RSS Feed
- Simple Jury Persuasion: The ‘attitude alignment’ effect & persuasion
- Confused about brain scans? Welcome to the club!
- Voir Dire Tips you wouldn’t likely figure out on your own
- Is anatomy destiny? One more time on ‘ugly criminals’
- Eww! That is just disgusting! (but…very interesting)
- If only you weren’t so greedy…
- Is it wrong to want an 8-foot chicken?
- May it please the Court
- Mad enough to kill? It’s better if you’re a woman
- I read the entire newspaper every day
Archive for the ‘Forensic evidence’ Category
Confused about brain scans? Welcome to the club!
We’ve tried to keep up with the many studies/articles on neurolaw. We started tracking these when it was a new concept. It has gotten to be a bigger challenge as the pace has accelerated, but the importance of keeping up with this is growing along with the research pace. Brain scans are in. Brain scans are out. It happens faster than we can type. Just in the past few months…
- Lie-detection and neurolaw: do brain scans have a place in the courtroom?
- Brain Scan Evidence Rejected by Brooklyn Court
- fMRI lie detection and the Wonder Woman problem
- Can Brain Scans Detect Lying? Exclusive New Details From Court Hearing
Researchers are using brain scans for everything! They’re checking for brain activity in dead fish. They’re even putting people in brain scan machines with snakes which is just nasty.
Thankfully, two law professors are offering pretty straightforward information to help us weed through what makes sense and what doesn’t as more and more information on brain scans and neurolaw comes forward. Both pieces are available at no charge via SSRN:
1. Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts by Jonathan R.H. Law.
This article discusses fMRI-based research techniques in the context of US federal courts. The fMRI is seen as providing data that is more prejudicial than probative. The authors then propose an approach to the Daubert standard and recommend that US courts wait a while before incorporating fMRI data into evidence.
2. Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, and Rene Marois.
This article provides an introduction for legal professionals to brain imaging. It describes the techniques and methods used by fMRIs and then offers a tutorial on reading and understanding a brain-imaging study. Finally, the articles shares information on how to avoid misunderstanding brain images and how to recognize when others are misusing brain images in legal contexts.
And, a third piece has been put out entitled: A Judge’s Guide To Neuroscience: A Concise Introduction with multiple authors. This one is put out by the Law and Neuroscience Project and is written especially for judges. You may find this one the most user-friendly in terms of vocabulary but all three are worth a read if you would like to understand the shifting sands of the neurolaw area a bit better.
Read them. We will too. Then come back for more updates on Neurolaw.
Legal decisions that tick jurors off
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.
Better find something besides DNA & hard science to persuade the jury!
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”
Redux: Bye-bye CSI?
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:
- “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.”
- “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.”
- “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).
On brains, brain damage, pedophilia and other things we don’t like
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?
Bye bye CSI?
On February 18, 2009 the National Academy of Sciences released a long-awaited report on the fallibility of forensic science techniques. A month later, on March 28, 2009, European police reported that the 16 year search for an elusive female serial killer was likely based on misinterpreting dirty lab materials. And now, we hear a new report that DNA evidence, supposedly the gold standard of forensic evidence, can be fabricated. And it isn’t even that hard. “Any biology undergraduate could perform this” says the lead author of the paper.
What does this mean? Well, for one thing it seems that it should be very simple to draw DNA evidence into question in front of jurors. Or does it? We increasingly see mock jurors reporting they love legal shows on television. The shows they most love on television (CSI, Law & Order, et cetera) all focus on the power of science to solve crimes. They believe. All you need is a speck of evidence and it can be centrifuged, soaked in dye, blown up on a computer and you can then track it back to the manufacturer and then match credit card receipts to the purchaser. You then confront them and they confess with a curled lip and often a smirk. The fantasy that the unknown can be discerned in a test-tube is almost irresistible. It requires an abandonment of faith that is painful. On the other hand, for many the faith in government has never felt more fragile.
We may know that DNA evidence can be faked and we may read the National Academy of Science’s report and know that forensic methods need to be carefully examined. But whether jurors will believe that or see it as a cagy defense move is an open question. It’s a question well worth exploring in pre-trial research. How will it turn out? That may depend on the skill of advocacy. That’s why we’re talking about it!
The Jury Room: A new blawg
WELCOME TO THE JURY ROOM!
This is a blawg dedicated to understanding the American jury and trends in litigation strategy. You will find posts here exploring how research findings and current events inform:
• Juror decision-making
• Uncovering juror bias
• How values, attitudes and life experiences affect our choices and decisions
•What makes particular witnesses and evidence powerful or pointless … and much more.
Sometimes we’ll talk about current events. Sometimes we’ll talk about research. But it will always be research and experience applied to litigation advocacy. You know law. We know juries.
This blawg is our forum to share current lessons as we learn them. We invite your comments, questions and thoughts.
Recent Comments