Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.
Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you've not previously considered.
Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It's like lifting up the top of her head and peering inside her brain.
Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but--what's important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.
Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here's a shocker: the impact of the neuroscience evidence is related to the individual listener's prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.
Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the "my brain made me do it" defense).
Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn't mean you are actually communicating. How do you talk so your expert knows what you mean?
It's cold outside so stay inside and read this new issue of The Jury Expert! A summary of what you will find in this issue with a special thanks to Lynne Williams and congratulations to Richard Gabriel!
We hope you enjoy this issue of The Jury Expert. We are always interested in any suggestions you may have for future issues or reactions to our publication in general. Just click on my name below and send me an email.
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases. This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.
Previously, I blogged about the juror dishonesty case, Warger v. Shauers, that is currently before the Supreme Court. Professor Sherry Colb of Cornell, pictured above, has recently written a brief article offering her own opinion on the case. Her article also has a prediction on how the Supreme Court might rule.
In light of the fact that the Ferguson grand jury is likely to render its decision in the near future, I thought I would offer some links to sources that provide background information on grand juries.
A federal district court this week, in U.S. v. Liu et. al, upheld the conviction of three defendants two of whom were attorneys for immigration fraud despite the fact that two different jurors sent out trial-related tweets. The first juror was dismissed prior to deliberations so that juror was less of an issue. The second juror was not removed and thus serves as the basis for the defendant's motion for a new trial. In dismissing the defendant's motion the trial judge determined that
When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter "are legion." United States v. Fumo. And because of the risks inherent in such ac- tivity, "vigilance on the part of trial judges is warranted." Ganias, 755 F.3d at 132. On this record, however, Defendants' claim must fail. Juror2 was an attentive juror who,while engaging in banter with fellow Twitter users about her experience, was nonetheless careful never to discuss the sub- stance of the case, as instructed by the Court. The record is devoid of any evidence that she was either dishonest or biased, or that Defendants were prejudiced by her tweets in any way.
I think the trial judge got it right here. In the Digital Age, it is naive to believe that jurors are going to forego social media throughout the trial; it has become too omnipresent. The key is to see if the juror starts to discuss or get into the merits of the case.
Few doctrines in patent law are perceived to be as important as the presumption of validity. Despite its perceived importance, the impact of informing the jury of the presumption has not been examined empirically, but rather has remained the province of assumptions and speculation.
Because the presumption is, at bottom, a procedural device that assigns the burden of proof, the Federal Circuit has held that it need not be included in the jury instructions so long as the jury is informed of the clear and convincing standard for proving invalidity. Underlying this holding is the assumption that the presence or absence of the presumption instruction would not materially affect the jury’s decision-making on invalidity issues. But litigants often view the presumption not simply as a procedural device, but also as a mechanism for influencing the jury with potentially outcome-determinative effects. This mismatch in perception between the Federal Circuit and litigants regarding the impact of the presumption instruction has gone largely unnoticed and unexamined.
This Article reports the first experimental study on the impact of instructing the jury on the presumption of validity. The data reveal statistically significant differences in the rate of invalidation depending on whether the mock jurors were informed of the presumption. Based on this finding, the Article analyzes the selection of a validity baseline in light of both procedural considerations and error costs.
This paper argues there is little reason for a hearsay ban in the absence of jury trial. (1) The ban can’t be supported on the ground, dubious in the first place, that jurors are incompetent to give hearsay proper weight. (2) Excluding hearsay has little effect when the screener and the fact-finder are the same person. (3) Because of the greater influence of judges on the proof process, there is less danger that lawyers will use hearsay evidence strategically to deprive the trier of more valuable evidence. (4) Because judges can be required to explain decisions, assessing output is an alternative to trying to control input. (5) The value of complicated, detailed exceptions as a check on discretion is reduced or eliminated. Overall, there is a great weakening of the arguments that, in a jury system, are advanced as outweighing the principle that it is best for the trier to have access to all evidence that has probative value.
This paper was prepared for presentation at a conference on evidence law reform in developing countries that is to be held in Chicago on Nov. 21-22, 2014. It contains other comments about procedural features of the American judicial system that influence the hearsay ban. It also contains comments on the hearsay provisions of a proposed codification (the Tanzania Evidence Act) that was distributed to participants by Professor Ron Allen, one of the organizers of the conference.