Marie Comiskey (University of Toronto) has posted Tempest in a Teapot – The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury’s Right to Deliberate Freely? (Oñati Socio-Legal Series, Vol. 6, No. 2, 2016) on SSRN.
Here is the abstract:
This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.