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Archive for October, 2012

The work of the Innocence Project gets a lot of attention. Justifiably so. But did you know that DNA evidence plays no role whatsoever in 90-95% of convictions and therefore, cannot be used to pursue future innocence claims? Pacific Standard has an informative review of non-DNA exonerations that is worth a read.

They talk about EXI–the Exoneration Initiative, a project that takes on cases without DNA evidence in an effort “to exonerate the actually innocent”. Prosecutors work hard to maintain and protect the conviction. As difficult as exonerations are when DNA evidence is available, it is far more difficult without it. Exoneration efforts consume thousands of volunteer work hours and can take years to resolve.

Their cases sometimes hinge on false confessions experts who do are expensive, and who are often not allowed to testify in court. Other times their cases revolve around challenging eyewitness or informant testimony, forensic evidence, the conduct and actions of the arresting or investigating police officers and prosecutors or defense attorneys. As prosecutors and criminal defense attorneys know, once a jury renders a guilty verdict, the accused is now the convict, and all assumptions of innocence cease. The bar is set very high for reversal and exoneration, and achieving this result is exceptionally difficult.

We’ve written about false confessions before and have recommended a non-fiction account by Ray Bonner on wrongful conviction as well as a fictional account from John Grisham. There is nothing entertaining however, in the realities of being imprisoned for a crime you did not commit.

As we’ve listened to mock jurors struggling to comprehend false confessions and why anyone could possibly confess to a heinous crime they did not commit–the hopelessness that is the life of the wrongfully convicted becomes palpable. Even when jurors are told there is no dispute about the person’s innocence–it is hard for them to accept. “Then why was there a confession?” They are appalled at such an extreme miscarriage of justice. But many of them are just as appalled that anyone would falsely confess and thus, they see the false confessor as having significant responsibility for their subsequent conviction and incarceration. Among some, it is easier to blame the victim of false imprisonment than to imagine that the system could go so horribly wrong.

Recently, we listened to mock jurors struggle with a case like this and were surprised to hear reality TV actually educating the mock jurors about the pressures of the interrogation room. Two of the mock jurors watched a show called The First 48 on A&E Television. Evidently, they watched it a lot, and boy did they like it! They were able to describe the “real-life” pressures in the interrogation room and make the idea of a false confession make more sense to the other mock jurors. As one skeptic said, “Well, obviously I know it can happen because I’ve read about DNA exonerations–but it still makes no sense to me that anyone would confess to murder when they didn’t do it. What was wrong with him?” There was no sympathy for the cascade of errors often seen in wrongful conviction cases (e.g., evidence errors, witness errors, police errors, and more) but there was also little sympathy for the man who’d lost his entire young adulthood, both parents and a sibling to his (wrongful) time in prison. “If he had just stood his ground and not confessed, we wouldn’t be here now!”

It’s a nightmare you cannot escape. Kafka comes to mind… Day after day after day. Having advocates like the Innocence Project or the Exoneration Initiative after such a miscarriage of justice is truly a ray of sunlight in a very dark (and typically very, very long) time. Pursuing the evidence needed to free the wrongfully convicted is often a thankless job until an exoneration is granted. That happens more often for the Innocence Project than it does for the Exoneration Initiative–just because of the nature of their focus. We want to thank both of them. They keep showing up after everyone else has gone home.


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It’s bad enough to be in big trouble. But discussing your idiosyncratic social philosophy while under the klieg lights of global news coverage can only make it worse. After a lengthy silence (for which we are grateful) Dominique Strauss-Kahn (DSK) has granted a cover story interview to the French newsmagazine, le Point. In the interview, he apparently states that he made an error in judgment by assuming that what was okay for business leaders, athletes or performing artists is not okay for a politician. (He is referring to orgy parties he attended “all over the world”.)

But now, things are different, according to DSK. Apparently, DSK (who separated from his wife in June) is opening a consulting business and wants to be “left in peace so he can rebuild his personal and financial equilibrium.

“I no longer have public responsibilities, I’m no longer a candidate for anything…and nothing justifies me being the object of media stalking that, on certain days, has resembled a man hunt,” Strauss-Kahn said. “I can no longer tolerate people taking advantage of my situation and of the legal inquiries I’m subject to—unjustly—in order to ridicule my life…under the pretext of I don’t know what kind of moralizing transparency. I want to be left in peace!” 

It is as though DSK sees himself as the real victim of the scandals surrounding his behaviors and actions while a high-ranking French politician. It reminds us of the apology offered by Eliot Spitzer. And Charlie Sheen. And Herman Cain. And, oh yes. Tiger Woods. But none of them reached the level of self-satire as did DSK when defending himself against charges of having been aware prostitutes were being paid to have sex with him.

“The allegations involve a sex ring alleged to have operated out of the Hotel Carlton in Lille. Prosecutors aim to prove that fraudulently obtained money went to the prostitutes – and that 62-year-old Strauss-Kahn knew they were being paid.

His unorthodox defence comes amid allegations that his mobile phone records showed he had relationships with at least 10 call girls from France and Belgium, all of whom claim they were paid to have sex with him while he was IMF chief.

However, Strauss-Kahn’s lawyer, Henri Leclerc, said his client was “totally unaware” the women were being paid. “At these parties, people were not necessarily dressed, and I defy you to tell the difference between a naked prostitute and any other naked woman,” said Mr Leclerc.” 

That’s right. Dominique Strauss-Kahn didn’t know those women were prostitutes because they were all naked. It’s a strange line. It’s an even stranger defense. And not one we’d particularly recommend. Unless you can somehow convince people that gorgeous young women find pudgy 60-year-old politicians worth bedding for reasons other than money.



We are big fans of effectively done visual evidence. And we are perhaps equally big fans of the hindsight bias, often referred to as the “I knew it all along” bias. The research literature review we are examining today combines the two (visual evidence and that pesky hindsight bias) in a frighteningly relevant way for the litigation advocate.

The authors essentially review the literature on hindsight bias and discuss ways to disrupt that particular bias. Specifically, they discuss how hindsight bias is composed of three levels: foreseeability (“I knew it would happen”); inevitability (“It had to happen”) and memory distortion (“I said it would happen”). We hear these aspects of hindsight bias routinely in our pretrial research. Hindsight bias is particularly tough to disrupt since (drumroll, please…) “hindsight is 20/20”. When we know what happened back then, it’s harder to believe the actors in the particular drama couldn’t have seen it coming. And we have an amazing ability to believe that we knew it before we knew it.

What you may not have considered is how visual evidence can work against you and reinforce hindsight bias! While this is only one aspect of what is a pretty impressive work on hindsight bias and how to disrupt it–we thought it was a particularly useful one for trial advocates to know. The naïve observer would think that clear and specific visual evidence would always be useful for lawyers in the courtroom. But they would be naïve (like we said).

“Ideally, these visual aids would clarify complex information and therefore confer fairer judgment. In practice, however, such forensic animation can obscure the inherent uncertainty of evidence and cause jurors to become overconfident.”

And overconfidence reinforces hindsight bias. In short, what can happen is that jurors believe the animation depicts what actually happened rather than a best approximation of the events. The writers review past research showing that animations more than doubled the hindsight bias (by enhancing viewers’ sense of the inevitability of the event) when compared to a low-tech text and diagram method of presenting information.

And they don’t stop there! Observers ascribe greater responsibility to whichever party dominates the visual scene. The writers refer to the prior research on camera angles in videotaped confessions–when the camera shows only the detainee rather than both the detainee and the interrogator–observers are more likely to believe the detainee is guilty even when the confession is inconsistent or implausible. If the camera shows both the interrogator and detainee viewed from the side, observers are more able to evaluate the videotape objectively.

Computer animations of, for example, traffic accidents can be readily created to depict an event from almost any point of view.

In events with complex causality, such as traffic accidents, the hindsight certainty that the accident could have been avoided if not for the actions of a particular driver can be heightened if that driver occupies a position of visual salience within the computer-animated scene.”

While you can obviously ensure animations do increase hindsight bias by not paying attention to their recommendations, these writers recommend two strategies for ensuring animations do not increase hindsight bias.

Use multiple angle and points of views in animations.

Use simulated experiments during animation development where you remove some parts of the data set. How does the animation change? Does the change support or contradict the current interpretation?

Roese, NJ, & Vohs, KD (2012). Hindsight bias. Perspectives on Psychological Science, 7 (5), 411-426



DNA seals the deal. Period. Maybe.

Wednesday, October 24, 2012
posted by Douglas Keene

Or does it? Perhaps not. DNA evidence is powerfully convincing perhaps becausewe’ve come to accept the idea that DNA is a sort of individual genetic ‘serial number’ that just needs to be ‘read off’ from a biological sample — but the reality is far more complex”.

Vaughan Bell (who usually writes on the Mind Hacks blog) has an article in the Examiner that alerted us to a study showing how even DNA forensic matching results are often decided in a “judgment call” and not by simply reading off the ‘genetic serial number’. DNA samples obtained at crime scenes may be the DNA of two or more people mixed together. It isn’t simply the victim’s DNA, the perpetrator’s DNA and the roommate’s DNA. It may be all three mixed together. These are called, fairly predictably, “mixed samples”. Vaughan describes the study by Itiel Dror and Greg Hampikian:

In Dror’s study, DNA experts were given results from a mixed sample that was drawn, unknown to them, from a previous real-world case that hinged on whether suspects were present at the scene. After analysing the samples, they not only disagreed with one another but also came to different conclusions depending on whether they had information about the case, or whether they had nothing to go on but the genetic data.

It is worth noting that these findings do not invalidate forensic evidence. Studies also show that despite biases, identification is mostly done reliably, but the fact that outside information can affect decisions remains a worry for the justice system. 

Perhaps, not surprisingly, Vaughan’s explanation is much easier to understand than the actual article itself. It’s a good reminder that just like forensic evaluations of legal sanity (or insanity) are somewhat idiosyncratic and reflect the individual examiner’s judgment calls–so, apparently, are the analyses of mixed DNA samples. The story (aka case narrative) needs to make sense without the DNA evidence. Often, what seems to happen, is that the story is tweaked to match the DNA evidence since “DNA doesn’t lie”.

That’s right. DNA doesn’t lie. But it’s clear we don’t yet know exactly how to talk DNAs complex language so we might misinterpret.

If you want to reinforce the credibility of the DNA evidence, refer to it as fact, and frame your trial story with that ‘fact’ as a premise for the other aspects of the story. Jurors are likely to use hindsight bias, based on knowledge of the DNA evidence, to reinforce their views of the non-DNA facets of the story.

Dror IE, & Hampikian G (2011). Subjectivity and bias in forensic DNA mixture interpretation. Science & Justice : Journal of the Forensic Science Society, 51 (4), 204-8 PMID: 22137054



We’ve written before about how false information becomes accepted as truth by many of us. The proof this remains an issue is in a recent survey by the Pew Research Center which found the number of conservative Republicans who believe President Obama is a Muslim has doubled since 2008. Like the ‘birther’ controversy (which simply will not die) certain pieces of demonstrably false information stick and become lightning rods for controversy among those holding opposing views.

The reality is that trying to re-educate about the inaccuracy of false information can backfire and instead makes the false belief even stronger! It’s called “belief perseverance” and we’ve all seen it in action. People showing us their belief perseverance don’t listen to new facts and modify their beliefs. They listen with an ear toward reinforcing their preexisting beliefs. Please, don’t confuse them with your facts and evidence!

The decision to attack erroneous information or ignore it is a difficult one, and politicians suffer for their misjudgment of it all of the time. The ones we remember most are the decisions to ignore non-central controversies that simply don’t go away. In the internet/cable news echo chamber, nothing dies down as quickly as it would have 20 or 30 years ago. Ask John Kerry (swift boats), Al Gore (birth of the internet), Barack Obama (birth place) and Mitt Romney (taxes).

You don’t have to simply give in though! New work based on a review of the misinformation literature looks at the many ways misinformation is spread–through the media (traditional and social), through fiction, politicians, governments and various vested interests. They also examine how individuals resist correction of preexisting beliefs, especially those that represent core values (like theories of evolution, sexual orientation, religious beliefs versus no religious beliefs). And basically we resist correction because actually correcting false beliefs requires cognitive effort and frankly, most of us don’t care for exerting much cognitive effort to change our belief systems when they seem just fine, thanks anyway!

Finally, the authors make recommendations for how to debunk misinformation without forcing the listener to dig in their heels and resist your efforts. What we appreciate is that these are all strategies we’ve recommended here previously. It’s good to see that someone else’s review of the persuasion literature concurs!

Provide people with a narrative that replaces the gaps left by false information. Focus on the facts you want to highlight, rather than on the myths.

Make information takeaways simple and brief.

Consider your audience and the beliefs they are likely to hold dear. Strengthen your message through strategic and measured repetition.

These are what the researchers call “evidence-based strategies”. They are based on a careful review of current and historical research into how efforts to change pre-existing beliefs fare in the real world. These work.

Lewandowsky, S., Ecker, U., Seifert, C., Schwarz, N., & Cook, J. (2012). Misinformation and Its Correction: Continued Influence and Successful Debiasing Psychological Science in the Public Interest, 13 (3), 106-131 DOI: 10.1177/1529100612451018