By Dr. Ken Broda-Bahm:
Wherever juries are used, we tend to expect quite a lot out of them. As Marie Comiskey, Senior Counsel with the Public Prosecution Service of Canada, has written, "While first-year law students are given a semester to learn the rudiments of criminal law, jurors are expected to become conversant with the essential elements of the criminal law over the space of a few hours while listening to a judge's instructions." The instructions in civil law, of course, can be every bit the hurdle of their criminal cousins. When the legally trained look at these instructions and consider them "understandable," or "clear enough," I think that assessment suffers from what I'll call an "analytical privilege:" Lawyers who are trained to think systematically in a discrete and logical sequence are likely to understand the underlying decision tree without having it drawn out for them. For the rest of the population -- untrained and far less analytical on average -- it is a safe bet that the drawing would help.
I have written previously on the advantage of a flow-chart verdict form, citing earlier research (Fang, 2014). Marie Comiskey's new article (2016) draws from experience and research in Canada, the U.S., Australia and Europe in order to forcefully argue that using decision trees or flow charts in jury verdict forms could substantially aid juror comprehension without threatening the jury's freedom to deliberate on its own terms. Pointing to several studies showing greater subjective and objective understanding and comfort with decision making, she concludes "there is promising evidence that juror comprehension can be enhanced through decision trees." While the innovation has not been tried very often in the courts of various countries, decision trees have been frequently used in the field of medicine, where research shows that they aid in patient comprehension of treatment options. Beyond using decision trees in the verdict design, they can also be used for demonstrative purposes to teach jurors about the flow of their upcoming decision. Building on my earlier thoughts and adapting some of Comiskey's ideas, this post offers a few additional examples.