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Archive for August, 2010

May it please the Court

Wednesday, August 18, 2010
posted by Douglas Keene

I was flattered to be invited to address the Eighth Circuit Judicial Conference last week, on the topic of “Social Networking and Other Evils of the Internet in Jury Trials.”.  I joined US District Judge Donald Molloy (Montana), Andrea Henson-Armstrong (Federal Judicial Center in DC) and Tom Waterman (Lane & Waterman, PC, Davenport, IA) in our discussion of the issues, including the ways that jury instructions are being revised and why some jurors appear to refuse to abide by the admonitions of the court.  I also provided an updated and expanded version of the 2009 KTC paper on this subject, which includes current case law and proposed versions of jury instructions.  You are welcome to a copy of the paper here.

Judges like to be listened to and obeyed.  No surprise there.  Part of my hope is that through the panel presentation, the judges were able to understand how society has changed over the last couple of decades, and how technology has become so second-nature to American citizens that many juror rule infractions are unconscious, while most others are well-intended, even if uninformed.  If the goal is to achieve higher compliance among jurors, we will need to do a better job in readying them for their duties.

There are two main categories of violators of judicial admonitions regarding use of technology among jurors.

The Innocent and Oblivious.  Most who don’t follow the court admonitions don’t realize they are breaking the law.  After spending the evening surfing the internet, they would tell the judge “I didn’t do research!  I haven’t been to the library in years!”

This group needs to be clearly and fundamentally informed of the myriad ways we do research, including “just looking stuff up on the internet”.  Use common language.  Use personal examples.  Explain why it is important, and don’t stop with the issuance of behavioral demands.  Judicial edicts will not help this group obey the rules.

The Angry and Defiant.  This second group is more problematic.  They include the subset of Americans who are angry and mistrustful of all branches of government, especially Federal.  The judiciary is not immune from their anger, and there is a great deal of suspicion about the validity of the court’s authority, and the rules by which the court plays.  “I hear what you are saying, but I will decide for myself what justice requires!”

To solve the challenge of this group, the court has to conduct, or otherwise allow, meaningful voir dire.  Asking rhetorical questions about whether they will “follow the law as given to them” is not useful, and for the Angry/Defiant jurors it is an example of the problem, not the solution.  If these people can’t feel that following the rules is an extension of their values and their beliefs, they can’t be counted on to abide by the rules or respect the judicial process. Send them home.

Also discussed during the panel discussion were problems with discoverability due to electronic open records, and the challenges associated with the fact that some jurors look up court documents, and some do searches on potential witnesses, parties, attorneys, and judges.  Reference was also made to a chilling article recently published in the New York Times, “The Web Means the End of Forgetting.”

The program was, in many ways, cautionary.  We all spoke as advocates and defenders of jury trials, and out of the conviction that it is not necessary for Web 2.0 to be another nail in the coffin of citizen participation in justice.  The word needs to get out that the jury system is not anachronistic, but some of our traditions (edicts instead of explanations) and assumptions (judges are obeyed) clearly need to be revisited.  If the federal judiciary is listening (and they were!), there is hope.

Comments Off on May it please the Court

In a departure for us (illustrating our flexibility), we are writing about when it is good to be a woman as opposed to not so much (see for example, here and here and here). Those posts all refer to times it’s tough to be a woman. But women who kill in the throes of passion, have an edge.  Nice to know, eh?

It isn’t likely a woman who kills (say, a cheating spouse) will get away with it. But, she is more likely to get a shorter sentence than a man convicted under similar circumstances. This research was originally published in the Journal of Social Psychology. While male participants were more likely to opt for the harsher punishment (second-degree murder)—both male and female participants gave heterosexual female defendants significantly shorter length sentences than either heterosexual men or gay men or lesbian women.  Heterosexual women were also seen as “less guilty” and as having been “more provoked”.

While this sort of juror decision-making doesn’t really make sense with the evidence—that is, you should not be punished more just because you are a man—it is what it is. Beliefs about gender (e.g., men shouldn’t hurt women) seem to favor the female heterosexual defendant and a provocation defense could be a good strategy. So would we say “sometimes it’s easy to be a woman”? Maybe not that far. How about “here’s a time when it’s better if you’re a woman”.


I read the entire newspaper every day

Friday, August 13, 2010
posted by Douglas Keene

It used to be that agreement with this statement was a good indicator of social desirability responding.  This is the social scientist way of saying “he is lying, but only because he wants you to admire him.”  Now, with newspaper readership declining for the past two decades it’s less useful. We simply don’t see reading the newspaper as a highly desirable trait any longer. And this is especially true of younger people.

But the desire to “look good” has certainly not gone away. We say we watch the network news much more often than we apparently actually do. Those who design questionnaires say we can make questionnaires that accidentally result in our encouraging respondents to agree with our questions. Respondents who don’t wish to carefully consider their answers fall victim to ‘satisficing’ by simply giving ‘adequate’ rather than ‘accurate’ answers.

The last thing you want is for a juror to engage in social desirability responding. Except when you do want them to do exactly that.  And there are times you don’t.

  • If you want jurors in voir dire to honestly disclose bias, you have to embolden them to admit to attitudes that might seem critical, judgmental, or harsh.
  • If you want to inoculate jurors against disqualification, they need to affirm their ability to be open minded until all of the evidence is in, even if they are frankly biased.  [We are reminded of the old story of the juror who, when questioned, assured the defense counsel that he would keep an open mind during the whole trial, and when they sentenced the defendant he could be fair then, too.]
  • If you represent the plaintiff (who happens to be African American) in a personal injury case, you want social desirability responding.
    • You want to raise the issue of race overtly and ask jurors if it should make a difference that the plaintiff is African American. You want them to act in an unbiased fashion and you make unbiased responses socially desirable.
  • If, on the other hand, you represent the defendant and the plaintiff happens to be African American, you don’t want socially desirable responding—you want bias.
    • So you do not raise the issue of race. And you hope the plaintiff doesn’t either. Because if you don’t, (and they don’t) the award, if any, will be lower and the finding against your client less severe.

It’s sad, really. How you tell the story and how you raise or don’t raise the flag announcing racism can determine the specific version of ‘justice’. We have clear preferences for justice being real and justice being color-blind (and blind to parties attractiveness, gender and education). But it isn’t. So we attempt to share the truth of what we know to be true to help you in your advocacy work.


Legal decisions that tick jurors off

Wednesday, August 11, 2010
posted by Rita Handrich

Two recent legal events (an arrest and the overturning of a conviction) have resulted in a lot of commentary by aggravated citizens.  Those who have served on juries tend to have more positive things to say about jury service than those who have never served—but the reality is there is much in the media to tick potential jurors off.  And of course, the vast volume of sound verdicts by jurors are simply not as much fun for the press to cover, so…  Recently, two decisions have struck chords with jurors and resulted in them expressing a perspective that something is seriously wrong with our criminal justice system.

The Warren Jeffs retrial

Warren Jeffs (known as the “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints—aka FLDS) was convicted in September, 2007 of coercing a 14 year old girl into marrying her 19 year old cousin. Jeffs was charged with two counts in being an accomplice in the rape of a teenage girl. Many doubted Jeffs could be convicted in Utah. But convicted he was. Now,as of July 28, 2010, Jeffs’ conviction has been overturned by the Utah Supreme Court on a technicality. In less than a week, there are more than 1600 comments about the ruling. Most of them are from ticked off citizens who think this should never have happened. Stories like this one, regardless of their legal merit, enrage the public.

The Grim Sleeper arrest

On July 7, 2010, Los Angeles Police arrested a man they believe to be a serial killer dubbed the ‘Grim Sleeper’. They charged Lonnie Franklin, Jr. with at least 11 murders between 1985 and 2007.  That first day, it was reported that:

“Franklin’s arrest was the first successful use of a DNA investigative tool known as “familial” searching in California. Familial searching, approved by Atty. Gen. Jerry Brown at the urging of Cooley and other prosecutors, allows investigators to pursue partial genetic matches to crime scene evidence when the suspect’s DNA profile is not in the state database.”

Later on July 7, 2010, an article was published detailing how LAPD had followed the DNA trail to the alleged perpetrator. And the next day (July 8, 2010) questions began to arise about whether it was fair to use family DNA to catch a killer. Before another week went by, the debate had been framed as either a tool to protect communities or an invasion of privacy smacking of racial profiling. And comments show people are unhappy on either side of the debate.  Those who think it makes sense to allow ‘familial searching’ point to the reality that it may be the only way to catch dangerous criminals. Those who think it goes too far say relatives who are innocent can be dragged into situations over which they have no control and no involvement.

The lesson for us in this is to make sure and explain ‘why’ the rules are important. Explain ‘why’ they can’t use the internet to research the case, and explain how reliable (or not) forensic evidence is. To be optimally persuasive,  you have to educate, inform, and bring jurors along with you in the story. It won’t keep things from happening that may rub jurors the wrong way. But it gives them a framework to understand “why” and while that framework may not help them feel good about their decision, it comforts them in their distress.


Many of us have seen the original change blindness video by academics Dan Simon and Christopher Chabris (“the gorilla guys”). And if you haven’t seen it, watch it here! The original video made quite a splash when it was released and now, not content to be one-hit wonders, these two researchers have released a second video. Watch this one and see if they get you again!

While the researchers say this video is instructive regarding our ‘change blindness’—we can see the lessons for trial lawyers. After living with a case for the length of time it takes to go from taking on a case to filing to depositions to preparing for your day(s) in court—attorneys often lose sight of what will appeal to the potential triers of fact. They know what appeals to them. They know what they think is important. They know what “should” happen. In other words, they expect a gorilla. And jurors often see something else.

One of the true benefits of pre-trial research is the opportunity to see what else happens when the case is presented. That is, do jurors see a gorilla or do they see something else and totally miss the gorilla? We’ve had countless examples of jurors missing the gorilla (or perhaps the attorney missing something even more important to the jurors).

  • A hospital-based malpractice case where the heart-sick nurses shared their feelings with the attorneys but did not show their emotions in deposition testimony. The attorneys knew the nurses’ pain. The jurors saw cold and uncaring and defensive professionals who were likely responsible for harm to an innocent patient. They wanted the hospital staff to understand it was important to care when you are in a caring profession.  Witness preparation focused on helping the nurses to trust their honest feelings, which resulted in them coming across as caring and concerned about patients.
  • A high-dollar patent case where the technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file?  Who was hurt? Who was cheated? Whose dream was stolen?  If the patent is validated, is anyone harmed?
  • A contract case where much of the agreement was not detailed in writing. (“God bless poorly executed transactions” say the commercial litigators…”)  The attorney thought the fine reputation for good work in the local community would serve the plaintiff well and that jurors would want them to be able to continue in their work. The jurors thought that good practitioners do not necessarily make good business decisions.  They thought the defendant was a schmuck, but also that the plaintiffs had no real case.

In all of these cases (and many others) the attorneys spent so much time and energy on the case that they lost sight of some important facts. They expected a gorilla. If you weren’t expecting a gorilla—what else might you see?