The Jury Box Blog

The Weaponization of Belief: Tarek Mehanna Guilty on 7 Terrorism Charges

2012-01-05T16:14:00.000-05:00

Guilty on All Counts

Late last month, a federal jury in Boston, after only 10 hours of deliberations, found Tarek Mehanna guilty on all seven counts for which he had been charged. They included conspiracy to kill Americans abroad, lying to federal investigators and, most controversially, providing material support to a terrorist organization (Al Qaeda).

Two sets of acts proved central to the case against Mehanna. The first was a trip he took with another man to Yemen in 2004, allegedly to seek training at a terrorist camp. His companion continued on to Iraq and remains at large. The second was a series of documents and videos Mehanna translated from Arabic into English and posted to the internet. As most of these files were seen as serving propaganda purposes for Al Qaeda, they formed the basis for the "material support" charge.

Defense attorneys for Mehanna had requested that Judge O'Toole give the jury a special verdict form, so that the jurors would have to specify whether the elements for any charge were satisfied by the Yemen trip, the web postings, or both. The rationale for such a request was a recognition that no U.S. appellate court had yet ruled on the Constitutional question of whether speech alone could qualify as material support, as defined by the antiterrorism statute. Only by learning whether any particular conviction rested on the internet postings could the defense preserve this question for appeal. Judge O'Toole, however, failed to see the need for the special verdict form and allowed the jury to return a general verdict on all counts.

Retaliatory Prosecution?

Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. In that interview, he paints a picture of his brother's development as an American and a Muslim quite at odds with what prosecutors told the jury. He remains convinced that the government only prosecuted his brother so aggressively because Tarek refused to become an informant for the justice department in 2004.

Many legal scholars have now weighed in on the First Amendment implications of Mehanna's conviction, suggesting that it has struck a devastating blow against free political speech in America. The verdict sends a message to those who would criticize our government that their words can, in fact, be used against them in a court of law.

I wonder, however, if the verdict has not sent an even more potent message regarding the 4th, 5th and 6th Amendments. When it comes to issues of national security, if you assert your rights not to cooperate with an ongoing investigation, the consequences will be dire. Suspects have long been pressured into cooperating with the government in order to avoid particularly harsh treatment. Investigators and prosecutors regularly depend on informants and coconspirators to make their cases. This case, however, feels a bit different. The government really piled on here... and they won. I am not sure that federal authorities thought that Mehanna himself was particularly dangerous. They might have thought that a culture where dissidents feel free to blow off the Feds would be particularly dangerous.

Credibility can be Key

In many of my prior posts about this case, I identified major challenges facing the defense, including poor timing, archaic jury selection procedures, adverse evidentiary rulings and the emotional climate created by any reference to terrorism.

Against all of this, I was very impressed with the defense mounted by Mehanna's team. In particular, I thought they did an excellent job of reminding the jury at every turn that almost everything cited as evidence by the prosecution turned out to be spoken or written words. The First Amendment defense, which seemed rather far-fetched as the trial opened, gained traction as the case went along.

There proved to be one major problem. Mehanna's trip to Yemen, at a time when no sane person would go there other than to be in the middle of a war, was clearly not mere talk. It was a very concrete act of someone who was clearly trying to accomplish something more than he could at home. The defense explanation was that he was seeking further Islamic education. There was scant evidence to support this contention and it frankly didn't pass the sniff test (even if it were true).

The perceived need to shoehorn this event into the free-speech-based defense strategy probably did not serve Mehanna well. I have not heard or read interviews with any of the jurors yet, but I wonder if the implausibility of this particular defense hurt the defense team's credibility with respect to the rest of the charges. If jurors thought the defense was trying to snow them about the trip to Yemen, they likely became suspicious of the rest of the defense story.

Hindsight is 20-20 (or at least usually less myopic than the present), so it is easy to speculate about "what ifs". I am sure that Mr. Carney and his team did what they thought would be most effective for their client at the time, and I do not mean to suggest that I somehow know better. The post-game analysis, however, tends to speculate about how things might have gone differently. In that spirit, I do wonder what might have happened, had Mr. Mehanna essentially fallen on his sword with respect to the ill-fated trip to Yemen.

Rather than defending the trip as an educational venture, the defense might have admitted that the trip was a stupid idea of an immature and angry young man. They might have been able to spin the story, to suggest that finding himself in the Middle East opened Mehanna's eyes to the very real conflict in the region. He came home because he realized that violence in the name of God is wrong. This story does seem to dovetail a bit better with Mehanna's subsequent decision to take his fight to the web, rather than the battlefield.

It's always the cover-up

Americans are, as a rule, very forgiving people. I am often amazed at the transgressions we are willing to overlook. The one thing that we seem to have virtually no tolerance for, however, is anyone thinking they are bigger than the system, above the law, or not subject to the same rules as the rest of us.

Juries punish arrogance. Just ask Martha Stewart. Just ask Conrad Murray. Just ask Rod Blagojevich. Just ask Raj Rajarratman.When you get caught, throw yourself on the mercy of the court and jurors will treat you fairly. Act like you are smarter or tougher or better than everyone else and they will punish you.

It is for this reason that I am so concerned that the defense of Mehanna's trip to Yemen as a pilgrimage of Islamic learning came across as arrogant. It was borderline contemptuous of the jury. I worry that some of the jurors thought, "Just how gullible do you think we are?"

Alas, it will always be relegated to speculation what might have happened had the defense team taken a different tact with respect to this one particular act. Would the jury have been more sympathetic to the free speech defense of Mehanna's other activities? Would they have deliberated longer than 10 hours? We will never know.

Can Tarek Mehanna Take the Fifth... and the First?

2011-12-12T18:21:00.001-05:00

The Protected Free Speech Defense

The terrorism trial of Tarek Mehanna has been going on in Federal District Court in Boston for about a month now. (Find my prior blog posts on the trial here.) Jay Carney, Jr., and the rest of the defense team, have built their defense to charges of supporting Al Qaeda around the First Amendment right to free speech. While the defendant might have said, written, posted, blogged and translated some items that most Americans would find repugnant, the Bill of Rights specifically protects the right of any American to do just that. The defense contends that none of these ideas were ever put into action and therefore can't constitute criminal conduct.

I will admit that, when the trial first started, I thought this defense was a long-shot. Surely the prosecution would present evidence of actual deeds that would puncture the credibility of the free speech defense. As the trial progressed, however, I was struck by just how little of the government's evidence went beyond texts, translations and conversations. Maybe they could pull off this defense, after all.

There is the sticky situation of Mehanna's trip to Yemen, allegedly to receive terrorist training. The defense that he was simply seeking to further his religious studies rings quite hollow. There doesn't seem to be much more than this, though, in the "smoking gun" department. It seems as if the authorities only managed to pulled off of his computer text files and emails. That is, they have a seemingly endless supply of hateful and desperate speech... but it's still all speech.

Was the Speech Dangerous?

The protections of speech, even political speech, do have their limits. If the speech was intended to and/or could reasonably be expected to incite violence, the state interest in preventing that violence trumps the right to the speech. While the burden is on the prosecution to prove that the speech in this case was too dangerous to permit, the true burden is not so cut-and-dried. The easy solution for the jury is to accept the prosecution's assertion that this kind of vitriolic America-bashing is dangerous and should not be permitted. As such, it is incumbent upon the defense to reassure the jurors that there is no link between this kind of speech and an actual threat to their lives, their safety and their way of life.

That is, the defense needs the jurors to conclude that this speech is not dangerous. The defense needs the jurors to understand that Tarek Mehanna can believe everything he wrote and said and still not be a threat.

Should the Defendant Take the Stand?

This brings us to the very tricky question of whether Tarek Mehanna should take the stand in his own defense. The last time I wrote about this question, it was in the context of the Edward Fleury trial (Fleury had organized a gun show at which a young boy had accidentally shot himself to death with an Uzi submachine gun). There is an added twist to this strategic decision in the Mehanna trial. The whole defense is premised on the proposition that nothing Mehanna has said is dangerous. He need not renounce any of his writings because the Constitution protects his right to express his views. Most importantly, those views did not spur either Mehanna or his compatriots to violence. That is, the defense needs the jury to conclude that Mehanna's speech is innocuous.

While a jury is always instructed not to conclude anything about a defendant's guilt or innocence from his choice not to testify, we know from ample empirical research that jurors always draw inferences from this decision. It will be particularly difficult for jurors in this case to ignore a decision by Mehanna's defense team to have him not testify in his own defense. How is a juror to conclude that Mehanna's speech is harmless if he is not willing to take the stand and defend that speech himself? If Mehanna is afraid of the consequences of speaking his views in open court, perhaps the jurors have reason to fear that speech, too.

So, the defense confronts a very real dilemma. Can the defendant simultaneously assert his FIrst Amendment right to free speech and his Fifth Amendment right not to speak at all?

According to media sources, the defense is scheduled to rest its case later this week. That suggests to me that Mehanna will not testify in his own defense. Such a choice is a gamble in this case -- perhaps more so than in a typical case -- but I can certainly understand the defense team going in that direction. Perhaps it is a better bet that jurors will properly internalize the burden of proof on the government here than that Mr. Mehanna can avoid saying something incriminating on the stand under cross-examination. The remainder of the case certainly holds its share of suspense.

Jurors as Interpreters: When Facts Aren't Facts

2011-10-31T17:36:00.001-04:00

The Interpretive Role of the Jury

The Tarek Mehanna Terrorism trial is compelling drama, revealing about our homeland security efforts, and instructive about America's uneasy relationship with Islam. It is also a case that implicates some of the more fascinating and troubling aspects of the American Jury System.

In our USC Interdisciplinary Law Review article, "And So Say Some of Us...: What to do When Jurors Disagree," we begin with the premise that, in a large number of criminal cases that actually go to trial, material questions are put to jurors about which reasonable people could disagree. That is, the failure to reach unanimous consensus does not represent a failure of comprehension or duty on the part of jurors, but rather follows naturally from the fact that jurors are often asked to resolve difficult interpretive questions, to which there are no right answers.

The most obvious and ubiquitous of these questions is whether the state has proved its case beyond a reasonable doubt. Because there exists no objective definition of reasonable doubt, and the courts have steadfastly refused to provide one, each juror is free to decide for herself how much doubt is reasonable. In addition, even for those jurors who share interpretations of this standard, their natural inclinations to weigh evidence differently, and view witnesses as more or less credible, can result in differing conclusions about whether the state's burden of proof has been met.

This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." Mens Rea requirements provide another obvious example, as jurors are asked to decide, as ostensibly a factual matter, whether the defendant possessed a certain state of mind at the time of the commission of an unlawful act. Was there "malice aforethought"? Was the assailant "reasonably" afraid for his own life? Was he "under the substantial influence or control" of another person? Were the consequences of his actions "reasonably foreseeable" by the defendant? These are all interpretive questions. Any two people who hear testimony in the same case could reasonably disagree about the "right" answers to such questions.

When is Free Speech Too Costly?

There are two major interpretive questions facing jurors in the Tarek Mehanna trial. The first one is whether the kind of material being posted on Mehanna's website, and being espoused by the defendant in direct conversations with others, is protected by the First Amendment's free speech provision. On the one hand, it is clearly political speech, which entitles it to heightened consideration for protection. On the other hand, we all have heard that the First Amendment does not provide the right to cry "Fire!" in a crowded movie house. That is, one is not Constitutionally permitted to use speech to endanger the public safety. The question in this case might be summed up succinctly by asking whether it is Constitutionally permissible to cry "Jihad" in a crowded mosque.

The defense team in the Mehanna case has requested that the jury be instructed about First Amendment free speech rights in advance of trial testimony. Their proposed instruction includes language about this fine line between political dissent and a call to arms:

"[T]he right to free speech includes the right to advocate force or violence, unless the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action."

To the extent that the jury is willing to see this case as a referendum on free speech (Let's not forget that Mehanna is also accused of plotting a terrorist attack on a U.S. shopping mall and seeking jihadist training in Yemen), the jurors will have to wrestle with several concepts without obvious objective meanings. What does it mean to "direct" someone to violence? Does it have to be targeted at a specific person or group of persons? Does the "director" have to advocate a particular form of violence, or is general approbation of violence sufficient? What constitutes "imminent" lawless action? Within a week? A month? A year? Does it matter if the perpetrator knows whether his words will actually convince anyone to do anything?

Finally, there is the very open-ended question of how "likely" his words are to incite actual action. Each juror would seem free to decide for herself how effective Mehanna's words would have to have been in order to nullify his First Amendment protection. If there were a 5% chance that someone would engage in criminal behavior as a result of Mehanna's exhorting, has he crossed the line? A 1% chance? A 25% chance? How likely is "likely"? Is it a sliding scale, depending on how devastating we fear the "incited action" might be?

Is there such a thing as Immaterial Support?

The second major interpretive question facing the jury in the Tarek Mehanna trial is whether speech can constitute "material support"? Everyone agrees that arming a terrorist organization, providing manpower for its efforts, or giving it money all count as providing that organization with material support.

The prosecution in this case contends, however, that Mehanna provided material support to the recruiting and propaganda efforts of Al Qaeda, simply by translating documents into English and posting them on his website.

In the jury instruction on material support, requested by the defense, material support can be in the form of "... service, including ... expert advice or assistance..." According to the requested instruction,

"To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request."

I would imagine that the prosecution would vigorously dispute this interpretation of the statute. I do not know how Judge O'Toole has ruled on this question.

Even should this wording be used, there remains an open question of whether Mehanna's efforts were pursued "in coordination with" Al Qaeda. While it is not clear that Mehanna had direct contact with Al Qaeda members, he does seem to have had a great deal of contact with people who were themselves connected to Al Qaeda. So, how orchestrated must Mehanna's efforts have been to be considered "in coordination with" Al Qaeda?
Consider the question of approval. Suppose the prosecution could show that approval for Mehanna's efforts were posted on official Al Qaeda websites. Once Mehanna knows that Al Qaeda is aware of his actions, does he consider them coordinated?

The Law/Fact Distinction: A Convenient Legal Fiction

I have identified above two clearly interpretive questions that the jury in the Mehanna case must address as it considers its verdicts. While the questions in this case are particularly "juicy", such interpretive issues permeate all the jurors do. While it is convenient to characterize the jury as the "arbiters of the facts" and the judge as the "arbiter of the law," the distinction really does not exist. Judges make factual determinations as "rulings of law" all the time. Similarly, jurors are constantly asked to give meaning to legal terms that are ambiguous, at best.

This is not a bad thing. It provided the avenue through which a jury can act as the "conscience of the community." The jurors interpret the legal language through the lenses of the times and circumstances in which they are living.

Such a realistic understanding of what jurors do should also inform our appreciation for what jury consultants do. Some would argue (never anyone who has worked with one of us, of course) that we try to "twist the minds" of jurors. We "pervert the facts" and "manipulate the process." This is utter nonsense.

We are not lawyers. As such, we need not give even lip service to the artificial law/fact distinction. As students of human behavior, we have always understood that jurors are engaged in a difficult, sometimes subtle, and poorly guided interpretive process. With a wide spectrum of legitimate interpretations from which to choose, a juror is constantly looking for clues, for guidance, for help in understanding how to best do her job. Sometimes, her first question is simply, "How do I begin?"

We trial consultants work for clients. We try to help our clients win their cases. So, none of us would argue that we don't have an interest in the outcome of a case. I can't speak for other members of the profession, but, I can confidently say that I have never worked on a case where I thought my client shouldn't win. This is because every case is a close call. Every case relies on jurors' interpretation of testimony and evidence and the meaning of the laws they are asked to apply. In every single case I have worked on, there was a very plausible interpretation of these factors that favored my client. And, of course, in very many of them, there was a plausible set of interpretations that favored the other side.

That is why we were in court, in the first place.

What will the Mehanna jurors do?

I know how I would probably resolve the interpretive issues in the Mehanna case, although I allow for the possibility that I might feel differently were I on the jury, seeing only what the jury sees. For reasons I have enumerated before, many having to do with Terror Management Theory, I also have expectations about what the final verdict will be in this case. That said, I don't know with any certainty how the individual jurors will handle the specific interpretive questions I identify here. There are no right answers, only opinions. And juror opinions never cease to surprise me.

It is very unfortunate that parties are not permitted to interview jurors in Massachusetts after they have rendered verdicts. I think it would be fascinating to learn how these jurors tackle their interpretive dilemmas. Which words will they key in on? Which definitions will prove compelling? Will they reach the same verdict for different reasons? Will the task simply prove too big for some of them?

I only hope that Judge O'Toole will treat their task with great respect. I hope that when they seek guidance, he does not simply resort to rereading the jury instructions to them. I hope that, maybe just for once, the law/fact distinction can be set aside in the interest of justice.

Challenging Jury Selection in Tarek Mehanna Trial

2011-10-26T16:42:00.001-04:00

Followers of The Jury Box Blog know that I have been following closely the case of Tarek Mehanna, since he was arrested and arraigned nearly two years ago. Mehanna, a pharmacist from Sudbury, MA, is accused of engaging in terrorist activities and "providing material support" for Al Qaeda. In addition to have allegedly attempted (unsuccessfully) to receive jihadist training in Yemen and plan the bombing of an American shopping mall, Mehanna is accused of translating into English and posting to websites hundreds of pro-Al Qaeda documents. His case then presents a very difficult question. Can publishing propaganda be considered "providing material support"? Mehanna's defense team desperately wants to turn this into a First Amendment case, while the prosecution aims to prove that the defendants efforts were all aimed at actually furthering the destructive efforts of a terrorist organization.

Tarek Mehanna

You can review my earlier blog posts about the case here. In addition, I gave a talk about Terror Management Theory at Harvard Law School in September, where I focused in on the challenges presented by the Mehanna case. Finally, as the trial got started this week, I was interviewed by WBZ-TV news (the CBS affiliate in Boston) about the challenges associated with picking a jury in this highly charged case. A brief snippet of that interview can be found in the video embedded in this page.) In previous blog posts, as well as the TV interview, I addressed the fact that the default jury selection rules in federal court are ill-suited to handling the myriad problems of intrinsic bias in this case. Having the judge conduct group voir dire in open court is a recipe for disaster. Judge O'Toole, who is presiding over the case, is not exactly known as an innovator on the bench.

Judge George O'Toole

Jury selection did begin on Monday of this week and we have learned just a few things about how it is proceeding.

The initial panel of prospective jurors numbered only 60. Given that this could be a two-month trial, this seems to be a really small number. It suggests that the judge is not going to be particularly accommodating with respect to challenges for cause, based either on personal beliefs and experiences, or exposure to pre-trial publicity about the case.
The group voir dire was pretty much by the book. Everyone was asked a series of yes-or-no questions to which they had to respond affirmatively by raising their hands. Much research on this topic suggests that prospective jurors very often "lie through omission" in this setting, especially with respect to sensitive or controversial topics.
Judge O'Toole did have the good sense to conduct the ensuing individualized voir dire in his chambers. That is, rather than having a prospective juror come up to side-bar for a whispered conversation, with a courtroom full of spectators, fellow jurors and reporters trying to eavesdrop, O'Toole elected to have these conversations in private. Only the judge, a court reporter, the attorneys and the defendant have been permitted into chambers for this part of the voir dire. This should help people feel slightly more comfortable and hopefully forthcoming, as well.
Despite much research that shows that jurors tend to be more open, honest and forthcoming when questioned by attorneys, Judge O'Toole is insisting on conducting the voir dire himself. In addition to the general intimidation factor, this runs the risk of jurors trying to anticipate the "right" answers to his questions, or trying to please him with their responses.
The other major problem with this judge-conducted voir dire is the insistence of judges to ask the "Can you be fair?" question. "Notwithstanding the fact that you have read 30 or 40 stories about the defendant in the Boston Herald over the past two years, Mr. Smith, do you think you can put aside any opinions you've encountered and be fair?" Research on this shows that people who confidently answer "yes" to such a question consistently exhibit more bias against defendants than people who admit that their exposure to pretrial publicity might have compromised their impartiality. Self-reflective jurors just tend to be more conscientious.
We have learned a few things about what each side has asked to be included in the voir dire questions. Mehanna’s lawyers asked the judge to question prospective jurors about whether they have any family or close personal friends who were directly affected by Sept. 11 and if they attended any memorial service commemorating Sept. 11. This is a reasonable question, given that it is experiential, rather than opinion-based.
The defense also asked for prospective jurors to be questioned about whether evidence that Mehanna greatly admired bin Laden would make it difficult for them to be impartial. This question is poorly worded, in that it asks for a level of self-reflection and self-evaluation unattainable by most people. Responses to such a question just aren't remotely reliable.
Mehanna’s lawyers also want the judge to ask jurors whether they could be impartial after hearing evidence that Mehanna, an American-born Muslim, supported the destruction of the World Trade Center. This question suffers from the maladies as the previous one. The defense team is really in a quandary here because they are forced to phrase questions as yes-or-no and the judge will insist on wording about impartiality.
Prosecutors, meanwhile, focused their proposed questions on attitudes about how some evidence against Mehanna was collected. They asked the judge to question jurors on whether they believe the use of electronic wiretaps is unfair and would make them unable to be impartial in evaluating the evidence against Mehanna. Again, the form of this question is terrible. It would be much better to just ask each prospective juror to talk a little bit about her views on the weighing of civil liberties against national security. Open-ended questions always work much better.
The government also wants the judge to ask if jurors have any “fixed feelings or impressions” about Arabs or Muslims that would make it difficult for them to listen to the evidence with an open mind. My sense is that the only people who will answer in the affirmative here are folks trying to get out of serving.

To sum up then, the decision to hold individual voir dire in chambers should increase the willingness of prospective jurors to be candid and forthcoming. The public may never learn how these interviews have been conducted. I only hope that Judge O'Toole, outside of the media spotlight, will treat this voir dire as an opportunity to have more of a conversation with jurors, rather than peppering them with the traditional barrage of challenging questions.

Attorney John W. Carney, Jr.

Perhaps there is hope, given how upbeat Mehanna's defense attorney, John Carney, was at the end of Tuesday's session. He told reporters, "We're very pleased with the thoroughness with which Judge O'Toole is questioning prospective jurors. We are optimistic that we will get a fair and thoughtful jury in this case."

I wonder if the prosecutor is as sanguine....

Ferdaus Arrest complicates Mehanna trial

2011-10-05T10:47:00.001-04:00

When did Massachusetts move from the Northeast to the Middle East?

Rezwan Ferdaus

Massachusetts residents awoke last week to the disturbing news that yet another resident of the Commonwealth had been arrested for Al Qaeda inspired terrorist activity. Rezwan Ferdaus is alleged to have concocted an elaborate plot to fly drone airplanes, loaded with explosives, into the U.S. Capitol, and then have snipers located nearby to shoot officials fleeing the explosions. Mr. Ferdaus is an American citizen with an engineering degree from Northeastern University, located right in the heart of Boston.

Tarek Mehanna

It will be several years before Mr. Ferdaus is tried for his alleged crimes. That does not mean, however, that the effects of his arrest won't be felt around here much sooner. Tarek Mehanna, whose case I have discussed in earlier blog posts (09/03/11 post, 11/03/09 post), was originally scheduled to go on trial for similar terrorist planning activities on Monday of this week, only a few days after Ferdaus was arrested. Mehanna's trial has now been postponed until later this month, but the shock of Ferdaus' audacious plan will undoubtedly still be fresh in the minds of Massachusetts jurors.

As I have discussed in the previous posts about the Mehanna case, Terror Management Theory (TMT) has a lot to say about how jurors react to evidence and make decisions in trials involving allegations of terrorism. The constant reminders of death and mortal vulnerability triggers fear-induced intensification of one's commitment to one's world view. Jurors will feel threatened and they will respond by vigorously defending their values and chosen way of life against that perceived threat. Logic and common sense often give way to emotional reactions and the need to feel safer at any cost.

It was going to be very, very hard for Mehanna to receive a fair trial in Massachusetts anyway. The 10th anniversary of 9/11 was very recent. Massachusetts residents have not forgotten that the planes that hit the twin towers originated here and carried many friends and loved ones. The default jury selection rules in Federal District Court do not provide many opportunities for lawyers to identify those jurors most likely to have their decision-making hijacked by emotional concerns.

Now, along comes another "home-grown terrorist." Undoubtedly, jurors will be more terrified than ever and want, more than anything else, to make it all stop -- to regain their safety and security. The emotionally-driven temptation to throw the book at Mehanna may prove too much to bear.

I gave a talk to the Harvard Law School Student Association of Law and Mind Sciences (SALMS) last month, where I discussed Terror Management Theory, and its application to the Mehanna case. (You can view my slides here.) A student asked whether I was at all optimistic that some of the defense strategies I suggested in my talk might actually help Mehanna get a fair trial. I couldn't express much optimism at the time and I am afraid that recent developments only make it more difficult for him to get a fair trial here in the new hotbed of domestic terrorism.

Facing the Fearful Jury: Terror Management Theory in the Courtroom

2011-09-06T11:14:00.001-04:00

A few years ago, a collection of scholars at Harvard realized that there existed a great deal of psychological, neurological and sociological research on human cognition and behavior with profound implications for the practice of law. In order to explore these implications in a systematic way, they started the Harvard Project on Law and Mind Sciences, (PLMS) housed at Harvard Law School.

The founders launched several initiatives at once. They established The Situationalist, a blog devoted to the intersection of mind sciences and legal institutions. Rather than having the blog written by the same person all the time, The Situationalist invites contributions from dozens of scholars from all over. The result is an ecclectic and fascinating overview of exciting developments in this field.

PLMS has also run four conferences exploring psychological aspects of the law. The 2011 conference focused on causes and consequences of inequality. The 2010 conference dealt with the heavy-duty challenge of what, if anything, neuroscience can tell us about morality.

There is also a student group, The Student Association for Law and Mind Sciences (SALMS), which publishes its own blog and also sponsors a speaker series at the Law School. These talks, which are open to the public, cover a fascinating and diverse set of topics. The Fall schedule is now posted on the SALMS website.

I have the honor of delivering the first presentation of this semester. My talk, entitled "Facing the Fearful Jury: Terror Management Theory in the Courtroom," will be on Tuesday, September 13, at Noon, in 101 Pound Hall at Harvard Law School. The presentation, including time for questions, will last about one hour.

For those of you who are curious about what exactly Terror Management Theory (TMT) is, I would point you to two resources. First, there is an excellent review article, by Lieberman and Arndt, in The Jury Expert, the online journal of the American Society of Trial Consultants (ASTC). Second, you can review an earlier posting to The Jury Box Blog about the arrest of Tarek Mehanna, a pharmacist from Sudbury, MA who faces trial this fall on terrorism-related charges. In that earlier blog post, I anticipated that Terror Management Theory would have a lot to do with how this case would ultimately be resolved. As the eve of trial approaches, I will return to Mehanna's case during my upcoming talk.

It will have escaped the attention of few of you that my talk falls very near to the 10th anniversary of 9/11. This is no accident, in that the SALMS organizers have made a concerted effort to use this year's speaker series to reflect on the consequences of that fateful day for how we think, feel and react to the law. I know that we all remember where we were on that morning. As it so happens, I was sitting in Bill Eskridge's Civil Procedure class at Yale Law School, in a classroom not-so-different from the one where I will be giving my presentation 3654 days later. I know that those events affect me psychologically -- emotionally -- even today. Imagine what must go through the minds of jurors who are forced to face those fears head-on while deciding the fate of someone accused of plotting new terrorist acts. And so we have TMT in a nutshell.

I hope that those of you who are local will join me for what should be a very interesting discussion on Tuesday. For those who cannot attend, I will be sure to post here, and on my Twitter Feed, where one can watch the recorded talk online, once it is posted.

Clemens Hit by Pitch: Prosecutor gets Tossed

2011-07-18T10:54:00.000-04:00

All Part of the Game

In baseball, there are a lot of things against the rules that players engage in all the time (Ironically, for a while there, I guess Steroid use was one of them). Pitchers try to doctor balls. Base-runners steal signs. Hitters obliterate the line at the back of the batter's box so that they can stand further behind home plate. Runners take out opposing fielders with hard slides, with no apparent effort to actually reach the base to which they were running. Pitchers throw at opposing batters, in retaliation for some real or imagined infraction against a teammate earlier in the game. All of these actions are technically against the rules, but typically are overlooked as "gamesmanship." Apologists remind us that ball players have been doing these things for over a century now. They're as ingrained in baseball as chewing tobacco and crotch-scratching.

In addition to being tolerated, many of these "transgressions" are celebrated as being evidence that a player is "hard-nosed," "old-school," or "playing the game right." I am always impressed by how accurately Jerry Remy can predict when a pitcher is going to hit a batter with a pitch. WIthout necessarily being able to articulate the unwritten rules of bean balls, Jerry nonetheless understands them intuitively. I am sure this comes from his decades in the game, first as a player, and then as an announcer for the Red Sox. Jerry has this uncanny ability to predict not only what kind of transgression will engender a retaliatory bean ball, but when it will come, against which player and even where on his body he's going to get hit.

"That hard slide has Joe Maddon (the manager of the Tampa Bay Rays) pretty steamed. If this game gets out of hand, I wouldn't be surprised to see some reliever in the 8th inning knock down Youkilis or Pedroia. They won't go for his head or anything. Just a purpose pitch to let the Red Sox know the Rays don't appreciate what happened and they aren't going to forget it anytime soon."

Sure enough, some scrub, who's just been called up from Triple-A, takes the mound in the 8th inning and plunks Pedroia right in the ass. And here's the weird part. Pedroia knows it's coming, too. And most of the time, that's OK. He calmly drops his bat, glares at the mound for a few seconds, and trots to first base. It's all part of the game.

Jury trials have their own rules

Litigation operates under its own set of rules. They are codified in the rules of civil procedure and very rarely does an experienced litigator do something impermissible in court without realizing he has broken the rules. That is, there are very few honest mistakes.

Just as in baseball, however, crafty trial attorneys understand the rules that aren't in the rules. One lawyer doesn't completely comply with all discovery requests the first time around. "Oh, Your Honor, I didn't realize counsel wanted those old emails, too. Gee, let me put my assistant right on it and we'll see if we can put our hands on them."

A witness will be slipped in at the last minute, despite numerous pre-trial conferences at which the lawyers are asked if the witness lists are complete. "We hadn't received Dr. Jones's report until last week, Your Honor, and we were fairly certain he wouldn't be available to testify."

Even though attorneys aren't supposed to argue the merits of the case during voir dire, a good trial lawyer will try to plant the seeds of her case by asking questions in a particular way. "Do you think it's possible that people make more typos when sending emails than when sending letters, so that an email might be less reliable as evidence?" A great question if the dollar amount included in an email will be used as evidence against your client; but, probably not completely kosher for voir dire.

Perhaps the place where this gamesmanship pops up most often is in the revelation of inadmissible evidence or testimony by a witness on the stand, prompted by a lawyer's question. Did the lawyer actually ask the question to elicit the verboten response? Did the witness know it was coming? Was the witness looking for an opportunity to "inadvertently" blurt out the information? Most of the time, it is pretty hard to tell.

Taking Control of the Game

When any of these transgressions occur, the judge has to figure out how to handle things. If the trial has started, the judge usually doesn't want to overreact. A mistrial is a royal pain in the ass for everyone involved. Sometimes, that is exactly what the offending party is looking for. So, the judge doesn't want to reward bad behavior. The first time something goes awry like this at trial, the judge will usually warn both sides to knock off the shenanigans. It's very much like a baseball umpire warning both benches.

If the offending behavior continues, the judge finds himself with the unenviable job of punishing one side or the other. Occasionally, a judge will make unavailable a particular line of inquiry that had previously been ruled in play. "That's it counselor. I've had just about enough. The inquiry about the secretary's salary is now off the table. Move to your next witness." This is akin to an umpire tossing a player from the game (or the manager). It limits a team's options and might reduce its chance of winning the game.

If the bad lawyer is recalcitrant and won't behave, the judge has the ability to impose sanctions that apply beyond the current case. Often, the matter will be taken up by the jurisdiction's board of bar discipline. Professional baseball players are subject to disciplinary actions by Major League Baseball, including fines and suspensions, the same sorts of punishments facing offending lawyers. Roger Clemens was suspended multiple times for intentionally throwing at hitters, and was famously fined $50,000 for "unintentionally" throwing a jagged piece of a shattered bat at Mike Piazza during the 2000 World Series.

The Last Resort: When to Call the Game

On occasion, the damage done to the trial process is considered so severe that a judge feels he has little choice but to declare a mistrial and dismiss the jury. A new trial date has to be set and a new panel of prospective jurors has to be convened. In a high profile case, this outcome is particularly problematic because one presumably wants to find new jurors who don't know much about what just happened in the first trial.

The case law governing when to declare a mistrial is actually fairly sensible, if vague enough to allow a judge to ultimately do whatever she wants. At least, judges are directed to look at the right questions. For example, if a witness mentions something inadmissible during testimony, the judge is instructed to consider the following: (See Peyton v. US 709 A.2d 65).

Was the inadmissible information uttered once or repeated? (Did the pitcher throw at the batter multiple times?)
Was the statement inadvertent or solicited? (Did the manager tell the pitcher to hit the batter?)
How important to the case is this witness's testimony? (Did the pitcher just plunk the other team's best hitter?)
How significant is the inadmissible information and how will jurors interpret it? (How hard did you hit the guy, and can he stay in the game?)
Is there other evidence that would have gotten the jury to the same place? (Is this game already out of hand?)
Did the witness draw any conclusions about the inadmissible item or just mention it? (I guess this is sort of like the distinction between brushing a batter back and actually drilling him.)

These questions are intended to help the judge determine just how much damage was done as a result of the inadmissible testimony. In determining whether a mistrial should be declared, this damage has to be balanced against the likely effectiveness of a judge's instruction to the jury to disregard the inadmissible evidence. This is where the case law gets a little less sensible (big surprise there). The treatment in Peyton, however, is not bad.

Taken as a whole, the judge's instruction was not a pro forma and self- defeating admonition not to think about a pink elephant. On the contrary, the judge explained to the jurors, in rational and persuasive terms, why speculation about any hypothetical polygraph test would be unfair and unwarranted. A juror who, notwithstanding the judge's admonition, might have attempted to argue for conviction during deliberations on the basis of the stricken polygraph evidence would surely have faced a skeptical reception from his or her colleagues on the jury.

There is an excellent article by Lieberman and Arndt on what behavioral research tells us about the effectiveness of these limiting instructions. It is generally a pretty pessimistic story. In "Understanding The Limits of Limiting Instructions" (6 Psychol. Pub. Pol'y & L. 677), the authors analyze their own studies, as well as those of others in the field, to conclude that such admonitions very often do more harm than good. The "pink elephant" problem is a real one, as is "reactance", the natural inclination to rebel against limitations on one's freedom that have not been satisfactorily explained (Think about the behavior of any moody teenager).
While the authors offer several suggestions for improving the performance of limiting instructions where they might be used effectively, they reluctantly conclude that, in most instances, there simply isn't anyway to unring the bell.

Laura Pettitte makes a Surprise Appearance out of the Bullpen

This brings us back to what happened last week in the Roger Clemens trial. Judge Reggie Walton declared a mistrial on Thursday when video of Clemens's Congressional testimony, being shown to the jury, included a quotation by a Congressman of a sworn statement by Laura Pettitte, about a conversation she had shared with Andy Pettitte, regarding Roger talking about using Human Growth Hormone. It was third-degree hearsay and Judge Walton had very clearly ruled out its use by prosecutors.

Prosecutor Steven Durham tried to argue that, notwithstanding the judge's ruling on the matter, the particular video clip had been admitted into evidence without objection. This is a little like George Brett complaining that Billy Martin only challenged the pine tar on his bat after Brett had hit a home run with it, even though Brett had been using it all game. This is an interesting point, because it is quite possible that Clemens's lawyer, Rusty Hardin, didn't object to the clip precisely so that it would get played at trial, knowing full well that it would get the judge irate. This is, however, well within Hardin's rights. He need not object again to something that had already been categorically ruled out by the judge.

So, why didn't Judge Walton just admonish the jurors to disregard the reference to Laura Pettitte's statement? After all, it was very early in the trial. Andy Pettitte was likely to testify himself about the very same conversation. The reason that an admonition to disregard (limiting instruction) won't work in this case is that there is no way to explain to a jury why this statement shouldn't matter. The whole case is about credibility. Who said what to whom when? Who is credible and who is likely lying. Clemens needs to successfully challenge Andy Pettitte's recollection of conversations they had about performance enhancing drugs. He famously told Congress that Pettitte "must have misremembered." A jury is unlikely to buy this argument if they believe that Andy Pettitte related the whole conversation to his wife shortly thereafter.

With respect to the Peyton criteria outlined above, this case takes a big header on Number 4 and there is no way to explain to jurors why they should ignore Laura Pettitte's sworn statement. Sure, the judge can explain why, as a matter of law, they should ignore it; but, he'll never successfully explain why they should, as a matter of logic, or common sense. It is probative, and therefore prejudicial. This is the precise reason why it is impossible to convince a jury to ignore credible evidence that has been excluded on 4th Amendment grounds. The exclusion has everything to do with how the evidence was obtained and nothing to do with how useful it might be in reaching a verdict. Jurors can't turn off their brains that easily (and research shows that judges don't do it very well, either).

In light of the nature of the prosecution's transgression, and the difficulty in really convincing a jury to disregard it, Judge Walton probably made the right call in declaring a mistrial in this case. I guess the rest of us will just have to wait a few months more to see Clemens's smug face try to hide his contempt for the jurors who will decide his fate. His next start has been pushed back a few days.

The mistrial is probably better for Clemens than for Durham. Clemens has taken every opportunity available to delay this trial. Every day that goes by, the government gets a little more in debt and the public cares a little less about steroids in baseball. Now, in early September, Judge Walton will decide whether there will be a retrial, and, if so, under what evidentiary rules. That is, the ump has to decide whether to default the game or reschedule it (maybe as part of a double header with the Barry Bonds retrial).

In this game, Roger took one for the team. But that's OK, he owns the team.

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Can Whitey Bulger Get a Fair Trial in Massachusetts?

2011-06-24T10:24:00.000-04:00

Interview on WBZ Radio 1030

This morning, I was interviewed by Carl Stevens of WBZ Radio 1030, the major all-news radio station here in the Boston area. Carl wanted to know what I thought were the challenges associated with seating an impartial jury to try someone so locally notorious.

I talked a bit about how important it will be to handle jury selection properly from a procedural perspective. The list of jury panel members must be made available to the attorneys well in advance. There must be a very extensive supplemental juror questionnaire (SJQ). Finally, there must be meaningful voir dire, ideally conducted by the attorneys, not the judge.

I also speculated a bit about the importance of young people and recent Massachusetts transplants, who aren't so familiar with Whitey Bulger's history in the Commonwealth.
I'll be sure to blog about developments as they seem important.

ASTC Pro Bono Initiative helping bring Baby Doc to justice

2011-06-23T21:02:00.000-04:00

Not a Pediatric Medical Malpractice Case

The Baby Doc in question is none other than Jean Claude "Baby Doc" Duvalier, former dictator of Haiti (1971-1986), following the death of his father, Francois "Papa Doc" Duvalier. Amid the chaos following the devastating earthquake in Haiti, and the mess that was the Haitian presidential elections, Baby Doc Duvalier somehow managed to fly from France to Haiti, not withstanding the absence of a valid passport. There is a lot of speculation and uncertainty surrounding his decision to return to Haiti. Duvalier, of course, claims that he returned to help his country recover. Most outside observers ascribe to him more pedestrian and self-serving motives. Among other things, there is a bank account frozen in Switzerland containing $6 million in Duvalier's name. It is possible that returning to Haiti might have facilitated Duvalier's access to that money.

Regardless of his reasons for returning to the country he ruled so corruptly and violently, Duvalier was was not met with many open arms, aside from those of the local constabulary. Baby Doc was promptly arrested and questioned by the police. While he was soon released to return to his swanky hotel room, Duvalier's papers were seized, precluding him from leaving the country. Government prosecutors are now assembling a case against him on two broad fronts. The first involves financial crimes against the country, including absconding with many millions of dollars that belonged to the Haitian Treasury or private Haitian citizens. The second set of offenses involve human rights violations, including kidnapping, false imprisonment, torture and murder.

Of course, he'll soon be tried in open court and made to answer for his crimes, right? Not so fast, kimosabe. This is, after all, Haiti we're talking about. The country's political history of colonization, exploitation, coup and revolution is Exhibit A of how not to run a country. (BBC has a nice timeline of the country's history here.) Add to this shaky foundation a major natural disaster and a Presidential election fraught with "irregularities" and you have a recipe unlikely to yield smooth transition and peaceful reconciliation.

Where are we now?

In March of this year, Michel Martelly, the Snoop Dog of Haitian politics, was elected President in a run-off election against Mirlande Manigat (despite the fact that Martelly appeared to have finished third in the original vote). All accounts suggest that this is the outcome preferred by (if not engineered by) the United States, despite Martelly's former ties to the Duvalier family and its regime. As a teenager, Martelly was a member of the "Tonton Macoutes," the Hitler Youth of Duvalier's regime. These teenagers were organized into roaming bands of thugs tasked with intimidating opponents of the regime.

As a young adult, Martelly ran an exclusive Haitian nightclub that catered to members of the Duvalier clan and their supporters. Given this history, those pressing for a full and complete prosecution of Baby Doc (including Human Rights Watch, which published a white paper about how important this case is) have reason to worry about the support they will receive from the new government.

Recent events present even more reason for alarm. The investigating judge in the case recently filed charges against Duvalier without questioning him in open court, in open violation of Haitian law. While Baby Doc is largely to blame for this situation, by checking himself into hospital with "Strongman Flu" every time he had a court date, this procedural shortcoming provides straightforward grounds for an automatic appeal. That is, the case is on very shaky grounds before it even begins. Add to this the fact that the judge then visited Duvalier in his hotel suite and one has reason to doubt the sincere desire of the judge to bring the defendant to justice.

Where does the ASTC fit in?

A few months ago, I was contacted by Brian Concannon, the Director of the Institute for Justice and Democracy in Haiti. Brian's organization, and the lawyers affiliated with it, are helping the government lawyers down in Haiti prepare to prosecute Duvalier. I connected with Brian because he was looking for some trial consulting assistance as they helped pull together the "ordinance," the Haitian version of an indictment. They had a lot of documents to review and code and they wanted to generate an interactive timeline linking Duvalier's regime to the various human and financial crimes committed during his rule.

At the time, I introduced Brian to some vendors that might be able to help out with document management. In addition, his assistant, Cory, and I went down to Hartford for a crash tutorial on timeline software from Marie Mullaney of Litigation Solutions, an ASTC member and New England pro bono team member. The first major contribution by ASTC will be for a member firm to step in and take over this timeline project. Several folks have already expressed interest in taking on this task.

Even though Haiti inherited its Civil Law system from France, complete with its inquisitorial (as opposed to adversarial) criminal procedures, the country has adopted some rather uniques practices over the years.

First of all, it is possible to attach private complaints to criminal matters, allowing the criminal and civil trials to take place simultaneously. The attorneys for the civil plaintiffs work right along side the government prosecutor to prepare and try the case. This is how Brian Concannon and his fellow IJDH attorneys can continue to be involved in the case. Brian is currently identifying expatriate Haitians, with claims against Duvalier, to serve as plaintiffs in the case. Depositions and witness preparation will be much easier for plaintiffs who live in the U.S.

The second surprising feature of the Haitian system is that this might very well be a full-blown jury trial, as we would recognize here in the U.S. Not a mixed panel of judges and lay-persons, but 12 ordinary Haitian citizens sitting in judgment. This is where ASTC trial consultants will really be able to make a difference. It might feel like an 18th century jury trial, but a jury trial all the same. Over the next couple of years, as the case develops, ASTC members will be at the ready to help with case strategy, thematic development, demonstrative evidence production, witness preparation and jury selection strategy.

The lawyers and courageous citizens of Haiti, who are trying to make a brutal dictator answer for his crimes, have a tremendously difficulty road ahead of them. Many forces seem aligned against their efforts. I only hope that the combined efforts of the ASTC membership can help level the playing field just a bit.

We are, as an organization, tremendously proud of the work that Beth Bonora and Andy Sheldon did for the Ray Killen prosecution, as revealed in the excellent documentary, Neshoba: The Price of Freedom, as we are of the pro bono efforts of all our members. This extremely important effort to bring Baby Doc Duvalier to justice, after all these years of suffering in his country, is an exciting new chapter in the ongoing pro bono history of the American Society of Trial Consultants.

An Oldie but a Goodie: Tips for Voir Dire

2011-04-05T10:54:00.000-04:00

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Enjoy!

Indirect Questions Reap Most Information in

Oral Voir Dire

By Edward P. Schwartz

October 9, 2006

In my last column, I discussed many of the advantages of using a

supplemental juror questionnaire as part of jury selection – the primary

advantage being that jurors tend to be more truthful in their responses on a

written form than they are when questioned orally in open court.

But the written form – at least in courts that allow traditional voir dire – should

only be seen as a supplement to oral questioning conducted in both a group and

an individualized setting.

Group voir dire

By necessity, group voir dire questions are typically framed as “yes or no”

inquiries. Jurors are asked to raise their hands if they answer any question in the

affirmative. Each party notes who raised a hand in response to each question

and then follows up with questions either in open court, at sidebar or in the

judge’s chambers, depending on the court’s prevailing practices.

My first word of advice is not to expect to learn very much from group voir

dire. The need to ask “yes or no” questions, coupled with the public setting,

conspire to limit how much information you can get from potential jurors. The

studies cited in my last column all reveal that jurors lie during group voir dire – a

lot. Most of these lies stem from an unwillingness to volunteer information about

private and/or sensitive subjects.

My second bit of advice is to treat group voir dire as an entrée into

individualized voir dire. The more often a juror raises her hand, the more

individual questions she will have to answer. Since these follow-up questions are

where the action is, craft your group voir dire questions in a way that prompts as

many people to respond as possible. Instead of asking whether “you or a loved-

one has ever been a party in a law suit,” ask whether “you know anyone who has

participated in a lawsuit.” Many panel members will construe a question as

narrowly as possible in order to avoid raising their hand and setting themselves

up for additional questions.

Ask each juror whether he or she has ever been in a courthouse before.

Almost everyone has been at some point or another. Whether it concerns traffic

court, small claims court or family court, you should try to learn something about

each juror’s experience with the legal system.

Try to keep your list of group voir dire questions short. The jurors don’t want

to raise their hands anyway. The longer the process lasts, the less inclined

anyone will be to volunteer information.

I recently consulted on a trial for which the group voir dire lasted 1½ hours.

For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the

questions from my team had been asked at the beginning.

Some jurors are forthcoming, while others won’t raise their hands unless they

absolutely have to. These jurors can slip through voir dire because questions are

almost always phrased so that it is the jurors who raise their hands who are

asked additional questions. To avoid this, I recommend that you phrase some of

your questions so that it is the jurors who don’t raise their hands who are subject

to individualized voir dire. So instead of asking, “Who has a relative who works in

the health field?,” ask “Who doesn’t have a relative who works in the health

field?” Even if the voir dire will be conducted entirely by the judge, try requesting

that the judge mix it up in this way.

Finally, it is a complete waste of time to ask jurors directly whether there is

anything that would prevent them from being impartial in the case. Most people

who answer affirmatively are just trying to get out of jury duty. The people whose

biases are really a source of concern are rarely self-aware enough to recognize

the problem. Finally, such questions are usually so poorly worded, and cluttered

with negatives and dependant clauses, that jurors can’t decipher them in time to

volunteer a response.

Individual voir dire

A good question in a written juror questionnaire typically does not make a

good voir dire question. The main reason is that while people hate to write, they

love to talk. An open-ended question on a written questionnaire is an invitation to

leave a blank space. As I discuss in my last column, multiple-choice and sliding-

scale questions are preferable on a written form.

But in oral voir dire, open-ended questions provide an opportunity for jurors to

tell you who they really are. The goal is to get potential jurors to want to tell you

about themselves in their own words.

Don’t ask leading or challenging questions. If you try to put words in jurors’

mouths, they will either repeat them back to you or clam up, depending on

whether they like what you are saying on their behalf. So, if you ask a juror what

she thinks about the “torts crisis” in America, she will either tell you that she

thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a

question will not get her to tell you about her own experience (or those of her

friends and family) with the civil justice system, which is what you really want to

learn about.

Instead, ask the juror about the most interesting court case she has ever

heard about. What case she chooses, along with her take on the outcome, will be

much more informative than some canned response about “fairness” or “justice.”

Prospective jurors will instinctively try to figure out why a lawyer is asking a

particular question. The more sensitive the topic – and the more the question

reflects the fundamental controversy of the case – the more likely a juror is to try

to “game” the process. One way to avoid this is to ask jurors to tell stories about

themselves, as I mention above. Another is to ask questions about topics that

proxy well for what you are really interested in.

For example, I recently worked on a case involving the purchase of a firearm

by someone who was mentally ill. We wanted to learn whether jurors were

sensitive to the plight of people facing mental challenges and whether they

believed society is responsible for keeping such people safe.

To get at these attitudes, we asked a very open-ended question about each

juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on

her own about who was responsible, we followed up with a question about the

juror’s initial thoughts about who was to blame.

Some jurors blamed only the shooters. Others expressed frustration with the

parents. A few articulated the position that everyone (parents, school,

government, media, etc.) has a responsibility to look out for the well-being of our

children. The jurors were generally willing to talk about Columbine because it did

not have a direct bearing on our case.

Another ripe area to explore is people’s relations with those close to them.

People love to talk about their children. Rather than ask prospective jurors about

religious preferences, ask where their kids go to school. To get a sense of how a

juror feels about people in different professions, ask what their children want to

be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a

policeman,” you can follow up with, “How do you and your wife feel about that?”

A person whose son is on the debate team or who plays in the orchestra is likely

to have different attitudes than one whose son plays on the football team and has

joined ROTC. A person who is self-conscious about their own life can still be

expansive about her children; use this to your advantage.

There is another advantage to “asking around the topic.” If the other side has

not thought through the voir dire process as thoroughly, the jurors’ responses will

be more useful to you than they will be to your opponents.

Be Prepared for any jury

I have devoted the last two columns to jury selection strategies. I don’t want

you to get the idea, however, that choosing a jury is the only, or even the most

important, opportunity for you to improve your chances of winning at trial. As I

always tell my clients, in terms of impact on verdict choice, who the jurors are is

almost always swamped by what the jurors see. By all means, do all you can to

identify and strike jurors who really will be unfair to your client; but, make sure to

concentrate your energy and resources on presenting your case in its most

favorable light.

Evidence Driven Deliberations enhance accuracy and consensus

2011-02-01T10:49:00.000-05:00

A Missouri jury is confronted with a cold case

In 1976, Becky Doisy disappeared. A man named Johnny Wright was wanted for questioning in the case. The problem was that Johnny Wright was nowhere to be found. More than thirty years later, Johnny Wright was discovered living as Errol Edwards is Georgia and then Texas.

The state's case depended on the testimony from Wright's former roommate, Harry Moore, as well as that of William Simmons, a man who knew Wright and Moore from a local methadone clinic. So, the jury was faced with deciding a murder case, based upon little more than the decades-old recollections of two shaky witnesses who had their own problems with the law.

A Conscientious Deliberation

Melissa Spain was the foreperson of the jury. In an interview with The Missourian, she discusses how she realized that the jury had a difficult job and needed to be very careful about how they interpreted the evidence. The first thing that Ms. Spain did was review the 12 pages of jury instructions with her jury in detail, taking as long as necessary for everyone to understand what was required of them.

The jury then turned to the evidence in the case, reviewing the testimonies of Moore and Simmons in detail. Each juror was asked to volunteer any ideas and questions. According to Ms. Spain, “It was a room full of logical, open-minded people just really taking it seriously and looking at every possible angle.”

Importantly, the jury did not take a vote on any of the verdicts until it had thoroughly reviewed all the evidence. After six hours, the jury returned a guilty verdict.

Evidence-driven vs. Verdict-driven deliberations

The story Ms. Spain tells highlights the advantages of evidence-driven deliberations. Juries sometimes focus on the questions of who did what to whom when -- the evidence -- reserving for later the issue of what their answers mean from a legal perspective. Other juries immediately take votes about which verdict is the right one. This tends to turn deliberations into a competition between two camps to see which can "convince" the other to change its vote.

Ultimately, of course, a jury needs to take a vote. So, deliberations will eventually become verdict-driven. Delaying a vote, however, and keeping the jury in evidence-driven mode has several advantages.

More material and relevant evidence enters the deliberations and fewer factual errors go uncorrected.
A larger number of jurors participate actively in the discussion.
The tenor of deliberation is more inclusive, polite and respectful.
Jury instructions receive greater attention and adherence.
Jurors report greater satisfaction with both deliberations and the final verdict.

I have seen judges suggest to juries that they not rush to take a vote, which seems to me a sensible idea. As a litigator, you can request that the judge offer such advice to your next jury. If you don't think that the judge is likely to adhere to such a request, you might consider including language in your closing argument that hints at keeping deliberations in a evidence-driven mode as long as possible: "As you review the evidence in this case, combing through the testimony and exhibits, before you know how your fellow jurors will vote, I hope that you will consider..."

If a thorough jury is a good jury for your case, try to keep them out of verdict-driven mode as long as possible.

The Fifth Amendment vs. The Third Degree

2011-01-14T13:52:00.000-05:00

Edward Fleury declines to testify in his own defense

Massachussens, parents and gun advocates have all been following closely the trial of Edward Fleury, a retired police chief, who is on trial for involuntary manslaughter in conjunction with a gun show he organized and promoted. At the show, Christopher Bezilj, age 8, accidently shot himself to death while firing an Uzi machine gun. My earlier posts on this trial can be found here and here.

The prosecution recently rested its case, confronting Rosemary Scapicchio, Flery's defense lawyer, with some difficult strategic decisions. One that faces almost every criminal defense team is whether the defendant should testify in his own defense. In the end, Ms. Scapicchio opted not to put her client on the stand.

When should a defendant testify?

There are a few main factors that a defense attorney must consider when deciding whether to put her client on the stand.

The first question is whether the case is predominantly about "who did what to whom when" (factual dispute) or whether the defendant's conduct was, in fact, criminal (interpretive dispute). When the dispute is factual, the defendant might very well be in a position to shed light on important questions. It might be very important to the defense for the jury to hear "his side" of the story.

This implicates the next question. Will the probative value of the defendant's testimony outweigh the costs associated with his testimony? Is there another defense witness available to testify to the defense version of events? Is the defendant belligerent? Does he seem shifty or untrustworthy? Does he look threatening? Can he be trusted not to start inventing things on the stand? All of these factors must be taken into account as part of the cost-benefit analysis associated with deciding to have the defendant testify.

The Fleury trial is fairly unique in that almost all of the questions to be resolved by the jury are interpretive ones. With respect to the manslaughter charge, the jury must decide whether running a gun show at which children were permitted to fire machine guns is intrinsically so risky as to be criminally negligent.

Even the three charges of providing a machine gun to minors rest on an interpretive question. There is an exception to the prohibition for when the child is supervised by an adult with a machine gun license. The jury must decide what exactly constitutes "suprevision," as Fleury was licensed and present, but not directly involved in handling the guns.

Mr. Fleury has no particular expertise with respect to these interpretive questions. While he might have been able to testify as to whether he thought he was "supervising" the children firing the machine guns, it seems counterproductive to have him take more responsibility for what was happening at the gun show. Putting Mr. Fleury on the stand therefore offered a variety of dangers, but not much positive value.

The defense rests... completely

In the end, Ms. Scapicchio chose to mount no defense at all. She called no witnesses, relying instead on the strength of her cross-examinations to introduce reasonable doubt into the minds of the jurors.

I admit to finding this strategy a bit baffling. While there might not have been much she could do to counter the factual case presented by the prosecution, those pesky interpretive questions were left hanging. Might she not have called some expert on gun shows to testify that it is quite common to allow children to fire machine guns? Isn't there some sort of NRA guideline regarding parental responsibility for firearm safety when children are involved?

While I certainly understand the defense decision not to put Mr. Fleury on the stand, I think it might have been unwise not to mount any defense at all.

In my earlier posts, I discussed the importance of deflecting blame away from Mr. Fleury, even if that strategy required the risky move of blaming the victim's father for his death. Early in the trial, Ms. Scapicchio seemed to be following this path. Somewhat surprisingly, in her closing arguments, she asserted that the death had been a tragic accident, nothing more. She chose not to directly implicate the father. It will be interesting to see how this strategy plays out.

Blame Avoidance v. Blame Deflection: The Gun Show Uzi trial

2011-01-07T15:06:00.002-05:00

Gun show Uzi trial highlights emotional impact of tragedy

The manslaughter trial of Edward Fleury, a retired Police Chief, finally got underway in Springfield, MA this week. The trial stems from a fatal accident at a gun show organized by Mr. Fleury, at which an 8-year-old boy, Christopher Bizilj, fatally shot himself with a lightweight Uzi submachine gun.

Prior to the original start date for the trial (which was delayed for over a month), I wrote a blog post in which I speculated about the kind of strategy the defense would have to employ in this case. Both Fleury and the two men who supplied the gun in question (who face similar charges in a separate trial) can mount legitimate defenses to the charges against them. While the boy’s death was certainly tragic and preventable, it is not clear that any of these men violated any laws that resulted in the accident.

In the earlier post, I suggested that it would be insufficient in such a emotionally charged case to simply demonstrate to the jury that the defendant’s conduct was not criminal. Terror management theory (TMT) is a psychological framework for understanding how people cope with the feelings of vulnerability and fear associated with tragic events beyond their own control. You can read more about how TMT applies to jury decision-making here. According to TMT, one of the strongest impulses in the aftermath of a tragedy is to assign responsibility or blame for what happened. Psychologically, we all want to avoid either (1) taking personal responsibility for a catastrophic event or (2) accepting that such horrific occurrences could really be random and uncontrollable.

Blame deflection v. blame avoidance

In light of these forces, I suggested that Fleury’s defense team would need to actually deflect blame onto someone else. This would allow the jury to find him not-guilty while still holding someone responsible. In the earlier post, I suggested that the safest option would be to find some government agency or inspector who had dropped the ball, in terms of allowing the boy to shoot the fatal weapon. People are more than happy in most circumstances to conclude that the “government” is at fault (Just look at the Tea Party success). The problems with such a strategy in this case are two-fold. First, this tragic event involved the direct participation of several identifiable individuals. In addition, the boy’s father videotaped the whole thing, adding to the intensely personal nature of the accident. The jury can actually see who was there when the bullets flew (Compare this with the case of the ceiling collapse in the Big Dig tunnel). As such, the jurors will be reluctant to assign blame to someone who wasn’t anywhere near the scene.

The second problem with such a strategy is that there is a lot of blame to go around. This poor boy shot his own head off in front of his whole family. Even if jurors were inclined to blame the state agency responsible for certifying gun shows and the person who permitted this one, they would still have plenty of anger left over for Mr. Fleury.

Given the unlikelihood of success from blaming a faceless bureaucracy for the boy’s death, Mr. Fleury’s defense team had little choice but to adopt the more dramatic – and risky – strategy of blaming the boy’s father for signing his 8-year-old son up to shoot the Uzi in the first place. The message has to be, “What kind of man gives his own little boy a submachine gun if the kid has no idea how to use it?” The entire defense strategy is that everyone at the gun show only did what Mr. Bizilj asked them to. He – the father – was in control of the situation at all times.

Fleury Defense Team reaches for the brass ring

The trial has been going on for a few days now and, unsurprisingly, Mr. Fleury’s defense attorney, Rosemary Scapicchio, has adopted precisely this strategy. She highlighted in her opening statement that every discretionary decision at the gun show regarding Christopher Bizilj was made by his father. In cross-examining prosecution witnesses, she has emphasized the normalcy of the gun show prior to Chistopher picking up the fatal gun. She is trying to emphasize that everything at the show was running smoothly until Mr. Bizilj encouraged his son to take the uzi.

This strategy is fraught with danger, however. Beyond the obvious backlash associated with “blaming the victim,” Ms. Scapicchio would be wise to worry about reactance from jurors. Reactance is an instinctual response to having one’s autonomy threatened. The jurors might not like being told whom to hold responsible.

I have worked on several cases (both criminal and civil) in which a victim’s parent, or parents, might have been considered at least partially responsible for a child’s harm. My experience with such circumstances suggests that jurors are often quite willing to blame a parent for negligently supervising a child. That said, jurors show a greater reluctance to do so when told to by one side or the other. The key is to give jurors everything they need to draw inferences implicating the parents without actually accusing them directly.

So far, Ms. Scapicchio has not been shy about blaming Mr. Bizilj directly. Perhaps this will set up a contest of sorts between Fleury and Bizilj, whereby the jury will vote not-guilty if they decide the father is more at fault. Just today, the fifteen-year-old boy who was supervising the uzi shooting booth testified that he twice asked Mr. Bizilj to consider a less powerful gun for his young son. I would only be concerned that the jurors will resent being asked to blame the father for his own son’s death. If they feel manipulated into a false choice between the defendant and the father, they might just convict out of spite against the defense team.

We’ll just have to wait and find out with everyone else.

The Hung Jury: American Exceptionalism Strikes Again

2011-01-03T11:34:00.000-05:00

Hung Juries: Judicial Flukes or Systemic Problem?

The American juridical system is one of the few in the world that allows for the possibility of a hung jury. All of the "mixed" systems of Europe and South America, wherein a group of laypersons deliberates with a small group of judges, use decision rules that preclude hung juries. A supermajority might be required for a conviction (like 8 votes out of 13), but a failure to secure that many guilty votes always results in an acquittal.

Even those countries that inherited the British Common Law system have largely moved away from voting procedures that encourage hung juries. England abandoned unanimity in 1974, allowing 10 votes out of 12 to determine a verdict. most Australian states have adopted some form of supermajority rule. Only the United States, and our neighbor to the north, Canada, insist on unanimity in jury verdicts.

As such, the hung jury is a fairly uniquely American phenomenon. Estimates of the frequency of hung juries vary quite a lot. Most scholars use an estimate of about 7% of criminal trials. The number is higher for felony trials and higher still for felony trials in ethnically diverse communities, such as New York, Chicago or Los Angeles. Recent estimates for felony trials in Los Angeles put the hung jury rate at over 20%.

An understudied phenomenon

There has not been a great deal of scholarly attention paid to the hung jury. Occasionally, some group or another will try to measure the hung jury rate in some locality or another. It is difficult to get a handle on why some juries hang and others do not because jurors are not obligated to discuss their deliberations with the public.

As followers of The Jury Box Blog know, I am extremely interested in consequences of maintaining the unanimity requirement in criminal trials in the United States. We allegedly celebrate our diversity of opinions and values and yet we insist that everyone on a jury reach the same conclusions.

As one small step in the direction of understanding the hung jury situation in the united States, I have started a new Twitter feed, called HungJuries, dedicated to exploring the frequency of American hung juries, as well as the causes and consequences of juries failing to reach unanimous consensus.

I am hoping that you will find the news articles and scholarly pieces I link to from this account of interest for your own practice. Please feel free to retweet anything you see there and tell your friends about the new HungJuries twitter feed.

Post-verdict Correction for Racial Animus in the Jury Room: Can it be done?

2010-12-16T13:19:00.001-05:00

The McCowen Case in Massachusetts

Earlier this month, the Supreme Judicial Court of Massachusetts unanimously rejected the appeal of Christopeher McCowen, who was convicted of murdering Christa Worthington on Cape Cod. The major grounds for McCowen's appeal was that jurors revealed, after the trial was over, that the deliberations had been peppered by racially insensitive remarks and hurt feelings over perceived racial animus.

While the Federal Rules of Evidence, and most state counterparts, preclude jurors testifying about their deliberations after the fact, Massachusetts has an exception carved out for alleged racial prejudice. McCowen's appeal was allowed under this exception. Ultimately, the Supreme Judicial Court found arguments that racial animus affected the final verdict unpersuasive. New Chief Justice, Roderick Ireland, wrote in his concurrence that he wished the trial judge had conducted a more thorough voir dire of the jurors before making his initial ruling.

Ireland's opinion suggests some optimism that a post-verdict investigation of jury deliberations can be a successful method of reducing the influence of racial prejudice in the criminal justice system. This view is shared by Colin Miller, a professor at The John Marshall Law School, who wrote a piece, entitled Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias for The Jury Expert, in March of this year.

I was one of the commenters on Miller's article for The Jury Expert. I am not so sanguine about the efficacy of post-verdict juror interviews, as a tool of reducing the influence of racial animus among jurors. I reproduce my response below. Comments are, of course, welcome.

The Hollow Promise of Post-Verdict Juror Testimony: Circumventing FRE 606(b) won't overcome racial prejudice

I have read with great interest Professor Miller's article, outlining an argument in favor of loosening the restriction on juror testimony to impeach criminal verdicts, where racial prejudice is alleged. I must say that I am not entirely persuaded that his approach can circumvent the logic of FRE 606(b). Of particular concern is a recognition that any effort at post-conviction relief begins a completely new phase of the judicial process, with new procedures, presumptions and burdens of proof. As such, one cannot easily analogize from forms of trial testimony to juror post-verdict testimony. That is, the jurors are most assuredly not testifying at the defendant's trial. Secondly, I seem to place a higher value on the interests being protected by 606(b) - namely the rights of jurors to deliberate free from state intervention or recrimination - than does Professor Miller.

Even were one able to loosen the bonds of 606(b), I am concerned that holding more post-verdict hearings, complete with juror testimony, wouldn't accomplish very much. This is a very blunt, unwieldy instrument for correcting the ills of racial animus. I outline below why I believe this to be so.

The 606(b) Exception Exception - The Massachusetts Rule

Reading the language of FRE 606(b) (and the state counterparts, which generally include the same language), there does not appear to be any room for impeaching a verdict based on racial animus infecting jury deliberations. Clearly, such animus falls squarely within the "mental processes" language and any jury discussion of racial issues falls under the "deliberations" prohibition.

Many impediments to impartial deliberations that would seem to be much more "extraneous" or "outside" have been interpreted to fall under the prohibitions of FRE 606(b). Verdicts have been allowed to stand despite the extreme depression, schizophrenia and mental retardation of jurors. The most famous case testing 606(b), Tanner v. U.S. (1978), involved a jury that got drunk and took cocaine together during deliberations. If cocaine and mental retardation don't qualify as "extraneous" influences, it is hard to think how racism might.

I was very surprised then to hear that a Massachusetts trial judge was conducting a hearing to investigate the verdict in the case of Christopher McCowen. McCowen, a black sanitation worker, had been convicted of murdering Christa Worthington, a white woman who lived on his route. A few days later, three jurors contacted the defense attorney to report racially charged irregularities in the deliberations.

I discovered that the Massachusetts Supreme Judicial Court has carved out a specific exception to 606(b) when racial animus is alleged. Although evidence that a juror made ethnically or racially prejudiced remarks during deliberations is not evidence of an "extraneous matter," the Supreme Judicial Court has held that a judge has authority to inquire into such matters because the existence of such remarks may deprive a defendant of the right to be tried by an impartial jury. Commonwealth v. Laguer (1991).

So, Mr. McCowen got his hearing (Commonwealth v. McCowen, Barstable Superior Ct., April 4, 2008). All the jurors were interviewed. A few racially insensitive remarks were recalled, as were several apologies. In the end, Judge Gary Nickerson was not convinced that racial animus infected the deliberations, something the defendant had the burden of proving by a preponderance of the evidence. So, even in a state with the most liberal standard available for reinvestigating a verdict due to racial prejudice, admitted instances of racially insensitive remarks were insufficient to bring the defendant relief.

So, you secured a hearing - now what?

I would strongly advise against relying too heavily on 606(b) exceptions to overcome racial bias in the jury room. There are just too many things working against you. First of all, while some states like Massachusetts have carved out "racial animus" exceptions to the prohibition against juror testimony on matters relating to deliberations, not many of those exceptions were enthusiastically embraced by the state Supreme Courts. A state's official position on this topic could change tomorrow.

Second, all the exception gets you is a hearing (provided you've got solid affidavits from some jurors). Convincing a judge that the verdict was the result of racial prejudice is going to be a bear. The main reason for this, of course, is that the very same jurors complaining about the verdict voted for the verdict themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).

Imagine that you were an African American juror, sitting on a case with racial overtones. One or two of your fellow jurors start uttering remarks that are racially insensitive, maybe even inflammatory. Will that make you more likely to vote guilty? I don't think so. So, the first question any sensible judge will have for a juror who alleges that a verdict was tainted by racial animus is, "Then, why did you vote for it?"

The most likely scenario, leading to a juror contacting a defense attorney and complaining about the racial tension in the jury room, is that the juror experiences regret about the verdict for some reason. That is, after the fact, she comes to wish that she had voted differently. Most likely, she reads about the case in the newspaper, or hears about it on television, and learns some things that did not come out at trial.

The exceptions to 606(b) are not intended, however, to circumvent the other rules of evidence. Judges know this and no good judge will allow juror regret to impeach a verdict. As the judge in the McCowen appeal wrote, "The oft-expressed second thoughts of a conscientious juror do not necessitate a new trial."

Consider the final paragraph in the opinion denying McCowen's motion for a new trial:

"One final observation is in order. For over thirty years, this author has witnessed the delivery of verdicts in serious criminal cases. Watching jurors being polled has shown in many instances, a trembling hand, a tear trickling down, or the word "Guilty" getting caught in a juror's throat. The polling of the jury in this case was extraordinary. After eight days of deliberations, not one juror trembled, or shed a tear or choked on his or her words. Unfettered unanimity was obvious from the conduct of the jurors as well as from the words they spoke as they were individually polled."

Avoiding racial prejudice in the jury room

While Professor Miller spends the bulk of his article articulating his attack on FRE 606(b), he ends with a list of sensible suggestions for minimizing the likelihood that racial animus will contaminate a jury's deliberations.

Remember that 606(b) only applies after the verdict has been rendered. If you wait until then to try to rectify problems with your jury, the horse has already left the proverbial barn. The key is to be vigilant with respect to racial issues throughout the entire trial process.

By all means, follow Professor Miller's advice with respect to jury selection, but I would pay particular attention to his admonition to request a jury instruction regarding the reporting of juror misconduct. While it might not be prudent to mention racial prejudice explicitly, it is critical that the jurors are made aware that the judge is available to help with any issues that come up during the trial and deliberations. The judge should let each juror know that she should immediately come forward if she is at all concerned that she, or any other juror, has seen, heard or done anything that she believes might not be appropriate.

With any luck, you will have a judge who can couch such an instruction in a non-threatening way. In order to avoid reactance on the part of jurors, they must perceive this admonition as a genuine offer to help them work through any issues that might emerge.

Such an instruction can be critical because the prohibition against voir dire for the jurors does not apply until after a verdict is rendered. So, if jurors come forward during any point of the trial or deliberations, a proper investigation into possible racial prejudice can be conducted.

The Dissenters Dilemma: Holdout jurors face hostility and threats

2010-12-08T14:15:00.001-05:00

One holdout's harrowing tale

JoAnn Chiakulas was a juror on the trial of former Illinois Governor Rod Blagojevich, charged with many counts of corruption, stemming, in part, from his alleged attempt to sell President Obama's former Senate seat for cash and political considerations. In the end, the jury hung with respect to 24 of 25 counts, finding him guilty only of lying to federal agents.

Despite an apparent agreement among the jurors to simply return home after the trial, eschewing interviews with the press, Ms. Chiakulas found herself "outed" as the holdout juror almost immediately. Forewarned that her house had been surrounded by press, she sought refuge at her daughters house and tried to ignore the incessant ringing of her cell phone. In an interview with Ira Glass on PRI's This American Life, she discusses at length the reasoning behind her position on Blagojevich's guilt, as well as the environment of hostility to which she was subjected by the other jurors. The interview is fascinating and well worth a listen.

Interpretation, Intensity and Isolation

According to Ms. Chiakulas, she was not the only juror to have doubts about whether the state had made its case against Blagojevich. Since no money or favors ever changed hands, all of the evidence against the Governor was circumstantial and open to interpretation. Among the open questions,

What exactly was he asking for?

Was this kind of posturing and horse-trading common among politicians?

Given how emotional and irrational the Governor seemed to be, was he just "talking trash?"

Again, according to Ms. Chiakulas, the vast majority of the jury had decided by the end of the trial that Blagojevich was guilty of pretty much everything he had been charged with, making deliberations a mere formality. In addition, the jurors discussed openly the pressure they felt from the public to punish Blagojevich for his transgressions. It was, then, through this "fait accompli" lens that most of the jurors viewed Ms. Chiakulas' reluctance to convict.

While the jurors were apparently cordial enough at the beginning, things turned sour when it became clear that Ms. Chiakulas wasn't going to "come around." Pretty soon, she felt as if she were under siege. Pleasant conversation turned to insults and accusations. Her rationality and emotional soundness were questioned, as were her motives. Some of the jurors sent a note to the judge, asking that she be removed from the jury, on the grounds that she wasn't deliberating in "good faith."

When chiding, challenging and pleading failed to change her mind, certain jurors turned to intimidation in order to change her vote. Ms. Chiakulas tells one rather haunting story of a juror who had been sitting at another part of the table for several days. Finally fed up with Ms. Chiakulas' recalcitrance, this juror moved to directly opposite her and spent hours intently glaring directly at her.

Most holdouts buckle

Regardless of whether you agree with the way in which Ms. Chiakulas interpreted the evidence in this case, you have to applaud her resolve under such withering scrutiny. She was the target of intense hostility and bullying, without any way to escape, and she stuck to her guns. Most of us would not hold up so well.

Don't flatter yourself in thinking that you would hold out under such attacks. The data say otherwise. As I reported in a Jury Box Blog posting last year, Nicole Waters and Valerie Hans, as part of the National Center for State Courts project on hung juries, 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 numbers were staggering. Clearly Ms. Chiakulas is pretty unique in refusing to cave in to majority pressure. Here is how I summarized the study's findings in that earlier post:

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.

So, when deliberations in criminal cases fail to generate unanimous consensus, the last holdout is more than five times more likely to give up and vote with the majority than to hang the jury. Given the sort of behavior Ms. Chiakulas describes, can we really be surprised by this statistic?

The Solution? Unanimity has to go.

It is important to realize that the majority jurors in the Blagojevich case weren't "wrong." Neither was Ms. Chiakulas. With so much discretion in the hands of a jury, from interpreting the credibility of witnesses, to balancing the relative importance of competing evidence, to resolving "mens rea" issues, reasonable people can -- and do -- disagree. Even when twelve disparate people do succeed in agreeing about who did what to whom when, there is always the thorny issue of "reasonable doubt", a term without a definition. Each juror is free to impose her own threshold. We know from experimental research that there is huge variation in how certain people need to be in a defendant's guilt to vote for conviction.

So, the problem is not that the jurors in the Blagojevich trial could not all agree. The problem is that the criminal justice system forces them all to vote the same way to deliver a verdict. The usual rationale for this requirement is that it instills confidence in the correctness of the verdict. But, as the Waters and Hans study clearly shows,

The "unanimity" of criminal verdicts is an illusion!

Legal scholars are trumpeting something that does not exist. Criminal verdicts are just as likely to be the result of bullying, intimidation, compromise, fear and just plain exhaustion as real unanimous consensus. In difficult cases, where reasonable people can disagree about the correct verdict, real unanimous consensus seems almost completely absent, with verdicts always dependent on some jurors voting against their true beliefs.

Here is what we do know about a system that requires a unanimous verdict.

There is a huge premium placed on jury selection, to avoid the possibility that "ouliers" will end up on the jury. This is critical because such outliers are most likely to reach different conclusions than their peers, endangering unanimous consensus. This is really the only argument propping up the morally, ethically and legally bankrupt practice of peremptory challenges.
The extensive use of peremptory challenges, along with judicial sensitivity to jurors who might be "biased," results in juries that fail miserably in any effort to reflect a fair cross-section of the community from which they are drawn. Essentially, anyone with strong views on topics relevant to the case at hand will be dismissed. This has a detrimental impact on the completeness and inclusivity of jury deliberations.
Jurors who reach conclusions that differ from the majority of other jurors come to be seen as obstructionist. Their views are resented because they interfere with the delivery of a verdict. Many jurors who find themselves in the minority choose to remain silent for fear of the reactions their opinions might engender.
Jurors in the majority are placed in the unenviable position of being asked to convert any dissenters by whatever means possible. The judiciary has declared that it does want to know how the jury verdict sausage is made. As such, juries are simply told to do whatever it takes to return a unanimous verdict. Even jurors who don't really want to resort to bullying and cajoling may feel forced to do so in order to satisfy the Court.
Lots and lots of jurors in criminal case in the United States are lying to us. When asked by a judge, "So say you all?," the foreman replies, "So say we all." And it's all a big lie that everyone knows about but no one is willing to expose. Why should we endorse a system that forces jurors to take an oath to vote sincerely and then imposes a voting requirement that begs them to violate that very oath?
England abandoned unanimity for jury trials in 1968. Did you hear about the riots? That's because there weren't any. Oregon and Louisiana have used non-unanimous verdicts in criminal cases for centuries. No riots there either. In Australia, the states that still have unanimity are under pressure from the public to move away from unanimity.

The solution is to move away from unanimity to a more reasonable voting system for criminal trials. For instance, we could require 8 guilty votes for a conviction. Absent that number, the defendant is acquitted. This would, of course, also eliminate the wasteful spending associated with retrials following hung juries. I do believe that that concern that a majority will simply vote for a conviction and refuse to listen to dissent is a real one. There are two possible solutions to this concern. First, one could impose a minimum deliberation time (which would presumably increase with the seriousness of the offense). Alternatively, one could impose a unanimity requirement for the decision to stop deliberating. So, if the jurors are not unanimous as to the correct verdict, but they are unanimous in thinking that further discussion will not be productive, they can vote to end deliberations and render a verdict.

Tragedy, Hindsight Bias and the Blame Game

2010-11-15T13:39:00.000-05:00

A Tragic Spray of Bullets
At a gun show in Westfield, Massachusetts, organized by a former police chief, Chistopher Bizilj (age 8) lost his life. Among the guns that two men brought to the show was a small Uzi submachine gun. They handed the gun to Bizilj, who started to fire the gun, lost control, and accidentally and fatally shot himself.

Now, the event organizer and two weapons providers are on trial for involuntary manslaughter in the boy's death. Originally scheduled for trial this month, the case has been continued until December.

The three defendants will certainly attempt to defend their actions as inherently safe and reasonable. Their defense will be that this was a horrible, unforeseeable accident. Such a defense might have difficulty holding sway even among a group of philosophers and legal scholars, sitting around a conference table. The odds are even longer in an emotionally charged courtroom.

No Such Thing as an Accident?
One major obstacle facing the defense is "hindsight bias," a term that I have discussed multiple times in other Jury Box posts. In short, hindsight bias refers to the tendency of people to perceive a highly unlikely, or freakish, event as having been more likely than it was, just because it happened. For instance, if someone gets struck by lightening in your home town, you might come to believe that this is a much more common occurrence than it actually is.

Hindsight Bias tends to lead jurors down a path of irrational inferences. Because people don't like the idea of life being beyond their own abilities to control it, they tend also to overestimate the likelihood that someone is actually responsible for a freakish occurrence, especially a dangerous one. The crazier and more improbable the circumstances, the more uncomfortable it makes people feel. They feel increasingly compelled to assign blame to someone. This results in a rather perverse relationship between the randomness of an event and the need of people to hold someone responsible for it. (This is actually the nexus of hindsight bias and terror management theory.)

One of the greatest fears facing any parent is the prospect of losing a child to senseless violence. A juror will internally resist seeing this event as an accident because doing so only highlights the vulnerability of their own children. While the defense might hope for some support among jurors who are gun advocates, such people are likely to try to differentiate themselves from the defendants. "Oh, a responsible gun owner would never handle a weapon that way. I always lock my guns when children are around. I'd never hand a loaded weapon to a small boy. That's just what the left-wing loonies think we do all the time."

From Blame Avoidance to Blame Shifting
In light of the issues identified above, it will be very difficult for the defendants in this case to convince a jury that the boy's death was simply the result of a tragic accident. The desire to hold someone accountable will just be too strong. The defendants would do well to try to shift the blame elsewhere. This strategy is not without risk and might engender some resentment among jurors. But it also just might work.

The major difficulty here might be finding someone else to point the finger at. One obvious possibility is the boy's parents. What were they doing taking an 8-year old to a gun show? Did his father really let him just take the gun? Had they ever taught him about gun safety? The danger of such a strategy, however, is self-evident. Because the parents have just suffered such a terrible loss, the defendants would face major resentment for "blaming the victim."

Perhaps the event organizer can point to regulations that precluded him from keeping children out of the event. Perhaps the suppliers can point to manufacturer guidelines that identify the gun as suitable for use by youngsters. The gun suppliers have already claimed that Fleury, the event organizer, incorrectly assured them that it was legal in Massachusetts for a minor to fire an Uzi. In addition, the gun club that hosted the event has already settled its criminal charges. This provides an opportunity to assign blame to a party that won't be in the courtroom to defend itself.

Over all, I believe that the defendants in this case will have a very difficult time overcoming the effects of hindsight bias. I fully expect plea deals to be struck before the jury ever gets charged.

Saving Chuck Turner from Himself: The value of witness prep focus groups

2010-11-08T10:45:00.000-05:00

Chuck Turner, a longtime Boston City Counsellor, was convicted last week of taking bribes. He was arrested after the FBI conducted a sting operation, employing one of Turner's associates as an informant. Ronald Wilburn was sent into Turner's office to ask for help obtaining a liquor license. While there, Wilburn slipped Turner $1000 in cash during a handshake, all of which was caught on FBI surveillance video.

There are a couple of noteworthy features of the trial. First, the video is very grainy. So, while it is clear that something changed hands, and that it was almost certainly money, there is no way to tell how much. Secondly, Mr. Wilburn was overtly hostile to the FBI during his testimony. While he generally corroborated the FBI's account of what went down, he greatly resented having been forced to participate in the sting operation and did not try to hide his contempt for the Feds in court.

So, after the Prosecution rested, things did not look good for Chuck Turner. There was, however, some hope that some jurors might have been upset with the way in which the FBI agents conducted themselves. While I rather doubt that any of them would have voted to acquit, I could have envisioned them settling on a verdict centered around minor charges.(Obstruction of justice).

Then Chuck Turner opened his mouth. Despite his attorney begging him not to take the stand, and one supporter literally trying to drag him back to his seat by his suit cuff, Turner insisted on testifying in his own defense. Turner took the stand and proceeded to hem and haw and fail to remember things. He denied small things that had been well-documented and claimed amnesia when convenient. In short, he came across as a smug, contemptuous liar, who believed that he could wiggle out of any situation on the strength of his own charm and guile. Needless to say, the jury didn't buy it.

Any experienced litigator has had a client who just didn't know when to keep his mouth shut. Either the person has insisted on testifying when he shouldn't have, or he insisted on giving a long, convoluted answer to a straightforward question. So, what can be done about a client who insists on talking himself into an adverse verdict?

Typically, such a client has a poor sense about how his testimony will be perceived. Either he simply does not appreciate how he comes across in public, or he fails to anticipate how poorly his style will translate into a courtroom setting. Since many such people are in positions of authority, they are not used to taking directions about message from others. So, how do you convince someone like this to do what's in his own best interest?

This is where videotaped witness preparation can really save the day. Rather than having a hypothetical discussion with your client about what to do on the stand, it is critical to submit the client to a realistic direct and cross examination. Make sure that the attorney you have recruited to act as opposing counsel is very well-versed in your case and really goes after your client. Exploit his weaknesses, trap him in contradictions and let him hang himself.

Once the session is over, review the videotape with your client. In most cases, the witness will quickly come to appreciate his deficiencies on the stand. Where the person continues to be obtuse (or insists he can fix things with a snap of his fingers), the next step is to assemble a small focus group of jury eligible people from the relevant jurisdiction. Show the practice testimony to these subjects and have a moderator lead a discussion about their reactions.

If Chuck Turner's defense team had conducted this simple exercise, I am pretty confident that his lawyers would have been able to convince him not to take the stand at his trial. While he might have still been convicted of some crime, he would not have created a permanent record of himself lying under oath in a court of law.

The lesson: Sometimes it is not enough to tell your client what to expect at trial -- You have to show him.

Smart, sullen and deadly: Jury must wrest with Asperger's in MA murder case

2010-04-28T12:56:00.001-04:00

Another Tragedy Grips a High School

John Odgren was enrolled in a class on forensic science at his high school, in one of Boston's bucolic suburbs. Always awkward with his classmates, John had started wearing a trench coat and fedora to school. Students who tried to befriend him were put off by his obsession with knives and common discussion of violence. During one class session, John outlined his plan for the perfect murder, which involved luring a trusting acquaintance to a remote location and using a knife to kill him. Classmates were freaked out by John's seemingly cold-hearted calculation and devious planning. As it turned out, they had every reason to be.

Not long afterwards, John Odgren followed a shy sophomore, new to the school, into a bathroom and stabbed him to death with a long knife he had brought to school. Odgren told investigators that he had brought the knife in for protection, convinced by the symbolism in a Stephen King novel that something horrible would happen to him that day. Another student, who just happened to be in one of the stalls, heard the victim call out, "Ow! You're hurting me! Why are you doing this?" The student emerged to find John Odgen sitting on the bathroom floor, knees pulled up to his chest, holding the bloody knife.

As horrifying as this scene is, there would seem to be little remarkable about it from a criminal justice perspective. One person committed a completely unprovoked act of violence against another. The outcome would seem to be clear.

The Psychology of Intent

There is, however, one significant wrinkle to this story. John Odgren has been diagnosed with Asperger's Syndrome, which lies along the autism scale. Asperger's sufferers are usually characterized by normal to high intelligence (Odgren allegedly has an IQ of 140), but the inability to experience the empathy necessary to form emotional bonds with others. This disability is often manifested in, among other things, the inability to recognize emotional expressions in others. That is, while you or I can distinguish a smile from a frown (and what each implies), someone with Asperger's Syndrome cannot.

In Massachusetts, the mens rea requirement for first-degree murder is "deliberate and premeditated malice." For second-degree murder, a killer must have experienced "malice aforethought."

Malice aforethought is generally defined as: "the conscious intent to cause death or great bodily harm to another person before a person commits the crime." Note that it must be a conscious intent. So, if a person forms the intent in a hallucinogenic haze, it does not suffice for malice aforethought.

John Odgren is employing an insanity defense to the murder charge, claiming that his psychological condition (He also has ADHD, a bipolar disorder and possibly OCD) precluded his ability to consciously form the necessary intent to commit murder. Massachusetts has adopted the Model Penal Code definition of "legal insanity." Under this test, "a person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

Jury must determine criminal culpability

This murder case then will boil down to a jury's collective decision about whether John Odgren did or did not appreciate the wrongfulness of his actions on the day that he stabbed that fellow student. The trial itself is now complete. The arguments followed fairly predictable lines. The DA emphasized the calculating nature of the crime and its similarities to what John Odgren seems to have been considering for weeks. The defense focused on Odgren's myriad psychological problems, constant harassment at school and increasing obsession with violent books, movies and video games. The defense presented three psychologists who testified that Odgren committed the violent act while essentially in an obsessive trance. They concluded that he was essentially shocked back to reality by observing the horrific consequences of his actions. The DA presented a rebuttal expert who, while not disputing the general diagnoses of Odgren's conditions, concluded he was nonetheless capable of discerning right from wrong.

There are actually two questions to be answered. Even if the jury determines that John Odgren understood the criminality of his actions, the jurors must wrestle with the question of whether he was psychologically capable of resisting his persistent violent urges and compulsions. The final item presented by the DA during closing arguments was an audio recording of Odgren laughing about what investigators found while searching his bedroom. This is intended to show a lack of remorse and an arrogance by Odgren about his ability to get away with the crime. Such callousness can cut both ways, however, as jurors might conclude that anyone who could react that way while in prison for murder must be out of touch with reality.

The need to make sense out of chaos

I believe that the defense strategy in this case was incomplete.

The defense team did a fairly good job of portraying Odgren as a thoroughly disturbed teenager with a history of mental problems. This is an important linchpin of the case, as it provides an opportunity for those jurors who don't want to hold him responsible to make their arguments. A "not guilty by reason of insanity" vote passes the proverbial sniff test.

Unfortunately, this only provides jurors with half of what they need to achieve emotional satisfaction from a not guilty vote. People need order in their lives. They need to be able to make sense of the world around them. They need to feel some control over their environment. Without this sense of control, life becomes unbearable. This explains, in part, people's visceral fear of the unknown. It also explains attachments to rituals, customs, religions and other systems that preserve the status quo.

The tragic death at the center of this case -- violent, senseless, seemingly random -- must seriously disturb the jurors' need for order and control. It is a parent's worst nightmare -- the loss of a child in a way that no parent can anticipate. The natural response of the jurors in this case will be to try to impose order on the situation. The idea that this was a freakish, unanticipated, random tragedy, for which no-one is really responsible, will be a completely unbearable option for the jurors. It just won't do.

So, the defense has provided the jurors with reasons not to blame John Odgren for this tragedy. What the defense has failed to do is provide them with someone else to blame. Trust me on this one: the jurors will need to blame someone. The only question is whether they will blame John Odgren or someone else.

had I been advising the defense team in this case, I would have recommended telling a somewhat different story. This is the narrative I would have crafted:

There are two victims in this crime. The dead boy and John Odgren were both failed by a system that too often shuffles emotionally ill children from program to program, treating them like human guinea pigs, testing out their most recent theories of mainstreaming or immersive learning. The so-called experts in this case didn't protect John Odgren from the bullies. They didn't protect John Odgren from the demons in his head. They didn't protect him from himself. And because of their failures, one boy is dead and another might as well be, ruined for life by a disaster that didn't have to happen. The signs were there for years. The thoughts of suicide. The absence of emotional control. The inability to feel any emotions but fear and anger and hate. The psychologists and teachers and school administrators weren't in that bathroom on that terrible, fateful day, but they might as well have been, handing John Odgren his knife.

Would this argument have worked in this case? We will never know (although I suppose we could run some focus group research in other parts of the country). What I do know is that these jurors need a way to direct their grief and their fear and their anger, someone to hold responsible. They need to be able to wrap their brains around the case and conclude that they have identified the villain. The defense had a responsibility to their client to give the jury someone else to blame.

Jurors will speculate about lots of things. Nothing precludes them from assigning blame all over the map in this case, regardless of whether the defense has pointed its finger at any particular candidates. Perhaps the jurors will find their own way to sparing John Odgren in this case. If they do -- if they find him not guilty -- I fully expect to discover that they did so by assigning blame elsewhere.

As the verdict comes in, I will be sure to report it here on my blog. I'll offer some post-trial comments and I'll keep you abreast of any juror interviews that appear in the press.

Trial Strategy can be as much about When as What

2010-03-31T11:13:00.000-04:00

Two Defendants, Two Trials

As followers of The Jury Box Blog know, I have been blogging and tweeting regularly about the trials of Michael and Carolyn Riley, who were both accused of murdering their four-year-old daughter, Rebecca, by administering to her dangerously high doses of ADHD medicine, and then refusing to seek medical attention when she fell deathly ill.

Originally, the pair was scheduled to be tried together. Shortly before jury selection was scheduled to begin, defense counsel made a motion for separate trials, on the grounds that each was likely to implicate the other in mounting a defense. The district attorney did not object and the judge granted the request, recognizing the potential conflict of interest.

The district attorney was then faced with a new set of tasks. Rather than convincing one jury that the couple acted in concert, he had to convince one jury that Carolyn was responsible and then a completely different jury that Michael was responsible.

Who should go first?

Facing the prospect of successive trials, the DA had at his disposal one strategic lever. He got to decide the order in which the defendants would be tried. Before reading further, consider what you would have done? Who goes first?

The DA decided to try Carolyn first, followed by Michael. I think this was a wise strategy (and not just because it worked). At the time, I remember thinking how shrewd this was. Here's why:

Despite best efforts to select jurors in the second trial who are not informed about what happened in the first trial, it is impossible to do so with any confidence. Therefore, the DA had to think about the consequences of the first verdict on the second trial. The first step in the process is to consider the relative culpabilities of the two defendants.

Carolyn Riley is something of an enigma. She seems emotionally detached and not especially bright. There were times during recorded interviews when she didn't seem to really understand what was going on. While Carolyn certainly was not as caring towards her children as one would have hoped, she did not seem to have the mean streak that characterized Michael's personality. In many ways, she seemed to be in fear of her husband. Michael Riley had even been forced by court order to leave their family home at a previous location.

While it might have been a long-shot, it was not out of the question for Carolyn's defense team to mount an insanity defense. Who knows whether her kids were actually mentally ill in any way, but Carolyn clearly had some serious cognitive and emotional problems. So, while Carolyn seems to have actually performed more physical acts that contributed to Rebecca's death, she cut a more sympathetic figure than did her husband, Michael.

Consequences of First Trial on Second Jury

As a result of these factors, it seemed to be a safer bet to secure a conviction against Michael than against Carolyn. With this in mind, it definitely made sense to try Carolyn first. Consider the possible outcomes of Carolyn's trial. If she had been found not-guilty, the jury in Michael's trial would have felt particularly compelled to hold someone responsible for the senseless tragedy of Rebecca's death. If Carolyn had been found guilty of some lesser offense (as she was, in the end), the jury could certainly find room to decide that Michael was even more at fault. If Carolyn had been found guilty of first-degree murder, Michael's jury might have reasoned that he was at least as responsible and that fairness required the same verdict for him. So, trying Carolyn first would not interfere with the prosecution of Michael and might even help the case.

On the other hand, trying Michael first might have posed some problems for the prosecution against Carolyn. Had Michael been found not-guilty, Carolyn's jury would have likely considered it completely unfair to convict her of something for which her abusive husband got off scot-free. This dynamic pops up a lot in criminal cases. When an accomplice turns state's evidence and gets a cushy deal, a jury is sometimes reluctant to convict the defendant of anything too serious, on the grounds that the outcomes for the two are unfairly disparate. Jurors often don't even realize that they are applying such a "relative justice" metric.

Even if Michael Riley were tried first and convicted, Carolyn's trial team would play up the degree of dominance he exerted over the family. A juror who was looking for a reason to show mercy to Carolyn could seize on Michael's conviction as justification for leniency with respect to Carolyn. Since the "real bad guy" has already been convicted and Rebecca's murder will not go unpunished, a juror would be able to more easily justify (to herself and fellow jurors) going easy on Carolyn.

Applying Lessons Learned

It is, of course, easy to look brilliant playing Monday morning quarterback. The DA did, in fact, try Carolyn first. The defense never raised the issue of Carolyn's own mental state. The Commonwealth secured a conviction on Second Degree Murder. The subsequent trial of Michael Riley was quite unremarkable, relying on similar tactics as had been used unsuccessfully in Carolyn's trial. The two main defense tactics were to contest the Coroner's conclusion that Rebecca died from the drug overdose, rather than the pneumonia from which she was suffering, and pinning as much blame as possible on the Tufts staff psychologist who had prescribed Rebecca's medicine without conducting a thorough evaluation of the child. The major flaw in this approach was its failure to address the severe neglect of Rebecca in her final hours, as she begged for help while dying in her own home. At some level, I don't think the jurors cared as much about what killed her as they did about how her parents just let her die because they couldn't be bothered to get her medical care.

The outcomes of these cases, however, were far from a certainty. The DA did a good job, including the decision to try the defendants in the strategically sensible order. There is an important lesson here. Procedural decisions can have important strategic consequences. They should not be made lightly, or based solely on convenience.

When things go wrong with a pharmaceutical, it often triggers a whole series of lawsuits. A plaintiffs' attorney might have several cases against the same company. In addition to deciding on the best venue for bringing the suits, the lawyer should also think hard about the order in which she wants to bring the cases.

There is a high-profile case developing up here in Massachusetts, involving a high school student who hung herself after prolonged bullying by classmates. Criminal charges have been filed against nine different students, some of whom are charged as adults. The DA will have an interesting dilemma with respect to the order in which to prosecute these cases. Not all of the defendants are charged with the same crimes (a couple of boys are charged with statutory rape) and they seemed to have directed varying degrees of hostility towards the victim. It will be interesting to see the order in which the DA decides to proceed.

Heat, Humidity and Trial Consulting: What Services Lawyers Use Where

2010-03-17T17:06:00.001-04:00

What we've learned so far

To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.

More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.

The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.

Who Wants What When?

I was not surprised that civil defense attorneys were the primary consumers of trial consulting services. They typically have an insurance company bankrolling litigation and are more likely to have corporate clients. So, the deep-pocket, repeat-player litigants tend to be on the defense side of the ledger.

I also expected to find that civil defense attorneys used a different mix of trial consulting services than did their plaintiff counterparts. This was not born out by the data. Consider the following graph. You can click on any graph to view it much larger.

Because civil defense attorneys make up such a large fraction of my sample, these absolute numbers are a bit deceiving. To correct for this, I converted these data into percentage of the relevant sample. The reconfigured graph is below.

Those plaintiff attorneys who reported using trial consulting services were just as likely to report running mock trials (a big ticket item) as were civil defense attorneys. One possibility is that once the stakes cross a critical threshold, a plaintiff attorney thinks just like a defense lawyer. That is, there is an "all or nothing" mentality to trial consultant usage. The other possibility is that many plaintiffs' attorneys are unaware that trial consultants provide a suite of inexpensive services, as well as conducting large pre-trial research projects. That is, a plaintiff attorney might know that she can hire a consultant to run a mock trial for $30,000, but she might not know that she can hire one to help draft voir dire questions for $1,000. This is a question for further study.

Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.

Where is all the action?

When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.

In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.

With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.

Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.

What next?

I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.

While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.

In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.

To those of you who took the time to complete the survey, "Thanks very much for your help."

-Edward

Different Strokes for Different Folks: Consultant Usage varies by specialty and experience

2010-03-10T15:47:00.001-05:00

Digging Deeper in the Data

In my last post, I reviewed some general trends in the data from my survey of trial and graphics consultant usage by trial attorneys. As I mentioned in the last post, the survey is completely confidential and only takes about 2 minutes to fill out. Several lawyers responded to my invitation and followed this link to participate in the survey. As such, the data I review today includes a few more observations. The more the merrier, so please take the survey if you have not yet done so!

In perusing the data, I noticed a few interesting trends. These relate to how long a respondent has been practicing law, what kind of cases she handles and where her office is located. I now turn to some of these trends.

Youth vs. Experience

One might expect that young lawyers would be more likely to hire trial and graphics consultants because these folks have grown up in the "high-tech" era. Everything in their lives has been accompanied by fancy graphics and animation. These young lawyers also went to law school after the adoption of the interdisciplinary approach to legal education. A lawyer under 50 years of age is more likely to have been taught by dual-degree professors and might, therefore, have a greater appreciation for the value of psychology and other social sciences in litigation.

As illustrated in the graphs below, this expectation is not born out in the data.

Trial Consultant Usage by Attorneys

More than 15 years experience Less than 15 years Experience

Graphics Consultant Usage by Attorneys

More than 15 years Experience Less than 15 years Experience

Trial lawyers with more than 15 years of experience were much more likely to report having employed a trial consultant or graphics consultant than their younger colleagues. So, what do we make of these results?

I think that there are a few factors at work here. First of all, a more experienced litigator will have handled a larger number of cases. As such, she is more likely to have come across some case along the way that seemed to require the expertise of an outside consultant, with respect to either jury or graphics issues.

Second, more experienced litigators tend to handle the higher stakes cases. This is both because litigants with a lot on the line seek out experienced litigators and because large firms assign their highest stakes cases to their most experienced lawyers. These high stakes cases are the ones for which lawyers see the most justification for incurring the expense of a trial or graphics consultant.

Exactly one respondent indicated that she uses a trial consultant in more than half of her cases. She is also the one lawyer who said she uses a graphics consultant more than half the time. This litigator has been practicing for less than five years, supporting, at least anecdotally, the "new breed of lawyer" hypothesis.

Cost Conscious Courtroom Counsellors

In the previous section, I raised for the first time the influence clients can have on their attorneys' trial strategy decisions. The survey sample is made up almost entirely of three kinds of trial lawyers, with different kinds of clients. More than half of the respondents handle predominantly civil defense cases. The remainder is roughly evenly divided between plaintiffs' attorneys and criminal defense attorneys. The differences in reported trial and graphics consultant usage among these three groups is quite remarkable.

Trial Consultant Usage by Attorneys by Primary Practice Area

Civil Defense Civil Plaintiff Criminal Defense

Civil defense attorneys are very often hired by insurance companies, who are the ultimate deep-pocket, repeat players in the judicial system. Handling thousands of trials annually, insurance company risk managers understand the value of pretrial research, witness preparation and well-designed jury selection strategy. A litigator might not be inclined to reach out to a consultant for advice, figuring that she has all the tools she needs to win a case. When an insurance company claims supervisor tells that litigator to run a focus group study, she does as she is told. From a personal perspective, I know that many civil defense attorneys call me because an insurance company has told them to "get your jury guy on the phone and set up a mock trial." Under such an arrangement, the litigator incurs none of the cost associated with hiring a consultant.

By contrast, most plaintiffs' attorneys reported having never used a trial consultant. This should not be surprising, given that their clients tend to have less money to work with. In addition, many plaintiffs, having never been involved in a trial before, have unrealistic expectations about the cost of litigation. A plaintiff attorney is under enormous pressure to keep costs down. The financial situation facing a plaintiff attorney tends to differ from that of the defense attorney on the other side of the aisle. Many plaintiffs' attorneys are solo practitioners or members of very small firms, handling mostly small cases. When a high stakes case does come along, such an attorney faces severe cash flow problems financing the litigation. While such a lawyer might very much want to hire a trial or graphics consultant, she might simply not have access to the funds to do so. I know that many of us in the trial consulting community have attempted to implement creative fee structures to make our services more available to plaintiffs' attorneys.

The graph representing trial consulting usage by criminal defense attorneys is probably quite misleading. I head the New England Team of the pro bono initiative of the American Society of Trial Consultants (ASTC). In this capacity, I have been running free clinics for criminal defense attorneys here in Massachusetts. I know that 3 of the 5 criminal defense lawyers who report having used a trial consultant are folks I have personally helped as part of this pro bono initiative. I would need a much larger, and geographically diverse, sample to know how common it is for criminal defense attorneys to use trial consultants.

By comparison, the data on graphics consultant usage should be more reliable.

Graphics Consultant Usage by Attorneys by Primary Practice Area

Civil Defense Civil Plaintiff Criminal Defense

The discrepancy between civil plaintiff and defense attorney resource usage is even more pronounced with respect to graphics consulting. A quarter of civil defense attorneys reported hiring a graphics consultant for more than 20% of their cases. By contrast, three-quarters of plaintiffs' lawyers report never having hired anyone to design or produce courtroom graphics.

The one young lawyer, who indicated that she uses trial and graphics consultants in more than half of her cases, handles both criminal and civil defense cases.

From What to Where

We have now discovered differences in consultant usage among lawyers who handle different types of cases. Civil defense lawyers make much more use of trial consultants and graphics consultants than do their less well financed colleagues. We also know that in some areas of tort law, the defense wins 90% of jury trials. It would be purely speculative to connect this success rate with use of trial and graphics consulting services, but it is suggestive enough to warrant further study.

Fortunately, with the exception of criminal defense attorneys, the lawyers who completed this survey are distributed throughout the country. This will provide me an opportunity to explore whether there are regional variations in trial and graphics consulting usage. I will have to be mindful, however, of the trends I have uncovered with respect to seniority and practice area. If the lawyers in one region seem to hire a lot of graphics consultants, I will need to make sure that it is not simply because they are all civil defense attorneys.

Finally, I wish to explore whether there are any systematic variations in the types of services for which attorneys hire consultants. Is it mostly for jury selection in one region and mock trials in another? Do certain types of attorneys hire consultants to help with witness preparation more than others? I will address these questions, along with geographic variations, in my next post.

Trial Consultant Usage All Over the Map

2010-03-08T13:59:00.000-05:00

The Survey at a Glance

Several weeks ago, I was in conversation with a colleague about the different approaches taken by various lawyers with respect to using trial consulting services. Some lawyers don't see any use for our expertise, or believe that their clients just can't afford to use us. Some lawyers employ the occasional consultant to run jury research, but really want a project manager more than an expert in jury behavior. There are many lawyers who will call in a trial consultant for the occasional case when she experiences uncertainty regarding a particular jury issue. Finally, there are a handful of lawyers who work with a trial consultant on virtually every case, finding their expertise to be well-worth the investment.

I commented, rather off-handedly, that I thought there were probably lots of regional differences. I think that differences in procedural rules (e.g. attorney conducted voir dire, ad damnum usage) and legal culture result in their being jurisdictions where litigators make great use of trial consulting services and others where attorneys rarely hire trial consultants.

I soon realized that this was a testable hypothesis. So, I went off to SurveyMonkey.com and crafted a short survey to investigate which litigators hire trial consultants (and courtroom graphics consultants) and which ones don't. I included questions about how long each respondent has been a lawyer, what kind of cases she handles, and where her office is located.

The survey is still live and I will be analyzing the data long into the future. So, if you are a trial lawyer, and you have not yet filled out the survey, please do so here. It only takes about 2 minutes and it is completely anonymous.

Spreading the Word

As many of you know, I am extremely active on LinkedIn. I posted a notice about the survey as a discussion on many of the groups to which I belong. I also tweeted an invitation to participate on several occasions. Finally, I sent out an email to everyone on my professional distribution list (formerly used for my newsletter, before it became this blog). I would conservatively estimate that at least one invitation to participate was seen by over 500 litigators.

Well, I wasn't offering to pay respondents. I wasn't raffling off an iPod or a timeshare in Maui. Lawyers are used to billing clients for every 6 minutes of their time and they are extremely sensitive to concerns about online privacy. So, the response rate was not great.

As of today, 37 people have completed the survey. Of these, 5 indicated that they were not lawyers (although a few might work for law firms in some other capacity). 28 of the respondents indicated that they heard about the survey on LinkedIn. 8 found out through email, and 1 via Twitter. Needless to say, any conclusions to be drawn from such a small sample will be speculative in nature. I do hope, however, that the results will give us something to build upon in the future.

Preliminary Results: Trial Consulting

I was careful in the survey to differentiate between "Trial Consulting" services, which deal with the social psychology of jury behavior (jury selection, witness preparation, focus group studies, etc.) and "Trial Graphics" services, which include illustrations and animations for courtroom use. Here is a graph illustrating the frequency with which survey respondents employ "Trial Consulting" services, in terms of percentage of cases.

Trial Consulting Service Usage: Full Sample

As you can see from the figure, very few attorneys indicated that they used trial consultants for more than 20% of their cases. The interesting distinction here seems to be between those litigators who sometimes use trial consultants and those that never do. For my sample, approximately 60% of respondents indicated they had ever used a trial consultant.

There are a couple of reasons to be skeptical of these numbers. First, I would expect that participating in the survey would be more interesting to those lawyers with some familiarity with trial consulting. As such, I thought that most of the respondents would be lawyers who had worked with trial consultants in the past. Second, the publication of the survey was heavily skewed towards people who know me in some capacity. Of those, I would expect that my clients would be particularly inclined to help me out by filling out the survey. (Based on zip codes and other survey responses, I am fairly sure that about a half-dozen respondents are, in fact, clients of mine.) In light of these factors, I believe that these results probably overestimate trial consultant usage in the general population.

I am located in Massachusetts and most of my clients are from New England. This is reflected in the large number of respondents from this region (9). That said, it is gratifying to see that the remainder of the respondents come from all over the United States. I will be discussing regional variations in the data in my next post.

Preliminary Results: Graphics Consulting

I am what I refer to as a "behavioral" trial consultant. While I advise clients on the kinds of exhibits they might employ at trial, and evaluate the utility of the graphs and illustrations they already have, I do not provide trial graphics services. As such, the responses with respect to graphics consulting are probably less skewed by the participation of my own clients. The graph below shows graphics consulting usage for the complete sample.

Graphics Consulting Service Usage: Full Sample

About half of the survey's respondents have used a graphics consultant for at least one case. I think that most of us would expect trial graphics to be used more frequently than trial consulting. The discrepancy between this expectation and my data undoubtedly arises from the participation of many of my clients. Several of these attorneys, especially those doing criminal defense work, have benefitted from my active pro bono practice. They have not had similar access to affordable trial graphics assistance.

Do the Same Lawyers use Both Services?

As I mention above, there is reason to believe that at least a handful of attorneys would make use of trial consulting services, but not graphics consulting ones. Is this a common occurrence? The graph below answers this question.

Joint Usage of Trial and Graphics Consulting Services

As a general rule, lawyers either use litigation consulting services of both types, or they don't use either. Only a few litigators reported using graphics consultants but not trial consultants. I find this result a bit surprising. While I did not ask respondents about the size of their firms, I would expect that this sample is heavily weighted towards small and mid-sized firms, whose attorneys tend to be heavier users of LinkedIn. Lawyers from large firms (many hundreds of lawyers) are unlikely to have found their way to my survey. Such firms handle huge IP and business litigation cases, in which courtroom exhibits are sophisticated and plentiful. The underrepresentation of such litigators from my sample have certainly affected the nature of my results.

Questions to be Explored

These preliminary results are certainly interesting. We have responses from many attorneys who have used a trial or graphics consultant to help with jury trials. Who are they? What kind of work do they do? Where do they practice? These are the more nuanced questions that I will be addressing in my next two posts.

In addition to surveying experience with consultants, I asked respondents about which kinds of services they had hired consultants to perform. I provided an extensive list, including jury selection, witness preparation, illustrations, animations and more. I will explore in a future post trends in the data, with respect to which trial lawyers made use of which services.

So, stay tuned! Same Bat-time, same Bat-channel.

And remember, it's not too late to contribute your own experience to the data. Take the survey here.

Plethora of reasons for defense counsel to argue damages at trial

2010-02-04T10:57:00.002-05:00

Hey you! Pay attention!

In the latest issue of The Jury Expert, Jeri Kagel has contributed a very thoughtful article, entitled "Damages: The Defense Attorney's Dilemma." In her article, Jeri presents in stark terms the ambivalence that most civil defense attorneys experience regarding discussing damages before a jury. All of us in the trial consulting profession encounter clients who are stubborn about certain things.

"I never make opening statements."

"I don't depose opposing experts because I don't want 'em to know what's coming."

"I don't like my expert to use visual aids because it distracts the jury from what he's saying."

By a large margin, the most common immovable object is, "I don't argue damages at trial."
We trial consultants have read the experimental research on the topic. We have run our own studies. We know that arguing damages at trial is a winning strategy for defense attorneys. It generally has a negligible impact on the liability decision and can have a profound impact on the damage award.

Don't live in fear! Come into the light!

In fact, our frustration with our clients on this point has led many of us to write newsletter articles, editorials and/or blog posts about this very topic.

From myself, "Getting Defense Counsel to talk about damages is like conducting an intervention."

From Aaron Abbott, "New Research on Damage Awards: Do jurors split the difference?"

From Sarah Murray, "Strategies for minimizing damages in high damages cases."

From Jeffrey Frederick, "Searching for rocks in the Channel: Pretesting your case before trial."

I actually managed to convince a client to run a mock trial experiment on the question of arguing damages at trial. We had two panels who all watched the same mock trial for a day-and-a-half. We then separated them for closing arguments. To one group, defense counsel said nothing about damages. To the other, defense counsel added one paragraph, discussing the unreasonableness of plaintiff's award request, and suggesting a more appropriate figure.

Much to my client's surprise, the panel that had heard defense arguments about damages did not once discuss this fact with respect to the liability question. That is, when deciding whether the defendant was liable, not once did anyone point out that defense counsel had raised the damages issue in his closing.

The differences did emerge when we asked the two panels to calculate a damage award for the plaintiff. The panel that had heard a counter-argument on damages from defense counsel chose an award half the size arrived at by the panel that only heard plaintiff's arguments about damages. The provision of a "counter-anchor" for damage award calculations can substantially reduce the size of such an award.

Don't put off until tomorrow what you can argue today.

A significant contribution of Jeri's article in The Jury Expert is a cataloging of opportunities for defense counsel to introduce arguments about damages throughout the trial. The typical question a defense attorney confronts is, "Should I mention damages in my closing argument?" Jeri points out that this dilemma should not be so narrowly defined. Defense counsel should include questions during voir dire about how prospective jurors are likely to think about calculating damage awards. She advocates including arguments in opening statements that help "teach" jurors how to evaluate critically testimony about damages.

A more comprehensive strategy for dealing with the damages issue allows defense counsel to influence juror decisions about damages without having to resort to the "arguing in the alternative" tactic. (My client didn't do anything wrong, but if you decide he did, it wasn't really that bad.) In addition, in jurisdictions that do not permit an ad damnum (specific monetary request from the plaintiff), defense counsel can implement those strategies most appropriate to the local rules.

There is one big lesson one should glean from the experimental literature and the musings of trial consultants. Don't punt on damages. Ceding to the plaintiff total control over the way in which the jury discusses damages is a recipe for disaster.

Defense must play blame game in Rebecca Riley murder trial

2010-01-28T15:49:00.001-05:00

The tragedy

Rebecca Riley, age 4, died in the throes of pneumonia, while very heavily medicated on Depakote and Clonidine, intended to treat ADHD and bipolar disorder. Her parents, Carolyn and Michael, are on trial for Rebecca's murder (Read about the trial here). According to prosecutors, Carolyn and Michael routinely lied to doctors in an effort to get all their children prescribed strong drugs, eventually finding a Boston psychiatrist willing to believe them and hand out ever-stronger doses. Prosecutors claim that the Rileys cared only about making their children easy to manage, regardless of any adverse health consequences, and collecting federal disability benefits. Eventually, after being given extremely high dosages of these powerful drugs, even by adult patient standards, Rebecca died in her parents' home.

When a tragedy like this strikes, it is quite natural for ordinary people to want to assign blame. Someone must have been responsible and that person should be held accountable. Why is there such a palpable need to assign blame? It stems from several reinforcing psychological phenomena.

The human need for answers and accountability

The first is a natural aversion to reminders of one's own mortality. We don't like to feel vulnerable. Therefore, when bad things -- deadly things -- happen to others, our brains automatically generate reasons why such threats aren't dangerous to us. A standard response is to generate distinctions between the victim's circumstances and our own. Some distinctions are circumstantial, while others are directed at choices made by the victim or some other responsible party.

A second psychological response to such a tragedy is to shrink back from the randomness of a bad event. We don't like to think that we are not in control of our own lives. We like to think that our own actions and choices will insure our own well-being. Therefore, people tend to overestimate the control that someone else could have exercised over a difficult situation. This is because any bystander would like to believe that, had she been in the same situation, she would have been able to stop the tragedy from occurring.

Finally, as I have written about on a number of occasions, hindsight bias is always at play when rare events take place. Ordinary people have a great deal of trouble processing the true chance of very unlikely events. The numbers just get too small for the brain to easily process. (What does a 1-in-500,000 chance really look like?). Also, the cognitive availability of an event (after all, the event is the focus of the trial) makes it seem more likely to have occurred. This tendency to overestimate the likelihood of an event also results in people overestimating the events predictability and preventability. An odd second-order effect is that the more peculiar the circumstances, the more likely people are to assume that a tragedy could have been averted.

Jurors are not experts in risk assessment. They typically don't have degrees in statistics or bioinformatics. They are ordinary folks, tasked with processing some very foreign circumstances. As such, they will be subject to the kinds of cognitive tendencies outlined above. The Rebecca Riley death is a very strange story. The loss of a young child is every parent's worst nightmare. The world of pediatric psychiatry seems very alien to all of the jurors. All of these factors will combine to make the jurors very eager to find someone to blame for this horrible tragedy. Once they assign blame, they can go back to believing that such a thing could never happen to them.

What should the defense team do?

This is the environment in which Carolyn and Michael Riley are being tried. One defense strategy might be to portray this death to the jury as an unfortunate accident. For the reasons I outline above, I think this will be an extremely tough sell. A better strategy would be to try to deflect blame onto others. Let the jurors have their culprit, but try to convince at least some of them that the culprit is someone other than the defendant.

The defense team took a sensible first step in this direction by requesting separate trials for the two parents. This allows each to deflect responsibility to the other. The key for Carolyn's legal team is to get at least some on the jury to assign more responsibility to her husband than to her. Frankly, based on what we have heard so far, such a tactic would seem more promising for Michael's defense than for Carolyn's.

The second likely candidate for deflected blame is the psychiatrist who prescribed the medication. Dr. Kayoko Kufuji has now testified in Carolyn's trial. While she came across as detached and somewhat clueless, which points to her own negligence, the prosecution did a very good job of showing how Dr. Kufuji relied very heavily on Carolyn Riley's own characterizations of her children, when making her diagnoses. As such, Kufuji's failures seem largely the result of Carolyn Riley's dishonesty and manipulation.

The third candidate for deflected blame, and the one I think is most likely to garner some sympathy with jurors, is Carolyn Riley's own mental state. The prosecutor is trying to paint a picture of a calculating, manipulative mother who happily endangered her children to keep them docile and to collect federal disability checks. The defense might just gain some traction by telling the jury that she was mentally unbalanced. There are official conditions, like Munchausen-by-proxy, where parents imagine or invent illnesses in their children to fulfill a pathological need for attention. Alternatively, the defense could attribute her extreme behavior to the abusive treatment by her husband. Michael Riley has been banned from a prior residence due to violent behavior and Carolyn Riley once took out a restraining order against her husband, ostensibly to protect her children. Under such a scenario, the defense can contend that the system let Carolyn down, enabling behavior that was not only self-destructive, but also endangered the Riley children.

Will it work?

Jurors are generally skeptical of victimization arguments like the one I outline above, but it seems the best strategy in a case like this. There is a documented history of spousal abuse. Many authority figures who interacted with Carolyn and her children failed to take official action. Remember that only one juror needs to be convinced that Carolyn Riley wasn't completely responsible for her own actions to avoid a murder conviction.

The defense strategy needs to be focused on getting Carolyn's sanity into the discussion in the jury room. They need to open the door for those who might be inclined to take pity on her. I rather doubt that the jury will initially be unanimous in its evaluation of her culpability. Arguments will be heated. Tears will be shed. Playing up the defendant's mental instability might not keep her out of jail, but I could see a conviction on a lesser included offense, such as involuntary manslaughter. Given what has transpired in court so far, that would probably be considered a victory for the defense.

Supreme Court absolutely unclear on Constitutionality of absolute disparity test

2010-01-26T16:06:00.001-05:00

Another Black man convicted by an all-white jury

Last week, the US Supreme Court heard oral arguments in the case of Berghuis v. Smith. Smith, who had been convicted in Kent County, Michigan of second-degree murder, objected to the pool from which his jury had been chosen. Of the 60 to 100 potential jurors, at most 3 were African American, despite the relevant county having 8% African American population. Smith objected to a local practice of assigning prospective jurors to courthouses near their homes, rather than randomly assigning them within the county. He argued that a trial in a rural courthouse would almost certainly result in a jury pool lacking an appropriate proportion of African Americans, since most of them lived in or near Grand Rapids. Smith also objected to the court's liberal dismissal of jurors for childcare or transportation hardship reasons, which, he argued, disproportionately applied to African American jurors.

The specific practices identified by Smith are important for the Court's evaluation of "systematic exclusion" of minority jurors. These practices, however, are not the focus of this entry. Rather, I am more interested in the Court's revisiting of an old, established and logically bankrupt standard for measuring the representativeness of a jury pool: the absolute disparity test.

The Twisted Logic of the Absolute Disparity Test

Since Swain v. Alabama, the Supreme Court has endorsed a particular formula for determining whether a jury pool is sufficiently representative. Calculate the baseline percentage of a minority group in the county's population. Subtract from this the percentage of minority representatives in jury pools (averaged over some period of time). This is the measure of "absolute disparity." Typically, if this absolute disparity is less than 10%, the jury selection scheme, on its face, does not violate the 6th Amendment's "fair cross-section" requirement.

Smith points out in his brief that it is not possible for a jury selection system to violate the provision unless the minority population of the county is at least 10%. Los Angeles County, for instance, only has a 9.45% black population. As such, under the absolute disparity test, the complete absence of any African Americans on any of LA's jury panels would still be Constitutionally acceptable.

Consider the following county level map of the United States, color-coded for African American population:

Only the counties that are orange or red could ever run afoul of the 6th Amendment cross-section requirement, regardless of their treatment of potential African American jurors. (Of course, any jurisdiction caught with a smoking gun policy of discriminating against minorities in jury selection would still run into 14th Amendment difficulties.) The rest of the country would seem to be free to completely ignore whether minorities ever get called for jury duty.

A True Measure of Representativeness

The alternative to the absolute disparity test is, unsurprisingly, the comparative disparity test. As with the absolute test, the first step is to calculate the percentage of the county that is African American. The next step, however, is to calculate the percentage of African Americans on jury panels as a proportion of the percentage in the general population. For instance, if a county is 8% black and only 3% of people on jury panels are black, the comparative disparity measure is 5/8 or 62.5%. The comparative disparity test is capable of calculating equivalently underrepresentation in both heavily minority counties and those with relatively few minorities.

Any statistician will tell you that a 5% variation in black representation might be caused by any sort of sampling error in a population that is 60% black, but such an absolute variation in a population that is only 10% black is almost certainly the result of systematic forces. The absolute disparity metric can mask what is really going on while the comparative one is more likely to alert interested parties when systemic underrepresentation is taking place.

Justice Scalia is flummoxed by the binomial distribution

After the case went back and forth in the Michigan state courts, Smith brought his case to Federal court. The Sixth Circuit Court of Appeals reasoned that the comparative disparity measure was more appropriately applied in cases like this one, where minority representation in the general population is relatively low.

In oral arguments at the Supreme Court, Justice Breyer seemed to understand the fundamental flaw in the previously controlling formula. He tried to enlighten his brethren by citing an example of an urn with two different colored balls in it. If there were 8% red balls, what are the chances that one would randomly only choose 3 red balls out of 100? This use of the binomial theorem seemed to annoy Scalia, who was unable (or unwilling) to conceive of the problem on this abstract level. He quipped, "But we don't have an urn, do we?"

With logic firmly shoved onto the back burner, most of the other justices seemed content to grill the litigants about the particular procedures (assignment to local courthouses and liberal hardship excuses) highlighted in respondent's brief. Justices Kennedy and Stevens did press Eric Restuccia, the Michigan Solicitor General, to explain when one formula should be used over another. He declined on the grounds that the only question before the court was whether the trial court's interpretation was inherently unreasonable.

Will common sense prevail?

It so rarely does. In this case, however, I don't think that supporters of the comparative disparity test need despair. I expect that the Court will find some way to decide this case on narrow, procedural grounds, upholding the general deference principal articulated in the AEDPA. This does not preclude, however, the justices from speaking to the issue of the correct test in dicta. If enough of the court's members come to appreciate the perverse results that emanate from application of the absolute disparity metric, we might just see a sea change in representativeness analysis for future cases.

Murder Trial to test public attitudes towards mental illness

2010-01-07T14:50:00.001-05:00

Preschooler diagnosed with ADHD dies from overmedication: Parents on Trial for Murder

Rebecca Riley was diagnosed with ADHD and a bi-polar disorder before her third birthday. Her treatment was supervised by a respected pediatric psychologist, who prescribed two powerful medications, normally reserved for adults. While not approved for such use by the FDA, such "off label" uses are at the professional discretion of the treating physician, and are not uncommon.

Just over a year later, Rebecca Riley died.

The Massachusetts Medical Examiner concluded that her death was caused by an overdose of her medicine. Her parents, Michael and Carolyn Riley, on trial for her murder, claim that she died from pneumonia contracted shortly before her death. A grand jury refused to indict the girl's physician, concluding that the prescribed dosage was not to blame. Rather, the grand jury indicted the parents for murder on the theory that they intentionally overmedicated their daughter to make her easier to manage.

Read about the trial here.

There is some incriminating evidence that the Rileys will have to counter during their trial. School officials, including the school nurse, reported that the girl was often listless and non-responsive in school, sometimes requiring assistance just to get on or off the school bus. In addition, according to the girl's doctor, Mrs. Riley often requested additional refills of her daughter's medicine, claiming that she had lost or damaged bottles of pills. Finally, the Rileys' other two children have also been diagnosed with similar conditions and are being treated in a similarly aggressive way.

Are all these children really mentally ill?

Without a "smoking gun," per se, the outcome of this case will depend, to a great deal, on public perceptions of pediatric mental illness in the modern era. There are clearly countervailing trends and it remains to be seen how they will balance out.

On the one hand, psychiatry (with a big assist from neuroscience) has come a long way in identifying the physiological and neurological causes (or at least traces) of many previously undiagnosed (or misdiagnosed) conditions. We no longer throw women into insane asylums for "bad humors" or "hysteria." Most members of the public believe that depression actually exists and has a neurological foundation. People now appreciate the hereditary influences on alcoholism and other forms of "abhorrent" behavior. Americans generally recognize that soldiers and witnesses to war really do express post traumatic stress disorders. Mental illness is no longer a taboo subject the way it was even 50 years ago.

On the other hand, the public is clearly skeptical of the increasing propensity of mental health professionals to assign a syndrome name to virtually every form of unusual or undesirable behavior. Most current adults were raised during a time when behavioral problems among students were handled behaviorally, rather than psychologically. Children were expected -- required -- to behave themselves in school and at home. There were certainly allowances made for kids who were fidgety or had difficulty paying attention, but children were generally held accountable for their own actions. The primary objection to the current climate of diagnosing every other kid with some kind of disorder or syndrome is that we are raising a generation of people who won't know how to be responsible for their own decisions and actions. By making excuses for our kids, we are raising a nation of excuse-makers.

Modern pediatric psychiatry and parenting on trial

With these countervailing trends in play, how will jurors in this case perceive of the actions of Rebecca Riley's parents? Some may be inclined to defer to the girl's psychiatrist, excusing the parents for doing the same. They gave her these drugs because their doctor said it was OK. The doctor must have seen Rebecca on a regular basis. If she didn't seem concerned, then the parents had no way of knowing that Rebecca was in any kind of danger.

Other jurors will be skeptical of the parents' motives. A parent can get some doctor to diagnose a kid with some kind of disorder if they push hard enough. These folks obviously wanted to medicate their daughter to make their own lives easier. Why didn't they focus on trying to be better parents?

The wild card in this debate might just be the Rileys' handling of their other children. Jurors are notoriously bad at understanding and processing arguments based on probabilities. Unfortunately for the lawyers in this case, conveying the implications of the diagnoses of Rebecca's siblings requires the jurors to wrestle with such issues.

Consider the numbers: It is estimated that roughly 1 out of every 9 American children has some level of diagnosable ADHD. That is about 11%. One might then conclude that the chance of all three Riley children having ADHD is 0.11 cubed, or 0.0013 -- roughly one in a thousand. (Apparently only about 1/3 of children with ADHD receives the treatment she requires. As such, public perception would be that only about 4% of children have ADHD.) By such logic, it is extremely unlikely that the Riley kids got similarly diagnosed purely by chance. With such astronomical odds against it, the parents must really have been pushing doctors to diagnose ADHD.

Such logic is spurious, however, because it assumes that the incidence of ADHD among siblings are independent events. In truth, due to the shared genetics and physiology of siblings, having a brother or sister with ADHD substantially increases the chance of a child having the disorder.

When one child in a family has ADHD, a sibling will also have the disorder 20% to 25% of the time, says geneticist Susan Smalley, PhD, co-director of the Center for Neurobehavioral Genetics at the David Geffen School of Medicine at UCLA (www.adhd.ucla.edu). About 15% to 40% of children with ADHD will have at least one parent with the same condition.

By this logic, the fact that both of Rebecca's siblings have been diagnosed with ADHD makes it substantially more likely that Rebecca was correctly diagnosed with ADHD. If having one sibling with ADHD would increase the likelihood of Rebecca having it by almost three times, having two afflicted siblings would likely increase the chances five-fold.

This leaves the jurors in a tricky bind. Everything turns on the reliability of the doctor's diagnostic techniques. If her diagnoses of Rebecca's siblings were correct, her diagnosis of Rebecca almost certainly was, too. On the other hand, if her methods were suspect, the likelihood that she properly diagnosed Rebecca's condition, in particular, drops dramatically.

How to explain this to jurors

I have written in other blog entries about the "perils of probability." I also regularly discuss this issue with attorneys to whom I give presentations. It is very difficult to teach enough probability theory to jurors that they actually "get it." Don't expect them to be able to replicate the math. On the other hand, it is possible to provide them with enough insight to appreciate the nature of the results. My advice: Use visual aids to convey comparisons between probabilities. Analogize to decisions-under-risk with which jurors might be familiar. Make sure that your expert witnesses are excellent teachers. Jurors perceive as more reliable those witnesses who are seen as "helpful."

Regardless of the exact presentation strategies a litigator employs, she would always be wise to test its efficacy in advance. You might think your expert's explanation is crystal clear, but you can't be sure until you present it to a group of ordinary people and find out what they think. If your case turns on the "perils of probability," as the Riley case seems to, some sort of pretrial jury study (focus group research) is absolutely essential.

Jury Nullification Requires an Open Door Policy

2009-11-23T10:12:00.006-05:00

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

2009-11-18T10:26:00.002-05:00

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

2009-11-03T11:04:00.002-05:00

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

2009-10-09T09:43:00.008-04:00

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

2009-10-05T09:54:00.005-04:00

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

2009-10-02T13:11:00.003-04:00

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

2009-09-29T16:43:00.002-04:00

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

2009-09-24T11:05:00.003-04:00

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

2009-09-23T10:22:00.005-04:00

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

2009-09-19T10:28:00.001-04:00

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

2009-09-18T11:11:00.004-04:00

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

2009-08-05T12:15:00.003-04:00

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

2009-08-03T10:16:00.003-04:00

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.

Dynamite Charge might Blow Up in Judge's Face

2009-06-15T10:15:00.003-04:00

A Tennessee jury was having trouble reaching a verdict in a major medical malpractice case. The doctor, Michael Goodman, was being sued for $12 million. His patient, Kristen Freeman, went into cardiac arrest, following a colonoscopy performed by Dr. Goodman, and suffered permanent, debilitating brain damage.

After two days of deliberations, the jury informed Judge Jacqueline Bolton that they were deadlocked and could not reach a unanimous verdict. After reminding the jurors of the time, expense and emotional energy that had been invested in the case, Judge Bolton proceeded to give the jury a very strong version of an Allen, or dynamite charge:

If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

According to affidavits from four jurors, this instruction caused them to rethink whether each juror was responsible for evaluating for herself which verdict would be correct. Rather, they felt as if the judge had suggested that they acquiesce to the majority position if that position had been resistant to arguments from the jurors in the minority.

One juror stated

When I heard the additional instruction again, I felt the court was instructing me to abandon my opinions and agree with the majority so that the case could be resolved by this jury and not have to be retried.

The jury ultimately found Dr. Goodman 51% responsible, which generated a damage award in excess of $6 million.

In light of the Allen charge and the subsequent affidavits, the defense is filing an appeal, alleging, among other things, judicial misconduct.

The unanimity rule employed by Tennessee is a major culprit in this drama. We know that at least two-thirds of the jury was genuinely in favor of finding for the plaintiff in this case. Would it have been more "just" to have found for the defense? That would implement tyranny of the minority. Would a hung jury have been a superior result? Well, if the entire matter has to be retried, the ultimate result would be that one side or the other would prevail. Why not let the first jury take care of that? This jury seemed pretty conscientious. Do we have any faith that the next one would be "superior" in any way?

Ultimately, several jurors in this case voted "insincerely." Four of them voted to hold the defendant liable despite the fact that they didn't really believe it. The 51% responsibility assigned to Dr. Goodman suggests a compromise: the members of the majority coalition agreed to reduce the doctor's responsibility level as low as possible, while still permitting the plaintiff to collect. It seems as if the jurors who wanted to find for the plaintiff didn't vote their true position either.

The courts have long turned a blind eye -- or a knowing wink -- to this kind of behavior by jurors. Judges know that holdouts are coerced into going along with the majority. They know that jurors cut deals to find a compromise they can all live with. The Allen charge is a not-very-subtle endorsement of this kind of "creative" verdict crafting. Most verdicts reflect only one kind of true unanimity: a unanimous willingness to suspend the rules in order to generate a verdict.

So, the legal fiction that is unanimity soldiers on. Meanwhile, the courts choose to ignore the implications for the legitimacy of our civil jury system (I have written extensively about the problems with unanimity in the criminal context elsewhere). Jurors are jaded about the fairness and transparency of our court system. Such an attitude can only be reenforced when the jurors themselves are forced to cut back-room deals to resolve cases. The slavish commitment to unanimity also leaves a trail of anguished jurors who have been forced to check their principles at the door in order to churn out a verdict. Regret of the sort experienced by the jurors in this Tennessee case is not uncommon. I have to think that they would have slept better at night had they been permitted to vote their consciences, even having been out-voted in the end. People don't mind losing, so long as they feel that they have had a chance to speak their piece and that the rules of the game were fair.

As for this particular appeal, I think that the defense has an uphill battle. One obstacle is the prohibition against jurors serving as witnesses with respect to their deliberations. Federal Rule of Evidence 606(b) (and its state counterparts) forbids jurors from testifying about their deliberations, or mental processes associated therewith, after a verdict has been handed down. There is an exception carved into the rule for "extrinsic influences" on the deliberations. This category typically includes unauthorized research by jurors, juror tampering and exposure to publicity about the case. I believe that the jurors can only testify about the effects of the judge's instructions if there is a "substantial risk of a miscarriage of justice" associated with the judge's alleged error.

I do not believe that an appellate judge is likely to be sympathetic to the defense claims here. After all, this kind of jury behavior happens all the time. The only difference here is that the judge chose to articulate what usually remains unsaid.

Community Attitude Surveys: Cheap, informative, effective

2009-06-12T09:57:00.003-04:00

It was reported yesterday in the Modesto Bee that two-thirds of those surveyed already believed that Columbus Allen Jr. is guilty of killing California Highway Patrol Officer Earl Scott. Allen's defense team is attempting to use the survey in support of a change of venue motion, but the judge seems unlikely to grant the request. It is instructive to read the stream of vitriol posted by readers commenting on the article.

My god, they should of tried him the moment they arrested him... OFF TO THE GALLOWS BOY!

The evidence is clear. He killed Earl Scott. He is guilty, nothing else left to discuss, time for him to suffer and die a slow slow death.

This poor excuse for a life form was stupid enough to show up later with gunshot residue on his hands and arms. i am willing to bet he wasn't at the gun range practicing. guilty. fry him. this society is already paying for enough criminals and cannot afford them.

Of course everybody knows he's F*%&ing guilty! He murdered a CHP officer on 99 when everyone was commuting. I still remember that morning driving past that grim scene.
Why has this trial been put-off for so long? Get it the hell over with and sentence him!

Of course, this is a murder case, with lots of pretrial publicity. We should not be surprised to see strong public attitudes. In addition, the defense team has conducted the survey to achieve a very specific purpose: get the trial out of Stanislaus County. That said, a community attitude survey can be extremely helpful for civil litigation, as well.

Imagine you are defending a hospital in a medical malpractice case. Wouldn't it be useful to know whether the hospital is held in high esteem, as compared to others in the community? Are the people in this jurisdiction particularly dissatisfied with the quality of healthcare they receive? Is there an ongoing shortage of primary care physicians, causing patients to wait for appointments? Has the "torts crisis" argument taken hold in this community? These are all questions that can be answered with a community attitude survey. A survey of hundreds or thousands of people can be conducted for less money than a one-day focus group study with only a handful of subjects.

The judge in your case has authorized the use of a supplemental juror questionnaire, but she has made it clear that it is NOT going to be 75 pages long. She orders you to get your act together and submit no more than a dozen case-specific questions. How do you decide which questions to use? (After all, your trial consultant has written more than 30 truly outstanding questions for you) Commission a survey with your top candidate questions. This provides you an opportunity to analyze the responses of jury-eligible members of the community. You will undoubtedly discover that some questions just don't generate any useful range of answers. Others produce responses that don't seem to correlate with attitudes related to the case. The key is to find those questions that effectively distinguish between people who seem generally sympathetic to your case and those who do not. Now you can submit your short list of questions to the judge with confidence that they will produce results in jury selection.

Surveys have several advantages over other methods of pretrial research.

First, a survey typically involves many more subjects. This means more data and more confidence in the results.

Second, a survey can be conducted in the background while the trial team is busy taking care of other matters. There is no need to find a date on which the entire trial team, witnesses, parties and trial consultants can all be in the same place at the same time.

Third, since a survey is conducted without direct involvement of the trial team, subjects can be recruited for subsequent interviews or focus group study without the "contamination of advocacy." So, a survey can be a preliminary research step. leading to more targeted efforts.

Fourth, a survey can be tweaked as it is being conducted. Obviously, the analysis of any particular set of responses is limited by the number of subjects who were asked the same question. There is not harm, however, in figuring out halfway through that you really should have included a question about home foreclosures. The survey research company can include it for all subjects from that point forward. It is much harder to tweak a focus group or mock jury study in the middle.

While it is unlikely that an entire community will have decided on a verdict for your case in advance (although it could happen), a survey can help you identify pervasive attitudes among the people who will be comprising your jury. These attitudes will shape the lens through which jurors will be viewing your case. To stretch the metaphor a bit, you can't grind the right set of corrective lenses (your case presentation) until you know what prescription is needed.

From the ASTC Conference: Effects of the Economy on Jury Trials

2009-06-09T11:58:00.004-04:00

I recently returned from Atlanta, where I was attending the annual conference of the American Society of Trial Consultants.

A lot of informal discussion, at the breaks, in the halls and at the bar, centered around the effects of the economic downturn on juries. What were they doing differently now?

Beth Foley chaired a session on the effect of the economy on damage awards, but the discussion freely flowed into behavioral areas other than damages. No-one really had any data, per se, unless you think of data simply as the plural of "anecdote." That said, there were some interesting conjectures offered, some of them supported by personal experiences with trial juries or mock jurors.

Welcome to jury duty, Mr. Executive Vice President for South Asian markets.
Several attorneys and consultants noted that massive layoffs of white-collar workers has resulted in executives being available for both pretrial research and actual jury duty. This is generally seen as beneficial for corporate defendants because these professionals will understand the decision-making structure of business better than typical jurors. They won't be so quick to adopt the "zero-risk fallacy" or assume that all corporate mistakes are the result of negligent conduct.

Let's not break the bank here!
Tara Trask commented that she had seen a definite upswing in arguments by research subjects pertaining to driving companies out of business. People have watched seemingly indestructible multinational conglomerates go under in the past year. This has increased sensitivity to the vulnerability of all companies. Jurors may think twice about an award large enough to bankrupt a company that provides jobs in their own community. Certainly, such arguments can no longer be dismissed out-of-hand.

I'm so mad, I could just spit!
There continues to be a lot of pent-up hostility towards big companies and firms in the financial sector. We know that jurors give vent to their desire to punish corporate defendants when calculating compensatory damages, despite instructions to only consider such factors if punitive damages are warranted. In the present environment, I would expect the desire to punish to infiltrate these values even more.

Where's the check with my name on it?
There has been a lot of discussion lately about the value of identifying jurors with a "just world" attitude towards the world. There are several versions of this perspective. The more people who feel themselves to have been "mistreated" by the world, perhaps because they have been laid off or have lost a house of foreclosure, the more potential jurors there are who will be reluctant to give a "hand-out" to someone else. The thinking is along the lines of, "Hey, times are tough. We've all suffered. You don't see anyone giving me free money, do you? Why should I bail out this guy?" I would think that any plaintiffs attorney would do well to probe for such attitudes during voir dire.

I wish I could tell you, kind readers, that we have reams of definitive data, pinpointing exactly how the current economic climate is affecting verdicts and damage awards. Alas, all we really have are some basic trends, a few anecdotes and thoughtful speculation from some pretty intelligent and experienced jury experts. I am afraid it will have to do for now.

For those of you who might be new to The Jury Box Blog, you can read a couple of pieces I have previously published on my own perspective on the connections between economic climate and damage awards here and here.

The Connection between Emotional Hotspots and Lying

2009-06-06T16:33:00.005-04:00

As promised, I write today about the second workshop conducted by David Matsumoto at the American Society of Trial Consulting Conference. While the Thursday afternoon session on reading facial expressions (and "microexpressions") lasted three hours (please see previous post), the session on lie detection was only one hour long. So, he had a lot to cover in a short span of time. To his credit, David is an excellent public speaker. He's funny, articulate, clear and responsive to questions.

Most of the session was devoted to understanding, identifying and recognizing emotional "hotspots." A hotspot occurs when subconscious, emotional cognition runs contrary to conscious, logical cognition. Such occurrences put a lot of pressure on one's brain, making it difficult to focus and control. Imperfect control results in emotional "leakage." A person who is trained to detect microexpressions can catch such leakage as it happens.

For example, a candidate can say something nice about his opponent, but he crinkles his nose for just a split second. The expression of disgust has leaked out. The beauty pageant runner-up allows a one-sided look of contempt to cross her face for a millisecond before she successfully plasters a big, fake smile back on her face.

There are gestural cues to look for, as well. For instance, David showed the video of Alex Rodriguez answering a question from Katy Couric about the use of performance-enhancing drugs. He answers "no" very definitively -- while nodding his head up and down at the same time.

David was very careful to point out that a hotspot, with associated emotional leakage, is only a sign that there is some disconnect between the speaker's words and his emotions. Lying is only one possible explanation for such a disconnect. Leakage can also be the result of cognitive dissonance, ambivalence or extreme uncertainty.

So, for us consultants, the key is to identify hotspots. That suggests that lying might be taking place. Additional investigation and/or interrogation is necessary to tease out what is causing the emotional disconnect.

So, what should I do now with my cursory training and heightened awareness of emotional leakage and hotspots? Well, I'm not quite ready to market myself as an emotional cue expert, who can help lawyers identify lying jurors or witnesses with precision. That said, I will certainly look for microexpressions when reviewing footage from focus group sessions. I will keep an eye out for microexpressions from a witness I am helping to prepare. An obvious hotspot can help me identify a line of inquiry that might be tricky for the witness.

I am curious to see how useful this heightened sensitivity to facial expressions might be moving forward. Please feel free to contact me if you'd like to chat about my experience with this program.

On Monday, I'll file a new post with some additional observations, lessons and stories from the conference. Tomorrow, it's golf at East Lake! Fore!!!!!