Deliberations

W.W.B.D.? (What Will Blago Do?)

 As some of you might have heard, there was a family style civil war raging in the Blagojevich defense camp this week between a young firebrand and a sage journeyman.  The firebrand (Sam Adam Jr.) wanted to throw caution into the wind and have Blago testify, but the journeyman (his father, Sam Adam Sr.) said that this case would rest without hearing from the infamous governor.  The drama was palpable and the media was salivating.  Think Tom Cruise vs. Paul Newman in The Color of Money; or Tom Cruise vs. Robert Duval in Days of Thunder; or Tom Cruise vs. Craig T. Nelson in All the Right Moves; or pretty much any 1980’s Tom Cruise movie.  (You’re welcome Sam Adam Jr.)

Father versus son in a high-profile trial with a big-haired defendant who has ties to both the oval office and Donald Trump's reality TV office?  Some might say that this sounds too good to be true.  Some might even say that this sounds staged to increase publicity.  Sadly, much like how many licks it takes to get to the center of a Tootsie Roll Tootsie Pop… the world may never know. 

However, it brings up the interesting questions associated with putting witnesses on the stand (or in the deposition chair) who are likely to be liabilities.  While the media typically focuses on whether a criminal defendant testifies in his or her own defense, this is a luxury that most witnesses do not enjoy.  The fact is that witnesses who are friendly (but “unhelpful”) are a common problem for civil and criminal attorneys in all types of cases. 

Thomas Fuller wrote, “A fool wanders, a wise man travels.”  In seven words, I believe this quote sums up one of the key differences between helpful and unhelpful testimony.  Those witnesses who “wander” and try to verbally meander into what they think is “the right” answer are in trouble.  Those witnesses who focus on clearly understanding their departure point (the question) and efficiently “traveling” to their destination (the answer) fare much better.  You should always ask yourself: Is this witness reminiscent of a college student backpacking through Europe or a professional who is traveling to an appointment with a client?

While both direct and cross examinations can be dangerous for “wandering” witnesses, clearly the cross is the most perilous journey.  Dr. Louise Ellison and Dr. Jacqueline Wheatcroft at the Universities of Leeds and Liverpool have scientifically demonstrated this danger and tested solutions.

In their research (“Exploring the influence of courtroom questioning and pre-trial preparation on adult accuracy”), Ellison and Whetcroft showed mock-witnesses a simulated crime and then recorded subjects' reactions to two levels of scripted cross-examination questioning: hard-cross and soft-cross.  The hard-cross was filled with legalese and tricky phrasing (double negatives, leading statements, etc.), while the soft-cross had relatively straightforward questions.  As has been demonstrated before, witnesses were significantly less accurate with the hard-cross.    

However, they then went a step further and repeated the test with new subjects, but provided all witnesses with a simple pamphlet entitled “A Guide to Cross-Examination.”  In the paper, it was described as follows:

“…this document contained a short explanation of the two-fold function of cross-examination - to test evidence and elicit information favourable to the crossexaminer’s case - and practical guidance to assist participants when answering questions which included directions to listen carefully to questions, to ask for clarification if a question was not fully understood and to answer all questions truthfully. The leaflet also included an example of a leading question, a question containing a double negative and a multipart question, and, in reference to leading and multipart questions, advice that participants should not agree with a suggestion ventured by the cross-examiner unless it was accurate.”

Obviously, I wouldn’t be blogging about this paper if the pamphlet did not have a significant effect.  Those witnesses with preparation made significantly fewer errors than those without. (If a pamphlet can enhance skills, imagine what real witness prep can do!)

However, what was most interesting was the increase in requests for clarification by participants.  Research has shown that witnesses are often too intimidated to ask lawyers to clarify their questions.  This study demonstrated that simply reading an informational pamphlet before cross-examination caused the rate of requests for clarification by witnesses to jump in both groups.  Asking for an attorney to be clearer is one of the most powerful defenses while being cross-examined and witnesses seldom use it.  Thus proving the ancient Chinese proverb: “He who asks a question is a fool for a moment.  He who does not ask a question is a fool forever.”  Somehow I can’t see Blago pausing long enough to listen to the questions, much less asking for them to be clarified.

(UPDATE: Blago will NOT testify.  I just heard a thousand news anchors drop to their knees and scream “NOOOO!!!”  Thanks to ASTC President Beth Foley for inspiring this blog.)

Blogger: Matt McCusker

FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?)

 I would like to begin this blog by directing you to the definition of irony.  Well, it’s not really the definition of the word, but instead a recent Boston Globe article (“How facts backfire”) that had the blogosphere aflutter.  I’m not going to lie, I was excited about this article too.  In fact, I quickly began formulating a brilliant blog post about jurors’ propensity to ignore the facts in favor of instincts and emotions.  Until, of course, I checked the facts.

Sadly, I actually tracked down the cryptic 2005 and 2006 University of Michigan studies that served as the basis for the article and was disappointed to find questionable methods and obvious bias within the research design. However, I would not be curtailed by the facts of a bad study.   I had already made my decision to write a blog on this subject, so I would find the facts that supported my belief (with the help of Science Daily).

Then, I found a piece by the researchers at Emory University that saved my day.  They produced an fMRI study (active brain scans) that scientifically demonstrated politically partisan voters (i.e. Republicans and Democrats) had no trouble using their reason to detect factual contradictions in the opposing party’s presidential candidate.  (Duh.)  However, their neural processing changed when they had to deal with inconsistencies from their own nominees.  In this situation, the partisan subjects' brains' emotional centers (not reasoning centers) went off like pinball machines when encountering disconcerting statements by their own favorite son. 

Most interestingly, was the following statement by Dr. Drew Western (lead researcher) “We did not see any increased activation of the parts of the brain normally engaged during reasoning… Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones.”  In other words, when we don’t like the facts we switch to using a part of the brain that doesn’t need them, and then reward ourselves when we find a way to get around them.

Sure, this is a study about emotionally charged elections, but that doesn’t change the fact that the results would likely apply to jurors on a two-month long IP trial, right?  For the sake of my blog, I continued searching for more evidence that jurors will search for ways around the facts.

Coincidentally, I found another piece of evidence from my friends at Emory University (also using fMRI technology.)  Dr. Gregory Burns demonstrated that expert advice may in fact shut down the decision-making processes in the brain.  Even better, this is more likely to happen when the brain needs to assess some level of risk.  For this research, subjects’ brains were scanned when interpreting expert financial advice for making financial decisions.  Dr. Burns noted, “This study indicates that the brain relinquishes responsibility when a trusted authority provides expertise…The problem with this tendency is that it can work to a person's detriment if the trusted source turns out to be incompetent or corrupt.”  According to this research, when we have a risky decision with expert advice available, we decide that someone else can better consider the facts and we will just decide if we trust the expert or not.

While this was closer to my goal of demonstrating that jurors will often ignore facts, it was still not perfect.  My Hail Mary came when I saw an article in the Journal of Advertising Research entitled "TV Ads May Be More Effective If We Pay Less Attention".  This was it.  The study I had been searching for to prove my point.  Then, sadly, I discovered I might be undone by the facts.

In this research, subjects’ attention was measured for different TV ads aired during an episode of Frasier.  “Results showed that viewers paid less attention to likeable, creative adverts, and more attention to factual information-giving adverts, even when they didn't like them.”  What?  Factual ads work better?  Factual ads that people don’t like work better?  Say it ain’t so!

But then Dr Robert Heath said: "There has been a lot of research which shows that creative TV ads are more effective than those which simply deliver information, and it has always been assumed that it is because viewers pay more attention to them.  But in relaxed situations like TV watching, attention tends to be used mainly as a defense mechanism. If an ad bombards us with new information, our natural response is to pay attention so we can counter-argue what it is telling us. On the other hand, if we feel we like and enjoy an ad, we tend to be more trustful of it and therefore we don't feel we need to pay too much attention to it.”

And there it was.  I could exhale.  I had to search for it, but I was able to find the evidence to support my personal beliefs.  Even brainiac Frasier fans are more susceptible to ads targeted towards one’s emotions, over ads that are aimed at one’s intellect.  Take this to heart when planning your next opening statement, direct examination or closing argument.

 

Blogger: Matt McCusker