Deliberations

Finding Good Blogs

This is off-topic, but maybe not so far off, because if there's any blog whose readers might need help navigating the blogosphere, it's mine. 

I know they're out there

Your average trial lawyer isn't spending much time in the world of Web 2.0.  I know, because I was the same way when I started.  I'd heard there were all these brilliant blogs out there, scooping mainstream journalists and opening the windows in scholarship's ivory tower.  But when I looked for them, running regular searches and trying to figure out blog search engines like Technorati, I couldn't find them among the thousands of navelgazers and crazies.  It was like trying to find a new town with an old map.

They're out there, though, and they're worth finding.  I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others. 

Useful guides

That's still a good way to find good blogs, but it's slow.    You can speed up the process with good directories and guides.  The main ones are:

• Blawg Review, the weekly law blog carnival.  Each week a different legal blogger writes a review of the week's posts in other law blogs, usually trying to outdo all who have come before in creativity and style.  (I was privileged to host Blawg Review last September, and stayed up half the night.)  If you read Blawg Review over even a few weeks, you'll see who shows up regularly;  if you read it regularly, you'll learn of good blogs you might never have seen otherwise.  Blawg Review is itself a blog, whose posts point you to the current host and lots of other things.
• The ABA Journal's Blawg Directory and Blawg 100 list.  The Blawg 100 was controversial when it came out because it omitted some wonderful blogs, and I'm not a neutral source because I'm in it.  That said, I'm a faithful follower of some blogs I first learned of because they were in the Blawg 100. 
• Kevin O'Keefe's Real Lawyers Have Blogs.  It's a blog, not a guide, and since Kevin's company LexBlog sells a software platform and support for blogging lawyers, you'd think it might be a little provincial, but it isn't.  Kevin covers pretty much anything that has to do with legal blogging, and I've learned about many good blogs from his posts. 
• The law page at Alltop.com, a brand new directory from marketing guru Guy Kawasaki.  I wish I'd had this when I first started.  It's a "single-page aggregation," with "the latest five stories from thirty or more sites on a single page."  (Even Alltop finds this hard to explain:  "You can think of an Alltop site as a 'dashboard,' 'table of contents,' or even a 'digital magazine rack' of the Internet.")  The sites and the order they're in keep shifting, and if you want to go beyond law, there are dozens of other pages and new ones coming all the time.  Note to the Francophiles at What About Clients?:  the France page debuted today, en Français. 

____________

Notes:

1. If you're going to follow more than a few blogs, you need an RSS feed reader, also called a feed aggregator.  If you don't know what that is, a few searches will educate you.  I use Google Reader -- it's fast, free, and works nicely with the rest of Google's products.
2. Full disclosure:  I think I move up in Alltop's algorithm by linking to them, but really, it's good.
3. While I'm off topic and talking about maps (and good blogs), check out the cool mindmaps in Vickie Pynchon's posts this week at Settle It Now Negotiation Blog (here and here), and her wise words on what they have to do with negotiation.
4. Guy Kawasaki and I share a birthday, so if there's anything to astrology, I should be famous and wildly successful sometime soon.
5. Related content here:  A Trial Lawyer's Guide To Social Networking Sites.  Some nonlawyers have told me they found it useful as well.

(Image from Library of Congress via pingnews at http://www.flickr.com/photos/pingnews/2122158366/; license details there.)

Eggs, Milk, Butter, And . . . Darn It.

New research confirms two things.  First, I'm not the only one who keeps forgetting that fourth thing I need at the grocery store.  And second, I probably won't get better at remembering it.  Translation for lawyers:  if you need jurors to keep more than a handful of facts in working memory, you have to give them special tools.

"A certain number of objects" -- and no more

"We found that every person has the capacity to hold a certain number of objects in his or her mind," said Jeff Rouder of the University of Missouri.  He's the co-author with Nelson Cowan of "An assessment of fixed-capacity models of visual working memory," published this month in the Proceedings of the National Academy of Sciences.  (Note:  that link is to the PNAS abstract.  Rouder posts the whole article here at his Missouri bio page, a generous move I hope more scholars follow, but it's extremely heavy going.  Unless you love statistics or have time on your hands, the excellent press release is where you want to be.)

It wasn't easy for Rouder and Cowan to confirm our "fixed capacity," because we've developed clever tricks like "chunking" to get the most out of limited memory space:

Rouder said that to remember a series of items, people will use "chunking," or grouping, to put together different items. It can be difficult for someone to remember nine random letters. But if that same person is asked to remember nine letters organized in acronyms, IBM-CIA-FBI, for example, the person only has to use three slots in working memory.

Nine slots, or three?

Our habit of "chunking" information into our memory slots makes it hard for researchers to understand how working memory really works.  Until Rouder and Cowan devised an experiment that "wiped out" prior information as the subject went along, no one could tell whether subjects who remembered nine facts had kept each one in a different memory slot, or chunked them into, say, three groups of three. 

It doesn't matter to the subjects, of course, how many memory slots they have, as long as they end up remembering nine facts.  But it matters a lot to lawyers.  If you need jurors to remember nine facts, Rouder and Cowan's research suggests, you've got three or four slots to put them in.  If you can't form the facts into meaningful groups, they won't stick.

Remembering to pay attention

In fact, if you can't sort facts into related groups (or give jurors some other tool to remember them, like notetaking) jurors may end up not listening to you at all.  The press release goes on:

Working memory is closely related to attention because it requires attention to hold a number of items in mind at once. People with high working memory capacity have more focus. Those with a lower attention span are more easily distracted.

Next time jurors start staring at the ceiling during your client's testimony, don't get mad; think back.  Where did you lose them?  Likely somewhere around the fifth fact.

___________________

Related topics here include:

• Thinking, And Talking, In Segments
• The Jelly Bean Theory of Keeping Jurors' Attention

(Photo by  tracy the astonishing at http://www.flickr.com/photos/tracy_the_astonishing/2375583350/; license details there.) 

"Your Honor, I Move To Strike Your Mother For Cause"

Ashland, Wisconsin, is not a big place.  Yes, it's "nestled along the shoreline of magnificent Lake Superior," as its Chamber of Commerce says, and yes, it's "a beautiful, close-knit community with an excellent variety of lodging, dining, recreation and attraction options."  But with 8,795 people, it's fair also to call it little. 

One of those people is Ashland County Circuit Court Judge Robert Eaton.  Another one is his mom.  And since he's the only judge up there, it was almost inevitable that someday a court reporter would take down this exchange in voir dire:

[Court]:  Any of you have relatives employed in a law enforcement related capacity?   Ms. Eaton, do you have a relative employed in the law enforcement related capacity?

[Juror] Eaton:  The judge.

[Court]:  I like – I like to consider myself part of law enforcement or I may be disowned.  You are related to me how?

[Juror] Eaton:  Your mother.

"Not a jury bias issue"

It was a case about a stolen Jeep, and Mrs. Eaton stayed on the jury, which reached a guilty verdict.  The reason I know all this is that the case went to the Court of Appeals.  The unpublished (and thus unprecedential) opinion is State v. Tody, released on Tuesday by the appellate court we call District III. 

Let's face it:  there are few towns of any size in all of District III, a huge swath of northern Wisconsin containing a lot more trees than people.  If those counties started disqualifying jurors who know the judge, or even jurors who changed his diapers, they could deplete the jury pool pretty fast.  That may be why the court of appeals had so little trouble upholding Judge Eaton's decision to let his mother stay.  "[A] juror’s relationship to the judge is not, by itself, a jury bias issue.  Unlike a State’s witness, a judge is not associated with either party.  No bias is implicit from a relationship to a neutral party." 

As for Mrs. Eaton herself, her voir dire answers were perfect.  "Eaton did not say she had a 'favorable view of law enforcement,' or that she was 'pro-law-enforcement' or 'pro-prosecution.'  [The defense had argued these were reasons she should have been dismissed.]  From the available facts, we cannot conclude that a reasonable juror in Eaton’s position could not act impartially."

Mothers and wives

Cases where a juror was close to the judge come up from time to time, more often with spouses than with parents.  There's the cute feature story of the judge's wife who cheerfully accepted her peremptory strike in Topeka.  There's a please-let-it-be-apocryphal tale of Judge Irving Younger (I get to mention him twice in a week!) flirting from the bench with his juror wife (and later my property professor) Judith Younger.   (Surely he didn't really ask, "Is there any woman on the panel who'd like to go home and sleep with me tonight?")  And there's the harrowing story of New Jersey judge Andrew Smithson, who left his wife on a panel as a nondeliberating alternate.  The defendant appealed, lost, and then filed a misconduct complaint.  Judge Smithson wasn't punished, but a committee considering the complaint did find that Mrs. Smithson's presence on the jury "created an appearance of impropriety."

Next time . . .

Two things stand out in the Tody opinion as lessons for next time, both pretty basic.  First, you need to be ready to lay the groundwork for cause strikes with good voir dire questions, regardless of how surprised you are to find yourself questioning the judge's mother while the judge looks on.  It looks like the entire voir dire questioning of Mrs. Eaton for both sides amounted to this:

[District Attorney]:  Mrs. Eaton, I know you’re the judge’s mother, do you feel comfortable sitting on a trial where he’s the judge but he’s not party in the case?

[Juror] Eaton:  I don’t think it makes any difference.

[District Attorney]:  Doesn’t make any difference one way or the other to you?  You have no opinion about the defendant’s guilt or innocence?

[Juror] Eaton:  I know nothing about it.

Tody’s attorney also addressed Eaton:

[Tody’s Attorney]:  Do you feel you could be a fair and impartial juror?  Would you have to explain to His Honor Judge Eaton, let’s say you voted for a verdict of not guilty, would you feel you would have to explain or justify why you voted that way?

[Juror] Eaton:  No.

Second, Tody used his peremptory strikes on jurors who were not Mrs. Eaton.  I don't know who those jurors were, and I might have made the same calls if I'd been there.  But it's worth pointing out that of all the people who are likely to be strong leaders on a jury -- lawyers, journalists, sitting legislators -- the most influential of all might be the one person on earth who gives orders to the judge.  If you're going to leave the judge's mother on the jury, you'd better like her a whole lot.

(Photo of the Ashland Marina on Lake Superior from the city's web site,  http://www.coawi.org/node/361)

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

Ready For Anything

In voir dire you need to be ready for anything, and anybody. 

I botched this in my first voir dire, a practice one in law school.  "What do you do?" I cheerily asked a mock juror.  "I'm a garbage collector," he cheerily replied.

The great Irving Younger was our trial advocacy teacher at Cornell, and he'd told us to ask open-ended questions to get jurors talking.  I froze.  What could I ask a garbage collector?  Would he think I was mocking his job?  Would I embarrass him?  Or worse, would he be laughing at me?  Hopelessly entangled in overthinking this moment, I moved on to the next person, and learned nothing at all about my garbage collector. 

"Summoned for jury duty in my old male name"

I thought of that guy when my "jury duty" search picked up this inquiry at one of the forums at Susan's Place Transgender Resources, "a support resource for the transgender community":

I have been summoned for jury duty in my old male name. The last two times I was not required to go. I am to check the county web site on the Friday before to see if I am still required to go. It is ironic as I have to report to the courthouse where I plan to file for my name change as soon as I can put together enough cash for the filing fee. Another irony is that my Driver's license and other photo ID is now in my new name. The only way I have to prove that I am the person in the summons is a letter from my therapist stating my transgender status. I hope that should I have to go to jury duty that they will be discreet about it. I plan to go up to the official and immediately explain my situation. I will go in female mode as I have no male ID now. I did not see this coming!!!!

It's a pretty good guess that the lawyers who'll be doing that voir dire didn't see it coming either.  They're at their desks right now, going over the list of potential jurors, trying to figure out what they can from names, ages, neighborhoods, and occupations.  (Every Sunday night I get a surge in searches for sample voir dire questions.)  They think they're ready for Daniel or Thomas or whatever their list says that juror's name is.  But they're not.

You need to be ready for what you're not ready for.  The juror who tells you she has seventeen cats, the juror who tells you his child was killed, the juror who isn't a man after all -- you can't botch these moments.   Your compassion, your awareness, your intelligence, and your character will be judged on how you handle the next thirty seconds.  You need to be at the very least, as the transgender juror hopes, discreet.  Warm, engaged, and unfazed would be better.

Not about you

The more you've done in life, the easier this is.  The lawyers who are most adept at voir dire are the ones who excel at conversation with strangers generally, and those are so often the ones who had a lot of different jobs before they became lawyers.  But it's learnable -- take it from someone who's spent 27 years in the same job, longer in the same marriage, and almost as long in the same house.  You just need to forget about yourself for a second and think about the person you're talking to.  "We all thank you for the work you do," is what I should have said to the garbage man.  "You've been through challenges that few of us can imagine," you might say to the transgender juror.  "Tell me about your life now."

(Photo by Liz Henry at http://www.flickr.com/photos/lizhenry/204197241/; license details there.)

Find Jurors' Experiences At Jury Experiences

I wasn't sure about the Jury Experiences web site early on, but I've become a fan.

"What really happens in jury rooms"

The site itself as evolved as much as my perception of it has.  It was designed as, and still hopes to be, a forum, where jurors would post descriptions of their own jury experiences.  When he started the site back in late 2006, founder Jonathan wrote:

Many of us serve on juries. Our experiences are often both extremely interesting and much different from what we expected. We emerge from our service with stories that we share with our families and friends. However, with the exception of notorious trials, and rare cases in which ex-jurors are interviewed for research purposes, most of these stories are eventually lost. 

The Internet provides an ideal medium for collecting and discussing our experiences. While there are numerous jury-related Web sites and, increasingly, blogs where individuals write about their jury service, few if any of these sites provide an open forum where ex-jurors and other interested people can discuss their experiences and exchange ideas.

Jury Experiences is an attempt to create such a forum. By facilitating discussion about what really happens in jury rooms, court rooms and the jury selection process, in various courts and jurisdictions and especially from the juror's perspective, I hope to contribute to better understanding of our government and legal system by the public and legal specialists alike.

He was right about all that, and even "primed the pump" with a thoughtful description of his own jury experience -- but for the most part, jurors have not yet joined the forum. 

Go for the forum, stay for the news feed

Maybe jurors simply prefer to describe their jury duty on their own blogs, which we know they regularly do.  Because of what Jonathan's quiet forum has become, hundreds of those jury duty posts can be found in one place at Jury Experiences.  As he waited for the jurors to come, he started a news feed, and it's extraordinary.  My own feed settings pick up dozens of juror blog posts a week, but Jury Experiences finds so many more that I've stopped looking for them on my own.  When a colleague and I were researching juror stress for my Japan trip, we found examples of every kind in Jury Experiences' archives.    On top of that, Jonathan gathers regular news stories, usually several a day, about all aspects of juries and jury service. 

There's so little of Jonathan's own voice on the site that it's easy to mistake it for a splog, or worse, a front for the kind of extreme politics that sometimes attaches itself to the idea of the jury.  I'm now convinced it's neither, and it's become a go-to resource when I want to know what jurors -- at least the ones who write on line -- really think.

More On Japan: Radio Edition

Another audio installment of Deliberations today:  I got to appear again on Milwaukee Public Radio's "Lake Effect" this morning, talking more about Japan, its new jury system, and my trip there.  The interview (and the rest of today's show) is here; my part is about twelve minutes. 

Thanks again to Jane Hampden and the "Lake Effect" folks for having me back.  Someday I might get used to the sound of my own voice coming out of a radio, but I'm not there yet.

(My picture of a pretty spot in the beautiful Shinjuku Gyoen National Garden in Tokyo; Creative Commons license.)

To Russia With Judge Mize

I'm honored to have a guest post from Judge Gregory Mize, telling of his recent visit to Russia for the first ever "jurors' summit" there.  I've been privileged to write about Judge Mize's work in improving the jury system before:  his surveys of quiet jurors in voir dire will surprise you if you haven't seen them yet.   He did the studies when he was a judge in the Superior Court of the District of Columbia.  Now retired, he's centrally involved in the National Center for State Courts and D.C.'s Council For Court Excellence, on whose behalf he went to Russia and in whose Spring 2008 newsletter this article appears.  I'm very grateful for the chance to spread the word.  Here's Judge Mize:

~~~~~~~~~~~~~~~

Did you know that, shortly after the 1992 creation of the modern Russian Federation, trial by jury was re-instituted after a 7-decade prohibition?  Yes, there is a new landscape of citizen participation in the administration of justice burgeoning in Russia.  I did not know that until I participated in the first-ever Russian jurors’ summit this week in the Moscow.

It all started with the initiative of Leonid Nikitinskiy, a Thomas Paine-type journalist in Moscow.  Leonid heads a guild of Russian journalists who cover court cases.  With recurring reports of court nullification of jury acquittals in serious state criminal prosecutions, Mr. Nikitinskiy decided to lead an effort to comprehensively study Russian jury trials.  His efforts inspired the U.S. Department of Justice to support a conference of 30 former jurors; several Russian trial judges, lawyers, and central government officers; and 4 North American jury trial experts.  During 3 intense days, jurors from 11 disparate regions [in a country expanding 7 different time zones!] described their [sometimes harrowing] efforts to reach a verdict in state prosecutions involving the most serious criminal charges.  The goal of the convocation was twofold: (1) to grasp the real face of jury trials in Russia, and (2) and to bolster its vitality in the future.  Upon reflection, I think we attained the first goal.  Time will tell whether the second aspiration will be achieved. 

I am hopeful for several reasons.  First, a 2-hour opening ceremony for the conference occurred at the Presidential Hotel where many high government officials, including former President Mikhail Gorbachev, rendered praise for the new jury trial system.  Thereafter, about 60 of us headed to a retreat outside Moscow for nonstop discussions and brainstorming.  Significantly, every juror and several legal professionals expressed a belief that jury trials in Russia are the best [and perhaps only] way to stand up against central government corruption or overreaching.  These Russians see that juries are a backstop to their vertical, top-down legal and political culture.  Repeatedly I heard former jurors – including business owners, school teachers, government retirees, and service workers -- affirm that, in their evaluation of criminal prosecutions, they served as the consciences of their communities.  They were often dismayed by the poor quality of the government’s evidentiary presentations.  In their cases, they grappled with many of the same challenges facing American jurors: discomfort caused by separation from jobs and personal routines, difficulties with the concept of “beyond a reasonable doubt,” disdain for legal jargon, awe at the question whether it is better to acquit a guilty person than to convict an innocent one, and impatience with judicial instructions to ignore improperly introduced evidence.  In the end, the jurors’ sentiments were well summarized by the highly respected Moscow attorney Nikolai Gargarin, “I have a dream…. Our public agencies will improve….  If the Ministry of the Interior can have a budget of millions to improve the image of police officers and the military, why not do the same for juries!”

During the proceedings, our American delegation drew attention to the work of three U.S. NGOs  [the National Center for State Courts [Williamsburg, VA], the Council for Court Excellence [Washington, D.C.], and the Fund for Modern Courts [NYC] were described.  We suggested that the group think about engaging a critical mass of other jury trial enthusiasts and civic leaders in Russia to create an NGO in Russia to promote and fortify their fledgling jury trial system.  In that vein, Mr. Nikitinskiy hopes to create a national “Jurors Club,” create citizen education programs about jury trials, and host additional juror meetings in the future.   

As I reflect upon this immensely rich experience, I think I may have witnessed in Moscow something akin to our own Founders’ debates in 1789 in Philadelphia -- brave and visionary citizens struggling to discern a just and better way to govern themselves.

(Photo by Josef F. Steufer at http://www.flickr.com/photos/josefstuefer/14691135; license details there.)

The Edges Of Vouching

One of the more enjoyable prerogatives of a blogger is to give quizzes.  Today's quiz is on the improper practice of "vouching" for a witness's credibility.  Here's the line you're trying to draw:  it's okay in closing argument to suggest what inferences jurors should make from the evidence, but it's not okay to insert your own credibility by vouching for the credibility of a witness.  The classic example of vouching is when the prosecutor says, "I've known this FBI agent for years, and I can tell you he wouldn't lie."

Got it?  Okay.  In the the trial that led to Fifth Circuit's United States v. Gracia opinion yesterday, defense counsel argued that the federal agents were lying.  The prosecutor responded with the following arguments.  Which ones are permissible inferences from the evidence, and which are impermissible vouching?  Here you go:

1. "First, the prosecutor expressed his opinion to the jury that the agents were 'very, very credible' witnesses ('Statement One').
2. "Second, the prosecutor asked the jurors rhetorically whether they thought that an agent 'who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia'; and whether the agents 'would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury' ('Statement Two').
3. "Third, the prosecutor told the jury: 'I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered' ('Statement Three').
4. "Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents 'got out of bed' on the day they arrested Gracia and decided that this was 'the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia' ('Statement Four')."

Not okay

The Fifth Circuit's answer, which surprised at least me:  all four statements are vouching.  Not only vouching, but plain error, and Gracia's conviction was overturned.  The court had no trouble deciding this:

The Supreme Court’s decision in Berger v. United States makes clear that a personal assertion by a prosecutor of a government witness’s credibility is impermissible. [I'm omitting footnote citations here and throughout this quote.]  The American Bar Association’s standards for prosecutors echo this sentiment: “The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” The government may not cloak a witness in its “protective mantle.” A prosecutor may argue fair inferences from the evidence that a witness has no motive to lie, but cannot express a personal opinion on the credibility of witnesses.

As the government concedes, it is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth, as in Statement One, or to tell the jury that law enforcement witnesses should be believed simply because they were doing their job, as in Statement Three.   

Although the government does not concede that Statements Two and Four were errors, we cannot meaningfully distinguish the prosecutor’s admittedly improper remarks and those that the government does not concede were errors. All four statements urge conviction based not on the objective evidence before the jury or its independent judgment of the witnesses’ credibility, but on something uniquely within the prosecutor’s knowledge. We have held it improper for a prosecutor to ask a jury the rhetorical question whether federal agents would risk their careers to commit perjury, as in Statement Two. We have deemed improper an unequivocal statement by a prosecutor that, for the jurors to believe the defense’s account, they would have to believe in a government conspiracy, as in Statement Four. The subject remarks of Gracia’s prosecutor share the same basic flaw: A prosecutor’s impermissible assertion of his own credibility, or that of the government, to bolster the credibility of a witness. As we held in United States v. Gallardo-Trapero, “it is particularly improper, indeed, pernicious, for a prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for convicting a criminal defendant.” As the “power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says,”—here, that the agents were credible witnesses—all four of the prosecutor’s statements constituted error.

Really?

I'm out of my expertise in this area, but it doesn't seem all that clear to me.  In "Statement One," for example, surely there's a difference between saying "I personally know this witness is credible" and simply using the adjective "credible" to describe his testimony.  Likewise the argument in "Statement Two," that it's illogical to think a witness would have lied under the circumstances the evidence shows, would be pretty normal in a civil trial.

I ran a search and found a law review note, a little old but it reinforces my doubt.  It's "Prosecutorial Misconduct," in the June 1998 "Criminal Procedure" issue of the Georgetown Law Journal.  Footnote 1881 (you read that right; the footnote numbering in the issue seems to continue from one note to the next) collects vouching cases from the 1990s, and they're all over the map.  The author cites the Seventh Circuit as holding that calling a witness an "honest citizen" isn't vouching (U.S. v. Morgan, 113 F.3d 85, 91 (7th Cir. 1997)), and the Sixth Circuit as holding that when a prosecutor argued that a  detective would not risk his 18-year career by lying, the conviction would stand because the jury was instructed (as juries always are) that the lawyers' arguments were not evidence (U.S. v. Martinez, 981 F.2d 867, 871 (6th Cir. 1992)). 

Scott, Mark, Jamie, and other criminal defense readers, set me straight here.  Is this plain error really so plain?

(Photo by C.P. Storm at http://www.flickr.com/photos/cpstorm/146721021/; license details there.)

The Brand-Name Brain

My favorite psychology research is the stuff that sounds like it might be an April Fool's joke, but it isn't.  Studies on the phenomenon called "priming" almost always fit the bill. 

Here's a great one, about corporate brand logos.  We see them all the time, and companies spend millions trying to get us to associate them with the specific qualities they want to represent in our minds.  How successful are they?  Very, according to researchers Gavan Fitzsimons and Tanya Chartrand of Duke and Gráinne Fitzsimons of the University of Waterloo.  When we're exposed to a famous logo for even a microsecond, they conclude, we act out the qualities we've learned to associate with that picture.

All of a sudden I'm hungry

Remember learning when you were a kid how the movie theater could slip a split-second frame of steaming, buttery popcorn into the movie, and suddenly everybody would line up for popcorn without knowing why?  These researchers used the same trick.  The subjects watched a screen explaining what they were supposed to do -- but also on the screen, too fast for them to notice, corporate logos flashed momentarily.  When subjects turned to the assigned task, which logo they'd seen made a difference:

• Subjects who saw the Apple logo, symbol of creativity, thought of more possible unusual uses for a brick than did subjects who saw the IBM logo, symbol of corporate sameness.
• Subjects who saw the Disney logo, which we associate with earnestly pure things like Mickey Mouse and Snow White, confessed to more bad behavior (like calling in sick) than did subjects who saw the E! network logo, which we associate with celebrity gossip, honest or not.

What it means in real trials

Can lawyers use this?  I say yes, but maybe not in the way you think. 

There are trial lawyers out there who can use priming to underscore ideas and themes in trial, while still keeping track of where their cross-examination outlines are and whether the client understands what's going on and who's doing the jury instruction argument and whether they brought enough matching socks.  I don't think those lawyers read this blog, though.  They don't need to.

For the rest, here's a message from priming research we can all use.  Jurors make decisions without knowing why.  So don't expect so much from your direct questions to them.  When you ask in voir dire how they'll approach one issue or another, they'll tell you, so far as they know -- but that's not very far.  If you get to interview them after the trial and ask how they reached their verdict, the same is true.  Ask the questions anyway, of course.  But work to develop an intuition that goes beyond the answers.

________________

Source notes: 

1. The paper is "Automatic Effects of Brand Exposure on Motivated Behavior:
   How Apple Makes You 'Think Different'".  The press release says it's to be in the April issue of the Journal of Consumer Research, but it's not in the table of contents.  Luckily, Duke University generously puts its faculty papers on line at their site, so you can read the whole paper here.
2. I've written previously about priming here. 

(Image by Julian Povey at http://www.flickr.com/photos/jpovey/2051196149/; license details there.)