Methods of conveying information to jurors: evidence review

Footnotes

1. The Post-Corroboration Safeguards Review, Final Report (2015) para 13.3. The Safeguards Review was a review, chaired by Lord Bonomy, into safeguards against wrongful conviction in the context of the potential abolition of the requirement for corroboration in criminal cases.

2. Ibid para 13.5.

3. Specification of Requirements para 3.3.

4. M Coen and J Doak, "Embedding explained jury verdicts in the English criminal trial" (2017) 37 Legal Studies 786 at 803.

5. Judicial Institute for Scotland, Jury Manual (June 2017) 5.3.

6. In a 2010 lecture, an English judge noted the considerable length of jury charges in that jurisdiction and (having spoken to the then Director of Judicial Studies in Scotland) contrasted this with an expectation that in Scotland, "[a] skilled judge is expected to charge the jury in 15-18 minutes, even in lengthy cases": Moses LJ, "Summing down the summing-up", Annual Law Reform Lecture, The Hall, Inner Temple, 23 November 2010 at 7.

7. An examination of the length of jury directions in Australia and New Zealand found, for example, that for a ten day trial, the average length of the directions varied from one hour and 16 minutes (in New Zealand) to four hours and 15 minutes (in Victoria): Criminal Law Review, Jury Directions: A New Approach (State of Victoria, Department of Justice, 2013) 19.

8. The figures relate to 2007; two trials in that year lasted for over eight weeks: Scottish Government, The Modern Scottish Jury in Criminal Trials (2008) 20.

9. DJ Devine and S Macken, "Scientific evidence and juror decision making: theory, empirical research, and future directions", in BH Bornstein and MK Miller (eds), Advances in Psychology and Law: Volume 2 (2016) 95 at 105.

10. M Comiskey, "Initiating dialogue about jury comprehension of legal concepts: can the 'stagnant pool' be revitalised?" (2010) 35 Queen's Law Journal 625 at 629.

11. For a summary of the relevant literature, see F Leverick, "Jury directions", in J Chalmers, F Leverick and A Shaw (eds), Post-Corroboration Safeguards Review: Report of the Academic Expert Group (2014) 101 at 110-117.

12. L Hope, N Eales and A Mirashi, "Assisting jurors: promoting recall of trial information through the use of a trial ‐ordered notebook" (2014) 19 Legal and Criminological Psychology 316 at 326.

13. B Saxton, "How well do jurors understand jury instructions - a field test using real juries and real trials in Wyoming" (1998) 33 Land and Water Law Review 59 at 92.

14. W Young, N Cameron and Y Tinsley, Juries in Criminal Trials Part 2: A Summary of the Research Findings (Preliminary Paper 37, 1999) para 7.25.

15. P Ellsworth, "Are twelve heads better than one?" (1989) 52 Law and Contemporary Problems 205 at 217.

16. MB Dann, VP Hans and DH Kaye, Testing the Effects of Selected Jury Trial Innovations on Juror Comprehension of Contested mtDNA Evidence: Final Technical Report (2004) 67 (table 6.3).

17. VP Hans et al, "Science in the jury box: jurors' comprehension of mitochondrial DNA evidence" (2011) 35 Law and Human Behavior 60 at 68.

18. Ellsworth (n 15) at 219.

19. SS Diamond, B Murphy and MR Rose, "The 'kettleful of law' in real jury deliberations: successes, failures and next steps" (2012) 106 Northwestern University Law Review 1537 at 1558 (table 2).

20. SS Diamond, "Illuminations and shadows from jury simulations" (1997) 21 Law and Human Behavior 561 at 565.

21. Ellsworth (n 15) at 220.

22. Scottish Courts and Tribunals Service, Jury Service in the High Court and Sheriff Court, 10.

23. Judicial Institute for Scotland, Jury Manual (June 2017) 4.3. See also Miller v HM Advocate 1994 SCCR 818.

24. The Manual does include a copy of a paper on jury trials by the former chairman of the (then) Judicial Studies Committee, Lord Wheatley, which notes (at 4.4) that "care should be taken to use words and expressions that are clear and unambiguous and simple".

25. Since Younas v HM Advocate 2015 JC 180 it has become common for the appeal court to state that the trial judge's directions must provide a "route to verdict", but not in the sense that the directions must be in writing. The concept is summarised in H v HM Advocate [2016] HCJAC 4 at [13]: "The terms of a trial judge's charge to the jury should be such as to enable the informed observer, who has heard the proceedings at the trial, to understand the reasons for the verdict. In other words, there must be a discernible route to the verdict."

26. E Najdvoski-Terziovski, J Clough and JRP Ogloff, "In your own words: a survey of judicial attitudes to jury communication" (2008) 18 Journal of Judicial Administration 65 at 77.

27. A third study that provided a partial transcript as part of a package of materials did not attempt to isolate the impact of the transcript: see LW McDonald et al, "Digital evidence in the jury room: the impact of mobile technology on the jury" (2015) 27 Current Issues in Criminal Justice 179 (discussed in section 2.3.2).

28. IA Horowitz and L ForsterLee, "The effects of note-taking and trial transcript access on mock jury decisions in a complex civil trial" (2001) 25 Law and Human Behavior 373.

29. Ibid at 385.

30. Ibid at 387.

31. Ibid at 387.

32. EL Kelly, Provided Notes as an Alternative to Juror Notetaking: The Effects of Deliberation & Trial Complexity (PhD thesis, University of Tasmania, 2010) (experiment 2).

33. Ibid at 102.

34. L Heuer and SD Penrod, "Increasing jurors' participation in trials: a field experiment with jury notetaking and question asking" (1988) 12 Law and Human Behavior 231 at 233; New South Wales Law Reform Commission, Consultation Paper 4: Jury Directions in Criminal Trials (2009) para 10.6.

35. VE Flango, "Would jurors do a better job if they could take notes?" (1980) 63 Judicature 436 at 443; MA McLaughlin, "Questions to witnesses and note taking by the jury as aids to understanding in complex litigation" (1982-1983) 18 New England Law Review 687; NSW Law Reform Commission (n 9) para 10.9.

36. LB Sand and SA Reiss, "A report on seven experiments conducted by District Court judges in the Second Circuit" (1985) 60 New York University Law Review 423 at 448.

37. NSW Law Reform Commission (n 9) para 10.6.

38. Studies have varied in terms of whether note-taking jurors are allowed access to their notes when completing questionnaires testing their recall. Some studies have not allowed this (which may seem odd but the researchers were attempting to test the mechanism by which the benefit of note-taking occurs).

39. D Rosenhan, S Eisner and R Robinson, "Notetaking can aid juror recall" (1994) 18 Law and Human Behavior 53.

40. Ibid at 58.

41. See section 2.3.2.

42. Rosenhan et al (n 14) at 59.

43. JM Fitzgerald, "Younger and older jurors: the influence of environmental supports on memory performance and decision making in complex trials" (2000) 55 The Journals of Gerontology Series B: Psychological Sciences and Social Sciences 323 at 326. See similarly Horowitz and ForsterLee, "The effects of note-taking and trial transcript access" (n 3) (195 community jurors, one hour videotaped trial reconstruction).

44. C Thorley, "Note taking and note reviewing enhance jurors' recall of trial information" (2016) 30 Applied Cognitive Psychology 655 at 659 (table 1).

45. Ibid.

46. IA Horowitz and KS Bordens, "The effects of jury size, evidence complexity, and note taking on jury process and performance in a civil trial" (2002) 87 Journal of Applied Psychology 121.

47. Ibid at 126.

48. Ibid at 127.

49. See e.g. L ForsterLee and IA Horowitz, "Enhancing juror competence in a complex trial" (1997) 11 Applied Cognitive Psychology 305 (120 community jurors, 70 minute civil mock trial video, no deliberation); L ForsterLee, L Kent and IA Horowitz, "The cognitive effects of jury aids on decision-making in complex civil litigation" (2005) 19 Applied Cognitive Psychology 867 (279 community jurors, 1 hour 30 minute civil mock trial video, 30 minutes of deliberation in groups of 5-6).

50. L ForsterLee, IA Horowitz and MJ Bourgeois, "Effects of notetaking on verdicts and evidence processing in a civil trial" (1994) 18 Law and Human Behavior 567 at 576.

51. Ibid at 575.

52. Kelly (n 7) 64 (experiment 1, involving 120 community jurors who watched a 44 minute mock trial video); C Thorley, R Baxter and J Lorek, "The impact of note taking style and note availability at retrieval on mock jurors' recall and recognition of trial information" (2016) 24 Memory 560 at 568 (130 undergraduate student jurors, who watched a 30 minute mock trial video).

53. L Hope, N Eales and A Mirashi, "Assisting jurors: promoting recall of trial information through the use of a trial ‐ordered notebook" (2014) 19 Legal and Criminological Psychology 316 at 231. There is a picture of the TON at 232.

54. Ibid at 325.

55. Ibid at 326.

56. Ibid at 324.

57. Thorley et al (n 27) at 567.

58. Ibid at 568.

59. Ibid.

60. Ibid at 571.

61. MB Dann, VP Hans and DH Kaye, Testing the Effects of Selected Jury Trial Innovations on Juror Comprehension of Contested mtDNA Evidence: Final Technical Report (2004).

62. Ibid at 67 (table 6.3).

63. Ibid at 66 (figures 6.7 and 6.8). The other innovations tested were permitting jurors to ask questions, providing a DNA checklist and providing a notebook containing a witness list and glossary of terms.

64. Ibid at 58.

65. Heuer and Penrod, "Increasing jurors' participation in trials" (n 9) at 250.

66. Ibid at 245.

67. Ibid at 242.

68. L Heuer and S Penrod, "Juror notetaking and question asking during trials: a national field experiment" (1994) 18 Law And Human Behavior 121 at 129.

69. Ibid at 137.

70. See Hope et al (n 28) at 326.

71. Heuer and Penrod, "Juror notetaking" (n 43) at 139.

72. Flango (n 10) at 442.

73. Sand and Reiss (n 11) at 446.

74. Ibid at 449.

75. Ibid at 450.

76. Ibid at 451.

77. Ibid at 450. Jurors only completed questionnaires where the case resulted in an acquittal or a hung jury, which meant the sample of juror questionnaires was very small.

78. NP Cohen and DR Cohen, "Jury reform in Tennessee" (2003) 34 University of Memphis Law Review 1 at 8.

79. Ibid at 38.

80. Ibid.

81. Ibid.

82. Ibid at 39.

83. W Young, N Cameron and Y Tinsley, Juries in Criminal Trials Part 2: A Summary of the Research Findings (Preliminary Paper 37, 1999) para 3.6.

84. Ibid para 3.6.

85. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001).

86. Ibid para 467.

87. Ibid para 468.

88. R Matthews, L Hancock and D Briggs, Jurors' Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (London, Home Office, 2004) 40.

89. In sections 2.7 and 2.8 respectively.

90. F Dattu, "Illustrated jury instructions: a proposal" (1998) 22 Law and Psychology Review 67 at 86.

91. J Goodman-Delahunty and L Hewson, Improving Jury Understanding and Use of Expert DNA Evidence (Australian Institute of Criminology Technical and Background Report 37, 2010) 23.

92. LC Morell, "New technology: experimental research on the influence of computer-animated display on jurors" (1999) 28 Southwestern University Law Review 411 at 414. The report of the experiment does not state the precise subject of the expert testimony.

93. N Brewer, S Harvey and C Semmler, "Improving comprehension of jury instructions with audio-visual presentation" (2004) 18 Applied Cognitive Psychology 765 at 773.

94. J Park and N Feigenson, "Effects of a visual technology on mock juror decision making" (2013) 27 Applied Cognitive Psychology 235 at 238.

95. Ibid at 244.

96. Ibid at 245.

97. Brewer et al (n 68) at 775.

98. Park and Feigenson (n 69) at 243.

99. K Douglas D Lyon and J Ogloff, "The impact of graphic photographic evidence on mock jurors' decisions in a murder trial: probative or prejudicial?" (1997) 21 Law and Human Behavior 485 at 492.

100. D Tait and J Goodman-Delahunty, "Images of interactive virtual environments: do they affect verdict?", in D Tait and J Goodman-Delahunty (eds), Juries, Science and Popular Culture in the Age of Terror (2017) 173 at 184.

101. D Tait and M Rossner, "Tablets in the jury room: enhancing performance while undermining fairness?", in K Benyekhlef et al (eds), eAccess to Justice (2016) 241 at 241. In 2017, 97% of 18-24 year olds reported owning a smartphone compared to 71% of those aged over 55: Deloitte, Global Mobile Consumer Survey (2017), available at https://www.deloitte.co.uk/mobileuk/ (last accessed 6 February 2018).

102. LW McDonald et al, "Digital evidence in the jury room: the impact of mobile technology on the jury" (2015) 27 Current Issues in Criminal Justice 179. The study was developed by a consortium including researchers from Australia, Canada, England and France.

103. The report of the study does not specify how long they deliberated for.

104. McDonald et al (n 77) at 188.

105. Ibid at 189.

106. Tait and Rossner (n 76) at 245.

107. K DeBarba, "Maintaining the adversarial system: the practice of allowing jurors to question witnesses during trial" (2002) 55 Vanderbilt Law Review 1521 at 1548; Heuer and Penrod, "Increasing jurors' participation" (n 9) at 237; NL Mott, "The current debate on juror questions: 'to ask or not to ask, that is the question'" (2003) 78 Chicago-Kent Law Review 1099 at 1102.

108. DeBarba (n 82) at 1533; Heuer and Penrod, "Increasing jurors' participation" (n 9) at 237; Mott (n 82) at 1106.

109. Heuer and Penrod, "Increasing jurors' participation" (n 9) at 237.

110. Dann et al (n 36) 59. Their research methods are described in detail in section 2.2.1.

111. Ibid 66 (figure 6.8). The other innovations were note taking, providing a DNA checklist and providing a notebook containing a witness list and glossary of terms.

112. Ibid 60 (table 6.2).

113. Ibid 67 (table 6.3).

114. Heuer and Penrod, "Increasing jurors' participation" (n 9); Heuer and Penrod, "Juror notetaking" (n 43). Their research methods are set out in detail in section 2.3.2.

115. Heuer and Penrod, "Increasing jurors' participation" (n 9) at 252.

116. Ibid at 252.

117. Heuer and Penrod, "Juror notetaking" (n 43) at 140.

118. Sand and Reiss (n 11) at 445. Their research methods are set out in detail in section 2.3.2. The researchers do not say if there was anything distinctive about the cases in which a large number of questions were asked.

119. Cohen and Cohen (n 53) at 42. Again, the authors do not state whether there is anything distinctive about those cases.

120. Ibid at 43.

121. Mott (n 82) at 1112. Mott does not state whether there was anything distinctive about those cases.

122. Ibid at 1113.

123. Ibid at 1125 (table 3). Mott's dataset only indicates the questions that were submitted by jurors - it does not record whether the questions were allowed by the judge.

124. Matthews et al (n 63) at 40. Their research methods are set out in detail in section 2.3.2.

125. Ibid. See similarly Young et al (n 58) paras 4.13-4.14.

126. Heuer and Penrod, "Juror notetaking" (n 43) at 142.

127. Cohen and Cohen (n 53) at 44.

128. Heuer and Penrod, "Juror notetaking" (n 43) at 145.

129. Cohen and Cohen (n 53) at 44; Heuer and Penrod, "Juror notetaking" (n 43) at 145; Sand and Reiss (n 11) at 444.

130. See chapter 3.

131. See section 1.1.

132. RP Charrow and VR Charrow, "Making legal language understandable: a psycholinguistic study of jury instructions" (1979) 79 Columbia Law Review 1306. Their methodology for doing so is explained in detail at 1321-1328.

133. Ibid at 1331.

134. A Elwork, B Sales and J Alfini, "Juridic decisions: In ignorance of the law or in light of it?" (1977) 1 Law and Human Behavior 163 (experiment 2). Their simplification technique is set out at 165-169 and the original and re-written instructions are re-produced in Appendix A.

135. Ibid at 175. Elwork et al do not state whether these were yes/no or multiple choice questions.

136. A Elwork, JJ Alfini and B Sales, "Towards understandable jury instructions" (1982) 65 Judicature 432. Their two studies are also reported in A Elwork, B Sales and JJ Alfini, Writing Understandable Jury Instructions (1982).

137. Details of how they did this are included in their book, but essentially it involved replacing infrequently used words with more commonly used ones, replacing abstract words with concrete words, eliminating words with multiple meanings, removing negations, reducing legal jargon, shortening sentences and ordering legal concepts more logically.

138. Elwork et al, "Towards understandable jury instructions" (n 111) at 436.

139. Ibid.

140. Ibid at 442.

141. LJ Severance and EF Loftus, "Improving the ability of jurors to comprehend and apply criminal jury instructions" (1982) 17 Law and Society Review 153.

142. Ibid at 190.

143. Ibid at 189.

144. LJ Severance, E Greene and EF Loftus, "Toward criminal jury instructions that jurors can understand" (1984) 75 Journal of Criminal Law and Criminology 198.

145. Ibid at 219.

146. Ibid at 223.

147. See 185-188 (of Severance and Loftus (n 116)) and 209-213 (of Severance et al (n 119)) where the original and re-written directions are set out in full.

148. A Smith and C Haney, "Getting to the point: attempting to improve juror comprehension of capital penalty phase instructions" (2011) 35 Law and Human Behavior 339 at 342 (211 student jurors, directions tested in isolation with no deliberation); SS Diamond and JN Levi, "Improving decisions on death by revising and testing jury instructions" (1996) 79 Judicature 224 at 230 (149 community jurors, audio description of evidence followed by instructions, deliberated in groups of six for up to 40 minutes); RL Wiener et al, "Guided jury discretion in capital murder cases: the role of declarative and procedural knowledge" (2004) 10 Psychology, Public Policy, and Law 516 at 556 (figure 2) (665 community jurors, 150 minute trial video, jurors deliberated in groups of between six and 13 for 20 minutes); CW Otto, BK Applegate and RK Davis, "Improving comprehension of capital sentencing instructions: debunking juror misconceptions" (2007) 53 Crime and Delinquency 502 at 509 (199 student jurors, audio fact scenario followed by directions, no deliberation).

149. G Ramirez, D Zemba and RE Geiselman, "Judge's cautionary instructions on eyewitness testimony" (1996) 14 American Journal of Forensic Psychology 31 at 52-54 (338 student jurors, 30 minute trial video, no deliberation); E Greene, "Judge's instruction on eyewitness testimony: evaluation and revision" (1998) 18 Journal of Applied Social Psychology 252 at 267 (139 community jurors, trial video lasting approximately 1 hour 30 minutes, jurors deliberated in groups of between five and nine for 30 minutes).

150. P Tiersma and M Curtis, "Testing the comprehensibility of jury instructions: California's old and new instructions on circumstantial evidence" (2008) 1 Journal of Court Innovation 231 at 250 (66 student jurors, comprehension tested in isolation).

151. RL Wiener, CC Pritchard and M Weston, "Comprehensibility of approved jury instructions in capital murder cases" (1995) 80 Journal of Applied Psychology 455 at 461 and 463.

152. PW English and BD Sales, "A ceiling or consistency effect for the comprehension of jury instructions" (1997) 3 Psychology, Public Policy and Law 381 at 395.

153. L Heuer and SD Penrod, "Instructing jurors: a field experiment with written and preliminary instructions" (1989) 13 Law and Human Behavior 409 at 413; Sand and Reiss (n 11) at 438; NSW Law Reform Commission (n 9) para 9.94.

154. Heuer and Penrod, "Instructing jurors" (n 128) at 414; NSW Law Reform Commission (n 9) paras 9.97-9.99; Sand and Reiss (n 11) at 438.

155. VL Smith, "Impact of pretrial instruction on jurors' information processing and decision making" (1991) 76 Journal of Applied Psychology 220 at 223.

156. Ibid.

157. D Cruse and BA Browne, "Reasoning in a jury trial: the influence of instructions" (1987) 114 Journal of General Psychology 129 at 131.

158. ForsterLee and Horowitz (n 24) at 314.

159. Ibid.

160. L ForsterLee, IA Horowitz and MJ Bourgeois, "Juror competence in civil trials: effects of preinstruction and evidence technicality" (1993) 78 Journal of Applied Psychology 14. See similarly Elwork et al, "Juridic decisions" (n 109) at 177 (154 community jurors, three hour long trial video); MJ Bourgeois et al, "Nominal and interactive groups: effects of preinstruction and deliberations on decisions and evidence recall in complex trials" (1995) 80 Journal of Applied Psychology 58 at 63 (study 1, involving 86 community jurors and either a 75 or 90 minute audiotaped trial).

161. Fitzgerald (n 18) at 326-328.

162. Ibid at 327.

163. Ramirez et al (n 124) at 42 (experiment 1).

164. Consisting as it did of seven short paragraphs of text - see Appendix A of Ramirez et al where it is re-produced.

165. On which, see section 2.7.

166. One study that did so is not discussed here as it only tested the effect of pre-instructing on the burden and standard of proof, not on the substantive legal issues in the case: see SM Kassin and LS Wrightsman, "On the requirements of proof: the timing of judicial instruction and mock juror verdicts" (1979) 17 Journal of Personality and Social Psychology 1877.

167. Smith (n 130) at 224.

168. ForsterLee and Horowitz (n 24) at 313.

169. Ibid.

170. MJ Bourgeois et al, "Nominal and interactive groups: effects of preinstruction and deliberations on decisions and evidence recall in complex trials" (1995) 80 Journal of Applied Psychology 58 at 61 (study 1).

171. Smith (n 130) at 225.

172. Bourgeois et al (n 145) at 61.

173. Heuer and Penrod, "Instructing jurors" (n 128) at 425.

174. See section 2.3.2.

175. Heuer and Penrod, "Instructing jurors" (n 128) at 424.

176. Ibid.

177. Ibid at 426.

178. Sand and Reiss (n 11) at 441.

179. Cohen and Cohen (n 53) at 51.

180. Ibid.

181. Ibid at 52. See Tennessee State Courts Rules of Criminal Procedure, rule 30(d)(1).

182. RF Forston, "Sense and non-sense: jury trial communication" (1975) Brigham Young University Law Review 601 at 620.

183. NS Marder, "Bringing jury instructions into the twenty-first century" (2006) 81 Notre Dame Law Review 449 at 452; Heuer and Penrod, "Instructing jurors" (n 128) at 410; NSW Law Reform Commission (n 9) paras 10.13-10.16.

184. C Semmler and N Brewer, "Using a flow-chart to improve comprehension of jury instructions" (2002) 9 Psychiatry, Psychology and Law 262 at 267.

185. JD Lieberman and BD Sales, "What social science teaches us about the jury instruction process" (1997) 3 Psychology, Public Policy and Law 589 at 626; Heuer and Penrod, "Instructing jurors" (n 128) at 411; Forston (n 157) at 620.

186. There is also anecdotal evidence from trial judges that they are effective: see e.g. N Madge, "Summing up: a judge's perspective" [2006] Crim LR 817.

187. A fourth study tested written directions, but only as part of a package that also included a route to verdict, so the impact of the written directions cannot be isolated: see Kelly (n 7).

188. C Thomas, Are Juries Fair? (2010).

189. This is not stated in Are Juries Fair? but a more comprehensive account of Thomas' research methods can be found in C Thomas (with N Balmer), Diversity and Fairness in the Jury System (2007) where at 43 (footnote 139) the figures on trial and deliberation length are provided.

190. Thomas (n 163) at 38.

191. Semmler and Brewer (n 159) at 264.

192. T Ede and J Goodman-Delahunty, "Question trails in trials: structured versus unstructured decision-making" (2013) 37 Criminal Law Journal 114.

193. Ibid at 127. Routes to verdict are discussed in section 2.9.

194. Ibid.

195. Ibid at 131.

196. Ibid at 134.

197. VG Rose and JR Ogloff, "Evaluating the comprehensibility of jury instructions: a method and an example" (2001) 25 Law and Human Behavior 409 at 426-427 (experiments 1 and 5).

198. Ibid at 427.

199. The mean reported deliberation time was 2.6 hours for written instructions and 2.7 hours for oral instructions: Heuer and Penrod, "Instructing jurors" (n 128) at 421.

200. Ibid at 423.

201. Ibid at 421.

202. Ibid at 429.

203. See section 2.3.2.

204. Heuer and Penrod, "Instructing jurors" (n 128) at 423.

205. A Reifman, SM Gusick and PC Ellsworth, "Real jurors' understanding of the law in real cases" (1992) 16 Law and Human Behavior 539.

206. G Kramer and D Koening, "Do jurors understand criminal jury instructions? Analyzing the results of the Michigan juror comprehension project" (1990) 23 University of Michigan Journal of Law Reform 401 at 428.

207. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, New South Wales Crime and Justice Bulletin No 119 (2008) 6.

208. Sand and Reiss (n 11) at 455; Young et al (n 58) para 7.59.

209. BL Cutler and DM Hughes, "Judging jury service: results of the North Carolina administrative office of the courts jurors survey" (2001) 19 Behavioral Sciences and the Law 305 at 314 (table 5); Young et al (n 58) para 7.60.

210. Young et al (n 58) para 7.60.

211. SS Diamond, B Murphy and MR Rose, "The 'kettleful of law' in real jury deliberations: successes, failures and next steps" (2012) 106 Northwestern University Law Review 1537.

212. See Arizona Rules of Criminal Procedure rule 22.1(a)(1).

213. Diamond et al (n 186) at 1553.

214. Ibid at 1556.

215. P Ellsworth, "Are twelve heads better than one?" (1989) 52 Law and Contemporary Problems 205 at 219. Ellsworth's research methods were explained in section 2.2.

216. Diamond et al (n 186) at 1558 (table 2).

217. Ellsworth (n 190) at 219.

218. The questions cannot entirely avoid legal tests but they do minimise the difficulties involved in understanding and applying them.

219. For examples, see Appendix 1 of Judicial College, The Crown Court Compendium (Nov 2017). RTVs are standard practice in England and Wales - see chapter 3.5.6.

220. Note that the term RTV has a different meaning in the Scottish context: see section 1.3.

221. As such, two studies which focused only on oral RTVs are not included here: A Smith and C Haney, "Getting to the point: attempting to improve juror comprehension of capital penalty phase instructions" (2011) 35 Law and Human Behavior 339 and N Brewer, S Harvey and C Semmler, "Improving comprehension of jury instructions with audio-visual presentation" (2004) 18 Applied Cognitive Psychology 765.

222. Criminal Law Review, Jury Directions: A New Approach (State of Victoria, Department of Justice, 2013) para 6.3.3; EC Wiggins and SJ Breckler, "Special verdicts as guides to jury decision making" (1990) 14 Law and Psychology Review 1 at 3.

223. Wiggins and Breckler (n 197) at 4; M Coen and J Doak, "Embedding explained jury verdicts in the English criminal trial" (2017) 37 Legal Studies 786 at 791.

224. Najdvoski-Terziovski et al (n 1) at 77.

225. Semmler and Brewer (n 159) at 265 (instant case) and 266 (novel fact scenarios).

226. Ibid at 264.

227. Wiener et al (n 126) at 556 (figure 2).

228. Ede and Goodman-Delahunty (n 167) at 127. Simple comprehension was significantly improved by the written directions: see section 2.7.2. A copy of their RTV is provided in their Appendix.

229. Kelly (n 7) at 67 (experiment 1), 102 (experiment 2), 127 (experiment 3) and 187 (experiment 4).

230. The package was tested without the transcript but not without the other components.

231. C McKay, M Nolan and M Smithson, "Effectiveness of question trails as jury decision aids: the jury's still out" (2014) 21 Psychiatry, Psychology and Law 492 at 502.

232. Ibid at 500.

233. R Essex and J Goodman-Delahunty, "Judicial directions and the criminal standard of proof: improving juror comprehension" (2014) 24 Journal of Judicial Administration 75 at 86. Their RTV is re-produced at Appendix B of their paper.

234. JRP Ogloff, Judicial Instructions and the Jury: A Comparison of Alternative Strategies (1998), as reported in JRP Ogloff and VG Rose, "The comprehension of judicial instructions", in N Brewer and K D Williams (eds), Psychology and Law: An Empirical Perspective (2005) 407 at 419.

235. Ogloff and Rose (n 209) at 436.

236. Dann et al (n 36) 67 (table 6.3).

237. See the account of the research methods in section 2.2.1.

238. Dann et al (n 36) at 62. The checklist is set out in Appendix B of their report.

239. Ibid.

240. DU Strawn et al, "Reaching a verdict, step by step" (1977) 60 Judicature 38 at 38.

241. Young et al (n 58) para 7.61.

242. L Heuer and SD Penrod, "Trial complexity: a field investigation of its meaning and its effects" (1994) 18 Law and Human Behavior 29 at 50.

243. Asking the Right Questions: Improving Juror Comprehension of Judicial Directions, funded by the Australian Research Council and the Victoria Department of Justice and Regulation: see https://research.monash.edu/en/projects/asking-the-right-questions-improving-juror-comprehension-of-judic (last accessed 6 February 2018).

244. These and the other preliminary results noted below were provided to Fiona Leverick in a telephone conversation with Jonathan Clough (the lead researcher) on 13 November 2017.

245. For a comprehensive survey, see J Chalmers, "Jury majority, size and verdicts", in J Chalmers, F Leverick and A Shaw (eds), Post-Corroboration Safeguards Review: Report of the Academic Expert Group (2014) ch 13. Unanimous verdicts are required in Canada and many US jurisdictions, while some Australian jurisdictions permit near-unanimous verdicts but require unanimity in certain circumstances (principally conviction on a charger of murder).

246. See chapter 1.3.

247. See chapter 2.3.

248. R v Richards, Gold, Whiston-Dew, Anwyl and Demetriou , Southwark Crown Court, 10 Nov 2017 (Edis J).

249. Jury Act 1977 s 55C ( NSW), as inserted by the Jury (Amendment) Act 1987 Sch 1 ( NSW). For discussion of the circumstances in which providing a transcript might be appropriate, see R v Bartle [2003] NSWCCA 329 at [660]-[672]. Prior to the 1987 amendment, juries were never or at most rarely provided with a transcript: see R v Taousanis [1999] NSWSC 107 at [8], commenting that any request for a transcript by the jury would surely have been refused.

250. 16 of 41 judges who responded believed the jury would never be assisted by access to the transcript, while 17 of 41 judges believed it might be of value in certain situations.

251. New South Wales Law Reform Commission, The Jury in a Criminal Trial (Report No 48, 1986) para 6.34. A suggested jury direction relating to the use of a transcript can be found in Judicial Committee of New South Wales, Criminal Trial Bench Book (2007, updated to Oct 2017) 1-530.

252. Judicial Committee of New South Wales (n 7) 1-490.

253. Queensland Courts, Supreme and District Court Benchbook (updated to March 2017) 4.9. See also R v Rope [2010] QCA 194, where a jury (which had not been directed in these terms) requested the transcript. It was commented at [30] that while the practice of providing a transcript "may be gaining acceptance", the trial judge should not be criticised for refusing to provide it, but that the jury was entitled to have "read to it those parts of the evidence about which they seek to be reminded".

254. Criminal Procedure Act 2009 s 223(ha), as inserted by the Jury Directions Act 2013 s 29. This implements a recommendation by the Victorian Law Reform Commission, Jury Directions: Final Report (2009) para 5.18. The statutory language simply refers to "the transcript of the evidence" rather than "some or all", but the Victoria Criminal Charge Book (2016) 2.2.1, which provides detailed guidance on the potential use of transcripts, uses the "some or all" formulation.

255. Judicial Committee of New South Wales (n 7) 1-490; Queensland Courts (n 9) 1.9.2.

256. R v Tootle [2017] NSWCCA 103 at [63].

257. [1992] 1 VR 696.

258. Queensland Courts (n 9) 15.1.

259. Judicial Committee of New South Wales (n 7) 1-010.

260. Victorian Law Reform Commission, Jury Directions (Report 136, 2012) para 6.3.

261. Jury Act 1977 s 55B ( NSW) ("Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so."). Section 55B was inserted by the Jury (Amendment) Act 1987 Sch 1 ( NSW).

262. NSW Law Reform Commission (n 7) para 6.36, citing authorities including R v Petroff (1980) 2 A Crim R 101. The Commission has reiterated the benefits of written directions in subsequent work: Consultation Paper 4: Jury Directions in Criminal Trials (2009) paras 10.13-10.38; Jury Directions (Report 136, 2012) paras 6.110-6.121.

263. See R v Elomar & Ors [2008] NSWSC 1442, where the trial judge permitted a "roadmap" or "chronology" of the facts alleged and sought to be proved, prepared by the Crown, to be given to the jury at the outset of proceedings to assist them in in following a long and complex case.

264. Judicial Committee of New South Wales (n 7) 1-535.

265. Recent appellate decisions referring to "question trails" having been used at trial include R v Jenkins [2017] NSWSC 593; R v Duffy [2017] NSWCCA 77; R v Lane [2017] NSWCCA 46.

266. R v Budrodeen [2014] NSWCCA 332 at [3].

267. RA Hulme, "Sharpening up your summing up", paper presented at the District Court Annual Conference at Wollongong, 29 March 2016.

268. Queensland Courts (n 9) 94.2.

269. R v Cowan [2015] QCA 87; R v Graham [2015] QCA 137; R v Teichmann [2016] QCA 347; R v Pham [2017] QCA 43. See also R v Mazza [2017] QCA 136 ("written directions", but not described as a question trail).

270. Empirical research in 2006 found that some judges in Victoria provided written materials but these were fairly rudimentary; judges who did not do this were concerned they lacked the necessary experience and time. See E Najdvoski-Terziovski, J Clough and J R P Ogloff, "In your own words: a survey of judicial attitudes to jury communication" (2008) 18 Journal of Judicial Administration 65 at 77.

271. Victoria Criminal Charge Book (2016) 2.2.1.8-11, citations to case law omitted.

272. See e.g. Dunn v The Queen [2017] VSCA 371 at [5]; Beqiri v The Queen [2017] VSCA 112 at [82], both of which refer to directions given under section 67 of the 2015 as "question trails". The legislation (which is permissive rather than mandatory) does not explicitly require that such directions are in writing, but it is clear that it encompasses a written form: see e.g. Dunn at [67] ("a five-page document").

273. Jury Directions Act 2015 ss 64E-64F (Vic), as inserted by the Jury Directions Act 2017 s 9 (Vic). The appropriate order in which to consider issues would seem to be strongly implied by a question trail in any event, but these provisions are broader and apply to both oral and written directions.

274. They are available on the National Judicial Institute's website at https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/.

275. Recent examples in the Supreme Court of Canada include R v Villaroman 2016 SCC 33 at [23] and R v H (JM) 2011 SCC 45 at [25].

276. R v Rodgerson 2015 SCC 38 at [51].

277. National Judicial Institute, Model Jury Instructions, section 12.1 (last revised June 2012).

278. Ibid section 4.5 (last revised March 2011), paragraph numbers omitted.

279. R v Andrade (1985) 18 CCC (3d) 41 at [51], citing Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper No 27, 1980) 115-118.

280. R v Mariani (2003) 59 WCB (2d) 526 at [3]. A "surprising dearth of authority in Canada" on the issue of note-taking was noted in R v Codina (1995) 95 CCC (3d) 311 at [73]. See also the civil case of Cowles v Balac (2006) 151 ACWS (3d) 1044 at [193] and M Comiskey, "Initiating dialogue about jury comprehension of legal concepts: can the 'stagnant pool' be revitalised?" (2010) 35 Queen's Law Journal 625 at 648-651.

281. National Judicial Institute (n33) section 4.6 (last revised March 2011), paragraph numbers omitted.

282. JRP Ogloff and RA Schuller, Introduction to Psychology and Law: Canadian Perspectives (2001) 179.

283. R v Koopmans 2015 BCSC 2501 at [18]. Here, "preliminary jury instruction" does not necessarily mean instruction at the start of the trial; in this case the instruction was given when the jury had raised the issue.

284. National Judicial Institute (n 33) section 5.3 (last revised March 2011).

285. See R v Wong (No 2) [1978] 4 WWR 468 at [24] ("no doubt a dangerous procedure and should, I think, be adopted only in very special circumstances and with great care"); Comiskey (n 41) at 655-657.

286. R v Poitras [2002] OJ No 25 at [47]. See also R v Browne 2017 ONSC 5796. Cf R v Li 2012 ONCA 291.

287. Comiskey (n 41) at 656-657.

288. In 2017, see R v Phillips 2017 ONCA 752; R v Primeau 2017 QCCA 1394; R v Pardy 2017 NLCA 49; R v Kelly 2017 ONCA 621; R v Spence 2017 ONCA 619; R v Harkes 2017 ABCA 229; R v Monckton 2017 ONCA 450; R v Gayle 2017 ONCA 297; R v Pierre 2017 ONCA 140.

289. See R v Emmerson (1991) 92 Cr App R 284; R v Popescu [2010] EWCA Crim 1230.

290. P Darbyshire, Sitting in Judgment: The Working Lives of Judges (2011) 218-219.

291. Judicial College, The Crown Court Compendium (Nov 2017) p 3-4.

292. Law Commission, Contempt of Court (Law Com CP No 209, 2012) para 4.85.

293. Treacy LJ and Tugendhat J, "Contempt of court: a judicial response to Law Commission Consultation paper No 209" (2013) paras 75-76. https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Consultations/sen-judiciary-response-to-law-comm-on-contempt-court.pdf (last accessed 6 February 2018)

294. Judicial College (n 47) p 3-4.

295. Judicial College (n 47) p 1-6.

296. Criminal Procedure Rules r 3.11(a).

297. Paras 25A.1-25A.2.

298. Criminal Procedure Rules r 25.9(2)(b).

299. Criminal Procedure Rules r 25.9(2)(b). A "defence statement" is one served as part of the disclosure process.

300. Para 25A.3.

301. Judicial College (n 47) p 3-2.

302. Criminal Procedure Rules r 25.14(2).

303. Criminal Procedure Directions para 26K.8. Examples are noted at para 26K.10. Any directions provided prior to the closing speeches should be listed (but not repeated) in the judge's summing up, so as to provide a definitive account of all directions in the event of an appeal: para 26K.19.

304. CPD VI 26K.11. Examples of the text of routes to verdict can be found in a number of reported cases: e.g. R v Grant-Murray [2017] EWCA Crim 1228 at [91]; R v Varley [2017] EWCA Crim 268 at [25].

305. CPD VI 26K.11, as inserted by the Criminal Practice Directions 2015 Amendment No 1 [2016] EWCA Crim 97.

306. R v Fathi [2001] EWCA Crim 1028 appears to be the first case where this term is used; "routes to verdict" first appears in R v Marston [2007] EWCA Crim 2477. R v Slack [1989] QB 775 appears to be the earliest case referring to a jury being provided with "written directions". Reported cases referring to juries receiving written directions of any sort exist only sporadically before 2009.

307. Judicial College, The Crown Court Compendium (May 2016) para 1.5 ("Recent surveys with judges at Judicial College courses have revealed that over 90% of judges now use written directions some of the time.")

308. Westlaw records over 30 decisions of the Court of Appeal reported in 2016 and 2017 which referred to a "route to verdict" or "steps to verdict" document.

309. RE Auld, Review of the Criminal Courts of England and Wales (2001) 533; B Leveson, Review of Efficiency in Criminal Proceedings (2015) para 288.

310. N Madge, "Summing up: a judge's perspective" [2006] Crim LR 817; Moses LJ, "Summing down the summing-up", Annual Law Reform Lecture, The Hall, Inner Temple, 3 November 2010.

311. See e.g. R v Purlis [2017] EWCA Crim 1135 at [34] ("There was one issue: identification.")

312. See e.g. R v DSK [2017] EWCA Crim 1134 at [34]; R v Brown [2017] EWCA Crim 167 at [70]; R v Samuels [2016] EWCA Crim 1876 at [9]; R v Shah [2016] EWCA Crim 1632 at [47]; R v Ashiq [2015] EWCA Crim 1617 at [40].

313. R v Brown [2017] EWCA Crim 1134.

314. R v Wilcocks [2017] 4 WLR 39 at [34].

315. Criminal Procedure Directions para 26K.16.

316. Criminal Procedure Directions paras 26K.13-14.

317. R v McCredie [2000] BCC 617 at 620. See also R v Bennett [2015] 1 Cr App R 16.

318. Criminal Procedure Directions para 26K.15.

319. R v C [1991] 2 FLR 252.

320. Section 57.

321. Criminal Justice (Theft and Fraud Offences) 2001 (Commencement) Order 2011 ( SI No 394 of 2011). See Department of Justice and Equality, "Minister Shatter Announces White Collar Crime Measure", 3 Aug 2011. http://www.justice.ie/en/JELR/Pages/PR11000161. Section 57 was the last section of the Act to be commenced: C McGreal, Criminal Justice (Theft and Fraud Offences) Act 2001, 2nd edn (2011) 158.

322. Central Bank (Supervision and Enforcement) Act 2013 s 56 (offences under financial services legislation; in force since 2013); Competition Act 2002 s 10 (in force since 2011); Company Law Enforcement Act 2011 s 110 (in force since 2011); Communications Regulation Act 2002 s 46C (in force since 2007). See also S Horan, Corporate Crime (2011) para 8.18.

323. Law Reform Commission, Jury Service ( LRC 107-2013) para 10.27.

324. http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/58D1622F4C8923EB80258010005635DF (last accessed 6 February 2018).

325. Para 10.25, citing C Thomas, Are Juries Fair? (2010).

326. Para 11.18.

327. S Glazebrook, "Streamlining New Zealand's criminal justice system", paper prepared for the Criminal Law Conference 2012: Reforming the Criminal Justice System of Hong Kong, 17 November 2012, n 5. See also S v R [2013] NZCA 350 at [6] ("normal practice").

328. S v R [2013] NZCA 350 at [20] n 8, citing W Young, N Cameron and Y Tinsley, Juries in Criminal Trials Part 2: A Summary of the Research Findings (Preliminary Paper 37, 1999) at [87]-[91]. The court in The Queen v McLean [2001] NZCA 233 noted at [41] that some trial judges had begun to make transcripts available to juries, and confirmed that they had a discretion to do so.

329. E v R [2013] NZCA 678 at [57].

330. J R P Ogloff, J Clough and J Goodman-Delahunty, "Enhancing communication with Australian and New Zealand juries: a survey of judges" (2007) 16 Journal of Judicial Administration 235 at 241. The response rate to the survey was 54% amongst New Zealand judges.

331. For the background to this provision, see Law Commission, Evidence ( NZLC Report No 55, 1999) paras 443-444. The Commission considered that this was an area where there was "considerable variation in judicial view and practice", but concluded that "[p]roperly controlled, jury questions will promote the rational ascertainment of facts".

332. Law Commission, The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes ( NZLC Report 136, 2015) para 3.40.

333. In the second half of 2017 alone, see Edwardson v R [2017] NZCA 618; Northland Environmental Protection Society v Chief Executive of the Minister for Primary Industries [2017] NZCA 607; Henderson v R [2017] NZCA 605; Liu v R [2017] NZCA 573; Keil v R [2017] NZCA 563; Pohutuhutu v R [2017] NZCA 501; Nuku v District Court at Auckland [2017] NZCA 471; W v The Queen [2017] NZSC 154; M v R [2017] NZCA 428; Beamsley v R [2017] NZCA 406; Fungavaka v The Queen [2017] NZSC 119; Rose v R [2017] NZCA 335; Titford v R [2017] NZCA 331; White v R [2017] NZCA 322; Rowe v R [2017] NZCA 316; W v R [2017] NZCA 304; Christian v R [2017] NZCA 296; Simon v R [2017] NZCA 277. See also Hagaman v Little [2017] NZCA 447 at [15], a civil jury case describing question trails as the "modern practice in New Zealand".

334. S Glazebrook, "Streamlining New Zealand's criminal justice system", paper prepared for the Criminal Law Conference 2012: Reforming the Criminal Justice System of Hong Kong, 17 November 2012.

335. Singh v R [2014] NZCA 306 at [1]-[2].

336. WR LaFave, JH Israel, NJ King and OS Kerr, Criminal Procedure (updated to December 2017) §24.9(c).

337. See e.g. Hazuri v State, 91 So 3d 836 (Fla, 2012): where a Florida jury requested transcripts and the request was denied, it was held that the court had erred by not informing the jury of their right to have testimony read back to them. An example of a case where transcripts were provided to the jury instead of evidence being read back can be found in US v Escotto, 121 F 3d 81 (2nd Cir, 1997).

338. See e.g. JS Woodcock, "Note taking by jurors" (1951) 55 Dickinson Law Review 335, noting decisions such as US v Davis 103 F Rep 457 (1900), aff. 107 F 753 (6th Cir 1901), where the court refused to allow note-taking on the basis that it would give a juror a dangerous "undue influence" in discussions, either because his notes might be erroneous or incomplete or because it would allow him to act with a "corrupt purpose" and deceive other jurors.

339. GE Mize, P Hannaford-Agor and NL Waters, The State-of-the-States Survey of Jury Improvement Efforts: A Compendium Report (2007) 32. This represents a significant change from estimates in the late 1980s that 90% of federal judges did not permit note-taking; it appears that permitting the practice became widespread by the late 1990s. See NS Marder, "Juror bias, voir dire, and the judge-jury relationship" (2015) 90 Chicago-Kent Law Review 927 at 947 n 96.

340. P Hannaford-Agor, "But have we made any progress? An update on the status of jury improvement efforts in state and federal courts" (National Center for State Courts Center for Jury Studies, 2015) 7.

341. See 81 Am. Jur. 2d Witnesses § 648 (Propriety of juror questions).

342. NS Marder, "Answering jurors' questions: next steps in Illinois" (2010) 41 Loyola University Chicago Law Journal 727 at 747. A more recent survey, restricted to the Eighth Circuit and Iowa, but examining empirical survey data as well as case law, can be found in TD Waterman, MW Bennett and DC Waterman, "A fresh look at jurors questioning witnesses" (2016) 64 Drake Law Review 485, which reaches positive conclusions regarding the practice.

343. New South Wales Law Reform Commission, Consultation Paper 4: Jury Directions in Criminal Trials (2009) para 3.24. See further PM Tiersma, Communicating with Juries: How to Draft More Understandable Jury Instructions (2006) (a member of the simplification committee who sets out the principles that were used in the project).

344. See JS Vowell, "Alabama pattern jury instructions: instructing juries in plain language" (2005) 29 American Journal of Trial Advocacy 137 at 148-149.

345. Mize, Hannaford-Agor and Waters (n 95) 36.

346. People v Harper, 32 AD 3d 16 (2006).

347. In People v Mollica, 267 AD 2d 479 (1999).

348. 486 US 341 (1984).

349. Kentucky Rules of Criminal Procedure Rule 9.54 ("It shall be the duty of the court to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel. These requirements may not be waived except by agreement of both the defence and prosecution.")

350. LaFave et al (n 92) §24.8(a).

351. Somewhere between these two methods lies the use of shadow juries, where mock jurors follow a live criminal trial alongside the 'real' jury. This is not a method that has been used in any studies relevant to this evidence review so will not be discussed further here.

352. In Scotland, see Contempt of Court Act 1981 s 8.

353. This has been done in civil cases: see SS Diamond, B Murphy and MR Rose, "The 'kettleful of law' in real jury deliberations: successes, failures and next steps" (2012) 106 Northwestern University Law Review 1537.

354. BH Bornstein et al, "Mock juror sampling issues in jury simulation research: a meta-analysis" (2017) 41 Law and Human Behavior 13 at 25.

355. RL Wiener, DA Krauss and JD Lieberman, "Mock jury research: where do we go from here?" (2011) 29 Behavioral Sciences and the Law 467 at 472.

356. CM Baguley, BM McKimmie and BM Masser, "Deconstructing the simplification of jury instructions: how simplifying the features of complexity affects jurors' application of instructions" (2017) 41 Law and Human Behavior 284 at 294.

357. F Leverick, "Jury instructions on eyewitness identification evidence: a re-evaluation" (2016) 49 Creighton Law Review 555 at 566-567.

358. See section 1.1.

359. See e.g. MB Dann, VP Hans and DH Kaye, Testing the Effects of Selected Jury Trial Innovations on Juror Comprehension of Contested mtDNA Evidence: Final Technical Report (2004) at 67 (table 6.3).

360. E Finch and V Munro, "Lifting the veil: the use of focus groups and trial simulations in legal research" (2008) 35 Journal of Law and Society 30 at 45; L Ellison and V Munro, "Getting to (not) guilty: examining jurors' deliberative processes in, and beyond, the context of a mock rape trial" (2010) 30 Legal Studies 74 at 84; P Ellsworth, "Are twelve heads better than one?" (1989) 52 Law and Contemporary Problems 205 at 223.

361. JD Lieberman and BD Sales, "What social science teaches us about the jury instruction process" (1997) 3 Psychology, Public Policy and Law 589 at 595.

362. L Hope, N Eales and A Mirashi, "Assisting jurors: promoting recall of trial information through the use of a trial ‐ordered notebook" (2014) 19 Legal and Criminological Psychology 316 at 326.

363. BM McKimmie, E Antrobus and C Baguley, "Objective and subjective comprehension of jury instructions in criminal trials" (2014) 17 New Criminal Law Review 163 at 173; C Thomas, Are Juries Fair? (2010) 36.

364. L Heuer and SD Penrod, "Instructing jurors: a field experiment with written and preliminary instructions" (1989) 13 Law and Human Behavior 409.

365. Baguley et al (n 6) at 286.

366. Lieberman and Sales (n 11) at 593-594.

367. VL Smith, "Impact of pretrial instruction on jurors' information processing and decision making" (1991) 76 Journal of Applied Psychology 220 at 221.

368. N Feigenson, "Visual evidence" (2010) 17 Psychonomic Bulletin & Review 149 at 150.