Archive for the ‘Voir Dire & Jury Selection’ Category
In the last year we have worked on three noteworthy (without being headline-grabbers) cases that offered experiences we wanted to share with our readers. The cases are finally all resolved, and can now be shared without violating confidentiality. They are not really cautionary tales but because the pattern emerged during three separate projects it captured our attention. What they offered were not new lessons but older ones that we saw with new eyes. And it was because these instructive juror reactions were not related to any facts in dispute.
Past experiences cast a long shadow…
The first example is one of how past experiences—even from our distant past—can influence our current behavior. This case involved alleged wrongful termination due to age discrimination. We carefully examined potential mock jurors before accepting them in the group regarding any experiences with termination that seemed unfair, and other questions about their work histories. An older White male with a cane (we’ll call him Harold) reported no such experiences and thus was accepted in the focus group panel. For those who might wonder why we would not want someone to serve in a mock trial or focus group who has had such a bad experience, the answers are simple.
First, during jury selector such a person would almost certainly be struck, either for cause or as a peremptory strike.
Secondly, we are there to listen to the wisdom of potential jurors, and such a person is likely to be consumed with his or her own difficult experience.
The third reason is that we don’t want to entrust confidential informant to someone who might potentially have a bone to pick against employers, and have them go out and violate their confidentiality agreement by discussing the case with anyone (including the opposing team).
During the introductory phase of the group, another mock juror reported having been wrongfully terminated due to jealousy, and Harold shared that he’d been injured on the job and was not rehired after recovery.
In the observation room, we quickly checked his background questionnaire and saw he had not reported this experience but were curious as to how he would respond to evidence presented.
As the case was presented he pursed his lips and shook his head and asked repeated questions as to “why” the employer required safety procedures—was it a legal requirement or something management used against employees? After several of these sorts of questions, the moderator asked Harold what he thought of the Defense responses and Harold looked at the moderator steadily for a long moment and then said, “Well, that’s what they want us to think”.
Throughout the entire presentation, Harold maintained his dour expression and shook his head. After watching deposition excerpts of the relevant witnesses, including the Plaintiff, Harold appeared grim. Reluctantly, he stated that he didn’t see age discrimination as the “only factor” and not even the “largest factor” but he figured it was “in the mix”. And when he completed the verdict form, Harold insisted on awarding money to the Plaintiff and simply repeated he knew “age was in the mix” despite there being no evidence of it.
Lesson learned: Jurors with disabilities often feel certain that there is workplace discrimination that is subtle and hard to describe. And if course, there often is. Harold over-identified with the Plaintiff (who was about his age) and was unable to shake his awareness of discrimination in general despite there being no evidence of it existing in this particular case.
An attractive, poised and well-spoken African-American plaintiff and low, low damages
Our second example came from a wrongful death case where the surviving widow/Plaintiff was a very attractive and well-spoken woman who earned among the highest scores we’ve ever seen on our witness impression forms (completed after deposition excerpts were viewed). She was beloved, for good reason. Her spouse had died a horrible death and in such a way that the jurors were terrified something similar could happen to them. There were multiple defendants and the jurors insisted “someone had to pay”. Their anger was palpable. They spoke very highly of the Plaintiff and how she had loved her husband and how young they were with so much life ahead of them. They imbued the victim with the widow’s intelligence and poise and spoke highly of him as well.
Yet, when the time came to complete the jury charge, most of the jurors awarded damages much lower than one would expect to see in such a horrible and unnecessary death that truly could have happened to any one of those mock jurors. As they were asked to talk about their awards, the woman who awarded the lowest amount said she had really identified with the widow and felt “she was middle-class, like me. I wanted to award something I thought she could actually get rather than a lot”. As the group was polled, the highest awarding male juror (also African-American with a managerial background) commented that he was taking into account the horrible suffering of the victim and the widow’s trauma. As he described these facts submitted as evidence, several other jurors said they’d “forgotten” those facts but did not modify their awards.
Lesson learned: We still need to take special care when representing African-American plaintiffs (and ethnic minorities in general), and introduce the idea of universal values to show jurors how much “like them” is the Plaintiff. While damages were not the focus of the case presentation and no suggestions were provided for their valuation of the non-economic damages (such as pain, suffering, mental anguish, loss of consortium, etc.) the spontaneous offering was surprisingly low.
In this instance, the jurors adored the Plaintiff, but they didn’t award as much as we typically see if the Plaintiff and victim had been White. In a case like this one, where race is not salient to the case facts, we need to reinforce the idea of universal values but also consider whether to raise the flag of racial awareness so that jurors do not decrease the award as a sort of unconscious African-American penalty.
Workplace violence: Someone has to pay!
Our third example came from a case involving a workplace death by gunshot where the Plaintiff alleged lack of care on the part of the employer and a company that supposedly conducted careful pre-employment background checks. Our mock jurors were asked standard questions about workplace violence, their opinions on background checks, and gun laws—with many of them having guns “for protection” in their homes.
During the course of the discussion, two of the participants reported having concealed carry permits (including a grandmotherly looking woman who likely had a weapon in her purse during the group).
As they listened to the story of hiring a new staff member without the requisite background check that would have shown his instability and propensity for violence, jurors were appalled at how much information was available “if only” someone had reported it. These mock jurors were also terrified that this could happen to them and needed to feel safer by punishing both Defendants.
And they did, awarding much larger amounts than in the case with the African-American plaintiff. Intriguingly, in this case the victim and the Plaintiff were White and the shooter was an African-American male with a history of violence and death threats against his own family members. In this case, racial biases and fears worked for the Plaintiff. The shooter played into stereotypes many jurors have of violence and African-American men, and their anger and fear resulted in the Plaintiff being awarded significantly higher damages.
Lesson learned: Jurors were so angry (and frightened) about this case that there was no need to stir them up more. If you read the post we linked to earlier on racial bias, you know this is another case where race is not salient—it is simply part of the tapestry of the story. However, if you are representing the Plaintiff, you would not draw attention to the race of the shooter. You simply present the facts about him and let jurors draw their own conclusions as to whether this employer did enough to keep their employees safe.
The fears many adults in this country have about violent African-American men with guns will likely factor into high awards for your client. The problem here for defendants is more complex. When this candidate was hired, they did a background check (albeit very poorly) and hired an African-American man when some employers might have racially excluded him. For them, they want to raise the race card to point out that the story has nothing to do with race, it has to do with the hidden problems of one individual employee.
We’ve been consulting on litigation for more than 20 years. And this is why we still love doing the work. Figuring out where bias lives and hides is a fascinating occupation. In all three of these cases, we were confronted with examples of bias that made us stop and think about case facts in a slightly different way.
We know, like most of you know, that bias is an ugly thing lurking under the surface of many everyday decisions. Sometimes we get to see it unmasked and when we do, it’s a good day for litigation advocacy.
In a word, yes. But perhaps not in the way you might think. Researchers were interested in seeing if the race of parties involved in battered spouse syndrome case defenses would make a difference in how jurors made decisions about verdicts. The researchers say their study is a contribution to the “scarce literature on the influence of race on perceptions of legal proceedings involving IPV” (i.e., Intimate Partner Violence). We would add it is also a study only examining Intimate Partner Violence in a heterosexual context.
They asked 244 jury-eligible participants (120 men and 124 women who were recruited in the US through an online portal and reported they had never been convicted of a felony) to read a 23-page trial transcript of a “murder case in which the defendant claimed self-defense using evidence of battered spouse syndrome”.
The participants ranged in age from 18 to 69 years, most (78.3%) said they were White, 9% were Black, 5.3% were Latino/Latina, 4.9% were Asian Americans, and 2.5% identified as “Other”. They asked the research participants to offer a verdict, attribution of responsibility for the murder, and their perceptions of the scenario/trial transcript.
The researchers designed their study to manipulate the race of the defendant (the wife) and the victim (the husband) so that the pairings were as follows: White/White, White/Black, Black/Black, and Black/White. Once participants were determined to be eligible to serve as jurors, they were randomly assigned to one of the four “trial” conditions (based on the racial composition of the defendant and the victim). The trial transcript was modeled after the Lavallee v. Regina (1990) case (where a woman claimed self-defense using evidence of Battered Spouse Syndrome resulting from “continued and severe IPV).
The researchers offer the following case summary: “The defendant and her husband were holding a small party at their home the night of the killing. At some point in the evening, people at the party heard the wife/defendant and husband/victim arguing upstairs. The argument escalated as the partygoers also heard yelling, banging, and gunshots; the wife/defendant had shot the husband/victim as he was leaving the room.”
They go on to say that the trial transcript included opening and closing statements, witness evidence, expert witness testimony and direct as well as cross-examination of the defendant. The jury charge was explained in the transcript as well and gave verdict options of second-degree murder, manslaughter, and not guilty on the grounds of self-defense as well as instructions regarding burden of proof and reasonable doubt.
Here is a partial report of their findings:
Black (female) defendants were more likely to be found not guilty by reason of self-defense (53%) than were White (female) defendants (38%).
Male participants (48%) were more likely than women (31%) to vote for a manslaughter conviction. Female participants (56%) were more likely to acquit the (female) defendant than were male participants (33%).
Female participants found the husband/victim more responsible for the incident than did male participants (p<.03). But, both male and female participants assigned identical husband/victim responsibility ratings when the wife/defendant was Black, but women assigned a much higher husband/victim responsibility rating than did men when the wife/defendant was White.
As the researchers looked into why this was, what they determined was that participants felt the Black (wife) defendant had fewer options available to her than the White defendant and they saw the White defendant as being in greater control of her actions than the Black defendant. They also point to the fact that their participants were largely White and the female participants may have identified more with the White defendant/wife.
Finally, there were other findings about the gender of the participant jurors: women were more likely to believe the wife’s/defendants’s life was in danger, that she was trapped in her relationship and that her claims were more plausible than men participants believed. Women also were less likely to believe the wife/defendant had other options available to her and that the defendant was less in control of her actions than men believed.
The researchers had expected the Black (female) defendant would be treated more harshly than the White (female) defendant and they express some surprise that this was not the case. They explain the finding by saying that despite the participants being primarily White, they were aware that a Black female victim of domestic violence will not have options available to her that a White female victim would have available.
“Poverty is disproportionately high among Blacks in the US and thus, Black women with limited finances may lack other options and remain in abusive relationships for economic reasons.”
In other words, say the researchers, the Black (female) defendant may have had no other option to remove herself from her circumstances and so the participants thought it reasonable for her to take lethal action against her husband. The researchers also discuss prior research that says women are more punitive than men in domestic violence cases. They think it important to explore this in future research since their study found the opposite pattern.
From a litigation advocacy perspective, this study is troubling but it is based on one relatively small sample and was conducted using a written trial transcript of 23 pages. That is quite lengthy and the researchers do not report the length of time it took participants to complete the experiment. However, the pattern of results is the opposite of what has been found in prior research and that makes it tough to figure out whether men or women would be better jurors in this sort of case.
Fortunately, we don’t advocate making jury selection decisions on the basis of gender or other demographics. As always, experiences, attitudes, values and beliefs will be more important than gender alone. If you have a domestic violence case, those with experiences related to the facts of the case or those with strong beliefs related to the facts of the case are going to be the ones to question carefully.
Mossiere, A., Maeder, E., & Pica, E. (2016). Racial Composition of Couples in Battered Spouse Syndrome Cases: A Look at Juror Perceptions and Decisions Journal of Interpersonal Violence DOI: 10.1177/0886260516632355
We’ve written about neurolaw fairly routinely here and recently Science Magazine took a look at what they call “the growing use of neurobiological evidence in criminal trials”. In our own experiences with pretrial research, mock jurors are not often accepting of “my brain made me do it” defenses and will roll their eyes and sometimes openly mock the defense claims. This exemplifies the uphill battle that neurobiological defenses face, but they can succeed. There are increasing numbers of cases with such defenses presented in court. A recent article in the Journal of Law and Biosciences reported that in 2012 more than 250 cases involving “my brain made me do it” defenses were brought to trial and this was more than double the number of similar claims made in 2007. Science Magazine offers this case summary to illustrate:
In 2008, in El Cajon, California, 30-year-old John Nicholas Gunther bludgeoned his mother to death with a metal pipe, and then stole $1378 in cash, her credit cards, a DVD/VCR player, and some prescription painkillers. At trial, Gunther admitted to the killing, but argued that his conviction should be reduced to second-degree murder because he had not acted with premeditation. A clinical psychologist and neuropsychologist testified that two previous head traumas—one the result of an assault, the other from a drug overdose—had damaged his brain’s frontal lobes, potentially reducing Gunther’s ability to plan the murder, and causing him to act impulsively. The jury didn’t buy Gunther’s defense, however; based on other evidence (such as the fact that Gunther had previously talked about killing his mother with friends) the court concluded that he was guilty of first-degree murder, and gave him a 25-years-to-life prison sentence.
This is precisely the sort of reaction we have come to anticipate from mock jurors. You cannot “see” the impact of mental illness or head injury, so mock jurors look for evidence to support guilt despite allegations of brain injury or mental illness. Yet, as pointed out in the Farahany article in the Journal of Law and the Biosciences, the increasing use of “my brain made me do it” defenses means the defense is likely here to stay and neuroscientists need to enter the picture to help us all make sense of the defenses and to know whether the defense is legitimate or if the science cannot yet support the defense claims.
Neuroscientists should be at the forefront of this conversation—as experts in criminal courtrooms, in public presentations, through accessible writing for public audiences, or by filing amicus briefs in legal cases where neurobiological evidence is at issue. Neurobiological evidence has profound implications for some of the most significant decisions we make in law and policy. It’s time we better understand how it’s being used and start to address how it may be better used in our criminal justice system.
From a litigation advocacy perspective, we think this makes a lot of sense. When we have had cases involving illegal or grossly inappropriate behavior following a head injury, it has been very helpful for our jurors to understand the science of what areas of the brain control behavior and were damaged by some sort of trauma. Even when they do understand basic brain function though, the evidence is seen as something for which to have empathy but our mock jurors want to fall back on individual responsibility and believe the defendant should be responsible for behavior.
The implications of the tragedy (both the brain injury of the accused and the victims of their aggression) is too distressing for many people to really accept. If jurors want certainty in life, then the prospect that there are people walking the streets looking mostly normal, who are yet subject to intense, violent outbursts is too upsetting. There is a fear that if we excuse behavior based on genes or brain injuries, we can never feel safe again.
For the time being, the challenge will be to find jurors who can tolerate the uncertainty of life, and the potential that head injuries and biochemistry can turn Dr. Jekyl into Mr. Hyde. Until the defense can come up with a way to help jurors hearing “my brain made me do it” defenses feel safe excusing a defendant, the neurobiological defenses will likely continue to be largely ineffective.
Farahany, N. (2016). Neuroscience and behavioral genetics in US criminal law: an empirical analysis Journal of Law and the Biosciences DOI: 10.1093/jlb/lsv059
We write a lot about tattoos here—perhaps because we have Millennial aged kids and at least half of them have tattoos. Okay, more than half. The meaning of tattoos has changed over the years and there seems little stigma still associated with them any longer. The authors of new research on college students (2,394 of them from six different North American public universities, most between 18 and 20 years of age, 67% White and 59% female) opine that a “single rose or zodiac sign [tattoo] is no more edgy today than the Beatle haircut in the early ‘60s”.
In their review of the literature, the authors indicate that tattooed individuals are more likely to be risk-takers and to have a need to express their uniqueness. While historically the opposite, more women (23%) than men (19%) now have tattoos. However, women—in addition to being more likely to have tattoos—are also more likely to seek tattoo removal. There appears to be a relationship between having tattoos and having a history of emotional, physical or sexual abuse and in fact, there is a relationship between having multiple tattoos and also having a history of suicide attempts.
These researchers wanted to update the research on tattoos and well-being and here are some of their major findings:
Females were more likely to report at least one suicide attempt and to have lower self-esteem and more depression.
The number of tattoos on any one individual had no association/relationship to suicidal thoughts (aka ideation) but was related to reports of at least one suicide attempt, to depression, and to self-esteem (higher self-esteem).
Suicide attempts were related to depression and suicidal thoughts. Higher self-esteem was more likely to occur in the absence of suicide attempts.
A fair reading of those two sentences raises some odd questions. How can it be that among those who report depression and suicide attempts there is a boost to self-esteem? It may speak to two (or more) subgroups within the younger tattooed population. So the researchers wanted to learn more—particularly as higher numbers of tattoos have been associated with greater amounts of deviant behavior in past research. So they dug in (statistically speaking) and found a bit more.
The level of self-esteem among those with tattoos increased as they got more tattoos. For example, those with four or more tattoos reported one or more prior suicide attempts (and this was at a rate three times higher than those with no tattoos at all). For women with four or more tattoos, the suicide attempt rate was even more dramatic—almost four times higher than among those without tattoos.
But where does the increased self-esteem enter the picture? Overall, the self-esteem of women was lower than the self-esteem of men participating in the study. (This is not really a news flash since women do tend to report higher depression and lower self-esteem than do men.) However, as the researchers continued to statistically delve into their data, what they found was that while women with four or more tattoos did have a history of prior suicide attempts they were also more likely to have higher self-esteem. It is, say the researchers, as though there is something restorative and life-affirming for women about getting tattooed.
“We know that breast cancer survivors sometimes get tattoos in an effort to express, control, or reclaim ownership of their bodies.”
Perhaps, they say, women who are struggling with depression and/or suicidal thoughts seek out tattoos and imbue the process with meaning or symbolism that elevates their self-esteem and is therefore emotionally restorative. It’s an intriguing statement. And certainly a more positive one than saying that when you have multiple tattoos you are likely deviant.
From a litigation advocacy perspective, this research tells us to, once again, keep up with the times and the changing meanings of tattoos. Rather than a sign of deviance—perhaps that young woman with at least four visible tattoos is a survivor of trauma who has reclaimed her life. And that simple fact may move her from being a juror you might think is anti-social or unreliable, to one with a compelling story and persuasiveness, who can lead a deliberation focused on themes of re-invention, reclaiming the self, and rising above negativity.
Koch, J., Roberts, A., Armstrong, M., & Owen, D. (2015). Tattoos, gender, and well-being among American college students. The Social Science Journal, 52 (4), 536-541 DOI: 10.1016/j.soscij.2015.08.001
Here at KTC our kids are all Millennials (and we happen to be very fond of them), so we’re sensitive to the experience of Millennials being treated like children even though they have, in some cases, been in the workforce for years. Two recent experiences bring the work of the Pew Research Center to mind.
In the first instance, during a recent focus group we asked individual potential mock jurors if they could maintain confidentiality if they found the story particularly interesting (which it was). One young man we had recruited worked in IT support and was clearly bright and articulate. As we questioned him about confidentiality, he blurted out in frustration, “Oh come on! I’m 26 years old” and we both grinned and said, “Oh, well then!” and laughed a bit harder than he probably believed the comment merited.
The next day, I took my car in for warranty work and was waiting in the service area trying to read and blog in what I’d hoped would be a quiet environment. An older woman was making phone calls to multiple volunteers for a community meal of some sort where they would require those bringing food to give the food “an interesting holiday themed name” and repeated the same lines on every call at several decibels louder than she needed to speak. She was behind me and I looked up in frustration several times only to make eye contact and share mutual eye rolls with multiple 20-somethings also obviously trying to get some work done. Finally, one of the young people sharing my tall table with power outlets went over to her and politely (and quietly) asked her to make her calls outdoors as some of us were trying to get work done. The three of us seated at the table all turned and looked at her so she knew it was not just one person making the request.
It is one thing to be in your 50s (or older) and have to ask someone older than you to keep it down in a public shared space. It is another to be in your 20s or early 30s and do the same thing and I admired the courage and assertion of that young woman who spoke up for all of us making meaningful but silent eye contact. Then I thought back to the young man frustrated by our asking him if he could maintain confidentiality (which in truth is something we ask everyone—not just Millennials) when he’d been working for a number of years and had “signed multiple non-disclosure agreements”. He probably was insulted by our laughter and for that, I apologize as well. It just struck both of us as so funny since it was not at all why we were inquiring. Discretion has little to do with chronological age.
According to Pew Research, Millennials are now ages 18 to 34 years but only about 40% of them identify with the label “Millennial generation” and 33% (mostly the older Millennials) consider themselves part of Generation X. And despite the constant media sniping toward Millennials, the Millennials themselves are the most likely generation to identify with negative labels as descriptors for their generation (while Boomers and Silents see themselves most positively). On the other hand, young adults think there is strong evidence of climate change and that we should prioritize development of alternative sources of energy. Oddly, given the Millennial support of climate change and alternative energy sources, there is no difference in how people across different generations describe themselves as environmentally conscious.
It’s a reminder to us that how we see ourselves and how others see us are not necessarily the same. Whether you are 26 or 66—there are more similarities than differences across generations. Some of us are able to maintain confidences and others are not. Some of us are tolerant and others are not (although they may describe themselves as tolerant). Some of us are organized and capable and others are disorganized and yet can still get things done. We find Pew’s work on describing the generations useful as it tells us (over and over again) how similar we all are—regardless of age. Remember that when you are approaching voir dire and jury selection. Know how we are different but also remember how we are the same.
Pew Research Center. 2015. Most Millennials Resist the ‘Millennial’ Label—Generations in a Mirror: How They See Themselves. September 3. http://www.people-press.org/2015/09/03/most-millennials-resist-the-millennial-label/