Jury Nullification Requires an Open Door Policy

Mr. Schwartz goes to Woburn

As many of you know, I am very active in the Pro Bono Initiative of the American Society of Trial Consultants. I head up the New England Team and I am working hard to get the word out that there are consultants willing, ready and able to help out with cases involving clients of limited means. As part of this effort, I have arranged with the Middlesex Defense Attorneys (MDA), the folks who administer the Bar Advocates Program for Middlesex County, MA, to hold regular Jury Trial Strategy clinics in Middlesex County courthouses. I hosted the first of these free clinics last week in the Woburn Superior Court. Attendance was great, with lawyers from Suffolk and Worcester Counties, as well as the Middlesex folks.

The cases on which the attorneys wanted advice were quite substantively diverse. They included assault, child molestation, accessory to murder and filing a false police report. One might imagine that this set of cases would have little in common. In fact, there did seem to be a common thread to several cases. While the state had a strong case that the defendant had, in fact, violated the relevant statute, there was something about the defendant, or the circumstances of the crime, that might lead a jury to be reluctant to convict.

The Law vs. The Defendant

That's right, broadly defined, these were nullification cases. Given the broad spectrum of those who read this blog, I should probably define jury nullification. That turns out to be a tricky proposition, in and of itself, and many an academic article, dissertation or book have been dedicated to providing such a definition. Luckily for us, I don't have to convince anyone that my definition of nullification is the best one. It just has to be useful for this blog entry. So, for our purposes, jury nullification is simply a decision by a jury to choose a verdict that is not supported by the facts and the law. Importantly, a jury that is simply mistaken about something is not nullifying. The kind of nullification that most scholars talk about -- and is most relevant here -- involves a jury acquitting a criminal defendant despite its conclusion that the defendant has, in fact, violated the law.

Most legal scholars discuss "jury nullification," which describes the circumstance when an entire jury chooses to acquit a defendant, notwithstanding the evidence to the contrary. Documented cases of jury nullification are few and far between. There are, of course, some famous historical examples. Northern juries often refused to convict people of violating the fugitive slave laws prior to the Civil War. Many juries were reluctant to convict draft card burners during the Vietnam War. Much less well documented, but undoubtedly more common, are instances of "juror nullification," when an individual juror (or several) refuses to vote for conviction. From a defense attorney's perspective, juror nullification is a more realistic goal. It might not be possible to convince an entire jury to show mercy on the defendant, but one can try to give at least a few jurors something to think about.

There are only two states, Maryland and Wisconsin, where an attorney is permitted to mention jury nullification explicitly. This is probably just as well, since most people are very reluctant to admit to themselves that they are circumventing the law, ignoring the judge's instructions and violating their oaths as jurors. Self-perception is a very important part of a person's mental health. No-one likes to think of himself as dishonest, untrustworthy or lawless. As such, if your case turns on your ability to convince jurors to knowingly nullify, you have a very steep uphill battle in front of you.

The Road to Nullification

That said, the situation is not really that dire. Jurors will nullify, so long as you allow them to think they are doing something else. How does this work? Fortunately, criminal law is filled with lots of fuzzy concepts requiring juror interpretation. Which witness was more credible? Did the defendant have the necessary intent? What did the defendant know at the time? Was the defendant under the control of another person? These are just a few examples of the sorts of questions that give jurors a lot of wiggle room. Finally, everything is wrapped up in the concept of "reasonable doubt." Just how sure does a juror have to be to convict? Several studies show that jurors self-report more demanding conceptions of reasonable doubt in cases presented more sympathetically to the defendant. That is, when a juror wants to convict, she employs a fairly lax burden of proof (say, 75% certainty), but when she has reservations, the same juror might employ a much stricter threshold (say, 90%).

So, get out your pencils (or PulsePens or iPhones). Here's what you need to get jurors to nullify (ssshhhhh..... they might hear you):

1) You need a hook.

You'd better have a client or a statute or a case or an extenuating circumstance that is likely to engender reluctance to convict. Whatever hook you have needs to be something you can bring out in court. You can't count on jurors to just assume great things about your client.
Examples of such hooks include:

A) Nothing will be accomplished by sending the defendant to jail.
B) Prosecuting the defendant is unfair, given what has happened to others doing the same things (accomplices perhaps).
C) The defendant is so young that a conviction will ruin his life.
D) The victim is just as responsible (or is a bad person).
E) The state is wasting everyone's time by bringing this case.

2) You need a door.

Now that you have planted the hook, with any luck (and skill on your part), some of the jurors will be looking for a way to escape from convicting your client. The law seems pretty clear and the judge has repeated several times that each juror has sworn an oath to follow the judge's instructions. Whatever is a compassionate juror to do?

You have to provide a way for a juror to find for your client while simultaneously believing that she has done her civic duty to the best of her ability. That is, it is your job to show the juror how to both vote "not guilty" and also go home feeling good about herself. You need to show her the door she can walk through.
Examples of such doors include:

A) A list of forensic evidence that was never collected.
B) The absence of an eyewitness.
C) Inconsistencies in testimony of the victim or other witnesses.
D) Sloppy police work.
E) The importance of any mens rea requirement (No one can know for certain what the defendant was thinking).
F) The ambiguity of language in the statute

All of these elements are meant to introduce uncertainty in the minds of jurors. You have just shown them the door. Now you just need to give them permission to open it. That is where the reasonable doubt requirement (and the burden of proof) comes in. It is essential that you emphasize in closing arguments both that the burden is completely on the state to prove its case and that the reasonable doubt standard is a very demanding one. Be sure to point out that the state must prove every element of the offense beyond a reasonable doubt.

Obviously, a strict liability crime affords fewer "outs" for your sympathetic jurors. Hopefully, the state's case has at least one weak link you can pry at. Your argument only needs to pass the sniff test -- it doesn't have to be persuasive. Your job is to provide ammunition for those jurors who are on your side to begin with.

If you've done your job, a juror who doesn't want to convict your defendant can, with a straight face, explain to her fellow jurors that, while she might think the defendant is guilty, the DA just didn't prove the case beyond a reasonable doubt. "Gee folks, I really want to vote with you, but I just can't do so in a good conscience."

3) Don't push.

Jurors are constantly speculating about things they know nothing about. What else could the police have done? Did that witness get a deal? What was girlfriend's real relationship with the defendant's mother? Would we really be here today if the defendant were white? It is this speculation that allows a defense attorney to encourage nullification just by emphasizing the uncertainty in the process. The more unsure are the jurors, the more they will speculate about things not in evidence.

That said, jurors distinctly resent being told what conclusions to draw from the evidence (or lack thereof). When people believe that their choices are being dictated by others, they tend to experience reactance, which is a tendency to rebel against the perceived loss of autonomy. Suddenly, the options that have been taken away seem more appealing (Just think of any teenager who has been forbidden from doing something).

Now that you have your jurors looking for a way out and you have offered them an exit, you need to resist the temptation to connect the dots for them. A juror might be sympathetic to a high school kid who got caught sharing pot with his friends. That juror might be inclined to use uncertainty about who originally purchased the pot to avoid voting guilty on a distribution charge. But you have to let the juror come to that conclusion on her own. If you tell her to take those specific steps, she will question your motivation. She might feel manipulated. She might face derision from other jurors for having "bought what the defense was selling."

You can show your jurors the door, but they have to walk through it on their own.

Is this really Nullification?

This really boils down to semantics at this point. I helped a lawyer secure a hung jury (with no retrial) in a statutory rape case involving two teenagers. The complaining witness's account was full of holes and inconsistencies. Since statutory rape is a strict liability crime, however, the jury only needed to conclude that the two had sex -- ever -- to find the defendant guilty. Clearly, extralegal factors, such as the defendant's age, the asymmetry of the situation, tepid support for such laws and the absence of violence played a role in the jurors' evaluations of the case. So, that would suggest labeling this a case of jury nullification. On the other hand, had the state's case been ironclad, I am convinced the jury would have voted guilty. So, the verdict was really the result of a delicate interplay of the strength of the case and the jurors' predictable ambivalence about the trial. Our strategic victory was successfully playing one off against the other.

Don't wait for mediation to fail before calling trial consultant

More Great Stuff in The Jury Expert

The most recent issue of The Jury Expert has just come out. For those who are still in the jury trial dark ages, The Jury Expert is the online publication of The American Society of Trial Consultants. It has quickly become the go to source for expertise on jury behavior, jury trial strategy and recent developments in the American Jury system. Any litigator who doesn't subscribe just isn't that interested in winning at trial. 'Nuff said.

How to Win a Mediation

In the November issue, Melissa Gomez has contributed a very nice article on the importance of conducting jury research prior to mediation. Melissa focuses on a particular aspect of jury research -- and a very important one -- figuring out what your case is worth. Any settlement discussion takes place in the shadow of a jury trial. What offer should you make? What counter offer should you accept? The answers depend, of course, on what you think a jury will do. Information is power. If you understand better than your opponent what a jury will do at trial, you will "win" at mediation. To this end, Melissa particularly advocates focus group research targeted at the damage award calculations that jurors will undertake. She also refers to these as "valuation studies."

She points out another advantage of such studies. Sometimes, a lawyer has to convince her own client of what a case is worth. Mediation is only successful if client and attorney walk into the room on the same page. Melissa offers a nice example of a case in which pre-mediation research provided the client with realistic expectations of how a jury would react to a case. This permitted the lawyer to guide the client to a sensible settlement.

Ignore the data at your own peril

Melissa also offers a couple of cautionary tales about litigants who chose to proceed to trial notwithstanding study results that suggested doing so was a bad idea. Remember: It doesn't matter what you think the case is worth. It only matters what a jury thinks the case is worth. This does raise an issue that we trial consultants often encounter. For jury research to be successful, it is important to have buy-in from both litigants and litigators. While numbers are always involved, we are generally dealing with small enough samples that this is qualitative research. The trial consultant's expertise is critical to interpreting those results. If a lawyer, or her client, does not respect that expertise, the time and expense of a jury study will be for naught. If you treat your trial consultant as a glorified project manager, you will be squandering the value of your jury research.

It's not just about the numbers

Melissa has done a nice job of illustrating the value of pre-mediation jury research on case valuation. This is not, however, the be all and end all of trial consulting for mediation. A mediation is not a trial, but it is a legal process. It has its own rules, ebb and flow, and opportunities for information exchange and argument. In the same way that it is critical to have a solid presentation strategy for a jury trial, it is vital to have a game plan for mediation. If you plan to just show up and hear what the other side has to say, you are wasting an opportunity.

Typically, each side has an opportunity for an "opening statement" to the mediator. Each side can bring in exhibits, reports and data. In addition, this is a lawyer's one real opportunity to speak directly to the client on the other side of the case. A good litigator will use that opportunity to her advantage. I discuss how a trial consultant can help a litigator prepare for some of these other aspects of mediation in an article I wrote for Lawyers Weekly. While there is some overlap with the themes in Melissa's Jury Expert article, there are several other nuggets of wisdom, as well. Check it out!

Boston Terrorism case will prove a test of Terror Management Theory

On October 21, Acting U.S. Attorney for Massachusetts, Michael K. Loucks, announced that Tarek Mehanna, a 27 year old Sudbury man, had been arrested on suspicion of terrorism. Last year, Mehannna had been charged with lying to authorities in conjunction with the investigation of another terrorism suspect, Daniel J. Maldonado.

Mehanna and his coconspirators apparently never got particularly close to actually carrying out any terrorist acts. They are alleged to have travelled to several foreign countries in search of training by extremist Islamist groups, but were never accepted. They are also alleged to have failed in their attempts to secure weapons for an attack on U.S. soil. As such, Mehanna's alleged terrorist activities were largely aspirational. U.S. criminal law is very clear in not punishing people for "thinking bad thoughts," regardless of how reprehensible those thoughts might be. Prosecutors are faced with proving that Mehanna actually took specific steps to operationalize concrete terrorist acts. This scenario is almost certain to result in Mehanna's attorneys refusing to accept a plea, insisting instead to take the case to trial.

What then might we expect from a Mehanna terror trial?

One thing is certain: Terror management theory (TMT) will play a major role in how jurors resolve the case.

What is Terror Management Theory?

Pioneered by Ernest Becker in the 1970s, Terror Management Theory (TMT) concerns how people manage fears of their own mortality. Here is TMT theory in a nutshell: Every person has a particular world view, comprised of their beliefs, values, experiences, and choices. Each individual requires periodic confirmation and support for his world view. Such support allows him to feel good about himself and live comfortably with the choices he has made. When a person is confronted by his own mortality, it emphasizes his fragile and limited existence on earth, creating a great sense of unease. Facing such emotional stress, a normal person will require more reassurance than usual and will typically take refuge in the company of those who share his world view. He will defend that world view more rigorously than usual and will view more negatively attitudes and behaviors that conflict with that world view.

An excellent review of Terror Management Theory, and its application to jury trials, by Joel Lieberman and Jamie Arndt, appeared earlier this year in The Jury Expert, the online publication of the American Society of Trial Consultants. Be sure to check out the two commentaries by trial consultants that follow the article. I highly recommend that any litigator read this article, as the theory is relevant across a wide variety of cases. Given what a good job the authors did in explaining TMT, I won't go into much more detail here.

I would only ask my readers to consider Americans' responses to the events of September 11, 2001. People shouted their patriotism from the rooftops. Men and women joined the military in record numbers. Politicians sported American Flag pins and the President's approval ratings skyrocketed. People were terrified and they took every step possible to shore up the element of their world view that had been most threatened: their Americanism. Congress even went so far as to rename French fries Freedom fries in response to perceived inadequate support from the French government. It was the ultimate case of rallying 'round the flag.

The Jury Expert article includes references to dozens of studies confirming the effects of TMT and does a nice job of reviewing a few examples. It is quite remarkable how much a person's behavior can be affected by simply thinking about something morbid for a few minutes.

Terrorism and TMT

I cannot imagine a crime that calls up concerns for one's own mortality more than terrorism. The more that a juror finds herself obsessing about death, in response to the details of a terrorism trial, the more punitive she will likely be to a defendant whose beliefs and actions directly threaten her own world view.

Typically, a change of venue is only granted when a judge is convinced that pervasive pretrial publicity has made it virtually impossible to impanel an impartial jury. While the Mehanna case has certainly received a great deal of publicity already, it will be an uphill struggle for Mehanna's lawyers to secure a change of venue. The U.S. Attorney's office will argue that the publicity has been national in scope, so that the defendant will face similar exposure in other venues. But Mehanna faces a more subtle challenge associated with being tried close to home. When prospective jurors learn of the charges against Mehanna, they will realize that it was their own lives that were in danger. From what I understand, the defendant is accused of planning to bomb local shopping malls. So, every prospective juror will realize that she might have been one of his victims. This will ramp up obsession with mortality and morbid concerns, thereby ratcheting up juror disapproval of Mehanna's world view. As the jurors dig in, in defense of all they hold dear, Mehanna will be seen as an enormous threat. While a jury in some other part of the country would certainly also view these alleged terrorist plans as reprehensible, such jurors would not necessarily experience a similar sense of mortality and dread.

There is one byproduct of TMT that might work in Mehanna's favor. One item that is seen as emblematic of "American Justice" is a firm commitment to fair procedures. Americans identify strongly with the "beyond a reasonable doubt" standard. They believe that one of the things that makes our country great is that we do everything "by the book" and in a "transparent" way -- not like those "crazies" in the Middle East. As such, jurors in this case are likely to be extremely careful to follow all court rules and judicial instructions. Juries in prior terrorism cases have ruled in favor of defendants when they have perceived that those defendants didn't really get a fair trial or when the evidence has been sketchy.

So, while jurors in this case will feel strong psychological pulls to be punitive towards Mr. Mehanna, they will also feel a strong need to dot all their i's and cross all their t's and generally do everything by the book. Because that is the American Way. The only question is whether these conscious efforts cans overcome natural subconscious tendencies to punish a man who has made jurors feel exposed and vulnerable.

What is a defense attorney to do?

This will obviously be a tough case to defend. That said, there a few things Mr. Mehanna's attorneys can do to mitigate the negative consequences of TMT and use its positive features to their advantage.

1. Make sure to ask prospective jurors about their emotional reactions to hearing about the arrest for the first time. Anyone who replies, "I thought, 'Oh my God! That could have been me in one of those malls!'" is of concern.

2. Spend a lot of time in opening and closing emphasizing the dimensions of procedural fairness built into the American criminal justice system. Burden of proof. Evidentiary rules. Reasonable doubt standard.

3. Remind jurors of their obligations as Americans to follow those rules.

4. Characterize the defendant as an "American who was led astray." It is key to convince jurors that the defendant is not the threat. The threat is those who would seek to use someone like the defendant as a tool in their diabolical plans.

5. During the jury selection process, make good use of some authoritarianism index, in an effort to identify those prospective jurors most likely to give vent to their punitive tendencies.

Moving Forward

Mr. Mehanna's most recent court hearing, on his detention status, was postponed until November 12, so that his attorneys could have more time to prepare. I have a feeling that this case will take a long time to move through the trial process. As it does so, I will be sure to provide updates on this blog, along with commentary on any features of the trial that seem noteworthy.

More Perils of Probability

British statistician, geneticist and probability guru, Peter Donnelly, recently gave a TED lecture about some of the common mistakes that people -- all people -- make when considering some fairly common probability scenarios. Peter is a very good speaker and present a self-deprecating wit that I find appealing. He is also very good at explaining what he does.

I was surprised, and delighted, to discover that he used as his primary example a scenario virtually identical to the one that I regularly employ to introduce lawyers to the perils of probability in tort litigation. The example involves a hypothetical person who receives a positive result to an HIV test. The underlying question is: "What are the chances the person is actually HIV positive?" My version of the example was derived from actual statistics concerning the incidence of HIV in a particular population (white women with no symptoms or risk factors). While Peter's example involves numbers that run in roughly the same ballpark, it is unclear whether he based them on real data or fabricated them for ease-of-use. Peter focuses his talk on the fact that such probabilities are hard to work with and that people are known to make particular kinds of mistakes when interpreting them. While I recognize such difficulties in my own presentation, I go on to focus on presentation strategies litigators can use to help juries correctly interpret probabilities. Anyway, it must be a really great example!

I am including here both Peter Donnelly's TED lecture and my own presentation slides on the topic. Peter gets to the common example about 40% of the way through his talk and you can find my treatment about 2/3 of the way through my slides (for those disinclined to watch both all the way through).

First Peter's talk.



Now, mine (No voice-over, I'm afraid. Feel free to invite me to present to your firm or lawyers group).

[Download presentation or view online]

The basic lesson to be learned here is that jurors are just not very good at math. Few have any experience with probability theory, especially anything related to very low-probability events. As I have discussed before, in relation to hindsight bias, tort cases typically stem from such extremely unlikely events. When jurors are faced with information processing tasks that are beyond their abilities, they typically resort to cognitive short-cuts. The most common of these is to use "intuition." Unfortunately, as Peter Donnelly so astutely illustrates, our intuitions about probabilities can often be completely off-the-mark. But the evaluation of reasonable care requires an accurate evaluation of the risks facing the care-taker. Litigators, then, have a Herculean task in getting jurors to understand the true underlying probabilities of a case.

I believe that two basic strategies are critical to getting jurors to appreciate the true risks faced by parties in a tort dispute. The first is reasoning by analogy. It is important to connect the choice problem faced by a decision-maker to something with which jurors are themselves familiar. Second, visual learning is key. Represent probabilities in a way that allows an average person to just "get it" by visual inspection. Ask yourself whether your exhibit passes the ol' "interocular impact test."

Finally, I want to point readers who, might not have watched Peter Donnelly's presentation all the way through, to a very interesting and disturbing example he presents at the end of his talk. In England, a woman was convicted of having murdered her two children, both of whom died of "crib death." The jury was largely convinced to convict on the testimony of an expert who testified that the chance she was innocent was simply the probability of any baby dying of crib death squared. That is, the expert chose to ignore the obvious dependence of the two events. If environmental or genetic factors made it more likely that one child would die in this way, those same factors would, of course, increase the likelihood that another child in the same family would also die in this way. That is, the fact that the defendant's two children died of crib death actually made it less likely that either resulted from foul play -- exactly the opposite of the expert's testimony. And the scariest thing is that not a single person in the courtroom called him on it. No one appreciated the enormous error in reasoning that was being committed, resulting in an innocent woman being sent to prison. Fortunately, her conviction was later reversed on appeal and the expert in question was discredited.

So, in your next case, make sure that (1) you have the probability theory right, (2) your expert does, too, (3) your expert is prepared to teach the jury how to evaluate such probabilities, and (4) you support such efforts with well-designed visual aids, both to reinforce your expert's testimony and also to guide jurors who might remain "confused" by the math.

Some Podcasts Fill a Niche, Others Miss the Mark

A couple of weeks ago, I posted a LinkedIn poll about work-related podcast listening habits. I had a few reasons for being curious about this question. First, as I am considering hosting a podcast on jury issues, I wanted to get a sense of my potential audience. Second, while podcasts clearly comprise part of the "social marketing" landscape, they have received much less attention in the press (and on blogs, from what I can tell) than blogs, twitter feeds and social networking sites. Finally, I wondered whether the demographic trends typically associated with technological adoption and Web 2.0 applied similarly to podcast usage, especially given the ubiquitousness of iPods and other digital audio devices.

Using a LinkedIn Poll

A LinkedIn poll has certain advantages and other disadvantages. The main advantage is that one can easily broadcast its existence to one's entire LinkedIn network. In my case, that is about 250 people. In addition, one can post the link to the poll on the discussion boards of any LinkedIn groups to which one belongs. (I did so for about 5 groups). LinkedIn users who just like checking out the ongoing polls can also find and answer any poll they choose. Regular LinkedIn updates about recent activity of connections can serve to remind (or annoy) people that the poll is ongoing. Finally, LinkedIn provides a unique URL for each poll so it is possible to invite people to see/take a poll from Twitter, a blog or a website.

On the downside, a LinkedIn poll is limited to a single question with a list of discreet answers. So, there is no way to ask a series of nested questions or even to collect poll-specific data about respondents. Also, only LinkedIn members can answer a free poll. For a fee, LinkedIn will expand the subject pool outside of the LinkedIn community. Back on the positive side, there is an opportunity for respondents to leave comments.

Work-related Podcast Usage



As you can see from the graph above, I received 23 responses. Not exactly a deluge. As many of you in my network can attest, I tried pretty hard to encourage people to take the poll. It is hard to know whether the majority of folks who chose not to participate are people with zero interest or experience with podcasts, or simply weren't willing to take the few minutes to complete the poll. Hey, time is money. In something like this, the temptation to free-ride on the efforts of others is pretty high. I plan to leave the poll active for a while longer to see whether this blog entry inspires a few more people to take the poll. (<-- Hint, Hint)

So, what do we make of these results? Well, the first thing that stood out for me is that over half of the respondents indicated that they rarely or never listened to work-related podcasts. And this is from the small set of people sufficiently interested in the topic to take the poll. This suggests that the universe of available podcasts is not serving well the needs of the professional community. Most of my professional contacts are connected in some way to the legal profession, so the results are likely most relevant in that arena. Perhaps doctors and painters and chimney sweeps all have great podcasts. But, despite the recent proliferation of law-related podcasts, they don't seem to have developed a loyal following (at least according to my very limited sample).

All is not lost. Almost a third of my respondents indicated that they listen to a podcast related to their jobs weekly. This probably means that they actually subscribe to at least one podcast, perhaps more. Some podcasts produce new episodes weekly, but it is more common for new episodes to come out monthly. So, in order to listen weekly, it is probably necessary to subscribe to a few different ones. One person said that s/he listened to a work-related podcast every day. Boy, would I like to know what business that person is in.

Given the bimodal nature of the distribution, it seems that the podcast market hasn't really evolved to serve most professionals' needs. That said, certain niches must be getting served pretty well. I wonder if, during this early period in the market's evolution, related podcasts operate more as complements than substitutes. That is, a critical mass of podcasts on a topic needs to emerge so that professionals in that field see podcasts as a viable method of keeping up-to-date on industry developments.

Demographic Differences

Given the small sample size, these results are really only suggestive. I wouldn't dream to generalize from what we have here. First, there did not seem to be any real difference with respect to gender. In my sample, the heavy podcast listener was a woman. On the other hand, somewhat more women than men reported never listening to podcasts. Things are a little more interesting with respect to age, especially given the conventional wisdom about generational differences in technology adoption.



Well, as predicted, our podcast addict was a youngster. On the other hand, the rest of our heavy podcast listeners were over 35. The 35 - 55 age group made up more than half of our sample and their listening habits were all over the map. One lesson seems to be that one should not target professional podcasts exclusively to gen-x or gen-y types. Professionals of all ages are savvy enough to make good use of this technology (keeping in mind that everyone who took this poll was already savvy enough to be on LinkedIn).

What next?

I guess I am a little surprised that more respondents didn't indicate that they were podcast fans. This begs the question of what more systematic market research has discovered regarding podcast usage. There is a good longitudinal study of podcast listeners conducted by Bridge Ratings here. They actually revised down their estimates of podcast listening growth (2006 estimates compared to 2005 ones). On the other hand, a nice longitudinal study of social media usage by Inc. 500 companies, conducted by two UMass researchers, shows that the percentage of these companies that produced podcasts increased from 11% in 2007 to 21% in 2008. A nice predictive study of podcast usage is summarized here, with many graphs and tables.

I think that the podcast market is suffering from a matching problem. It is still unclear which type of content is effectively conveyed through podcasting. As video podcasting develops (I predict that most will be video within two years), the answer to this question might change dramatically. Podcasting will probably evaporate in certain fields where the demand just seems too weak. On the other hand, certain fields will have full podcast immersion, with a wide variety of high quality programming to choose from. Got any ideas about which industries will be in which category? Then, submit a comment below and put your predictive talents to the test.

One thing is certain. A lot more market research about podcast listening habits needs to be done. Right now, it seems like everyone is surfing the wave of technology adoption, firing off podcasts because everyone else is doing it. Eventually, good data will have to replace conjecture about where the podcast market is heading.

Avoiding the Black Swan Effect at trial

Nicholas Nassim Taleb's book, The Black Swan: The Impact of the Highly Improbable, introduced a wide lay audience to the the "black swan effect," whereby people tend to overgeneralize based upon extremely rare, but impactful events. More generally, in psychology, this is referred to hindsight bias. The basic idea is that highly improbable events tend to get noticed. They stick in the brain and are easily accessed mentally. As such, people tend to underestimate just how improbable the event was. In addition, most people are really crummy at comprehending either really large or really small numbers. So, for example, an average person can't really distinguish the difference between a one-in-a-million chance and a one-in-ten-million-chance. Both are pretty much "never gonna happen." By contrast, people are pretty good at appreciating the difference between a coin flip and a one-in-twenty chance. Mathematically, the two comparisons are identical. The first event in each pairing is ten times more likely to happen than the second one.

Recently, Taleb has teamed up with Daniel G. Goldstein, and Mark W. Spitznagel to apply the black swan effect to corporate risk management in an article in the Harvard Business Review, enititled, "The Six Mistakes Risk Managers make in Risk Management." The focus of the article is to help managers recognize hindsight bias in their own decision-making. They caution these risk managers not to think they could have predicted these events from the past. Not should they use them to predict the future.

Given how much difficulty even seasoned risk managers have overcoming hindsight bias, it should not be surprising that ordinary people find the problem almost insurmountable. The problem is that many torts are the results of Black Swan events. A very improbable event takes place, adversely impacting someone in a profound way. That person sues and some company finds itself defending a failure to predict and prevent the unforeseeable. So, a risk manager also needs to understand this issue because it profoundly affects her company's performance in court.

I wrote an article on how (poorly) jurors handle issues of statistics and probabilities for The Jury Box, back when it was a newsletter. In addition, I have given several presentations on this topic, some slides for which can be found here. Given the timeliness of the topic (Really, it's timeless), I am reprinting that original article below. I hope you find it instructive.

A jury trial can be Risky Business (Don’t worry – not all issues will make reference to Tom Cruise). In addition to the inherent uncertainty associated with putting your case in the hands of a group of laypersons, a jury trial is complicated by the fact that jurors themselves are notoriously unreliable at evaluating risk. In this issue I focus on how juries handle probabilities, risks and cost-benefit analyses.

If it weren’t for bad luck, I’d have no luck at all
Most litigation involves a dispute over an unlikely event. A patient develops an allergic reaction, brakes fail, a grape rolls down an aisle to precisely the place where a little old lady is about to take her next step. These low-probability events turn into legal questions of foresee-ability, reasonable care and adequate notice, all of which turn, to one degree or another, on just how unlikely the jury believes the event to have been.

One common problem that jurors have evaluating probabilities is known as hindsight bias. When someone learns of a low-probability event having actually occurred, there is a tendency to treat it as if were much more likely than it was. If a juror places greater likelihood on the event, she will believe it to have been more easily anticipated and will assign greater urgency to guarding against it. The result is that defendants are often blamed for not anticipating and preventing truly freak accidents.

An alarming second order effect is that the more bizarre the circumstances, the greater the hindsight bias. This may be because really weird circumstances are more easily remembered and recalled by jurors.

One strategy for overcoming hindsight bias is to argue by analogy to something with which jurors are likely to be familiar. The problem usually confronts defense counsel, so it is also wise to choose an analogy for which jurors might feel some responsibility. For instance, if one argues that an allergic reaction to a medication is as common as an automobile accident caused by a sneezing driver, jurors may conclude that the situation was not very dangerous, given that they never pull over their cars just because they need to sneeze.

All costs with no benefits
The economic theory of reasonable care in tort goes back at least as far as Learned Hand’s opinion in Carroll Towing. A cost-benefit analysis showing that all economically efficient precautions were taken is supposed to be a defense to a charge of negligence. Many industry regulations make such calculations mandatory. One might imagine, then, that jurors would look favorably upon companies who perform cost-benefit analyses. One would be dead wrong. Typically, whatever appreciation that jurors might have for a company thinking hard about safety is overwhelmed by their discomfort in reducing human pain and suffering to a mathematical calculation, especially one involving money.

Several empirical studies have shown that defendants are almost always punished for performing cost-benefit analyses, regardless of how clearly the calculations support the measures taken. Plaintiffs’ attorneys are wise to play up the cold, callous, calculating nature of the defendant’s methods. By contrast, defense counsel has the difficult task of convincing the jury that her client cares about safety without the testimony being reduced to probabilities, statistics and dollar signs. Again, reasoning by analogy is often the best policy, alerting jurors to the many cost-benefit calculations they perform in their every day lives, with a focus on those costly precautions most people choose not to take. For instance, it is clearly safer for children to wear helmets on playgrounds but almost no parent makes her children wear them.

It is also worth noting that companies are actually punished for placing a higher value on human life in their cost-benefit analyses. While this high value might help marginally in avoiding liability, it creates a costly anchor when jurors are calculating damages.

The zero risk fallacy
Many jurors mistakenly believe that it is possible to make products, services and treatments absolutely safe. They conclude that any risk of loss or injury is unacceptable. They have essentially adopted a strict liability standard despite the law to the contrary. Others have simply decided that manufacturers or service providers, rather than consumers, should be responsible for all safety precautions because of perceived wealth or knowledge advantages.

Many jurors are troubled by the idea of bad things happening to innocent people. Some conclude that the world is unfair and that the poor victim is entitled to be compensated for her loss. The only source from which the jury can take money is the defendant, so liability is attached despite conclusions that the defendant did nothing wrong. The inadmissibility of evidence of insurance can exacerbate this problem since jurors often assume that the absence of any mention of insurance means that the plaintiff had none.

Plaintiffs face their own risks
Juror difficulties with risk and probabilities do not always benefit plaintiffs. Plaintiffs who are engaged in risky activities are sometimes entitled to compensation because defendant’s conduct unacceptably increased the risk. Jurors sometimes conclude that risk-takers implicitly assume all responsibility for their well-being. For instance, a juror might think, “Hey, skiing is a dangerous sport. If you get hurt, you have no-one to blame but yourself.” A plaintiff will have trouble convincing such a juror that the ski-binding manufacturer is liable for her injuries.

In most cases, both parties have behaved imperfectly. Some jurors implicitly adopt a contributory negligence rule, whereby any fault by the plaintiff bars compensation. I recommend that counsel make sure that the jury is given a very clear instruction on negligence. Ideally, the jury should be given the instruction in advance of opening arguments (an increasingly common practice, endorsed by the ABA). The idea is to get the jury to focus as quickly as possible on the defendant’s conduct.
I also recommend that plaintiff’s counsel consider a “de-fanging” strategy, whereby the plaintiff owns up to any personal mistakes. This will prevent defense counsel from raising the plaintiff’s failings in a manner that suggests to the jury that they somehow excuse the defendant’s conduct. If the plaintiff conveys confidence in the legitimacy of her claim despite a full appreciation of her own shortcomings, the jury is more likely to do so, as well.

Identifying Potential Leaders Critical to Jury Selection

Leaders become forepersons and forepersons control deliberations

In the most recent issue of The Jury Expert, the excellent online journal of jury behavior, published by the American Society of Trial Consultants, Barbara Bushell has contributed a very nice piece on how "leaders" affect jury deliberations and verdict choice.

Barbara begins by identifying some of the common characteristics of jury leaders (high status jobs, more formal attire, perceived expertise, etc.) and then discusses the kinds of behaviors engaged in by such people that often get them chosen as jury forepersons. I won't spend much time on these points here, but I recommend that you read the article. Among other things, Barbara reviews (and cites) some of the important research articles from which we have learned so much about leadership on juries.

What I find particularly salient is how leaders can exercise control over jury deliberations, especially when handed the title of "foreperson." Barbara mentions several of the levers at the foreperson's disposal. A foreperson controls the floor, determining who can speak when. She calls for votes when she thinks the time is most appropriate -- perhaps when she suspects she has a majority of support. The foreperson often controls whether the deliberation will be evidence-driven or verdict-driven (something I have discussed previously in The Jury Box), with all of the attending consequences of the two modes. Barbara also cites several studies confirming the influence of a foreperson's private evaluation of compensatory damages on the final award chosen by the jury.

Not All Leaders are Created Equal

Barbara goes on to make a distinction between instrumental leaders and emotional leaders, something I hadn't really thought much about before. An instrumental leader is someone who is respected and/or looked up to for a particular skill or attribute regarded as important to the case. It might be someone who takes thorough notes, or someone who has served on several juries before. Of course, jurors with case-specific expertise are often perceived as instrumental leaders.

An emotional leader, however, is someone who helps the jurors get through the process. She might be the queen of positive reinforcement, or the first to recommend a compromise that everyone can live with. Such a leader is seen as a positive influence on the deliberations, but she may not be especially knowledgeable or astute.

I think this distinction between leadership types can be quite important. An instrumental leader is more likely to have an agenda. Her influence is likely to be unidirectional. On the other hand, an emotional leader is more likely to lead the jury towards moderation.

A couple more points about leaders

I would recommend that all of you read Barbara's article. You might even find yourself consulting some of the empirical studies directly. I want to take just a little time here to add a couple of items not covered in the Jury Expert piece.

The first is that leaders (especially instrumental ones) are also likely to be unyielding in their opinions about the correct verdict. As I have written about in a couple of my recent posts, juries rarely reach unanimous consensus, even in those cases where they render unanimous verdicts. This means that some jurors have compromised their true opinions about the case to vote with everyone else (conforming dissenters). The folks most likely to be leaders are not going to be those vote-switching jurors. This means that it is especially important during jury selection to figure out not only whether a prospective juror is likely to perceive your case sympathetically, but also whether she is a stick-to-her-guns leader type or a wishy-washy follower type. You have a limited number of peremptory challenges. Your case can probably survive a non-supporter who doesn't make waves. Save your challenges for the obvious leaders, whenever you are concerned about which way they will lead.

My final point has to do with the methods by which juries vote. The jury foreperson will almost certainly control this procedural item. Since a jury is not instructed on how to take votes, the foreperson really is free to conduct voting however she pleases. Will the foreperson call for a secret ballot? Perhaps she'll go around the table. Maybe she's left-handed and will go around the table in the other direction! A strong-willed foreperson might suggest a verdict and challenge anyone to disagree (equivalent to calling for unanimous consent). I have written previously about the strategic consequences of these various types of jury voting. Adding this concern to the others raised by Barbara Bushell in her article, it really is critical that likely leaders on the jury be on your side of the ledger.

Medical Malpractice Verdicts only tiny contributor to health care costs

Oh, the humanity!!!!

Arghh!!!!! Ack!!! WTF, WTF, WTF?????!!!!
Well, that was me yesterday about this time. You see, I had written about 5 pages of really good stuff about medmal cases and healthcare. I was on a roll!!! Then, "poof" -- it was gone! All the text disappeared from the Blogger editing window. As I sat there in horror, the auto-save kicked in, rewriting everything I had written with a blank page. I frantically googled "retrieve old versions of blog post drafts," but to no avail. It was...... gone. Let this be a lesson to all of you out there with blogs. Methinks I will start writing my blog posts in a standard word processing program and then copying them over.

Back to our regularly scheduled programming.

The healthcare debate rages on. Well, people are raging on, but it hardly qualifies as a debate, given that more false "facts" are circulating around than true ones. This is why David Leonhardt's article in the New York Times this week was such a breath of fresh air. Mr. Leonhardt collected the results of several recent studies on the impact of medical malpractice lawsuits on healthcare costs, interviewed several of the researchers, and presented his findings in an organized, cogent manner. Freaky, eh?

Don't blame the plaintiffs (or even their lawyers)

The first important finding is that money spent on medmal litigation is a truly negligible drop in the proverbial bucket when it comes to the cost of healthcare. According toLeonhardt,

All told, jury awards, settlements and administrative costs — which, by definition, are similar to the combined cost of insurance — add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.

Since this figure includes all the administrative and litigation costs, the amount that insurers pay out to plaintiffs is even smaller.

So, if medmal litigation really isn't particularly costly, why does it receive such media attention? Why do the insurance companies and conservative commentators succeed in convincing many Americans that there is a crisis in medmal litigation? First of all, those interested parties work really hard to make that argument. Second, the rare enormous damage award against a doctor or hospital is considered newsworthy. By contrast, when an injured person gets nothing, or doesn't even bother to bring suit, there is really nothing to report.

Does this mean that behavior related to medical malpractice litigation is unrelated to increasing healthcare costs? Not so fast, amigo. Leonhardt also surveys studies of "defensive medicine" and finds that fears of being sued does seem to drive some doctors to "over-treat" patients. According to Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association —

approximately $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate [of the cost of wasteful treatment.]

So, litigation, or more precisely, concerns about litigation, can have second-order effects on health care spending.

It turns out then that FDR was right all along: "The only thing we have to fear is fear itself." The system is not paying much associated with medical malpractice lawsuits, but propaganda about it has generated enormous inefficiencies in care.

Does the system work?

This is not to say that the medical malpractice system isn't broken. It's just broken in exactly the other direction. The real problem is that injured patients are very substantially under-compensated for the harm they suffer at the hands of negligent medical professionals. According to Leonhardt's review of current research,

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error, there are dozens more. You never hear about these other cases.

The system is actually stacked against plaintiffs in these suits and it is only getting worse. Consider recent reforms enacted in a wide variety of states. Damage awards have been capped for pain and suffering. The application of punitive damage awards has been curtailed (even by the Supreme Court in a series of highly dubious opinions). Preliminary tribunals have been established, manned by healthcare workers -- if they reject the merits of your case, you need to post a bond to take it to court. This all makes it harder, more expensive and more time-consuming to bring a medmal lawsuit, regardless of the merits of the case. As such, a health care provider is very unlikely to be successfully sued for negligent care. So, if the litigation system is adversely affecting incentives in the healthcare arena, it is doing so in the direction of encouraging poor care.

So, there are problems with medical malpractice litigation in both directions. First, every once in a while, a plaintiff really does walk off with way more money than she deserves. This is fundamentally a problem with how jurors try to calculate damages (more about this below). In the other direction, it is way too hard for a legitimately injured patient to successfully sue for the compensation she deserves. All in all, the system encourages doctors to "treat like hell" without sufficient attention to the care with which that treatment is administered.

What is a lowly trial consultant to do?

All of this implicates some pretty heavy issues, well beyond the scope of my expertise. Within the relatively narrow band of jury trial procedures, however, I do have some sensible suggestions. So, here goes.

Increase juror comprehension of medical issues

Experts need to do a better job of teaching jurors about the medical procedures being litigated. Lawyers need to do a better job of making sure their experts are in a position to teach those lessons. Make sure your expert has appropriate visuals and that the expert knows how to use them. Practice, for Pete's sake! Even better, put your expert's explanations before a focus group and find out if they actually understand what the heck she's talking about. Don't be penny wise and pound foolish. There's real money at stake here. Do you really want to count of winning despite your expert's testimony?

The courts should take a more active role in insuring that jurors understand the medicine involved in these cases. If the area of medicine is tricky or esoteric, the court should ask to hear the experts' presentations in advance. If the judge is not satisfied that the jury will properly learn the material from the scheduled experts, the judge should send the parties back to try again. If necessary, the judge should bring in a neutral expert to bring the jury up-to-speed. The adversarial system be damned, we must first-and-foremost insure that jurors understand the fundamentals of the case.

Jurors should be strongly encouraged to ask questions of expert witnesses after their testimonies. So many medical malpractice cases turn on evaluating the competing opinions of opposing experts that it is critical that the jurors understand what those experts are talking about. If a juror wants an expert to explain something over again, that expert should do so. One variation on this theme would be to have both experts available for questions at the same time, after both have testified. Perhaps this would take place immediately before closing statements.

Make the law easy to understand

Jurors in these cases have enough bewildering terms and jargon to sort through on the medical side of the ledger, they shouldn't have to worry about deciphering their instructions, too. Jury instructions should be in plain English, pre-tested for ease of comprehension (and given to the jury in writing). The verdict slip should be in the form of interrogatories whenever possible, so that the series of tasks to be completed is self-evident. This will help avoid the conflation of negligence and causation that plagues many a jury deliberation is such cases. Finally, the jury should be given a list of medical terms with definitions to bring into the jury room.

Pay special attention to damages calculations

These trials should be bifurcated. This has two major advantages. First, it reduces the effects of injury seriousness on the likelihood of the defendant being found negligent. We know from decades of experimental research that this is a serious problem. Second, jurors have very little guidance when calculating damage awards. We know that "anchors" are extremely influential, with the most salient one being the ad damnum (plaintiff's requested award) where one is permitted. By bifurcating the trial, the ad damnum can be held back from the jury until after the liability determination has been made. Once a defendant has been held liable, the defense team no longer feels compelled to avoid talking to the jury about damages. The damages phase of the trial will be more of a "fair fight", with both sides providing arguments about how much harm the victim has suffered. This will provide the jury with much more information to use in calculating an appropriate damage award.

Every little bit helps

If these relatively straightforward reforms were implemented, the likely outcome would be that plaintiffs would prevail somewhat more often on liability, but inappropriately high damage awards would largely disappear. In fact, I think that the variance in damage awards would be greatly decreased. All of this would serve to increase the predictability of jury trials in medical malpractice cases, enabling parties to successfully settle cases more often. Such a result would represent a significant savings in court costs. Hopefully, it would also effect a modest improvement in the quality of care received by patients.

Criminal jury verdicts aren't really unanimous: Implications for your practice

The Worst Kept Secret in Criminal Law

We all knew it. Right? There are lots of reasons why individual jurors vote with their peers despite misgivings. They want to be liked. They want to go home. They are tired of being brow-beaten by the others. They don't want to disappoint the judge by hanging the jury. They just don't care. What we didn't know was just how often it happened -- until now.

The statistic previously cited in the debate about the desirability and/or practicality of unanimity was hung jury rates. You've read my discussion of hung jury rates in this very blog. The estimate of the national average is between 6% and 7% of criminal trials end in a hung jury. For felony trials in some California counties, the rate is over 20%. In Oregon, which uses 10-2 verdicts, the rate is below 1%. The problem, of course, is that the hung jury rate is a very poor proxy for what we really wanted to know: How often do juries remain "deadlocked" after completing deliberations? (where deadlock refers to a situation where a unanimous consensus about the right verdict has not been reached).

Nicole Waters of the National Center for State Courts and Valerie Hans of Cornell Law School have finally taken a step towards answering this important question. As part of the National Center for State Courts project on hung juries, the authors gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.

The Non-Unanimous Bombshell

Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the Waters and Hans study, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.

According to the authors, only 82 of 351 dissenting jurors ultimately hung their juries. The article suggests that the average number of dissenters for cases resulting in a hung jury was just over 3. Therefore, we can tease out that about 25 of these cases resulted in a hung jury, or about 7% of the sample (consistent with previous estimates). By contrast, there were typically about 1.5 conforming dissenters on any case that returned a verdict (if there were any conforming dissenters at all). So, for every single hung jury, there were approximately 8 cases in which the purported unanimous verdict was a farce. When debating the merits of unanimity in the future, hopefully scholars and pundits can move beyond the misleading metric of hung jury rates and focus on the real problem at hand: How do we feel about a system that forces jurors to compromise their own values and judgments to conform to the majority will?

Making use of these results in your next case


While we wait for the Supreme Court and the state legislatures to figure out what to do with these revelations (probably nothing), you should consider them carefully as you prepare for future cases.

The first lesson is that very few criminal cases result in truly unanimous juries, even after prolonged deliberations. If you are a criminal defense attorney, you should always hammer away at the "personal responsibility" angle of jury service. Remind jurors that each has taken an oath to hear all the evidence and reach a conclusion based on her own wisdom and conscience. Emphasize that the Court would never want any juror to vote for a verdict she did not believe was correct. I would include language about being sympathetic to their plight: "Sometimes peer pressure can be strong. Sometimes it is just easier to go along with everyone else, to avoid conflict, to be cooperative. I recognize any sympathize with these instincts. But just remember that the Court has not tasked you with being accommodating or friendly or cooperative. The Court has tasked you with doing the right thing."

The authors of this study have examined some of the things that lead dissenters to hold their ground and hang the jury, rather than giving in to the majority. The first result, supported elsewhere, is that dissenters who favor acquittal are less likely to switch their votes than are dissenters who favor conviction. So, in a case with substantial support on both sides, an acquittal is much more likely than a conviction. A prosecutor needs to be certain that she will secure a very substantial majority for conviction in order to avoid a hung jury. By contrast, a defense attorney can secure an acquittal, even if a handful of jurors initially favor conviction.

Procedures matter. I have written in my column for Lawyers Weekly USA about the consequences of different methods of taking votes in the jury room. As I predicted in that piece, Waters and Hans discovered that juries that took secret ballots were more likely to have dissenters on them. The logic here is that a dissenter will worry less about sticking out like a sore thumb if she can register her objection in private. A secret ballot also allows potential dissenters to discover whether they have any allies on the jury. There might be three or four jurors who are reluctant to be the only one raising a hand in favor of the minority position. As a result, none of them do. A potential block of dissenters is never discovered. A secret ballot avoids this game of "chicken."

I have previously discussed in The Jury Box the importance of "straw poll timing" for the nature of jury deliberations. Juries that immediately take a vote find themselves embroiled in "verdict-driven" deliberations, while those who delay voting spend more time in the generally superior "evidence-driven" mode of deliberations. After a vote is taken, jurors tend to fall into camps, with spokespersons emerging for each. As a result, fewer jurors participate in discussion and jurors tend to get locked into their views. The Waters and Hans study shows a small but significant effect of early polling of jurors. When a jury takes an early vote, it is more likely that at least one juror will disagree with the final verdict. This is probably because an initial dissenter is more likely to feel "outvoted" than "convinced" if the deliberations devolve into a discussion of how to get everyone to vote the same way -- rather than getting everyone to agree.

If you have a case in which you are advocating what you fear will be the "unpopular" position (thought legally defensible), you would be advised to encourage jurors to vote by secret ballot. While you cannot instruct the jury to vote in a particular way, keep in mind that they have no explicit instructions about procedures. As such, a subtle suggestion in closing can be effective. "I want you all to keep an open mind. As you tear up those little slips of paper to cast your ballots, I hope that you will consider everything my client has said on the stand..."

It is much harder to find a way to suggest that jurors take an early straw poll. In fact, many judges now recommend to juries that they not be in a hurry to take a vote, first spending a fair amount of time just sorting through the evidence. Remember that an early vote is a two-edged sword. While it might cause your supporters to harden their positions a bit, it also reduces their abilities to sway the votes of jurors on the other side.

One important question is how volatile are juror evaluations of cases. That is, do they generally change their minds during a case? The answer to this question is a bit unclear. Over 62% of jurors indicated that they had changed their minds at least once during their case. But what does a juror mean when she says she "changed her mind"? Given that 40% of conforming dissenters admitted to changing their minds during deliberations, as compared to 25% of holdouts (those who hung their juries), I fear that many respondents equated changing their votes with changing their minds. The percentage of jurors who reported changing their minds at some stage prior to deliberations is closer to 25% (difficult to pinpoint from the reported data). Some of these respondents are undoubtedly reporting an earlier change as a compensatory mechanism for cognitive dissonance -- they don't want to admit to themselves that they were bullied into changing their votes during deliberations. That said, it would seem a conservative estimate that about one in five jurors really does change her evaluation of the case at some point in the proceedings.

The lesson here would seem to be that a case is not really won or loss during jury selection, as many cynics would argue. There are a substantial number of jurors who can be convinced to re-evaluate their initial positions during a trial. So, pay close attention to your trial technique. Make sure your case is coherent and clear. Finally, be sure to hit the high points in closing to reinforce the items that might have gotten jurors rethinking their views.

This brings us to the question of jury selection. It turns out not to be so critical to select a jury fully comprised of your supporters. These juries seem few and far-between. Most cases result in at least some form of disagreement among jurors that must be resolved during deliberations, either through a genuine exchange of ideas or, more likely, the conversion of conforming dissenters. This reinforces something that trial consultants like me have been trying to explain to clients for years. When evaluating a prospective juror, it is important to consider not only whether the juror is likely to be sympathetic to your case, but also what role the juror is likely to play on the jury. If the juror turns out to favor the other side, is she going to be a holdout or a conforming dissenter? I can't always tell if a prospective juror is going to be pro-prosecution or pro-defense, but I usually have a good sense about whether she is likely to be a leader or a follower, whether she seems more eager to please the court or those around her, whether she relishes the opportunity to be a contrarian. These characteristics are critical and must be explored during jury selection.

OK. This post is really, really long. That's because I think these results are really, really important. Among other things, they emphasize the importance of relying on data, not conjecture. Those who presumed that unanimous verdicts were produced by unanimous juries are just dead wrong. What else might they be wrong about? Do you really want to rely on conjecture the next time you need to pick a jury, or prepare a witness, or select a trial theme? There is no substitute for good research. OK, there's my quick sales pitch.

Please comment on this post! Let's see if we can stir up some trouble.

Bowen v. Oregon: Why non-unanimous jury verdicts are Constitutional in criminal cases

A Rejoinder to the Amicus Brief filed by Samuel Gross, et al.

In Bowen v. Oregon, the Supreme Court of the United States is asked to reconsider its decisions in Johnson v. Louisiana and Apodaca v. Oregon (companion cases from 1972), finding that non-unanimous jury verdicts in criminal cases are consistent with the 6th Amendment of the Constitution. Some of the most respected scholars in the field of jury behavior -- political scientists, law professors, psychologists, sociologists and economists -- have banded together to submit an Amicus Curiae (friend of the Court) brief in support of the petitioner. That is, they all want unanimous verdicts to be Constitutionally mandated.

I always teach the Apodaca and Johnson cases in my class on the civil and criminal procedures of jury trials because the opinions are wonderful examples of arguments based on conjecture without empirical foundation. The majority argues that there is no evidence to suggest that jurors won't deliberate responsibly, regardless of the decision rule. The minority contends that there is no guarantee that the jurors will deliberate responsibly without unanimity. What we are left with is a disagreement about human nature, with neither side supported by any data. In 1972, the "optimists" won by a nose, with a jumble of separate opinions spread over two cases.

Gross and his colleagues recognize explicitly in their brief that the Court lacked empirical data in 1972, but point out that there have been many empirical studies on jury deliberation and decision-making over the past 37 years. As such, we no longer need to rely on conjecture. Let the data speak for themselves.

I hate the movie, "Twelve Angry Men." As drama, it is pretty compelling, but as a lesson in deliberation and jury behavior, it is the pits. My students all rally around the idea that unanimity is critical because otherwise Henry Fonda never would have been able to save that young man's life! It is truly ironic, then, that I find myself as a minority of one, disputing the conclusions of more than a dozen esteemed colleagues, some of whom are good friends. The problem is: they're just plain wrong.

They are, of course, correct that there has been a lot of empirical research on jury behavior over the past few decades. Much of the best work has been conducted by the very scholars who have signed the brief. Unfortunately, the data just don't tell us the story these folks wish they did. I will outline a few things here, but a complete rebuttal can be found in my 2000 article, co-authored with Warren Schwartz, published in the USC Interdisciplinary Law Journal, entitled "And So Say Some of Us...: What to do when jurors disagree." You can access the full article here.

The Rest of the World

We inherited our common law system from England, as did Canada and Australia. It is important to realize that England has been using a 10-2 decision rule from criminal trial since before the Apodaca and Johnson decisions. There has been no crisis of confidence in jury verdicts in England. No-one is crying out for the return of unanimity. In fact, with the hung jury rate rising to 0.7% (That's 7 hung juries for every 1000 cases), there have been calls to relax the decision rule even further. The states of Australia use a variety of decision rules and the couple retaining unanimity have seen recent public clamor to dump it in favor of 10 - 2 or 9 - 3.

Most other countries in the world use some form of "lay judges" for certain kinds of criminal cases. These folks usually sit in judgment with a small group of professional judges. None of these countries employ a unanimity rule. They usually employ some form of qualified majority that prevents the judges from "out-voting" the laymen. Japan just implemented jury trials for the first time since the Second World War. They use mixed panels (3 judges and 6 laymen) with a simple majority rule.

It is also worth pointing out that the courts that evaluate jury verdicts for "miscarriages of justice" and other decision-making infirmities make their decisions by simple majority rule. Military courts martial are conducted with a 2/3 majority rule. Similarly, when the Senate acts as a jury in impeachment proceedings, it uses a 2/3 majority rule. Let's not forget that George Bush won the 2000 Presidential election by a vote of 6 - 3. In light of the thousands of soldiers and civilians who have lost their lives as a result, it is hard to imagine any judicial decision with larger implications.

Does deliberation suffer without unanimity?

In light of the exceptionalism of the American unanimity rule, one might sensibly wonder,"What is everyone so worked up about?" Well, criminal defense attorneys are clearly concerned that conviction rates will go up. But what about the academics who signed this amicus brief? The rallying point for this group is that deliberations are superior when a unanimity rule is used than when a majority or supermajority rule is used.

One of the primary forms of evidence for this proposition is the post-study participant satisfaction survey. Mock jurors are asked how "satisfied" they are with their experience and how "confident" they are in the verdict chosen by their panel. Unsurprisingly, jurors in the unanimity setting express greater satisfaction and verdict confidence. Cognitive dissonance can be a wonderful thing. Since all of the jurors in the unanimity setting voted for the same verdict, by definition, they are, of course, inclined to report satisfaction with the result. To admit otherwise would be to impugn their own decisions to vote with everyone else. By contrast, a juror who was outvoted can prop up her own self-image by claiming that the deliberative process must have been flawed in some way. Such opinions can only be expressed in the non-unanimous setting. Hence, regardless of the objective quality of both the deliberations and resulting verdict, we would expect to see the differences in self-reporting that are regularly reported.

Another metric that is often summoned to support unanimity is the length of time that a mock jury spends deliberating. In most studies, juries using unanimity deliberate for longer than do juries using some form of supermajority rule. But this begs the question: "Is all deliberation good deliberation?" Imagine a twelve person jury that spends two hours carefully reviewing all the evidence and testimony, establishing a timeline they can all agree to, and coming to a mutual understanding of what their instructions are asking them to decide. They then take a vote and discover that 10 jurors have been convinced of the defendant's guilt beyond a reasonable doubt and two have not. The two "holdouts" are somewhat more mistrustful of the police officer's testimony and seem to have a somewhat more demanding conception of reasonable doubt. So far, everyone on the jury has behaved admirably. Information has been shared, opinions expressed and conclusions drawn after careful consideration. In order to reach a verdict, however, the 10 majority jurors will have to convince the other two to change their votes. Through browbeating, exasperation and sometimes personal attacks, such a majority will usually get the holdouts to acquiesce. This process usually takes a while, so "deliberation" has taken longer. But what has been accomplished? Two jurors have been forced to vote against their consciences, civility has been sacrificed and the public has been lied to. Is this "better" than letting the jury hand down a 10-2 verdict?

Are unanimous verdicts really unanimous?

One of the studies often used to support the "unanimous deliberations are superior" hypothesis is by Nemeth (cited in the amicus brief). He compared six-person juries operating under unanimity with those operating under a 4-2 rule (He carefully constructed the juries so that half of each sample started with a 4-2 majority for acquittal and the other half started 4-2 for conviction). What no-one (but me) seems to focus on is that the self-reporting of participants after the study indicates that virtually none of the unanimous verdicts were the result of actual unanimous consensus among the jurors. Consider the table I made from Nemeth's data.



To underscore the important point that a unanimous verdict does not necessarily reflect unanimous consensus, we turn to a very recent study conducted by Valerie Hans, one of the signers of the amicus brief. In her article with Nicole Waters, entitled "A Jury of One: Opinion Formation, Conformity and Dissent on Juries," ( 6 (3) Journal of Empirical Legal Studies, 513 (2009)), the authors reveal that roughly one-third of jurors in actual criminal cases admitted that they actually disagreed with the verdict they had voted for. That is, on average, a unanimous jury verdict in a criminal case was actually only 8 - 4.

Finally, let's remember that, every time a defendant is retried after a hung jury, the resulting verdict has previously been rejected by at least one juror who heard the case. Otherwise, there wouldn't have been a hung jury in the first place. Who's to say that the jury that could reach consensus was more representative, more attentive, smarter or more deliberative than the one that couldn't reach consensus. We also know from the data outlined above that the second jury might just have had jurors more willing to compromise their principles to generate a unanimous verdict.

This begs another obvious question: "If unanimity is a big fat lie, why should anyone want to preserve it?" Perhaps the general public wants to be lied to in this way. Perhaps there is comfort in not considering the implications of sending people to prison (or worse) despite reservations of some jurors. Maybe we don't really want to know how the sausage is made. Even so, it is hard to imagine this as a legitimate rationale for the scholars who penned the amicus brief in support of Bowen's position.

The Future of Unanimity

Unanimity in criminal jury verdicts is what polite lawyers refer to as a "legal fiction." As such, I don't see it as being worth preserving. I would much rather have majority verdicts, handed down by jurors who are strongly encouraged to stick to their principles and vote their consciences. As I have written in both scholarly papers and elsewhere, the elimination of the unanimity requirement would also support the elimination of peremptory challenges, a practice that disenfranchises many Americans from the jury system. It is interesting to note that many of the scholars who signed the amicus brief in support of Bowen's case have also called for the curtailing of peremptory challenges. Eliminating peremptory challenges would create more fully deliberative juries because they would better represent a fair cross section of the community. More voices would be heard. In addition, such a reform would dispense with the need for the ruling in Batson v. Kentucky and its progeny, prohibiting peremptory strikes made along racial lines. Batson, as Marshall predicted in his concurrence more than 20 years ago, has been largely ineffective at reducing overt and subconscious bias in the exercise of peremptory challenges. Non-unanimous verdicts, coupled with truly randomly selected juries, would eliminate this problem once and for all.

Future Podcast on Jury Behavior and Jury Trials

I am in discussions with a major legal podcast producer to host a regular podcast on juries and jury trials. I would review the latest developments in jury research, discuss possible reforms to the jury system, and highlight the interesting implications of ongoing and recent jury trials. I would try to have at least one guest on each show and listener input will be very important.

Before I undertake this endeavor, I want to get a sense of how podcasts are used by litigators and others in the legal profession. To this end, I have posted a poll about podcast listening habits on LinkedIn. I would very much appreciate it if anyone reading this post would click the link and complete the quick poll (LinkedIn membership is NOT required). You can view the results so far after registering your response.

LinkedIn Podcast Poll (<-- Click me!)

Of course, if you have suggestions about the format of such a podcast, I am all ears. Feel free to email me, or leave a comment below, to tell me what you think makes for a compelling podcast. What makes you yawn? What makes you just shut the damn thing off? (We don't want that!) If there is a particular podcast that you really like, let me know so I can check it out.

Thanks!

-Edward

Using Micro-expression Analysis in Jury Selection: A New Beginning

Back in June, I posted a couple of items about David Matsumoto's (from Humintell) training session on micro-expression analysis and lie detection. I had the good fortune to attend a couple of David's sessions at the American Society of Trial Consultants conference in Atlanta.

According to the "post-test," during which we were challenged to identify facial expressions that were exposed for only a fraction of a second, I am a bit of a emotion-detection savant. While I got 85% of the expressions correct, the problem was that I didn't really have any confidence in what I was doing. But the data don't lie -- I was getting it.

I am certainly not ready to chuck everything I know about voir dire and jury behavior in favor of micro-expression analysis (and David would never suggest that anyone do so), but I do recognize the potential value of this technique for identifying emotional "hotspots" among prospective jurors. So, last week, I put my "m.e.-dar" to the test.

We were conducting voir dire in a statutory rape case. The defendant was 19 at the time of the alleged sexual incident and the complaining witness was 15. Not exactly a middle-aged priest diddling an eight year-old altar boy after services. We were definitely looking for jurors who would have some ambivalence about applying the statutory rape law to a case involving a couple of teenagers (allegedly) having consensual sex.

In one of the individual voir dire questions, the judge asked each prospective juror whether s/he would have any difficulty being fair in a case of this type, "which involves the rape of a child under the age of 16 -- in this case a girl who was 15 at the time." Each time this question was asked, I was careful to stare intently at the face of the prospective juror. In a couple of instances, I detected contempt (which is the only one-sided expression), suggesting to me that the juror didn't think too highly of the law being applied in this case. A few jurors looked away from the judge briefly and smiled, perhaps betraying their own sexual escapades at a similar age. Such reactions suggested that the juror might be sympathetic to our case, in that s/he might not be trying too hard to find a reason to convict the defendant.

By contrast, a some prospective jurors crinkled their noses in disgust when the judge described the charge. Perhaps in confirmation of this reaction, several of them indicated that they had close friends or family members who had been the victims of sexual abuse. While I did not recommend that my client strike any prospective juror solely on the basis of such a facial reaction, it did cause me to review their questionnaire responses and suggest that my client request follow-up questions.

As with all such "experiments," we are faced with a problem of the counter-factual. Would I have evaluated jurors differently without paying attention to micro-expressions? Would my judgments have been less astute? Would the jury verdict have been any different? There is, of course, no way to know because this trial will take place only once. In addition, in Massachusetts, attorneys and parties are not permitted to interview jurors after a verdict has been rendered. So, we will never know whether my assessments of individual jurors were generally correct. I am fairly confident, however, that I didn't harm our case by looking for micro-expressions. And I think it might well have helped.

I know that there have been many studies testing the efficacy of micro-expression analysis. To the best of my knowledge, however, there has never been a study testing its value in jury selection. Perhaps Humitell would consider running such a study in the near future. I would certainly be willing to be a guinea pig!

Baby Steps along the Freedom Trail

As I have mentioned in previous posts, Massachusetts is not exactly on the cutting edge when it comes to enlightened procedural rules for jury trials. The default rules call for judge-conducted group voir dire in open court. This is not a recipe for a lot of information revelation by jurors. When Diane Levesque and I conducted a workshop for Massachusetts Bar Advocates this Spring on jury selection techniques, there were lots of old-timer naysayers in the audience who were convinced that no judge would ever let them try any of the things we were advocating. It should be noted, however, that several of the Commonwealth's more noted judges were expressing a willingness to try attorney-conducted voir dire, if only someone would request it. It was clear that we were stuck in a bad equilibrium.

Maryellen Cuthbert, a board member of Middlesex Defense Attorneys, Inc., is the person who invited Diane and myself to conduct our workshop back in April. In light of the reaction we received to that program, we decided that someone needed to lead the way, showing that modern jury selection techniques could be effectively applied in Massachusetts. So, Maryellen brought me on board for a tricky statutory rape case she was defending. The case involved an alleged sexual incident between a 19 year-old recent high school graduate and a 15 year-old high school Sophomore. Due to inconsistencies in the complaining witness's story, as well as the absence of any physical evidence, the Commonwealth dropped any charges involving consent and tried only the statutory count.

I have been helping Maryellen develop presentation strategies for opening and closing statements, as well as strategies for cross-examining an alleged victim in a delicate matter -- and one in which the outcome rests entirely on the credibility of her testimony. Much of my time and input has been dedicated to jury selection.

The first order of business was to get the judge in the case to adopt procedures that had some hope of eliciting some relevant information about jurors' experiences and attitudes. In this case, we had a bit of a head start because both the nature of the charge and the fact that the defendant and complaining witness were of different races triggered some individualized voir dire. It was still up to the judge, however, to decide which questions would be asked, who would ask them, and exactly which procedures would be used. We employed a multi-pronged attack with respect to motions:

1) We submitted a request for attorney-conducted voir dire, to which we attached citations to several studies that showed empirically (a) that jurors were more forthcoming when attorneys asked questions than when judges did, and (b) that jurors often revealed pertinent information during individualized voir dire that they declined to reveal during group voir dire.

2) We submitted a list of questions to be asked by the judge during both group and individual voir dire, should our request for attorney-conducted voir dire be denied. The individual voir dire questions were generally worded in an open-ended fashion, so as to elicit detailed responses, rather than just "yeses" and "nos." Here too, we submitted a list of studies showing the superiority of open-ended questions for eliciting relevant information.

3) Given the infrequency with which jury consultants are used in Massachusetts, especially for criminal trials, I suggested to Maryellen that she inform the judge in advance that I would be sitting at counsel table for jury selection. In addition, Maryellen impressed on the judge how important it would be for me to attend sidebar sessions during voir dire, so that I would be able to evaluate the words and demeanors of prospective jurors. The judge didn't seem to know what to do with this idea, so she took it under advisement and invited both sides to submit additional material regarding such a procedure. This is the point at which the ASTC membership really came through for me. The American Society of Trial Consultants maintains a very active listserve for its members. On a Friday afternoon, I sent out a plaintiff call for lists of cases in which consultants had been permitted both at counsel table and sidebar during jury selection. Several ASTC members combed through their files over the weekend and sent me lists of cases. I put them in a nice table and Maryellen sent them to the judge on Monday morning.

4) Maryellen requested a struck method for exercising peremptory challenges. This particular charge allows each side 12 peremptory challenges in Massachusetts. Given that we were also seating alternates, each side actually had 14 strikes. We would certainly be able to emply them more efficiently if we could wait until the entire panel had been voir dired.

In the end, here's what we got:

First, the good news. I was permitted to sit at counsel table during all of jury selection. In order to work around the sidebar issue, the judge sent the entire jury panel away immediately after group voir dire. She then brought them in one-by-one for individual voir dire. The juror would sit in the witness box and the judge would explain that we were using this procedure to protect the privacy of the juror. This set of procedures was excellent from our prospective. Jurors were generally forthcoming and we had time to consult between jurors as one would leave and the next one would come in.

Now, the less good news. The judge insisted on asking all of the questions. While she did ask a few questions based on items we had submitted, she tended to revert to non-productive question structure. That is, she asked yes-or-no questions that required jurors to evaluate their own attitudes of prejudices. For instance, she asked each juror, "Do you believe that the presumption of innocence should apply equally to all races?" Obviously, no-one is going to answer "no" to such a question. There were several prospective jurors whose answers ended up being nothing more than a predictable series of "yeses" and "nos". To her credit, the judge did seem to pick up on this problem fairly early on. Unfortunately, her typical method of getting jurors to talk about themselves was to ask them about their jobs. Not generally relevant to our case. When a juror did reveal information that was directly on point, such as having a sibling who had been the victim of sexual abuse, the judge was fairly adept at getting the juror to discuss his or her feelings about the experience. The judge also required the attorneys to exercise their peremptory challenges on a juror-by-juror basis. This only hamstrung us a little. I think that we only let on one juror that we might have challenged using a struck system.

I think that the judge was actually fairly pleased with how jury selection proceeded. It went more quickly than she had feared. She also noted that several jurors who had failed to raise a hand in response to a particular group voir dire question ultimately revealed during individual voir dire that he had been holding something back. As a result, on the second day of jury selection, she asked each prospective juror whether, in thinking about the questions over night, he or she might want to change an answer. Many of them did volunteer information at this time, typically about experience with violent crime or sexual abuse. Since pretty much every person who had some experience with such abuse was excused for cause, the increased candor associated with individual voir dire definitely worked in our favor.

This case is about to go to closing arguments. So, I don't know whether we will win. I am confident, however, that we have selected a jury whose members will actually have a meaningful conversation about the relevant issues in the case. I don't think we can ask more much more than that.

I did also score a big victory on another front. While I took on this case as part of the ASTC Pro Bono Initiative, I asked Maryellen to petition the court for state funds for my services (at a substantially reduced rate). The judge actually approved the request. So, to the best of my knowledge, I am the very first trial consultant to receive state funds in Massachusetts. So, if you have a tough case for an indigent client, and you need the help of someone like me, the precedent has been set! Of course, even should the request for funds be denied, our pro bono team is still here to help.

I have two more criminal cases in the pipeline and I'll be sure to report on any progress in bringing Massachusetts criminal procedure into the 21st century.