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Better find something besides DNA & hard science to persuade the jury!

Friday, June 11, 2010
posted by Rita Handrich

For some time now, there have been concerns about the CSI Effect on our juries. In short, this is a belief/fear that potential jurors who watch television shows such as the CSI franchise will presume real labs can produce the same sort of evidence—and anything that falls short of that causes reasonable doubt. Litigators have lived in fear of the CSI Effect despite rising evidence it may actually be an urban (and rural!) litigation myth.

In fact, a recent study shows us that there may well be decreasing trust in the institution of science in this country. Miller-McCune is a terrific publication. Recently, they describe an ESP study with findings that may surprise you.

“Newly published research on belief in ESP suggests a public disregard for — and perhaps even hostility toward — the scientific consensus.”

Researchers had subjects watch a woman who seemed incredibly lucky or perhaps to have some sort of sixth sense do inordinately well at a card-guessing game. (In truth, she had been told the answers, but subjects did not know that.) Then they were told about ESP and given varying information as to how accepted/endorsed ESP was by the public and by scientists. Researchers expected those told that ESP had widespread support to be more likely to see the woman card-reading as displaying that ability. And that was true. But they weren’t expecting to see scientific consensus rejected. And they did.

Those told ESP had widespread popular support were likely to express agreement with that consensus, regardless of the scientific consensus. But among those who were informed that only one-quarter of the population believed in the phenomenon, support was actually higher when science gave it a thumbs-down.

We saw this first-hand in a recent focus group. A mock juror expressed the belief that a plaintiff parent’s panic as her child deteriorated while in the hospital likely made the decline worse or perhaps even caused it to happen.  According to the juror, if she had stayed calm things probably would have gone better.  When told there would be no evidence presented to support that conclusion, the juror said “Well, I still think so….”. Pew Research has seen it, too—a 2009 poll found that 16% of Americans believe in the “evil eye” (the belief that certain people can cast curses or spells that cause bad things to happen).  And although we haven’t seen any evidence, a portion of those who believe President Obama was not born in America might well think he is an alien.  As in… Mars.

So be careful what you say, and what analogies you use.  Consider objecting to loose characterizations and metaphors by opposition counsel.  Jurors don’t always hear things accurately.  People read documents imperfectly.  Their attention comes and goes.   I might now find that I am being quoted across the e-universe as believing that our President is a Martian.   I risk being attached to this absurdity this as a selfless risk for the benefit of our readers.  So keep in mind that reckless distortions are not a joke, and it doesn’t take much to set confusion in motion.

“Klaatu barada nikto”

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