The Feasibility of Expanding the Jury Pool in Hong Kong

Abstract

The present study aims to provide an empirical demonstration that a feasible solution to expand the jury pool is to lower the minimum age requirement to include 18-year-olds. The present study compares the following three types of responses from a youth sample and from an adult sample: (a) the ratings of reliability of commonly seen evidence, (b) guilt judgments in a hypothetical rape trial, and (c) rationales for verdicts. Results showed that both youth and adult participants were capable of basing their judgments largely on legally relevant information. When guided by evidence, some youths in the present sample could reach similar guilt judgments to the adults. However, youths appeared to have a lower threshold for being satisfied beyond reasonable doubt when certain evidence was presented.

Keywords

jury decision making Hong Kong court evidence college sample jury eligibility requirement minimum age limit

Introduction

The jury system was introduced to Hong Kong in 1845, shortly after Hong Kong became a British colony. The principle of “one country, two systems” grants Hong Kong a high degree of autonomy and promises little change in the social and legal systems in Hong Kong after the return to Chinese sovereignty. As a result, Hong Kong remains a common law jurisdiction. The legal system in Hong Kong resembles the system in England and Wales to a greater degree than the system in mainland China. The importance of the jury is also recognized in Article 86 of the Basic Law, which stipulates “the principle of trial by jury previously practiced in Hong Kong shall be maintained.” Although there is no constitutional right to trial by jury in Hong Kong, trial by jury has been considered as one of the most essential features of the legal system in Hong Kong (Judiciary, 2012).

Despite the long history of the jury system, the present article argues that the jury system in Hong Kong, in practice, is underused and its value undermined. Legislators, legal scholars, and legal professionals have persistently called for greater use of the jury system in Hong Kong (many call for expansion of the jury system in the District Court), yet the Department of Justice has not been enthusiastic about this discussion (LegCo Panel on Administration of Justice and Legal Services, 1997, 2010). Between 2007 and 2009, there were only 69 to 77 cases tried by jury in the Court of First Instance, whereas the vast remaining (588-647 cases) were being tried by judges in solitary in the District Court (News.gov.hk, 2009). Furthermore, the Director of Public Prosecution stressed that the benefits of a jury trial are more perceived than proven (LegCo Panel on Administration of Justice and Legal Services, 2010).

The former Secretary of Justice, Mr. Wong Yan Lung (2005-2012), took a stand that no changes to the current jury system were warranted (News.gov.hk, 2009). He noted that any change would require a lengthy, detailed, and in-depth study. In accordance with the former Secretary of Justice’s view that well-designed research is vital to inform action, the present article strives to serve two purposes. First, we reviewed the literature to point out the benefits of jury decision making. Second, we hope to provide empirical support of the practicality and feasibility of the expansion of the jury system. Furthermore, we believe the present study comes in timely in response to recent discussions in the Legislative Council on the issue of whether an offense is to be tried by jury or by judge (LegCo Panel on Administration of Justice and Legal Services, 2014).

Debates on the Jury System in Hong Kong

There are four levels of courts in Hong Kong: Magistrates’ Court, District Court, High Court (Court of First Instance and Court of Appeal), and Court of Final Appeal. Summary offenses are only tried in the Magistrates’ Court. Many indictable offenses may be tried either summarily (in the Magistrates’ Court) or on indictment (in the District Court or the Court of First Instance), and the prosecution has the right to determine the venue of the trial. The jury system only exists in the Court of First Instance of the High Court where defendants are tried by a presiding judge and a jury of seven people (or nine people if the judge orders). The most serious criminal offenses, including murder, manslaughter, rape, armed robbery, and certain drug offenses, can only be tried in the Court of First Instance. Should the prosecution elect the District Court as the trial venue, the defendant will be tried by a District Court judge and not by a jury. District Court judges, who are empowered to pass a sentence of imprisonment of up to 7 years, try defendants in solitary.

The limited availability and uncommon sentencing power bestowed on District Court judges have led to persistent calls from legislators and the legal profession for the expansion of the jury system to the District Court (Koo, 2010; LegCo Panel on Administration of Justice and Legal Services, 1997, 2010). Legislators have first called for expansion of the jury system to the District Court in 1997. They argued that the jury system in Hong Kong remained an elitist system because of the English-language proficiency requirement, and the elitist system defies the central tenet of “trial by one’s peers.” As the requirement would be removed after the return to Chinese sovereignty, the widened jury pool might be able to accommodate the caseload in the District Court. The issue was again raised in the Legislative Council in 2009 (News.gov.hk, 2009). Legislator Dr. Hon Margaret Ng raised three reasons for the expansion of the jury system: (a) the jury system is a good tradition of the common law, (b) the sentencing power bestowed on District Court Judges is not light, and (c) growth of eligible jurors since the use of Chinese as official language in court.

The proposal was refused by the Secretary of Justice. The main issue raised by the former Secretary of Justice regarding the feasibility of the expansion of the jury system is whether the current jury pool could support the caseload of the District Court. Although there has been an increased pool of Chinese-speaking jurors, jury shortage has still been a lingering problem in Hong Kong mainly due to the strict education criteria for jury service. As a British colony, English was used as the official language in the government and all major trials were conducted in English. The Commissioner of Registrations applied a strict education requirement to ensure that jurors were sufficiently competent in English. English remains as one of the two official languages used after Hong Kong was returned to Chinese sovereignty, and the language proficiency required has been either English or Chinese. Even though the historic reason for imposing an education requirement (to ensure English proficiency) no longer applies after the return, residents are still required to attain the education standard of either Form 7 (equivalent to Year 13 in many Commonwealth systems) or Secondary 6 (under the new Hong Kong Diploma of Secondary Education system) to qualify as potential jurors (Juries Sub-Committee of the Law Reform Commission, 2008). It is important to note that the completion of Form 7 (or Secondary 6) as a jury requirement means that most potential jurors have satisfied the basic requirement for university entry in Hong Kong. As many common law jurisdictions impose no education requirement on jury eligibility, the education requirement in Hong Kong has been criticized as undermining the representativeness of the jury (Juries Sub-Committee of the Law Reform Commission, 2008). Furthermore, full-time students of any post-secondary or tertiary schools, colleges, institutes, and so forth are automatically exempted from jury service, further reducing the number of eligible jurors.

The Juries Sub-Committee of the Law Reform Commission (2008) published a consultation paper in an attempt to alleviate the problem of jury shortage. The paper recommended measures such as the removal of automatic jury exemptions for professionals, including doctors, dentists, newspaper editors, and so forth. Although the inclusion of this group of professionals would widen the jury pool, the pool might still not be enough to accommodate the caseload in the District Courts. During 2009, there were 73 cases tried in the Court of First Instance, and 612 cases tried in the District Courts (News.gov.hk, 2009). Given that 14,260 summons for potential jurors were issued in 2009 for 73 cases, it could be extrapolated that if all of the 685 cases were tried before a judge and a jury, 133,810 summons would need to be issued.

The Juries Sub-Committee rejected the possibility of lowering the minimum age of service to 18 years for the following reasons:

While the legal age of majority is for most purposes set at 18, the particular requirements of jury service justify a higher age. The determination of a person’s guilt or innocence is an issue of a greater magnitude than most other functions for which a person is legally competent to perform at 18. (p. 89)

The duties and responsibilities require a level of maturity and experience which could not reasonably be expected from a younger person. (p. 94)

Despite the rejection by the consultation paper, the present study aimed to demonstrate empirically that lowering the minimum age requirement to 18 years is nonetheless a feasible solution. Many other common law jurisdictions (e.g., United Kingdom, Canada, United States of America, Australia) have set the minimum age limit for jury service at 18 years, and in 2000, New Zealand lowered the minimum age limit for jury service from 20 to 18 years (Juries Sub-Committee of the Law Reform Commission, 2008). The Law Commission (1998) in New Zealand advanced the following reason for lowering the age requirement:

The Commission sees no reason why people aged 18 years and over should not be considered responsible enough to serve on a jury when they are considered responsible enough to vote and have membership of the House of Representatives. Juries should be as representative as possible given the other goals of selection, such as competence. Further, the absence of people aged 18 and 19 on juries excludes a group in the community who could be regarded (on the basis of age) as the peers of younger defendants. (p. 8)

The legitimacy of jury trials rests on the belief that one’s peers, when being presented with facts, will render a decision based on facts alone and not on their own personal experiences or biases. No special skills, legal knowledge, nor personal experiences are expected from jurors; hence, this makes youths aged 18 to 20 years equally able to become competent fact-finders. Excluding this group of youth would mean denying the opportunity of young defendants to be tried by peers from a similar age group. Furthermore, the legal age of majority for most purposes (the right to vote, attainment of the Hong Kong identity card, etc.) in Hong Kong is 18 years, indicating that young adults over the age of 18 years are considered to possess maturity and judgment ability.

Literature of Judge and Jury Decision Making

If the Director of Public Prosecutor believes that the benefits of jury trials are only “perceived,” then are the benefits of judge trials also only “perceived?” Critics who oppose jury trials are often bearing a comparative judgment in mind, arguing that judges are more likely than lay people to render an appropriate verdict based solely on the evidence presented. Wistrich, Guthrie, and Rachlinski (2005) noted that the judges’ formal legal training and decision-making experience could potentially enable them to outperform jurors in disregarding legally irrelevant information. First, judges might be more motivated to comply with the law of evidence as their formal legal training enables them to better understand the intentions behind the laws. Second, practice makes perfect. Judges make legal decisions on a regular basis, and their experience might enable them to disregard legally irrelevant information while making decisions.

However, there are also reasons why one might expect judges to perform worse than jurors. First, as judges assume the role of “gatekeepers” to ensure that only legally relevant information is admitted for the jury’s consideration, judges are exposed to substantially more inadmissible information than jurors are. Second, judges might fall prey to the overconfidence trap and underestimate the extent to which inadmissible evidence biases them. Third, most trial judges try cases alone and do not have the opportunity to deliberate with their peers.

Although jurors have been constantly criticized for their inability to comply with the judge’s instructions to disregard inappropriate information, studies have not found that judges are able to accomplish what jurors could not (see also Guthrie, Rachlinski, & Wistrich, 2001; Wallace & Kassin, 2012). Wistrich et al. (2005) asked judges to evaluate scenarios designed to assess their ability to disregard inadmissible evidence, such as illegally obtained confessions, inadmissible criminal records, inadmissible sexual histories, and information protected by attorney–client privilege. Inadmissible information was included in the scenario descriptions, and judges were asked to assess its admissibility before they made a substantive ruling. Researchers found that in both civil and criminal cases, judges were not able to disregard inadmissible information even when they ruled the information inadmissible themselves. The results are not surprising, as one must not forget that “judges are indeed human”: Asking individuals to make a decision while ignoring information they have previously heard is a cognitively demanding task (p. 1323).

In Chiang Lily v. Secretary for Justice (2009), the Appeal Committee ruled that a non-jury trial in the District Court was in no way less fair than a jury trial in the Court of First Instance:

As is rightly accepted by the applicant, it is clear that there is no right to trial by jury in Hong Kong. Although the applicant’s strong preference is for a jury trial, she has not suggested that she cannot have a fair trial in the District Court before a judge sitting alone. Indeed, such a suggestion cannot be responsibly made by any person facing trial in the District Court. (para. 9)

The Department of Justice has frequently cited this ruling to reject the proposal of the expansion of the jury system (LegCo Panel on Administration of Justice and Legal Services, 2010). We agree that both judges and juries are able to make fair judgments; however, judges and jurors do not necessarily make the same judgments. One effective way to measure the magnitude of judge–jury difference, developed by Kalven and Zeisel (1966), is to ask judges how they would decide on a case that was decided by the jury. Presiding judges in a sample of 3,576 cases, who had heard the same evidence as the juries, were asked to report how they would have decided on the cases, to rate the difficulty of the evidence, and to give reasons for their disagreement if the judge’s decision differed from that of the jury (Kalven & Zeisel, 1966). The authors compared the juries’ actual verdicts with the judges’ hypothetical verdicts and found that judges and juries agreed in 78% of the cases. When the judge and the jury disagreed, the jury acquitted the defendant whereas the judge would have convicted in 19% of the trials. In other words, if judges alone had tried all the sampled cases, there would have been substantially more convictions.

Kalven and Zeisel noted that the 20% difference in verdicts was not due to jury incompetence; that is to say, that the jury misunderstood the evidence presented in court whereas the judge did not. If the judge–jury disagreement was caused by the jury’s inability to understand the evidence, the disagreements would only occur in cases with difficult and complicated evidence. Disagreement rates were similar for both the easy- and hard-to-interpret evidence, suggesting that disagreement was not related to the level of difficulty of the evidence. Both judges’ and juries’ decisions were fair judgments based on the strength of the evidence presented. Kalven and Zeisel believed that

when the jury reaches a different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of facts, but because it gives recognition to values which fall outside the official rules. (p. 495)

The “values” that could account for the judge–jury difference in verdicts include greater weight given to the standard of proof beyond a reasonable doubt to ensure that no innocent person is convicted. In a more recent study, Eisenberg and his associates (2005) reached a similar conclusion regarding jury competence using the data assembled by the U.S. National Centre for State Courts. The researchers found that judge–jury disagreements were neither associated with the complexity of the law nor with the evidence. This held true regardless of using the judge’s or jury’s assessment of evidence complexity. In cases where judges and juries disagreed, juries were more likely to acquit the defendant. It is beyond the scope of the present article to determine who is more “right” in these cases where the judge and jury disagrees; however, jury advocates argue that trial by jury brings legitimacy to the criminal justice system, as it is the fellow citizens who ultimately decide whether the defendant should be punished, not the government nor the judge (Duff, Findlay, Howarth, & Chan, 1992).

Present Study

The present study empirically tests the practicality and feasibility of the expansion of the jury system to the District Court. We propose that the expansion of the jury system would be justified if it is both practical and feasible. The practicality and feasibility of the expansion would be justified if (a) the general public favored the jury system, (b) jurors competently perform their roles as fact-finders, and (c) there are enough jurors to support the caseload.

The present article deals with the second and third of these issues and aims to provide an empirical demonstration that jurors competently perform their tasks and that a feasible solution to expand the jury pool is to lower the minimum age requirement to include 18-year-olds. The first research question explored whether mock jurors possessed the ability to evaluate legally relevant information and disregard legally irrelevant information. Participants were considered competent decision makers if their decisions were found to be influenced by legally relevant information. Participants were first asked to rate the reliability of commonly seen evidence presented in court. As studies have suggested that participants’ responses to surveys do not accurately predict how they would evaluate evidence in criminal cases, they were required to make legal judgments on a hypothetical case in the second part of the study (Alonzo & Lane, 2010). The second research question examined whether there was a difference in competence between the jury-eligible adult sample (aged 21 or above years) and the jury-ineligible youth sample (aged 18-20 years).

Method

Participants

All participants were permanent residents of Hong Kong. The youth sample comprised 596 students enrolled at a university in Hong Kong. The sample consisted 50.2% males and 49.7% females. The average age of the group was 20 years (SD = 0.90). Students were enrolled in a variety of majors: 23.3% in social science and humanities, 26.3% in business studies, and 35.1% in science and engineering.

The adult sample comprised 521 jury-eligible participants recruited in the college canteen and around college campus of the same university. All adult participants were jury eligible.¹ The sample consisted 45.5% males and 53.9% females. Around 70% of our respondents were within the ages of 22 to 30, and 14.8% were within the ages of 31 to 40.² All participants had completed secondary school, and around 80% of respondents had completed or were completing undergraduate studies or above.

Procedures

There were 10 variations of the questionnaire. All aspects of the questionnaire were identical except for the one piece of incriminating evidence presented by the prosecution. Research assistants took stacks of questionnaires to the university canteen and randomly distributed one of the 10 versions to each of the university students. Participants were asked to complete the questionnaire independently under the supervision of research assistants in a workstation near the canteen. The questionnaire comprised three sections and could be completed in around 20 min. On completion, participants were thanked for their time, and canteen coupons were offered as an incentive for completion.

Materials

Section 1

The first part of the questionnaire was designed to generate participants’ perceptions and estimates of the reliability of various types of evidence (adapted from Lieberman, Carrell, Miethe, & Krauss, 2008). The first section required participants to rate the reliability of three types of evidence (see Table 1 for the full list of items): legally relevant and admissible scientific evidence, legally relevant and admissible non-scientific evidence, and legally irrelevant and inadmissible evidence. For each item, participants were asked to estimate the reliability of each kind of evidence on a rating scale ranging from 0 = not reliable at all to 100 = extremely reliable.

Table 1.

Comparison of Mean Reliability Ratings of Youth and Adult Samples.

Evidence type	Youthsn = 594	Adultsn = 520	Combined
DNA found at the crime scene	78.31 (19.49)*	80.77 (17.21)	79.46 (18.50)
Expert testimony	79.51 (18.92)	77.87 (18.30)	78.75 (18.64)
CCTV or other photographic evidence	77.40 (19.08)	76.05 (17.91)	76.77 (18.55)
Fingerprint found at the crime scene	74.56 (20.32)	76.66 (18.66)	75.54 (19.59)
Physical evidence	71.64 (19.75)	72.13 (17.05)	71.87 (18.53)
Report from forensic medical exam	71.64 (20.46)	71.06 (18.60)	71.62 (19.61)
Wiretapped evidence	68.52 (23.30)	68.25 (19.76)	68.39 (21.71)
Hair fiber found at the crime scene	68.24 (21.42)	68.54 (21.87)	68.38 (21.62)
Eyewitness testimony	61.81 (17.24)*	63.87 (16.66)	62.77 (17.00)
Police testimony	60.67 (20.73)	60.87 (18.14)	60.77 (19.56)
Confession	57.32 (20.57)*	60.57 (18.75)	58.84 (19.80)
Victim testimony	56.92 (18.20)	57.42 (15.92)	57.15 (17.17)
Evidence of defendant’s good character	51.74 (22.57)	51.46 (20.24)	51.61 (21.51)
Defendant’s claim of innocence	47.16 (20.50)	47.63 (17.87)	47.38 (19.28)
Hearsay testimony	43.04 (22.12)	43.70 (21.81)	43.35 (21.97)
Media depictions of the crime	28.18 (23.59)	28.53 (23.96)	28.34 (23.75)

Note. Standard deviations are presented in parentheses. CCTV = closed-circuit television.

p < .05.

Section 2

Participants were then shown a two-page summary of a sexual assault case in Chinese. The materials used in the present study were adapted from an actual High Court case (HKSAR v. Rashid Mahmood, 2011) and the material used in three published studies (Kassin & Neumann, 1997; Lieberman et al., 2008; Schklar & Diamond, 1999) to examine juror reactions to evidence.

Part 1

Participants were told that a woman X was raped in the middle of the night when walking from a bar to her friend’s apartment, and the basic facts of the case were introduced. Participants were informed that the defendant had pleaded not guilty to the charge. Participants were also given the judge’s instructions, legal definitions of rape, and concepts such as reasonable doubt (adapted from Ng & Leung, 2007). Participants were then asked for their views on the probability that the defendant had committed the crime.

Part 2

In the second part, one piece of incriminating evidence (the independent variable of the study) was produced by the prosecutor, and participants were randomly assigned one of the 10 versions of the material. The 10 types of the incriminating evidence were (a) DNA, (b) hair fiber, (c) fingerprints, (d) eyewitness testimony, (e) hearsay, (f) confession, (g) report from forensic medical examination, (h) evidence of the defendant’s good character, (i) non-scientific physical evidence (informing participants that the defendant’s wallet was found at the scene of the crime), and (j) victim testimony. These types of evidence were chosen because they are common forms of evidence, and descriptions of the evidence were adapted from previously published studies. In all conditions, participants were informed that no other piece of evidence indicated the guilt of Chan. The following excerpt offers an example of the types of description received by participants:

The prosecutor stated that a police lineup was conducted at the police station. The lineup included the suspect, Chan, along with seven fillers of similar age, height, and build. The police also arranged for a legal representative to be present during the police lineup. The victim herself was able to select Chan from the police lineup, and Chan’s physical appearance matched the description the victim had given in a prior interview. (Victim testimony scenario)

After reading the facts in this section, the participants were asked to indicate (a) the probability that the defendant committed the crime, (b) their verdict, (c) their confidence in their verdict, and (d) the strength of the evidence. Participants were also asked to explain their decision in words. Last, participants were asked for their demographic information.

Results

Views on the Jury System

Nearly all participants (93.6% of youths and 93.5 % of adults) understood the role of jury in Hong Kong. The majority of respondents (74.5% of youths and 83.9% of adults) believed that given any criminal case, both jurors and the judge are able to render a fair and just verdict. However, youths were more likely than their adult counterparts to believe that only judges were able to make a fair and just verdict (17.4% vs. 10.6%).

Rating Responses

The means and standard deviations of the youth and adult samples are reported in Table 1.

Extralegal information versus legally relevant information

Competent mock jurors should rate extralegal information as less reliable than legally relevant forms of information, and indeed participants were highly skeptical of legally irrelevant information such as media depictions of the case, hearsay testimony, and evidence of the defendant’s good character.

Scientific evidence versus non-scientific evidence

Scientific evidence was also rated as more reliable than other forms of non-scientific evidence. Participants placed a high value on the DNA evidence found at the crime scene, the expert testimony, and the fingerprint evidence found at the crime scene. Participants placed a high value on physical forms of evidence (e.g., DNA, fingerprint, physical evidence) and relatively devalued the testimonial forms of evidence (e.g., eyewitness testimony, police testimony, confession).

Differences between youth and adult mock jurors

Youths were more skeptical about 13 out of the 16 types of evidence, the exceptions being expert testimony, wiretapped evidence, and CCTV/photographic evidence, and they placed lower reliability ratings on them than the adult sample. A series of independent sample t tests showed that only the differences in the ratings for three types of evidence were statistically significant: DNA found at the crime scene (Ms = 78.31 and 80.77), t(1109) = 2.21, p = .03; eyewitness testimony (Ms = 61.81 and 63.87), t(1107) = 2.01, p = .04; and confession (Ms = 57.32 and 60.57), t(1109) = 2.76, p = .006. However, none of the comparisons were statistically significant once the Bonferroni adjustment was made to correct for multiple comparisons (p value after adjustment is .05 / 16 = .003).

Guilt Judgments in Experimental Manipulation

Extralegal information versus legally relevant information

Competent mock jurors should be less affected by extralegal forms of information and more influenced by legally relevant information. Indeed, results showed that of the 10 types of evidence presented (see Table 2), participants were the least affected by hearsay testimony and evidence of the defendant’s good character on both measures of guilt judgment. The first measure of guilt judgment is the probability that the defendant Chan committed the crime. Participants found the defendant the least culpable when hearsay testimony (M = 64.22) and evidence of the defendant’s good character (M = 60.20) were presented respectively. The second measure of guilt is the verdict. As Table 3 shows, participants’ verdicts varied depending on the type of evidence provided. Participants were least likely to render guilty verdicts when hearsay testimony (44.4%) and evidence of the defendant’s good character (41.3%) were presented.

Table 2.

Probability That the Defendant Committed the Crime When Different Types of Evidence Were Presented.

	Youths	Adults	Combined
DNA evidence	79.56 (19.93) (n = 54)	80.72 (16.44) (n = 43)	80.07 (18.38)
Hair fiber evidence	80.09 (14.56) (n = 69)	74.94 (19.37) (n = 51)	77.90 (16.89)
Fingerprint evidence	71.20 (19.65) (n = 65)	78.12 (23.73) (n = 52)	74.27 (21.74)
Physical evidence	72.74 (23.42) (n = 53)	69.90 (18.13) (n = 61)	71.22 (20.71)
Victim testimony	68.10 (16.88) (n = 63)	69.67 (18.79) (n = 60)	68.86 (17.78)
Defendant’s confession	70.00 (19.50) (n = 60)	65.32 (23.30) (n = 47)	67.94 (21.28)
Eyewitness testimony	67.11 (21.20) (n = 54)	67.55 (17.20) (n = 56)	67.34 (19.18)
Report from forensic medical exam	67.21 (19.48) (n = 61)	63.19 (20.92) (n = 47)	65.46 (20.12)
Hearsay testimony	64.54 (21.26) (n = 48)	63.85 (18.71) (n = 41)	64.22 (20.01)
Defendant’s good character	62.50 (21.31) (n = 66)	57.48 (18.29) (n = 56)	60.20 (20.06)
Mean scores	70.39 (20.34)	68.99 (20.53)	69.74 (20.43)

Note. On a scale ranging from 1 to 100, participants were asked to rate the probability that the defendant committed the crime; standard deviations are presented in parentheses. There were no statistically significant differences between the youth and adult samples across different types of evidence.

Table 3.

Percentage of Guilty Verdicts When Different Types of Evidence Were Presented.

	Youth	Adult	Combined percentage of guilty verdicts
DNA evidence	85.2 (n = 54)	86.0 (n = 43)	85.6
Hair fiber evidence	88.1* (n = 67)	52.0 (n = 50)	72.6
Defendant’s confession	72.9 (n = 59)	59.6 (n = 47)	67.0
Fingerprint evidence	58.7 (n = 63)	73.1 (n = 52)	65.2
Physical evidence	73.6* (n = 53)	54.8 (n = 62)	63.5
Victim testimony	56.5 (n = 62)	55.0 (n = 60)	55.7
Eyewitness testimony	54.5 (n = 55)	53.7 (n = 54)	54.1
Report from forensic medical exam	63.8* (n = 58)	40.4 (n = 47)	53.3
Hearsay testimony	47.9 (n =48)	40.5 (n = 42)	44.4
Defendant’s good character	48.5 (n = 66)	32.7 (n = 55)	41.3

Note. A series of chi-square tests showed no statistically significant differences between youths and adults except when hair fiber evidence, report from forensic medical examination, and physical evidence were presented.

p < .05.

Scientific evidence versus non-scientific evidence

Scientific forms of evidence were also found to be the most incriminating types of evidence. Participants were more likely to believe the defendant committed the crime when DNA evidence (M = 80.07), hair fiber evidence (M = 77.90), and fingerprint evidence (M = 74.27) were presented (see Table 2). Participants were also more likely to render guilty verdicts when DNA evidence (85.6 %) and hair fiber evidence (72.6%) were presented. Participants were less likely to find the defendant guilty when victim testimony (55.7%) and eyewitness testimony (54.1%) were presented.

Differences between youth and adult mock jurors

Before participants were given the main piece of incriminating evidence, all were given the same basic facts when asked for their initial estimate of whether the defendant had committed the crime. The evidence presented in Part 1 was weak and ambiguous as it was designed to elicit a low baseline conviction rate. The only evidence against the defendant was that he had a knife on him and that he was arrested in the vicinity of the crime scene. Youths (M = 62.50, SD = 19.80) indicated a statistically significantly higher probability estimate that the defendant had committed the offense compared with adults (M = 58.87, SD = 19.30), t(1067) = −3.05, p = .002. After being presented with the main piece of incriminating evidence in the second part, youths (M = 70.39, SD = 20.34) and adults (M = 68.99, SD = 20.53) no longer differed in culpability ratings, t(1080) = −1.14, ns. In other words, when guided by evidence, youths made similar judgments of culpability when compared with adults.

A series of chi-square tests were also conducted to examine the difference in verdicts between youths and adults among the 10 types of evidence presented. Youths were more likely to find the defendant guilty when presented with the following: the report from the forensic medical examination (63.8% vs. 40.4%), χ²(1) = 5.70, p = .02; hair fiber evidence (88.1% vs. 52.0%), χ²(1) = 18.74, p < .001; and physical evidence (the defendant’s wallet being found at the crime scene; 73.6% vs. 54.8%), χ²(1) = 4.33, p = .05. Only the hair fiber comparison was statistically significant once the Bonferroni adjustment was made to correct for multiple comparisons (p value after adjustment is .05 / 10 = .005). Qualitative responses for these three types of evidence were examined to explore how participants differed in their perceptions and on what information participants based these decisions.

Analysis of Qualitative Responses

Participants were also asked to explain the rationale for their decision through qualitative responses. We examined the rationales for guilty and not guilty responses for cases where hair fiber, physical evidence, and the report from the forensic medical examination were presented (n = 269). Of the 165 responses with guilty verdicts, 78.8% (n = 130) made reference to the evidence provided, showing evidential considerations were influential in reaching decisions about guilt.

We also examined the reasoning behind the not guilty verdicts to gather insights into participants’ judgments. The responses were analyzed separately for each type of evidence. In the physical evidence condition, participants were informed that the police had found Chan’s wallet at the scene of the crime. Both groups of participants frequently cited the lack of sufficient evidence as their rationale for a not guilty verdict:

It is possible that Chan lost his wallet before the offence took place. (Adult Participant 117)

The wallet only showed that Chan has been to the scene of the crime. It was not proof that Chan was the perpetrator. (Adult Participant 334)

The evidence cannot conclude beyond a reasonable doubt that Chan and X has had sexual intercourse. (Youth Participant 850)

It is possible that Chan lost his wallet before the crime took place and the true perpetrator found it. (Youth Participant 175)

The major difference we noted between the two groups of participants was that adults were more likely to request scientific evidence, DNA evidence in particular, to convict. No youth participants mentioned the lack of scientific evidence as their rationale for rendering a not guilty verdict.

There is no scientific evidence presented. (Adult Participant 115)

. . . as conclusive evidence such as DNA has not been presented, the prosecution has not proven the case beyond reasonable doubt. (Adult Participant 354)

If penetration has taken place, why isn’t there DNA evidence? (Adult Participant 521)

X has not made an identification, and there has been a lack of DNA evidence. (Adult Participant 824)

The theme of lack of sufficient evidence again emerged when the report of the forensic medical examination was presented. Participants were informed that Dr. Lai, the doctor who conducted the examination, testified in court about the forensic medical examination. Both groups of participants frequently listed the lack of sufficient evidence as the basis for the not guilty verdict:

The evidence merely proved that X has been sexual assaulted. It did not link Chan to the offence. (Adult Participant 123)

There has been a lack of evidence showing X and Chan has had sexual intercourse. The prosecution merely presented circumstantial evidence. (Adult Participant 347)

There has been a lack of evidence showing Chan committed the offence, the offence merely showed that X was sexually assaulted. (Youth Participant 542)

Although the evidence suggested that X has been raped, the evidence failed to show that Chan is the perpetrator. (Youth Participant 157)

We again noticed that the major difference between the two groups of participants was that adults more frequently requested scientific evidence to convict. Only one youth mentioned that he needed scientific evidence to convict:

Empirically-based evidence such as DNA and fingerprint evidence has not been presented. (Adult Participant 400)

Characteristics of Chan (such as his DNA or semen sample) was not found, hence the prosecution has not proven its case beyond reasonable doubt. (Adult Participant 437)

DNA evidence was not presented, and the defendant did not present an alibi. (Adult Participant 681)

The prosecution only presented testimonial evidence and failed to present more objective forms of evidence such as DNA. (Youth Participant 570)

When hair fiber evidence, a form of scientific evidence, was presented, we can still observe that adults were skeptical of the evidence and required more evidence to make a conviction:

Hair fibre evidence alone is not sufficient, and more scientific evidence is needed. (Adult Participant 122)

The evidence (witnesses and physical evidence) could not conclusively show that the hair fibre was left behind by Chan in the event of a sexual intercourse. The prosecution has not proven the case beyond reasonable doubt. (Adult Participant 364)

The prosecution has neither presented testimony from witnesses describing what actually happened nor the DNA report. Even though the defendant possessed a knife, it does not mean he used it to threaten the victim. (Adult Participant 404)

The prosecution has not proven the case beyond reasonable doubt. Although unfavourable evidence has been presented against the defendant, the evidence failed to conclusively prove that the victim was sexually assaulted. (Adult Participant 695)

Some of the skepticism expressed by adults was actually irrelevant to the law. Participants were provided with clear judicial instructions that the prosecution did not have to prove that the defendant has ejaculated semen. However, some participants explained that they found the defendant not guilty because semen was not found.

The evidence only showed that the victim X and the defendant have met. However, I cannot be 100 percent that Chan is the perpetrator because there is no semen sample. (Adult Participant 1089)

Hair fibre samples can be easily collected from the victim, yet it is much harder to collect semen samples. (Adult Participant 262)

1. The witness has not identified the suspect, 2. Hair fibre sample was found on the victim’s clothing, 3. There is a lack of semen sample to prove that Chan is the perpetrator. (Adult Participant 384)

Only the eight youth participants who were given hair fiber evidence provided a rationale for reaching their not guilty verdicts, and the small number of responses precluded more systematic comparisons with the adult group. However, all of the rationales provided were legally relevant considerations:

There has been a lack of witness testimony proving Chan committed the crime. (Youth Participant 155)

There has been a lack of evidence proving Chan committed the crime. The prosecution did not provide biological forms of evidence such as Chan’s skin cell left on the victim’s body. (Youth Participant 1164)

It is possible that the two merely had physical contact. It might not be sexual assault. (Youth Participant 1242)

Discussion and Conclusion

In response to the former Secretary of Justice’s comment that any changes in the jury system would require a lengthy, detailed, and in-depth study, the present investigation sought to empirically test the practicality and feasibility of the expansion of the jury system to the District Court. The first purpose of the present study was to investigate whether certain types of evidence were more influential in juror decision making. Both the reliability ratings and the guilt judgments in the hypothetical trial showed that legally relevant evidence had a greater impact on decisions than legally irrelevant information. Both youth and adult participants were capable of basing their judgments largely on legally relevant information. They rated hearsay testimony, media depictions of the case, and evidence of the defendant’s good character as unreliable forms of information and were also less likely to render guilty verdicts when presented with hearsay testimony and evidence of good character.

The second purpose of the study was to compare the decisions made by jury-eligible adults and youths to determine if the latter could act as compatible jurors. Results were mixed. Among the 16 types of commonly seen evidence, youths expressed greater skepticism about 13 types of evidence than adults. This skepticism, however, was not carried over to their judgments of guilt. Youths were more likely than adults to render guilty verdicts when forensic medical examination results, hair fiber evidence, and physical evidence were presented. Analysis of the qualitative responses suggested that the youth–adult differences are more likely to be linked to the adults having a higher threshold of proof beyond reasonable doubt. Adults were more likely to request more evidence regardless of the type of evidence already presented to them. For example, adults expressed the need for more scientific evidence to convict, even though they were already presented with hair fiber evidence, a type of scientific evidence.

Based on the results from the present study, we conclude that youths aged 18 to 20 years have the capacity to be rational and competent legal decision makers. No solid evidence has been found that the youths’ decisions were based on legally irrelevant information. However, it is important to point out that some obvious differences between youth and adult mock jurors have been observed. Youths appeared to have a lower threshold for being satisfied beyond reasonable doubt when certain types of evidence were presented. However, when guided by evidence, youths in the present sample could reach similar guilt judgments to the adults.

The use of written trial summaries is a common practice in jury simulation research (Bornstein, 1999). However, it is important to note that the interpretation of research findings is tied to the strengths and limitations of various research strategies used in the present study. In the present study, participants were presented with only one type of evidence in each condition and were asked to make a decision based on that piece of evidence. The limitation of using such a design is that we have arbitrarily created a case with a weak evidentiary background. The independent variable (type of evidence) was made more salient in the current study than in the context of a full trial where more than one type of evidence is frequently presented. To address this limitation, in addition to participants being asked to reach a dichotomous verdict, they were also asked to indicate the probability that the defendant committed the crime. It is believed that even though the presentation of one type of evidence might be inadequate to affect the verdict, people’s perception of the defendant’s guilt would be affected.

The value of the jury system can be further seen in the recent wave of judiciary reforms around the world. Our neighboring countries, South Korea and Japan, have recently embraced the jury into their criminal justice system. The South Korean government believed that the introduction of the jury system can “raise public confidence in the nation’s judicial system by enhancing its democratic legitimacy and transparency” (Ministry of Justice Republic of Korea, 2010). The jury system has been described as “one of the most important features of the legal system” in Hong Kong, and more than three quarters of participants in the present sample believed that both the jury and the judge are able to render a fair and just verdict. Researchers have the opportunity to be at the forefront of policy discussions by evaluating the jury system and developing guidelines and solutions, and it is hoped that more studies will be conducted on this topic in Hong Kong in the future. In particular, researchers in both South Korea and Japan were able to obtain data from actual court cases (Fukurai & Kurosawa, 2010; Han & Park, 2012). It is hoped that future studies could recruit actual jurors from courtroom to increase the external validity.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research work was supported by City University of Hong Kong Strategic Research Grant awarded to the second author.

Notes

Author Biographies

Cora Y. T. Hui is currently a doctoral candidate in the Department of Applied Social Sciences at City University of Hong Kong. She received her MPhil in criminology from the University of Cambridge and her MA in forensic psychology from John Jay College of Criminal Justice, City University of New York. Her broad research interests include the design and evaluation of anti-corruption reforms and the effect of civic awareness on anti-corruption.

T. Wing Lo is professor and head of the Department of Applied Social Sciences at City University of Hong Kong. He received his PhD from the Cambridge Institute of Criminology, and his research interests are Chinese triad societies, organized crime, youth gangs, corruption, and corrections.

References

Alonzo

J. D.

Lane

S. M.

(2010). Saying versus judging: Assessing knowledge of eyewitness memory. Applied Cognitive Psychology, 24, 1245-1264. doi:10.1002/acp.1626

Bornstein

B. H.

(1999). The ecological validity of jury simulations: Is the jury still out? Law and Human Behavior, 23, 75-91. doi:10.1023/a:1022326807441

Chiang Lily v. Secretary for Justice, FAMC 64 and 65/2009.

Duff

Findlay

Howarth

Chan

(1992). Juries: A Hong Kong perspective. Hong Kong: Hong Kong University Press.

Eisenberg

Hannaford-Agor

P. L.

Hans

V. P.

Waters

N. L.

Munsterman

G. T.

Schwab

S. J.

Wells

M. T.

(2005). Judge-jury agreement in criminal cases: A partial replication of Kalven and Zeisel’s The American Jury. Journal of Empirical Legal Studies, 2, 171-206. doi:10.1111/j.1740-1461.2005.00035.x

Fukurai

Kurosawa

(2010). Impact of the popular legal participation on forced confessions and wrongful convictions in Japan’s bureaucratic courtroom: A cross-national analysis in the U.S. and Japan. US-China Law Review, 7, 1-18.

Goodman-Delahunty

Hewson

(2010). Enhancing fairness in DNA jury trials. Canberra: Australian Institute of Criminology.

Guthrie

Rachlinski

J. J.

Wistrich

A. J.

(2001). Inside the judicial mind. Cornell Law Review, 86, 777-830. doi:10.2139/ssrn.257634

Han

S. H.

Park

(2012). Citizen participation in criminal trials of Korea: A statistical portrait of the first four years. Yonsei Law Journal, 3, 55-66.

10.

HKSAR v. Rashid Mahmood, HCCC35/2011.

11.

Judiciary. (2012, February 1). Jury. Retrieved from http://www.judiciary.gov.hk/en/crt_services/pphlt/html/jury.htm

12.

Juries Sub-Committee of the Law Reform Commission. (2008). Criteria for service as jurors: Consultation paper. Hong Kong: Law Reform Commission. Retrieved from http://www.hkreform.gov.hk/en/docs/juries_e.pdf

13.

Kalven

Zeisel

(1966). The American jury. Boston, MA: Little, Brown.

14.

Kassin

S. M.

Neumann

(1997). On the power of confession evidence: An experimental test of the fundamental difference hypothesis. Law and Human Behavior, 21, 469-484. doi:10.1023/a:1024871622490

15.

Koo

(2010). Power to the people: Extending the jury to the Hong Kong’s District Court. City University of Hong Kong Law Review, 2, 301-329.

16.

Law Commission. (1998). Juries in criminal trial: Part one (Preliminary Paper 32). Wellington, New Zealand. Retrieved from http://www.nzlii.org/nz/other/nzlc/pp/PP32/PP32.pdf

17.

LegCo Panel on Administration of Justice and Legal Services. (1997, March 10). Minutes of the seventh meeting. Retrieved from http://www.legco.gov.hk/yr96-97/english/panels/ajls/minutes/aj100397.htm

18.

LegCo Panel on Administration of Justice and Legal Services. (2010, June 28). Minutes of meeting. Retrieved from http://www.legco.gov.hk/yr09-10/english/panels/ajls/minutes/aj20100628.pdf

19.

LegCo Panel on Administration of Justice and Legal Services. (2014). Reform of the current system to determine whether an offence is to be tried by judge and jury or by judge alone (LC Paper No. CB(4)569/13–14(04)). Retrieved from http://www.legco.gov.hk/yr13-14/english/panels/ajls/agenda/aj20140422.htm

20.

Lieberman

Carrell

Miethe

Krauss

(2008). Gold versus platinum: Do jurors recognize the superiority and limitations of DNA evidence compared to other types of forensic evidence? Psychology, Public Policy, and Law, 14, 27-62. doi:10.1037/1076-8971.14.1.27

21.

McCabe

Krauss

Lieberman

(2010). Reality check: A comparison of college students and a community sample of mock jurors in a simulated sexual violent predator civil commitment. Behavioral Sciences & the Law, 28, 730-750.

22.

Ministry of Justice Republic of Korea. (2010). Justice system. Retrieved from http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp

23.

News.gov.hk. (2009, November 11). LCQ8: Implementation of jury system in District Court (Press release). Retrieved from http://www.info.gov.hk/gia/general/200911/11/P200911100261.htm

24.

W. C.

Leung

L. Y.

(2007). Fa Ting Nei Wang: Cong Fa Guan De Zong Jie Ci Kan Qiang Jian An Jian De Shen Pan Yu Mi Si Yan Jiu Bao Gao [A look inside the courts: An examination of rape case judgments and rape myths from judges’ concluding statements]. Hong Kong: Association Concerning Sexual Violence Against Women.

25.

Park

Han

Y. H.

Seong

Y. R.

(2010). The effect of double judgments on public confidence in court decisions in the trial by citizen-participation in Korea. International Journal of Law, Crime and Justice, 38, 166-174.

26.

Schklar

Diamond

(1999). Juror reactions to DNA evidence: Errors and expectancies. Law and Human Behavior, 23, 159-184. doi:10.1023/a:1022368801333

27.

Wallace

D. B.

Kassin

S. M.

(2012). Harmless error analysis: How do judges respond to confession errors? Law and Human Behavior, 36, 151-157. doi:10.1037/h0093975

28.

Wistrich

Guthrie

Rachlinski

(2005). Can judges ignore inadmissible information? The difficulty of deliberately disregarding. University of Pennsylvania Law Review, 153, 1251-1346. doi:10.2307/4150614