Deliberations

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

Debating “.45-caliber lead cocktails” Instead of Death-Qualified Juries

Florida State Representative Brad Drake recently introduced a bill that would change the State’s death penalty options from lethal injection, to firing squad or electric chair.  Apparently, this would somehow speed-up the infamously long death penalty process.  Drake noted:

“I say let's end the debate.  We still have 'Old Sparky.'  And if that doesn't suit the criminal, then we will provide them a .45-caliber lead cocktail instead...  If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it…  In the words of Humphrey Bogart (sic), 'Frankly my dear, I don't give a damn.'"  (The "sic" is due to his misquote.   Clark Gable said that.)

Deliberations does not take a position on the righteousness of the death penalty.  However, it’s fair to suggest that the most important problem with capital murder trials is overlooked by the media, the public and (obviously) our elected officials: the dangers of death-qualified juries.

Typically, the death penalty debate is couched as a moral fight.  There are those who believe that the ultimate crimes (aggravated murders) deserve the ultimate punishment.  In fact, the U.S. Federal Government and 35 states offer the death penalty as a potential sentence.  According to Gallup, national support for the punishment has not dropped below 60% since the early 1970’s (peaking at 80% in 1995). 

Conversely, a vocal minority has suggested that taking a life should be outside the State’s reach.  This group blends an interesting coalition of those who hold traditionally liberal stances with those who are cut from a Libertarian cloth.  Either way, their quarrel comes down to a moral opposition to the government’s right to impose executions.  The most common argument cites the potential for the death of an innocent person (which is possible given the 15 exonerations by DNA evidence of death row inmates.)

Most people have an opinion on this issue, but they seldom bring up jury selection.  Death-qualification is a process that forces the judge to remove potential jurors for cause if the court believes that the juror could not impose the death penalty or would be highly influenced by it.  In effect, anyone who opposes a death sentence can’t sit on a jury that decides one.  Many attorneys view the death-qualified jury as a significant advantage for the State because it removes a large number of people who might be more open to the defense’s perspective.

In Lockhart v. McCree (1986), the Supreme Court found that the Constitution does not prevent death-qualification.  The Court did not believe that “opposition to the death penalty” created a “distinctive group” whose exclusion would endanger a “fair cross-section” of the jury pool.  It should be noted that according to Gallup, 75% of the public was in favor of the death penalty in 1986. 

Today, 61% of Americans favor the death penalty.  This also means that 39% oppose the measure.  Moreover, this proportion changes greatly as one moves from jurisdiction to jurisdiction.  In many urban populations, it’s safe to say that the majority is likely opposed to the death penalty.  This would suggest that most of that community would be unqualified to answer the public’s gravest question: life or death for a fellow citizen. 

The potential side effect of removing fruitful debate from our most dire deliberations is troubling.  Our jury system depends on a robust discussion from a random (yet unbiased) cross section of the community.  Voir dire is intended to eliminate prejudice, not stack the deck.  If the death penalty cannot be decided by a fair jury, then we must ask ourselves whether it is worthwhile by our measure of law (not our measure of morality).

Representative Drake is focused on the wrong question.  Method of execution is simply a means to determined end.  Debating the morality of the end is equally wasteful, as two people cannot negotiate morals.  Instead, the question should be focused on integrity of the process.  Whether supporting or opposing the death penalty, we all agree that these cases deserve the most impartial jurors available.

Blogger: Matt McCusker

 

Defending Corporate America In Court: Bigger Is Not Better

As Wall Street zombies block the Brooklyn Bridge, the American public is struggling with an acute case of Dissociative Identity Disorder.  (*Note: Possibly, my best opening line ever.)  We don’t trust big corporations, but we need them to create jobs.  We don’t trust big government, but we need it to protect us from the corporations.  However, the many bailouts since 2008 have suggested there may be some connection between big government and big corporations (he said sarcastically).  Small local companies seem to have genetic immunity to our vitriol, but who can tell what is small anymore (see Starbucks’ 15th Ave Coffee & Tea).

The public (a.k.a. your jury), seems to be going through a phase where bigger is not better.  As a result, companies will often be entering the courtroom carrying very heavy and expensive baggage.  (Think Eva Gabor in Green Acres.)  This presents attorneys who represent large entities with a quandary: How do I overcome the “bigger” bias?

Marissa Alkhazov sets the stage in her blog entitled “The Top 5 Misconceptions Juries Have About Insurers.”  Insurers are like traffic cops, no one likes them until they need them.  The media caricature of an insurance company is often the most vivid image in a juror’s mind.  This is a problem that also plagues other industries like banks, oil companies and big pharma.  In theory, jurors should dismiss these mental images.  In reality, that is asking the impossible.

The first step in combatting this bias is voir dire.  Those whose judgment is particularly vulnerable to emotional clouding should be spotted and dismissed for cause.  (Why waste a peremptory?)   This can only be accomplished through carefully designed and executed questioning with follow ups. 

Secondly, the company must create a connection with the jury.  Many attorneys use blunt-force humanization.  For example, “This Company was founded in 1902 by Cletus Goodfellow with a few dollars and a dream.”  However, mock trial research often demonstrates that jurors see this is as an overt attempt at manipulation.  Instead, the best humanization comes from an actual human: a well-prepared witness.  Creating abstract emotional connections with a company brand is very challenging in court.  Creating a sympathetic connection with a person testifying on the stand is much easier.

Finally, focus on the story, not the characters.  If framed appropriately, jurors will be discussing the questionable actions (not actors) on the other side.  Your narrative and themes will keep people centered on the job of a jury: to decide a lawsuit, not to judge a beauty pageant.

Blogger: Matt McCusker

 

Legalese After-Math: When Jurors Forget to Carry the One

The Indiana Court of Appeals recently ruled that a plaintiff was not entitled to several hundred thousand dollars that the jury allegedly thought it was awarding (but didn’t).  According to a juror’s affidavit, the group became confused during the deliberation process and accidentally lowered the dollar figure.  In addition to being bewildered by the jury instructions and verdict form questions, the jury had to request multiplication help from the judge in open court.  As a result, they actually awarded $128,172, instead of the $464,472 that was claimed to be the intended award. 

Some might view this as another opportunity to slam the intelligence of juries or make a wisecrack about those who are not smart enough to get off jury duty.  After all, who could possibly misunderstand something as simple as a verdict form?

However, those of us non-attorneys who actually see verdict forms might have a different response.  Jury instructions and verdict forms are written by experts in law that are fluent in legalese.  Often, attorneys will battle over small wording changes that are vital to the legal arguments, but far above a typical juror’s head. 

This is not to suggest that the jurors are stupid.  I’m sure that a juror who works in nuclear science or car mechanics would be able to write instructions that would easily perplex the average attorney.  The issue is experience, not intelligence.

Much like speaking a second language, it is easy to take the meanings of words and phrases for granted.  Litigators can attest that even something as simple as the burden of proof can often be confused by jurors. 

There are no statistics that accurately convey how frequently juries come to verdicts based on misunderstandings of the verdict form or instructions, but anecdotal mock trial evidence would suggest a much higher rate than anyone would be comfortable with.  The question is: What can be done to help?

The answer is to start working on the verdict form early.  As this article points out, attorneys often focus on the jury selection with great intensity and leave the verdict form as a loose end to be tied.  Great thought must be put into the verdict form, but this is not strictly about legal strategy.  It is also about simplicity.

Much like speaking to a Spanish 101 student, time and explanation are vital.  Try to use as many basic words as possible.  When big words are required, be sure to explain the meanings with little words that the student already knows.  Most importantly, don’t add complexity where it is unnecessary.  The result will only be frustration and eventual exhaustion.

Gracias.

Blogger: Matt McCusker

 

A Juror Reminds Us That The System Works

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country.  (Apparently, only incite-ful jury pieces need apply.)  The title of the column was “I voted to send another brother to prison.”

Mr. Fletcher is a black man (as was the defendant).  Mr. Fletcher is a journalist.  Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening.  Most importantly, Mr. Fletcher was the foreperson.

To some prosecutors (and armchair lawyers), this would be a situation that demanded an immediate plea deal.  However, that decision would have been based on an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Worse, it would assume that the prosecution’s presentation would be so inept and disjointed, that it would be unable to overcome any juror predilections.

Instead, the State chose to present a compelling case and let the jurors decide.  As Mr. Fletcher noted:

“The gunshot residue was big, but no piece of evidence offered the clear cut satisfaction supplied by ‘CSI,’ ‘Bones,’ ‘The Closer,’ or ‘Criminal Minds.’ In our real world case, witnesses' views were obscured by darkness, the handgun had no incriminating finger prints and the (video) footage was crap.”

He continued…

“When I entered the deliberation room, my gut told me that we were headed for a hung jury. But as we kept reviewing evidence, re-reading the jury instructions on the law and talking about our positions, more of the jurors began to reach the same conclusion: Boyce fired the gun.”

Despite the harrowing cries of incompetence from the public and blogosphere, this is the typical process that justice follows in our system.  As this National Center for State Courts research indicates, hung juries are rare.  They are the exception, not the rule.  

After the trial, Mr. Fletcher did research on the newly convicted defendant.  He discovered that the man crying like a baby in court was no angel.  This put Ed Fletcher’s mind at ease:

“Today, I feel much better about our collective decision. Freed from court instructions not to do any research, I now know that Boyce's record stretches back to 1999 and includes a murder charge that was dropped in 2003, two separate plea deals on spousal abuse and a 2005 plea deal on an assault with a deadly weapon charge.”

I would argue that this is the perfect example of our system at its best.  Mr. Fletcher’s eyes presumed the defendant’s innocence from the start.  His conviction was based on the prosecution’s presentation of evidence of the crime, not an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Sadly, it is the exception, not the rule that most of us remember.

Blogger: Matt McCusker

 

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row.  However, an event like the Casey Anthony acquittal is an extraordinary occurrence.  It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank.  Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system.  As a result, I am centering on Ms. Anthony’s case again in this blog.  Next week: YouTube’s most popular furry animal video.)

Watching cable news, the closest comparison to this trial (by consensus) is the acquittal of O.J. Simpson.  However, imagine explaining this analogy to a man who had been trapped on a desert island for the last 10 years (let’s call him Mr. Robinson).  Mr. Robinson clearly remembers the O.J. trial.  It was the public downfall of an American hero.  A Hall of Fame football star who was building an acting career was accused of a gruesome double-murder in the middle of one of Los Angeles’s wealthiest neighborhoods.  Complete with an on-air Ford Bronco chase and an all-star legal team, this trial (and acquittal) was hard for anyone to forget.

“Tell me about Casey Anthony!” Mr. Robinson asks you with great anticipation.  “She must be a celebrity who did something really bad to merit ‘O.J. level’ attention.”  Then (almost embarrassedly so), you must explain to Mr. Robinson that Casey Anthony was simply an unemployed woman living part-time with her parents who was accused of killing her young child in a middle-class Orlando suburb and not reporting it for a month.  She was not famous and in the terrible annals of child murders, this was not a remarkable cause of death. “Oh.” Mr. Robinson replies quizzically. You add enthusiastically, “There were photos of her dancing in a night club!” Mr. Robinson thinks for a moment and then adds, “Times have certainly changed since I have been away.”  You have no retort.

On the afternoon of July 5, 2011 a metaphorical nuclear bomb exploded in the State of Florida.  Hyperbole, you say?  Probably.  However, it’s difficult to describe the massive reaction to such an unexpected verdict in the Anthony case.  The vitriolic fallout from the public that has arisen from this verdict has been something that caused massive damage to the public’s faith in the justice system and will likely linger for years.

In fact, it could be argued that the greatest victim of the Casey Anthony trial (obviously second to Caylee Anthony) has been the reputation of the American jury system.  Public outrage (fueled by a litany of former-prosecutor TV talking heads) has declared jurors too stupid to be trusted with important decisions.  Debates have raged on the need for more judiciary discretion or “professional jurors.”  If mental deficiency was not the cause, many media experts have suggested that the dreaded “CSI Effect” blinded the jurors (see here for my blog obliterating the CSI Effect).  Without doubt, the sales of pitchforks and torches have skyrocketed this July.

It is here that we come to a crossroads between our legal code and one’s moral code.  The legal code is a set of rules that we live by.  The legal code says that the prosecution must prove its case beyond a reasonable doubt, and Casey Anthony has no requirement to even put up a defense.  One’s moral code says that any mother who doesn’t report a missing child is lacking and likely guilty of wrongdoing.  One’s moral code may wish to punish aberrant behavior (like nightclub dancing) or perpetual lying and assume that these are symptoms of murder.

History has shown us the hazards of blending one’s morality with a justice system. Examples include:  feudalism (land owner morality), monarchy (the king's morality), the inquisition (the church’s morality), fascism (the dictator's morality) and McCarthyism (the witch hunter’s or lynch mob's morality).  

Our system is not perfect, but we tie a blindfold around Justice’s eyes for a reason.  It helps us to find a result determined by law, not morality.  In fact, a rising number of countries are actually turning to the jury system in criminal matters because of rampant judicial corruption.  Hopefully, one murder trial in Florida will not be enough for others to rethink a system that the rest of the world is learning from.

Blogger: Matt McCusker

 

The World's Most Expensive Real Mock Trial Points to Simplicity

“The problem was with some of his explanations. It reminded me of a little kid who gets his hand caught in a cookie jar. He says, ‘Mommy I wasn’t taking the cookies. I was just trying to protect them and to count them.’”

— Richard Kling, professor at Chicago-Kent College of Law who watched much of the trial, on Blagojevich’s testimony.

The jury is back and Blago is guilty on 17 counts.  The great State of Illinois can now proudly list four of its governors as convicts.  This begs the question: What changed the second time around?

I would argue that the first major factor was the apparent lack of a holdout juror.  The individual who held up the panel at the first trial was lauded by some and called a kook by others.  It takes a particular personality to stand up to a group and hold one’s ground, however, there is also a fine line between impassioned defender and obstinate fruitloop.

In prior posts, I have made the case that holdouts are most often created by confused and overly detailed case presentations.  It is much more difficult to stand against the group when the majority is well-armed with a solid understanding of the facts, the story and the law.

So, I believe Blago (part one) was the world’s most expensive mock trial.  In Blago (part two), the prosecution presented a far more “streamlined” case that did not get hung up on the tiny details.  As this article outlines, the prosecutors seemed to have learned from their mistakes and took a “less is more” approach.  This was a smart move and resulted in a storyline that kept focused on Blago’s actions. 

"It's all part of the streamlining decision. We're gonna keep it straight forward. We're going to keep it simple, we're going to go to the heart of the matter. Let's talk about selling the Senate seat, the sexiest stuff right up front so the jury makes up its mind early on that this guy is a crook, and the rest of the stuff will sort of fall into place behind that," said Prof. Leonard Cavise, DePaul college of Law.

Having facilitated many mock trials and focus groups, I can attest that this is the most common lesson learned from trying a case in front of mock jurors.  Attorneys often find that “if everything is important, then nothing is important.”  Unfortunately for Blago, the same was not true for his defense storyline. 

Blogger: Matt McCusker

 

Juries get it right 95% of the time?

As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias.  However, I have also run into friendly debates with judges who are not thrilled with my line of work.  These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it.

The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)…

“Juries get it right 95% of the time.”

This has become a very common turn of phrase and is often cited as proof of our legal system’s solid design.  However, I would like to ask a few questions that put this gem of wisdom on the hot seat.

1)     Who decides the definition of right?

I sincerely believe that every case with a verdict has at least one side which believes the jury did not get it right.  By my math, that puts us somewhere around 50%.  If we add in all of the verdicts that anger both sides and multi-party lawsuits, I believe our number of discontent rises even further. In fact, I would suggest that a significant majority of parties (and their attorneys) think the jury got it wrong.

 2)    Where is this 95% statistic coming from?

So, if it is not statistically likely that this 95% number comes from the parties or their attorneys, where does it come from?  My best guess is that this phrase originated with the group that most often uses it: our judges.  No doubt, as neutral observers of the entire process, no one else would have the required knowledge to offer such an opinion.

 3)    What does it mean when the most powerful person in the courtroom thinks juries get it right 95% of the time?

Here is where I get a little nervous.  The vast majority of my experiences with judges have been great.  However, it is disconcerting that so many judges’ opinions about the case are in line with the juries they oversee.  It leaves me with three possibilities (or a combination thereof):

 a)     In 95% of cases, there is a clear winner and loser that most people would agree on.  In fact, this decision is so clear, that juries and judges are consistently on the same page about verdict and damages.

 b)     Judges tend to forget about the cases where they disagreed with the jury, so the 95% number is based on hindsight bias.  Who wants to remember the cases one oversees where the wrong parties (in your opinion) are celebrating?

 c)      Those who believe “juries get it right 95% of the time” are subconsciously helping the jury agreement with their own opinion.  Saying this may get me in a little hot water with some of the judiciary.  However, I believe it is something that should be talked about.

The American Society of Trial Consultants’ (ASTC) has Professional Standards which prevent members from publishing win/loss records.  There are several reasons for this, but one of the most powerful is the inability to define “wins” and “losses.”  Is a plaintiff verdict for $1 million in a case that was supposed to be worth $10 million a win or a loss, and for whom?  I suggest the definition of “right” falls into a similar category.

Blogger: Matt McCusker

 

“Once Upon a Trial, in a Land Far, Far Away…”

 How many of you decided to read this blog post because the title suggested that I was about to tell a story?  What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener?  Would you still have been as interested?  (I’m betting not.)

As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories.  For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds.  Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past.  In essence, stories are our memory.

Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case?  Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind?  How often is “the story” at the base of every major strategic maneuver in trial presentation?

I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told.  Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline.  The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.

A recent study out of Princeton University published in Scientific American demonstrates this exact point.  Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling.  (Think Vulcan mind-meld, but without the physical contact.)  However, if the listener does not understand the story, then the bond is broken and the listener disengages.

A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert).  In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects.  People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.)  While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.

The law can be a foreign language to many jurors.  Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words.  (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them.  Without this contextual guidance, the words will often be discarded and forgotten.  I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more.  Then, before you know it, they are hooked.

THE END.

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

 

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

“CAN’T WE ALL JUST GET ALONG?”: How Juries Get Hung

 When creating the story of a hero, three things are generally needed:

1)      A righteous cause that we can get behind;

2)     An individual who is facing seemingly insurmountable odds; and

3)     A hard-fought struggle, that may or may not end with success.

This formula is imbedded in the human consciousness and can be traced back to the times of Homer and Plato.  Once you start looking for it, a familiar story structure begins to appear everywhere (from Spartacus to Serpico to Twelve Angry Men).  It’s no wonder that when we think of a hung jury, many of us assume that there was one person who heroically refused to abandon their convictions and submit to the will of the collective.  (This is an especially common caricature in death penalty cases with hung juries.)

Certainly, a brief review of the media reports about deliberation deadlocks supports this gut feeling.  While not always portrayed as heroes, the jury holdouts are often painted as victims of the group.  Some examples include:

    One Juror Between Terrorist and Death

Holdout Jurors Can Put Legal System to the Test

Save the Holdout Juror from the Internet

However, jury research suggests that “a Holdout” is often less of “a Lone Hero” and more of “a Captain going down with the ship.”  I cited the National Center for State Courts project in Part One of this series because it is a fantastic resource on hung juries.  While it’s true that the project depended on an amalgam of sporadic studies over the last 50 years, its research corroborates the suggestion that hung juries often begin with a split group that is whittled down to one or two holdouts. 

Kalven and Zeisel (The American Jury) performed extensive research on splits during their historic work in 1960s and 70s. They discovered that hung juries typically give much weaker ratings to the “power of the evidence” and the “clarity of the law” than unanimous juries.  When calculating rating strength, the jurors’ scores were set to a baseline of comparison with ratings provided by the judges and attorneys involved the case.  In other words, juries were more likely to be hung when they started out unsure and when there was one person in the group who refused to move off of their initial (often weak) position.

Additionally, hung juries are more common in deliberations that begin with a “verdict-driven” approach as opposed to an “evidence-driven” approach (see Inside the Jury).  It is important to note that if individuals avoid locking into a position early, the group is more likely to find consensus.  I find it a sobering thought that something as simple as instructing jurors not to start off with a verdict polling could have such dramatic effects on group cohesion.

Not surprisingly, the story of “the Holdout” becomes less compelling when it is framed as one stubborn goat who can’t concede to a verdict that everyone else has agreed on.  With apologies to all you “rebels” out there, research shows that a group of people is often better at decision-making than an individual.  Blinder and Morgan demonstrated this in Are Two Heads Better Than One?  For every Einstein or Copernicus out there who is ready to prove us wrong and shift our paradigm, there are a thousand crazies who are adamant that aluminum foil is the best defense against mind control. (Everyone knows this is an urban legend, anything less than a titanium alloy is useless.)

The research suggests that holdouts typically thrive in confusion.  However, these obstinate individuals are made far less powerful when a case presentation is able to arm more rational jurors with the themes necessary for a fruitful deliberation.   

In the next installment, I will examine the mind of the holdout and methods of spotting them.

Blogger: Matt McCusker

PART 1: HOW THE FRENCH’S SHOCKING BEHAVIOR RELATES TO JURY DYNAMICS

How the French’s shocking behavior relates to jury dynamics

 

 Last week, TV viewers in France saw a replication of Stanley Milgram’s shocking 1963 experiment  with a 21^st century twist: Reality TV.  Much like the original version, participants on  "The Game of Death" were asked to progressively increase the voltage of electric shocks administered as punishment to an unknown person. The recipient of the shock was obscured from vision, but the screams of pain were clearly audible (and eventually ceased due to supposed unconsciousness or death).  Unbeknownst to the shockers, the shockee was an actor who was faking it.

The 80 contestants (shockers) were told that this was a pilot game show, so there was no money to be won.  Everyone was asked to sign releases indicating that they would be willing to shock another person for incorrect answers.  Unlike Milgram’s study, this whole process was being conducted in front of TV cameras, a very enthusiastic live studio audience and directed by an eager game show host.

Those who know Milgram’s work will not be surprised with the results: 80% of the contestants went “all the way” and shocked the man into unconsciousness. However, as a jury consultant, I am more interested in the 16 people who said “No!” and ceased pushing the button.  The people who went against the group, despite intense social pressure to do otherwise.  In the legal world, we call these people “The Holdouts.”

This blog series will examine “Hung Juries” and “Holdouts” in three parts:

1)      Hung Juries and NFL Ties: Both are Unsatisfying and Rare

2)    “Can’t We All Just Get Along?”: How Juries Get “Hung”

3)     A Peek into the Mind of a “Holdout Juror”

(Part 1) “Hung Juries” and NFL Overtimes: Both are Unsatisfying and Rare

As terrible as a loss feels, ending in a tie (or being forced into a redo) can sometimes feel worse.  Granted, this depends heavily on your goals (excuse the pun).  Some criminal defendants and winless NFL teams ('82 Colts) may see a tie as a victory.  However for many, a draw is synonymous with a wasted effort.  Given the emotions involved, a hung jury can often epitomize this feeling.

How often do hung juries occur? Due to a lack of access to state court records, there have been a limited number of studies investigating the percentage of “hung juries” (and most have been in the criminal arena).  Research has suggested rates varying from 1% to 12%.  Much of this variability is based on jurisdictional changes and differing working definition of “hung” (one count, all counts, the most serious count, etc.). 

The National Center for State Courts (NCSC) completed an ambitious account of hung juries in 2003.  Data on Federal civil and criminal cases provided by the Administrative Office of the U.S. Courts (1980 to 1997) suggested a very low, consistent and stable hung jury rate.  Over the seventeen year span, Federal civil juries were hung less than 1% of the time and Federal criminal juries less than 3%. 

Data collected from State criminal courts in 1996-1998 by the NCSC was very different.  These numbers suggested a much higher hung jury rate and significant variability.  While the national average calculated was 6.2% (over 30 counties in 13 states), the percentages ranged from a low of 0.1% in Pierce County, WA to a high of 14.8% in Los Angeles County, CA.  To throw more confusion into the mix, an analysis of all 62 counties in the State of New York found an average hung jury rate of 2.8%.

I know percentages can be misleading, but this data confirms our belief that hung juries are rare.  This begs the question: What causes these rare occasions when agreement is impossible to find? Jeffrey Rosen wrote a piece in The New Yorker ("One Angry Woman: Why Are Hung Juries on the Rise?") suggesting racial divides were the primary root of jury nullification (a popular theory). Part 2 of this series looks at this and other theories/research investigating why juries hang.   

Look for the next installment, (Part 2) “Can’t We All Just Get Along?”: How Juries Get Hung, to arrive within the next week.

Blogger: Matt McCusker

Shoot-out at the OS Corral (v1.2)

There are a lot of sayings out there that warn us against making the same mistake twice:  

“The definition of insanity is trying the same thing over and over again, but expecting different results.”

“Don’t bang your head against the wall.”

“Those who fail to learn from history are doomed to repeat it.”

And so on…

Despite this sage advice, many of us continue habit patterns that have been exposed as unhelpful. I am left wondering, why are changes so difficult to make? 

A potential example of this comes from a recent verdict against Microsoft in an East Texas courtroom.  Two gunslingers met for a rematch over a high-stakes patent case.  Douglas Cawley represented the plaintiff (VirnetX), while Matthew Powers (an IP Top Gun) again wore the defense hat for Microsoft. As Zusha Elinson of Law.com writes: 

“The two have shown contrasting styles, according to lawyers who have faced them: A tall Texan, Cawley speaks slowly with a slight twang and comes off as a gentleman. Powers has an erudite and sometimes imperious style.” 

Less than a year ago, on a different high-dollar patent case against Microsoft, the same two lawyers fought it out in the same courthouse with the same judge.  The verdict was once more in favor of Mr. Cawley’s client (a Canadian software company called i4i).

I know few details about these cases, and would never suggest that two instances make a pattern.  However, I did see some quotes from jurors who spoke with Joe Mullin of The Prior Art after deciding last year’s battle ( i4i v. Microsoft):

“I expected Microsoft to have done a better job…”

“We all thought if this was that big a deal to Microsoft, they might have had some of their more executive-type people present.”

“It's big business. They just don't care.” 

“…if I was Bill Gates, and had $200 million on the line, I would want to be present.”

As Mr. Mullin’s recounts a conversation with one juror:

“…they ‘both seemed really intelligent.’ But… the jury found Cawley ‘much more genuine and sincere.’ Powers…‘came across as being cocky, and kind of always on the defensive about everything. He made several low blows...’”

The first trial’s result hinted that Microsoft was having difficulty connecting with the jurors of East Texas.  While it’s true that this venire has often been labeled as a plaintiff’s dream for IP cases, I would be curious to know how much presentation strategy was altered for the VirnetX case as a result of the prior loss.

In honor of Anne Reed’s new position at the Wisconsin Humane Society, I end this inaugural blog post as it began, with a common turn of phrase: "Don't let the tail wag the dog."  

Our habit patterns (conscious and subconscious) make life easier and predictable.  Without habit patterns, we would have to consciously choose every decision we make. (Is it brush-rinse-spit or brush-spit-rinse?).  However, these habit patterns should not become “the tail that wags us” and inhibits us from taking risks and discovering new habit patterns that are even more effective than the old.  There is no panacea that will work for every case.  Always remember the benefits of “trial and error.”

Thanks Anne, it’s an honor to continue what you began.

Blogger: Matt McCusker

Supreme Court Term Just Got Less Interesting

As the stock market and the presidential campaign get even more interesting, in an anxious and painful sort of way, at least jury watchers can pay a little less attention to the Supreme Court term.  The Court refused today to decide two cases involving jury issues.  From Scotusblog:

Among the more significant issues the Court turned aside, by simply denying review, were the constitutionality of convicting an individual of a crime by a non-unanimous jury verdict (Lee v. Louisiana, 07-1523), [and] the constitutionality of jurors’ using a Bible during secret deliberations on whether to sentence a convicted individual to death (Lucero v. Texas, 07-1429)[.]

Scotusblog's detailed rundown on Lee v. Louisiana is here, and and there's a briefer synopsis of Lucero v. Texas in the list here.  

Still murky, still clear

The two denials leave one question as clear as ever, and the other as murky as ever.  The denial in Lee means it's still constitutional under Apodaca v. Oregon for states to allow criminal convictions by less than unanimous verdicts.  Mr. Lee had hoped to convince the Court's strict constructionists to return to the unanimous jury the founding fathers might have expected; others will likely keep trying.

In Lucero, a Texas jury answered questions in a way that mandated the death penalty after the foreman read this passage from Romans 13:1-6 aloud:

1Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. 2Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. 3For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. 4For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. 5Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience. 6This is also why you pay taxes, for the authorities are God's servants, who give their full time to governing.

The jurors all submitted affidavits saying the reading didn't change their verdict, and the trial judge denied an evidentiary hearing.  The Texas Supreme Court affirmed.  The Bible comes up in the jury room more often than you might think, and the Lucero denial leaves judges to handle the issue case by case.

Judges, prosecutors and criminal defense lawyers, weigh in:  would a ruling in either of these cases have made a difference for you? 

____________________

Related posts here: 

• The Pros And Cons Of Death:  The Bible In The Jury Room. (Probably the most searched post I've ever written; an amazing number of people run searches for the "pros and cons" of the death penalty.)
• The Unanimity Requirement In Real Life
• The Details Of Unanimity:  Classroom And Courtroom
• The Long Way To Unanimity

(Photo by Luis Fabres at http://www.flickr.com/photos/lfabresm/2368767518/; license details there.)

 

When Deliberations Fail

Why does a jury have to be a group of six or twelve instead of say, one person?  Because groups make better decisions than individuals, most people would say.

And they do make better decisions -- sometimes.  Except when they don't:

Much of the time, both private and public groups often blunder not in spite of deliberation but because of it. After deliberation, companies, labor unions, and religious organizations often make bad decisions; the same point holds for governments.

That's Profs. Cass Sunstein and Reid Hastie talking, the University of Chicago's law school and business school respectively.  Their paper "Four Failures of Deliberating Groups" has just been posted on SSRN.  Jury fans need to understand this paper, and jury doubters will love it. 

"The truth played a role, too . . ."

Drawing on research from psychology and business as well as a few studies of jurors, Sunstein and Hastie patiently list the ways groups can go wrong.  Mistakes begin at the simplest level, when an individual who has the facts right cannot convince a mistaken majority:

[A] comprehensive study has demonstrated that majority pressures can be powerful even for factual questions to which some people know the right answer.  The study involved twelve hundred people, forming groups of six, five, and four members. Individuals were asked true-false questions involving art, poetry, public opinion, geography, economics, and politics. They were then asked to assemble into groups, which discussed the questions and produced answers. The majority played a substantial role in determining each group’s answers. The truth played a role, too, but a lesser one. If a majority of individuals in the group gave the right answer, the group’s decision moved toward the majority in 79 percent of the cases. If a majority of individuals in the group gave the wrong answer, the group’s decision nonetheless moved toward the majority in 56 percent of the cases.

"Much garbage out"

And it gets worse.  Groups can not only pick up the errors of individual members, but they can make them bigger:

For purposes of assessing deliberation, a central question is whether groups avoid the errors of the individuals who comprise them. There is no clear evidence that they do, and often they do not—a vivid illustration of the principle, “garbage in, garbage out,” in a way that mocks the aspiration to collective correction of individual blunders. In fact, individual errors are not merely replicated but actually amplified in group decisions—a process of “some garbage in, much garbage out.”

These aren't tort reformers gathering research to support a cause, or at least I don't think so.  The paper hardly mentions juries, focusing more on decisionmaking in the business world -- and Sunstein clerked for Thurgood Marshall and is campaigning for Barack Obama.  The fact is, they're right that these errors can and do happen.  Watch a few mock trials and you'll quickly observe the "four failures" Sunstein and Hastie describe:  "amplification of cognitive errors," "cascades," "group polarization," and "over-weighting common knowledge." 

If you value juries, and most people do, the value of this paper is the way it dramatizes a skill that all lawyers need and most don't have.  You need to be able to explain how juries can make good decisions:  how to disagree with respect, how to catch each other's errors, and so on.  It isn't easy, but Sunstein and Hastie will soon offer help; this paper is a chapter from their upcoming book, called Smart Groups.

_______________

Note:  Thanks to The Situationist for flagging this paper.  The Situationist is relevant to jury watchers even when (maybe especially when) its topic is far from the courtroom; if you ever decide to reduce the number of blogs you read, you should probably drop mine before you drop theirs. 

(Photo by Julie Berlin at http://www.flickr.com/photos/jule_berlin/839245545/; license details there.) 
 

The Long Way To Unanimity

The California Court of Appeals opinion in People v. Carrasco on Friday didn't quote this part, but it's easy to imagine.  The jury has just come back guilty on an attempted arson charge.  A California defendant can be convicted only by a unanimous jury, so the judge polls the jurors:

The Court:  "Juror No. 2, is this your verdict?"

Juror No. 2:  [no response]

The Court (maybe looking up sharply, perhaps a little louder):  "Juror No. 2, is this your verdict?"

Juror No. 2:  [after a pause] "Yes."  And she starts to cry.

Cross-examination by the Court:

Not the hearty affirmation the judge was hoping for.  So he sent the other jurors out of the courtroom and, before accepting the verdict, talked things over with Juror No. 2.  This part of the transcript is in the opinion, and you have to read all of it to understand just how much work it took to bring this juror into the fold:

“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?

“JUROR NO. 2: No.

“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?

“JUROR NO. 2: Yes.

“THE COURT: Okay. So that is not your true intent to vote guilty for -- I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?

“JUROR NO. 2: (No response.)

“THE COURT: Go ahead and explain to me that -- nobody will know about, the other jurors won’t know about our discussion here -- but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.

“JUROR NO. 2: I had reasonable doubt.

Stop there, and there's no verdict.  But it didn't stop there.

“THE COURT: Okay, and in spite of the reasonable doubt, you came back with a verdict of guilty. [¶] Tell me what went on in the jury room, basically as to why you changed that reasonable doubt to a verdict of guilty.

“JUROR NO. 2: I guess, you know, when they were saying it was a felony, I wasn’t aware they were felony charges. That’s what made me start crying.

“THE COURT: Well, the question is not whether or not they are felony charges or any other charge; that’s not an issue. [¶] The issue is whether or not, based upon the evidence and everything you heard, you felt the defendant was guilty, irrespective of felony or what. [¶] The purpose of a jury is to decide the issue of guilt based upon the evidence and based upon the standard of reasonable doubt.

“JUROR NO. 2: Uh-huh.

“THE COURT: So I want to know -- your vote was for guilty.

“JUROR NO. 2: Yes.

“THE COURT: And now are you having second thoughts because you gleaned that the charges are a felony?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: Well, I believe she has indicated that her findings were for guilt and --

“[DEFENSE COUNSEL]: Your Honor, I have to confess I’ve never had this situation before.

“THE COURT: I don’t think any of us have had this, and I want to be satisfied. [¶] First of all, this is your own personal decision; nobody in the jury room during deliberations put any pressure on you?

“JUROR NO. 2: No.

“THE COURT: That answer is no?

“JUROR NO. 2: No.

“THE COURT: Okay, so the reason why you are now somewhat equivocating on your vote is because you believe -- or you have reason to believe that the charges constitute a felony; is that right?

“JUROR NO. 2: Yes.

“THE COURT: But otherwise, based upon everything that you heard, all the evidence and the instructions the court gave you on the law, the argument of the attorneys, you were satisfied the defendant was guilty beyond a reasonable doubt? Going that far?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: And that was the only thing she was asked to do. [¶] . . . [¶]

“[DEFENSE COUNSEL]: Your honor, are we allowed to inquire at all?

“THE COURT: I don’t think so at this point in time, Ms. Williams [defense counsel]. . . . That’s something we’ll have to explore later, I think, if that should arise. [¶] But just so that I have an understanding, because this may or may not lead to something else that doesn’t per se involve you, your concern now is and your hesitation now is that the defendant may have been charged with felonies?

“JUROR NO. 2: I wasn’t aware of that. [¶] . . . [¶]

“THE COURT: Well, don’t forget when I instructed the jury, I instructed the jury that they are not to consider the issue of punishment or penalty; that issue is solely for the court, depending upon many factors, not only the nature of the crime, but various other factors. So that’s something you’re not to be concerned with. [¶] I want to be satisfied that your vote for guilt as to count 2, the resisting arrest, if you will, or detention by Officer Macias; count 3, the same charge as to another officer; count 4, the attempted arson, if you will, that you were satisfied that based upon the evidence you heard, again, and the instructions on the law that I gave you, the arguments of the attorneys, you were satisfied that those charges have been proved beyond a reasonable doubt; is that correct?

“JUROR NO. 2: Yes.”

Really?

Was that a real "yes," even though the first one wasn't?  Or was Juror No. 2 trying to say that Carrasco sounded a lot more like a mentally ill man on a self-destructive mission than like a real arsonist?  (The arson incident started when Carrasco walked into a Los Angeles County sheriff's station and asked the first deputy he saw, "Do you have change, bitch?"  Eventually Carrasco challenged deputies to "Go ahead, bitch, fucking shoot me," and was subdued only by at least five deputies and pepper spray.  Then they found gasoline and rags in his duffel bag.)

Carrasco's lawyer hadn't objected to the judicial cross-examination, and he didn't argue on appeal that the verdict wasn't unanimous.  Instead, the argument was that the judge should have granted defense counsel's request to contact Juror No. 2.  The appellate court upheld the trial judge 2-1, saying there was "no showing" of juror misconduct, and that defense counsel should have "proposed an additional line of inquiry" to the trial judge, even though she'd been shut down when she asked to inquire herself.

Only in the dissent do you find the words you're looking for here:  "I think that at this point the juror had made it adequately clear that she did not intend to find the defendant guilty."  Defense counsel didn't need to object, said the dissenting judge; although no California case has yet dealt with the issue, "there is every indication, in my opinion, that a less than unanimous verdict is reversible error per se."

______________________

Notes:

1. The majority opinion does offer a little help to future defense counsel in this position, in a long Footnote 4: "When Juror No. 2 then stated, 'I had reasonable doubt,' better practice might have been to send the jury back to the jury room for further deliberations."
2. Should this opinion somehow leave you in need of further convincing to poll the jury on every guilty verdict, every time, see Mark Bennett, here among lots of other places.

(Photo by Arthit Suriyawongkul at http://www.flickr.com/photos/arthit/1057392143/; license details there.)  

Late For Uma Thurman

"If something happens and I post on it in 45 minutes, I'm timely.  If something happens and I post on it the next day, it's kind of stale." 

So (or approximately so) said Mark Herrmann of Drug And Device Law Blog today, when I had the honor of speaking on a panel with him at the State Bar of Wisconsin's annual convention.  Our topic was blogs and blogging, and we were joined by charming Bonnie Shucha of WisBlawg.

I secretly winced when he said it, because I knew my post today would be stale.  It was yesterday that Wall Street Journal reporter Emily Steel wrote about the jury deliberations in the Uma Thurman stalker trial this week -- from her privileged vantage point as a deliberating juror herself.  I saw it in the WSJ Law Blog, and put it in my news feed right away, but I didn't get a post up. 

Different posts for different folks

Now, of course, the story is all over not only the blogs but the news wires, with its twin attractions of eavesdropping on a jury and Uma Thurman, for heaven's sake.  Different blogs had different perspectives, and they're all good:

--Scott Greenfield at Simple Justice got to it right away, of course.  He highlighted the part I keep harping on here:  there were two lawyers on the jury, and a comment from one of them made a big difference.  "So much for getting legal instructions from the judge, with the attorneys capable of objecting and preserving," says Scott.

--Jeralyn Merritt at TalkLeft picked up the lawyer's role too, and also caught a media angle.  "Perhaps [Steel] just helped the defendant in a bid for a new trial," she says, since Steel documented the juror who saw (and liked) the courtroom artist's sketches.  "Where would s/he have seen the sketch artist's depictions but in a newspaper?" Jeralyn asks.

--Brad Parker at Where's Travis McGee focuses on the lawyer, but imagines himself in the lawyer's place, and wonders what he'd tell his fellow jurors.  (Where's Travis McGee was a new blog to me; thanks to Blawg Review's Ed. for the tip.)

--It took a nonlawyer blogger to question Ms. Steel herself.  "I'd love to know if she told the other jurors she was a reporter and was writing down everything they said for an article," says Jodi of the MamaPop blog.

(Photo by Brandon Weight at http://www.flickr.com/photos/brandonweight/2267541061/; license details there.)

Hizzoner The Foreman

I don't know why a 1999 New York Times story suddenly showed up in my news feeds, but I'm glad it did, because I missed it the first time.  Rudolph Guiliani, then mayor of New York, spent a week on jury duty in a personal injury case that year. 

Not surprisingly, he was foreman.  Not surprisingly, he was a big hit with the rest of the group.  And not surprisingly, the plaintiff lost.

"No."

The story starts:

As five jurors who heard a personal injury case in Manhattan emerged from State Supreme Court, they had praise for the jury foreman, describing him as a regular guy who came across, in their words, as ''unpretentious'' and ''friendly.''

''You'd expect a man with responsibility for a $30 billion annual budget to always be on cell phones during breaks or talking to aides, but he wasn't,'' said Caleb Silver, 28, a business reporter who served on the jury. ''When we took breaks, he took breaks. When we drank coffee, he drank coffee.''

In more typical get-down-to-business style, the famed foreman, Mayor Rudolph W. Giuliani, used just one word -- no-- in announcing that he and his fellow jurors had rejected a $7 million claim from a man who said that searing shower water had scalded his genitals so badly that it had rendered him impotent.

The rest, equally good reading, is here. 

Like a juror

''I let the other jurors express their opinions first,'' Giuliani told the Times, adding that "his fellow jurors had treated him 'like a juror, not like the Mayor.'"  Likewise, "[m]embers of the panel, which consisted of a corporate executive, a college student, a registered nurse and a lawyer as well as the Mayor, said they were unswayed by Mr. Giuliani's presence."  Maybe so.  But if you think those other people, no matter how distinguished, could have talked the mayor out of the verdict he wanted, think again.

And thus we build our list of guaranteed jury leaders.  So far we have lawyers, sitting legislators, the judge's mom, and now we can add the mayor of one of the world's largest cities.  You can leave any of these people on your jury if you want to.  Just understand:  if you do it, you have a jury of one. 

(Photo (c) 2007 Bill Fish Photography at http://www.flickr.com/photos/protectourprimary/477145883/; license details there.)

Jury Duty Saves A Life

Sure, it's a fundamental bulwark of liberty, the only place in our system where a few ordinary citizens can deny the power of prosecutors, judges, presidents, and legislators.  Big deal, compared to this, from South Dakota's Rapid City Journal:

A juror in a federal rape trial may have saved the life of a fellow juror who was choking by performing the Heimlich Maneuver on her.

The two were part of a 12-person jury deliberating the fate of Jason Pumpkin Seed, 20, after a trial in U.S. District Court last week. Pumpkin Seed of Wounded Knee was charged with aggravated sexual abuse.

The trial began last Tuesday afternoon and went to the jury about 10:20 a.m. Thursday. At 1 p.m., U.S. District Judge Andrew Bogue was notified of a “health situation” in the jury room and called a recess.

A U.S. District Court spokesman said the jurors were eating a catered lunch together when a woman began choking. Another juror performed the Heimlich, which dislodged the food.

An ambulance was called but did not transport the woman to the hospital. However, Bogue excused the woman so she could see a doctor.

Court documents show that the remaining 11 jurors returned to deliberating shortly after 1:30 p.m. and returned a guilty verdict at 4:30 p.m.

In case you're wondering, defense counsel couldn't object to the decision to continue with eleven.  Federal Rule of Criminal Procedure 23(b)(3) says that  "After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror."  I haven't looked for cases on point, but it's likely that a near-death experience over lunch counts as good cause.

(Photo by Donnaphoto at http://www.flickr.com/photos/77043400@N00/2191397098/; license details there.)

Bringing Unconscious Bias Out Of The Dark

Last week I wrote about the troubling study suggesting that "many Americans subconsciously associate blacks with apes."  Commenter Roy Wilson asked for a constructive response:  "Any thoughts about this topic in relation to jury composition as it might affect deliberation?"

I do have a thought -- not an answer, but a thought.  More accurately, Tufts professor Samuel R. Sommers has a thought, explained in his 2006 paper in the Journal of Personality and Social Psychology.  The thought is:  jury diversity.  Prof. Sommers's research suggests that diversity in the jury itself can bring unconscious biases out of the shadows.

Diverse juries, better juries

In the study described in the paper, Prof. Sommers and his colleagues recruited enough people to make up 29 separate six-person juries.  (Unlike many university-based psychological studies, this one used jury-eligible adults from the community, not college students.)  Some of the juries included only white jurors; the rest were composed of four white jurors and two black jurors.  Each jury listened to a Court TV summary of a sexual-assault trial of a black defendant. 

When the groups deliberated about the summarized trial, the diverse groups performed far better.  They raised and discussed more of the evidence they had seen.  They mentioned more "missing" evidence, things they had not seen that they thought would have been helpful.  And they were more willing to mention, and discuss, the possible role of racism in the case.

Discussing what's uncomfortable

Most striking, it wasn't only the black jurors who added to the discussion in the diverse juries.  Instead, the white jurors were more willing to raise and discuss issues when the black jurors were there.  On the topic of racism, for example, Sommers quotes several exchanges from his juries, and concludes: 

Participants in all-White groups seemed surprised at and were made uncomfortable by the mention of racism during deliberations. Perhaps they had given little thought to racial issues to that point in the experiment. True, the defendant was a Black man, but race was not discussed during the trial, nor would a cursory look around the room suggest that such a potentially controversial issue would be brought up during deliberations. Whites in diverse groups, on the other hand, reacted differently. They did not automatically change the topic when racism came up, but rather engaged in substantive conversation about it. Members of diverse groups did disagree while deliberating, at times vociferously, but they devoted time to discussing even polarizing and uncomfortable topics.

It rings true, of course; you've seen it happen yourself.  When you're talking to a person of another race, you're more conscious of racial context, overtones, and issues.  Diversity works like a flashlight.  It may not cure racism, but it can bring racial biases out where we can talk about them.

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Notes:

1. Prof. Sommers has spent the last several years studying race and juries.  I wrote here on his paper on purportedly "race-neutral" peremptory challeges under Batson; his other papers are linked to, in full, on his Tufts bio page.  Thanks to him and Tufts for that.
2. Not surprisingly, diverse juries are also perceived as more fair and legitimate by the public than all-white or all-black juries are.  Northwestern professor Shari Seidman Diamond and Dr. Leslie Ellis (now of TrialGraphix) showed that in their paper "Race, Diversity, and Jury Composition:  Battering and Bolstering Legitimacy," in the Chicago-Kent Law Review in 2003. 
3. So does Batson let you strike white jurors in the name of a diverse jury?  Don't expect a case on point soon, but probably not.  Another obstacle on the Batson collision course.
4. Related posts here:

• Batson, Day To Day
• Another Day, Another Unconscious Bias Study
• A Helpful Way To Think About Race.

(Photo by Dan at http://www.flickr.com/photos/ladnlins/1822774622/; license details there.)

Deliberations On Holiday

I'm taking a blogging vacation for the next two weeks, the better to focus on family and friends as the year ends.  It's an even better time to take a break than I thought it would be:  Corrections Sentencing is doing my blogging for me, reporting an amazing story of jurors who found evidence in the jury room that the police and lawyers for both sides had missed.

I may do a pointer post here and there, and I'll keep flagging "In The News" stories.  (You can subscribe to those, but it's a separate subscription from blog posts.  The feed for "In The News" is here.) 

Happy holidays, and see you in January.

(Photo by Justin Russell at http://www.flickr.com/photos/nightthree/308307526/; license details there.)

A Holdout Juror Relents, And Then Repents

Here's a rare variation on a very common story.  A holdout juror in Florida felt so bad about giving up and joining a guilty verdict that she paid the defendant's fine:

Patricia Klugherz reluctantly voted with other jurors to convict Joyce Buffaloe of making a false 911 call during a late night traffic stop, then she stuck around the courtroom for the sentencing.

The more Klugherz thought about it, the more she felt the police officers were out of line when responding to a black woman who questioned their behavior. And she concluded that Buffaloe called 911 to get help, not to annoy those officers -- as other jurors concluded.

So, the jury's 73-year-old forewoman did something almost unheard of. She gave $220 to the woman she just convicted, enough to cover the fine and court costs.

"She seemed very sincere, she was shaking her head, 'I'm so sorry this happened to you,' " Buffaloe said. "This is the craziest thing."

The gesture left Buffaloe confused but grateful, and Klugherz feeling a little better about a case in which she feels she caved in to other jurors and convicted a woman who did not deserve it.

"It made me feel very guilty that I did it," said Klugherz. "I will always feel like I made a mistake."

The story, in southwest Florida's Herald Tribune, continues here.  Ms. Buffaloe called 911 after officers who pulled her over "cursed at her and pointed their stun gun at her, all while her 8-year-old son was in the back seat."  The officers pulled her from her car and took her to jail; the story doesn't say what happened to the little boy.

How to help a holdout

Holdout jurors give up and give in all the time, as we've discussed.  They sometimes try to make amends by contacting the judge or one of the lawyers, but you don't often -- maybe don't ever -- see them taking the defendant's punishment.  But then few criminal trials end in fines, and even the most repentent juror can't go to prison in the defendant's place.

Advice on this topic is the same as ever:  if you think you may need holdout jurors, teach them how to hold out -- during the trial, not after.  Let them know how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in.  Help them rehearse in their minds how they'll do it, if they need to. 

(Photo by Jean-Etienne Poirrier at http://www.flickr.com/photos/jepoirrier/2043734850/; license details there.)

How To Be Better Looking

Remember that guy you dated in college, whose striking good looks grew less noticeable as you began to see how annoying he was?  Or girl -- you know the one I mean.  New research shows it wasn't just you.  We judge each other's looks not just by hair and cheekbones, but by personality traits.  This is good news if you're facing a jury and your client isn't -- or you're not -- beautiful.

Pretty is as pretty does

The paper is "Personality goes a long way: The malleability of opposite-sex physical attractiveness," by Gary Lewandowski and others, in a journal called Personal Relationships.  There isn't a free copy on line, but you can get the gist from the abstract and the press release. 

The experiment was simple:  take 78 college students, show them pictures of people of the opposite sex, and ask them to rate how attractive the people in the pictures are.  Then wait while they "participate in a distraction task." (I just love social-science writing.)  Later, ask them to rate the pictures again -- but this time, tell them something about the personalities of the people they're looking at.

Just like that guy in school, the people in the pictures got plainer or prettier, in the eyes of the research subjects, depending on what their personalities were supposed to be like.  Honesty and helpfulness looked good; unfairness and rudeness looked bad.  As the abstract puts it, "personality information produced significant changes in ratings of physical attractiveness for attractive, neutral, and unattractive targets." 

More than skin deep

Does this have anything to do with juries?  Absolutely.  Like it or not, physical beauty matters to jurors, as a British study in March most recently showed.  Back then I got to spend one long post on the study itself and another one on what to make of it.  One thing I said was "Remember 'more than skin deep.'  . . . 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."  I didn't have a study to cite when I said it, but there is one now.

(Photo by Franco Folini at http://www.flickr.com/photos/livenature/269044687/; license details there.)

The Grim Power Of Grim Evidence

Criminal and personal injury defense lawyers, pencils ready.  Next time you ask a judge to keep gory pictures and other disturbing material out of evidence, cite David Bright.  "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence," a recent press release about his work says.

The research in question isn't brand new; Mr. Bright's most recent papers are from 2006 and 2004.  But he recently presented a seminar on his work in his native Australia (you can listen to the audio and see a syllabus here) -- and the University of New South Wales, where he is a Ph.D. candidate, used the occasion to issue the press release recapping his recent work.  Be glad they did.  With his colleague Jane Goodman-Delahunty, Mr. Bright has spent the last five years exploring the effect of gruesome evidence on juries.

Pictures or no pictures

The research Mr. Bright describes in his 2006 paper -- "Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-making," in volume 30 of Law and Human Behavior -- is a straight-up comparison.  Just over 100 subjects were assigned to read a summary of the murder trial.  The facts were the same in each summary, but the researchers varied the amount of detail in the description of the victim's wounds.  In addition, some subjects got photographs of the victim's wounds with their summaries, some got "neutral" pictures of the crime scene, and some got no pictures at all.

The photographs had a huge influence.  Only 8.8% of the mock jurors who didn't see pictures voted to convict the defendant, compared to 38.2% of those who saw neutral pictures and 41.2% of those who saw gory pictures.  The level of verbal detail, on the other hand, seemed to have no effect.  Why did the photographs make such a difference?  Another finding suggests the answer:  the jurors who saw gruesome pictures "reported higher levels of anger directed at the defendant" than the others.

Changing the facts

The 2004 study ("The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts," in volume 11 of Psychiatry, Psychology and Law) focused solely on verbal evidence, but it is less striking because the researchers varied the underlying facts.  In the case file they used, a husband was accused of killing his wife -- but some subjects read a summary where the victim was tortured (and her mutilation was described in detail), while others read a summary where the victim was stabbed once in the chest. 

Those who read the torture summary were more likely to convict, but it might not have been the gore that did it.  I'm no expert, but it would seem that jurors might be more willing to believe that a random attacker was guilty of a stabbing, and that an enraged husband was more likely than a stranger to have committed the torture in the gruesome version.  The paper doesn't attempt to rule out this possibility. 

Protecting trials, protecting jurors

Both papers recap other research in the field.  The 2006 paper also suggests another reason courts should consider excluding lurid pictures:  the impact on the jurors themselves.  Bright's mock jurors reported significant levels of disgust, sadness, and fear when they had to see gruesome pictures.  The researchers called these intense reactions "unexpected," but real courtrooms see them often.  The same week Bright's press release came out, an Australian juror vomited after hours of medical evidence including photographs of horrific injuries inflicted on a little girl.

_________________

Notes:

1. Both Corrections Sentencing and EvidenceProf Blog got to this story faster than I did; but California forensic psychologist Karen Franklin saw it first, because she saw it in the Sydney Morning Herald.
2. I dreaded having to find a picture for this.

(Photo by Sara Petagna at http://www.flickr.com/photos/apesara/1542716302/; license details there.)