, some researchers have included measures of legitimacy and legal cynicism as mea- sures of legal socialization or have asked about spe- cific attitudes toward the legal system. Ellen S. Cohn and Kathryn L. Modecki See also Jury Deliberation; Juvenile Offenders; Juvenile Offenders, Risk Factors; Legal Authoritarianism; Public Opinion About the Courts Further Readings Cohn, E. S., & Modecki, K. L. (2007). Gender differences in predictors of delinquent behavior: The role of personality and attitudes. Social Behavior and Personality: International Journal, 35, 359–374. Cohn, E. S., & White, S. O. (1990). Legal socialization: A study of rules and norms. New York: Springer-Verlag. Cohn, E. S., & White, S. O. (1997). Legal socialization effects on democratization. International Social Science Journal: Special Issue on Democratization, 152, 151–171. Fagan, J., & Tyler, T. (2005). Legal socialization of children and adolescents. Social Justice Research, 18, 217–242. Piquero, A., Fagan, J., Mulvey, E. P., Steinberg, L., & Odgers, C. (2005). Developmental trajectories of legal socialization among serious adolescent offenders. Journal of Criminal Law and Criminology, 96, 267–298. L ENIENCY B IAS It is well established that if a verdict option is favored by a substantial (e.g., two-thirds) majority of jurors prior to deliberation, the jury is very likely to ultimately reach that verdict. A number of studies have suggested the following qualification to this simple rule—in crim- inal juries, pro-acquittal factions tend to be more influ- ential than proconviction factions of comparable size. The net effect of this asymmetry is a tendency for juries to be more lenient than individual jurors, except for cases that produce a large majority of jurors for convic- tion. This tendency constitutes the leniency bias. Evidence for the Leniency Bias The initial and strongest evidence for this bias comes from a number of jury simulation studies. Robert MacCoun and Norbert Kerr meta-analytically com- bined the results of 13 such studies and reported that (a) on average, acquittal was about four times as likely as conviction for mock juries that began deliberation evenly split (e.g., 6 G vs. 6 NG); (b) an initial two- thirds majority favoring acquittal was more likely to ultimately prevail (94% of the time, on average) than a two-thirds majority favoring conviction (67% of the time); and © the stronger the evidence against a defendant, the weaker was this bias. On the other hand, a handful of surveys of ex-jurors from actual criminal jury trials (e.g., by Dennis Devine and his colleagues) have suggested either no such asymmetry or even the reverse effect (i.e., a harshness bias), but at present it remains unclear whether or not actual criminal juries do exhibit a leniency bias. This is because there are a number of potentially important methodological ambi- guities clouding the comparisons of the mock versus actual juries. For example, the surveys of actual jurors all appear to have treated jurors who say that they are undecided at the first jury vote as advocates for acquit- tal, which is likely to overestimate the true size of the pro-acquittal faction in the jury. In summary, there is good evidence of a leniency bias in mock juries where Leniency Bias ———453 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 453 estimates of pro- and anticonviction faction sizes are based on direct assessment of mock jurors’ predeliber- ation verdict preferences in relatively close cases. There is currently no strong evidence of such a bias (and some evidence to the contrary) where these esti- mates are based on ex-jurors’ retrospective recollec- tions of the number of proconviction votes at their actual jury’s first ballot, in convenience samples of diverse cases. Explaining the Leniency Bias One explanation for the leniency bias is the existence of a prodefendant norm among jurors. Research on group decision making and polariza- tion suggests that one effect of group deliberation is to increase commitment to shared norms. The more consistent evidence for a leniency bias among mock jurors, who are usually college students, than among actual jurors could be interpreted as reflecting different norms in the student and nonstudent populations. A direct comparison of the leniency bias for a student versus a nonstudent sample has shown that nonstudents exhibit a somewhat weaker leniency effect, but the difference was not statisti- cally significant. Another, related explanation is based on the com- mon law’s aversion to false conviction. Such values are reflected in several elements of the law, includ- ing the presumption of innocence, the prosecution’s burden of proof, and particularly the reasonable- doubt standard of proof. The law prescribes that juries must give a criminal defendant the benefit of any reasonable doubt. This should give advocates of acquittal an advantage over advocates of conviction during jury deliberation. For example, jurors favor- ing acquittal need only raise a single reasonable doubt in the minds of proconviction jurors, whereas jurors arguing for conviction must refute all reason- able doubts in the minds of pro-acquittal jurors. This explanation predicts that there should be no leniency bias when jurors apply a standard of proof that is not slanted to favor the defendant, such as the “preponderance of evidence” standard used in civil trials; this prediction has been confirmed experi- mentally. A model presented by Norbert Kerr, Robert MacCoun, and Geoffrey Kramer general- izes the asymmetry effect, demonstrating how any shared local norm can create disproportionate influ- ence for one side of an issue. Implications of the Leniency Bias The leniency bias has a number of interesting impli- cations, both for the development of psychological theory and for legal application. Asymmetries in the power of opposing factions, such as the leniency bias, have been used to analyze the group decision-making process and thereby, to better understand exceptions to the “majority-wins” rule and to predict when and why groups differ from individuals in their suscepti- bility to a variety of judgmental biases. The most direct applied implication of the leniency bias is that, except for cases with very strong evidence against the defendant, deliberating juries should be more likely to acquit than individual triers of fact (e.g., a judge in a bench trial). Thus, the leniency bias provides an alter- native explanation for a classic finding from the land- mark product of the Chicago Jury Project, The American Jury —most verdict disagreements between juries and judges were instances in which the jury was more lenient (i.e., more likely to acquit) than the judge. Harry Kalven and Hans Zeisel attributed this to differences in what judges and jurors value or know (e.g., knowledge of prior convictions). But the leniency bias suggests that this effect may stem not from who makes the decision (judges vs. jurors) but from how the decision is made (i.e., individual vs. group decision making). This interpretation suggests that if panels of judges were the triers of fact, they would likewise tend to be overall more lenient than individual judges. The fact that, in The American Jury, there was no such asymmetry in the disagreements of judges and juries for civil cases (where a symmetric standard of proof is applied) further supports this interpretation. Norbert L. Kerr and Robert J. MacCoun See also Chicago Jury Project; Juries and Judges’ Instructions; Jury Decisions Versus Judges’ Decisions; Jury Deliberation Further Readings Devine, D. J., Olafson, K. M., Jarvis, L. L., Bott, J. P., Clayton, L. D., & Wolfe, J. (2004). Explaining jury verdicts: Is leniency bias for real? Journal of Applied Social Psychology, 34 (10), 2069–2098. Kerr, N. L., MacCoun, R., & Kramer, G. P. (1996). Bias in judgment: Comparing individuals and groups. Psychological Review, 103, 687–719. 454 ———Leniency Bias L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 454 MacCoun, R. J., & Kerr, N. L. (1988). Asymmetric influence in mock jury deliberation: Jurors’ bias for leniency. Journal of Personality and Social Psychology, 54, 21–33. L INEUP F ILLER S ELECTION Lineup fillers prevent unreliable witnesses from guessing the identity of the police suspect and should allow for a fair recognition test for those witnesses who do remember the culprit. The primary strategies for selecting fillers for criminal identification lineups are presented in this entry. The suspect-matched and perpetrator-description-matched strategies are two methods of constructing lineups that have been com- pared by researchers. Additionally, care should be taken to ensure that the structure of the lineup is uni- form across members. To assess the fairness of a lineup, several indices that measure lineup bias and lineup size have been developed. The Function of Lineup Fillers Lineup fillers, also known as foils (an innocent person in a police lineup), serve the major purpose of testing an eyewitness’s recognition memory for a criminal perpetrator so as to establish evidence that the suspect is guilty of the crime. Fillers also serve to screen out unreliable witnesses: Witnesses who identify foils may have a weak memory for the perpetrator or may be guessing. With respect to the problem of guessing, the probability that a witness will select the suspect from a lineup based on chance alone equals 1/ k , where k equals the number of foils in the lineup. Having more options during the identification test decreases the probability that witnesses will identify the suspect by guessing alone. Additionally, presenting foils that resemble the suspect works toward preventing the wit- ness from being able to deduce who the suspect is sim- ply by eliminating improbable choices from the lineup. Filler Selection Strategies There are two primary filler selection strategies that have been investigated by researchers. First, foils may be selected for the lineup on the basis of their similarity to the physical appearance of the suspect, a procedure that is known as the suspect-matched strategy. Second, foils may be selected based on their resemblance to a physical description of the perpetrator given by the eye- witness, a procedure that is termed the perpetrator- description-matched strategy. Two main concerns arise when foils are selected for the lineup on the basis of the suspect-matched strategy. First, if the suspect is not the culprit and is in fact inno- cent, then selecting the foils based on their match to the innocent suspect may result in a lineup in which the similarity of the foils to the perpetrator is low. This is a concern in cases in which the suspect is apprehended because he or she is physically similar to the descrip- tion of the culprit given by an eyewitness. In such cases, the suspect may be the only one in the lineup that resembles the perpetrator. As a result, the innocent sus- pect might be frequently identified from lineups in which the foils are chosen on the basis of their match to the innocent suspect’s appearance, a consequence that is known as the backfire effect. Another concern that arises when the foils are chosen for the lineup using the suspect-matched strategy is that if the suspect is in fact the culprit, then the foils could potentially be too simi- lar to the suspect, and thereby decrease the odds that a witness who remembers the perpetrator can distinguish the guilty suspect from the foils. In view of these concerns, the perpetrator-description- matched strategy has been proposed. In the event that an innocent suspect is in the lineup, the perpetrator- description-matched strategy is thought to ensure that the innocent suspect and the foils have the same proba- bility of being chosen. The rationale is that if investiga- tors select the foils and the suspect for the lineup using the same criteria (i.e., their match to the witness’s description), then the foils should look no more like the perpetrator than does the innocent suspect. Additionally, for a witness who remembers the perpe- trator, the perpetrator-description-matched strategy allows for propitious heterogeneity , a term that refers to having sufficient variability across lineup members to allow the witness to recognize a guilty suspect. Some researchers studying lineup identification in the laboratory employ a hybrid of the suspect- matched and perpetrator-description-matched strate- gies. A pool of potential foils that fit the modal description of the target (i.e., the “perpetrator”) is obtained. Participant raters then judge the similarity of each face in the pool to the target. The faces that are rated as being the most similar to the target are selected as fillers. An additional method on the hori- zon for the selection of fillers for lineups is the use of principal components analysis (PCA). PCA represents Lineup Filler Selection ———455 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 455 the similarity of faces on multiple dimensions using Euclidean distances. Results derived from PCA have been shown to relate to lineup identification perfor- mance and to measures of lineup fairness. Special Considerations in Selecting Fillers In employing the perpetrator-description-matched strategy to select fillers, a number of issues may arise. One difficulty is that the witness may provide an inad- equate number of details regarding the perpetrator’s appearance for selecting fillers for

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the lineup. Selecting foils when there is little information regarding the cul- prit’s appearance may result in a lineup in which the members are highly dissimilar in relation to one another and to the suspect. As a consequence, the per- petrator-description-matched strategy might in some cases increase the rate at which innocent suspects are identified. Additionally, the degree to which the lineup members are similar can affect the eyewitness’s decision standard. If the foils in the lineup are rela- tively low in their similarity to the culprit, then wit- nesses may be less cautious in identifying a face compared to when there is a higher degree of similarity across lineup members. Finally, research comparing the suspect-matc hed and perpetrator-description-matched strategies has produced findings that are mixed, thereby leading some researchers to maintain that it is premature to recommend one strategy over the other at this time. Nevertheless, additional procedural safeguards have been suggested for selecting fillers when using the perpetrator-description-matched strategy. For example, if the witness does not mention a character- istic, such as facial hair, the police might assume the perpetrator has the default value of the characteristic, and assume that the perpetrator was clean shaven. Though placing the clean-shaven suspect among foils with facial hair would not violate the witness’s description, doing so would draw attention toward the suspect and perhaps bias the witness to choose the suspect only because the suspect’s appearance is dif- ferent from the others. Therefore, to avoid this possi- bility, if the suspect is clean shaven, then he should be placed among clean-shaven foils. Additionally, when the suspect does not fit the description given by the eyewitness on some level, it has been recommended that investigators select foils based on their match to the appearance of the suspect on the features in which the description of the culprit does not match the sus- pect. Along these same lines, if there are multiple wit- nesses involved in a case, a recommendation that has been made is to create a separate lineup for each eye- witness. In laboratory studies in which researchers feel that it is not feasible to create lineups for each participant, the foils can be selected based on their match to the typical or modal description given by research participants viewing the suspect. Finally, care should be taken to ensure that the arrangement of the lineup is uniform. The pho- tographs themselves should be similar and presented to witnesses in a standardized fashion. For example, if one photograph is slightly tilted away, or the focal length is greater, or the facial expression differs from the others, responses may be biased toward that pho- tograph simply because it stands apart from the others in its presentation. Additionally, uniformity across members with respect to clothing should also be achieved. Moreover, if the eyewitness describes the perpetrator as wearing a particular type of clothing, the suspect should not be the only one wearing that type of clothing in the lineup. Assessing Lineup Fairness Researchers use the mock-witness procedure to deter- mine lineup fairness, or the adequacy of lineup fillers. In the mock-witness procedure, participants who have not seen the perpetrator are given a description of the perpetrator along with a lineup. They are asked to pick the member of the lineup that most closely resembles the perpetrator’s description. If the lineup is fair, then mock witnesses should not select the suspect at a rate significantly above chance. Mock-witness choices can also be used to deter- mine whether the fillers that have been selected for the lineup bias choices toward or away from the suspect. Bias measures include functional size and defendant bias. Mock-witness choices are also used to determine lineup size, which refers to the extent to which identi- fication responses are distributed evenly across lineup members. Measures designed to examine lineup size include effective size, number of acceptable foils, and Tredoux’s E . Lineup bias and size can vary depending on how the members of the lineup are arranged. For instance, if the suspect is placed between two foils that are low in similarity relative to the suspect, the suspect may “pop out” and hence be chosen significantly more 456 ———Lineup Filler Selection L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 456 often than when the suspect is placed between two other lineup members that have a greater resemblance to the suspect. This problem may arise even when the average pairwise similarity rating across the lineup members is high. Therefore, it is important that the foils are selected for the lineup using the same crite- ria. Another method for circumventing possible popout effects is for researchers to systematically rotate, or counterbalance, the position of the suspect in the lineup across participants. Counterbalancing the position of the suspect in the lineup also controls for the possibility that the decision standard varies along with the number of faces that are viewed. This may be problematic espe- cially in sequential lineups, in which the witness views each face one at a time. In particular, there is some evidence that the decision standard that wit- nesses use in making a positive identification may be lowered as they progress through the series of faces in a sequential lineup. As such, innocent suspects might have a higher probability of being chosen if they are positioned later in the sequence, as opposed to earlier. Heather D. Flowe See also Clothing Bias in Identification Procedures; Facial Composites; Identification Tests, Best Practices in; Lineup Size and Bias; Mug Shots; Popout Effect in Eyewitness Identification; Simultaneous and Sequential Lineup Presentation; Wrongful Conviction Further Readings Gonzalez, R., Davis, J., & Ellsworth, P. C. (1995). Who should stand next to the suspect? Problems in the assessment of lineup fairness. Journal of Applied Psychology, 80 (4), 525–531. McQuiston, D. E., & Malpass, R. S. (2002). Validity of the mockwitness paradigm: Testing the assumptions. Law and Human Behavior, 26 (4), 439–453. Tredoux, C. (2002). A direct measure of facial similarity and its relation to human similarity perceptions. Journal of Experimental Psychology: Applied, 8 (3), 180–193. Tunnicliff, J. L., & Clark, S. E. (2000). Selecting foils for identification lineups: Matching suspects or descriptions? Law and Human Behavior, 24 (2), 231–258. Wells, G. L., Rydell, S. M., & Seelau, E. P. (1993). The selection of distractors for eyewitness lineups. Journal of Applied Psychology, 78 (5), 835–844. L INEUP S IZE AND B IAS A lineup is constructed by placing a person suspected of committing a crime (the suspect) among a collec- tion of innocent people (fillers). An eyewitness is asked to identify the offender from this collection, with a suitable admonition that the offender may not be present. A properly conducted lineup can provide evidence that the suspect is (or is not) the offender or that the eyewitness does not have a reliable memory of the offender’s identity. For this to be the case the lineup must not be biased and it must be of sufficient effective size . A lineup is biased when a witness with a poor (or absent) memory is able to guess the identity of the suspect at a rate greater than chance expectation (one per lineup size). A lineup has a certain number of members, including the suspect, and this is called the nominal size. A lineup is unfair to the extent that it contains fillers who are not plausible choice alterna- tives to the suspect for a witness choosing randomly or a witness with a poor (or absent) memory. The sus- pect plus the number of persons who are alternative- choice alternatives is called the lineup’s effective size. Two basic rules govern the construction of eyewit- ness identification lineups. First, the suspect in the lineup should not “stand out” (be inappropriately dis- tinct) from the other lineup members. Second, fillers should resemble the suspect in important attributes and should be appropriate-choice alternatives (i.e., witnesses who have a poor memory of the offender should not be able to reject them). Lineup Fairness Evaluation To determine whether the two basic rules have been adhered to, lineup evaluation research participants who have not seen the offender are asked to guess which lineup member is the suspect on the basis of a brief physical description (e.g., the description origi- nally given by the witness to the police) or with no information at all about the appearance of the offender. Lineup Bias Bias is bidirectional—it can make the suspect more likely, or less likely, to be chosen by a witness who has no or very little specific memory of the offender. It is defined as a statistically reliable tendency for a Lineup Size and Bias ———457 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 457 suspect to be chosen from a lineup at a rate different from that expected if the choice were made by chance alone (i.e., a random pick of a lineup member). The proportion of lineup evaluation research participants able to pick the suspect from the lineup is a measure of lineup bias. Lineup Size Nominal size is the number of persons presented in a lineup. Effective size, as noted earlier, is the number of persons in the lineup who are effective choice alter- natives for a witness who has little information or memory about the actual offender or for a witness viewing a lineup in which the suspect is actually inno- cent (i.e., is not the offender). It is thought of as a reduction of the nominal size to a value that better rep- resents the “true” number of plausible foils, or inno- cent persons in a police lineup (i.e., nominal size ≥ effective size). The index E, is a measure of the effec- tive size of a lineup. Role of Lineups in the Criminal Justice System One purpose of having fillers in a lineup is to provide alternative choices for witnesses who feel that they must choose someone from the lineup but who may have little memory for the offender’s actual appearance. When the witness feels compelled to make a choice, the presence of the fillers provides a safeguard against false identification by reducing the chance of false identifi- cation of an innocent suspect from 100% to 20% (for live lineups, which often have five members) or 16.67% (photo spreads, which often have six members). Another purpose of having fillers in a lineup is to test the witness’s memory for the perpetrator, although it must be said that the interpretation of this test is confounded. To see this, consider that a witness can make several choices when faced with a lineup. The witness can identify the suspect, identify a foil, say that the offender is not in the lineup, or say that he or she does not know whether the offender is in the lineup. If the witness identifies the suspect, we are likely to strengthen our belief that the suspect is the offender. If the witness identifies a foil, we are likely to either strengthen our belief that the witness has a poor memory or weaken our belief that the suspect is the offender. If the witness rejects the lineup, we may weaken our belief that the suspect is the offender, but if the witness does this with little confidence we will not know whether to weaken our belief that the sus- pect is the offender or to weaken our belief in the wit- ness’s memory. In all these cases, the inference(s) made are conditional on the fairness (size and bias) of the lineup. For example, a witness with no memory of the offender could choose the suspect from a biased or low-effective-size lineup with comparative ease. Good and Bad Lineups To fulfill their purpose, eyewitness identification line- ups must not contain cues to the identity of the police suspect. For example, in one criminal case a (White) witness described the (Black) offender as possessing, among other attributes, “long hair in some kind of braids, a single row of braids that were coming loose.” The lineup contained one person whose thin braids were visible, coming loose, behind his head. This per- son was the police suspect. It is not surprising that the witness identified him, as did 95% of lineup evalua- tion research participants. Since it remains ambiguous whether the basis for the identification was a genuine memory for the suspect from the criminal event or the fact that his photograph in the lineup contained a fea- ture found in the witness’s previous verbal descrip- tion, it is not possible to reach a clear conclusion about whether or not the suspect is the offender. There are two difficulties with this lineup. First, the suspect photograph stood out from the remaining pho- tographs of the lineup because it was the only photo- graph that displayed thin braids that were coming loose, so that the lineup was biased against the suspect. Second, the fillers were chosen without regard to this highly distinctive feature. For this reason, the lineup had an effective size of only one, because without “braids, coming loose,” none of the fillers in the lineup were a useful alternative-choice option for the suspect. The fillers might as well not have been present at all. In another criminal case, a witness gave a descrip- tion that included the phrase “small, squinted eyes.” The photograph of the suspect used in the lineup showed him blinking. When the lineup was evaluated it was found that the suspect stood out dramatically in the lineup and that three of the fillers were hardly choice alternatives at all. The police had two alterna- tive photographs of the suspect in which he had not blinked while being photographed. When one of these was substituted, the lineup was not biased against him. In addition, two other lineup members were 458 ———Lineup Size and Bias L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 458 more likely to be identified by mock witnesses. The choice of photograph of the suspect, as well as the choice of filler photographs, is important when con- structing a lineup. Constructing Good Lineups The general qualities of a good lineup are noted above: The suspect should not stand out, and the fillers should be effective choice alternatives to the suspect. Achieving this ideal requires careful attention to details. • If the witness(s) has provided a description of the offender that has a reasonable amount of detail, a lineup can be formed using this description, provided that the description matches that of the suspect. • If the witness’s description of the offender is either impoverished or does not fit the suspect, then the lineup must be constructed to match the suspect’s appearance. Normally, the investigator would begin with the photo of the suspect that will appear in the lineup and, using whatever photographic archive available, find filler photographs that are sufficiently similar to the suspect for them to serve as effective choice alter- natives. There are, however, some cautions to be observed. First, if the suspect and investigator are of different racial groups, an investigator of the same racial group as the suspect should be asked to construct the lineup. Second, the procedure of attempting to find five fillers who resemble the suspect can lead to a lineup in which the suspect stands out because he is the one person in the lineup who shares the most with each of its members: He becomes the prototype of the lineup and is more likely to be chosen by witnesses with little memory for the offender, witnesses who make a choice even when the offender is absent from the lineup. Alternate lineup construction procedures decenter the filler selection process in a number of ways. One procedure is to choose filler #1 to be an effective alternative to the suspect, and then to choose the others so that they are similar to both the suspect and filler #1. Another procedure is to choose filler #1 based on similarity to the suspect, filler #2 based on similarity to #1, and so on, until all 5 fillers have been chosen. Irrespective of the filler selection process, however, the same overall principles must be observed: The suspect should not stand out, and the fillers should be effective choice alternatives. Evaluating Lineups To evaluate whether a lineup is fair, we estimate its size and bias. This is done with a lineup evaluation task, as described above. Calculations over the total set of lineup evaluation participant decisions are used to determine bias (the proportion of participants choosing the suspect), and effective size (the extent to which participant choices are not equally distributed across lineup members). Thus, when the lineup has 6 members, and significantly more than 1 in 6 of the evaluation participants choose the suspect, the lineup is biased against the suspect. If significantly fewer than 1 in 6 choose the suspect, it is biased in favor of the suspect. A similar rationale is applied to lineup foils: To the extent that a foil is chosen by fewer than 1 in 6 evaluation participants, he or she is implausible as a foil. This determination can be made for each foil in the lineup, allowing one to arrive at a summary measure of the number of plausible foils. The degree to which this summary measure is less than the nom- inal size of the lineup represents the extent to which the safeguard against false identification afforded by the fillers has been diminished. It is advisable to apply inferential statistics to each of these indices, especially when the number of par- ticipants is relatively small. One may test whether lineup bias is greater or less than that expected by chance (one per nominal size) and/or construct 95% confidence intervals around both bias and size indices. All-Suspect and Multiple-Suspect Lineups The police sometimes construct lineups in which all members are suspects. This practice entails several problems. In a single-suspect lineup, the choice of someone other than the suspect is diagnostic of a wit- ness’s unreliability because all other lineup members are known to be innocent. But in an all-suspect lineup, it is not possible for the witness to identify a person known to be innocent, because the investigator views all lineup members as potentially guilty. As a result, the safeguard against false identification is dimin- ished. Thus, the identification of any lineup member at all becomes the suspect after the fact. For this rea- son, there is no way to evaluate the witness’s memory Lineup Size and Bias ———459 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 459 about the identified person, and there is no way to detect a witness who chooses completely at random, or on the basis of a poor or faulty memory. Lineups composed of multiple, but not all, suspects degrade the safeguard somewhat less. Roy S. Malpass and Colin G. Tredoux See also Expert Psychological Testimony on Eyewitness Identification; Identification Tests, Best Practices in; Lineup Filler Selection Further Readings Malpass, R. S. (1981). Effective size and defendant bias in eyewitness identification lineups. Law and Human Behavior, 5, 299–309. Malpass, R. S., & Devine, P. G. (1983). Measuring the fairness of eyewitness identification lineups. In S. Lloyd- Bostock & B. Clifford (Eds.), Evaluating Witness Evidence (pp. 81–102). London: Wiley. Malpass, R. S, Tredoux, C. G., & McQuiston-Surrett, D. E. (2007). Lineup construction and lineup fairness. In R. C. L. Lindsay, D. F. Ross, J. D. Read, & M. P. Toglia (Eds.), The handbook of eyewitness psychology: Vol. II. Memory for people. Hillsdale, NJ: Lawrence Erlbaum. Tredoux, C. (1999). Statistical considerations when determining measures of lineup size and lineup bias. Applied Cognitive Psychology, 13, S9–S26. Tredoux, C. G. (1998). Statistical inference on measures of lineup fairness. Law and Human Behavior, 22, 217–237. Web Sites Spreadsheets for use in evaluating lineup size and bias can be found at http://eyewitness.utep.edu/documents/bias-calc .xls and http://eyewitness.utep.edu/documents/TredouxE.xls. L ITIGATION STRESS Litigation stress is best understood as consisting of negative physical and psychological reactions to being involved in a legal action. Indeed, litigation itself is mentioned specifically as a stressor in the multiax- ial Diagnostic and Statistical Manual of Mental Disorders–Text Revised (fourth edition), in Axis IV (Psychosocial and Environmental Problems). A vari- ety of physical and emotional responses to litigation have been found. Litigation is an uncertain process and one with which most people are not familiar. It can affect one’s identity, causing feelings of guilt and shame, and can lead to isolation from family and peers. The problem is particularly acute for health professionals, who face professional sanctions in addition to the other consequences of a lawsuit. The earliest work on litigation stress was done by a physician, Sara Charles, who herself was the subject of a medical malpractice suit. In her work, she found that more than 95% of sued mental health profession- als acknowledge some physical and/or emotional reaction. Physical responses typically include the onset or exacerbation of a physical illness, such as myocardial infarction or peptic ulcer disease. Headaches, sleep disturbance, chest pain, and gastrointestinal symp- toms may also be reported. An exacerbation of any preexisting physical health problems can be expected. Even cases of cardiac arrest in the first months after initiation of an investigation have been reported. Emotional responses are more common and may range from anger to profound depression or even sui- cide. Cognitive disruptions such as problems with concentration and attention are common. Irrational thoughts associated with “catastrophizing” and “awfuliz- ing” are common, along with rumination about poten- tial disastrous outcome. Marital and family conflicts are very common consequences of litigation stress. Preexisting strains in these relationships are magni- fied. As one would expect, it is not uncommon for the use of alcohol, tobacco, and caffeine to increase dur- ing this time of stress. The risk for abuse of these sub- stances increases, along with various prescription medications, especially pain medications, anti-anxiety drugs, and sleep medication. Why do litigation and complaints cause such stress? First, the operations of the legal and com- plaints systems are unpredictable, particularly for those who do not work in the system or are not famil- iar with the rules, terminology, and processes. This unpredictability is a significant factor contributing to the practitioner’s sense of a lack of control over the process they are facing. Second, this unpredictability is compounded by a lack of knowledge about the process in which they are engaged, and the fact that in many instances, others may make decisions that could significantly influence the outcome of their case. Third, a lawsuit is a direct assault on an individual’s personal identity and engenders feelings of shame and guilt. Finally, it is often the case that a person who is 460 ———Litigation Stress L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 460 sued feels alone and isolated from his or her peers, family, and friends because of allegations of having done something inappropriate or wrong. Among health care professionals, the threat of a malpractice lawsuit is particularly serious. For mental health professionals, being named in a malpractice suit can have particular professional consequences beyond what usually happens to other defendants. Since 1986, any entity making payments in settlement of a malpractice claim (unless the payment is made by the mental health professional on his or her own behalf) must report the provider and case details to the National Practitioner Data Bank (NPDB). Furthermore, credentialing bodies (e.g., hospitals, group practices, licensing authorities) are required by law to query the NPDB when considering the qualifi- cations of a mental health professional applicant. Surveys such as that done in 1979 by Mawardi in the Journal of the American Medical Association have found a high rate of concern over the threat of mal- practice litigation among physicians; some respon- dents actually contemplated giving up the practice of medicine. These surveys have also indicated that over half of all physicians practice “defensive medicine” so as to avoid or minimize the risk of legal action. Defensive practices include limiting practice by not performing certain high-risk procedures, ordering medically unnecessary tests to document clinical judgments, and even turning away patients seen as potentially litigious. Williams, in a 1981 article in the Journal of the Arkansas Medical Society , termed physicians’ fear of malpractice litigation “paranoia malpracticum.” A similar term “litigaphobia” was later coined by Stan Brodsky. Being sued for malpractice has indeed been shown to be an emotionally traumatic experience for physi- cians and for mental health professionals as well. The initial reaction to being named in a malpractice suit is often a high level of anxiety, accompanied by feelings of righteous indignation, anger, and vindictiveness. Self-esteem may also be affected. Such stressful effects may be heightened by a loss of social support similar to that often experienced in divorce, as well as the uncertainty engendered by the possible impact that the legal action may have on the professional’s life and career. In addition to the significant physical and psycho- logical responses to malpractice litigation, mental health professionals are more likely to stop seeing patients who seem to have a greater risk of experienc- ing a bad outcome or of propensity to initiate a suit. These mental health professionals are more likely to consider early retirement and to discourage their own children from entering the medical profession. In a 1988 survey of psychologists, fear of litigation was an acknowledged reason for the use of sound risk- management techniques. After being sued, many men- tal health professionals begin to keep more meticulous records, order more tests and consultations, and stop performing procedures that may result in risk even when they are appropriate and performed competently. Solomon M. Fulero See also Personal Injury and Emotional Distress; Victim Participation in the Criminal Justice System Further Readings Breslin, F., Taylor, K., & Brodsky, S. (1986). Development of a litigaphobia scale: Measurement of excessive fear of litigation. Psychological Reports, 58, 547–550. Charles, S. (2001). Coping with a medical malpractice suit. Western Journal of Medicine, 174, 55–58. Charles, S., & Kennedy. E. (1985). Defendant: A psychiatrist on trial for medical malpractice. New York: Free Press. Lewis, B. J. (2004). When the licensing board comes a “calling.” Bulletin of the Psychologists in Independent Practice, 24, 2–4. Mawardi, B. (1979). Satisfactions, dissatisfactions, and causes of stress in medical practice. Journal of the American Medical Association , 241 , 1483–1486. Wilbert, J., & Fulero, S. (1988). Impact of malpractice litigation on professional psychology: Survey of practitioners. Professional Psychology: Research and Practice, 19, 379–382. Williams, J. (1981). Paranoia malpracticum. Journal of the Arkansas Medical Society, 78, 265–269. Litigation Stress ———461 L-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 461 463 M AC A RTHUR C OMPETENCE A SSESSMENT T OOL FOR CLINICAL R ESEARCH (M ACCAT–CR) The MacArthur Competence Assessment Tool for Clinical Research (MacCAT–CR) provides a semi- structured assessment format for evaluating abilities related to the decisional capacity of subjects in clinical research. Four component abilities of a decisional capacity standard are assessed: understanding, appre- ciation, reasoning, and choice. Administration of the instrument begins with the disclosure of selected infor- mation about a given research project, on the basis of which these abilities are measured. The MacCAT–CR, which takes 15 to 20 minutes to administer, has demonstrated good reliability and validity and has been used both to explore the relative abilities of dif- ferent subject groups and to assess the capacities of particular research subjects prior to entry into studies. Informed consent of research subjects is a nearly universal requirement of ethical codes, federal regula- tions, and common law. For subjects’ consent to be valid, they must be competent (i.e., they must have adequate decisional capacity—the terms are used interchangeably in this entry) to offer consent. Because persons are generally presumed to be competent to make decisions of all sorts, barring evidence to the contrary, the question of whether subjects are compe- tent does not arise for most research subjects; the casual interactions between subjects and researchers are sufficient to sustain the presumption of subjects’ capacity. However, some subject groups may have an elevated probability of incapacity, making it desirable, particularly in higher-risk studies, to perform an explicit assessment of their capacity. The demonstrated variability in clinical judgments of competence has encouraged the development of competence assess- ment instruments for this purpose. The MacCAT–CR grows out of the four-part con- ceptualization of decisional capacity that underlay the MacArthur Competence Assessment Study and that is based on existing case law; statutes; and bioethical, psychological, and medical literature. Understanding is the first of these four components of competence. Research subjects, at a minimum, must have the abil- ity to understand the basic elements of disclosure required by the U.S. Federal Common Rule, including the purpose of the research project, the procedures involved, material risks, possible benefits, and alterna- tives to research par ticipation. The second component, Appreciation, reflects the importance of subjects’ abil- ities to apply the disclosed information to their own situations, including their recognition that the research project is aimed at generalizable knowledge, not at optimizing the treatment they receive, and that they are truly free to decline to participate without penalty. Reasoning, the third component, focuses on subjects’ abilities to manipulate the information dis- closed to them, comparing and weighing the conse- quences of the alternatives before them. The final component is Choice, the ability to select the desired option and to sustain a consistent decision. Because the information that subjects must understand will differ across research projects, the MacCAT–CR provides a format for disclosure of study-specific information that is standardized for all M M-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 463 subjects in a given research study. Following disclo- sure of discrete informational elements, subjects’ understanding is queried by asking them to paraphrase the disclosure about specific items. Appreciation ques- tions can be modified, if necessary, according to the nature of a given project but reasoning and choice questions are fixed. There is no effort to provide the kind of comprehensive disclosure typically embodied in informed consent forms or to measure understand- ing and appreciation of, or reasoning about, all aspects of the study. Rather, the MacCAT–CR offers a virtual “biopsy” of subjects’ abilities related to competence, on the assumption that the sampled data will be typical of their abilities in dealing with a complete disclosure. Subjects’ responses to the MacCAT–CR items are scored in a structured fashion, with scores aggregated on scales for each of the four abilities being assessed. However, composite scores across all four scales are not generated, because poor performance on any one of the relevant abilities may indicate significantly impaired capacity, rendering a composite score mean- ingless. Nor does the MacCAT–CR provide a fixed cut- off above which subjects are deemed competent to consent. The degree of capacity required for participa- tion in a given study should reflect the characteristics of that study, including its complexity and risks. Moreover, the capacity demanded of subjects at risk for decisional impairment (e.g., persons with mental ill- nesses, developmental disabilities, dementia, and seri- ous medical disorders) ought not to exceed the abilities demonstrated by the general population. Finally, deci- sions about capacity should take into account clinical data that may not be reflected in assessment scores. Although investigators or institutional review boards can set MacCAT–CR cutoffs for particular studies, the instrument is designed to be used as an aid to clinical judgment, with investigators retaining the discretion to determine whether subjects are capable of consenting. Use of the MacCAT–CR for research on decisional capacity and to screen subjects for entry to research projects has demonstrated that the instrument can be scored reliably, and that it shows good construct and convergent validity. Studies have been performed to date with samples of persons with depression, schizo- phrenia and related psychotic disorders, Alzheimer’s disease, mental retardation, and HIV infection and with prisoners, forensic patients, and parents of neonatal research subjects. Impairments in the abili- ties measured by the MacCAT–CR correlate strongly with cognitive impairments on neuropsychological tests and correlate more variably with psychotic symptoms. Thus, increasing levels of decisional abili- ties are found as one moves from subjects with Alzheimer’s disease to those with schizophrenia, depression, and general medical illnesses. Further research is required to determine the impairments associated with varying levels of depression and with medical conditions in which the disorder itself or its treatment may affect mentation. Screening of potential research subjects with the MacCAT–CR has demonstrated that subjects, espe- cially those with mental illnesses, who score poorly on initial administration can often experience improved decisional capacities with remedial educational efforts. As might be expected, levels of understanding show the greatest response to additional education, with lesser impact seen on appreciation and reasoning. Nonetheless, these studies have suggested that many research subjects can learn the information required to give a competent consent if afforded extra assistance for doing so. Thus, screening for decisional capacity accompanied by remedial education may result in bet- ter informed subjects capable of giving consent on their own rather than in the exclusion of large numbers of subjects or in a resort to substituted consent. Paul S. Appelbaum See also Consent to Clinical Research; MacArthur Competence Assessment Tool for Treatment Decisions (MacCAT–T) Further Readings Appelbaum, P. S., & Grisso, T. (2001). MacArthur Competence Assessment Tool for Clinical Research (MacCAT–CR). Sarasota, FL: Professional Resource Press. Grisso, T., & Appelbaum, P. S. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals . New York: Oxford University Press. M AC A RTHUR C OMPETENCE A SSESSMENT T OOL FOR CRIMINAL A DJUDICATION (MAC CAT–CA) Mental health professionals often conduct evalua- tions to assist courts in determining whether a criminal 464 ———MacArthur Competence Assessment Tool for Criminal Adjudication (MacCAT–CA) M-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 464 defendant is competent to participate in the adjudica- tory process. A variety of instruments have been developed to help structure these forensic assess- ments; this entry describes one of the more con- temporary competence assessment instruments, the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT–CA). In the United States, people accused of crimes have certain rights with respect to the adjudicatory process that are guaranteed by the Constitution. In particular, they have the Fifth Amendment protection against self-incrimination and rights articulated in the Sixth Amendment, which include the assistance of legal counsel, the right to confront their accusers, and the right to trial by a jury of their peers. To benefit from these rights, defendants must be mentally competent to assert them. In Dusky v. United States (1960), the U.S. Supreme Court articulated spe- cific functional abilities that defendants must have to participate competently in the adjudicatory process: They must be able to assist counsel, and they must have both a rational and a factual understanding of the proceedings against them. Most, if not all, jurisdictions recognize only mental impairment—often characterized as “mental disease or defect”—as a basis for incompetence to proceed to adjudication. When questions about a defendant’s men- tal capacities arise, the courts almost invariably solicit the assistance of mental health professionals (primarily psychiatrists and psychologists) in resolving the issue. These forensic evaluators attempt to inform the court whether, and the extent to which, the defendant’s func- tional abilities required by Dusky are compromised by psychiatric problems. Historically, the primary tool available to forensic examiners for assessing competence was the unstruc- tured or semistructured interview. Although interview approaches can provide valuable information, they are vulnerable to a variety of sources of potential bias. For example, interview-based results from evaluations of the same defendant may be inconsistent because differ- ent examiners (a) asked questions that varied in content and/or difficulty, (b) had different subjective criteria for judging the adequacy of a defendant’s responses to var- ious questions, or © used different reference groups or subjective algorithms for aggregating the information to formulate more focused conclusions about the defen- dant’s capacities. The MacCAT–CA was designed to enable forensic examiners to collect information relevant to a defendant’s competence in a way that minimizes the influence of clinical subjectivity. The MacCAT–CA comprises three measures, each of which relates conceptually to one of the Dusky criteria. Each of these measures is described briefly below. The Understanding measure includes 8 items that query issues such as the general roles and responsibil- ity of the prosecuting attorney and defense attorney, the elements of a criminal offense, the responsibilities of a judge and those of a jury, the nature of criminal sentencing, and a defendant’s rights at trial. Thus, it relates to the Dusky requirement that a defendant have a “factual understanding” of legal proceedings. The Appreciation measure includes 6 items that query the respondent about expectations regarding his or her pending case. These items relate to issues such as expectations about disclosing information to, and receiving assistance from, the attorney; the likelihood of being convicted; the likely severity of punishment if convicted; and expectations that one will be treated fairly by the courts. The respondent is asked to state his or her expectations and then explain the reasons for these beliefs. Scoring of these items involves a judg- ment of the plausibility of the defendant’s reasons for his or her beliefs—thus Appreciation relates to the Dusky requirement of a “rational understanding” of proceedings. Finally, the Reasoning measure includes 8 items that require a defendant to exercise logical and rea- soning skills in relation to legal information. Each of 5 items presents the respondent with two pieces of hypothetical information. These pieces of information are embedded in a hypothetical vignette (i.e., a man is arrested after getting into a fight at a bar) and the respondent is challenged to determine which piece of information has the greatest legal relevance for the hypothetical actor and to explain the basis for its greater legal relevance. Three other Reasoning items describe alternative dispositional choices for the hypothetical actor, proceeding to trial or accepting a plea agreement. The respondent’s task is to articulate comparisons and contrasts (e.g., conduct a risks-and- benefits analysis) between these choices, thus demon- strating the capacity to reason about legal alternatives. This measure is conceptually related to the Dusky requirement of “capacity to assist counsel.” Three structural features of the MacCAT–CA limit the extent of interviewer subjectivity in the assessment. First, the administration is highly structured. The same 22 items are presented to each defendant, with MacArthur Competence Assessment Tool for Criminal Adjudication (MacCAT–CA) ———465 M-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 465 instructions for both initial presentation and follow-up queries/probes to minimize examiner-related differ- ences in the presentation. Second, explicit instructions and criteria are written for scoring each item, which minimizes differences in examiners’ judgment as to what is a correct or incorrect answer. Third, the total score for each measure (sum of item scores for Understanding, Reasoning, and Appreciation) is inter- preted in light of norms based on a large, multistate sample of offenders recruited in jails and forensic psy- chiatric hospitals. Thus, statistical norms exist to guide clinical interpretation as to whether, and to what extent, a particular respondent manifests impairment in the functional legal abilities articulated in Dusky. Research with adult offenders has demonstrated that the MacCAT–CA measures are reliable, with internal consistency estimates (Cronbach’s alpha) of .85, .81, and .88 for Understanding, Reasoning, and Appreciation, respectively. Interscorer reliability of .90, .85, and .75 for Understanding, Reasoning, and Appreciation, respectively, were reported in the MacCAT–CA manual. Evidence for the validity of the instrument includes that each measure correlates in expected ways with measures of intellectual capacity (positively) and with measures of psychotic sympto- matology (negatively). Furthermore, poorer scores are obtained on MacCAT–CA measures by defendants who have been adjudicated incompetent to stand trial than by comparison groups of jail inmates awaiting trial. Finally, MacCAT–CA scores help to discrimi- nate competent from incompetent defendants after controlling for measures of other constructs including demographic features, criminal history, and psy- chopathology variables. Although the MacCAT–CA offers some advantages in terms of structuring and standardizing certain com- petence-related inquiries, it was designed to supple- ment, rather than to replace, the clinical interview in assessing adjudicative competence. It does not assess directly all the factors that might affect a defendant’s competence—for example, poor memory for events at or near the time of the alleged crime or incoherence of thoughts or speech that might make assisting counsel difficult. Furthermore, the clinician using the MacCAT–CA must still make judgments regarding symptoms of mental disorder and their contribution, if any, to poor performance on the MacCAT–CA. Thus, the MacCAT–CA is not a stand-alone measure of com- petence. It is best conceived as its name indicates— a “tool” to assist mental health professionals in their assessment of defendants’ competence-related abilities. Norman G. Poythress See also Adjudicative Competence of Youth; Competency, Foundational and Decisional; Competency Assessment Instrument (CAI); Forensic Assessment Further Readings Dusky v. United States, 362 U.S. 402 (1960). Otto, R. K., Poythress, N. G., Nicholson, R. A., Edens, J. F., Monahan, J., Bonnie, R. J., et al. (1998). Psychometric properties of the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT–CA). Psychological Assessment, 10, 435–443. Poythress, N. G., Bonnie, R. J., Monahan, J., Otto, R., & Hoge, S. K. (2002). Adjudicative competence: The MacArthur studies. New York: Kluwer/Plenum. Stafford, K. P. (2002). Assessment of competence to stand trial. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 359–380). Hoboken, NJ: Wiley. M AC A RTHUR C OMPETENCE A SSESSMENT T OOL FOR T REATMENT (MAC CAT–T) The MacArthur Competence Assessment Tool for Treatment (MacCAT–T) is an instrument designed to assess decision-making capacity. Designed as part of the MacArthur Competence Treatment Competence Study, a multiyear, multisite effort named for the well- known philanthropic foundation, the tool operational- izes established elements of competent decisions. The semistructured instrument, which can be completed within 20 to 30 minutes, guides clinicians through the discussion of a specific treatment decision and scores responses on four separate scales. Structured disclosures assess patients’ understand- ing, reasoning, appreciation, and choice, the four ele- ments of decision making established in reviews of the established legal and ethical literature. For under- standing, patients are tested on their comprehension of the nature of their illness, recommended treatment, alternatives, and risks and benefits. Reasoning evalu- ates patients’ problem-solving ability when faced with a specific treatment choice. Appreciation assesses 466 ———MacArthur Competence Assessment Tool for Treatment (MacCAT–T) M-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 466