Deliberations

The Price Of A Poker Face

It may be the single most frustrating piece of jury advice for young lawyers:  "Watch the jury."  Watch them what?, I used to think.  They're just sitting there!  I felt like I could watch the jury for hours and never see a facial expression.

There are many exceptions, but often, jurors keep very straight faces through even the most disturbing evidence.  A new study suggests this may be harder on them than it is on you, enough so that it might make a difference in your trial.

. . . and now we'll show you -- oh yuck.

This would have been a fun study for ten-year-old boys to plan.  The researchers asked half their subjects to hold a pen between their lips, not telling them the reason for this was to hold their facial muscles still.  Then they showed all the subjects a series of really disgusting images, like a dirty toilet or film of an amputation.  (The press release doesn't say how much they paid the subjects, and I can't find the paper itself.  I hope it was a lot.)

The subjects who couldn't move their facial muscles experienced more negative emotions and held them longer, in what lead researcher Judith Grob called a "negative spiral."  This happened even though the subjects didn't realize that their facial expressions were being blocked by the pen.

The researchers wonder about the implications for Botox®.  I'm wondering about the implications for jurors.  They don't all succeed, but most jurors try very hard not to let their emotions show in court.  When the evidence is difficult, does this effort itself make them react more strongly?  And if so -- or if maybe -- is there something you should do? 

Think about voir dire questions asking not just how jurors feel about disturbing images (you'd ask that anyway, right?), but also how they react, whether they tend to be stone-faced or expressive.  Think too about a sentence in opening statement that gives them permission to react in the moment.  "I know we'll be able to see on your faces how difficult it is to look at those pictures," you might tell them.  For one or two, it might be that momentary "rehearsal" that will let them respond fully when the pictures come. 

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Related posts here:

• A Jungle In There: The Dysfunctional Jury

• When They Look Away

• Jury Notes From Elsewhere (see item one, "Helping jurors with sad facts")

(Photo by Phillie Casablanca at http://www.flickr.com/photos/philliecasablanca/2052720494/; license details there.)

When They Look Away

Your expert is on the stand presenting her analysis of lost profits damages, or whether an unintelligible patent claim was infringed.  As she's explaining the most difficult part, you look at the jury, and your heart sinks; no one is looking at her.  They're contemplating the ceiling, studying the floor, looking away.

Don't lose heart.  Maybe they're learning. 

There are many reasons why one person looks away when another is talking, but one of them is learning.  "A number of studies report ways in which adults switch off from environmental stimulation (both live faces and other sorts of visual displays) in order to concentrate on cognitive tasks," writes Dr. Gwyneth Doherty-Sneddon of the University of Stirling in Scotland, in one of many papers she has written on this topic.  Her current project, "Children's Eye Gaze: Associated Cognitive and Physiological States" was funded by the Economic and Social Research Council, where many of her papers are collected, all in full-text .pdf. 

"A positive sign"

The most recent conclusion of her research, explained in a press release this week, is that "gaze aversion" is often associated not simply with concentration, but with the moment of learning itself.  Studying children, she found that subjects averted their eyes more often when material was new, difficult, or complicated.  "That means that gaze aversion is a useful thing for teachers, care[give]rs and parents to know about," Doherty-Sneddon said in the press release.  "A child who is doing it is likely to be developing their understanding," the press release continues.

So maybe you welcome the moment when the evidence gets complicated and jurors look away.  If they never look back, though, you can probably go ahead and worry.

(Photo by Pσrcelαΐηgΐrl° at http://www.flickr.com/photos/pinkspleen/503225564/; license details there.)

The Case Of The Troubled Jury Foreman

The trial judge thought it was merely glossophobia.

Eric Turkewitz passed on this story from Thomas Swartz's New York Legal Update, on a February 21 New York appellate opinion, People v. Figueroa.  The trial itself in Figueroa's robbery case apparently went smoothly -- but after the jury sent word that it had reached a verdict, something unusual happened. "The foreperson sent a personal note to the [trial] court indicating that he did not feel 'comfortable' about reading the verdict," the appellate court explained.

Please don't make me read aloud

What does a trial judge do with a note like that?  Talk to the juror.  This trial judge did that, and concluded the problem was simple stage fright:

The court inquired of the foreperson about the meaning of the note, outside the presence of defendant, his codefendant or any of the attorneys. Subsequently, the court informed counsel of the note, and related that during the inquiry, no mention of the verdict itself was made; instead, the foreperson stated that he was uneasy about having to read the verdict out loud in some sort of narrative form. The court related to counsel that when it assured the foreperson he would only have to answer the clerk's questions, the foreperson, who had not served on a jury before, was "relieved" and satisfied. In response to the prosecutor's question, the court stated that the foreperson never indicated any discomfort with the verdict itself, which was simply not discussed.

That put things back on track, or seemed to:  "Neither defendant objected to this procedure or sought a further inquiry of the foreperson. The jury then rendered its verdict, and, when individually polled, each juror including the foreperson agreed with it."

So the trial judge was probably surprised when, in postverdict motions, Figueroa claimed juror coercion.  He filed the foreman's "affidavit, which was obviously drafted by an attorney, in which he claimed that other jurors had coerced his verdict, and that he had communicated to the court that this was why he was uncomfortable announcing the verdict."  But the juror in turn recanted that testimony in a postverdict hearing and went back to the stage-fright version, so the conviction was upheld.

Of course there's a Glossophobia.com

Can stage fright really make a juror afraid to read a verdict out loud?  To find the answer, you'd of course start at Glossophobia.com, and find that even those smooth-talking airplane pilots get stage fright:

Glossophobia can exhibit itself in many ways, including:

• Actors, actresses and musicians finding shows and concerts extremely difficult
• Businesspeople having a fear of making presentations
• The fear of making speeches at weddings
• The fear in anticipation of a public speaking event
• The avoidance of situations that might include public speaking
• Pilots and cabin crew feeling intensely uncomfortable having to make announcements to passengers during a flight
• Stuttering or stammering in public speaking situations

The prevalence and power of this fear are worth remembering in voir dire, especially attorney-conducted voir dire when you're the one making someone speak in front of a group.  There's a chance your simplest question is making someone queasy.  That's not the first impression you want to make.  Watch for glossophobia, and find ways to show compassion.

(Image from www.moviewallpapers.net posted by Mickey Glitter at http://www.flickr.com/photos/mickey_glitter/2081677243/; license details at both sites.)

Best Of Deliberations: Are You Sleeping, Brother Juror?

Deliberations is on vacation.  This post first ran in February 2007.

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We know you didn't get any sleep the night before voir dire.  What about the jurors?

When lawyers think about voir dire, we think about jurors' past history.  Everything we read reminds us that a juror's past experience fundamentally shapes how he will hear and understand what we say.  If you represent an elderly woman who fell and was injured, a juror who cared for his frail mother for twelve years is going to respond differently than will a healthy young man who never knew his grandparents.

Ask about the past, yes, but don't forget the present.  History may help tell us how a juror might connect with your case, but the question whether she can connect at all has a lot more to do with what she did last night, and over the last week.  Consider:

• Fatigue.  Tired people don't think very well.  In a recent study, people who had stayed up all night and then looked at pictures remembered 19% fewer pictures than a well-rested control group did.
• Lack of caffeine.  Many people drink caffeine all day, and then find themselves in a jury box for hours with no coffee in sight.  A 2004 study concluded that "[o]ne of the most profound signs of caffeine withdrawal was impaired behavioral and cognitive performance, although memory was not affected."
• Too long between cigarettes.  In a 2003 study of nicotine withdrawal in pilots, "all tests recorded an impairment of cognitive functions during abstinence," leading the researchers to conclude:  "Abrupt cessation of smoking may be detrimental to flight safety."
• Hangover.  In case you needed a cite for this, researchers in 2003 concluded that "alcohol hangovers have a negative effect on cognitive functions."
• Low blood sugar.  Research has found "significantly more negative" performance on cognitive and emotional tests after blood sugar bottoms out.
• Hormones.  You won't want to hear me say this, but for many women, it matters when you're talking to them.  This study found, for example, that "both short-term and long-term memory for words (30-word learning task) and abstract figures (abstract visual learning task) were mildly impaired in the premenstrual phase."
• Depression.  A survey last week found that one in six Americans and Canadians had been diagnosed with depression -- that's diagnosed, not suffering from.  This study of the elderly found "a significant association between depression and reduced cognitive function."

Some of this you can ask about.  (Not the hormones, I know.)  Is there a baby in the house?  Does anyone work third shift, or two jobs?  Many jurors, when the judge asks what they do, will mention one of their jobs but not the other. 

You can be candid about caffeine and cigarettes:  You'll have to go a long time without them, and for some people that's hard.  Is anyone concerned about that?

Some of it you can't ask, but you'll hear about, if you listen.  A depressed juror, for example,  is likely to give you a few clues.

The rest you'll have to watch for.  This is the kind of thing that "Watch the jury" means:  who is tired?  Am I looking at the face of drugs or alcohol?  Who is distracted, or anxious?  Who just looks out of it?

(Photo by strph at http://www.flickr.com/photos/strph/129221597/)

 

Juror Art Spoils Rape Conviction?

It couldn't happen here, could it?  The London Daily Mail reports:

A convicted rapist was freed from jail after it was discovered a juror had been doodling during his week-long trial.

The juror made two sketches of the judge while he should have been concentrating on the evidence.

As the proud curator of the American Gallery of Juror Art, I'm struggling with this story.  Jurors can't doodle?  What about counting the tiles on the ceiling, tracking the number of times defense counsel wears the same shoes, checking the second hand of the courtroom clock against their watches, planning their holiday outfits?  Jurors are bored, bored, bored, and if we're going to start overturning verdicts because a juror's attention wandered, we really ought to shut down the prisons right now. 

It had to be the underwear

So I've decided not to believe it was the juror's sketches that botched this conviction.  I've decided the final straw was the jury's experiments with women's underwear.  In England, they're called knickers:

The trial hinged on the victim's pink knickers which were torn in three places, and formed a major exhibit in the case.

It was [when the defendant was to be sentenced] that the judge revealed that a juror had asked an usher at the end of the trial on Friday to dispose of a pack of women's pants.

The judge said: "They bought a pack of five knickers.

"One is torn. They had been trying the strength of knickers and comparing them with knickers in this case.

"The juror said they had been conscientious, but they decided the case on evidence not before the court."

Juror artists, keep drawing.  You're doing great work.

(Image by Ben Britten at http://www.flickr.com/photos/tauntingpanda/731940008/; license details there.)

What's Up With Jurors Who Dress Up?

I'm thinking of starting a blog category called Jurors Who Dress Alike. 

Not really.  But it seems like I just wrote about this, and I really didn't think it would come up again so soon.  You may recall that on Valentine's Day, all but one of the Lewis Libby jurors reported for duty wearing red T-shirts with white hearts on them.  Tuesday, the Southern District of Florida Blog tells us, the jurors in the Jose Padilla terrorism trial also dressed for the holiday:

Row one in red. Row two in white. And row three in blue. I'm not kidding.

It was the Padilla jury's third experiment with coordinated outfits, the Southern District post goes on.  Last Friday the men all wore blue and the women all wore pink; and a week ago, all the jurors but one wore black. 

Inquiring minds

Everybody wants to know what's going on.  Peter Lattman at the Wall Street Journal Law Blog asks:

What’s going on here? Jurors are not supposed to talk about the case, but it’s obvious they’re chatting about their clothes. Does it show they’re unified, which could be bad news for the defense? Or should their peppiness be a concern for prosecutors, as a happy jury during a terrorism trial might not be such a good thing? Or is it at all appropriate during a criminal trial for the jury to make so many fun fashion statements?

The AIDP Blog of the International Association of Penal Law wonders that too, in a post exploring associations to everything from the film "Runaway Jury" to the jury's amazing misbehavior in Tanner v. United States: 

Lets say, for the sake of argument that a juror, or a few jurors are influencing the group and convincing them to behave in a certain way. Perhaps suggesting that as a jury they need to present a unified front, maybe even suggesting that it is their obligation to stand united in a “war against terror.” . . . So, could the judge declare a mistrial in Padilla?

A short, incomplete history of dress-alike juries

I'm pretty sure there isn't a developed case law on this topic, although the way things are going, there might be soon.  Ten years ago the New York Times wrote about a death penalty trial where "most of the jurors came to court dressed in blue, after having worn purple on Thursday and red on Friday."  Defense counsel moved for a mistrial, saying, ''If the jury was in agreement on what color to wear, we were afraid they were surrendering their individual opinions about the case."  But the judge interviewed the jurors, and when they explained that the outfits were "merely a way to release tension," the mistrial was denied.  (The jury convicted the defendant, Avi Kostner, but refused to sentence him to death.  He died in prison a year later.)

Last year in Massachusetts, opponents of Judge Mitchell Sikora's elevation to the appeals court listed, among their other complaints against him, his decision to let jurors wear costumes on Halloween in one trial.  He explained that the jurors were "demoralized and tired," and now he sits on the appeals court.  (A few other Halloween costumes, and many other unusual juror outfits, are described by the trial lawyers quoted in this piece at VerdictSearch.com.)

There might be more dress-alike cases, but in some places jurors can't wear just anything.  The rules of some divisions of the U.S. District Court for the Western District of Texas are strict:

It is the policy of this Court that all male jurors wear coat and tie, and female jurors wear pantsuits or dresses.

That link is to San Antonio.  In Austin, the rules say you're fine as long as you're not in "shorts, cutoffs, tank or tube tops, over-revealing clothing, sandals without socks or hose" -- or a hat.  (The sandals part seems a little extreme; it's hot down there.)

So what do I do?

Okay, seriously, what does a lawyer do when a jury shows up in matching gear?  A couple of thoughts:

• Smile.  If they're smiling, smile, for heaven's sake.  They're watching you, and you know what you think of people who don't laugh at your jokes.  Be, or at least look, comfortable.  In a trial as serious as Padilla's or Avi Kostner's, you have a line to walk here; the trial isn't a joke to you and it shouldn't be.  But you need to find a way to react as a normal nice person would to a stranger's attempt at levity.
• Wonder.  You're going to do it anyway, and it's not inappropriate to spend some time thinking about what Juror Funny Socks Day might mean.  Try to focus your thinking on things you might be able to respond to.  Are they bored?  Can you liven things up?  Are they stressed, as they might well be if the facts are gory or traumatic?  Can you do anything to ease the strain?  Is there a holdout?  If you think she's against you, can you bring her around? 
• Make your motion if you think you have one.  The law is sparse, so go for it.  These decisions are often about the Ask, and judges don't always get it right.
• Let it go.  As I wrote the last time, at some point you have to stop wondering about the jury's clothes and get back to persuading them.  Don't let their T-shirts, whatever color, pull you away from your task. 

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Notes:

1. The questionnaire the Padilla jurors filled out is in Deliberations' sample library.
2. If you run the search "Padilla jurors wearing," what you get is not dress-alike stories, but the mistrial motion filed last week because jurors saw one of Padilla's co-defendants wearing chains.  The motion was denied.
3. Tanner v. United States, cited above, is the case that held that jurors couldn't testify to impugn the jury's conduct no matter how bad it was.  I mentioned it in another post here.
4. I think the New York Times story on the Avi Kostner jury is subscription, but it's very short, and the gist of it is above. 

(Photo by Andreas Hagerman at http://www.flickr.com/photos/41267663@N00/303710146/; license details there.)

A Jungle In There: The Dysfunctional Jury

We're always asking jurors to tell us what deliberations were like, and often their stories are inspiring.  In these accounts, jurors from all walks of life work together with respect and sincerity to reach the best verdict they can, bringing life to that shining gem of American justice, the jury system.  Research confirms that these highly functional jury groups are not rare (we've talked about one example, a Seattle survey of actual jurors), and I see the same kind of effort and good will in mock juries regularly.

"Shut the . . . up!"

And then you get a news story like this, from the Philadelphia Inquirer this week: 

Jury deliberations in the rape trial of Jeffrey Marsalis were cut short yesterday after angry shouting erupted among jurors.  At one point, one of the jurors yelled, "Shut the . . . up!", according to court staff. 

A sheriff's deputy and court staff had to go in to break up the fray.  (Yesterday the jury came back with a split verdict.)

Those stories come up more often than jury fans like me would like to think.  Last month the Eighth Circuit had a case called U.S. v. Eizember, where one juror started telling the others that Mr. Eizember had been prosecuted before and "was going to fry anyway."  But it was all right, the court said, in part because most of the other jurors couldn't hear these comments.  How could they, over the din?

Some of the jurors said that they had tried to drown out what the offending juror was saying and stop him from talking. One juror said that once the offending juror began talking "everybody was screaming, so there was a lot of confusion."

Verdicts in the jungle

In these chaotic jury rooms, outcomes can change.  It's likely, for example, that some holdout jurors become more entrenched when deliberations become angry and dysfunctional.  More likely to come up on appeal are the cases where the pressure makes the holdouts give up.

Just yesterday, two appellate courts decided cases where holdout jurors reluctantly went along with the group.  In one of them, an Eighth Circuit habeas case called Pederson v. Fabian, the tenor of jury deliberations wasn't described, but it's easy to imagine that the holdout juror felt pressure when she said (in the prosecution's post-case questionnaire) that "I know a person is supposed to be innocent until proven guilty, but in reality it didn’t work that way," and that she had disbelieved the accusing witnesses and believed the defendant. 

In the other case, State v. Wery here in Wisconsin, the holdout juror "had been the lone holdout during deliberations and had taken 'a lot of heat' from the other jurors, but she had ultimately agreed to join the other jurors in the guilty verdict," according to the jury's foreman.  Both verdicts were affirmed, even though in Wery the juror changed her mind while the trial was still in progress, in the sentencing phase.

Helping juries function

What will happen to your case if the jury can't function, and what can you do about it?  A couple of ideas:

1. Watch them.  You won't always know if there's a storm coming, but you might.  Are they laughing and joking in the hall, or are they forming little cliques?  Are two of them straining their backs to lean away from each other in their assigned chairs?  Do all but one of them wear matching shirts on Valentine's Day?  The one who argued with everything both lawyers said in voir dire is likely to argue with his fellow jurors too, and the one who said his prior connection with the law was after a bar fight might have a temper.
2. Teach them.  If you need consensus and unanimity, use your closing to offer the group tools to get there.  A couple of simple web searches will produce many lists of such tools and techniques.  Some that are particularly relevant to juries are to agree ahead of time on the "ground rules" for the conversation (no one interrupts, everyone will work patiently to understand other points of view); to set time limits for a couple of people to hash out an issue while the rest listen; to keep referring to the group's goals (here, the instructions and special verdict); and to use time lines and poster lists to make the process more concrete and less interpersonal.
3. Coach them.  On the other hand, if you know you may need a holdout to hold out no matter what, you can use part of your closing to challenge jurors to rise to the kind of resolute conviction that holding out requires, while patiently defusing the chaotic atmosphere that can make holding out more difficult.

(Photo by Fabio Venni at http://www.flickr.com/photos/fabiovenni/67877557/; license details there.)

The Limits Of Eye Contact: U.S. v. Simtob

On Friday the Ninth Circuit issued guidance on what to do if a nontestifying defendant creeps out one of the jurors.  The opinion, in U. S. v. Simtob, assigns some daunting homework to the trial judge -- and raises a few interesting "what ifs" for lawyers. 

"I look at everybody"

Halfway through Simtob's two-day trial, one of the jurors told the judge "that Simtob had been “eyeballing” the juror and that the juror felt threatened by that conduct."  The judge tried to correct the situation, outside the jury's presence:

The court then cautioned Simtob that neither he nor anyone else was allowed to intimidate anyone in the courtroom. The court further stated that, upon indication of such conduct in the future, it would take appropriate measures to deal with the situation at that time, and it again emphasized its intolerance of such behavior. When asked if the court’s instructions were clear, Simtob responded that they were, and that he had not looked at anyone in particular. “I look at everybody,” Simtob claimed. The district court did not make any inquiry of the complaining juror regarding the “eyeballing” incident.

The next morning, Simtob's lawyer asked that the allegedly "eyeballed" juror be replaced. The trial judge declined: 

The district court ruled that the jury had been “repeatedly admonished not to make up its mind about any issue,” that it was “absolutely satisfied that the jury ha[d] taken those admonishments appropriately,” and that it saw “no reason to inquire further into th[e] matter . . . .”

The jurors' peace of mind

The Ninth Circuit remanded, with simple reasoning.  "[E]ven indirect coercive contacts that could affect the peace of mind of the jurors" are presumed to be prejudicial in the Ninth Circuit, the court explained.  "That at least one juror’s 'peace of mind' was affected is obvious from the district court’s assertion that the juror claimed that he or she felt threatened by Simtob," the court continued, and since the trial judge didn't ask that juror or the others whether they could be fair, the government could not rebut the presumption. 

Any questions?

Fairly straightforward, but you might have questions.  Like:

1.  Is the trial court really going to bring all the jurors back?  Instead of ordering a new trial, the Ninth Circuit sent the case back to the trial court with an assignment far more easily said than done:

We, therefore, vacate Simtob’s conviction and remand for the district court to recall the complaining juror and to undertake whatever inquiry it deems appropriate — whether through an in camera hearing or otherwise — to determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially.  Upon remand, the district court must make findings about possible bias that the affected juror or any other juror may have harbored as a result of the alleged eyeballing incident. If the district court finds no such impairment, it can, of course, reinstate the conviction.

Seriously, we're not kidding, said an accompanying footnote:

We recognize the difficulties in recalling a juror post-verdict, such as memory deficiency, locating the juror, and inconvenience to the juror. We also acknowledge the hesitancy that courts face in “haul[ing] jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.” United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). [Simtob probably never thought he'd be thanking Reverend Moon someday.]  Nonetheless, we find that there is a substantial, non-speculative ground that justifies such an action in the instant case to ensure that Simtob’s Sixth Amendment rights have not been violated.

"Difficulties" is hardly the word.  A new trial might be easier.

2.  Can defendants abuse this rule?  If the government argued that the remand had the effect of allowing Simtob to intentionally taint his own jury with "eyeballing," the Ninth Circuit didn't discuss it.  I haven't gone too far into this, but it looks like the decision would survive that argument.  It seems generally true that prosecutor can't comment on, and a jury can't consider, a nontestifying defendant's demeanor, both because it's not evidence and because allowing it would bring us too close to undercutting the defendant's right not to testify.  But the law is mixed, especially when the defendant's conduct is especially bad.  In September 2004 Prof. Peter Tillers, of Tillers on Evidence and Inference, had three very comprehensive posts on different facets of this topic, here, here, and here.

3.  What if the juror hadn't said anything?  For every juror who tells the judge he's bothered by the defendant's demeanor, there are (I'm guessing, but confidently) hundreds who notice it, consider it, are swayed by it, and don't tell anyone but their fellow jurors.  If you're defense counsel and a juror speaks up, you've been given a gift.

Lessons

Two takeaway points, I think:

1.  Be ready.  One thing many lawyers forget to review before trial is the law of Unexpected Events Involving Jurors.  It's worth a section in your trial notebook listing the main reasons you can ask for relief because of some glitch with the jury, and the main case or two you'd cite on each point.  Simtob's lawyer was lucky to have the overnight recess in which to remember to ask for the juror's dismissal; it will be just your luck to have the problem come up in the middle of the day, and you'll have an Instant Decision Moment. 

2.  Watch them.  Jurors who would never tell the judge they were bothered by the defendant might "tell" you, if you watch them well enough.  If you think a juror looks fearful or anxious, you can try to tone your client down, shift your arguments to address the issue, or ask the judge to talk to the juror.  If you don't notice, you can't do any of those things.

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Source note:

Thanks to the Ninth Circuit Blog, published by federal defenders from the Ninth Circuit, for flagging this.  In addition to good case summaries, they have useful links to blogs on other circuits, and other defense blogs.  Simtob's appellate lawyer was Montana federal defender David Ness.

(Photo by Bryan Gosline at http://www.flickr.com/photos/brymo/436090582/; license details there.)

Sleep And Moral Judgment

New research brings another reason to watch for tired jurors in voir dire.

We've talked before about how you need to be aware in voir dire not only of jurors' past experiences, but also of how they are feeling on the day of trial.  That post noted that sleepy jurors, for example, don't remember information well.  A new study suggests something more dire:  lack of sleep may impair our moral judgment.

Slower after 53 hours

The study is "The Effects of 53 Hours of Sleep Deprivation on Moral Judgment," by William Killgore and others, published in the journal Sleep (and downloadable there if you subscribe) and summarized in Medical News Today.  The researchers asked 26 people, mostly men, to make judgments about the "appropriateness" of different responses to moral dilemmas, before and after 53 hours without sleep.  (The abstract and summary don't say why not 52 hours, or 54.  Maybe the subjects threatened to kill the researchers after 53.)

Lack of sleep made these people slower to choose a response, to the point where the researchers concluded that their moral judgment was impaired.  The more emotionally wrenching the decision, the slower the response time.  People who were already strong on an "emotional intelligence" scale, the researchers noted, were less affected by lack of sleep than others.

Slower and also harsher?

Some of the language discussing this study suggests that tired subjects made decisions not only more slowly, but also differently.  In the Medical News Today summary, Dr. Killgore is said to insist that his findings "do not suggest that sleep deprivation leads to a decline in 'morality' or in the quality of moral beliefs,"  but only that it leads to slow response and to

the change in the leniency or permissiveness of response style as evidenced by the tendency to decide that particular courses of action were 'appropriate' before and after sleep loss.

This language is a little opaque, and I didn't subscribe to Sleep to read the underlying data, but it sounds like he's saying that subjects were more lenient when they were rested. 

Likewise, the paper's abstract implies that when subjects were tired, they were more willing to go along with decisions they didn't really agree with:

The effect of sleep deprivation on the willingness to agree with solutions that violate personally held moral beliefs was moderated by the level of emotional intelligence.

For trial lawyers, one striking aspect of this research is that subjects were asked to agree or disagree to a set of choices, not to come up with their own moral responses.  It's a limitation people rarely face in real life -- except when they sit on a jury.  The jury instructions, the special verdict, and the need to be unanimous all limit jurors' moral choices in a way rarely found outside the courthouse and the research lab.

Are my jurors really that sleepy?

Hardly anybody really goes 53 hours without sleep in real life, though.  So is this really an issue? 

Fatigue is.  Most of us have seen a juror nod off in court, and it's not just because we're dull.  The National Sleep Foundation does an annual "Sleep in America Poll," focusing each year on a different set of issues.  The last time they looked at the overall population was in 2002, and the results were predictably grim:

• "Overall, 74% of respondents in the 2002 study experienced at least one symptom of a sleep disorder a few nights a week or more."
• "A sizable proportion of adults (37%) report that they are so sleepy during the day that it interferes with their daily activities a few days a month or more; and 16% experience this level of daytime sleepiness a few days per week or more."
• "24% state they get less than the minimum amount of sleep they say they need."

That doesn't count fatigue caused by other factors than lack of sleep.  Last month in Cleveland, a juror was dismissed "after falling asleep and becoming lethargic during deliberations" in a murder trial.  The newspaper said he hadn't been taking medication he needed. 

(Drawing by Peyri Leigh at http://www.flickr.com/photo_zoom.gne?id=137240285&size=o; license details there.)

Are You Sleeping, Brother Juror?

We know you didn't get any sleep the night before voir dire.  What about the jurors?

When lawyers think about voir dire, we think about jurors' past history.  Everything we read reminds us that a juror's past experience fundamentally shapes how he will hear and understand what we say.  If you represent an elderly woman who fell and was injured, a juror who cared for his frail mother for twelve years is going to respond differently than will a healthy young man who never knew his grandparents.

Ask about the past, yes, but don't forget the present.  History may help tell us how a juror might connect with your case, but the question whether she can connect at all has a lot more to do with what she did last night, and over the last week.  Consider:

• Fatigue.  Tired people don't think very well.  In a recent study, people who had stayed up all night and then looked at pictures remembered 19% fewer pictures than a well-rested control group did.
• Lack of caffeine.  Many people drink caffeine all day, and then find themselves in a jury box for hours with no coffee in sight.  A 2004 study concluded that "[o]ne of the most profound signs of caffeine withdrawal was impaired behavioral and cognitive performance, although memory was not affected."
• Too long between cigarettes.  In a 2003 study of nicotine withdrawal in pilots, "all tests recorded an impairment of cognitive functions during abstinence," leading the researchers to conclude:  "Abrupt cessation of smoking may be detrimental to flight safety."
• Hangover.  In case you needed a cite for this, researchers in 2003 concluded that "alcohol hangovers have a negative effect on cognitive functions."
• Low blood sugar.  Research has found "significantly more negative" performance on cognitive and emotional tests after blood sugar bottoms out.
• Hormones.  You won't want to hear me say this, but for many women, it matters when you're talking to them.  This study found, for example, that "both short-term and long-term memory for words (30-word learning task) and abstract figures (abstract visual learning task) were mildly impaired in the premenstrual phase."
• Depression.  A survey last week found that one in six Americans and Canadians had been diagnosed with depression -- that's diagnosed, not suffering from.  This study of the elderly found "a significant association between depression and reduced cognitive function."

Some of this you can ask about.  (Not the hormones, I know.)  Is there a baby in the house?  Does anyone work third shift, or two jobs?  Many jurors, when the judge asks what they do, will mention one of their jobs but not the other. 

You can be candid about caffeine and cigarettes:  You'll have to go a long time without them, and for some people that's hard.  Is anyone concerned about that?

Some of it you can't ask, but you'll hear about, if you listen.  A depressed juror, for example,  is likely to give you a few clues.

The rest you'll have to watch for.  This is the kind of thing that "Watch the jury" means:  who is tired?  Am I looking at the face of drugs or alcohol?  Who is distracted, or anxious?  Who just looks out of it?

(Photo by strph at http://www.flickr.com/photos/strph/129221597/)

 

Is That T-Shirt Trying To Tell Me Something?

Years ago I helped try a case where our client had sold his company; the buyer had stiffed him on part of the purchase price.  Our client was tangentially connected to Harley-Davidson, the motorcycle company, although that fact had nothing to do with the case.  On the second or third day of trial, one of the jurors showed up wearing a Harley sweatshirt -- and, we thought, maybe smiling at us.

This is Wisconsin:   lots of people have Harley sweatshirts, and lots of people smile.  Was that all it was, or was there a message in it?  There was nothing we could do about it anyway and there was a lot to do, but we couldn't help wondering.  After a happy result, the jurors met us in the hallway, and she told us that in fact she had chosen the shirt because she was rooting for our side.

I remembered that story this morning, when the New York Times reported that all but one of the jurors in the Lewis Libby trial arrived in court yesterday "wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom."  Apparently without being asked, one of the jurors rose to explain:

The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine’s Day. He then added, to the judge’s growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.

Maybe that's all it was, but you can't stop people from wondering.  Seth Stevenson of Slate.com was in the courtroom:

What to make of this? I think it's good news for Scooter Libby. This has been a tedious case, with lots of little irritating details, and yet the jury is still upbeat. And uncynical. Valentine's Day is the most contrived holiday in the calendar, and the jury seemed ready to press sugared hearts into the palms of strangers. People with this kind of cheeriness could be open to the human side of Scooter Libby—the dedicated if fabulously forgetful fellow portrayed by the defense.

And then what to make of the juror who didn't dress along?   

The one questionable juror is the art curator who in the backward style of old newsmagazines speaks.  She wore no red shirt.

The New York Times says she "apparently declined."  Maybe.  Maybe she just didn't check her messages.

Experts -- Or At Least Jurors -- In The Box

There are the experts on the witness stand, and then there are the experts in the jury box.

In the quest to understand what happens in the jury room, one might easily get lost in a single resource:  the Arizona Jury Project, which I mentioned yesterday.  To gauge the effect of a new rule allowing jurors to discuss evidence as the case went along, Arizona allowed law professors Neil Vidmar of Duke and Shari Diamond of Northwestern to videotape juror discussions in fifty actual trials between 1998 and 2001.  Vidmar and Diamond have been publishing the lessons from the resulting tapes in a series of very good articles.

Relying on each other, not you

Obviously there's a lot of material here, perhaps best absorbed one lesson at a time.  Here's one, chosen because it documents something lawyers often don't anticipate about juries:  they rely heavily on each other's specific life knowledge, treating each other essentially as mini-experts, in their discussions.  In the article Juror Discussions During Civil Trials: A Study Of Arizona's Rule 39(f) Innovation, Vidmar and Diamond detail what exactly jurors talk about behind closed doors.  (While they are focusing on pre-deliberation discussions, their description would be accurate for all of the the mock trial deliberations I've seen.)

Vidmar and Diamond explain that when they get to the substance, jurors' conversation includes both "fact exchanges" and "inference exchanges." (The section I'm working from starts at page 58 in the web version of the paper.)  In "fact exchanges," jurors try to get straight what the evidence showed.  In "inference exchanges," they are clear on the facts, and are discussing instead what they should conclude from it.  In debating these inferences, Vidmar and Diamond tell us, jurors "draw on their own experiences and information," their "personal knowledge of the world," and they seek information from each other in addition to simply saying what they think.  That makes sense, but what I think many lawyers don't expect is how frequent this kind of discussion is.  Vidmar and Diamond talk about juries where up to 61% of the exchanges in which jurors were seeking information were these "inference exchanges."

The point:  you have mini-experts in the box, and the others will look to them for guidance on how to interpret everything from whether a faxed contract is valid to whether a burn injury can take that long to heal.

Changing the subject:  Watch The Jury 101

On the other hand, maybe you should be happy if you simply know that the people in the box are the ones you started with.  It seems that last week, both lawyers and the judge in an Oroville, CA courtroom got through the first ten minutes of the morning's testimony in a firearms case without realizing that one of the people in the jury box was not a member of the panel.  (Apparently one juror was late on the same day a different person showed up mistakenly for jury duty; someone counted heads and put 15 people in the box without calling names.)

It's hard to say how long this would have gone on.  Only when the missing juror called to apologize did anybody realize she wasn't in the courtroom.  Now there's a lesson we didn't know we needed to learn:  if nothing else, at least check to see that the faces are familiar.

(Nametag photo by the queen of subtle at http://www.flickr.com/photos/queen_of_subtle/313134750/)