Hello campers! Sorry to have left you all in the juryboxblog lurch for a few days. I had dental surgery last Wednesday and I can only handle one kind of pain at a time!
I have spent a lot of bandwidth over the last couple of weeks telling you what other people have been up to. Let me spend a little time telling you about a new venture of which I comprise but a small part (Of course, we know what Shakespeare thought of small parts.)
Joe Laliberte, a resident of the fine state of Maine, runs a forensic investigations firm called Corporate Intelligence. He realized that many clients who had the need for one kind of forensic service often had the need for other kinds, as well. Wouldn't it be great, he thought, if an attorney could go to the same place for reliable experts in every imaginable field of forensics? Being more of a doer than a dreamer, Joe put his considerable energy to use assembling a team of first-rate forensics experts, all working in the New England area.
Joe invited me along because many attorneys asked him who was going to be his jury expert. I guess if you're going to go to the trouble of hiring an airplane accident reconstructionist and an e-discovery firm, you're probably going to court. So, it can't hurt to have a trial consultant on board, too.
Joe's little venture has been in operation for about two months now and our network of experts has been raking in the jobs. Joe can't keep up with the demand for his dog-and-pony show (It must be some pony!) Anyway, we seem to be onto something here.
So, if you need any kind of forensic expertise, service or advice, and you work in New England (even if you don't), give Joe a ring, email, tweet, or holler. You can find a list of the 40-odd experts who make up the network, as well as Joe's contact information at www.ineedforensics.com . Joe's a really nice guy and he has one of the best mustaches you'll ever see! Tell 'em Edward sent you!
Recent Jury Box Blog Entries
Monday, March 30, 2009
Tuesday, March 24, 2009
Brits Get Their Knickers in a Knot about Hung Juries
Ben Ando has an interesting article on the BBC website today about the "alarming" rise in hung juries in criminal cases in the UK. (The UK eliminated most jury trials for civil cases during the Second World War. All the men were at the front and they would have had to seat female jurors. Those in charge thought better of it and eliminated juries in such cases altogether.) Apparently, in 2008 a whopping 116 trials ended with a hung jury. This amounted to a 0.7% hung jury rate, or one hung jury for every 140 trials.
The UK uses a 10-2 rule for jury trials. So, in order to have a hung jury, at least 3 jurors have to hold out against the majority. This happens to be the same decision rule employed in Oregon for criminal trials (Louisiana uses 9-3). I decided to pull out some old data I had about hung jury rates and Oregon back in the 1990s. It turns out that the Oregon hung jury rate was very similar to what England is facing now, about 0.5%. During the same period, California (using a unanimity rule) had a hung jury rate of about 15%. In some counties, it was well above 20%. How do you think our friends across the pond would handle those numbers?
The BBC article specifically reports numbers for England and Wales. This is because Scotland has its own, rather unique, jury system. Scottish juries are comprised of 15 jurors, deciding by simple majority rule. So, 8 out of 15 is sufficient to render a verdict.
Lawyers, scholars and pundits who go apoplectic about the prospect of eliminating the unanimity requirement in the U.S. constantly carp about the loss of legitimacy of verdicts without unanimity. In reading the BBC piece, it is interesting to note that folks are frustrated with the increasing hung jury rate, but they don't seem too worried about the legitimacy of the verdicts that have been coming out of their 10-2 system for the past 40-odd years. In fact, some are arguing that the voting rule should be relaxed further. Who knows? Maybe the whole UK could end up with the Scottish system.
Meanwhile, we are stuck having to retry thousands and thousands of cases every year. Perhaps we should consider whether our system could finally use some tweaking.
The UK uses a 10-2 rule for jury trials. So, in order to have a hung jury, at least 3 jurors have to hold out against the majority. This happens to be the same decision rule employed in Oregon for criminal trials (Louisiana uses 9-3). I decided to pull out some old data I had about hung jury rates and Oregon back in the 1990s. It turns out that the Oregon hung jury rate was very similar to what England is facing now, about 0.5%. During the same period, California (using a unanimity rule) had a hung jury rate of about 15%. In some counties, it was well above 20%. How do you think our friends across the pond would handle those numbers?
The BBC article specifically reports numbers for England and Wales. This is because Scotland has its own, rather unique, jury system. Scottish juries are comprised of 15 jurors, deciding by simple majority rule. So, 8 out of 15 is sufficient to render a verdict.
Lawyers, scholars and pundits who go apoplectic about the prospect of eliminating the unanimity requirement in the U.S. constantly carp about the loss of legitimacy of verdicts without unanimity. In reading the BBC piece, it is interesting to note that folks are frustrated with the increasing hung jury rate, but they don't seem too worried about the legitimacy of the verdicts that have been coming out of their 10-2 system for the past 40-odd years. In fact, some are arguing that the voting rule should be relaxed further. Who knows? Maybe the whole UK could end up with the Scottish system.
Meanwhile, we are stuck having to retry thousands and thousands of cases every year. Perhaps we should consider whether our system could finally use some tweaking.
Monday, March 23, 2009
Itsy-bitsy jury can cause massive migraines
In following the trial of George Tiller, the Kansas abortion doctor on trial in Wichita, I noticed that Kansas uses six-person jurors in criminal cases. Dr. Tiller's attorney made a motion for a jury of twelve in the case, against the objection of the prosecution. The judge denied the motion and seated six jurors and two alternates. Such an arrangement, while offering some cost-savings, is a recipe for disaster from a justice perspective.
The Supreme Court Perspective
The US Supreme Court, in Williams v. Florida (399 U.S. 78, 1970), decided that the Constitutional guarantee of a jury trial did not require a twelve-member jury. The historical analysis seems in keeping with other 6th Amendment jurisprudence of the time. The Court, however, gave rather short shrift to whether it was a good idea to use such small juries. Their complete attention to the question is captured is the following passage from Justice White's opinion:
So, the Court does identify some of the Constitutionally pertinent features of a jury trial affected by its size, but the Court gets all of its conjectures about jury behavior completely wrong.
Group Deliberation
A jury as small as six is much more likely to be dominated by a strong personality than is one with more members. Often, the people who try to control deliberations prove to be "false experts" and to have extreme, inflexible views. Such personality traits work contrary to open and complete deliberations, but they typically go unchecked in such a small group.
When juries handle difficult cases, the kind that reveal fundamental disagreement among the jurors, camps tend to form (hopefully not right away). Each camp usually has a de facto spokesperson and the ongoing debate becomes largely a dialogue between the spokespersons, with occasional input from others. In a six-person jury, it is much more likely that no one will want to assume the spokesperson role for one of the sides.
Jurors get facts wrong. These errors can lead deliberations in bad directions. Sometimes, a jury will reach a verdict that it would not have reached had it correctly recalled the evidence and testimony. We would, presumably, want to minimize the chance that a verdict would be based on an erroneous factual foundation. Studies have shown, without fail, that larger juries tend to raise a larger number of probative case facts during deliberation, allow factually mistaken statements to go uncorrected less often and have greater confidence in their verdicts than do smaller juries.
Outside Influences
The Court speaks of "outside intimidation," by which is presumably means jury tampering and/or pre-trial publicity. Suppose, for a moment, that a defendant in a criminal trial had successfully bribed or intimidated a juror. The chance that the juror could convince all 11 other jurors to vote with him, contrary to the evidence, is pretty slim. On the other hand, if he could convince only a few others on a six-person jury, he could probably secure an acquittal (Empirical evidence shows a majority "tipping-point" for acquittals. If half the jury favors an acquittal, the rest typically falls in line quickly.) If a defendant is committed to getting to all the jurors on a jury, his job is certainly made easier by cutting the number in half. So, I would think that jury tampering is a bigger concern with smaller juries.
Trial courts typically do an awful job of dealing with the pretrial publicity problem. Jurors routinely fail to volunteer when they have seen, heard or read about a case in advance. When they do admit to being exposed to pretrial publicity, the judge typically asks them exactly the wrong question: "Notwithstanding what you have seen, can you remain fair and impartial in this trial?" The ones who say "yes" get seated. All the empirical studies say that jurors who admit that it might be difficult to ignore pretrial publicity tend to be fairer to defendants than those who swear that they can be impartial. So, it is a given that some jurors who are affected by pretrial publicity will make it onto the jury. Each such juror will be more influential on a six-person jury than on a larger one. Should it become clear that a juror is making arguments based on "extra-legal" material, another juror is more likely to cry "foul" when the jury is larger.
A similar dynamic is at play when it comes to unauthorized juror research, such as consulting dictionaries, googling witnesses, or visiting crime scenes. The influence of one juror who breaks the rules is larger on a smaller jury.
Representative Juries
One need not be a statistical genius to realize that, in expectation, a larger random sample will be more representative of the general population than will be a smaller random sample. This problem is only exacerbated by the exercise of peremptory challenges. Such challenges, to the extent that the attorneys are successful at evaluating the tendencies of potential jurors, eliminate people whose views lie at either end of the distribution of opinion. In Dr. Tiller's case, for instance, each side had 5 peremptory challenges. So, of the 18 people who were deemed qualified to serve on the jury, the lawyers could strike more than half. To the extent that the population is at all heterogeneous with respect to attitudes pertinent to the case at hand, using six-person juries substantially hinders the likelihood of obtaining a representative jury.
The Constitution is silent about the identifying the dimensions on which we'd like juries to be representative. If we would like a good distribution of talents and life experiences, it will be hard to achieve this goal with a six-person jury.
Dr. Tiller's case has incited strong passions in the Wichita community. It remains to be seen how the use of a six-person jury will affect the ability of such passions to influence the verdict.
The Supreme Court Perspective
The US Supreme Court, in Williams v. Florida (399 U.S. 78, 1970), decided that the Constitutional guarantee of a jury trial did not require a twelve-member jury. The historical analysis seems in keeping with other 6th Amendment jurisprudence of the time. The Court, however, gave rather short shrift to whether it was a good idea to use such small juries. Their complete attention to the question is captured is the following passage from Justice White's opinion:
To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representatives cross-section of the
community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12--particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.
So, the Court does identify some of the Constitutionally pertinent features of a jury trial affected by its size, but the Court gets all of its conjectures about jury behavior completely wrong.
Group Deliberation
A jury as small as six is much more likely to be dominated by a strong personality than is one with more members. Often, the people who try to control deliberations prove to be "false experts" and to have extreme, inflexible views. Such personality traits work contrary to open and complete deliberations, but they typically go unchecked in such a small group.
When juries handle difficult cases, the kind that reveal fundamental disagreement among the jurors, camps tend to form (hopefully not right away). Each camp usually has a de facto spokesperson and the ongoing debate becomes largely a dialogue between the spokespersons, with occasional input from others. In a six-person jury, it is much more likely that no one will want to assume the spokesperson role for one of the sides.
Jurors get facts wrong. These errors can lead deliberations in bad directions. Sometimes, a jury will reach a verdict that it would not have reached had it correctly recalled the evidence and testimony. We would, presumably, want to minimize the chance that a verdict would be based on an erroneous factual foundation. Studies have shown, without fail, that larger juries tend to raise a larger number of probative case facts during deliberation, allow factually mistaken statements to go uncorrected less often and have greater confidence in their verdicts than do smaller juries.
Outside Influences
The Court speaks of "outside intimidation," by which is presumably means jury tampering and/or pre-trial publicity. Suppose, for a moment, that a defendant in a criminal trial had successfully bribed or intimidated a juror. The chance that the juror could convince all 11 other jurors to vote with him, contrary to the evidence, is pretty slim. On the other hand, if he could convince only a few others on a six-person jury, he could probably secure an acquittal (Empirical evidence shows a majority "tipping-point" for acquittals. If half the jury favors an acquittal, the rest typically falls in line quickly.) If a defendant is committed to getting to all the jurors on a jury, his job is certainly made easier by cutting the number in half. So, I would think that jury tampering is a bigger concern with smaller juries.
Trial courts typically do an awful job of dealing with the pretrial publicity problem. Jurors routinely fail to volunteer when they have seen, heard or read about a case in advance. When they do admit to being exposed to pretrial publicity, the judge typically asks them exactly the wrong question: "Notwithstanding what you have seen, can you remain fair and impartial in this trial?" The ones who say "yes" get seated. All the empirical studies say that jurors who admit that it might be difficult to ignore pretrial publicity tend to be fairer to defendants than those who swear that they can be impartial. So, it is a given that some jurors who are affected by pretrial publicity will make it onto the jury. Each such juror will be more influential on a six-person jury than on a larger one. Should it become clear that a juror is making arguments based on "extra-legal" material, another juror is more likely to cry "foul" when the jury is larger.
A similar dynamic is at play when it comes to unauthorized juror research, such as consulting dictionaries, googling witnesses, or visiting crime scenes. The influence of one juror who breaks the rules is larger on a smaller jury.
Representative Juries
One need not be a statistical genius to realize that, in expectation, a larger random sample will be more representative of the general population than will be a smaller random sample. This problem is only exacerbated by the exercise of peremptory challenges. Such challenges, to the extent that the attorneys are successful at evaluating the tendencies of potential jurors, eliminate people whose views lie at either end of the distribution of opinion. In Dr. Tiller's case, for instance, each side had 5 peremptory challenges. So, of the 18 people who were deemed qualified to serve on the jury, the lawyers could strike more than half. To the extent that the population is at all heterogeneous with respect to attitudes pertinent to the case at hand, using six-person juries substantially hinders the likelihood of obtaining a representative jury.
The Constitution is silent about the identifying the dimensions on which we'd like juries to be representative. If we would like a good distribution of talents and life experiences, it will be hard to achieve this goal with a six-person jury.
Dr. Tiller's case has incited strong passions in the Wichita community. It remains to be seen how the use of a six-person jury will affect the ability of such passions to influence the verdict.
Friday, March 20, 2009
Renewed efforts to limit peremptory challenges
Every couple of years, someone puts forth an argument as to why the American criminal justice system should eliminate (or reduce) the use of peremptory challenges. I have contributed my own efforts to this cause. Among the four articles I co-authored with Warren Schwartz, two specifically called for eliminating peremptory challenges in criminal trials. (“The Challenge of Peremptory Challenges,” 12(2) Journal of Law, Economics, and Organizations, 375-394, 1996, and “And So Say Some of Us: What to do When Jurors Disagree.” 9(2) University of Southern California Interdisciplinary Law Journal,429-463 2000.) The latter of these is a non-technical treatment of the issue and is archived at my website here.
Many current scholars and legal professionals who advocate limiting peremptories are troubled by the persistent use of these challenges to reduce the representation of minorities on juries, notwithstanding the holdings of Batson and its progeny. Always a ruling with lots of wiggle room, the leverage that Batson gave appellate judges to rein in discriminatory behavior has been eroded over the years by U.S. Supreme Court decisions that seem to shift the burden for proving discriminatory intent back upon moving parties. In addition, as predicted in Marshall's concurrence to Batson more than 20 years ago, prosecutors seem regularly to discriminate against minorities subconsciously, while believing that are acting in a race-neutral fashion. Marshall's fears have been born out by several experimental studies of how people actually exercise peremptory challenges, including a recent one by Norton, Sommers and Brauner ("Bias in jury selection: Justifying prohibited peremptory challenges." Journal of Behavioral Decision Making, 20, 467-479.)
This concern for ongoing discrimination in jury selection has motivated, in part, a proposal to reduce the number of peremptory challenges to three for each side, offered by David Baldus of the University of Iowa Law School. This suggestion caught the attention of Nathan Koppel of the Wall Street Journal, who dedicated a column to it on March 6 of this year.
Many people who rue the absence of minorities on juries object to the fact that these excluded jurors do not get to vote on verdicts in these cases. Defendants, they argue, do not get fair trials because certain targeted groups are disenfranchised from this institution of participatory democracy. I do not want to diminish the importance of this point -- after all, we certainly wouldn't want people locked out of elections because of their racial or ethnic identity -- but I think that this is far more than a "voting rights" issue.
A jury is a deliberative body. In the end, of course, the jurors must vote for a verdict. This act of voting, however, constitutes a small fraction of a jury's efforts. Deliberation is about coming to a shared understanding, if possible, of the events surrounding the alleged crime and the defendant's role in those events. When a consensus is not achievable, deliberation should foster a clarification of where individuals' perceptions differ and how justice can be done notwithstanding those differences.
The dynamic dialogue that is jury deliberation requires that all voices be heard. This is where the use of peremptory challenges hinders the pursuit of justice. A strong opinion is not necessarily an illegitimate one. An unusual perspective may still be helpful in seeing the "big picture." A presumption unchallenged will be accepted uncritically, even if it rests on shaky ground. Peremptory challenges tend to weed out those with strong, unusual or critical opinions. These people might make excellent jurors. They might be essential to full and thorough deliberations. But our system tells them that they are not welcome at the table.
We now know that this exclusion has a powerful and troubling second-order effect. Jurors who expect to participate in deliberations only with like-minded people do not perform their tasks as jurors as well as those who expect to be deliberating as part of a heterogeneous group. Consider the results of a series of studies by Sam Sommers. ("Race and the decision-making of juries." Legal and Criminological Psychology, 12, 171-187.) His team examined the deliberations and decision-making of juries that were either all-white or of mixed race, all handling the same case in an experimental setting. He found that the mixed-race juries made fewer factual errors, included more facts in their deliberations, deliberated for longer and had better recall for case facts than did their all-white counterparts. In addition, the jurors on the mixed-race juries tended to be more open-minded about the guilt of the defendant. The really interesting part of his findings is that all of the difference was on the part of the white jurors. In addition, this difference took place entirely before deliberations started.
This is very important, so let me be clear. The white jurors who knew that they would be deliberating with black jurors paid closer attention to the facts of the case, started deliberations with more open minds about the defendant's guilt and could more accurately answer factual questions about the case. Essentially, knowing that they would be interacting with people "unlike" themselves caused these jurors to prepare themselves better for deliberations.
So, precluding minorities from criminal juries not only locks them out from voting and deliberating, but it also erodes the performance of those jurors who do sit on the case.
I have recommended in my academic pieces that the elimination of peremptory challenges should be accompanied by a relaxation of the unanimity requirement for criminal trials. In England, for instance, there are no peremptories and only 9 votes out of 12 are required to reach a verdict. I will not rehash those arguments here. Feel free to read my other work on the topic.
I will, however, take a brief moment to suggest that extensive, well-crafted juror questionnaires and attorney-conducted voir dire is especially essential should peremptory challenges be eliminated. For such questioning is really most useful for the knowledgeable exercise of challenges for cause. It is time for judges to stop being lazy about jury selection. Too many trials go forward with juries full of people who have been exposed to reams of pre-trial publicity about the defendant. People with criminal records, or who have been victims of crimes, routinely decline to reveal this information to the court because judges insist on using callous and outdated voir dire techniques. It is time for sequestered, individualized, attorney-conducted voir dire to become the norm, rather than the exception, in criminal trials. Much of the time-consuming nature of this process can be mitigated by the use of well-crafted supplemental juror questionnaires.
The American jury system can survive without peremptory challenges. In fact, I believe it would thrive without them. But we need to make sure that the other procedures we use during jury selection are more effectively applied.
Many current scholars and legal professionals who advocate limiting peremptories are troubled by the persistent use of these challenges to reduce the representation of minorities on juries, notwithstanding the holdings of Batson and its progeny. Always a ruling with lots of wiggle room, the leverage that Batson gave appellate judges to rein in discriminatory behavior has been eroded over the years by U.S. Supreme Court decisions that seem to shift the burden for proving discriminatory intent back upon moving parties. In addition, as predicted in Marshall's concurrence to Batson more than 20 years ago, prosecutors seem regularly to discriminate against minorities subconsciously, while believing that are acting in a race-neutral fashion. Marshall's fears have been born out by several experimental studies of how people actually exercise peremptory challenges, including a recent one by Norton, Sommers and Brauner ("Bias in jury selection: Justifying prohibited peremptory challenges." Journal of Behavioral Decision Making, 20, 467-479.)
This concern for ongoing discrimination in jury selection has motivated, in part, a proposal to reduce the number of peremptory challenges to three for each side, offered by David Baldus of the University of Iowa Law School. This suggestion caught the attention of Nathan Koppel of the Wall Street Journal, who dedicated a column to it on March 6 of this year.
Many people who rue the absence of minorities on juries object to the fact that these excluded jurors do not get to vote on verdicts in these cases. Defendants, they argue, do not get fair trials because certain targeted groups are disenfranchised from this institution of participatory democracy. I do not want to diminish the importance of this point -- after all, we certainly wouldn't want people locked out of elections because of their racial or ethnic identity -- but I think that this is far more than a "voting rights" issue.
A jury is a deliberative body. In the end, of course, the jurors must vote for a verdict. This act of voting, however, constitutes a small fraction of a jury's efforts. Deliberation is about coming to a shared understanding, if possible, of the events surrounding the alleged crime and the defendant's role in those events. When a consensus is not achievable, deliberation should foster a clarification of where individuals' perceptions differ and how justice can be done notwithstanding those differences.
The dynamic dialogue that is jury deliberation requires that all voices be heard. This is where the use of peremptory challenges hinders the pursuit of justice. A strong opinion is not necessarily an illegitimate one. An unusual perspective may still be helpful in seeing the "big picture." A presumption unchallenged will be accepted uncritically, even if it rests on shaky ground. Peremptory challenges tend to weed out those with strong, unusual or critical opinions. These people might make excellent jurors. They might be essential to full and thorough deliberations. But our system tells them that they are not welcome at the table.
We now know that this exclusion has a powerful and troubling second-order effect. Jurors who expect to participate in deliberations only with like-minded people do not perform their tasks as jurors as well as those who expect to be deliberating as part of a heterogeneous group. Consider the results of a series of studies by Sam Sommers. ("Race and the decision-making of juries." Legal and Criminological Psychology, 12, 171-187.) His team examined the deliberations and decision-making of juries that were either all-white or of mixed race, all handling the same case in an experimental setting. He found that the mixed-race juries made fewer factual errors, included more facts in their deliberations, deliberated for longer and had better recall for case facts than did their all-white counterparts. In addition, the jurors on the mixed-race juries tended to be more open-minded about the guilt of the defendant. The really interesting part of his findings is that all of the difference was on the part of the white jurors. In addition, this difference took place entirely before deliberations started.
This is very important, so let me be clear. The white jurors who knew that they would be deliberating with black jurors paid closer attention to the facts of the case, started deliberations with more open minds about the defendant's guilt and could more accurately answer factual questions about the case. Essentially, knowing that they would be interacting with people "unlike" themselves caused these jurors to prepare themselves better for deliberations.
So, precluding minorities from criminal juries not only locks them out from voting and deliberating, but it also erodes the performance of those jurors who do sit on the case.
I have recommended in my academic pieces that the elimination of peremptory challenges should be accompanied by a relaxation of the unanimity requirement for criminal trials. In England, for instance, there are no peremptories and only 9 votes out of 12 are required to reach a verdict. I will not rehash those arguments here. Feel free to read my other work on the topic.
I will, however, take a brief moment to suggest that extensive, well-crafted juror questionnaires and attorney-conducted voir dire is especially essential should peremptory challenges be eliminated. For such questioning is really most useful for the knowledgeable exercise of challenges for cause. It is time for judges to stop being lazy about jury selection. Too many trials go forward with juries full of people who have been exposed to reams of pre-trial publicity about the defendant. People with criminal records, or who have been victims of crimes, routinely decline to reveal this information to the court because judges insist on using callous and outdated voir dire techniques. It is time for sequestered, individualized, attorney-conducted voir dire to become the norm, rather than the exception, in criminal trials. Much of the time-consuming nature of this process can be mitigated by the use of well-crafted supplemental juror questionnaires.
The American jury system can survive without peremptory challenges. In fact, I believe it would thrive without them. But we need to make sure that the other procedures we use during jury selection are more effectively applied.
Thursday, March 19, 2009
Securities Lawsuits before scared, angry, fatalistic jurors
Well, it was bound to happen. People have lost money. Lots of people have lost lots of money. And they're pissed. They want to blame someone, anyone and they want their money back. So, they are filing lawsuits. Lots of lawsuits.
Because that's where the money is
I recently worked on a case in which a "Madoffian" villain absconded with tens of millions of dollars of his clients' money. He's in jail but that is of small consolation to his victims, many of whom have lost their lives' savings. Just as Bernie Madoff seemed to have used one particular account at Chase Manhattan Bank to perpetrate his scheme, this crook used one account at a local bank branch to steal over $25 million. Rather than investing the money, he just converted it to his personal use, making small payments to "investors" when necessary.
The victims of this Ponzi scheme, unable to collect from the crook, sued the bank, on the grounds that the bank was complicit in the crime. After all, the bank still has (a little) money. I am hearing similar stories from other trial consultants, concerning other investors suing other banks, accounting firms and lawyers for the misdeeds of their clients.
These lawsuits are all long-shots, of course, because proving negligence first requires proving that these defendants owed some legal duty to the plaintiffs (who were not customers). In the case I worked on, the bank clearly owed a duty not to lose the account holder's money, but it was a real stretch to argue that the bank owed a duty to the people who gave money to the account holder. (Does your bank owe any duty to your employer for what you do with your paycheck? Or to your family for how you choose to squander your Bar Mitzvah money?).
A bank does have an obligation to act if it knows that illegal activity is taking place. It is not enough, however, to show that someone at the bank suspected, should have known, or was negligent in not knowing that something illegal was going on. There are further obligations associated with money laundering statutes, but they only cover large cash transactions.
So, in short order, the plaintiffs lost their suit against the bank. Plaintiffs have been similarly unsuccessful to other suits I have heard about. Unless you can prove a knowing conspiracy, you'll be hard-pressed to collect from institutions peripheral to the actual fraud.
Juror anger flows freely in all directions
While the facts of this case are certainly interesting and timely, I think that many interesting things can be learned from the reactions of focus group participants in the pretrial research we ran for the case.
We ran a full-day multiple-panel focus group for this case. First, we offered the participants a very heavy-handed plaintiff's argument to see just what kinds of passions we might ignite. Well, half the group was ready to revoke the bank's license and lock up all its officers. This kind of hostility should not be too surprising in an environment in which banks are largely blamed for our financial meltdown. It became very clear that most participants did not differentiate among savings banks, investment banks, brokerage houses, hedge funds and mortgage companies. To most people, the entire "financial sector" is lumped together as one giant, evil monster. If you need to represent any financial institution in court, you'll need to work very hard to differentiate your client from other firms in the industry. Good luck with that.
We followed up in the afternoon with a presentation of the defense case, along with direct and cross-examination of the branch manager. Participants started to soften their stances a bit when it became clear that the bank employees really had no idea where the money was coming from and to what purpose it was being put.
The participants were still plenty angry. They just directed their criticism in multiple directions. They heaped lots of blame on the victims, expressing incredulity that anyone would pay so little attention to what was happening to their money. Many people adopted a "caveat emptor" attitude, pointing out that when they lost money in the market, no one was there to save their butts.
This raises the important issue of relative vs. absolute notions of fairness. In unfamiliar decision-making environments, it is common for people to reason from what they know. Jurors are always analogizing from the case facts to their own experiences. "Well, when my Aunt Agnes had her hip surgery, they insisted that she stay in the hospital for five nights, not just three." As such, in securities litigation, a juror will see a case through the lens of her own experiences and current situation. I expect that, as we move through these difficult economic times, jurors will be reluctant to "bail out" investors who have lost money (even through fraud). Everyone feels defrauded and jurors are unlikely to believe that others deserve special treatment (especially if those others are rich).
This relative evaluation process is certain to carry over to calculations of damage awards (and not only in securities cases). As jurors' own financial situations deteriorate, the baselines they use for assessing damages will decline. Their houses are worth less. The average salaries earned by various types of professions are perceived to have declined. Expectations about bonuses and commissions have gone down. As a result, I expect to see damage awards drop precipitously across the board.
The American Society of Trial Consultants, of which I am a member, has just launched a flash poll among its members concerning perceived changes in juror (and mock juror) behavior, in response to the market collapse and subsequent stimulus package. Once the results of this poll are released, I'll be sure to discuss them in a future blog entry. Stay tuned!
Because that's where the money is
I recently worked on a case in which a "Madoffian" villain absconded with tens of millions of dollars of his clients' money. He's in jail but that is of small consolation to his victims, many of whom have lost their lives' savings. Just as Bernie Madoff seemed to have used one particular account at Chase Manhattan Bank to perpetrate his scheme, this crook used one account at a local bank branch to steal over $25 million. Rather than investing the money, he just converted it to his personal use, making small payments to "investors" when necessary.
The victims of this Ponzi scheme, unable to collect from the crook, sued the bank, on the grounds that the bank was complicit in the crime. After all, the bank still has (a little) money. I am hearing similar stories from other trial consultants, concerning other investors suing other banks, accounting firms and lawyers for the misdeeds of their clients.
These lawsuits are all long-shots, of course, because proving negligence first requires proving that these defendants owed some legal duty to the plaintiffs (who were not customers). In the case I worked on, the bank clearly owed a duty not to lose the account holder's money, but it was a real stretch to argue that the bank owed a duty to the people who gave money to the account holder. (Does your bank owe any duty to your employer for what you do with your paycheck? Or to your family for how you choose to squander your Bar Mitzvah money?).
A bank does have an obligation to act if it knows that illegal activity is taking place. It is not enough, however, to show that someone at the bank suspected, should have known, or was negligent in not knowing that something illegal was going on. There are further obligations associated with money laundering statutes, but they only cover large cash transactions.
So, in short order, the plaintiffs lost their suit against the bank. Plaintiffs have been similarly unsuccessful to other suits I have heard about. Unless you can prove a knowing conspiracy, you'll be hard-pressed to collect from institutions peripheral to the actual fraud.
Juror anger flows freely in all directions
While the facts of this case are certainly interesting and timely, I think that many interesting things can be learned from the reactions of focus group participants in the pretrial research we ran for the case.
We ran a full-day multiple-panel focus group for this case. First, we offered the participants a very heavy-handed plaintiff's argument to see just what kinds of passions we might ignite. Well, half the group was ready to revoke the bank's license and lock up all its officers. This kind of hostility should not be too surprising in an environment in which banks are largely blamed for our financial meltdown. It became very clear that most participants did not differentiate among savings banks, investment banks, brokerage houses, hedge funds and mortgage companies. To most people, the entire "financial sector" is lumped together as one giant, evil monster. If you need to represent any financial institution in court, you'll need to work very hard to differentiate your client from other firms in the industry. Good luck with that.
We followed up in the afternoon with a presentation of the defense case, along with direct and cross-examination of the branch manager. Participants started to soften their stances a bit when it became clear that the bank employees really had no idea where the money was coming from and to what purpose it was being put.
The participants were still plenty angry. They just directed their criticism in multiple directions. They heaped lots of blame on the victims, expressing incredulity that anyone would pay so little attention to what was happening to their money. Many people adopted a "caveat emptor" attitude, pointing out that when they lost money in the market, no one was there to save their butts.
This raises the important issue of relative vs. absolute notions of fairness. In unfamiliar decision-making environments, it is common for people to reason from what they know. Jurors are always analogizing from the case facts to their own experiences. "Well, when my Aunt Agnes had her hip surgery, they insisted that she stay in the hospital for five nights, not just three." As such, in securities litigation, a juror will see a case through the lens of her own experiences and current situation. I expect that, as we move through these difficult economic times, jurors will be reluctant to "bail out" investors who have lost money (even through fraud). Everyone feels defrauded and jurors are unlikely to believe that others deserve special treatment (especially if those others are rich).
This relative evaluation process is certain to carry over to calculations of damage awards (and not only in securities cases). As jurors' own financial situations deteriorate, the baselines they use for assessing damages will decline. Their houses are worth less. The average salaries earned by various types of professions are perceived to have declined. Expectations about bonuses and commissions have gone down. As a result, I expect to see damage awards drop precipitously across the board.
The American Society of Trial Consultants, of which I am a member, has just launched a flash poll among its members concerning perceived changes in juror (and mock juror) behavior, in response to the market collapse and subsequent stimulus package. Once the results of this poll are released, I'll be sure to discuss them in a future blog entry. Stay tuned!
Wednesday, March 18, 2009
Remedy for the Googling juror? Just ask!
Jurors swarm the net
Recent entry for the smallest surprise of the year award: jurors are online.
Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what's what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of "I'm stuck on jury duty and boy am I bored.").
The problem has become so prevalent that there was a front page story about it in today's New York Times. So, what are we going to do about it?
Anyone who understands psychology at all knows that the solution is NOT to take away juror's toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite "reactance" on the part of jurors. That is, when jurors' freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors.
With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.
Juror Twittering and Blogging
There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don't pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.
General pre-trial jury instructions and those ever-entertaining "What is a juror?" videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.
Online research by serving jurors
Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be "self-informing."
Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don't trust the parties. We don't trust the lawyers. We don't even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to "fact check" their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge's amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.
What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t's and dot all their i's, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.
This brings me to a procedural "innovation" that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors' questions during the trial than risk those jurors searching for answers elsewhere.
So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be "We are here to help you make the best-informed decision possible. We'll get you the answers you need."
I think that jurors who hear that message will be more likely to stay off google during trial. Afterwards.... well, that's another topic for another day.
Recent entry for the smallest surprise of the year award: jurors are online.
Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what's what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of "I'm stuck on jury duty and boy am I bored.").
The problem has become so prevalent that there was a front page story about it in today's New York Times. So, what are we going to do about it?
Anyone who understands psychology at all knows that the solution is NOT to take away juror's toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite "reactance" on the part of jurors. That is, when jurors' freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors.
With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.
Juror Twittering and Blogging
There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don't pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.
General pre-trial jury instructions and those ever-entertaining "What is a juror?" videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.
Online research by serving jurors
Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be "self-informing."
Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don't trust the parties. We don't trust the lawyers. We don't even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to "fact check" their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge's amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.
What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t's and dot all their i's, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.
This brings me to a procedural "innovation" that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors' questions during the trial than risk those jurors searching for answers elsewhere.
So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be "We are here to help you make the best-informed decision possible. We'll get you the answers you need."
I think that jurors who hear that message will be more likely to stay off google during trial. Afterwards.... well, that's another topic for another day.
Tuesday, March 17, 2009
Thou Shalt Not Kill -- but feel free to lie by omission
Jury selection begins today in the trial of George Tiller, a Kansas doctor who is known for running a clinic that performs late-term (sometimes referred to as "partial-birth") abortions. Tiller is accused of 19 misdemeanor counts of failing to secure a second opinion before performing these late-term procedures. In truth, he did secure second opinions, but always from the same doctor, Dr. Ann Kristin Newhaus. The prosecution contends that Tiller and Neuhaus had an ongoing financial relationship, in violation of Kansas law. This relationship, it is alleged, negates the legitimacy of those second opinions.
The judge in the case, Hon. Clark Owens, will undoubtedly admonish the members of the jury pool that this is not a case about the legal, ethical, moral or religious status of abortion. He will ask each of them whether s/he can put aside whatever preconceived notions s/he might have about the issue and decide the case strictly on the facts. Those who ultimately serve will have somberly nodded and sworn to be impartial. And each and every one of them will have been lying.
Any case involving abortion is certain to invoke strong feelings about the issue. A pro-life juror will always view the actions of an abortion doctor with greater skepticism than will a pro-choice juror. But this is not just any case.
For the past 25 years, Dr. Tiller has been at the center of the abortion debate maelstrom in the nation's heartland. In 1986, his clinic was damaged by a pipe bomb. In 1991,Operation Rescue staged the 45-day "Summer of Mercy" event outside his clinic. In 1993, a pro-life vigilante shot Dr. Tiller once in each arm. When it comes to the war over abortion, Dr. Tiller's Wichita clinic is ground zero.
Two prior attempts to prosecute Dr. Tiller failed because the grand juries refused to indict him. Another attempt, filed by former Attorney General, Phile Kline, was dismissed for jurisdictional reasons.
Which brings us back to jury selection. Any juror who says she can judge this case impartially is deluding herself and/or the court. This clinic has been in the local news for 40 years. Everyone has an opinion. Unfortunately, when the court tries to determine who will at least try to stick to the facts, Judge Owens will undoubtedly ask exactly the wrong question, as almost all judges do. The judge will ask each juror whether she can set aside what she's read, or heard, or seen about the case. He will ask each juror whether she can rely on the facts, notwithstanding personal views about abortion. And the judge will seat the jurors who answer "yes." And there's the rub...
Decades of research into the effects of "extra-legal factors" (such as pretrial publicity or religious views) on verdict choice shows that those jurors who believe they can ignore the effects of such factors are generally more influenced by them than those jurors who admit that they would have a hard time putting their feelings aside. This should come as no surprise to any casual student of human nature. Those people who are introspective enough to realize that their feelings and experiences will affect their decision-making are better able to recognize when it is happening and try to compensate. To state it more simply, those who are more worried about being unfair will work harder to be fair.
So, following upon centuries of experience and precedent, Judge Owens will almost certainly seat exactly the wrong jurors.
So, is all lost? Is it hopeless to think that the state and the defendant will receive a fair trial? Not necessarily. I am a legal realist (and a dangerously knowledgeable social scientist). As such, I have never believed that an impartial jury is one comprised of impartial jurors -- such animals don't exist. Rather, an impartial jury is comprised of people who represent a fair cross-section of the community, with all the experiential and emotional baggage that we all carry, and who will hopefully walk into the jury room with open ears and an open mind.
I think it works most of the time. On almost all issues, more unites us than divides us. Most people appreciate that we don't live in a world of absolutes. Reasonable people can disagree.
Unfortunately, abortion is one of those issues that seems to completely polarize the populace. Do any of us really have an open mind on this issue? This case is almost certainly going to become a referendum on abortion. If that happens, I cannot imagine any outcome other than a hung jury -- and a contentious one at that.
This is not the last we'll hear about this case. It threatens to go on, and on, and on...
The judge in the case, Hon. Clark Owens, will undoubtedly admonish the members of the jury pool that this is not a case about the legal, ethical, moral or religious status of abortion. He will ask each of them whether s/he can put aside whatever preconceived notions s/he might have about the issue and decide the case strictly on the facts. Those who ultimately serve will have somberly nodded and sworn to be impartial. And each and every one of them will have been lying.
Any case involving abortion is certain to invoke strong feelings about the issue. A pro-life juror will always view the actions of an abortion doctor with greater skepticism than will a pro-choice juror. But this is not just any case.
For the past 25 years, Dr. Tiller has been at the center of the abortion debate maelstrom in the nation's heartland. In 1986, his clinic was damaged by a pipe bomb. In 1991,Operation Rescue staged the 45-day "Summer of Mercy" event outside his clinic. In 1993, a pro-life vigilante shot Dr. Tiller once in each arm. When it comes to the war over abortion, Dr. Tiller's Wichita clinic is ground zero.
Two prior attempts to prosecute Dr. Tiller failed because the grand juries refused to indict him. Another attempt, filed by former Attorney General, Phile Kline, was dismissed for jurisdictional reasons.
Which brings us back to jury selection. Any juror who says she can judge this case impartially is deluding herself and/or the court. This clinic has been in the local news for 40 years. Everyone has an opinion. Unfortunately, when the court tries to determine who will at least try to stick to the facts, Judge Owens will undoubtedly ask exactly the wrong question, as almost all judges do. The judge will ask each juror whether she can set aside what she's read, or heard, or seen about the case. He will ask each juror whether she can rely on the facts, notwithstanding personal views about abortion. And the judge will seat the jurors who answer "yes." And there's the rub...
Decades of research into the effects of "extra-legal factors" (such as pretrial publicity or religious views) on verdict choice shows that those jurors who believe they can ignore the effects of such factors are generally more influenced by them than those jurors who admit that they would have a hard time putting their feelings aside. This should come as no surprise to any casual student of human nature. Those people who are introspective enough to realize that their feelings and experiences will affect their decision-making are better able to recognize when it is happening and try to compensate. To state it more simply, those who are more worried about being unfair will work harder to be fair.
So, following upon centuries of experience and precedent, Judge Owens will almost certainly seat exactly the wrong jurors.
So, is all lost? Is it hopeless to think that the state and the defendant will receive a fair trial? Not necessarily. I am a legal realist (and a dangerously knowledgeable social scientist). As such, I have never believed that an impartial jury is one comprised of impartial jurors -- such animals don't exist. Rather, an impartial jury is comprised of people who represent a fair cross-section of the community, with all the experiential and emotional baggage that we all carry, and who will hopefully walk into the jury room with open ears and an open mind.
I think it works most of the time. On almost all issues, more unites us than divides us. Most people appreciate that we don't live in a world of absolutes. Reasonable people can disagree.
Unfortunately, abortion is one of those issues that seems to completely polarize the populace. Do any of us really have an open mind on this issue? This case is almost certainly going to become a referendum on abortion. If that happens, I cannot imagine any outcome other than a hung jury -- and a contentious one at that.
This is not the last we'll hear about this case. It threatens to go on, and on, and on...
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