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Simple Jury Persuasion: Hearsay evidence & the expert witness

Wednesday, March 7, 2012
posted by Rita Handrich

Hearsay testimony is often admissible in cases of child abuse when the individual who interviewed the child recounts the child’s testimony in court. This strategy is meant to protect the child from embarrassment and repetitive trauma in the courtroom. Recent research (according to the current authors) has highlighted at least two potential issues with even this limited exception to the hearsay rule.

Interviewers often lack the ability to retain and accurately report interview details. While they likely recall the gist of the interview, the specific details are often fuzzy. It is further compounded by the typical process of contemporaneous written notes being later converted and often interpreted by the interviewer into a report.

To further complicate matters, jurors often believe the interviewer testimony more than they would believe the testimony of the actual child whose statements the interviewer is reporting.

Researchers wondered if expert testimony that raised multiple questions regarding the validity of hearsay evidence would be more persuasive to jurors than no expert at all or an expert testifying about only one issue with the hearsay evidence validity. That is, if you hear no expert witness at all, is that more persuasive (or as persuasive) as an expert testimony discussing only one of the above issues with hearsay evidence validity? And what if the expert testimony covers both of the afore-mentioned issues with hearsay evidence? Is that the most persuasive of all?

We’ve written about the “one at a time effect” as part of our Simple Jury Persuasion series and based on that, we’re expecting the expert who has multiple reasons the hearsay evidence is problematic is going to be more persuasive to their listeners.

The research included about 200 participants (undergraduate students) who were given a written mock trial summary where a hearsay witness [a counselor at the Department of Human Services] testified on behalf of a child alleging sexual abuse by her father. The research participants also received testimony from a character witness for the defense. Then the study introduced the variable of ‘testimony on the effect of hearsay evidence’ by an expert witness (an experimental psychologist). They were randomly assigned to one of four expert witness conditions:

In the first condition, no expert testimony was presented.

In the second condition, the expert testimony covered the research on poor interviewer memory with regard to hearsay witnesses.

In the third condition, the expert testimony presented research showing that jurors tend to over-believe hearsay witnesses.

And in the fourth condition, the expert testimony presented research covering both types of expert testimony (e.g., poor interviewer memory and juror tendency to over-believe the hearsay witness).

The researchers found that most of the jurors were unaware that interviewers had poor memory with regard to the specific details of their interview conversations. Jurors who heard expert testimony gained knowledge whether they heard about one issue with hearsay evidence or two.

However, it was only when they were given expert witness testimony on both issues with hearsay evidence that perceptions of credibility were affected and actual verdict decisions changed. The researchers offer the suggestion that marketers who say “more is better” are likely accurate. Multiple reasons to doubt testimony reliability are more persuasive than one or none.

So, we were right!  The earlier research on the “one at a time” effect is affirmed. It’s a pretty intuitive outcome when you think about it. Give jurors education and information on why what they believe to be true may not be. It’s akin to how to best deflate the impact of ‘dueling experts’. We have to trust our jurors. And we have to educate them so they can make informed decisions.

Maybe it isn’t so much a one-two punch for jurors as the authors propose in their article title–but rather a one-two punch for the trial lawyer to reinforce the importance of education along with advocacy for optimal courtroom effectiveness.

Nunez, N., Gray, J., & Buck, JA (2011). Educative expert testimony: A one-two punch can affect jurors’ decisions. Journal of Applied Social Psychology.


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