Fpsyg 12 689128

ORIGINAL RESEARCH
published: 30 June 2021

doi: 10.3389/fpsyg.2021.689128
What’s in the Box? Punishment and

Insanity in the Canadian Jury
Deliberation Room
Susan Yamamoto 1* and Evelyn M. Maeder 2
1
Department of Psychology, Carleton University, Ottawa, ON, Canada, 2 Institute of Criminology and Criminal Justice,
Carleton University, Ottawa, ON, Canada
In insanity cases, although the defendant’s eventual punishment is legally irrelevant to

the jury’s decision, it may be psychologically relevant. In this three-part mixed-methods
study, Canadian jury eligible participants (N = 83) read a fictional murder case involving
an insanity claim, then took part in 45-min deliberations. Findings showed that mock
jurors who were generally favourable towards punishment had a lower frequency of
utterances that supported the Defence’s case. A qualitative description of keyword
flagged utterances also demonstrated that mock jurors relied on moral intuitions about
authority, harm, and fairness in justifying their positions. These findings may have
application in crafting effective Judge’s instructions and lawyer’s opening statements.
Keywords: insanity, juror decision-making, punishment, moral foundations theory, not criminally responsible on
account of mental disorder
Edited by:
“Our collective conscience does not allow punishment where it cannot impose blame.”
Colleen M. Berryessa,
—Judge David Bazelon
Rutgers University, Newark,
United States
Reviewed by:
INTRODUCTION
John Manzo,
University of Calgary, Canada The Canadian legal system takes a clear stance on the issue of criminal culpability and mental
William Woody, disorder1 . According to Section 16 of the Criminal Code: “No person is criminally responsible for
University of Northern Colorado, an act committed. . . while suffering from a mental disorder that rendered the person incapable of
United States appreciating the nature and quality of the act or omission, or of knowing it was wrong” (Criminal
*Correspondence: Code of Canada, 1985). Hence a person may be found Not Criminally Responsible on Account of
Susan Yamamoto Mental Disorder (NCRMD) if the party raising the issue can prove it is more likely than not that,
[email protected] during the crime, the defendant had a mental disorder that precluded a guilty mind. Rather than
traditional punishment via the criminal justice system, a successful NCRMD claim will result in
Specialty section: psychiatric care or in some cases release. This provision is in tension with a longstanding culture
This article was submitted to
of hostility towards the insanity defence in Canada (Maeder et al., 2015) and the United States
Forensic and Legal Psychology,
a section of the journal
(Hans, 1986). Every person has the constitutional guarantee to a fair trial by an impartial tribunal
Frontiers in Psychology (Canadian Charter of Rights and Freedoms, 1982, Section 11d). A pressing issue is therefore
whether the legal system lacks adequate safeguards to combat juror partiality.
Received: 31 March 2021
Accepted: 28 May 2021
Despite the rarity of NCRMD (i.e., up to 6.08 per 1,000 among decisions averaged over 5
Published: 30 June 2021 years in three provinces; Crocker et al., 2015b) and the strict review process, the public tends to
see it as a frequently exploited loophole that sets dangerous offenders free (Skeem et al., 2004).
Citation:
Yamamoto S and Maeder EM (2021)
Unfortunately, this misconception can result in mock jurors’ inability to correctly apply this law
What’s in the Box? Punishment and
Insanity in the Canadian Jury 1 It
is important to acknowledge the ongoing debate about appropriate terminology when discussing this topic. Some argue
Deliberation Room. that terms such as “disorder” and “illness” pathologize what would be better termed “mental health conditions.” Others prefer
Front. Psychol. 12:689128. that these conditions are recognized in the same way as other physical illnesses. Throughout this paper, we mirror both the
doi: 10.3389/fpsyg.2021.689128 DSM and the law in using the term “disorder”.
Frontiers in Psychology | www.frontiersin.org 1 June 2021 | Volume 12 | Article 689128

Yamamoto and Maeder NCR and Jury Deliberation
when appropriate (Bloechl et al., 2007; Maeder et al., 2015). There are at least two dimensions that comprise negative
Researchers have remarked on the kinship between insanity insanity related attitudes: one concerning myths about the
defence attitudes and different punishment orientations (Skeem defence, and one relaying notions of strict liability (i.e., “If you
et al., 2004; Breheney et al., 2007). However, existing proposed do the crime, you do the time,” Skeem et al., 2004). Hence
remedial measures do not target all punitive motives equally. some laypersons are simply recalcitrant on the matter of mental
For example, reassuring jurors about deterrence only targets disorder and criminal responsibility. Members of the public
utility focused punishment, but this negative bias might also tend to erroneously believe that defendants who are found
be seated in desires for retribution. It is well-established that NCRMD are released into the community without provisions.
insanity myths (e.g., that the defence is commonly used) play a Those who estimate that insanity defendants immediately go
key role in aversion towards the defence (Skeem et al., 2004), free are less likely to support the insanity defence and are
but it is possible that certain moral intuitions interfere after more likely to vote guilty (Skeem et al., 2004). Some researchers
correcting misconceptions. have proposed the use of focused education to combat bias
Considering the many issues that NCRMD defendants against defendants who are reasonably using the insanity
potentially face, it is clear that we must probe whether negativity defence. Indeed, Hans (1986) showed that those with higher
towards legal insanity reflects a lack of information on the levels of education in general are more likely to support the
part of the public or moral intolerance of the defence. It is insanity defence. Similarly, Maeder and Laub (2012) found
also necessary to glimpse inside the jury deliberation process that psycho-legal education (i.e., an undergraduate class that
to fully diagnose the problem. In doing so, we can examine featured lectures on the insanity defence) improved student
not just opinions about NCRMD, but also how they fare in attitudes towards the defence. In two studies, Maeder et al.
response to persuasion. Whereas, researchers have made gains (2015) attempted to educate Canadian mock jurors about the
in understanding individual juror decisions in insanity cases, NCRMD defence in hopes that it would improve relevant
only one (U.S.) study of which we are aware (Wheatman and attitudes. In the first study, education produced the predicted
Shaffer, 2001) has examined group deliberation in insanity difference in NCRMD attitudes, but it did not affect verdict
cases. In a three-part study, we used mixed methodology to decisions. In contrast, the second study revealed no such effect
examine whether endorsement of retributive (“an eye for an of focused education on attitudes, or verdict decisions. Hence,
eye”) and utilitarian (“for the greater good”) principles to education is not always an effective remedy to negative insanity
support punishing vs. avoiding punishment related to mock defence attitudes.
juror decisions as well as what types of themes emerged in jury
deliberation. Of note, section 649 of the Canadian Criminal Code PUNISHMENT ORIENTATION
prohibits jurors from discussing court proceedings post-trial, and
so it is necessary to employ simulation studies. Punishment can be defined as a “a negative sanction intentionally
applied to someone perceived to have violated a law, rule, norm,
INSANITY or expectation” (Vidmar and Miller, 1980, p. 568). People tend
to rely on two main types of arguments when punishing others:
Insanity is a legal rather than psychiatric term. The law defines retributivism and utilitarianism. Retributivism, which follows
a mental disorder as follows for the jury: “any illness, disorder, from Kant’s (1785/Kant) Deontology, holds that punishment
or abnormal condition that impairs the human mind and its must be proportionate to the wrongdoing (Schedler, 1980).
functioning” (National Judicial Institute, 2014). A defendant is Unlike retributivism, the cornerstone of utilitarianism—
always presumed to be innocent until the Crown (prosecution) commonly associated with Bentham (1789/Bentham), and later
has proven beyond a reasonable doubt that he or she is guilty. championed by Mill (1859/2008)—is consequentialism. An
Mental disorder is an exception; the party raising the NCRMD act must maximise the aggregate good for those affected by it.
claim must prove that it is “more likely than not” that the Therefore, incapacitation, rehabilitation, and specific/general
defendant had a mental disorder at the time of the crime. The deterrence are utilitarian punishment practises. While a
standard of proof is lower than beyond a reasonable doubt, which retributivist is not per se opposed to these goals, they are likely to
is articulated in model instructions. prefer balancing the scales of justice. Laypersons do not always
Data from the National Trajectory Project on Individuals appreciate the distinction between these viewpoints (Carlsmith
Found Not Criminally Responsible on Account of Mental et al., 2002).
Disorder in Canada (NTP, Crocker et al., 2015a) showed that Recent work illustrates the possibility that some people are
70.9% of primary diagnoses at the index NCRMD verdict generally punishment motivated, while others focus on the risks
were psychotic spectrum disorders (e.g., schizophrenia) while associated with punitive acts. Yamamoto and Maeder (2019)
23.2% were mood disorders. Consequently, in this paper we sought to rectify the apparent difficulties in operationally defining
focus on juror decision-making in an NCRMD case involving punishment orientation by creating four scales that measured
schizophrenia. Persons with schizophrenia seem to be subject which retributive and utilitarian principles work in tandem vs.
to a high degree of stigma, wherein laypeople are sceptical in tension. This work was based on studies showing that more
of the potential for treatability and associate the illness with logically calculated decisions tend to require suppression of an
dangerousness (Angermeyer and Dietrich, 2006; Day et al., 2007). automatic aversion to doing harm (Valdesolo and DeSteno, 2006;
Therefore, this group might be especially vulnerable to insanity Greene, 2009). However, research indicates that some people
defence bias. do not seem to experience this aversion (Bartels and Pizzaro,

2011). Hence, Yamamoto and Maeder (2019) theorised that Method

people would differ in terms of seeing punishment as itself Participants
rewarding. We termed people on the punishment-prone end of Overall, 172 people interacted with the online survey. Of those,
the spectrum as having a “permissive” punishment orientation 107 completed Phase 1 (i.e., 65 people did not complete the
(i.e., will permit punishment across a number of contexts) survey). A total of 24 participants dropped out of the study
and those on the punishment-averse end of the spectrum as prior to Phase 2. Remaining participants were 83 (47 men,
having “prohibitive” punishment orientation (i.e., tend towards 34 women, 2 transgender individuals) Canadian jury-eligible
prohibiting punishment where possible). community members (i.e., citizens at least 18 years of age with
By virtue of the fact that jurors are assessing the defendant’s no indictable offences) recruited online via Kijiji (a classified
control over the act, labelling insanity as a “guilt” decision is ads website similar to Craigslist), having a mean age of 29
somewhat of a misnomer. Rather, jurors will dictate whether the (SD = 11.5) and ranging from 18 to 62. The majority of
defendant is to be incarcerated or treated, which is at least in participants (63.9%) identified as White, while 18.1% identified
part a question of punishment beliefs. The legal system intends as Black/African-Canadian, 4.8% as Middle Eastern, 2.4% as
for jurors to only rely on evidence of whether the defendant Aboriginal Canadian/Native Canadian/First Nations, 2.4% as
had a mental disorder at all (and whether it precluded a guilty East Indian, 1.2% as Asian, 1.2% as Hispanic/Latino, and 6% as
mind), but this is not to say that jurors will avoid retrospective another group.
justifications based on punishment goals. If the mere fact of an
indictable offence triggers a punitive need (that must be sated), A Priori Sample Size
then jurors may match the incoming information to the least A power analysis for a two-tailed Pearson or Point-biserial
dissonant storey. The concept of strict liability (i.e., “you do the correlation using G∗ Power yielded a minimum sample size of
crime, you do the time”; Skeem et al., 2004) deals directly with the 82 for a medium effect size (0.30) at α = 0.05, with 0.80 power.
outcome of insanity trials. Endorsing such a viewpoint implies However, due to the exploratory, mixed methods nature of the
that prison is preferred over institutionalisation. study, the main rationale for the sample size overall rested on
the concept of saturation. Saturation roughly constitutes reaching
the point at which new information has been exhausted; that
OVERVIEW is, there are sufficient data to be trustworthy (Fusch and Ness,
2015). Underscoring the lack of established rules for achieving
Researchers have made great gains in understanding individual saturation, Francis et al. (2010) outlined four principles that
juror decision-making in insanity cases, but the jury deliberation might justify these decisions in theory-driven content analysis.
process remains a black box. NCRMD decisions are a natural In the first two steps, researchers must a priori select an initial
moral conflict. Jurors are presented with an incident of harm, and analysis sample and a stopping criterion. The initial analysis
yet told that it is not necessarily punishable. Hence there is likely a sample should be based on the minimum sample size needed to
third unspoken question inherent to jurors’ assessments: whether satisfy stratification factors (e.g., diversity of age, ethnicity). The
NCRMD satisfies the goals of punishment. In Study Parts 1 and stopping criterion dictates the number of additional interviews
2, we tested whether participant scores across the permissive and after new ideas are considered exhausted. For the current studies,
prohibitive punishment dimensions predicted verdict decisions due to inherent limitations in recruitment numbers, we first
and deliberation content. In Study Part 3, we observed how jurors considered a jury sufficient if there were at least five members
attempted to persuade each other of their positions. (half of the minimum permitted attrition to continue a trial).
Notably, we also collected data from multiple juries with the
minimum Canadian legal requirement of 10 people. Given the
STUDY PART 1 large size of the groups, we used six juries as our initial sample
size and collected from four extra juries as our stopping criterion.
Jurors have notoriously negative attitudes towards the insanity
Indeed, these criteria yielded a gender balanced sample, with age
defence, and yet correcting misinformation alone appears
diversity, with somewhat greater racial diversity as compared to
insufficient to change verdict decisions (Maeder et al., 2015). It is
the racial composition of Canada.
possible that considering jurors’ punishment orientation will help
to tease apart different motivations for this negativity. In Study
Materials: Phase 1
Part 1, we analysed relationships among individual differences
Insanity Defence Attitudes
and pre-deliberation verdicts.
Participants completed the 19 items of the Insanity Defence
Attitudes-Revised Scale (IDA-R; Skeem et al., 2004) adapted to
Hypotheses a Canadian context, which comprises two latent factors (injustice
Following Yamamoto and Maeder (2019), we predicted that and danger, strict liability). The Strict Liability scale pertains to
permissive retributivism and utilitarianism would be associated the extent that a person believes that mental disorder is irrelevant
with increased likelihood of a guilty verdict. We also expected to criminal responsibility (e.g., “I believe that people should be
that prohibitive retributivism and utilitarianism would be held responsible for their actions no matter what their mental
associated with decreased likelihood of a guilty verdict and more condition”) and showed strong internal consistency (α = 0.85).
favourable insanity defence attitudes. The Injustice and Danger scale pertains to fears about misuse of

the defence and the potential threat to public safety (e.g., “As a and specifically had Capgras delusion. A psychiatrist (whose
last resort, defence attorneys will encourage their clients to act gender was left ambiguous) testifies to this effect. The psychiatrist
strangely and lie through their teeth to appear mentally ill”) and describes the diagnostic criteria for the defendant’s disorder and
showed strong internal consistency (α = 0.86). Participants rated gives an explanation for the lack of clear history of mental
their agreement on a 7-point Likert-type scale ranging from 1 disorder. The trial ends with closing statements from the Crown
(strongly disagree) to 7 (strongly agree). followed by the Defence. Each participant filled out an individual
verdict form as well as a verdict confidence rating, ranging from
Punishment Orientation 0 (not at all confident) to 10 (very confident) after reading the
Participants also completed the 17 items of the Punishment trial transcript. Participants selected from guilty, not guilty, or
Orientation Questionnaire (POQ; Yamamoto and Maeder, 2019), not criminally responsible on account of mental disorder. For all
which comprises four scales that measure the principles people analyses reported, NCRMD was coded as 0 and guilty was coded
rely on when thinking about appropriate punishment in as 1. Mock jurors were not permitted to take notes.
the criminal justice system. The Prohibitive Utilitarian scale
measures the extent to which participants believe punishment Pre-deliberation Instructions
should be goal-oriented and benefit society (e.g., “Punishment Participants heard two pages of instructions about the criteria for
should be about looking forward to improve society, not NCRMD and how to decide whether the defence meets those
backward to address the criminal’s misdeeds”); the scale showed requirements. These instructions also reiterate special rules on
strong internal consistency (α = 0.82). The Permissive Utilitarian the burden of proof and reasonable doubt. Finally, participants
scale measures the extent to which participants are willing to give were instructed on logistics of the deliberation (e.g., selecting a
strict punishment to the aim of deterrence (e.g., “an overly harsh foreperson, unanimity requirements; National Judicial Institute,
punishment may be necessary to prevent others from committing 2014). The foreperson was instructed to complete a verdict form,
the same crime”); the scale showed strong internal consistency (α selecting from guilty, not guilty, NCRMD, or unable to reach
= 0.82). The Prohibitive Retributive scale captures aversion to the a verdict.
risks of punishment (e.g., “It is better to let 10 guilty criminals
go free than to punish 1 innocent person”); the scale showed Procedure: Phase 1
strong internal consistency (α = 0.81). Finally, the Permissive Three to 4 days prior to the deliberation, participants followed
Retributive scale captures blame of the criminal label and desires a link from a recruitment notice on Kijiji. After passing juror
for retribution (“Criminals are bad people and get what is coming eligibility screening, participants selected the appropriate time
to them”); the scale showed strong internal consistency (α = slot for the coming Saturday (and were told to check back
0.84). Participants rated their agreement on a 5-point Likert scale the following week for alternative sessions). They were then
ranging from 1 (strongly disagree) to 5 (strongly agree). directed to the Phase 1 informed consent form, followed by
the (counterbalanced) IDA-R/POQ and lastly the demographics
Demographics Survey survey. After being directed to a new survey, participants either
Participants completed a demographics survey, which included entered an email address and received further instructions for the
race, gender, occupation, and level of education. They were deliberation phase, or they withdrew from the study.
also asked to provide their religious and political affiliations (if
any), and whether they personally know someone with a mental Procedure: Phase 2
disorder. Finally, participants were asked to indicate where their Participants were seated in order of arrival (i.e., the first to arrive
political beliefs fell on a sliding liberal to conservative scale. was assigned as Juror #1, which was displayed on the table and
above the seat). Once participants completed informed consent,
Materials: Phase 2 the research assistant read the pre-trial instructions (about 5 min)
Trial Transcript and handed out the trial transcripts with individual verdict forms,
Participants heard one page of model jury instructions adapted for which participants were given about 15 min.
from the National Judicial Institute (2014) about the essential After all materials were collected, the research assistant read
elements of the charge and requirements for NCRMD, as well the pre-deliberation instructions and provided the jury verdict
as the burden of proof. We created an ∼8-page trial transcript form. Sommers (2006) used a limit of 60 min and found that
loosely based on Clark (2006), which describes a second-degree on average deliberations in a sexual assault case ranged from
murder charge against a man who stabbed his roommate. Of ∼38–50 min. Given practical limitations to coding time and
note, the defence does not dispute that the accused committed funds, participants were told that the deliberation would last
the physical act, but that he did not have the requisite guilty no longer than 45 min; a clock was displayed on a screen.
mind. The transcript begins with opening statements from the The research assistant then left the room for the duration of
Crown and Defence. The Crown alleges that the accused is a the deliberation and waited in a smaller lab office next door
violent man who snapped in response to a heated argument. to observe participants through a two-way mirror and audio-
The police officer who arrested the defendant serves as a Crown visual system. Participants could wave at the two-way mirror
witness and provides evidence that the defendant was attempting any time for assistance or once they reached a verdict. The
to flee with the victim’s wallet. The Defence alleges that the research assistant was instructed not to provide any further
accused had paranoid schizophrenia at the time of the crime information about the case, except to re-read passages of

the instructions if questioned. Once the deliberation finished, TABLE 1 | Bivariate relationships among attitudinal measures.
participants completed the post-deliberation questionnaire. They
1 2 3 4 5 6
were then debriefed and compensated with $40 for their time.
1. Strict Liability 1
STUDY PART 1: RESULTS AND 2. Injustice & Danger 0.49** 1
DISCUSSION 3. Permissive Retributive 0.46** 0.42** 1

4. Permissive Utilitarian 0.36** 0.41** 0.70** 1
Attitudinal Variables 5. Prohibitive Retributive −0.28* −0.31* −0.30* −0.39** 1
First, we assessed bivariate relationships among the attitudinal 6. Prohibitive Utilitarian −0.36** −0.12 −0.45** −0.22* 0.24* 1
variables2 (see Table 1). In line with expectations, the POQ
**p ≤ 0.001.
dimensions showed moderate relationships with the IDA-R *p ≤ 0.05.
dimensions. It was conceivable that strict liability would be
more strongly related to retributivism, and injustice and danger
more strongly related to utilitarianism (Skeem et al., 2004;
Maeder et al., 2015). However, permissive utilitarianism and TABLE 2 | Bivariate relationships between attitudinal measures and outcome
permissive retributivism showed moderate positive relationships variables.
with both dimensions. Prohibitive retributivism showed a weak Individual Individual continuous
negative relationship with both IDA-R dimensions. Prohibitive dichotomous verdict verdict
utilitarianism showed a weak negative relationship with strict
liability only, having no significant linear association with Strict Liability 0.23* 0.28*
injustice and danger. Those higher in the tendency to focus on Injustice & Danger 0.25* 0.32*
the positive societal impact of punishment were less likely to Permissive Retributive 0.24 0.30*
believe that mental disorder is irrelevant to a crime, but no less Permissive Utilitarian 0.16 0.22*
likely to believe the insanity defence is misused or threatens Prohibitive Retributive 0.00 0.00
public safety. Additionally, political orientation was significantly Prohibitive Utilitarian −0.08 −0.12
related to permissive retributivism, r (76) = 0.29, p = 0.01, such
N = 82.
that higher identification with conservatism was associated with *p ≤ 0.05.
greater permissive retributivism, or greater identification with
liberalism was associated with lower permissive retributivism.
which may itself contribute to the relationship with punishment
Criterion Variables orientation or insanity defence attitudes. The POQ is a relatively
Next, we assessed bivariate relationships between the attitudinal
new measure, and so it is unclear to what extent permissive
measures and pre-deliberation (i.e., individual) dichotomous
and prohibitive retributivism and utilitarianism are context
verdict decision; Table 2 displays these relationships. A
dependent. For instance, it could be that particularly heinous
continuous verdict variable (the multiplicative product of guilty
cases render permissive retributive concerns more central.
vs. NCRMD and verdict confidence) was also included, ranging
However, Yamamoto and Maeder (2019) reported that presenting
from −10 (very confident in an NCRMD verdict) to 10 (very
the POQ before vs. after a death penalty case did not significantly
confident in a guilty verdict). The confidence measure contained a
influence findings, suggesting that the measure could be context
“0” option to essentially allow for jurors to be undecided between
resistant. The deliberation analyses help to underscore relevant
guilty and NCRMD. The majority of jurors individually rendered
idiosyncrasies of the trial transcript by showing what narratives
a guilty verdict (n = 50, 61%) prior to deliberation, whereas 32
participants created from the evidence. In brief, it appears
(39%) chose NCRMD. Only one participant voted not guilty, and
punishment orientation indeed seems to play some role in mock
so this case was dropped from analyses. Individual dichotomous
jurors’ beliefs about the insanity defence. The next step was to
verdict decision (where NCRMD was coded as 0 and guilty
ascertain what topics mock jurors actually leveraged in attempts
was coded as 1) related only to the dimensions of the IDA-R.
to publicly defend their positions.
Permissive retributivism and utilitarianism shared a significant
positive relationship with continuous verdict, such that those
higher on the traits were more confident in a guilty verdict, and
those lower on the traits were more confident in an NCRMD
verdict. One possible explanation for this finding is that people STUDY PART 2: OVERVIEW
with stronger convictions about their verdict decision were more
likely to have strongly developed beliefs about punishment. Study Part 2 concerned the examination of transcriptions of
There are some notable limitations to Study 1. Most mock jury deliberation sessions. Hsieh and Shannon (2005)
significantly, the case appears to be somewhat guilt leaning, described the method of directed content analysis as a means
to further investigate established phenomena. In Part 2 we
2 The POQ and IDA-R were counterbalanced, but there were no significant employed a deductive method, given that previous findings on
differences in reported analyses on the basis of presentation order. the insanity defence guided a priori creation of a coding manual.

Hypotheses for each unit (i.e., only one code was applied to each sentence).
Hypothesis 1a: Crown Position-Taking Table 3 provides a breakdown of the major topics.
Researchers have theorised that some jurors dislike the insanity Overall, the range of Kappas demonstrated fair reliability3
defence because it implies the defendant is not punishable (0.54–1.00, Cohen, 1960; see Supplementary Material). Several
(Skeem et al., 2004; Breheney et al., 2007). Consequently, we values were at the lower end of the conventionally acceptable
predicted that more permissive punishment orientation would Kappa range. Low base rates can decrease Kappa even in cases
be associated with a higher frequency of Crown position-taking. of high agreement (Xu and Lorber, 2014) and so again the
This code was applied when participants expressed the opinion infrequency of some codes warrants caution in interpreting these
that the defendant was likely guilty (e.g., “It’s obvious this guy values. Tables 4, 5 display an overall summary of the features of
was guilty,” “Yes, he is responsible”). each jury (group features and demographics, respectively).
Hypothesis 1b: Defence Position-Taking STUDY PART 2: RESULTS AND

We predicted that lower permissive punishment orientation
DISCUSSION
would be associated with a higher frequency of Defence position-
taking. This code was applied when participants expressed the For each hypothesis, we tested a separate hierarchical linear
opinion that either prong of NCRMD might be met, or that the model using HLM Software 7 (Raudenbush et al., 2011). Given
defendant was NCRMD (e.g., “he’s obviously mentally ill,” “he that the dependent variables were based on counts rather than
didn’t know what he was doing”). continuous measures and had several zero counts (i.e., were
positively skewed, but not suitable for regular transformations),
Hypothesis 2: Defendant Disposition the data did not meet the assumptions of ordinary linear
We predicted that more permissive punishment orientation regression (Gardner et al., 1995). We therefore specified a
would be associated with a higher frequency of references to the Poisson distribution with over-dispersion (Raudenbush et al.,
defendant’s ultimate disposition (i.e., what would happen to the 2011). Further, because jurors varied in number of utterances,
defendant following trial). total individual utterance count was included as an exposure
variable, which accounted for different “chances” for observation
of each code category. First, we examined the null model to
Coding ascertain whether the jury that a participant was in significantly
Two independent coders were trained to assess each individual
contributed to the variance in the dependent variable (i.e.,
utterance for the categories listed in the codebook, which
ran a model without any independent variables). Second,
contained principles arising from Skeem et al.’s (2004) IDA-
we added grand-mean-centred punishment orientation score4
R and Yamamoto and Maeder’s (2019) POQ. Coders also
(where higher scores denote more permissive orientation) as a
looked for references to Crown/Defence evidence/arguments
level 1 predictor and executed a random-intercepts only model.
and evaluations (e.g., “the Defence’s case was weak”) as well as
Results reported represent population average models.
explicit votes (including non-verbal hand-raises). These codes
were generated based on the trial transcript as well as a single
pilot student deliberation. We used Cohen’s kappa as a metric
Hypothesis 1a: Crown Position-Taking
In Hypothesis 1a, we predicted that more permissive punishment
of reliability and resolved disagreements through discussion.
orientation would be associated with a higher frequency of
Following Sommers (2006), two coders assessed 20% of the juries,
Crown position-taking (i.e., expressing the opinion that the
and one coder assessed the remaining juries. Notably, some codes
defendant was likely guilty). Using Crown position-taking
were used infrequently, which yielded perfect agreement when
frequency as the dependent variable, the null model was
they were not present, but did little to illustrate coders’ ability to
significant, χ 2 (9) = 26.87, p = 0.002, demonstrating that
detect that content.
level 2 grouping significantly contributed to the variation in
Roughly mirroring Greene et al. (2008), coders examined
Crown position-taking frequency. Punishment orientation did
uninterrupted utterances on a single topic (i.e., “idea units,”
not significantly predict Crown position-taking (B = 0.38, SE =
p. 208), with sentences as the rough grain size (Chi, 1997).
0.20, p = 0.060).
Implications for this choice of granularity are explored in the
General Discussion section. Because people speak less formally
in comparison to written communication, punctuation was only
Hypothesis 1b: Defence Position-Taking
In Hypothesis 1b, we predicted that lower permissive punishment
one potential marker for a coding unit; the utterance had to
orientation would be associated with higher frequency of
express a coherent thought. These units ranged from two-word
Defence position-taking (i.e., expressing the opinion that either
ideas (e.g., “I agree”) to several word run-on sentences (e.g., “And
prong of NCRMD might be met, or that the defendant
I think he knew that like it was uh it was yea, y’know, yea like, I i-
was NCRMD). Using Defence position-taking frequency as
illegal yes, but morally –”). Coders were conservative in applying
labels to passages. A slight degree of ambiguity resulted in a 3 https://osf.io/bwr3g/?view_only=88e67659f134493c82e4c0a928f17865.
label of “other”; for example, it might have been unclear with 4 Due to the correlations between POQ and IDA-R scores, as well as between the
what concept a participant was agreeing. Codes were only applied POQ dimensions, we included only a combined punishment orientation score as a
where there was substantive content. The scheme was exhaustive predictor.

TABLE 3 | Rate of major topics (per total utterance count).
Crown Defence Disposition Mental disorder Legal instructions
Group Count Proportion Count Proportion Count Proportion Count Proportion Count Proportion
Jury 1 22 0.04 17 0.03 10 0.02 46 0.09 68 0.13

Jury 2 21 0.06 2 0.01 5 0.02 15 0.05 13 0.04
Jury 3 15 0.02 15 0.02 14 0.02 63 0.10 48 0.08
Jury 4 24 0.06 5 0.01 11 0.03 37 0.10 15 0.04
Jury 5 3 0.01 24 0.04 21 0.04 25 0.04 80 0.14
Jury 6 14 0.02 20 0.03 56 0.09 22 0.03 44 0.07
Jury 7 16 0.02 12 0.02 12 0.02 37 0.05 63 0.09
Jury 8 17 0.04 11 0.03 24 0.06 45 0.12 39 0.10
Jury 9 17 0.04 9 0.02 28 0.06 38 0.08 47 0.10
Jury 10 7 0.23 0 0.00 0 0.00 0 0.00 3 0.10
TABLE 4 | Group characteristics broken down by discussion group.
Group Outcome Proportion guilty verdicts Size Straw poll timing* Time (Minutes)
Jury 1 (A) Hung 0.56 9 326 (549) 41.00

Jury 2 (B) Guilty 0.67 6 325 (327) 28.00
Jury 3 (C) Hung 0.33 9 Informal Sequential (618) 47.00
Jury 4 (D) Guilty 0.82 11 1 (372) 28.00
Jury 5 (E) NCRMD 0.25 8 Informal Sequential** (557) 42.00
Jury 6 (F) NCRMD 0.50 6 Formal sequential (637) 36.00
Jury 7 (G) Hung 0.50 6 391 (730) 32.00
Jury 8 (H) Hung 0.75 12 14 (383) 47.00
Jury 9 (I) Hung 0.67 9 29 (451) 43.00
Jury 10 (J) Guilty 0.86 7 26 (31) 1.72
“Informal sequential” indicates that jurors provided a verdict along with a rationale and/or informally expressed positions in turn.
“Formal sequential” indicates that jurors confirmed a position one after another.
*Utterance number at which a formal poll was initiated and completed, followed by total number of utterances in brackets.
**Poll vetoed by a juror.
TABLE 5 | Demographics broken down by discussion group.
Group Age Gender Racial composition Know person with

mental disorder
Mean (SD) Man Woman Trans White Another race Yes No
Jury 1 (A)* 30.2 (9.7) 6 (66.7%) 3 (33.3%) 0 6 (66.7%) 3 (33.3%) 4 (44.4%) 5 (55.6%)
Jury 2 (B)** 25.0 (5.1) 5 (83.3%) 1 (16.7%) 0 2 (33.3%) 4 (66.7%) 4 (66.7%) 2 (33.3%)
Jury 3 (C)* 40.4 (16.8) 4 (44.4%) 5 (55.6%) 0 7 (77.8%) 2 (22.2%) 5 (55.6%) 4 (44.4%)
Jury 4 (D)** 26.6 (9.4) 7 (63.6%) 3 (27.3%) 1 (9.1%) 5 (45.5%) 6 (54.5%) 7 (63.5%) 4 (36.4%)
Jury 5 (E)*** 24.8 (9.1) 6 (75.0%) 2 (25.0%) 0 4 (50.0%) 4 (50.0%) 5 (62.5%) 3 (37.5%)
Jury 6 (F)*** 30.0 (14.0) 3 (50.0%) 3 (50.0%) 0 5 (83.3%) 1 (16.7%) 4 (66.7%) 2 (33.3%)
Jury 7 (G)* 23.8 (7.2) 4 (66.7%) 2 (33.3%) 0 3 (50.5%) 3 (50.5%) 4 (66.7%) 2 (33.3%)
Jury 8 (H)* 22.7 (4.6) 5 (41.7%) 7 (58.3%) 0 9 (75.5%) 3 (24.5%) 7 (58.3%) 5 (41.7%)
Jury 9 (I)* 26.9 (8.1) 3 (33.3%) 5 (55.6%) 1 (11.1%) 7 (77.8%) 2 (22.2%) 9 (100%) 0 (0%)
Jury 10 (J)** 40.0 (12.7) 4 (57.1%) 3 (42.9%) 0 5 (71.4%) 2 (28.6%) 4 (57.1%) 3 (42.9%)
*Hung, **Guilty, ***NCRMD.
the dependent variable, the null model was non-significant, punishment orientation on Defence position-taking frequency,
χ 2 (9) = 9.60, p = 0.384, demonstrating that level 2 grouping B = −0.56, SE = 0.17, p = 0.002, such that those with a
did not significantly contribute to the variation in Defence higher permissive orientation had a lower frequency of Defence
position-taking frequency. There was a significant effect of position-taking utterances.

Hypothesis 2: Disposition discursive context, then quantitative methods become limiting.

In Hypothesis 2, we predicted that more permissive punishment Accordingly, we conducted a third exploratory study that relied
orientation would be associated with a higher frequency on inductive methods, to the aim of situating the data in
of references to the defendant’s ultimate disposition (i.e., participants’ narratives and usage of punishment orientations.
what would happen to the defendant following trial). Using
disposition-related utterance frequency as the dependent
variable, the null model was significant, χ 2 (9) = 60.56, p < STUDY PART 3: OVERVIEW
0.001. The effect of punishment orientation on disposition-
related utterances was non-significant, B = 0.21, SE = 0.16, Haidt (2001) has maintained that evaluative feelings about
p = 0.192. another’s actions defy easy articulation and emerge automatically
without consciously weighing rational premises. One salient
Implications example is the common aversion to a romantic relationship
Results of three hierarchical linear models revealed that between siblings (Haidt, 2001). People seem to have a sense that
punishment orientation predicted a higher frequency of it is wrong even if they cannot justify that feeling, a phenomenon
utterances that explicitly supported the Defence, but not known as “moral dumbfounding.” As Haidt (2001) described,
those supporting the Crown or discussing the Defendant’s people tend to maintain their initial position on an issue,
eventual punishment. These findings support previous work often with awareness at their inability to produce reasonable
on punishment and the insanity defence. In their study of counterarguments. A key tenet of this social intuitionist account
judge’s instructions and jury deliberations, Wheatman and is the assertion that moral “reasoning” is retroactive (Saltzstein
Shaffer (2001) found that while including information about the and Kasachkoff, 2004). Similarly, as Breheney et al. (2007)
defendant’s disposition did not influence individual verdicts, remarked, jurors might have a general aversion to the notion that
juries who heard these instructions were significantly more those found insane are not punishable in the traditional sense,
likely to find the defendant NGRI. Thus, consideration of regardless of lacking a guilty mind.
the defendant’s disposition can elicit leniency. It is perhaps Haidt and Graham (2007) proposed that there are five moral
unsurprising, then, that in the current study, punishment intuitions (also called foundations): fairness/reciprocity,
attitudes related to leniency (i.e., supporting the Defence) rather harm/care, authority/respect, sanctity/purity, and
than harshness. Because the burden is on the Defence to prove ingroup/loyalty. Each foundation may be rejected or accepted
insanity, jurors who are punishment-motivated might look the as a basis for moral virtues (i.e., qualities that make a person
same as those who simply have a high threshold of proof that the “good”). The fairness dimension concerns notions of equality and
accused had a mental disorder at the time of the crime. Although equal protection. For instance, people tend to be concerned with
the burden to prove the accused had a mental disorder is a lower the justness of the procedures used to make decisions, sometimes
standard than beyond a reasonable doubt (i.e., “more likely more so than with the actual outcome (Tyler, 1984). The harm
than not”), mock jurors may not have made this distinction. In dimension concerns preference for actions that promote safety
essence, some jurors might have been able to override an aversion rather than suffering. For instance, some may find it virtuous
to traditional punishment in favour of following the law, while to prevent the suffering of the greatest number of people, while
others might have simply been punishment motivated. However, others cannot tolerate harm to a single individual (Foot, 1967).
those who are willing to make inferences from the evidence The authority dimension concerns deference to hierarchy. For
that support an insanity narrative may be particularly averse instance, some cultures may emphasise subordination whereas
to traditional punishment. Individuals with greater strength of others value challenges to authority (Haidt and Graham, 2007).
conviction with respect to prohibitive punishment orientation The sanctity dimension extends more primitive notions of
might also have needed to defend their position intensely given uncleanliness and danger to the moral realm. For example,
the burden of proof. religious virtues may dictate appropriate bodily activities such as
sex (Haidt and Graham, 2007). Finally, the ingroup dimension
Limitations concerns the natural tendency to socially categorise others and
Results of Studies 1 and 2 provided support for the role of preference loyalty to those perceived as similar. Moreover, moral
punishment orientation in informing both jurors’ initial survey of foundations share a connection with the primary factors thought
the evidence as well as their public advocacy for those positions. to influence jurors’ consideration of evidence (Devine, 2012).
However, there are a handful of limitations to consider. First, For instance, the authority foundation might speak to mock
the data are underpowered to examine group outcomes. Because jurors’ assessment of the credibility of the witnesses and other
the primary interest in this study was descriptive rather than evidence. Other mock jurors might be preoccupied with the
inferential, we did not examine relationships between variables moral violation itself (i.e., direct harm done to another) or the
of interest and final verdict outcomes. Second, many of the fairness of not receiving traditional punishment.
categories from the initial code bank were simplistic; it is unclear While the general goal of content analysis is to reduce
from the quantitative content analysis alone how participants a large amount of data to a more concise rendering of a
engaged the idea of punishment. The central role of narratives phenomenon, as Hsieh and Shannon (2005) summarised, it
in juror decision-making arguably beckons qualitative methods. is also a tool for subjective interpretation. Qualitative content
If the idea is that jurors co-construct meaning in a unique analysis moves further on the interpretive spectrum as compared

to Quantitative content analysis (Sandelowski, 2000). However, into a code manual, and then conceptually similar codes were
Qualitative Description can be considered relatively “low- placed together. Finally, categories were assigned that captured
inference,” in contrast to other Qualitative methods such as the relationship between these conceptually similar codes. Given
grounded theory (Sandelowski, 2000, p. 335). In the summative that qualitative content analysis moves beyond manifest content
content analysis approach, keyword and content searches serve to to encompass some subjective interpretation, drawing parallels
identify language that is manifestly representative of a construct. to quantitative methods of quality assurance (e.g., inter-rater
Then, moving beyond manifest content, the researcher tries to reliability) is a complicated endeavour. Mayring (2014) thus
understand the context in which those terms are mobilised, in recommends that a second researcher serve as quality control by
attempts to uncover alternative meanings (Hsieh and Shannon, “supervising” and “checking” the first coder’s work (undertaken
2005). Hence, this method fills a gap by providing a more by the second author). Because we stayed relatively towards the
nuanced picture of the role that the variables of interest descriptive end of the spectrum, codes should reasonably read as
play in persuasion. The purpose of Study 3 was to provide present or absent.
a closer look at the general content identified in Study 2
and to explore usage of language related to moral intuitions
(i.e., moral foundations theory, Graham et al., 2009). Taking STUDY PART 3: RESULTS AND
direction from Hsieh and Shannon (2005), Erlingsson and DISCUSSION
Brysiewicz (2017), and Sandelowski (2000), we first completed a
Disposition
qualitative description of utterances whose content was about the
This analysis probed the question of how mock jurors engaged
defendant’s disposition.
ideas about the defendant’s potential punishment. Five general
We used the Linguistic Inquiry Word Count (LIWC,
categories emerged with respect to what would happen to
Pennebaker et al., 2015) program to flag utterances containing
the defendant after the trial: the effectiveness of prisons, the
language related to the moral intuitions of authority, fairness,
conditions of prisons, the jury’s duty in considering punishment,
and harm5 . The moral foundations dictionary, which comprises
desires for rehabilitation, and desires for incapacitation. Hence,
a collection of words associated with each foundation, has been
the majority of discussion surrounded utility-based concerns,
extensively contextually validated (Graham et al., 2009), and so
although there were a handful of references to ideas of just deserts
it was a more reliable gauge of some of the constructs of interest
(e.g., “scot-free”).
as compared to the initial codes. Graham et al. (2009), with the
First, several mock jurors indicated that prisons are not
assistance of a team of researchers, created this dictionary by
rehabilitative, which tended to accompany discussions about the
searching for words theoretically associated with each dimension
amount of suffering in prisons. One NCRMD voter indicated that
and then examining use of those words in transcribed religious
a defendant should prefer jail over institutionalisation, citing that
sermons. The dictionaries for fairness and harm served as a proxy
periods of institutionalisation are typically longer than prison
for retributive desires. The authority dictionary served to further
sentences in these cases. There were also varying beliefs about the
probe mock jurors’ discussions about the psychiatrist and about
conditions of corrections centres. In the following exchange, one
the law itself.
NCRMD voter (J12H) argues to guilty voters that prison facilities
have poor conditions (i.e., are “not a great place to be”).
STUDY PART 3: METHOD J5H: Also like, being in jail, is not the worst thing that can
happen to you.
We conducted a summative content analysis, in which we
J10H: (Inaudible) medication.
coded utterances relating to a-priori content of interest. After
J5H: Yea, actually, if they get him help, in jail, then.
using LIWC (Pennebaker et al., 2015) to conduct a keyword
J12H: Our prison facilities here are (inaudible). You have to share
search for moral foundations language, we content analysed all
toenail clippers with forty other guys, it’s not a great place
resulting passages. Following Erlingsson and Brysiewicz (2017),
to be. But he will have to take his medication.
the first author first read and re-read the utterances from
J7H: But I don’t think you can, I don’t think you can judge like:
all 10 juries, to get a general overview of the content. Next,
“Oh, it’s gonna be really hard in jail.” Like I can’t bring that
utterances were broken down into meaning units, in a similar
into, like, my decision as to whether or not he is. I’m sorry.
fashion to Greene et al. (2008). Meaning units were defined
as an utterance by a single juror on a single topic, which had The above passage also illustrates a third category, which
independently substantive meaning. Meaning units were then pertained to the jury’s duty in considering the defendant’s
condensed into smaller representative phrases, still staying as disposition. Some jurors urged others to “follow the law.” Others
close as possible to the participants’ words. Codes were then acknowledged that the defendant’s disposition was not legally at
assigned to each utterance, which captured their general essences. issue, but nonetheless discussed the topic.
These codes along with exemplar utterances were combined
J5I: And, I mean there is also, I mean, the, um, prison could
5 We
also be, a, danger to, um, somebody, with, a, mental illness,
examined data on all five moral foundations, but the purity and ingroup
dimensions only yielded a handful (48 and 55, respectively) of usages, most of
it can go both ways, but I can’t, I’m not sure.
which were contextually invalid. Therefore, we only analyzed fairness, harm, and J6I: But a murderer is dangerous to a mental facility [laughs].
authority. Implications are explored in the Discussion section. J4I: (Inaudible).

J5I: I’m not sure, it’s appropriate for us to consider sentencing? successful. One juror attempted to persuade the eventual lone
[Talking over each other]. holdout (J1E) of eight:
J5I: There’s a whole, there’s a whole thing of, I-I mean, I’m
J3E: If he were to have paranoid schizophrenia, do you believe
personally, strongly, of the opinion that the prison system
that jail is the right thing for him?
needs reform, but like, I still, I mean.
J1E: No.
[Talking over each other].
J3E: No, you don’t.
J1I: She did, specifically.
J1E: The hospital.
J5I: Yea, so I-I, unfortunately I don’t think, we can, we’re
J3E: Right.
allowed to, like, consider that, I think we just have
J1E: If he was cured somewhere like that.
to go off of the facts (inaudible) different stage with
J3E: So, if I’ve not misunderstood, if is found guilty he would
different deliberations.
go to jail, if he was found not criminally responsible and he
Some jurors espoused the idea that it was not their duty to has a mental illness, he would be going to mental hospital
consider punishment or treatment. or seeing doctors on a regular basis, is that right?
J1E: I would rather him have a (inaudible).
J1C: The one thing that’s guaranteed though if you’re sent to the
J3E: But isn’t that what Not Criminally Responsible means?
psychiatric facility, he will be treated. Okay? You send him
to jail, he’s gonna do his time, he’s gonna get out, and he’ll The holdout juror changed positions by the end of the
be back in fruitbat land. deliberation: “And I do like Not Criminally Responsible. The fact
J9C: Yeah, but we’re not, we’re not debating that. that he would be taken care of.”
J2C: Yeah, that’s not the issue that (inaudible) to me, it whether Notably, there were a handful of utterances indicating an
not whether[sic] or not it’s effective, I know it’s not effective. unfavourable attitude towards the language of NCRMD because
It’s whether or not this specific individual, if (inaudible) to it implies that the defendant is not punishable (e.g., J4F: “I
receive the treatment, they would receive because they have just don’t like how they phrased it. . . It makes it sound like he’s
a mental illness or whether they should be put to the prison not responsible like he’s going to get away like”). There were
system because they have all their faculties. Well, I agree also notions that NCRMD is a legal loophole (e.g., J4A: “And
with you the prison system does nothing to rehabilitate I also believe sometimes that Defence attorneys will tell that
criminals, but to me that’s not the issue here. to their clients, umm, ya know?”). These ideas are reminiscent
of strict liability and injustice and danger attitudes towards
This passage also highlights a fifth category pertaining to jurors’
the insanity defence. In brief, mock jurors predominantly
desires for incapacitation and protection of society. Relatedly, the
espoused concerns about rehabilitation, the conditions in and
timing of the defendant’s release was a point of contention. Some
effectiveness of corrections, incapacitation, and their duty in
juries settled on the idea that the defendant would not be released
considering punishment.
until safe.
J6E: Do you guys know that hospital, like how does that work? Moral Foundations
J8E: I think you stay there until the professionals deem you fit, This analysis addressed the question of how different moral
or get you under control. foundations were rejected or accepted in persuading other
J6E: And then right back into normal clothes? jurors. The search for words related to the purity and ingroup
J8E: I think so. And then, I think, definitely probably back to foundations returned insufficient data for analysis. Therefore,
a psychiatrist. we examined how jurors used language relating to the moral
J8E: But it’s not just like you spend a week and. foundations of authority, fairness, and harm in justifying their
J6E: Yeah, it would be a while. positions. Of note, LIWC (Pennebaker et al., 2015) separately
flags words with positive and negative valences, to give a sense of
Other jurors maintained a concern that the defendant was
whether words constituted the foundations as “vices” or “virtues.”
a danger to society dependent on their decision. This belief
persisted among those who questioned the defendant’s motive
Authority
in avoiding prison. For instance, two jurors who previously
LIWC (Pennebaker et al., 2015) yielded 6 utterances containing
expressed concerns that the lawyer coached the defendant had
authority vice language and 64 containing authority virtue
the following exchange:
language. Both NCRMD and guilty voters leveraged principles of
J2A: So what happens next time? authority acceptance and rejection in their utterances but differed
J4A: Does he kill again? Because he. . . he’s [scare quotes] in terms of whose authority should be trusted. NCRMD voters
schizophrenic? Are you guys good with your decision? deferred to the authority of the psychiatrist, as demonstrated in
[Gestures at J3 and J6]. the following exchange on a hung jury, in which the eventual lone
holdout (J1I) defended his position:
A fifth category pertained to jurors’ desires for the defendant’s
rehabilitation. It was commonplace for mock jurors to either J1I: I think under the rules we were given we’re engaging in a
indicate that treatment was needed or to use questions lot of speculation about what’s, not in there, again I’m, I’m
about treatment as a persuasive tactic, which were sometimes trusting the psychiatrists’ diagnosis, and we’re engaging. . . ,

In, what, to me, is a lot of tenuous speculation “well maybe action. Mock jurors seemed to converge on the idea that bias
the psychiatrist is wrong, maybe there’s this, maybe there’s was an important consideration but differed on whether it
that”—I think you guys are –[Talking over each other]. was present. NCRMD voters tended to cite the psychiatrist’s
J1I: – insinuating a lot of the things, into, the case. professional reputation and neutrality. Guilty voters sometimes
J5I: I do think it’s an obligation of jurors, though, to consider communicated the idea that the psychiatrist might be biased,
the quality of the evidence, and my opinion was that I mean ranging from the potential for anyone to be biased to outright
the psychiatrist doesn’t, lack quality, but the quality of the dishonesty. Both NCRMD and guilty voters also called attention
evidence would be vastly improved by even, again, just one to their own potential for bias.
corroborating witness. And they didn’t have that, and that
J6D: Well, I guess the bias is like, for me is I hang out with
makes me feel like that I, really want to believe them, but I
a lot of (inaudible) sick faces (inaudible). For me, like, I
just feel like I can’t.
deal with a lot of kids where they are treated, they’re like
In the above passage, while Juror 1I insists that the authority of (inaudible) they’re treated like (inaudible).
the psychiatrist be accepted, Juror 5I rejects the idea in favour J9D: I don’t know, I think just focus on that particular question.
of consideration of the Crown evidence. Similarly, one juror I mean, you can use all of your prior knowledge or your
objected to reliance on the psychiatrist’s authority: “J6F: to me past experience, of course, but I think that based on what
it’s weird cuz like we’re just kinda like putting a label on this we have and then, that particular question, you have to
thing and saying it’s like ok by like certain authorities uh. . . decide for yourself. [turns to J10] What about you?
things are excusable because of this like black box that we don’t J10D: Yeah, I’m, um, again, I’m totally biased as well, but I’m—
know—or that I don’t know anything about.” Rather than the you know, based on what we have here, I’m definitely
authority of the psychiatrist, guilty voters tended to defer to the gonna say guilty. Unfortunately.
authority of the law. For instance, one juror who maintained a
LIWC (Pennebaker et al., 2015) also captured concessions
guilty verdict throughout deliberation persisted in the idea that
(e.g., “that’s fair”), as well as parroting of legal language. In
the defendant did not have a diagnosis of schizophrenia: “Under
particular, the term “reasonable” is in the fairness dictionary
the law, or under the hospital act of Canada, he is not certifiable
and was primarily used in discussing the concept of reasonable
schizophrenic.” However, given that this assertion is not factual,
doubt. Occasionally, jurors indicated that another’s position
the participant appears to have been using law as an authority
was “reasonable.” Finally, “justice” and “justification” tended to
without any knowledge thereof. It was also common for guilty
appear in discussions of whether it was permissible for one to kill
voters to rely on the phrase “that’s the law.” This notion tended to
an alien or another person in self-defence. In sum, the keyword
accompany discussions about the defendant’s punishment.
search for fairness flagged acceptances of this moral foundation,
In terms of alternative usages that did not evince rejection
but not rejections of it.
or acceptance of this moral foundation, LIWC (Pennebaker
et al., 2015) also flagged utterances related to the role of
the Defence lawyer. For instance, jurors debated whether the
Defence lawyer would encourage a client to erroneously plead Harm
NCRMD: “And then the thing, the case, for th-the lawyer, I LIWC (Pennebaker et al., 2015) yielded 195 utterances
mean he can’t try to convince someone to like act crazy or containing harm vice language and 37 containing harm virtue
lie as the lawyer you know. . . that gets you disbarred or get language. The software flagged every instance of the word “kill,”
into a whole lot of trouble too.” Usages also encompassed given that it represents a harm against another. Kill-related
jurors’ attempts to establish their own credibility. Jurors who utterances had roughly three forms. First, both NCRMD and
voted guilty sometimes tried to establish their own authority guilty voters occasionally acknowledged the harm done (e.g.,
by indicating they had experience with law or forensics. Like “he killed a man”). Second, jurors debated the characteristics of
guilty voters, NCRMD voters sometimes established their own “violent people,” for example: “I mean most of them either abuse
credibility, but more often through experience working with animals before, or get in fights and assaults before the murder,
persons with mental disorders. For instance, one juror repeatedly they don’t just. . . ” Third, mock jurors focused on the victim’s
espoused facts about anti-psychotics. Specifically, they suggested manner of death. For instance, they attempted to make inferences
that the defendant’s anti-psychotic appeared to be working, and from the number of stab wounds, which were positioned as
that this was evidence of a true mental disorder. NCRMD voters indicative of the defendant’s emotional state:
also sometimes downplayed their own experience in deference to
J1F: I was—I was gonna say that one of the things I considered
others’ expertise: “I mean, I’m not the doctor so.”
was how the victim was killed, in other words was it a. . .
you know, a shot to the head, was it a single stab wound,
Fairness but multiple stab wounds to the neck –
LIWC (Pennebaker et al., 2015) yielded 39 utterances containing J5F: You’re either angry or you’re scared.
fairness vice language and 11 containing fairness virtue language. J4F: Well if you’re angry you just [inaudible−9:43].
One of the most frequently flagged words related to the fairness [All at once—inaudible].
moral foundation was “bias,” which appeared to encompass J1F: It’s like—stab, stab, stab, I don’t know, I—I just felt that –
acceptance of this moral foundation in determining correct J3F: Yeah, I hear what you’re saying.

Unsurprisingly, guilty and NCRMD voters diverged on who the In terms of discussion surrounding the defendant’s eventual
defendant believed the victim was—an alien or his friend—and disposition, jurors’ utterances encompassed several of the
by extension, his motive for killing. Several jurors questioned the major goals identified by both psychologists and philosophers.
necessity/excessiveness of killing (i.e., that there were alternative However, the majority of these goals pertained to utilitarian
choices). Relatedly, the keyword “protect” emerged in two concerns of rehabilitation, incapacitation, and deterrence. This
distinct contexts. First, NCRMD voters tended to favour the finding is in line with research showing that when justifying
narrative that the defendant believed it necessary to kill in order decisions, people tend to prefer utilitarian reasons to retributive
to protect society. Conversely, among guilty voters, the term ones (Carlsmith et al., 2002). However, their preoccupation
“protect” arose more so in relation to the need to protect society with the poor vs. acceptable conditions of prisons shares a
from further violence. One juror even made explicit reference to kinship with retributive concerns (i.e., the amount of harm
the Punishment Orientation Questionnaire: the defendant might experience). Passages flagged by the moral
foundations dictionary provided some insight into jurors’ more
J4I: [Raises hand] Oh! OK! Right! The reason why I was saying
retributive driven arguments. Specifically, the harm dimension
that we should consider that is that, I feel like, if we’re
underscored concerns with the degree of damage done by the
unsure, if we are leaning toward one way but we’re really
defendant (as well as future dangers). Findings seem to suggest
unsure, then we should go with the decision that benefits
that jurors do engage moral intuitions during deliberation.
society, like. The questionnaire that we filled out? Online?
Moreover, appearance of this language provides further evidence
J5I: Ohhhh!
of contextual validity for portions of Graham’s et al. (2009) Moral
J4I: Is it that, if someone’s responsible, is it that they get what
Foundations Dictionary. Indeed, moral foundations related
they deserve? Or is it that, it’s what, benefits society most,
language is embedded into the law itself, which participants
so I’m just saying if it’s to the point where we’re really
often echoed.
indecisive? Then we should go with the decision which,
is the most beneficial, or protecting of, people, including,
inmates, but, I, just [raises hands] like.
GENERAL DISCUSSION
As with the fairness dimension, LIWC (Pennebaker et al.,
2015) flagged legal language, specifically several occurrences This three-part study explored the role of punishment
of “suffering from a mental disorder.” The term “suffering” orientation in mock jurors’ pre-deliberation decisions and
appears in the National Judicial Institute model instructions. deliberation content in response to a fabricated NCRMD case
Understandably, the law appears to encompass multiple involving paranoid schizophrenia. Study Part 1 involved analysis
moral foundations. of individual juror decision-making. Study Part 2 involved
a directed content analysis and hierarchical linear models
testing the relationship between punishment orientation and
Implications deliberation content. Finally, Study Part 3 more closely examined
The intention for Study Part 3 was to provide a more complete that content through a combination of keyword searches and
understanding of the general constructs highlighted in Study Part qualitative description.
2. Following a qualitative description paradigm, we conducted a The Introduction opened with a quotation from Judge David
summative content analysis by examining utterances containing Bazelon: “Our collective conscience does not allow punishment
key words relating to moral foundations (Graham et al., 2009) where it cannot impose blame.” Are jurors likely to agree? Our
and utterances related to the defendant’s potential disposition. primary interest was what principles and strategies mock jurors
The data were presented to compare and contrast NCRMD and relied on in attempting to defend their positions. The rationalist
guilty voters’ interpretations of case facts as well as their use of camp might say that punishment should indeed be a calculation
the same values in justifying positions. based on a defendant’s intentionality and of potential future
As Graham et al. (2009) argued, the form of one’s moral consequences. Conversely, from an intuitionist perspective, one
persuasions can be more interesting than the simple content. could say that the need for punishment alone imposes blame.
In general, results imply that jurors from different positions Under a retributive framework, for example, justifications for
relied on similar rhetorical strategies, including logical if/then punishment are retrospective; retribution is desired simply by
statements as well as appeals to intuition (e.g., “it just seemed virtue of a harm done. As Tebbit (2005) articulated, retributive
like”). They seem to diverge on the premises presented in oriented people punish because they want to.
supporting those arguments; use of moral foundations related The data can shed light on the relative emphasis certain
language helped to uncover what values might have motivated jurors place on each strategy. In Part 3, we found that mock
those interpretations. In a post outlining how lawyers can juror utterances occasionally featured virtually no reasoned or
incorporate moral foundations language into their closing narrative justification of their perspective. Rather, they presented
and opening statements, one litigation consultant remarked: conclusions as self-evident. Mock jurors also evinced acceptance
“Without a theme, your case is just information: facts, claims, of three moral foundations, in line with Graham et al. (2009).
exhibits, instructions, and witnesses” (Broda-Bahm, 2015). This These results lend support to an intuitionist account. On
advice appears to be well-placed, given that moral foundations the other hand, jurors also seem to use reasoned arguments
might feature in discussion. surrounding the burden of proof and lack of evidence. For

example, several jurors articulated affectively based reasons from friends to the media and politicians; researchers should
for wanting to vote NCRMD (e.g., sympathy), but cited legal consider such sources of persuasion.
instructions as prohibiting reliance on those feelings, which could We did not control for group level influences as previous
be interpreted as a cognitive override of intuitions. Overall, given researchers have done, such as simultaneous vs. sequential
that punishment orientation shared a significant relationship voting (Davis et al., 1988), leaving the power of normative vs.
with juror decisions and utterance frequencies, it is at least clear informational influences ambiguous. The models in Part 2 were
that jurors do not discount punishment intuitions. more simplistic than other possible models. It would be useful
in future research to treat utterances as nested within jurors
Implications and to add time as a variable. Accounting for the presence or
It may be left to lawyers and psychiatrists to persuade jurors on absence of certain topics later in deliberation might give us a
the appropriateness of NCRMD. Results of content analyses from sense of whether juries were evidence or verdict driven. Similarly,
Parts 2 and 3 underscore at least three possible strategies. First, a time variable could provide information about whether more
mock jurors appear concerned about whether they are permitted moralised issues drive deliberation or occur towards the end, after
or ought to consider the defendant’s ultimate disposition. In fact, thorough discussion of evidence.
these studies undermine the very notion that jurors are not in the Although the qualitative analyses reported in this paper
business of deciding punishments. If jurors truly make decisions were largely descriptive in nature, “immaculate perception”
on the basis of intuitions (Haidt, 2001), then it is difficult to is not possible (Beer as cited in Sandelowski, 2000, p. 335).
conclude that punishment is irrelevant to the decision. Therefore, It is necessary to acknowledge that all qualitative analyses
perhaps instructions should be amended to explicitly broach feature some number of interpretive liberties. For instance,
what role punishment might play in their decision. Second, we chose to present findings by comparing and contrasting
lawyers, through opening/closing statements or expert testimony guilty and NCRMD voters, which might have influenced results.
might consider explicitly depicting either incarceration as As such, the analysis does not focus on jurors who were
rehabilitating or institutionalisation as punishing. Third, legal relatively uncertain, but rather captures those who had stronger
practitioners might consider the role of authority in juror moral convictions. However, that interpretation more closely
decisions. Study Part 3 indicated that some NCRMD and guilty approximates our research question, and so we leave ideas
voters diverged on deference to the law vs. to the psychiatrist. about how uncertainty manifests in terms of swing votes to
Again, legal instructions explicitly permitting jurors to consider future researchers.
punishment might change decisions. Even where there is no While the inevitable interpretability of the data can be an
opposing expert testimony, a second corroborating expert might issue, by the same token, further interpretation would likely
be needed. In either case, a strategy might be to feature moral yield a richer picture. Again, our descriptive qualitative analysis
foundations language in opening statements. However, it is worth does not account for the phenomena such as powered dynamics
noting that even in the face of these changes, mock jurors could of group discussion (e.g., how jurors negotiated turn-taking or
experience dumbfounding (Haidt, 2001). monopolised conversation). We also did not delve deeply into
the ways that participants might have co-constructed meaning
Limitations differently across the juries. Such work has been undertaken
There are a number of general limitations that require in other disciplines (e.g., Maynard and Manzo, 1993), which
consideration. Chief among those limitations is the exploratory are better suited to situate jury deliberation utterances in a
nature of the study, which resulted in a small-scale investigation dynamic context.
lacking experimental manipulations. Although this restricted Finally, it is worth acknowledging that conceptualizations of
focus was intended to produce a rich rather than comprehensive punishment throughout these studies are based on Western,
project, several variables of interest were left unexplored. For individualistic cultural values. Specifically, the POQ (Yamamoto
instance, research underscores mental disorder stigma as a and Maeder, 2019) does not feature a range of other punitive
likely source of juror bias, which can vary as a function goals. Indigenous Peoples, for instance, might prefer a restorative
of mental disorder type (Yamamoto et al., 2017). Likewise, justice approach to dealing with criminal offences, in which the
jurors’ prototypes about mental disorders seem to influence community works together to prioritise healing (Achtenberg,
decision-making (Skeem and Golding, 2001). These studies also 2015).
cannot account for the intersectionality of experiences with
mental disorder (Crenshaw, 1989). Defendant and participant
characteristics (e.g., race, gender) tend to change jurors’ Conclusion
perceptions. Additionally, notions of free will play a significant What was in the black box? Results demonstrate that ideas about
role in psychiatric vs. legal conceptualizations of the insanity appropriate punishment feature in both thought process and
defence (Rychlak and Rychlak, 1990). It is also likely that beliefs persuasion, and that mock jurors’ decisions stem partially from
about free will are associated with prohibitive vs. permissive moral conceptualizations of insanity rather than the evidence
punishment orientations, given that the latter is marked by alone. Findings also provide a glimpse into the power of
greater blame. Future researchers may therefore wish to measure mixed methodology and highlight limitations of the quantitative
general beliefs about human agency. It also bears mentioning that paradigm in providing a complete understanding of narratives in
there are many other origins of beliefs about insanity, ranging unique discursive contexts.

DATA AVAILABILITY STATEMENT AUTHOR CONTRIBUTIONS

The datasets presented in this study can be found in online SY and EM contributed to conception/design of the study
repositories. The names of the repository/repositories and and creation of stimuli. SY conducted data collection and
accession number(s) can be found at: https://osf.io/bwr3g/?view_ analyses under the supervision of EM. SY wrote the first
only=88e67659f134493c82e4c0a928f17865. draught of the manuscript. EM revised, read, and approved the
submitted manuscript. Both authors contributed to the article
ETHICS STATEMENT and approved the submitted version.
The studies involving human participants were reviewed and FUNDING

approved by Carleton University Research Ethics Board B. The
patients/participants provided their written informed consent to This research was supported by a Carleton University
participate in this study. Development Grant.
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ORIGINAL RESEARCH

published: 30 June 2021

What’s in the Box? Punishment and

In insanity cases, although the defendant’s eventual punishment is legally irrelevant to

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2011). Hence, Yamamoto and Maeder (2019) theorised that Method

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DISCUSSION 3. Permissive Retributive 0.46** 0.42** 1

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Hypothesis 1b: Defence Position-Taking STUDY PART 2: RESULTS AND

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TABLE 3 | Rate of major topics (per total utterance count).

Crown Defence Disposition Mental disorder Legal instructions

Jury 1 22 0.04 17 0.03 10 0.02 46 0.09 68 0.13

TABLE 4 | Group characteristics broken down by discussion group.

Jury 1 (A) Hung 0.56 9 326 (549) 41.00

TABLE 5 | Demographics broken down by discussion group.

Group Age Gender Racial composition Know person with

Mean (SD) Man Woman Trans White Another race Yes No

*Hung, **Guilty, ***NCRMD.

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Hypothesis 2: Disposition discursive context, then quantitative methods become limiting.

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DATA AVAILABILITY STATEMENT AUTHOR CONTRIBUTIONS

The studies involving human participants were reviewed and FUNDING

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DISCUSSION 3. Permissive Retributive 0.46 0.42 1

Hung, Guilty, NCRMD.