Deliberations

Confidence And Mistakes

The main thing I remember about my first mock jury is that it completely and forever changed the way I speak in public. 

Before that day, I would have told you my speaking style was disarmingly informal.  I might not have gone on to admit that I hoped my digressive, looping, "let me say that another way" start-overs were quirkily charming, but I think I did hope that.

Jurors expect confident fluency

That's how I talked to that first mock jury, and I was mortified when the first sentence spoken in one group's deliberations was:  "Is she a lawyer?"  They all agreed that I must have been, and then spent at least five minutes -- it seemed like an hour -- trying to decide whether I'd been out of law school longer than a year.  (I had been.  Much longer.)

The lesson was painful, but I learned it fast:  jurors expect lawyers to speak with confident fluency.  I started finishing the sentences I had begun, and things went much better after that.

Witnesses too -- but they'd better be right

The same rule applies to witnesses.  Research has repeatedly shown that the more confident a witness appears, the more credible she is to jurors. 

It's important, though, that she be right, even in the details.  Just as we trust attractive witnesses but punish them when if they breach our trust, so we believe confident witnesses but punish them when we learn they made a mistake.  That's the conclusion of a recently published study by Elizabeth Tenney and others at Virginia, summarized here by the British Psychological Society Research Digest.  The researchers tell us (the italics are mine):

[E]rrors in testimony damage the overall credibility of witnesses who were confident about the erroneous testimony more than that of witnesses who were not confident about it. Furthermore, after making an error, less confident witnesses may appear more credible than more confident ones.

A new rule for eyewitness testimony in New York

The most confident witnesses are often eyewitnesses, even though research shows that they're wrong far more often than they, or most of the rest of us, realize.  This week, New York's highest court made life easier for lawyers faced with confident eyewitnesses.  The court held it was an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness testimony where the case turns on it:

[W]e hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

The case is People v. LeGrand, discussed Wednesday on the great blog Daubert on the Web.

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Resources in this area:

1.  Two sources to get you started on the confidence/credibility correlation are:

• Lindsay, Wells, and O'Connor, "Mock-Juror Belief Of Accurate And Inaccurate Eyewitnesses", Behavioral Science September 1989 ("Confidence of the eyewitness was significantly related to belief of their testimony.")
• Cutler, Penrod, and Dexter, "Juror Sensitivity To Eyewitness Identification Evidence," Law and Human Behavior April 1990 (of ten factors studied, "the confidence of the eyewitness was the most powerful predictor of verdicts.")

2.  The BPS Research Digest is a great resource, as promised by its tag  line: "A feast of psychology research broken down into digestible morsels for students, their teachers...in fact, anyone who loves psychology."  You can subscribe, via E-mails or RSS feed.

(Image by Pernell Goodyear at http://www.flickr.com/photo_zoom.gne?id=186748926&size=o; license details there.)

The Wave Theory Of Juries

Remember in high school when you learned that light acts both as a collection of individual particles and also as a wave moving through space?  It was hard to get your brain around, but very cool. 

Juries are like that.  It is equally accurate to describe them as a collection of individuals and as a single group organism. And it's hard to get our brains around that duality. 

Lawyers get the "particle" part.  We may not be good at it, but we try to approach juries as a collection of individuals, and to connect with their individual psychologies.  But lawyers have a much more difficult time understanding how the jury acts as a separate whole.

We got a recent tutorial in the wave theory of juries in juror Denis Collins's essay on the deliberations in the Lewis Libby trial, published in the Huffington Post. 

Unusual individuals

Even at the "particle" level, this was an unusual jury.  The Census Bureau's 2005 American Community Survey confirms what we know about the two demographic faces of D.C.:  while the district's poverty rate is the third highest in the nation, it also has a far higher proportion of college graduates than any state. 

That educated population was fully represented in the Libby jury.  "[O]ur foreperson Susan [was] an accounting manager at one of DC's biggest law firms and, more impressive to us, a marathon runner, yoga diva and all around sweetheart," Collins tells us.  Carl was a computer specialist and avid reader, while Kate booked conventions for hotels and knew "a scary amount of pop culture." 

One juror was a lawyer.  (Collins didn't say which, and I couldn't confirm online, but from his other quotes she sounds like Anya, the "champion note taker" who was able to "report that 25 of Fitzgerald's 36 objections to Wells' cross examination of Russert were sustained.") And of course there was Collins himself, a journalist who had just written a book on the CIA, had worked for a few years under Bob Woodward, and had been Tim Russert's neighbor.

An extraordinary group

This was the group that, when the trial was finally over, closed the jury room door behind them and sat down to deliberate.  They hadn't talked about the evidence until then; all they knew about each other, Collins said, was that "that we like each other, laugh a lot and take the job seriously."  They were startled by the challenge of their task when one juror began, "I think they're lying. Every one of them."

It's clear that the most critical decision these jurors made was how to structure their conversation.  "When Judge Walton sent us to begin deliberations," Collins says, "he did not include a how-to guide." It was clear to them that a straw vote was not the right first step; Collins doesn't say exactly why, but it sounds like they feared, with reason, that from such a strongly partisan beginning, the discussions would quickly become arguments. 

Instead, the foreperson, Susan, suggested, "Why don't we start at the beginning?  We'll take the witnesses one by one and review the testimony."  And that was what they did, asking for "giant Post-it sheets" and photos and making notes on the posters, until "more and more of our witnesses looked down at us from the lounge walls."  Collins describes how they spent days collating the evidence and the witnesses' credibility, never talking about what their verdict would be.

Group checks, group balances

As they went along, the snippets of conversation Collins recounts are rich with the checks and balances of a group at work.  One juror, Kate, protested at one point, "I could go down the list and find a lot to make him guilty but is that why we're here? Maybe I'm wrong, but I feel like my job is to prove his innocence."  Anya (the one I'm guessing is the lawyer), replied, "We're not here to prove his innocence. He's already presumed innocent. We're here to judge whether the government has proven him guilty."

When "someone suggests Fleischer got immunity so he could lie to the Grand Jury," Anya is there again.  She "explains, in her gentle way, that immunity only protects you if you tell the truth."  Another juror, Delia, adds, "My mother had a saying. 'When you let yourself be led by emotion, you will usually end up wrong.' I think we need to keep emotion out of this."

"We ask them instead to change ours"

They were still stuck when they finished the witnesses and started making posters for each of the five counts in the indictment.  Even something as simple as who was sitting where made a difference in how the conversation progressed:

At one point a few of us decide to change seats. It is a providential move because it put Steve next to the Post-it board. He immediately takes over the presentation of the five counts against Libby. For more than six weeks, Steve has been logical, self deprecating and unbiased. Now he uses that reservoir of trust to guide us through our hesitation. When count 3 the False Statement made by Libby to Time magazine reporter Matthew Cooper runs into a dispute over a technical point, he tables it before any rancor develops and moves to another.

Finally they took the straw vote, nine votes to two.  The steps from there to the unanimous verdict are a marvel of group process:

The next morning we begin again. Revisit our charts. We do not ask the two holdouts to change their minds. We ask them instead to change ours. After 20 minutes we vote again.

400,000 sides

I find all this amazing and humbling.  Imagine how easily it could have gone differently.  What if they had taken a straw vote at the beginning, and launched into debate instead of the evidence review?  What if, when Kate said her job was to prove Libby innocent, one or two others had chimed in to agree?  What if there had been no Anya, or Delia's mother had not been so wise, or Steve had wanted to sit closer to the door?  What if, in the end, the majority had laughed at the two holdouts, instead of inviting them to make their case again?

Change one guest at a dinner party, and you've changed the evening's conversation.  Change one person at a staff meeting, and you've lengthened it by half an hour.  There are 400,000 potential jurors in the District of Columbia, more or less; picture rolling twelve dice, each with 400,000 sides.  This trial got this jury, and no trial ever will again.  It's hard to get your brain around, but it's cool.

(Image by Matt Fetterley at http://www.flickr.com/photo_zoom.gne?id=25712600&size=s; license details there.)

You Talk, They See

It's always satisfying when somebody finds a solution to an enduring mystery of the cosmos. 

Okay, it's not Fermat's Last Theorem, but it has bothered a lot of people.  If research clearly shows that we learn and remember better if we're given pictures and demonstrations in addition to words, why don't trial lawyers do that, or do it better? 

Educators get it.  Heaven knows marketers get it.  But lawyers?  "There are big cases being tried," Kenneth J. Lopez told me, by "very smart, very experienced, very well-paid, very jury-friendly" trial lawyers, "where graphics are an afterthought or are not used at all." 

Lawyers aren't like other people

Lopez is with Animators at Law, a litigation graphic design firm, and he commissioned a survey to find the answer.  What they found had that surprising and yet obvious ring of "the butler did it":  lawyers themselves aren't as visual as jurors are.

It was, Lopez thinks, the first survey to explore the learning differences between lawyers and the jurors they're talking to.  Lopez wrote an article about the survey in the March issue of the ABA magazine Law Technology Today, and you can download the 14-page survey report here.  Some key conclusions:

• "Practicing attorneys and the general public communicate in significantly different ways."  While "[f]ully 61% of the general public learns visually," the survey found that "[p]racticing attorneys show a greater preference for auditory learning and kinesthetic learning."
• "Practicing attorneys are 10% more likely to be auditory learners and 4% more likely to be kinesthetic learners than the general public. Practicing attorneys are 14% less likely to be visual learners and communicators."

• "Based on the results of the study, a typical twelve-person jury would likely be composed of seven “visual” jurors, three “feeling” jurors and only two “hearing” jurors. Accordingly, it is likely that a visual-majority jury is going to be listening to a non-visual attorney speak in a typical courtroom. Said another way, if a litigator is not communicating by using visual and kinesthetic tools while speaking, they are under-communicating with 82% of the jury."

It makes sense.  "We try to teach the way we like to learn," Lopez told me, explaining that even he catches himself trying to draw pictures for a listener he knows perfectly well is a verbal learner.  At a cognitive level we might understand that we need pictures, but if we don't function that way ourselves, we don't really get how much they will help -- so it's hard to put them at the top of the long to-do list that is trial preparation. 

Lopez keeps plugging away.  "Our internal standard is that for any graphic, anybody should be able to walk up to it, not know what the case is, and understand the point.  If we can pull that off, that's magic."

(Photo by gavinnnn at http://www.flickr.com/photos/gavintakesphotos/432516430/; license details there.)

Beauty And The Juror, Part II

Yesterday we faced the ugly truth that jurors, because they're human, like attractive people better than plain people.  Today's post talks about some of the subtleties and complications of that truth, and about how we might deal with it in the courtroom.  Subtleties first:

1.  It's more complicated with women.  Especially when researchers are studying perceived competence (as in the Social Psychology Quarterly and Hamermesh/Parker teacher research discussed yesterday), the Marilyn Monroe pretty-but-dumb thing is real.  Both attractive men and attractive women are perceived as more competent, but men get a bigger boost from their looks than women do.  Likewise in Rice University research in 2002, attractive men were uniformly rated more suitable for hiring, but "female raters . . . were less likely to hire attractive women for jobs that were viewed as more male-oriented."

2.  When expectations aren't met, beware.  In the 2006 Rice University research I mentioned yesterday, researchers studied the perceived trustworthiness of attractive and less attractive people.  "Sender" volunteers sent money to "recipients," knowing the recipients would decide how much money to send back.  All either side had to go on was a picture of the other party.  The senders sent more money to the attractive recipients -- that is, they trusted them more -- but there was a catch.  Like the senders, the recipients expected attractive people to be more trustworthy and thus to share fairly.  Attractive senders who failed to meet that expectation were punished more harshly -- they got less money back -- than the cheap but homely senders. 

This makes sense for the courtroom as well.  Jurors are likely to remember and despise the grandly senatorial witness who disappoints, just as they are likely to remember with respect the Columbo look-alike who surprised them with his insight.

3.  The rules apply to everybody.  This isn't just about how jurors perceive witnesses and defendants.  A trial is a visual event, and everybody in the courtroom looks like something.  Think about:

• The lawyers.  Attractive lawyers make more money than plain ones, Hamermesh and Biddle have found, and you can safely presume that they're perceived as more competent.  Moreover, when lawyers are the ones doing the perceiving, they prefer conventional attractiveness as much as anybody else does.  In a Missouri case released last week where the state had struck black jurors from the panel, the state's proposed nonracial justification for one of the strikes was the juror's looks, and specifically her hair -- her "fluorescent," "like Ronald McDonald's" and "clown red" hair, the local paper reported.  (The conviction was reversed, but I'm guessing that many more weird-hair strikes go without appellate review.)
• The jurors.  This very morning brought this personal ad on Craig's List:

Cute Guy at Jury Duty This Morning - w4m - 39  Good looking guy, sitting two rows in front of me, wearing jeans, and a cotton button down, long sleeve shirt. We were on the Jay Street window side. You were getting up and walking around, and we had eye contact and few times. When I got up to take a phone call, and had to go the Jury lounge, you were called, cause when I got back, you were gone. Spent the rest of day in that room and you didn't come back.

Let's say he had come back, and these two ended up on the same jury.  Jury deliberations are a group process, and if some in the group are cute, it's a factor -- not that we can tell which way it cuts.  The Pew Research Center summarized 2006 Arizona State research as finding that "men performed better on tests of creativity after viewing photos of attractive women, imagining short-term liaisons or long-term relationships."  On the other hand, McMaster University researchers found in 2003 that when male students were shown pictures of pretty women, they made irrational financial decisions.  "Women, by contrast," the article reporting this recounts, "made equally rational decisions whether they had been shown pictures of handsome men or those of average attractiveness."  Hey, I just report the news.

What to do about it

I promised some actual advice on this topic.  Here it is.

1.  Get over it.  It's not fair that pretty people make a better impression, we know that, but this is no time to change the world.  You are responsible for a client's property, or liberty, or life.  Think about connecting with this jury, and you can head to the barricades when you're done.

2.  Don't flout it.  It's a corollary, but perhaps worth noting separately.  We all know people who look far less attractive than they could because they think it doesn't matter, or they think it shouldn't matter.  A courtroom isn't a very good place to test these theories.

3.  Remember "more than skin deep."  For the first half of the movie 10, Bo Derek was absolutely gorgeous.  Then her character spoke, and for the rest of the movie she looked almost ordinary.  In all these research studies, subjects saw pictures only -- not expressions, posture, kindness, or insight.  If you have a witness you think may be stereotyped because of the way he looks, there are ways to let the jury see the beauty of his character.   

4.  Put it in perspective.  Beauty isn't everything.  If it were, John Kerry and John Edwards would be president and vice president of the United States.  What these research studies suggest that attractiveness is important when all other things are equal. 

All other things are not equal.  There is race, and pretrial publicity, and the quality of your presentation, and the experience of your jurors, and the complexity of your facts, and the community you live in, and the luck of the draw -- and then there is the strength of your case, by far the most important factor in the jury's decision.  "[B]iasing factors (e.g., pretrial publicity) have been found to have little to no impact when [strength of evidence] is weak or very strong," conclude the authors of the comprehensive literature review Jury Decision Making:  45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000).  There's a beauty in that.

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Updates: 

1. Eric Turkewitz demonstrates one way to work with attractive opposing witnesses, using the disappointed expectations principle, at New York Personal Injury Law Blog today.  "The answer is not to knock them down, but to build them up," he advises, so that you create expectations the witness cannot meet.
2. Bill Tyroler points out, in the comments here, that there were serious discussions of legal challenges to "lookism" recently, after a DePauw University sorority purged its nonbeautiful members.  "How would a challenge to 'lookism' work in the courtroom?" he asks.  "Yikes."

(Image by John Goodridge at http://flickr.com/photos/badjonni/434871340/; license details there.)

Beauty and the Juror, Part I

"Stop browbeating her!  Can't you see she is sexy?" 

At our house, we're watching the DVD of The Pink Panther (the one with Steve Martin as Inspector Clouseau, not the one with Peter Sellers) a lot lately, and we crack up at that line.  The reason it's funny, of course -- besides Martin's Pepé le Pew accent -- is that Clouseau says out loud what everybody else thinks but would never say.  When British researchers announced on Thursday that jurors are more lenient with attractive defendants than they are with plain ones, Clouseau would have said something like, "But of course."

The researchers gave volunteer "jurors" identical facts describing a mugging, but showed them photographs of different people -- some attractive, some not -- as the supposed defendant.  Attractive defendants were less likely to be judged guilty.  The researchers weren't surprised.  "Our findings confirm previous research on the effects of defendant characteristics, such as physical attractiveness, on the deliberations of jurors," said Dr. Sandie Taylor, who was in charge. 

Is it true blondes have more fun?

She's right, and it isn't just jurors.  Your lifelong suspicion that beautiful people get more breaks in the world is supported by stacks of scholarly research.  Here is just the first paragraph of a 2003 paper by Comila Shahani-Denning, an associate professor of psychology at Hoftstra, reviewing some of the literature:

The bias in favor of physically attractive people is robust, with attractive people being perceived as more sociable, happier and more successful than unattractive people (Dion, Berscheid & Walster, 1972; Eagly, Ashmore, Makhijani & Longo, 1991; Hatfield & Sprecher, 1986; Watkins & Johnston, 2000).  Attractiveness biases have been demonstrated in such different areas as teacher judgments of students (Clifford & Walster, 1973), voter preferences for political candidates (Efran & Patterson, 1974) and jury judgments in simulated trials (Efran, 1974).  Recently, Smith, McIntosh and Bazzini (1999) investigated the “beauty is goodness” stereotype in U.S. films and found that attractive characters were portrayed more favorably  than unattractive characters on  multiple dimensions across a random sample drawn from five decades of topgrossing films.  The authors also found  that participants watching a biased film (level of beauty and gender stereotyping) subsequently showed greater favoritism toward an attractive graduate school candidate than participants watching a less biased film.  In the area of employment decision making, attractiveness also influences interviewers’ judgments of job applicants (Watkins & Johnston, 2000).

I know it's hard to accept the unfairness of this, so you might need more.  Some examples from a few scratch-the-surface Google searches suggest that attractive people are more likely to be perceived as:

• Good.  We can accurately judge attractiveness in as little as .013 seconds, and we associate it strongly with good qualities, according to research last year by Ingrid Olson at Pennsylvania.
• Worth higher pay.  "[P]lain people earn less than people of average looks, who earn less than the good-looking. The penalty for plainness is 5 to 10 percent, slightly larger than the premium for beauty."  That's from the abstract of "Beauty and the Labor Market," a 1993 paper by Daniel Hamermesh and Jeff Biddle. 
• Competent.  "[A]ttractive people were perceived as more competent than less attractive people" in research published by the Social Psychology Quarterly in 1995.  "Attractiveness effects were stronger for males than for females" in the study; I'll get to that tomorrow.
• Competent again.  Students rate good-looking instructors as better teachers, Hamermesh and Amy Parker found in a 2003 paper.  (They noted that since the instructors in question were real people, the experiment couldn't determine whether they really were better.)  Again, good-looking men had a bigger advantage than good-looking women did.
• Trustworthy.  In a study last year at Rice University, subjects were more likely to trust attractive people than unattractive people.

And while it's easy to blame the media for all this bias, it may be as likely that the bias shapes the media.  In research by Professor Judith Langlois at University of Texas at Austin, babies as young as three months old showed, in their baby ways, that they'd rather have an attractive caregiver.

Tomorrow's post will have some thoughts on what to make of all this. 

(Drawing by Alan at http://flickr.com/photos/goo/225456736/; license details there.)

American Gallery Of Juror Art Welcomes David Namisato

The American Gallery of Juror Art doubled its collection this week with David Namisato's sketches from a jury-duty waiting room.

 

David Namisato describes himself simply:  "I am an illustrator.  I like donuts and pie." 

David is an illustrator who lives in Toronto.  His online portfolio shows his sophisticated comic-book drawing style and suggests the years he spent "in a small squid-fishing, and apple-farming town" in Japan.  There are more drawings like that in his Daily Doodles blog, but the drawings I love there are the ones like these:  simple impromptu ink sketches of people and places.

David combined these three sketches, of potential jurors waiting to be called, into a single image for the American Gallery of Juror Art.  You can find more of his jury-duty drawings if you search "jury" in his Flickr photos.  He never got picked for a jury, so he had plenty of time to draw.

All rights in these drawings are reserved to David Namisato.  Many thanks to him for his willingness to show them here.

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Unrelated notes:

1.  Preview of next week:  jurors and beauty.  Yesterday, British researchers announced they had found that volunteer "jurors" presented with identical facts were more likely to acquit attractive defendants than ugly ones.  The story spread fast on the news feeds, suggesting that somebody was surprised.  We shouldn't be, as I'll discuss next week.

2.  Recap of last week.  Eric Turkewitz at New York Personal Injury Law Blog has been spending Fridays reviewing the past week's litigation-related blog posts.  He's done a lot of work for us in these, and I'm not just saying that because I'm in it this week.

3.  More on neurolaw.  For those interested in Jeffrey Rosen's neurolaw article, discussed here recently, or in the way jurors process information generally, Prof. Adam Kolber has a Neuroethics & Law Blog devoted to the subject.   There is something for trial lawyers in almost every post here.

A Personal Collection Of Voir Dire Questions

If you'll need to select a jury in the next several months, but you can't work on voir dire questions right now, here's a strategy that might be helpful.  Start building a personal collection of juror questionnaires.

They're easy to find.  If you set up standing Internet news searches for "juror questionnaire" and "jury questionnaire," you'll hear about high-profile cases where the jurors had to respond to a pretrial questionnaire.  Unless the questionnaire is sealed, it's a public document -- available on PACER in federal court, and often through court or newspaper sites in state court.

What to do when you find them

If you're swamped on the day you find a questionnaire, just throw it in a file.  But if you have a minute, look it over, just long enough to think:  What is interesting here?  What might I do differently?  What questions am I surprised to see the judge allowed?  How would I respond to questions like this? 

When the time comes to prepare your own voir dire questions, pull out your collection.  They'll serve as a brainstorming checklist for your own trial.  (Does this question translate to something useful for me?)  In addition, you'll find that the moments you spent thinking about jury selection as you printed off the questionnaires will have laid the ground for some surprisingly useful thinking when you get to work.

Here's a start

This week there are at least two questionnaires to get you started.  The questionnaire in the Conrad Black fraud trial was posted here on Tuesday.  And the questionnaire in the Phil Spector trial is in several places on the Web, including here. 

The Spector questionnaire is worth studying even you'll never try a murder case.  Look, for example, at:

1. The way it encourages jurors to offer substantive answers.  The traditional wisdom is that you ask open-ended questions, but this questionnaire is full of multiple-choice and yes-or-no questions.  As you read them, you'll see that if these questions were open-ended, many jurors would answer with silence.  Given choices, it seems more likely that jurors responded.
2. The strategies it uses to explore bias.  We often don't know we're biased, and when we do, we don't like to admit it.  So the Spector questionnaire asks not only about bias, but also about the behaviors that reveal bias:  what jurors may have said to others about the case, for example, and what organizations they donate to.  And it asks a very wise question:  how a guilty or not guilty vote would be viewed by a juror's friends and family.  We may not be very good at reporting our own biases, but we're clearer on those of the people around us.

None of these techniques are limited to a written questionnaire.  Whether you adopt them or not, your jury selection will be better because you thought about them.

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Follow-up on yesterday's post on storytelling:  many thanks to Judge Rick Sankovitz for his instructive comment.  Judges see the best and worst of trial advocacy, so it makes sense that many of them teach it so well.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)

How, Exactly, To Tell A Story

We've all been told that a trial lawyer should tell a story, but it took Ira Glass to tell me how. 

Some cases naturally form a narrative.  If you are plaintiff or prosecutor in a case based on a single event, you don't think about how to tell the story;  you just tell it.  Ms. Smith started an ordinary day with the ordinary details of an ordinary life, and then the car crash changed everything. 

For defendants -- and sometimes for plaintiffs and prosecutors in complex trials -- the narrative thread can be more difficult to trace.  A defense case often falls more naturally into topics, not story lines.  You want to explain that the doctor wasn't negligent for this reason and this reason, for example, or that these are the three critical patent claims that don't appear in your client's product.  For a criminal defense lawyer whose client won't be testifying, there's not only no easy story, but also no obvious storyteller.  In these cases, trial lawyers know they want to tell a riveting story, but often don't know how to begin.

A storyteller on storytelling

It's not that the trial advocacy folks aren't teaching this.  James McElhaney, for example, demonstrates in his seminars how to junk the tired "This is a case about [insert theme here]" beginning to your opening.  He shows how to instead jump immediately to a critical moment in the tale, telling that mini-story detail by detail.  It's a powerful way to begin, but how do you keep the story going over the whole trial?

Something clicked for me when Ira Glass explained it.  If you listen to NPR, you know him as the host of This American Life, a radio show whose whole point is "to spin tales filled with irony, suspense, paradox, drama and humor out of the stuff of everyday life," as the New York Times says.  Glass is starting a televison version of the program on Showtime (the premiere is tomorrow), and so he's talking in various places about the show and the transition from audio to video.  One of those places is a video titled "Ira Glass on Storytelling", posted in three segments (1, 2, 3, and 4) on YouTube. 

Two building blocks

Watch the video instead of just reading about it here.  There's far more in it than I can summarize, and when Glass speaks, he uses the storytelling technique he's explaining.  But in essence, he says there are two "building blocks" to telling a story:  the anecdote and the moment of reflection.  The anecdote is a series of actions, a story in its purest form, he says -- how one thing led to another, and how one event led to a thought which led to an event.  He demonstrates with the dullest set of facts he can think of, and sure enough, you're hanging on what he says. 

The moment of reflection is a pause to explain why we care about this series of events, what larger point it demonstrates.  You "jump back and forth between the two," Glass explains, and you're telling a story. 

This we can do.  Stretching a single narrative over two or six weeks isn't necessary or even smart, it turns out.  A good story, long or short, is composed of separate, related, manageable anecdotes, punctuated and connected by short explanations.  In a trial, this means lay witnesses relate what happened to them, instead of what they think, where that's possible.  The moments of reflection then come from experts, and from occasional simple questions like "Why was that important to you?"

Not just the words, but the picture

Glass is compelling too on the challenge of the transition from audio to video.  (He touches on this in the YouTube segments, a Fresh Air interview, and the New York Times.)  Segments that would have worked beautifully on the radio, he explains, are unusable on televison because the person telling the story has an incongruous look, or the background is distracting. 

This lesson too is for trial lawyers as well as television producers.  We prepare our opening on paper and we think it's finished, and forget that our presentation is visual, not just aural. 

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Related notes:

1.  For a current example of how Herb Stern told his client's story in the Qwest opening statement, look at Jeralyn Merritt's post at TalkLeft today, after she live blogged the openings yesterday.

2.  For more James McElhaney (you can't have too much), Evan Schaeffer's Illinois Trial Practice Weblog points out here that you can join a mailing list for short essays from him, otherwise unavailable on the Internet, at an ABA sign-up page he links to.  This week the Illinois Trial Practice Weblog also featured Matthew Hutson's "Unnatural Selection" article in Psychology Today article, reviewed here recently.  Schaeffer's Legal Underground blog is better known, but his trial practice blog is a great resource for litigators in and out of Illinois.

3.  The Ira Glass YouTube clips were pointed out in Presentation Zen, a blog devoted to "[b]eautiful design, philosophy, branding, business communications, marketing, great presentations (and doing my part to help rid the world of boring, ineffective, ridiculously bad, amateurish PowerPoint presentations)."  Like many blogs and newsletters aimed at business managers, Presentation Zen's lessons almost always apply directly to trial lawyers too.

(Photo by Chez Curran at http://www.flickr.com/photo_zoom.gne?id=411744335&size=s; license details there.)

Voir Dire Voir Dire Everywhere

As soon as jury bloggers rule the world, we're going to make a law that there can only be one extravaganza trial going on at a time.  Somebody declared this Prosecute The Rich And Famous Week, and I have to say it's challenging.

Get your voir dire questions here:  the Conrad Black jury questionnaire

You have Lord Conrad Black on trial in Chicago, as every breathing Canadian knows.  Last week I wrote about the jurors' reported answers to the court's 45-page pretrial questionnaire, and now I can post the questionnaire itself here. 

The Black questionnaire is a useful study guide for any lawyer who is planning a first or second voir dire, or who could use a reminder checklist for a tenth or twentieth.  Of many points to note from it, here are a few starters:

• Voir dire isn't a list.  It's a thought process followed by a human exchange.  The Black questionnaire is clearly the product of brainstorming, not rote.  When you want to know the jurors' experience with lawyers and the court system, you need to think about  what events in their lives would have given them that experience.  So this list asks whether jurors have ever been parties to a lawsuit, whether they have regular business dealings with lawyers, how many lawyers they know fairly well, and whether they've ever been employed by a law office, as well as asking about their contacts with the criminal system.
• Remember their loved ones.  A juror's attitudes are shaped as strongly by what has happened to her husband, mother, or best friend as by what has happened to her personally.  This questionnaire asks over and over about "you or anyone close to you."   
• Look for the juror experts.  The questionnaire asks, "Have you or anyone close to you received training, education or had work experience in any of the following fields," and then lists every topic the lawyers could think of where jurors might seek each other's advice in deliberations:  accounting, bookkeeping, finance, prisons and correctional facilities, shareholder's rights, banking, the media, business, law enforcement, stock brokerage, and real estate. 
• Look for claims made.  The questionnaire asks about claims the jurors, or anyone close to them, have made, formally or informally.  I don't have data for this at hand, but our mock trials have suggested that jurors who have brought any kind of claim against someone else, or had to defend against one, often have very strong feelings about the "blame" that any trial involves.

Live blogging Qwest -- fast

Then you have Joseph Nacchio, former CEO of Qwest, defending insider trading charges in Denver.  His lawyer is former judge and star trial advocacy teacher Herbert Stern, whose strong views on jury selection are collected in this Denver Post article from Sunday.  ("Don't be charming. Don't be clever. Don't be quick. Don't be brilliant. Just be right.")

Jeralyn Merritt of TalkLeft is in Denver too, and she beautifully live blogged the jury selection yesterday for 5280 magazine in three posts starting here.  If you're new at this, one learning point from this "transcript" is how fast it goes.  Merritt herself missed a motion to strike for cause, and all she was doing was typing.  As you read it, imagine what you would jot down, what you might not bother noting, and how you would set up your notes chart so you could find what you wrote when it was time to choose.

Sex, guns, and Phil Spector

If corporate finance isn't your thing, then the voir dire for you is in Los Angeles, where they are picking the jury in Phil Spector's murder trial.  So far the photographers seem to have elbowed out the live bloggers, so all I know is that Spector has a calm new hairstyle.

(Image by Victoria Peckham at http://www.flickr.com/photos/victoriapeckham/164175205/; license details there.)

Don't Know Much About A Science Book

If you're getting ready for a trial in which you need to explain scientific or engineering concepts, one of two things is true.  You're either an expert by longtime experience and training -- you concentrate your practice in asbestosis or electronic patents, say -- or you're an expert because you've been scrambling for months to become one. 

Either way, you have the Curse of Knowledge, as the recent book Made To Stick calls it.  You had to learn all that stuff, but now you keep forgetting that other people don't know what you know.  When you talk about your case, no one understands you.

The state of scientific literacy

Your United States government is here for you, providing regular reminders of what your jurors do and don't know about science.  Every two years, the National Science Foundation writes a report for Congress called "Science and Engineering Indicators," a compilation of research including a literature review on "Public Attitudes and Understanding" of science.  The 2006 and 2004 versions overlap considerably, and I've taken details here from both. 

As you get ready to explain why the jury should believe that it was a drug dose that killed your client and not her cancer, or that the fire in your client's apartment was an accident, consider:

• Most Americans know that the Earth travels around the Sun and that light travels faster than sound -- but few know the definition of a molecule.
• In 2001, for the first time since the survey began, a bare majority of Americans know that antibiotics don't kill viruses.  The NSF called this improvement "promising."
• "NSF surveys have asked respondents to explain in their own words what it means to study something scientifically. Based on their answers, it is possible to conclude that most Americans (two-thirds in 2001) do not have a firm grasp of what is meant by the scientific process."
• Americans "have little conception of how science, technology, and engineering are related to one another, and they do not clearly understand what engineers do and how engineers and scientists work together to create technology."
• "Researchers have concluded that fewer than one-fifth of Americans meet a minimal standard of civic scientific literacy."

Get back to normal

We've talked about jurors' literacy, numeracy, and problem-solving skills.  Scientific literacy goes on that list too.  For lawyers, some lessons are clear:

1.  Start where they're starting.  I know you try to lay the groundwork.  If one of the key elements in your client's patent is "carbonate to inhibit cyclization and discoloration," you know you can't jump in at that point.  But I can almost guarantee you're not backing up far enough.  Unless you provide so much context that someone who can't describe a molecule can follow you, you're likely to lose the group. 

2.  Know your juror experts.  When one person in the jury room knows the subject (or believes she does) and the others do not, the group will look to the juror expert to answer their questions.  You may have the world's most complicated electronic patent case, and if one juror teaches electronics in night school, he may be as influential in deliberations as the highest-paid expert witness you can find.  The more I watch mock juries, the more I believe the juror expert is one of the most powerful forces in any courtroom.

3.  Consider a teacher as an expert witness.  Expert witnesses can come from all backgrounds, but where the subject is science, it can be helpful to have a skilled teacher on the stand -- partly because teachers have learned how to teach others, but just as important, because their work teaches them every day to remember where their students are starting.  Teachers know the hands-on demonstrations that get the point across, the analogies to daily life.  You don't have to tell them to slow down; the good ones will remind you.   

___________________

Unrelated notes:

1.  If you liked reading about Conrad Black here last week, you have a great week ahead.  They're calling him the O.J. Simpson of Canada; "[a]ny Canadian would have to be comatose, illiterate or without a working knowledge of English to be unaware that Conrad Black is in Chicago on trial," says the Montreal Gazette.  Toronto Life magazine has set up a "Conrad Black Trial" website to cover it.  There are separate columnists assigned to "Style Watch," "Legal File," and "Spin Report," and much more.  Expect full coverage of Black's daughter (she's "willowy"), his choice of hotel (the Ritz-Carlton), his middle name (Moffat) -- and, we can hope, perhaps a little about what the jury sees and hears.

2.  The American Gallery of Juror Art has a great new drawing today from illustrator David Namisato.  There will be a feature post later in the week.

3.  Speaking of art, I put a plug here on Friday for Mary Whisner's Trial Ad Notes, but I failed to mention one of the best things about it:  the simple and quirky illustrations she sometimes does herself.  Check them out here and here. 

(Photo by Darryll DeCoster at http://www.flickr.com/photo_zoom.gne?id=106102579&size=m; license details there.)

How To Pick A Jury For A Lord

They're picking the jury in the case of People of the State of Illinois v. Lord Black of Crossharbour.

Conrad Black (now usually called "former media baron Conrad Black" or "former press mogul Conrad Black" in the papers) is on trial for fraud in Chicago.  The trial is being followed closely in Canada, where Black is famous.  A Toronto paper called the City News describes him in bullet points that could hardly describe anyone else:

• Former chairman and CEO of newspaper publisher Hollinger International.
• Gave up Canadian citizenship in 2001 to be named Lord Black of Crossharbour in Britain.
• Now lives in Toronto and is working to regain his Canadian citizenship.
• Known for his larger-than-life persona and lavish tastes.
• Has written books on Franklin Roosevelt and Maurice Duplessis.

It's the lavish tastes and that pesky title that make the voir dire worth watching.  This is a defendant whose lawyers argued the case should be dismissed because he could not possibly get a fair trial from jurors who do "not reside in more than one residence, employ servants or a chauffeur, enjoy lavish furniture, or host expensive parties."  A New York Times reporter listed some of the challenges of the first day of jury selection:

One recurring sticking point was the response of many of the jurors to a question of whether they thought there was anything wrong with individuals being paid “tens of millions of dollars.” “I don’t think that anyone should get that amount of money from any company,” one man said.

“No one just receives that much out of the blue for nothing,” said a woman.

Another man said that when he hears of millions in payments, he concludes: “Yes, they probably stole the money.”

Another woman added: “When I hear tens of millions of dollars, I shudder.”

"Yes, any time someone receives that amount of money, it’s hard to believe everything is on the up and up,” another person wrote [on a pretrial questionnaire]. “Look at Enron and the oil companies — big profits.”

Can I ask whether anyone on the panel has held a British title?

Then there was the peerage, presumably the first one that either side's lawyers had ever had to explore on voir dire.  Again the Times:

One male jury candidate said he believed Mr. Black has “something to do with Britain’s royal family.”

A woman wrote in her questionnaire that she thought that someone with a title “may feel that he/she is better than myself — untouchable.”

And just when they must have thought they'd fully explored jurors' resentment of rich royalty, the lawyers hit a vein of antiegalitarianism aimed at Lord Black because he is . . . Canadian.  "Another woman in the pool wrote when asked what she thought of Canadians: 'Not much. Socialist country.'"

They're different from you and me

I don't think there's data on what Americans think of moguls who give up Canadian citizenship to accept a British peerage.  But there is data suggesting we distrust rich people in general. 

In a 1998 Washington Post/Kaiser/Harvard Survey called the National Survey of Americans on Values, subjects were given a list of 17 individuals and groups and asked whether each shared "most, some, or hardly any" of their "moral and ethical values."  "None" was not offered as an option, but if the subject volunteered "none," the surveyer wrote it down.

When asked the degree to which "rich people" shared their moral and ethical values, only 11% of people felt they shared "most" values.  Half said "some," while 25% said "hardly any" and a full 10% volunteered "none."  (Poor people did far better, with 27% of people believing they shared "most" values, 55% "some," only 10% "hardly any," and only 3% "none.")  Besides rich people, the only other individuals or groups who had "none" responses in double digits were Bill Clinton (this was 1998), Newt Gingrich, the Republican Party, homosexuals (a huge 24% "none"), and groups like the Christian Coalition.

Bias thrives where experience is lacking

I've argued that lawyers would be wise to focus more on experience and less on bias in jury selection.  But a voir dire about rich people needs to be about bias.  Why? 

I suggest it's because most jurors have no experience with rich people.  They've seen rich people on TV, but they don't know any; as the gap between rich and poor grows, the rich live differently from the rest of us.  A wide-ranging 2005 New York Times inquiry on class in America discussed the ways in which class distinctions have in some ways blurred and in some ways remained clear in recent years.  One clear distinction is that rich people live different lives at home:

Family structure, too, differs increasingly along class lines. The educated and affluent are more likely than others to have their children while married. They have fewer children and have them later, when their earning power is high. On average, according to one study, college-educated women have their first child at 30, up from 25 in the early 1970's. The average age among women who have never gone to college has stayed at about 22.

And as we know, your family structure dictates a great deal about where you live, how you spend your time, and the people who come into your life.  (Seen much of your single friends since you had kids?)  For this and other reasons, most jurors have had little or no authentic interaction with a rich person before your trial.

Bias isn't the grail people think it is, but of course it has a role -- and that role expands quickly when jurors have only stereotypes to go on.

_______________

Related and unrelated notes:

1.  It looks like there will be Lord Black live blogs at a paper called the Chicagoist and in a blog called The Crime Sheet by visiting Canadian lawyer Steven Skurka.  "Everything about jury selection in this case is different from a Canadian trial," he says, and describes some striking aspects of the jurors' responses:  "An incredible number had experiences with identity theft in their family," for example.

2.  Mary Whisner's terrific Trial Ad Notes blog has been a jury goldmine lately.  She notes research on neuroscience and law here, research on juries' ability to make necessary sentencing decisions here, and research from Prof. Vidmar and others on whether there really are "judicial hellholes" here. 

(Photo by Jim Searle at http://www.flickr.com/photo_zoom.gne?id=362478600&size=s; license details there.)

The Bias In The Mirror

It may be "axiomatic that the purpose of voir dire is to ensure . . . an impartial jury."   So said the Seventh Circuit in U.S. v. McAnderson in 1990 -- and so say dozens of others, if you Google "purpose of voir dire."  But as axioms go, this one is troublesome.  Its echoes have confused many lawyers as they prepared to select a jury for the first time.

The "purpose is to eradicate bias" axiom leads lawyers to believe and spread two myths about jury selection.  Myth No. 1 is that bias in its pure form is what shapes jurors' decisions.  Myth No. 2 is that if you ask the right questions, "ferreting out" juror bias is always possible.  Experience teaches that both these beliefs are wrong, as I've started to discuss here and here.  (And why do we always say "ferret out"?  If you Google that with "voir dire," you get 622 hits.) 

An axiom we can use

Here's a more useful axiom.  One critical purpose of voir dire is to ferret out bias, yes:  your own.  (Try Googling that.  Not a word.)  Lawyers stereotype potential jurors at least as vigorously, and at least as predictably, as jurors are ever likely to stereotype us or our clients. 

Try this quiz with two people I heard about on two different radio programs this week.  I didn't change the facts, although I made up a few consistent details.  Pretend you have these two women in the jury box:

1.  Amy J.  Ms. J. is about 40 years old, married, and a homemaker.  She lives in a middle-class suburb of a Pacific Northwest city.  Her primary outside activities, and those of her husband, revolve around the Christian church they attend.  They are longtime members of the church, and she is the director of youth education there.  She has a bright, happy voice.

2.  Kathy B.  Ms. B. is about 60 years old, married with adult children.  She works as a school janitor in a Wisconsin town beyond the Milwaukee suburbs.  She has a low, slightly dull voice, and her speech includes noticeably long pauses.  After one of these pauses, she says she doesn't know how to put the answer to your question into words.  Her work hours are from 3:00 in the afternoon to 11:30 at night.  It is physical work, sweeping, vacuuming and cleaning desks and shelves.  During a recent construction project, she mentions, she was "eating a lot of dust from the drywall."

Got it?  What might you conclude about these women's personalities and reactions? 

Are either or both social conservatives?  Why?

Would either of them tend toward a resentful, negative attitude?  Why?

How would either of them react to issues of class and rank?  Why?

What degree of leadership would either of them show in a group?  Why?

Answers to the quiz

If you asked which Christian church Ms. J. belongs to, you were on the right track toward unearthing your own stereotypes.  It's the United Church of Christ:  her church's mission statement stresses "diversity, caring, humility and acceptance."  Ms. J. and her husband teach a class to 14- and 15-year-olds called "Faith and Sexuality," where they detail the symptoms of sexually transmitted diseases and show the kids different kinds of condoms.  "We've covered [sex] so thoroughly" by the time they're done, she says, "that it's not such a forbidden fruit."  She's probably as liberal as your teenage neighbor with the nose ring, as Wednesday's NPR story on sex education in churches makes clear.

As for Ms. B., the school custodian, she loves her life and everyone in it.  She was on Wisconsin Public Radio, and in her local paper, because she has just been named outstanding custodial employee at her school.  "When I've got a vacuum cleaner in my hand, don't even try bothering me," she told the paper.  "I'm at home."  On the radio, she explained, "I'm very much relaxed and I love what I'm doing."  Asked why she liked her work so much, she paused so long the radio host asked if she was still there.  "You get to see a lot of projects that the students are doing, " she said finally.  "You get to meet a lot of great teachers, and you get to see a side of life that students and nobody gets to see."  The conviction and calm in her flat voice were striking.  She'd be a force on any jury.

(Photo by Amanda Kelso at http://www.flickr.com/photos/mandydale/264712804/.  License details there.)

A Helpful Way To Think About Race

You can get pretty good at voir dire and still feel at sea when the issue is race.

Last spring in Milwaukee, three white police officers were tried for the beating of a biracial man, Frank Jude Jr.  The evidence was significant.  "Civilian witnesses and on-duty officers testified they saw Jude repeatedly being hit and kicked in the head, groin and the rest of his body," says the Milwaukee Journal/Sentinel, and one of the officers admitted he repeatedly hit Jude. 

The jurors were all white.  The officers were acquitted.  As thousands of people marched in protest outside, several colleagues asked me about juries and race.  Are people really still that prejudiced?  Do white jurors ignore evidence because they want to help white defendants?  "We did our best," one juror said.  Was he lying?

Go to the source:  focus on experience, not bias

There could hardly be a more complicated topic than race in America.  Please understand that I'm not trying to Get Race Right in these few paragraphs; in fact, I know I'll probably get parts of it wrong.  But most lawyers in voir dire can't master the topic either, and they still need approaches that will help them explore this area in a meaningful way. 

For them, then, here's a useful concept that many lawyers miss.  With rare exceptions, bias itself doesn't drive jurors' decisions.  Instead, jurors' decisions and jurors' biases are shaped by the same force:  their life experiences. 

Most people want to believe  they are open and fair.  (A 2006 Newsweek poll found that 93% of people said they would vote for a black presidential candidate of their own party, but only 55% thought that the rest of the country was ready.)   What separates people isn't their sincerity, it's their experience.  A New York Times poll found

a sharp disparity between blacks and whites over how the police have affected their sense of personal safety. A third of blacks said they had been in situations where they feared a police officer, while only 11 percent of whites said they felt that way. In contrast, 62 percent of whites said they had been in situations where they felt safer in the presence of a police officer, while 57 percent of blacks said they never felt that way.

In a 2007 Kaiser/Washington Post poll, more than a third of black respondents reported they personally had been unfairly stopped by the police because of their race; you can roughly deduce how many believe it has happened to someone they know.  White people, on the other hand, tend to learn about black people's experiences from what they hear or read.  In the same Post poll, fully 45% of white Americans  said their opinions about blacks were based on something other than personal experience.

Not surprising, then, that "nearly 9 out of 10 black residents questioned in the [New York Times] survey said they thought the police often engaged in brutality against blacks, and almost two-thirds said police brutality against members of minority groups is widespread."  Among whites, only a third and a quarter, respectively, felt that way.

Experience makes jurors experts

All this makes the Frank Jude verdict easier for me to understand.  To black jurors, police violence is a familiar truth; to white jurors, it's often a story they have heard.  A diverse jury would have been more likely to convict not because white jurors are racist, but because black jurors would have brought their life experience -- their expertise -- into the room, helping the whole group to make confident inferences where the all-white jury found evidentiary gaps.

We can think of our task in voir dire, then, in cases where race is an issue, as a familiar one, not a whole new challenge.  We just keep asking about experiences.  We want to know the same things we want to know in any other trial:  what is it about the evidence that will resonate with what has already happened in this juror's life?

Don't forget the group dynamic

Finally, as always, remember that the jury is more than the individual jurors; it's a separate, functioning entity.  A recent study confirms that diverse juries exchange more information than all-white juries -- and fascinatingly, it suggests that diversity on the jury may work even more subtly as well.  The study found that individual white jurors on diverse juries cited more facts, made fewer errors, and were more ready to discuss racism than white jurors on all-white juries.  In addition, whites on diverse juries were more lenient toward black defendants even before they started talking.  That is, the very presence of black jurors seemed to alter the response of whites in the group.

Great Expectations, Great Limitations

You have to wonder sometimes why jury consultants get out of bed in the morning.  Between the expectations we invite and the expectations we submit to, the day is guaranteed to be a failure if we don't walk on water before sunset.

This came to mind most recently reading Matthew Hutson's article "Unnatural Selection" in the current issue of Psychology Today.  Leading into his text, Hutson sets out the paradigm:

Many [jury consultants] offer "scientific jury selection" services, deploying demographics, statistics, and social psychology to cull potential jurors and engineer the perfect panel of people.  But as these gurus aim to extract sure verdicts from parties of unknowns, their grasp on the chemistry of human nature appears to require a working knowledge of alchemy[.]

Great.  Gurus extracting sure verdicts from perfect panels using statistics and alchemy.  Anything else?

That's not the real world, as Hutson reports.  He interviewed the jury consultants in some of the most prominent trials of the last few years.  These people are celebrities in a field that until recently had no celebrities:  Jo-Ellan Dimitrius of the O.J. Simpson defense team; Robert Hirschhorn of the William Kennedy Smith trial; Thomas Diamante of DOAR, the firm that worked on the Twin Towers insurance litigation; Howard Varinsky, who assisted the prosecution in the Scott Peterson murder trial; Arthur Patterson of DecisionQuest, which is everywhere; and Kenneth Broda Bahm, president of the American Society of Trial Consultants.

Sometimes a demographic is just a demographic

They all told Hutson, in different ways, that a trial is too unique and too complicated to control with statistics or anything else.  Juror demographics, for example, are "barely important," Dimitrius told Hutson.  The idea that "[y]ou can't have any males on a rape case, for instance," is "[r]idiculous stuff. Very rarely will we find a demographic that's a factor."  Indeed, "beefed-up juror profiles can lead attorneys astray," Hutson explains, citing a mock trial study of the Kobe Bryant rape case in which jurors who fit an "authoritarian" profile, and thus might be expected to punish the defendant, in fact wanted to punish the victim for her carelessness.  "This trial has layers upon layers of issues," jury consultant Joseph Rice told CourtTV at the time.

Jurors work as a group, not by themselves

What's more, Hutson explains, even a perfect individual juror profile won't predict how that juror would act in a group of eleven unique other people.  We've all seen how a dynamic leader in a meeting can turn into a wallflower at a party.  Jury rooms aren't different; each combination shapes the individuals in it.  "There's a kind of organized buzz," Northwestern law professor, psychologist, and Arizona Project researcher Shari Diamond told Hutson, "with looping back and repeats and corrections. It's a complicated process."

What they're not saying

Then there is all the information you can't learn from a juror (at least not without a brain scan).  Hutson reports:

And when they do talk, they're frequently unrevealing. [Howard University political scientist Richard] Seltzer conducted a study in which nearly 30 percent of jurors who denied before trial that they had witnessed a crime or that they knew any police officers revealed afterward that in fact they had. And that's relatively innocuous information. No one wants to sit among dozens of strangers and answer personal questions about sexual or criminal experience, financial history, health, and drug use.

Body language can fool you as well.  A few years ago in a trial I worked on, we worried when one juror resolutely shook his head as though saying "no" through our entire opening statement, then were confused when he shook his head through the defense opening as well.  When he was still shaking his head on the third witness, we decided to ignore it.  Hutson tells a similar story:

In another case, a potential juror squirmed in his seat during voir dire. Patterson told the lawyer that the man was anxious and offended by the questions. A minute later the man asked the judge for a break to attend to his hemorrhoids. 

The snake-oil question

Hutson draws a comprehensive picture, much fuller than I've sketched here, and he draws it well.  By the end, we understand the basic limits of jury selection.  As Thomas Diamante told Hutson,  "How can you possibly make sure there's a certain type of outcome given the complexity of the information on one side, the complexity of the information on the other side, and then the human dynamics involved in the jury? If you can do that, when you're done let's go to Atlantic City."

Which brings Hutson to the snake-oil question.  "If scientific jury selection is just a crapshoot, why is the industry thriving?"  He offers a few possible answers:  the hope for any edge in a big-money case, or the hope that a particularly magical consultant can beat the odds.  But his article itself really answers the question better.  The task of communicating to a set of six or twelve particular people, unique as a fingerprint in the way they will interact with you and with each other, is complicated enough to make a life's work.  A trial team's to-do list is long and often distracting; if one knowledgeable team member can keep the team focused on the jurors' experience, that contribution has value.

The toughest message

To me, the interesting thing about the snake-oil question is not that it's difficult to answer; it isn't.  It's as familiar and simple as "How can you represent those people?" is to a public defender.  The interesting thing is why people keep asking it.  Jury consultants help communicate the most arcane scientific and business information to juries -- but the most difficult message to communicate may be our own.  Somehow people still think we're selling magic.  Which can make it hard to get out of bed.

(Image by Jan Bakker at http://www.flickr.com/photo_zoom.gne?id=182772855&size=m; license details there. )

The Neurojurors Might Be Coming

It's a Monday morning, sometime in the future, and you're about to pick a jury.  You're a little slower, a little bulkier than you were back in 2007, but in front of you at counsel table are your usual materials:  a chart to make your notes on, the written juror questionnaires, a list of topics you want to cover, the jurors' brain scans . . .

You've arrived in a world you first glimpsed when you read Jeffrey Rosen's article "The Brain On The Stand: How Neuroscience Is Transforming The Legal System" in the March 11, 2007 New York Times Magazine.  You were minding your own business on a Sunday morning, perhaps thinking you might do the crossword puzzle, when the bright and viscous brain-cell illustrations caught your eye and you began to read. 

Not just for criminal defense anymore

If you're not a criminal lawyer, you probably assumed the article didn't relate much to your practice.  The opening anecdote told of a murder defendant in the early 1990s who argued that he could not control his actions because of a cyst in his brain.  The new term "neurolaw," Rosen explains, has been used to describe the growing use of brain imaging and neuroscience in criminal defense. 

Then came a sentence that made you refill your coffee: 

Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior.

That's lies, as in witnesses, and hidden bias, as in jurors.  This is about all of us.  In his extensive discussion, Rosen sets out at least two ways that brain scans and other neurological tools could make their way into any courtroom and be used on practically any person in it. 

Selecting the best brain scans

Serious researchers think brain scans might predict what jurors will do.  To explore this, Rosen visited Owen Jones, a Vanderbilt law professor who "is turning Vanderbilt into a kind of Los Alamos for neurolaw."  Rosen let Jones hook him up to an MRI scanner, where he pushed buttons to indicate how he would punish wrongdoers in various situations.  After "45 minutes trying not to move an eyebrow while assigning punishments to dozens of sordid imaginary criminals," Rosen got his results:

“Your head movement was incredibly low, and you were the harshest punisher we’ve had,” Josh Buckholtz, one of the grad students, said with a happy laugh. “You were a researcher’s dream come true!” . . . Marois emphasized that my punishment ratings were higher than average. In one case, I assigned a 7 where the average punishment was 4. “You were focusing on the intent, and the others focused on the harm,” Buckholtz said reassuringly.

Jury consultants have devoted many insightful words to describing the "punitive juror."  Is Rosen's brain picture worth more than them all?  Owen Jones thinks that prefrontal cortex activity "could be highly relevant for lawyers selecting a jury":

For example, [Jones] suggested, lawyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would “like to have a juror making decisions on maximum deliberation and minimum emotion”; in a government entrapment case, emotional reactions might be more appropriate.

“[I]t’s mind-boggling,” one scholar told Rosen.  No argument there.

I cannot tell a lie (anymore)

Once we've selected these brain-scanned jurors, we'll still have to convince them that our witnesses are telling the truth.  That won't be a problem, say the neuro-proponents.  While Rosen was in the Vanderbilt MRI, the researchers took data that let them read his mind:

[Vanderbilt neuroscientist René] Marois told me through the intercom to try another experiment: namely, to think of familiar faces and places in sequence, without telling him whether I was starting with faces or places. I thought of my living room, my wife, my parents’ apartment and my twin sons, trying all the while to avoid improper thoughts for fear they would be discovered.

As the researchers hoped, Rosen's parahippocampus (I'm just typing what I see here) was "lighting up like Christmas on all cylinders” when he thought of places, while his fusiform area "lighted up every time I thought of a face."  Marois "pointed to a series of practical applications:"

Because subconscious memories of faces and places may be more reliable than conscious memories, witness lineups could be transformed. A child who claimed to have been victimized by a stranger, moreover, could be shown pictures of the faces of suspects to see which one lighted up the face-recognition area in ways suggesting familiarity.

From there, the next step is neurological lie detectors, and they're in development.  Rosen describes two neuroimaging lie-detection technologies; one compares subjects' reactions to their own prior patterns (and might detect "not only lies but also honest cases of forgetfulness"), while the other compares "the brain activity of liars and truth tellers."  The president of Cephos Corporation, which plans to sell one of these products soon, told Rosen, “We have two to three people who call every single week.  They’re in legal proceedings throughout the world, and they’re looking to bolster their credibility.”

No stopping the "CSI effect" now

Rosen hints at another phenomenon we can expect from neurolaw.  Where it's not used in the courtroom, jurors might come to expect it, just as they expect fingerprints and DNA evidence today:

Even if witnesses don’t have their brains scanned, neuroscience may lead judges and jurors to conclude that certain kinds of memories are more reliable than others because of the area of the brain in which they are processed.

Long before neuroimaging lie detectors come to your county courthouse, you can be sure they'll show up on CSI, in the popular imagination, and in your jurors' unspoken beliefs about what lawyers ought to be showing them.

_______________

Related notes and sources:

1.  Jeffrey Rosen is the legal affairs editor for The New Republic magazine, a law professor at George Washington University, and according to the Los Angeles Times, "the nation's most widely read and influential legal commentator."   His current book is “The Supreme Court: The Personalities and Rivalries That Defined America.”

2.  For more on the implications of the new neuroscience outside the courtroom, a comprehensive article is "Brave Neuro World:  The Ethics of the New Brain Science," by Kathryn Schulz, in The Nation last January.  (Dogged researcher that I am, I stumbled on this article because I hoped I could call this post "Brave Neuro World."  The phrase was taken, but the article is good.)

3.  For an overview of how jury consultants work now, see Matthew Hutson's article "Unnatural Selection" in the current issue of Psychology Today.  The article is the result of interviews with the jury consultants in some of the most prominent trials of the last few years.  I'll write more fully about it later in the week.

4.  As this blog enters its second month, I owe thanks to Anne Skove and her spirited Jur-E Bulletin, Prof. Suja Thomas, Eric Turkewitz at New York Personal Injury Lawyer Blog, Rush Nigut at Rush on Business, the learned folks at Empirical Legal Studies Blog and the Civil Procedure Prof Blog, designer Mike Rohde, and the generous trial consultants at ASTC for helping a newcomer along.

(The amazing brain image is by moujemouje at http://www.flickr.com/photo_zoom.gne?id=321779822&size=o; license details there)

Grand Opening: The American Gallery of Juror Art

(Ready?  Imagine trumpet fanfare here.) 

This post inaugurates the American Gallery of Juror Art, the first in the nation of its kind so far as I know, showcasing art done by actual jurors while they were actually on jury duty. 

Never Eat Alone & Milwaukee County Jury Duty, by Mike Rohde

Mike Rohde, a visual designer who, like me, lives in Milwaukee, has kindly agreed to allow his drawing to be the inaugural work in the American Gallery of Juror Art.  Mike is also a blogger, it turns out; he blogs "about design, writing, mobile computing, technology, travel, cycling, books, music and other stuff" at Rohdesign Weblog.  It's really good.

Mike describes his drawing as "A combo of thoughts while reading Keith Ferrazzi's Never Eat Alone book on the left; images from my short stint at Milwaukee County Jury pool on the right."  The drawing, from his Moleskine notebook, is on Flickr, and all rights are reserved to Mike. 

Watch the sidebar for new contributions to the American Gallery of Juror Art.

The Case Of The People Versus Summary Judgment

Prof. Suja Thomas knows how to start a story with a riveting lead:

Summary judgment is unconstitutional.

Say what? 

That's the first sentence of her article, "Why Summary Judgment Is Unconstitutional," about to be published in the Virginia Law Review and available for download at SSRN.  She knows you'll be skeptical:

I understand that this assertion will face resistance from many. The procedure is well-entrenched in our federal courts through its ubiquity and lengthy history. Nevertheless, I will show that summary judgment fails to preserve a civil litigant’s right to a jury trial under the Seventh Amendment.

Summary judgment means no jury

I have a few intrepid readers whose work has nothing to do with law, and a few more who haven't thought about civil procedure since law school, so let's be sure we're on the same page.  Summary judgment means you skip the jury and decide a civil lawsuit "on the papers."  If the judge rules that the undisputed facts lead to only one legal conclusion, the case is over -- without a jury trial.  A common example is an explicit contract.  If I lend you money, you sign a promissory note, and you don't pay, the judge will usually tell me I win the case "as a matter of law," since there is nothing a jury could say that would take you off the hook.

To a business litigator like me, rethinking summary judgment is like rethinking breathing.  We have never considered what we would do without it.  As Prof. Thomas notes, summary judgment is a a fixture of civil practice:

A large number of civil cases do not move beyond discovery without at least one motion for summary judgment from the defendant.  . . .  Indeed, the extensive use of summary judgment is cited as a significant reason for the dramatic decline in the number of jury trials in civil cases in the federal courts. 

But unconstitutional?

I always thought the Supreme Court liked summary judgment, too.  In our motions, civil lawyers always cite Celotex Corp. v. Catrett, 477 U.S. 317, which in 1986 formed part of a well-known trilogy of Supreme Court opinions addressing summary judgment:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action."  . . . [The summary judgment rule] must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

(Emphasis added, as we always do.)  Prof. Thomas points out there is actually data showing how much we love this quote; she cites Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, 63 Wash. & Lee L. Rev. 81, 82, 86–88, 143–44 (2006) (SSRN download here) as "presenting data that demonstrates that federal courts cite the trilogy of cases on summary judgment more often than any other cases."

Prof. Thomas reviews the Supreme Court's summary judgment cases and argues that the court has never specifically decided whether summary judgment denies the constitutional right to jury trial.  Since the question is unresolved, she argues, we should now resolve it, and eliminate summary judgment.  She argues here -- as she did in an earlier article, "Judicial Modesty And The Jury," SSRN download here -- that summary judgment shifts the balance of power from juries, where she thinks it should be, to judges, where she thinks it shouldn't.

Practical questions

There are going to be questions, of course.  Some are practical.  Prof. Thomas draws a line, for example, between constitutionally acceptable motions to dismiss, where the facts are fixed because the complaint is taken as true, and unconstitutional motions for summary judgment, where the judge decides what a jury could reasonably infer from agreed facts.  In practice, the distinction is not so clean.  If I'm suing on a promissory note and the defendant files a mushy denial, the motion I need to file is for summary judgment, even though the facts and all inferences from them are fixed. 

Then there's the very practical question of what would happen to civil lawsuits if every disputed case went to a jury.  Prof. Thomas suggests that many more cases would settle, and that seems certain.  It's likely too that many more cases would be diverted to arbitration, as banks, utility companies, and other businesses started writing arbitration clauses into their contracts. 

What about the legislature?

Since summary judgment probably won't be outlawed any time soon, though, the conceptual questions are more interesting than the practical ones.  What is the proper role of juries in our legal system?

Prof. Thomas is making a choice between judges and juries, but judges and juries are not the only pieces on the board.  The change she proposes would change the legislature's role as well.  Many lawsuits are based on statutes that are dramatically counterintuitive.  Many patent cases, for example, have this fact pattern:  the defendant did in fact copy the plaintiff's product, but changed it, so that the defendant's product does not include all the features listed in the patent's "claims."  Patent law says that plaintiff loses, without question.  But copying your neighbor's work is something jurors have learned from kindergarten is wrong, and it's a difficult statute for them to enforce.  In  cases like that, summary judgment is an important tool in making sure the legislature gets what it wanted.

A consistent approach

Whether you agree or disagree with Prof. Thomas, it's worth a minute to admire the consistency of her argument.  Much of the talk about the role of juries seems to focus more on the ends than the underlying ideas.  Thus for example the libertarian Cato Institute argues here against excessive punitive damages, but here for jury nullification.  At the level of principle, they're the same thing.  When you give jurors more power, they may use it to nullify the jury instructions or multiply the punitive damages, but either way they're using the power you gave them.  Prof. Thomas's paper embraces that; it's an argument for greater jury power, whereever it may lead.  For that and for its audacity, it's a cogent addition to the ongoing conversation on this topic.

Back to voir dire questions

What does all this mean to a trial lawyer?  The world of academic discussion and the politics of juries can look very distant from our desks.  Some lawyers are routinely on the same side of an issue, and have a policy view to match; personal injury plaintiffs' lawyers, for example, tend to oppose restrictions on punitive-damages awards.  In a business practice, on the other hand, we can easily represent -- and our clients can easily be -- plaintiffs in one case and defendants in another.  We don't tend to talk about the role-of-the-jury debate around the coffee machine.

Even for the most opinionated lawyer, though, the politics fall away when jury selection begins.  It's this jury, these witnesses, this judge, these lawyers, these issues, this day, and trying to get a sense of how it will all work together. 

In that moment, the only politics that matter are the jurors'.  Are there jurors on the panel who feel strongly about the role of the jury?  Have they read about this issue?  Have they read anything to prepare for their job as a juror?  (You're looking for something like the Fully Informed Jury Association's Juror's Handbook, which urges jurors to exercise independent power.)  Are they aware there are materials like that out there?  Can they agree to take their instruction from the judge, and not what they've read?  What groups do they feel associated with, or what groups' publications do they follow?  (You want to know that for a hundred reasons, but here, you're looking for groups who advocate as to either punitive damages or jury nullification.)  In most courts you need to make these questions very open-ended, or the judge will call it argument and shut you down.  But ask.

____________________

Related notes and sources:

1.  Eric Turkewitz's post yesterday on New York Personal Injury Attorney Blog reminds us not to stereotype juries' or judge's decisionmaking.  It's so pithy it's practically a haiku.

2.  For more on the conceptual relationship of punitive damages and nullification, a good article is Wenger and Hoffman, "Nullificatory Juries," published in the Wisconsin Law Journal in 2004 and also here.  Wenger and Hoffman argue that "some kinds of damages have much in common with nullification," and they collect references to several scholars who "have noted potential conceptual links between jury nullification and punitive damages."

3.  For the future of this issue, keep an eye on Tellabs v. Makor Issues & Rights, to be argued before the Supreme Court on March 28.  SCOTUSblog describes the issue as the trial court's "power to draw inferences in considering dismissal of securities fraud lawsuits."

More Words On The Libby Verdict

Bloggers and reporters have written thousands of words about juries and jurors in the last 12 hours or so, and some of it has been very wise.  In a blog for trial lawyers about juries, two things seem worth saying, although they've probably been said better elsewhere.

1.  Jurors work hard to follow the law.  Lawyers love to say they don't, but they do.  If the jury instructions are read to them in a monotone, or given to them in legalese -- and both happen, often -- they might not be able to follow the law.  But when jurors can decipher the instructions, they follow them, even when the result seems unfair or stupid.

After mock trials, we often ask jurors whether they felt there was some "better" result that they weren't allowed to reach, because the jury instructions or the special verdict pulled them another way.  They almost always say yes.  Libby juror Denis Collins captured the process in this moment from his interview:

There was just so many of those [conversations] that it was just very hard not to believe how he could remember it on a Tuesday and then forget it on a Thursday and then remember it two days later.

Now, having said that, I will say that there was a tremendous amount of sympathy for Mr. Libby on the jury. It was said a number of times, "What are we doing with this guy here? Where's Rove, where's you know, where are these other guys?"

We're not saying that we didn't think Mr. Libby was guilty of the things we found him guilty of but that it seemed like he was to put it in Mr. Wells' point, he was the fall guy.

2.  Thank you, live bloggers.  Live blogging is the greatest thing for people who want to learn about trials since -- since I don't know what.  The firedoglake folks were congratulating each other yesterday for their unique journalism throughout the trial, and they deserved every word of it.  They were rooting for the prosecution, it's true, but on the other side, JustOneMinute was live blogging and rooting for Libby, so we could always doublecheck for spin.  At TalkLeft, images of the jury notes were being posted almost as soon as the trial lawyers saw them.

You might not yet have warmed to the idea of live blogging Survivor or the Grammys, but live blogging trials is a real gift to those who want to know what happened.  The traditional morning media updates -- this person testified yesterday and you may remember that Libby is on trial for perjury and obstruction relating to the outing of CIA agent Valerie Plame -- suddenly sounded laughable when we had already heard the highlights of cross, seen the jury notes, and heard about the legal arguments outside the jury's presence.  Until now, the only way to know a trial that well was to sit through it.  Now you can be at your desk and practically be there.

Your local Big Trial is likely being live blogged too.  Here in Wisconsin, the Avery murder trial has live blogs in the Milwaukee Journal/Sentinel and a blog called Lakeshore Laments.  The Couey murder trial in Florida has live blogs here, here, and here at least. 

(Photo by Payton Chung at http://www.flickr.com/photos/paytonc/132501588/; license details there.)

Letter to a Nervous Juror

Somewhere out there last week, a nervous juror was searching Google.

At least he might have been.  I'm new at blogging, so I still check my stats with fascination.  One day last week, someone pulled up the Voir Dire category of this blog by asking Google "what happens if you lie about voir dire."  I didn't think much of it.  Then a few hours later, the search "voir dire not realizing you know someone" pulled up the Watching The Jury category here.  Hmmm.

It could have been anything, of course, but I'm picturing this scene.  The juror (let's call him a man, or I'll be he-or-she-ing you to death) showed up at voir dire.  The judge read a list of names and asked if anyone on the panel knew anyone on the list.  Nothing rang a bell, so he didn't raise his hand. 

Later, one of the lawyers called a witness -- and omigod, he recognized her.  Her name clicked instantly; he should have remembered it when he heard the voir dire list.  He'd taken some kind of oath when they started voir dire, right?  It definitely had something in it about telling the truth.  What should he do?  What would they do to him? 

I doubt he'll find me again, but just in case:

Dear Nervous Juror,

First, I'm sorry you didn't find anything here to help you.  It doesn't look like you got much guidance from the rest of your results, either.  I hope you ran the search in news as well as in web posts; if you did, you might have found this story, and learned that a juror had a similar experience just recently in Wisconsin's much-followed Steven Avery trial. 

In the Avery trial, a police officer who was an important witness took the stand.  Only when the juror saw the officer did she realize that she had seen him testify when she was on another jury seven years ago.  It all worked out fine, at least for her.  She told the bailiff right away, the bailiff told the judge, the judge questioned her and ruled she could still be impartial.  (There was a mistrial motion, and it was denied.)

I hope it worked out for you too.

Sincerely,

Anne Reed

ps -- Whatever you do, don't lie to the judge.  They might not punish you for it, but they might, and either way it makes the lawyers' lives very complicated.  You might have read my post on U.S. v. Vartanian, decided by the Ninth Circuit last Wednesday; in that one, the juror who lied only had to go home.  But that same Wednesday in Fort Worth, a juror told the judge he didn't know the defendant when in fact they were basketball buddies -- and he went to jail for three days.

The CSI Effect: While Scholars Get Empirical, Libby's Lawyer Tries It Out

Next time you need to make small talk with a prosecutor, try this question.  "So this 'CSI Effect' I hear about.  Is it real?" 

You won't have to talk again for quite awhile.  She'll tell you pained stories of juries who acquitted defendants -- even after hearing experienced police officers swear that they personally saw the crime -- because television has taught the jurors to expect forensic evidence like fingerprints and DNA.  Prosecutors say that back in the day, an eyewitness police officer was the golden ticket.  Now, "CSI effect" is a recognized term, and a fact of life for prosecutors.

A fact of life, at least anecdotally.  In a Yale Law Journal article last year, NYU professor Tom Tyler noted "there is little objective evidence demonstrating that the effect exists."  (Instead, his article is a comprehensive review of the literature bearing on whether juries are capable of expecting more just because of what they see on television.)

It's real -- but it's not just CSI, it's the culture

Now there's some data.  The scholars at the Empirical Legal Studies Blog noted over the weekend a new study by Professors Young Kim and Gregg Barak, and Hon. Donald Shelton, a sitting judge and adjunct professor, all of Eastern Michigan University.  Their article, published in the Vanderbilt Journal of Entertainment Law, is "the first empirical study designed to investigate whether 'the CSI effect' exists."   They used a survey, asking 1027 state-court jurors to describe "their television viewing habits, their expectations that the prosecutor would produce scientific evidence, and whether they would demand scientific evidence as a condition of a guilty verdict."

Their conclusion:  jurors do expect extraordinary levels of scientific proof, but their expectations can't be tied to any particular television show, or even television habits generally.  Rather, the authors conclude, "these 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."

Trusting fingerprints, distrusting police

It makes sense.  The CSI show itself ("and its progeny," as we lawyers say) is a small current in the stream of changes that make jurors harder to convince.  Years before CSI's 2000 debut, for example, the 1995 O.J. Simpson trial taught millions of Americans not only the reach of DNA technology, but also that experienced police officers could lie  -- at least about their racist comments, and thus could be seriously suspected of planting evidence as well.  In the Yale Law Journal article, NYU's Prof. Tyler devotes a section to how jurors' "declining trust and confidence in legal authorities" makes them more likely to acquit. 

Then there is technology generally.  If jurors can watch CSI on their iPods in the jury room, it makes sense that they'd expect to see some showy technology in the courtroom as well.  Without question, a lawyer whose voir dire checklist stops with "Do you watch CSI?" has only begun to explore this area.

Can the CSI Effect help Lewis Libby?

While the Empirical Legal Studies folks consider the Michigan survey data, Lewis Libby's lawyer Ted Wells may be testing whether it works for white-collar perjury defendants as well as for accused murderers. 

The Libby jury drove observers crazy last week sending notes that ended up revealing nothing about their direction.  Then on Friday afternoon, they drove everybody crazy with a note that went straight to the heart:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

It could have meant a dozen things (star liveblogger Marcy Wheeler has a good set of wonderings here), but one of them is that the CSI Effect is happening in the jury room.  Jeralyn Merritt of TalkLeft highlights this from Ted Wells' closing argument:

There is no expert testimony that he could not have forgotten.  I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July. The record is barren on that point. There is no type of physiological evidence or scientific evidence. It's just barren.

If this were CSI, he's saying, you'd have heard from a scientist.  The jury's note might mean that some of them agree.

If that's where it's going, it won't be the first time the effect has appeared in a white-collar criminal case.  After Richard Scrushy was acquitted of securities fraud, the jurors apparently explained that they should have been shown fingerprints on the actual documents. 

_________________

Thanks to the Empirical Legal Studies Blog -- for noting the Michigan study, for their skill at making empirical research relevant and readable, and for their very kind links to this blog last week. 

(Image by Chad Miller at http://www.flickr.com/photos/chadmiller/98014022/; license details there)

U.S. v. Vartanian, or The Case Of The Juror Who Chatted At Starbucks

It's a good day when a judicial opinion not only illustrates the rules on dismissing a juror during deliberations, but also has entertaining facts.  U.S. v. Vartanian, issued by the Ninth Circuit on Wednesday, is a case like that.

Hagop Vartanian was accused of defrauding both lenders and the IRS.  On the second day of deliberations, the jury foreperson sent the judge a note saying "There is one juror that has been seen on different occasions speaking to the defendant's family.  Juror's name is Kathy.  Three or four people have seen her and two saw her this morning chatting with them outside the courtroom."

The trial judge interviewed Kathy, Juror No. 7.  The Ninth Circuit reported:

When questioned about her contacts, Juror 7 stated that she had only exchanged "pleasantries" with people associated with the case, telling them "hi," "it's a nice day," or "[t]hings will be okay." Juror 7 assured the judge she had done nothing more than say hello and did not intend to express her feelings about the case. At that time, Juror 7 also maintained that she made the "[t]hings will be okay" comment to a woman she described merely as dark-haired and present in the courtroom.

The trial judge then interviewed the other jurors, and got a different story.  The "merely" dark-haired woman was no bystander, but Vartanian's sister.  Juror No. 7 had tried to chat with defense counsel at Starbucks, had made a point of taking the elevator alone with members of the defense group, had approached Vartanian's family and talked for a full minute, and had talked about "Vartanian's eyes and how kind he looked and everything."  The trial judge "also noted that Juror 7 exhibited other "bizarre" behavior, including "bombard[ing] . . . the parties and the Court with notes asking questions at inopportune times and bringing chocolates to the court reporter and insisting that she take them."

Hold the phone, she's a fan

Then one juror added something that took the case to the Ninth Circuit: 

During an interview, one juror blurted out that "[Juror 7] said that [Vartanian] was not guilty and nobody can change --" Later, when asked whether Juror 7's conduct "influenced [her] or affected [her] in any way," the same juror also remarked: "Well, I think the jury is going to be hung up."

With those words the defense had an argument, and the trial judge had to find a legal boundary.  A trial judge cannot dismiss a juror because of her views on the merits.  If the other jurors were exaggerating Juror No. 7's outgoing nature in hopes they could sign their guilty verdict and go home, it was the trial judge's duty to let her stay.  But a trial judge can, and should, dismiss a juror for "improper contacts suggesting juror bias."

The trial judge dismissed Juror No. 7, citing not only her contacts with the defense group but his belief that she had lied to him about those contacts.  The Ninth Circuit affirmed.

(Starbucks photo by Bronwyn Quilliam at http://www.flickr.com/photos/beeep/92495907/; license details there.)

Assume They Assume The Worst

You're plaintiffs' counsel, twelve weeks into a six-month antitrust class-action trial against Microsoft.  For several days, you've been showing the jury videotaped testimony.  While they watch, you take advantage of the chance to go back to your office to prepare witnesses, leaving (presumably) your second-chair in charge.  Then the judge gets this note from a juror:

"Just wanted you to know that several of the jurors are remarking about the absence of Ms. Conlin during our videotape viewing and that [defense counsel] is here every day. They ... think Ms. Conlin is probably taking vacation on those days and we don't get vacation. And that's not fair because it's her fault that we're here."

Six days later, you suggest settlement talks.

It happened this month, says the Des Moines Register, to Des Moines lawyer and former gubernatorial candidate Roxanne Conlin. 

It's rarely one single act that turns a jury off, and it probably wasn't here.  Admirers and detractors describe Ms. Conlin as someone who, one can imagine, would quickly be liked by some and disliked by others.  Likewise the plaintiffs' case itself was not the kind to appeal to everyone.  Over 1,100 people opted out of the class at the outset, some sending a few comments along with the form -- like "[t]his lawsuit appears to be a huge bunch of crap."  When the trial finally did begin, Ms. Conlin's opening statement went seven days. 

Fair's fair

If this story amounted only to one lawyer and one case irritating one set of jurors, it might not be worth remembering.  But there is a broader lesson in this particular detail of the trial.  It's not just that the jury was unhappy.  It's that the decision they focused on, the one they thought was worth writing a note about, was the decision to leave the courtroom without explanation.  Most jurors don't have the context to imagine what could legitimately pull you away.  No matter what impression you've made up to then, it's a rare jury who will conjecture flattering reasons for your absence. 

As the Microsoft jury explained, jurors don't get vacation.  They have to sit in hard chairs for long hours.  They have to stay awake.  They have to pay attention.  They think it's fair that everybody else in the courtroom should have to do those things too.  If for some reason we can't, we have to be sure they know why.

__________________

To learn more about the Microsoft trial, a good starting place is Iowa lawyer Rush Nigut's Rush on Business blog.  He calls the case "practically a class on juror persuasion," and his series of balanced posts on it is collected here.