A column of Dr. Dineen in

"Sorry, Gillian:
We musn't cast jurors as victims"

February 2, 2001

 Gillian Guess, our infamous juror/lover, has come up with yet another excuse. Claiming that her misbehaviour could have been prevented if only she had talked to a therapist during the trial, she declares: "I needed help desperately."

Kathy MacDonald, who moved in with Shannon Murrin after serving as a juror in his murder trial, has come to her support saying that, when she tried to express her feelings to the sheriffs, she was basically told to "get over it because you have a job to do." Few people, I suspect, are buying into Guess's lame excuse or sobbing over MacDonald's need to blab.

But virtually everyone, it seems, is becoming caught up in the notion that jurors, plagued with trial-induced stress, are suffering too much. We have come to accept the notion that listening to gruesome details, watching disturbing videos and grappling with evidence can traumatize them, making it necessary to talk to a professional.

This belief led Judge Patrick LeSage, during the 1995 trial of Paul Bernardo, to hire psychologists to counsel the jurors after their deliberations.

Not surprisingly, psychologists encourage these therapeutic ventures by pointing to debilitating fears, painful memories and disturbing nightmares that they predict will likely plague jurors in the days, weeks, months and even years to come. In an article just published in Criminal Law Quarterly, James Ogloff and Sonia Chopra, from Simon Fraser University, state, "There is evidence that prohibiting jurors from communicating their deliberation experiences to others, including mental health professionals, can be detrimental to their well-being; extreme secrecy can harm these individuals."

To counteract these perceived harms, psychologists recommend the "debriefing" of jurors. Borrowed from a trauma counselling approach now routinely provided for victims of disasters, such as airplane crashes and school shootings, participants are asked to describe their thoughts and feelings to counselors who help them to understand and deal with their reactions.

This counselling is not uncommon in U.S. courts. G. Thomas Munsterman, head of jury studies for the National Centre for State Courts, reports that, in Arizona and Washington state, post-trial counselling programs are provided by the same community health counsellors who already provide trauma counselling to emergency service personnel.
Such initiatives are being applauded but some people, Gillian Guess included, are now saying that debriefing is not enough. They argue that counselling is needed earlier in the process, during the trial, not just after it. The Criminal Code's long-standing clause prohibiting jury members from discussing the trial while it is on going and from describing their deliberations is being portrayed as cruel.
Ogloff, seeing this as contributing to trauma, says: "Imagine you're on a jury and you're prohibited from talking to people like your partner, your friends - your normal support network. And then, to make matters worse, if it's a particularly traumatic event, you're prohibited from talking to a professional about it." He wants the law amended to allow jurors to express themselves in controlled situations such as private counselling.

However, if we thought seriously for a moment about the consequences of such seemingly compassionate efforts to make jurors feel better, we might backtrack and fast.

Perhaps judges feel better recommending these programs; perhaps counsellors feel good because they think they are helping; but what about jurors?

And, if we cast aside the possibility that debriefing may harm them and move forward to provide counselling, not just at the end but even in the midst of a trial, what about the legal process? When counsellors jump in to help jurors deal with the feelings aroused by the evidence, they don't just listen; they respond, discuss, and interpret. In other words, they tamper with the unrefined reactions and impressions with which jurors grapple to come to their decision.

Do we really want counsellors, with their theories, therapeutic agendas and their ignorance of "the facts" influencing how jurors weigh the evidence?

In the 1970s, the American Psychological Association expressed the "expectation that in the future forensic psychologists (those involved with the courts) will roam confidently and competently far beyond the traditional roles of psychologists."

Now, embracing the philosophy and values of "therapeutic jurisprudence," some would urge the courts to function as therapeutic agents for all of those involved; the accused, the accuser, and the jury.

I would never deny the stressful nature of jury duty. As B.C. Supreme Court Justice Wally Oppal says: "Jurors undergo immense stress - it's a terrible price to pay to be part of the system."

I would, however, resist the urge to send in the counsellors. Being called to jury duty may not be easy but it is a civic responsibility Western society has for centuries portrayed jurors as 12 strong men (and women) upholding the law. Think of the price to be paid if we recast them as psychological casualties.

@ Dr.Tana Dineen

by Dr. Tana Dineen, special columnist, The Vancouver Sun