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Archive for December, 2009

Attorneys often ask how we keep mock jurors so engaged and focused over long days of evidence presentation and discussion. The answer is simple if a bit tongue in cheek: we keep them busy and they know there’s going to be a test (in the form of group discussion) at the end.

Obviously you can’t be handing out questionnaires and engaging actual jurors in discussion of their reactions to evidence presented as it unfolds at trial. But there are things you can do that dramatically improve juror focus and engagement. Here are two strategies to increase juror engagement.

Let them ask questions: In Tennessee, jurors can ask questions if the judge allows it. The questions must be submitted and attorneys and judge confer to determine legality. A recent jury submitted one question following more than an hour of testimony from a psychiatric expert witness: “Does he know right from wrong – yes or no?”. Juror questions can cut to the heart of the testimony.

If you can’t have jurors asking questions, use pre-trial research to identify what their questions will likely be and address those questions as you walk witnesses through testimony. “In your expert opinion, Dr., does the defendant know right from wrong, yes or no?” Answering the questions jurors wonder about ensures you more than likely know how the ‘holes’ jurors see in the story are being filled in. Jurors appreciate knowing the facts that matter—and when they do, it’s much easier for them to refute “conspiracy theories” or idiosyncratic interpretations of evidence in the deliberation room.

Identify potential rabbit trails: Jurors can be distracted by the oddest things! Part of your job is to ensure they do not wander off on “rabbit trails” that lead nowhere and are ancillary to the story itself. An example of this type comes from San Francisco and a jury deliberating on a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear and eventually acquitted the defendant.

This is obviously an unusual story for a jury to hear. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. Walking the jury through the charge via over-sized exhibits is a terrific way of helping them to focus their attention in deliberation. Let them know what the operative (i.e., important) terms are in this case. Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.

Responding to juror questions by providing evidence and testimony to answer them allows jurors to focus on the facts rather than on their fantasies about ‘why’ certain things happened. Walking jurors through the jury charge teaches them what the task is they are charged with completing. Both of these tactics reduce juror stress and uncertainty as they walk to the deliberation room. Answer questions and give them direction. It’s not that hard.


Redux: Bye-bye CSI?

Monday, December 28, 2009
posted by Douglas Keene

Back in August of this year we wrote a blog post titled ‘Bye-bye CSI?’ after the reports on dirty forensic labs were published. Now some new research challenges our assumptions that there really is a “CSI Effect”. (The “CSI Effect” refers to a belief that popular television shows focusing on forensic evidence—such as the CSI frasnchise—result in jurors requiring a definitive level of scientific evidence from prosecutors)

The “CSI Effect” has been talked about for years and and widely presumed to be true. A standard voir dire query has been to learn about television shows jurors watch. We even blog about it. But a soon to be published study (summarized here) conducted on a narrow sample of Michigan jurors brings the CSI Effect into question.

The same Michigan researchers wrote a paper in 2006 (upon which their new study is an expansion). In truth, this appears to be research that doesn’t make that much of a difference. What these authors said in 2006 is there is a ‘tech effect’ independent of television viewing habits.

According to the researchers, a rabid CSI viewer has an equal expectation of prosecutors and defense attorneys. Asking about television shows still has merit for other reasons, but if this research is to be accepted, the impact of forensic television shows is not the reason.  Overall, the standard of scientific sufficiency for either side of a case has definitely been raised (especially in cases where the evidence is largely circumstantial). In 2006, the authors concluded the following:

  1. “Juror expectations of and demands for scientific evidence are the result of broader changes in popular culture related to advancements in both technology and information distribution.”
  2. “Those broad and pervasive changes in technology lead jurors to expect that the prosecutor will obtain and present the scientific evidence that technology has made possible.”
  3. “These increased expectations and demands of jurors therefore could be more accurately referred to as the ‘tech effect.’”

The authors go on to say the justice system needs to adapt to jurors increased awareness of forensic evidence gathering procedures and be prepared to invest more money into forensic evidence collection and analysis. In the meantime, litigators need to become better explainers of just why that data isn’t available in their specific cases.

While we’ll watch for the publication of the updated article, we think it boils down to an increase in juror sophistication, wariness, and sense of justice. Jurors are questioning authority more these days. They want proof. They take their obligations very seriously and don’t want to make mistakes.  Your role as a litigator is to reassure them that your position is meritorious. What can you do to give them the certainty they seek?

Hon. Donald E. Shelton, Young S. Kim, and Gregg Barak (2006). A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist? Vanderbilt Journal of Entertainment and Technology Law, 9(331).


Gideon has a thoughtful post on the question of free will in pedophiles based on an earlier post at the Neuroskeptic blog. In essence, he questions how we should view/think of/treat pedophiles in our criminal justice system if there are times when sexual urges directed at children are caused by brain damage rather than a pre-existing sexual preference for children.  Can pedophilia be explained by a biological imperitive? It’s a thoughtful and difficult question to pose, as Gideon notes at the end of his post by saying he is not supporting pedophilia—he is merely posing the question.

The question is timely. We are seeing increasing use of “my brain made me do it” defenses for crimes with NoLie MRI and Cephos offering commercial testing using fMRIs to determine deception for several years now. (NoLie MRI was involved in a widely reported case this last year where their brain scans were submitted as evidence in a juvenile sex abuse case but then withdrawn after protests from the scientific community.)

Robert Weisberg (co-director of the Stanford Criminal Justice Center) says fMRI’s are increasingly being used as mitigating evidence in the sentencing phase to show that brain damage contributed to the behavior and makes the defendant less culpable. For example, a Chicago court recently allowed fMRI evidence to be presented by the defense to ‘prove’ the convicted defendant was psychopathic in the sentencing phase. The defendant was sentenced to death anyway. Perhaps the most shocking use of the fMRI occurred recently in India where a young woman involved in a romantic triangle was convicted of killing her ex-fiancee based on an fMRI scan that “purportedly showed she had a memory or “experiential knowledge” of committing the crime”.

The admissibility of these brain scans to ‘prove’ deception (or psychopathy, or even memories of committing murder) rests on individual judges, and skeptics abound including leading researchers in the neuroscience arena who simply say we do not yet know enough about what these results mean to make life and death decisions based on fMRI ‘evidence’. Even putting aside questions of whether the fMRI technology works (and the Stanford article provides a lot of good information on the question) how can you get past the natural (and understandable) negative reaction of jurors to behavior we find unconscionable?  It seems most likely that jurors who are predisposed (by bias or other evidence) to agree with whatever the “scientific evidence” says will see it as confirmatory, and those who disagree with it will see it as junk science.

The reason that Daubert motions were endorsed in the first place was to avoid cluttering trials with junk science. Is this a step backward?

Comments Off on On brains, brain damage, pedophilia and other things we don’t like

ObamaIdentifying bias is not always a simple thing. Sometimes it’s easy to see as we talked about here and other times it’s not (see our post here). The 2008 election of Barack Obama led some to proclaim we were now living in a post-racial society and others to scoff at the very idea. Racial arguments come up in very unexpected places—which would lead us to think the issues simmer just under the surface. Witness a “prominent Columbia architecture professor” who “punched a female university employee in the face” during a “heated argument about race relations”.

Don’t kid yourself.  The reality is that racism is thriving. It’s just different. Researchers have been talking about modern racism for a long time now as we discuss here and attempting to measure covert or ‘implicit racism’. But it’s been tough to take the research methods (the most well-known measure is the Implicit Association Test) and apply them to the real-life/real-time assessment of racial bias.

Some new research begins to move us closer to being able to assess implicit racial prejudice by using a variation on the Implicit Association Test called the Go/No-go Association Task (GNAT). The researchers used a simple and elegant means of assessing seemingly unrelated responses (don’t you love how those psychologists do that?) over a five week period in 2008 (measuring implicit racism, attitudes toward Barack Obama, and then who they voted for in the election). Then the researchers went back to the same participants again (a year later) and asked them about attitudes toward the current healthcare debate. The results were striking (and are nicely summarized here).

In brief, health-care proposals were shown to participants and randomly assigned to being either Bill Clinton’s healthcare reform plan or Barack Obama’s healthcare reform plan. Among biased respondents, support for the ‘Clinton’ plan was 70% while support for the ‘Obama’ plan was 41%. Same plan. Different Presidents. Different races. (Among non-biased respondents, support for the plan was roughly the same no matter whose plan it was said to be.)

We first saw this reality while doing pre-trial research in a plane crash case where the airline had acknowledged negligence and all that was left to determine was damages to some surviving passengers. It was shocking. This blog post is not merely a screed against racism (although we wish we could do more to end it).  As we have noted numerous times, various kinds of bias play a part in virtually every case.  We have the responsibility to monitor how these forces will compromise the jury’s (or even the judge’s) ability to deliver a just verdict.  We are all responsible for assessing the existence of racial bias (and keeping up with what it looks like as it morphs) and sorting through how to best represent our clients in ensuring their story is heard.

(If you’d like to read the paper we wrote with recommendations for responding to racial bias, you can download it free at our website.)

Comments Off on It may not (usually) be overt, but it’s still racism

double helix DNAAs we hear more and more about the brain in the courtroom, it only makes sense that we would also be hearing about genes and other conditions that are put forth as explanations/defenses for criminal behavior. Isn’t it nice when the world makes sense?

In 2007, Abdelmalek Bayout acknowledged stabbing and killing a man and was sentenced to 9 years and 2 months. But an appeals judge in Italy cut Bayout’s sentence by a year after learning Mr. Bayout has gene variants linked to aggression.

In the United States, a physics graduate student was diagnosed with Asperger’s Syndrome during his 2004 trial on seven counts of arson and one count of conspiracy in vandalizing/firebombing more than 130 vehicles in 2003. When the judge ruled that his Asperger’s diagnosis could not be introduced, the 9th Circuit Court of Appeals tossed out the arson convictions leaving only the conspiracy count. Prosecutors sent him back to prison, receiving the original 100 month sentence that William “Billy” Cottrell originally was sentenced to for both counts.

The question of whether ‘aggression genes’ or Asperger’s (characterized as a social naivete with concrete reasoning and inability to understand when people are lying) can excuse criminal behavior—from murder to firebombing—remains an open issue. Defense attorneys can argue predisposition (through genes or disorder) or even pre-determined behaviors, and prosecutors can argue personal responsibility, knowledge of right and wrong, research on twins showing not everyone behaves illegally, the importance of consequences for actions, and social mores.

Our genes are not deterministic. Our diagnosed medical/mental conditions do not excuse us from being responsible for behaving badly towards others. Except when a defense argument appeals to the mysteries of genetic codes and their impact on behavior and the situational determinants of behavior weighing on all of us but more heavily on some than others. For now, the jury is out on whether convincing defense arguments can be made on criminal cases.