Wish list for the next Supreme Court Justice

Despite my tremendous, if not obvious, qualifications, I don't think that phone is going to ring. So, if I'm not going to be appointed to the Supreme Court, who should be? Glad you asked. I could throw out a few names, but I don't think any of my nominees would have a shot in hell of confirmation. So, in lieu of an actual name, I will instead provide a list of qualifications (dare I say litmus test?) to be met by a Supreme Court Justice. While there are, of course, many critically important constitutional issues facing the Court, I will focus my attention here on those related to juries.

1. The Death Penalty is Unconstitutional
I am not arguing that the death penalty is never an appropriate punishment for a crime. I am rather agnostic on the subject. Rather, given that juries must decide sentence in capital cases, the application of the death penalty is so arbitrary and capricious as to be unconstitutional. There are many reasons for this, and most of them will never go away. Jury instructions on capital sentencing are incomprehensible and errors by jurors almost always lead them to vote for the death penalty in cases in which a proper understanding of the instructions would have led them to vote against it. (See Weeks v. Angelone, Free v. Peters and many others). While we understand a good deal about how jurors decide cases on the merits, the processes behind sentence or damages calculations remain essentially a mystery. We have failed, using the best social scientific techniques, to produce a model that predicts, with any degree of satisfactory precision, how jurors choose sentences. As of now, the only variable that seems to differentiate between offenders who receive the death penalty from those who do not is the race of their victims -- hardly something one which to hang one's hat. The admission of victim impact statements during capital sentencing hearings permits non-probative, emotionally inflammatory testimony to infect an already nebulous, emotionally charged process.

2. Reverse Lockhart v. McCree.
If the death penalty is going to stick around, it is time for the Supreme Court to get its collective head out of the sand regarding the impact of death qualification. Repeat after me: Death qualified juries are more likely to convict than normally chosen ones. Rehnquist's opinion in this case was just plain stupid, not to mention disingenuous. He hides behind the convenient legal fiction that an impartial jury is one made up of "impartial jurors." In Lockhart, he wrote that since McCree's jury could have been selected randomly (even though it wasn't), and none of the individual jurors were shown to have been biased against the defendant (How could they have been?), their verdict must be legitimate. By Rehnquist's logic, every jury is impartial, provided that none of its members admit to hating the defendant. This highlights a general point about jury impartiality. It is time to finally kick to the curb Rehnquist's definition and recognize that the only internally consistent definition of jury impartiality is that associated with a jury "impartially chosen."

3. Reverse Williams v. Florida
The empirical evidence is overwhelming that smaller juries are inferior to larger ones in many ways. First, by simple statistical theory, the larger the jury, the more likely it is to reflect the true distribution of attitudes, values and experiences in the community from which it is drawn (putting aside peremptory challenges for now). This is simply an application of the law of large numbers. Studies have shown that larger juries tend to correct factual errors made by its members more regularly than do smaller ones. Larger juries are also less likely to be "hijacked" by one zealous juror. Obviously, the jury needs to be small enough so that they can effectively deliberate as one body, but six jurors are too few. I think that the ideal number is probably something in the range of 15. That said, the Constitutional question is only whether a jury of six is sufficient to do the job. The answer is clearly "no."

4. Recognize the full implication of Batson v. Kentucky
The key component of the holding in Batson is the identification of the peremptory challenge as a "jury selection practice that permits those to discriminate who are of a mind to discriminate." As such, the logic applies equally to any jury selection practice that runs a similar danger of discrimination. Subsequent cases have defined "state actors" quite broadly within the context of jury trials. Prosecutors, defense attorneys and civil litigants are all state actors. As such, judges must surely state actors, as well. The following jury selection practices must fall under the purview of Batson and its progeny:

Choice of Venue. When pretrial publicity or some other factor requires that a trial be moved to a new venue, the judge is afforded great discretion over where the new trial is held. A judge who is of a mind to discriminate can easily do so by moving the trial to a location with a drastically different racial composition. This is exactly what happened in the case of Jerome Mallett, a black man accused of killing a white state trooper in St. Louis. The judge moved the case to a county near the Iowa border with no black residents. The Missouri Supreme Court held this practice constitutional on the grounds that Batson only applied to peremptory challenges. Justice Marshall wrote a compelling dissent to the US Supreme Court's denial of certiorari.

Death Penalty Prosecutions. Obviously, it is unconstitutional for a prosecutor to only (or disproportionately) seek the death penalty in cases involving minority defendants. But what of the decision to seek the death penalty in order to eliminate black jurors? We know that a greater proportion of African Americans oppose capital punishment than is the case for whites. We also know that death qualified juries are conviction prone. Therefore, it would be a perfectly rational strategy for a prosecutor to seek the death penalty in order to rid his jury of as many African Americans as possible, and in the process, increase his likelihood of securing a conviction. This decision should be governed by the holding in Batson v. Kentucky. The prosecutor should be required to offer a race-neutral explanation for the decision to seek the death penalty.

Judicial decisions on hardship requests and challenges for cause. Before either side gets to exercise their peremptory challenges, the judge determines which prospective jurors are eligible to serve. If a pattern emerges with respect to a judge's decisions about who is excused for hardship reasons (childcare responsibilities, job commitments, etc.) that seems to have a disparate impact on minority jurors, the parties should be free to make a Batson challenge. Again, the operative concept is whether someone "of a mind to discriminate" has the opportunity to do so.

5. Admit that Marshall was right about Batson
In his concurrence to Batson v. Kentucky, Marshall warned that the decision would do little to limit discriminatory use of peremptory challenges in practice. He argued that it would be too easy for prosecutors to invent a racially neutral explanation when necessary (See, for instance, Rice. v. California). He also argued that attorneys who believed themselves to be free from racial bias or animus would, nonetheless, be affected by subconscious racial bias when challenging jurors. That is, lawyers would be forever violating Batson without even realizing it. A recent study by Sam Sommers strongly confirms Marshall's worst fears. Marshall advocates eliminating all peremptory challenges, arguing convincingly that peremptory challenges are not constitutionally protected. It is worth noting that England, from whom we inherited our legal system, essentially eliminated peremptory challenges over 40 years ago. I have always been amazed that not one of the opinions in Batson v. Kentucky bothers to mention this historical fact.

6. Insist that all jury instructions be in plain English and be tested for comprehension.
Most states are moving in the direction of plain English jury instructions. That said, several still use lots of jargon, complicated sentence construction and multi-syllabic linguistic anomalies (fancy words), to the detriment of juror understanding. A verdict handed down by a jury that does not understand its instructions is surely arbitrary and capricious. Federal Rule of Evidence 606(b) precludes juror testimony about jury deliberations or the internal mental processes of jurors. As such, it is not possible to inquire, ex post, into whether a jury understood how to apply its instructions. The only solution is to make it Constitutionally mandatory for a state to test its jury instructions before they are codified. (Obviously, the states should be given adequate time to test existing instructions). While I would certainly encourage any jurisdiction to adopt best practices regarding the treatment of jurors during trial (note taking, juror questions, pre-case instructions, written instructions, etc.), I am not sure that any others approach Constitutional significance.

7. Reverse State Farm.
Most of the misguided steps taken by the Supreme Court over the past 30 years, with respect to jury trials, concern criminal cases. Recently, however, the Supremes have decided to expand their convoluted thinking to civil trials, as well. In State Farm, the Court applied some truly baffling logic to evaluating punitive damages. Perhaps we should not be surprised that this is where the Court's logic ran amok. Within the civil law sphere, punitive damages is the place where the jury most acts as the "conscience of the community." By punishing intentional wrong-doing, the jury is assessing a quasi-criminal penalty. So, the distrust that the Court exhibited towards jurors in this context is simply an extension of its distrust in jury decision-making in the criminal law arena. The conservative majority on the Court thinks that we mere mortals are too lenient towards poor people (so they have eroded defendant rights in criminal trials) and too harsh towards rich people (so they have enhanced defendant rights in civil trials).

Let's get one thing straight right off the bat. Everyone agrees that compensatory damages are meant to "make the plaintiff whole" with respect to any harm caused by the defendant. As such, the intent of the defendant is completely irrelevant, provided that the consequent conduct is deemed to have been negligent. Whether the harm was caused by a mistake or a deliberate act does not matter in the calculation of compensatory damages. By contrast, the actual harm suffered by the plaintiff is irrelevant to the calculation of punitive damages, except to the extent that it helps the jury evaluate the inherent dangerousness of the defendant's actions. That is, the jury is trying to calculate the expected harm associated with the defendant's gross negligence, so as to determine how irresponsibly the defendant acted. The actual damages suffered by the plaintiff need not have any relationship to this expected harm.

As a further wedge between compensatory and punitive awards, remember that the deterrent goal of a punitive award requires that the expected harm be multiplied by the inverse of the likelihood that the abhorrent act would be detected, brought to light and successfully litigated. So, if the jury thinks that there is only a 5% that the perpetrators would be caught and successfully sued (perhaps due to the defendant's subterfuge), the expected harm should be multiplied by 20 to properly punish the wrongdoers.

That said, the Court spent considerable time, space and effort turning this logic on its head. Expressing concern that one large judgment could bankrupt a large corporation, the Court pronounced that, as a general rule of thumb, a punitive award should not exceed ten times the corresponding compensatory award. The majority seemed particularly worried that a company would be asked to pay punitive awards in multiple jurisdictions for essentially the same evil act. We should note, however, that, after remands and much hemming and hawing about jury instructions, a very large punitive award in an Oregon tobacco case was permitted to stand.

To further understand the flawed logic of State Farm, consider the following example. An oil company neglects to install double hulls in one of its tankers, contrary to federal law. Close to port, the tanker runs aground during unexpected bad weather, leaking most of its oil into the surrounding water. If the tanker hit the rocks on its way into port, it would spill millions of gallons of oil into the bay, creating a major ecological and public health disaster. If, on the other hand, the tanker hit the rocks on its way out of port, after unloading, it would create a very small oil slick that could be contained and cleaned up within a matter of days. The inherent reprehensibility of the conduct (failing to install double hulls) is identical in both cases. The actual harm caused, however, differs by a factor of millions. Should the punitive award faced by the oil company be essentially eliminated because they got lucky about when the tanker ran aground? The State Farm decision says "yes," but simple logic says "no."

This line of cases needs to be reversed before it gets too firmly entrenched as precedent.

I believe in the American jury system. I think that jurors are to be respected and should be given all the resources possible to succeed in their very important tasks. it is vital that the jury-related decisions of the Supreme Court move in the direction of a jury that is fairly chosen, clearly instructed and properly empowered. That's not too much to ask, is it?

Jury Selection Tricky Guessing Game in MA criminal trials

On Saturday, April 25, I participated in a training session for Massachusetts Bar Advocates, sponsored by the Middlesex Defense Attorneys, Inc. First, let me thank Maryellen Cuthbert for the invitation and for organizing a very interesting program. Diane Levesque and I were the trial consultants charged with introducing the assembled throng to the concepts behind effective supplemental juror questionnaires and attorney conducted voir dire.

The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.

I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!

There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."

Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.

To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.

I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.

"Podcasts killed the radio star" -- what to do about googling jurors.

OK. If anything, podcasts are creating radio stars. Take me, for instance. I was a guest on the latest podcast of "Lawyer2Lawyer," produced by the Legal Talk Network. Along with attorneys Peter Raben and Sean Ellsworth, both of Miami, FL, we were interviewed about the recent spate of mistrials brought on by jurors who conducted unauthorized online research. Peter and Sean were the defense attorneys in the federal drug trial whose mistrial inspired John Schwartz's New York Times article a few weeks ago. When the judge interviewed the jurors to find out how one juror's google search had infected their deliberations, he discovered that eight other jurors had been looking up items related to the case online.

It was fascinating to hear Peter and Sean discuss the various pieces of information the jurors had dug up online. They were quite industrious! In addition to reviewing what happened in their case, we discussed what should be done in the future to reduce the incidence of this kind of behavior by jurors.

You can listen to the mp3 version of the podcast directly by clicking here.

You can go to the Legal Talk Network download site for the podcast by clicking here.

Please leave me comments and let me know what you think of the show. Thanks!

Jury aborts attempt to prosecute Kansas doctor

After only 45 minutes of deliberations, a Kansas jury has acquitted Dr. George Tiller on all counts of violating the state law against performing a late-term abortion without a supporting second opinion. To refresh your memories, Tiller is one of the few doctors in America who still performs late-term abortions, what pro-life supporters refer to as "partial birth" abortions. Under Kansas law, a doctor can only perform this procedure after the patient has received a second opinion, concurring in the judgment that the pregnancy is a danger (physical or mental) to the mother. The Kansas law prohibits the doctor issuing the second opinion from having any financial relationship with the doctor performing the procedure. The State, in this case, alleged that Dr. Tiller had close financial ties to the doctor who issued virtually all of his patients' second opinions. According to the prosecution, she was little more than an employee of Dr. Tiller's clinic.

So, while the case incited passions about abortion, with accompanying protests, sit-ins and prayer sessions outside the courthouse, it was really a case about money. Did the jury believe that Dr. Tiller essentially paid Dr. Neuhaus to always agree with his diagnoses so that he could perform abortions? The answer was a resounding "No." Most juries take 45 minutes to choose a foreperson and figure out what to order for lunch. So, this jury seems to have concluded that this case was not a close call.

I find the result of this case encouraging because it provides evidence that jurors, even in a case laced with controversy, emotion, pressure and pre-trial publicity, were able to focus on the relevant facts and applicable laws. This jury clearly did not make this case a referendum on abortion. Rather, they answered the very narrow set of questions given to them by the court about the financial relationship between Drs. Tiller and Neuhaus.

Many pundits rip into juries for being irrational, flighty and beholden to emotion. Such pundits often have little to support their assertions beyond an occasional anecdote or conjecture about why a jury chose a particular verdict. My experience leads me to conclude that most jurors are serious and conscientious. They would rather have a well-defined decision task and clear legal instructions. If the lawyers and judges do their jobs, most jurors can be counted on to do theirs.

One Stop Shopping for all your Forensic Needs!

Hello campers! Sorry to have left you all in the juryboxblog lurch for a few days. I had dental surgery last Wednesday and I can only handle one kind of pain at a time!

I have spent a lot of bandwidth over the last couple of weeks telling you what other people have been up to. Let me spend a little time telling you about a new venture of which I comprise but a small part (Of course, we know what Shakespeare thought of small parts.)

Joe Laliberte, a resident of the fine state of Maine, runs a forensic investigations firm called Corporate Intelligence. He realized that many clients who had the need for one kind of forensic service often had the need for other kinds, as well. Wouldn't it be great, he thought, if an attorney could go to the same place for reliable experts in every imaginable field of forensics? Being more of a doer than a dreamer, Joe put his considerable energy to use assembling a team of first-rate forensics experts, all working in the New England area.

Joe invited me along because many attorneys asked him who was going to be his jury expert. I guess if you're going to go to the trouble of hiring an airplane accident reconstructionist and an e-discovery firm, you're probably going to court. So, it can't hurt to have a trial consultant on board, too.

Joe's little venture has been in operation for about two months now and our network of experts has been raking in the jobs. Joe can't keep up with the demand for his dog-and-pony show (It must be some pony!) Anyway, we seem to be onto something here.

So, if you need any kind of forensic expertise, service or advice, and you work in New England (even if you don't), give Joe a ring, email, tweet, or holler. You can find a list of the 40-odd experts who make up the network, as well as Joe's contact information at www.ineedforensics.com . Joe's a really nice guy and he has one of the best mustaches you'll ever see! Tell 'em Edward sent you!

Brits Get Their Knickers in a Knot about Hung Juries

Ben Ando has an interesting article on the BBC website today about the "alarming" rise in hung juries in criminal cases in the UK. (The UK eliminated most jury trials for civil cases during the Second World War. All the men were at the front and they would have had to seat female jurors. Those in charge thought better of it and eliminated juries in such cases altogether.) Apparently, in 2008 a whopping 116 trials ended with a hung jury. This amounted to a 0.7% hung jury rate, or one hung jury for every 140 trials.

The UK uses a 10-2 rule for jury trials. So, in order to have a hung jury, at least 3 jurors have to hold out against the majority. This happens to be the same decision rule employed in Oregon for criminal trials (Louisiana uses 9-3). I decided to pull out some old data I had about hung jury rates and Oregon back in the 1990s. It turns out that the Oregon hung jury rate was very similar to what England is facing now, about 0.5%. During the same period, California (using a unanimity rule) had a hung jury rate of about 15%. In some counties, it was well above 20%. How do you think our friends across the pond would handle those numbers?



The BBC article specifically reports numbers for England and Wales. This is because Scotland has its own, rather unique, jury system. Scottish juries are comprised of 15 jurors, deciding by simple majority rule. So, 8 out of 15 is sufficient to render a verdict.

Lawyers, scholars and pundits who go apoplectic about the prospect of eliminating the unanimity requirement in the U.S. constantly carp about the loss of legitimacy of verdicts without unanimity. In reading the BBC piece, it is interesting to note that folks are frustrated with the increasing hung jury rate, but they don't seem too worried about the legitimacy of the verdicts that have been coming out of their 10-2 system for the past 40-odd years. In fact, some are arguing that the voting rule should be relaxed further. Who knows? Maybe the whole UK could end up with the Scottish system.

Meanwhile, we are stuck having to retry thousands and thousands of cases every year. Perhaps we should consider whether our system could finally use some tweaking.

Itsy-bitsy jury can cause massive migraines

In following the trial of George Tiller, the Kansas abortion doctor on trial in Wichita, I noticed that Kansas uses six-person jurors in criminal cases. Dr. Tiller's attorney made a motion for a jury of twelve in the case, against the objection of the prosecution. The judge denied the motion and seated six jurors and two alternates. Such an arrangement, while offering some cost-savings, is a recipe for disaster from a justice perspective.

The Supreme Court Perspective

The US Supreme Court, in Williams v. Florida (399 U.S. 78, 1970), decided that the Constitutional guarantee of a jury trial did not require a twelve-member jury. The historical analysis seems in keeping with other 6th Amendment jurisprudence of the time. The Court, however, gave rather short shrift to whether it was a good idea to use such small juries. Their complete attention to the question is captured is the following passage from Justice White's opinion:

To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representatives cross-section of the
community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12--particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.

So, the Court does identify some of the Constitutionally pertinent features of a jury trial affected by its size, but the Court gets all of its conjectures about jury behavior completely wrong.

Group Deliberation

A jury as small as six is much more likely to be dominated by a strong personality than is one with more members. Often, the people who try to control deliberations prove to be "false experts" and to have extreme, inflexible views. Such personality traits work contrary to open and complete deliberations, but they typically go unchecked in such a small group.

When juries handle difficult cases, the kind that reveal fundamental disagreement among the jurors, camps tend to form (hopefully not right away). Each camp usually has a de facto spokesperson and the ongoing debate becomes largely a dialogue between the spokespersons, with occasional input from others. In a six-person jury, it is much more likely that no one will want to assume the spokesperson role for one of the sides.

Jurors get facts wrong. These errors can lead deliberations in bad directions. Sometimes, a jury will reach a verdict that it would not have reached had it correctly recalled the evidence and testimony. We would, presumably, want to minimize the chance that a verdict would be based on an erroneous factual foundation. Studies have shown, without fail, that larger juries tend to raise a larger number of probative case facts during deliberation, allow factually mistaken statements to go uncorrected less often and have greater confidence in their verdicts than do smaller juries.

Outside Influences

The Court speaks of "outside intimidation," by which is presumably means jury tampering and/or pre-trial publicity. Suppose, for a moment, that a defendant in a criminal trial had successfully bribed or intimidated a juror. The chance that the juror could convince all 11 other jurors to vote with him, contrary to the evidence, is pretty slim. On the other hand, if he could convince only a few others on a six-person jury, he could probably secure an acquittal (Empirical evidence shows a majority "tipping-point" for acquittals. If half the jury favors an acquittal, the rest typically falls in line quickly.) If a defendant is committed to getting to all the jurors on a jury, his job is certainly made easier by cutting the number in half. So, I would think that jury tampering is a bigger concern with smaller juries.

Trial courts typically do an awful job of dealing with the pretrial publicity problem. Jurors routinely fail to volunteer when they have seen, heard or read about a case in advance. When they do admit to being exposed to pretrial publicity, the judge typically asks them exactly the wrong question: "Notwithstanding what you have seen, can you remain fair and impartial in this trial?" The ones who say "yes" get seated. All the empirical studies say that jurors who admit that it might be difficult to ignore pretrial publicity tend to be fairer to defendants than those who swear that they can be impartial. So, it is a given that some jurors who are affected by pretrial publicity will make it onto the jury. Each such juror will be more influential on a six-person jury than on a larger one. Should it become clear that a juror is making arguments based on "extra-legal" material, another juror is more likely to cry "foul" when the jury is larger.

A similar dynamic is at play when it comes to unauthorized juror research, such as consulting dictionaries, googling witnesses, or visiting crime scenes. The influence of one juror who breaks the rules is larger on a smaller jury.

Representative Juries

One need not be a statistical genius to realize that, in expectation, a larger random sample will be more representative of the general population than will be a smaller random sample. This problem is only exacerbated by the exercise of peremptory challenges. Such challenges, to the extent that the attorneys are successful at evaluating the tendencies of potential jurors, eliminate people whose views lie at either end of the distribution of opinion. In Dr. Tiller's case, for instance, each side had 5 peremptory challenges. So, of the 18 people who were deemed qualified to serve on the jury, the lawyers could strike more than half. To the extent that the population is at all heterogeneous with respect to attitudes pertinent to the case at hand, using six-person juries substantially hinders the likelihood of obtaining a representative jury.

The Constitution is silent about the identifying the dimensions on which we'd like juries to be representative. If we would like a good distribution of talents and life experiences, it will be hard to achieve this goal with a six-person jury.

Dr. Tiller's case has incited strong passions in the Wichita community. It remains to be seen how the use of a six-person jury will affect the ability of such passions to influence the verdict.

Renewed efforts to limit peremptory challenges

Every couple of years, someone puts forth an argument as to why the American criminal justice system should eliminate (or reduce) the use of peremptory challenges. I have contributed my own efforts to this cause. Among the four articles I co-authored with Warren Schwartz, two specifically called for eliminating peremptory challenges in criminal trials. (“The Challenge of Peremptory Challenges,” 12(2) Journal of Law, Economics, and Organizations, 375-394, 1996, and “And So Say Some of Us: What to do When Jurors Disagree.” 9(2) University of Southern California Interdisciplinary Law Journal,429-463 2000.) The latter of these is a non-technical treatment of the issue and is archived at my website here.

Many current scholars and legal professionals who advocate limiting peremptories are troubled by the persistent use of these challenges to reduce the representation of minorities on juries, notwithstanding the holdings of Batson and its progeny. Always a ruling with lots of wiggle room, the leverage that Batson gave appellate judges to rein in discriminatory behavior has been eroded over the years by U.S. Supreme Court decisions that seem to shift the burden for proving discriminatory intent back upon moving parties. In addition, as predicted in Marshall's concurrence to Batson more than 20 years ago, prosecutors seem regularly to discriminate against minorities subconsciously, while believing that are acting in a race-neutral fashion. Marshall's fears have been born out by several experimental studies of how people actually exercise peremptory challenges, including a recent one by Norton, Sommers and Brauner ("Bias in jury selection: Justifying prohibited peremptory challenges." Journal of Behavioral Decision Making, 20, 467-479.)

This concern for ongoing discrimination in jury selection has motivated, in part, a proposal to reduce the number of peremptory challenges to three for each side, offered by David Baldus of the University of Iowa Law School. This suggestion caught the attention of Nathan Koppel of the Wall Street Journal, who dedicated a column to it on March 6 of this year.

Many people who rue the absence of minorities on juries object to the fact that these excluded jurors do not get to vote on verdicts in these cases. Defendants, they argue, do not get fair trials because certain targeted groups are disenfranchised from this institution of participatory democracy. I do not want to diminish the importance of this point -- after all, we certainly wouldn't want people locked out of elections because of their racial or ethnic identity -- but I think that this is far more than a "voting rights" issue.

A jury is a deliberative body. In the end, of course, the jurors must vote for a verdict. This act of voting, however, constitutes a small fraction of a jury's efforts. Deliberation is about coming to a shared understanding, if possible, of the events surrounding the alleged crime and the defendant's role in those events. When a consensus is not achievable, deliberation should foster a clarification of where individuals' perceptions differ and how justice can be done notwithstanding those differences.

The dynamic dialogue that is jury deliberation requires that all voices be heard. This is where the use of peremptory challenges hinders the pursuit of justice. A strong opinion is not necessarily an illegitimate one. An unusual perspective may still be helpful in seeing the "big picture." A presumption unchallenged will be accepted uncritically, even if it rests on shaky ground. Peremptory challenges tend to weed out those with strong, unusual or critical opinions. These people might make excellent jurors. They might be essential to full and thorough deliberations. But our system tells them that they are not welcome at the table.

We now know that this exclusion has a powerful and troubling second-order effect. Jurors who expect to participate in deliberations only with like-minded people do not perform their tasks as jurors as well as those who expect to be deliberating as part of a heterogeneous group. Consider the results of a series of studies by Sam Sommers. ("Race and the decision-making of juries." Legal and Criminological Psychology, 12, 171-187.) His team examined the deliberations and decision-making of juries that were either all-white or of mixed race, all handling the same case in an experimental setting. He found that the mixed-race juries made fewer factual errors, included more facts in their deliberations, deliberated for longer and had better recall for case facts than did their all-white counterparts. In addition, the jurors on the mixed-race juries tended to be more open-minded about the guilt of the defendant. The really interesting part of his findings is that all of the difference was on the part of the white jurors. In addition, this difference took place entirely before deliberations started.

This is very important, so let me be clear. The white jurors who knew that they would be deliberating with black jurors paid closer attention to the facts of the case, started deliberations with more open minds about the defendant's guilt and could more accurately answer factual questions about the case. Essentially, knowing that they would be interacting with people "unlike" themselves caused these jurors to prepare themselves better for deliberations.

So, precluding minorities from criminal juries not only locks them out from voting and deliberating, but it also erodes the performance of those jurors who do sit on the case.

I have recommended in my academic pieces that the elimination of peremptory challenges should be accompanied by a relaxation of the unanimity requirement for criminal trials. In England, for instance, there are no peremptories and only 9 votes out of 12 are required to reach a verdict. I will not rehash those arguments here. Feel free to read my other work on the topic.

I will, however, take a brief moment to suggest that extensive, well-crafted juror questionnaires and attorney-conducted voir dire is especially essential should peremptory challenges be eliminated. For such questioning is really most useful for the knowledgeable exercise of challenges for cause. It is time for judges to stop being lazy about jury selection. Too many trials go forward with juries full of people who have been exposed to reams of pre-trial publicity about the defendant. People with criminal records, or who have been victims of crimes, routinely decline to reveal this information to the court because judges insist on using callous and outdated voir dire techniques. It is time for sequestered, individualized, attorney-conducted voir dire to become the norm, rather than the exception, in criminal trials. Much of the time-consuming nature of this process can be mitigated by the use of well-crafted supplemental juror questionnaires.

The American jury system can survive without peremptory challenges. In fact, I believe it would thrive without them. But we need to make sure that the other procedures we use during jury selection are more effectively applied.

Securities Lawsuits before scared, angry, fatalistic jurors

Well, it was bound to happen. People have lost money. Lots of people have lost lots of money. And they're pissed. They want to blame someone, anyone and they want their money back. So, they are filing lawsuits. Lots of lawsuits.

Because that's where the money is

I recently worked on a case in which a "Madoffian" villain absconded with tens of millions of dollars of his clients' money. He's in jail but that is of small consolation to his victims, many of whom have lost their lives' savings. Just as Bernie Madoff seemed to have used one particular account at Chase Manhattan Bank to perpetrate his scheme, this crook used one account at a local bank branch to steal over $25 million. Rather than investing the money, he just converted it to his personal use, making small payments to "investors" when necessary.

The victims of this Ponzi scheme, unable to collect from the crook, sued the bank, on the grounds that the bank was complicit in the crime. After all, the bank still has (a little) money. I am hearing similar stories from other trial consultants, concerning other investors suing other banks, accounting firms and lawyers for the misdeeds of their clients.

These lawsuits are all long-shots, of course, because proving negligence first requires proving that these defendants owed some legal duty to the plaintiffs (who were not customers). In the case I worked on, the bank clearly owed a duty not to lose the account holder's money, but it was a real stretch to argue that the bank owed a duty to the people who gave money to the account holder. (Does your bank owe any duty to your employer for what you do with your paycheck? Or to your family for how you choose to squander your Bar Mitzvah money?).

A bank does have an obligation to act if it knows that illegal activity is taking place. It is not enough, however, to show that someone at the bank suspected, should have known, or was negligent in not knowing that something illegal was going on. There are further obligations associated with money laundering statutes, but they only cover large cash transactions.

So, in short order, the plaintiffs lost their suit against the bank. Plaintiffs have been similarly unsuccessful to other suits I have heard about. Unless you can prove a knowing conspiracy, you'll be hard-pressed to collect from institutions peripheral to the actual fraud.

Juror anger flows freely in all directions

While the facts of this case are certainly interesting and timely, I think that many interesting things can be learned from the reactions of focus group participants in the pretrial research we ran for the case.

We ran a full-day multiple-panel focus group for this case. First, we offered the participants a very heavy-handed plaintiff's argument to see just what kinds of passions we might ignite. Well, half the group was ready to revoke the bank's license and lock up all its officers. This kind of hostility should not be too surprising in an environment in which banks are largely blamed for our financial meltdown. It became very clear that most participants did not differentiate among savings banks, investment banks, brokerage houses, hedge funds and mortgage companies. To most people, the entire "financial sector" is lumped together as one giant, evil monster. If you need to represent any financial institution in court, you'll need to work very hard to differentiate your client from other firms in the industry. Good luck with that.

We followed up in the afternoon with a presentation of the defense case, along with direct and cross-examination of the branch manager. Participants started to soften their stances a bit when it became clear that the bank employees really had no idea where the money was coming from and to what purpose it was being put.

The participants were still plenty angry. They just directed their criticism in multiple directions. They heaped lots of blame on the victims, expressing incredulity that anyone would pay so little attention to what was happening to their money. Many people adopted a "caveat emptor" attitude, pointing out that when they lost money in the market, no one was there to save their butts.

This raises the important issue of relative vs. absolute notions of fairness. In unfamiliar decision-making environments, it is common for people to reason from what they know. Jurors are always analogizing from the case facts to their own experiences. "Well, when my Aunt Agnes had her hip surgery, they insisted that she stay in the hospital for five nights, not just three." As such, in securities litigation, a juror will see a case through the lens of her own experiences and current situation. I expect that, as we move through these difficult economic times, jurors will be reluctant to "bail out" investors who have lost money (even through fraud). Everyone feels defrauded and jurors are unlikely to believe that others deserve special treatment (especially if those others are rich).

This relative evaluation process is certain to carry over to calculations of damage awards (and not only in securities cases). As jurors' own financial situations deteriorate, the baselines they use for assessing damages will decline. Their houses are worth less. The average salaries earned by various types of professions are perceived to have declined. Expectations about bonuses and commissions have gone down. As a result, I expect to see damage awards drop precipitously across the board.

The American Society of Trial Consultants, of which I am a member, has just launched a flash poll among its members concerning perceived changes in juror (and mock juror) behavior, in response to the market collapse and subsequent stimulus package. Once the results of this poll are released, I'll be sure to discuss them in a future blog entry. Stay tuned!

Remedy for the Googling juror? Just ask!

Jurors swarm the net

Recent entry for the smallest surprise of the year award: jurors are online.

Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what's what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of "I'm stuck on jury duty and boy am I bored.").

The problem has become so prevalent that there was a front page story about it in today's New York Times. So, what are we going to do about it?

Anyone who understands psychology at all knows that the solution is NOT to take away juror's toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite "reactance" on the part of jurors. That is, when jurors' freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors.

With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.

Juror Twittering and Blogging

There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don't pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.

General pre-trial jury instructions and those ever-entertaining "What is a juror?" videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.

Online research by serving jurors

Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be "self-informing."

Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don't trust the parties. We don't trust the lawyers. We don't even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to "fact check" their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge's amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.

What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t's and dot all their i's, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.

This brings me to a procedural "innovation" that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors' questions during the trial than risk those jurors searching for answers elsewhere.

So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be "We are here to help you make the best-informed decision possible. We'll get you the answers you need."

I think that jurors who hear that message will be more likely to stay off google during trial. Afterwards.... well, that's another topic for another day.

Thou Shalt Not Kill -- but feel free to lie by omission

Jury selection begins today in the trial of George Tiller, a Kansas doctor who is known for running a clinic that performs late-term (sometimes referred to as "partial-birth") abortions. Tiller is accused of 19 misdemeanor counts of failing to secure a second opinion before performing these late-term procedures. In truth, he did secure second opinions, but always from the same doctor, Dr. Ann Kristin Newhaus. The prosecution contends that Tiller and Neuhaus had an ongoing financial relationship, in violation of Kansas law. This relationship, it is alleged, negates the legitimacy of those second opinions.

The judge in the case, Hon. Clark Owens, will undoubtedly admonish the members of the jury pool that this is not a case about the legal, ethical, moral or religious status of abortion. He will ask each of them whether s/he can put aside whatever preconceived notions s/he might have about the issue and decide the case strictly on the facts. Those who ultimately serve will have somberly nodded and sworn to be impartial. And each and every one of them will have been lying.

Any case involving abortion is certain to invoke strong feelings about the issue. A pro-life juror will always view the actions of an abortion doctor with greater skepticism than will a pro-choice juror. But this is not just any case.

For the past 25 years, Dr. Tiller has been at the center of the abortion debate maelstrom in the nation's heartland. In 1986, his clinic was damaged by a pipe bomb. In 1991,Operation Rescue staged the 45-day "Summer of Mercy" event outside his clinic. In 1993, a pro-life vigilante shot Dr. Tiller once in each arm. When it comes to the war over abortion, Dr. Tiller's Wichita clinic is ground zero.

Two prior attempts to prosecute Dr. Tiller failed because the grand juries refused to indict him. Another attempt, filed by former Attorney General, Phile Kline, was dismissed for jurisdictional reasons.

Which brings us back to jury selection. Any juror who says she can judge this case impartially is deluding herself and/or the court. This clinic has been in the local news for 40 years. Everyone has an opinion. Unfortunately, when the court tries to determine who will at least try to stick to the facts, Judge Owens will undoubtedly ask exactly the wrong question, as almost all judges do. The judge will ask each juror whether she can set aside what she's read, or heard, or seen about the case. He will ask each juror whether she can rely on the facts, notwithstanding personal views about abortion. And the judge will seat the jurors who answer "yes." And there's the rub...

Decades of research into the effects of "extra-legal factors" (such as pretrial publicity or religious views) on verdict choice shows that those jurors who believe they can ignore the effects of such factors are generally more influenced by them than those jurors who admit that they would have a hard time putting their feelings aside. This should come as no surprise to any casual student of human nature. Those people who are introspective enough to realize that their feelings and experiences will affect their decision-making are better able to recognize when it is happening and try to compensate. To state it more simply, those who are more worried about being unfair will work harder to be fair.

So, following upon centuries of experience and precedent, Judge Owens will almost certainly seat exactly the wrong jurors.

So, is all lost? Is it hopeless to think that the state and the defendant will receive a fair trial? Not necessarily. I am a legal realist (and a dangerously knowledgeable social scientist). As such, I have never believed that an impartial jury is one comprised of impartial jurors -- such animals don't exist. Rather, an impartial jury is comprised of people who represent a fair cross-section of the community, with all the experiential and emotional baggage that we all carry, and who will hopefully walk into the jury room with open ears and an open mind.

I think it works most of the time. On almost all issues, more unites us than divides us. Most people appreciate that we don't live in a world of absolutes. Reasonable people can disagree.

Unfortunately, abortion is one of those issues that seems to completely polarize the populace. Do any of us really have an open mind on this issue? This case is almost certainly going to become a referendum on abortion. If that happens, I cannot imagine any outcome other than a hung jury -- and a contentious one at that.

This is not the last we'll hear about this case. It threatens to go on, and on, and on...

Loss of Chance = Good Chance Jurors Get Lost

The MA Supreme Judicial Court recently handed down a decision in Matsuyama v. Birnbaum, permitting plaintiffs to sue for “loss of chance” in medical malpractice cases. In the opinion, written by Chief Justice Marshall, the Court acknowledged that, in keeping with jurisprudence in most other jurisdictions,

“Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages.”

While the opinion limits its scope to med-mal cases, the logic is certainly broad enough to be applied to other kinds of torts in the future.

The loss of chance doctrine is hard enough for lawyers to understand. Imagine trying to explain it to a jury. Well, that is exactly what litigators and judges will now be faced with in the hundreds of medical malpractice cases tried annually in Massachusetts. One need look no further than the language of the SJC opinion to appreciate how daunting a task this will be:

“Applying the proportional damages method, the court must first measure the monetary value of the patient’s full life expectancy and… the defendant must then be held liable only for the portion of that value that the defendant’s negligence destroyed.”

As bad as juries are at detecting witness deception or understanding their instructions, they really stink at applying probabilities and percentages. Add this processing deficiency to the inherent unpredictability of damage awards and we have quite the witch’s brew for chaos in the med-mal litigation world. (See my presentation on how badly jurors handle such tasks at http://www.eps-consulting.com/pages/presentations.php)

On the one hand, greater uncertainty about jury verdicts can support the sort of divergence of opinion that scuttles settlement negotiations. On the other hand, defense attorneys and insurance companies tend to be risk-averse, so this doctrinal change could provide greater incentive to settle out of court.

One thing that is clear is that attorneys (on both sides) had better learn quick how to argue loss of chance to juries. That a particular explanation makes sense to you does not guarantee that it will make sense to a jury of laypersons. This is just the sort of complicated task that lends itself to false experts taking over deliberations. Before you give your first closing argument on loss of chance, I’d strongly recommend that you test it out on a focus group panel first.

Similarly, there will be disagreements about the wording of loss of chance jury instructions that will be need to be resolved by trial court judges. Before you file motions with recommended language, you should test out that language on real people to make sure it generates the understanding of the law that you are trying to achieve. I can also help you track down studies on such language from jurisdictions where loss of chance has been available for some time.

Pro Bono Trial Consulting: Who Knew?

I just returned from the annual meeting of the American Society of Trial Consultants (ASTC) in Chicago, (where tornadoes threatened to tear the roof off the hotel). While our organization has the sort of committees you might expect (professional visibility, membership, etc.) it also has a committee devoted to the provision of pro bono trial consulting services to indigent litigants.

While we have long kept track of those consultants willing to provide pro bono service, (so noted in members’ online profiles on the ASTC website), the committee has really started to cook over the past year. Since most attorneys don’t even know that there are trial consultants willing to work for free (or reduced rates), I thought it might be helpful to outline what this committee has been up to and what are its plans moving forward.

Largely through the efforts of Cynthia Cohen in Los Angeles and Alison Bennett in Dallas, two regional teams have been formed to assist attorneys working pro bono in those two metropolitan areas. These teams include jury consultants, litigation graphics specialists and focus group facility managers, so help is available for virtually any kind of case.

The two regional team leaders have been hard at work building connections between ASTC and the agencies that coordinate pro bono legal services in their areas. Cynthia and Alison have met with dozens of lawyers, legal aid coordinators, law professors and clinic directors over the past year. The response has been a resounding, “Wow!” as attorneys are surprised and delighted to learn that help can be available for their cases.

In the coming year, the ASTC Pro Bono Committee (of which I am now a member) will be looking to advance our visibility to the legal community. We want to make sure that those lawyers who need us know that we’re here. We plan to establish a clearinghouse for cases, located on the ASTC website, to match lawyers in need with consultants in a position to help.
Given the dramatic early success of the Dallas and Los Angeles teams, we also hope to establish pro bono teams in other regions of the country. We don’t have nearly the number of consultants in New England as they have in L.A. or Dallas, but I hope to get a Boston-based pro bono team up and running as soon as possible. Fortunately, much of a trial consultant’s work can be done at a distance, so it won’t be essential to have all team members nearby.

We also plan to assemble a comprehensive set of materials that our members can use to make presentations to lawyers groups about our pro bono initiative. So, if you think that your group would like to learn more about what trial consultants can do for you, please let us know.

This push in pro bono activity is a work in progress, but you don’t have to wait for us to get everything up and running to make use of our resources. Do you have a case that could really benefit from some trial consulting? Do you need advice about jury selection strategies? Are you struggling to put together materials to support your motions for a supplemental juror questionnaire or attorney conducted voir dire? Could you really use a professionally produced timeline to help you argue your case to the jury? Contact us now. We’ll help if we can.

You can reach the webpage of the Pro Bono Committee of the ASTC here. Or, feel free to contact me directly at Schwartz@eps-consulting.com .

Judge in Neil Entwistle trial has her head in the sand

Neil Entwistle is on trial for the murder of his wife and child. The details are quite sordid and appalling and not particularly relevant to this post.

This case has generated large-scale media attention, in Massachusetts, the rest of the US, and in England, Mr. Entwistle's home country. It is rather standard by now for the defendant in a case of this magnitude to use a trial consultant to help identify potential biased jurors. The primary concern is the saturation of the jury pool with pretrial publicity, especially that which is prejudicial to the defendant.

Massachusetts has one of the most liberal statutes with respect to the availability of public funds with which indigent defendants can hire experts. The language of the statute reflects the basic premise that if a paying defendant would reasonably hire such an expert, the indigent defendant should be able to, as well. Unfortunately, the statute is rarely interpreted as liberally as it appears on its face. So far as I know, no defendant has ever been awarded public funds to hire a jury consultant.

Judge Diane Kottmyer flatly refused requests by Entwistle's attorneys for money to pay for a trial consultant in this case. Her rationale was that it had never been done before, so she didn't have to do it now. She never addressed the actual merits of affording Entwistle this procedural protection in a case so prominent in the public eye. Judge Kottmyer assured counsel that she could handle the issue of pretrial publicity by issuing the jury proper instructions to disregard anything they might have heard, read or seen about the case in advance. Alas, the judge's assertion here is simply ignorant. Every single study that has ever been published about the effects of pretrial publicity has concluded that such limiting instructions are completely useless.

Judge Kottmyer similarly refused motions for attorney conducted vior dire, sequestered voir dire, a change of venue and even an extensive supplemental juror questionnaire. After allowing the lawyers to submit some questions for a questionnaire, the judge decided that she would write her own, allowing no input from either counsel.

Judge Kottmyer's mindset is a relic of a time when we didn't actually know anything about jury behavior. She believes that the best way to learn if a potential juror might be biased is to ask her, "Will you be biased?" Research into the effects of pretrial publicity show that those would-be jurors who admit to having been exposed to pre-trial publicity, but assert that they can be fair nonetheless, are actually MORE LIKELY to be biased against the defendant than those who admitted that they might have trouble being completely objective. That is, the question sorts the potential jurors IN EXACTLY THE OPPOSITE MANNER AS DESIRED. By insisting on employing antiquated procedures for jury selection, Judge Kottmyer has pretty much guaranteed that Mr. Entwistle will not receive a fair trial.

Many people will be unsympathetic to these objections, on the grounds that Mr. Entwistle is almost certainly guilty of killing his wife and daughter. Remember, however, that the question of whether he killed them is only the first facing the jury. They mush then make difficult judgments about his state of mind at the time, his level of premeditation, and whether any mercy would be appropriate in his circumstances. These factors will translate into a particular verdict, be it first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter. The jury in this case actually wields an enormous amount of discretion and Judge Kottmyer does a great disservice to the Commonwealth by placing this responsibility in the hands of jurors predisposed to view Mr. Entwistle most harshly.

I don't know what the correct verdict is in this case. I only know that I don't have much confidence in a jury so selected to find it.

Fantasy Baseball Aficionados Hit a Home Run at U.S. Supreme Court

OK. I'll admit it. I play Rotisserie Baseball. I have for more than a dozen years. My friends and I play for small stakes. It's all about pride. For those who are uninitiated, Fantasy Sports (of which Rotisserie Baseball is an example) involve participants assembling portfolios of athletes from real teams, either through a draft or auction (with salary cap). Various stats are assembled for each player and a participant's portfolio is evaluated in terms of how well his players perform.

In the olden days, it was extremely tedious to keep track of a league's standings, because one had to assemble and calculate the stats by hand, usually from USA Today or another reliable publication. The internet changed all that. Services sprung up all over the place to calculate stats for leagues at a relatively modest cost. For instance, our league pays about $10 per team for a year's worth of stats. The websites are truly remarkable. The inputting of rosters and transactions is simple and the array of stats one can peruse and customize is staggering.

This has become big business. So big, in fact, that Major League Baseball decided they didn't want anyone to be in this business without cutting them in on the profits. That's right, MLB sued on the grounds that the league held exclusive rights not only to their players, merchandise and broadcasts, but also their players' statistics, names and likenesses, as well. So, even though any guy with a calculator could comb through the paper and assemble his own stats, he wasn't allowed to pay someone to do it for him. At least, that was the position staked out by Major League Baseball.

A bunch of stats companies caved and started paying a licensing fee to MLB. A few, however, refused and took MLB to court. Judges at all levels refused to grant ownership of stats to MLB, contending that they were squarely in the public domain. Basically, you can't own history. This was clearly the right call, and this week, the Supreme Court of the United States refused to hear the case, leaving the appeals court ruling intact. MLB lost and all us nerdy fantasy sports geeks can rejoice.

Here's why I think this was a no-brainer. It's basically a slippery slope argument.

If a professional sports league were to own the stats of its games, it would, essentially, own also the exclusive use of the results of such games. As such, sports books would immediately become illegal, without paying a franchising fee. A casino could not collect or pay on a wager which relied on the outcome of a sporting event. A radio or television station could not report the results of the local teams' games because they would not own the rights to those results. Similarly, newspapers and website would have no right to publish results.

A bar could not host a victory party because it would be predicated on a victory to which it had no rights.

It would be very difficult, legally, to limit the results to sporting events. Could Angelina Jolie prevent a newspaper from publishing reports of her most recent adoption without paying her a licensing fee? Could a movie studio preclude a theater chain from reporting box office receipts for the studio's films?

Thank goodness this lawsuit is history! (Just don't try reporting on it without paying a licensing fee to the U.S. Supreme Court).

Why the Democrats (even Barack) should hope that Hillary Stays in the race

Many Republicans breathed a sigh of relief when Mitt Romney dropped out of the race for the party’s Presidential nomination, paving the way for John McCain to be the nominee. The conventional wisdom suggests that this move afforded McCain the opportunity to consolidate his support among the party faithful, while getting a head start actually running for President. By extension then, one might conclude that the Democratic party would benefit from Hillary Clinton abandoning her bid in favor of Barack Obama. I’m not so sure that this would actually be in the Democratic Party’s best interests.

Consider a lesson from the world of jury trials. Defense attorneys, whose clients face the prospect of punitive damages, often request that their trials be bifurcated, with the jury first hearing all evidence regarding liability and compensatory damages. In the event that the plaintiff prevails and the jury decides that punitive damages might be warranted, there is a second trial concerning how large the punitive award should be. Several studies have explored the extent to which defendants benefit from this bifurcation. The first result that we see is that juries find defendants liable less often and award smaller compensatory awards when the issue of punitive damages is kept out of the initial trial. Somewhat surprisingly, however, when juries do find that punitive damages are warranted, bifurcation increases the average size of such an award. What’s going on here?

Psychologists attribute this result to the avoidance of cognitive dissonance. When a juror is asked to calculate a punitive award in a bifurcated trial, she feels a sense of responsibility for the second phase of the trial having taken place. “I voted to hold this hearing on punitive damages so I must really believe that the defendant behaved very badly. I should really choose an award amount large enough to justify all this effort.” The juror feels uncomfortable if her prior action is in conflict with her current beliefs (cognitive dissonance), That is, as the theory goes, the juror adjusts her internal belief about the reprehensibility of the defendant’s conduct to match her decision to move to the punitive damages phase of the trial. As a result, the award goes up.

So, what does this have to do with the Democratic Presidential primaries? Voters have turned out in unprecedented numbers to vote in the democratic primaries this year. Even when the Republican nomination was still very much in doubt, democratic turnout dwarfed that on the Republican side. The main reason seems to be that independents flocked to the Democratic primaries. They did so mostly for reasons that are encouraging to the Democratic hopefuls. These independents actually liked, and wanted to vote for, a particular Democratic candidate.

This is where cognitive dissonance works to the Democrats’ advantage. What will all these primary voters do in the general election? Psychologists would suggest that the very act of voting for a particular candidate in the primary should increase the likelihood of voting for that candidate in the general election. That is, to avoid cognitive dissonance, a person who “voted for Clinton” becomes a “Clinton voter.” All of this, of course, takes place at the subconscious level and most people would vehemently deny that they could be affected in such ways. Such an affect is magnified if a person is called upon to defend her prior act. So, if a man is asked to defend his decision to vote for Obama in the primary, he will come up with reasons why Obama is the best thing since sliced bread. In doing so, he is actually reinforcing his own commitment to Obama’s candidacy.

By this logic, the Democratic Party will gain votes in the general election by securing as many votes as possible for their candidates in the primaries. So, how do the Democrats maximize the number of people voting in their primaries? Keep the race competitive. The longer that Clinton and Obama are both viable candidates, the larger will be turnout in the Democratic primaries. If lots of people turn out to vote for Obama over Clinton, many of them will also turn out to vote for him over McCain. So, Democrats should hope that Hillary wins Texas and Ohio next week.

This theory is hardly airtight. Not all primary voters will stick with the same candidate in the general election. In addition, approximately half of Democratic primary voters will disappointed about who received the nomination. How will those people vote in the general election? Polls this year suggest that Clinton supporters would generally be quite content to vote for Obama in the general election. So, if Obama wins the nomination after a close contest, the Democrats would seem to be in great shape. The landscape is more mixed should Clinton win the nomination. Her recent attacks on Obama’s leadership potential have certainly upset many of his supporters. While Bill Clinton was always well-supported by the African American community, it is not clear that Hillary enjoys similar support. If Obama were to give her a strong endorsement, I think that almost all Democratic voters would vote for her.

On balance, I think that Democrats are very enthusiastic about their choices this year. As such, the greater the number of independents and centrist voters who are brought into the Democratic primaries, the better the chance that a Democrat will be sitting in the Oval Office a year from now.

Online Mock Trials: Real bargain or just bargain basement?

The last couple of years has seen a proliferation of online mock trial tools. The creators of these products vary with respect to how hard they push their products as equal or superior to traditional techniques for conducting jury research. In this issue of the Jury Box, I will offer my own view on the utility of online mock jury tools. Along the way, I will outline what I believe to be the advantages and disadvantages of conducting jury research online. A sizable chunk of this review will be devoted to evaluating the sources of cost savings associated with online mock trials. The lowest cost option is not always the best option.

Two types of businesses have set up online mock trial programs. Several have been developed by entrepreneurs (or market research firms), hoping to market their products directly to lawyers. Such a company typically holds up its product as a low cost alternative to hiring a jury consultant to conduct a live mock trial. Perhaps motivated by perceived competition, several trial consulting firms have developed their own mock trial protocols.

An explanation of how these programs typically work reveals that the term “online mock trial” is really a misnomer. Here’s how they work:

Nuts and Bolts
The attorney reduces the case presentation to a series of files that can be uploaded to a website. Most sites allow the uploading of text, audio, images and video in fairly standard file formats. Typically, a premium is charged for loading high bandwidth material, like audio or video. Some are better than others at connecting exhibits to the corresponding presentation or testimony. While the online service might provide a basic pre-study questionnaire and post-study response form, it is usually the responsibility of the client to provide a list of case-specific questions to be answered by each respondent.
Each online site promises to recruit subjects to participate in your study. They use a variety of recruitment techniques, which is something to which you should pay close attention. I will return to this below. The more subjects you want to use, the more you will have to pay for both recruitment and participation. Many sites allow the attorney to set the participation inducement, understanding, of course, that recruitment will be trickier the less is offered in payment.

Once the materials are loaded and subjects have been recruited, the participants are given a password to “view” the case and provide feedback. Most sites, especially the low cost ones, allow respondents to log on and go through the case whenever they want, from the comfort of their own homes (or offices!). Some sites offer you the option of having all the subjects review the case at the same time and “deliberate” in the form of text chat. This lack of face-to-face interaction is one major casualty of conducting jury research in this way.

Since the respondents are all answering questions online, it is fairly straightforward to collect and collate the data. Reports are generated automatically from collected data and the client can download them at her leisure. Only the programs run by the trial consulting companies offer to have a jury expert interpret the data and write a corresponding report.

Running additional trials, with or without tweaking of the presentation materials, is straightforward since everything has already been uploaded.

So, what are you buying?
As you can tell from this brief description, there really is no way to simulate an entire trial using this technology. It lacks much of the verisimilitude that makes a true mock trial so valuable. Rather, the technology is best employed for testing case themes or evaluating juror reaction to particular arguments, testimony or evidence. As such, these companies are really offering online focus group research, not online mock trials. Perhaps this is a semantic point, but you should be aware in advance what these programs can and can’t provide in terms of jury research.

As I move into an evaluation of online mock trials, let me be clear about one thing. Most of these programs are very well crafted. The designers have been quite thoughtful and thorough and most of the programming is well done.

Any weaknesses are not due to lack of planning or effort. Rather, they all suffer from a fundamental shortcoming in the enterprise. How does one simulate a highly personal, interactive and collaborative process with an anonymous, passive and solitary methodology? The answer, of course, is that you can’t. These online programs can help lawyers learn about juror reaction to some aspects of trial, but they can’t replicate jury reaction very well at all. This fundamental distinction permeates much of what I lay out below.

Is it really such a bargain?
One of the biggest selling points for these online jury research programs is the profound cost savings. Many tell you that you can conduct your mock trial at one-tenth the cost of a traditional study. Let’s investigate the sources of the cost savings and what sacrifices accompany them.

The online jury research company charges you nothing (or very little) to load your presentation, pre-study questionnaire, exhibits and verdict forms to its website. These materials, however, do not materialize out of thin air. When a trial consultant quotes you a price for a focus group, it typically includes provisions for the consultant to assemble all these materials and help you put them in the proper form for presentation. Someone has to do this preparatory work regardless of whether the study is live or online, and it’s going to cost your client some money, paid either to you or to the consultant you hire to help you out. If you choose to prepare all the materials yourself, you lose all the expertise that a trial consultant can provide. The more you skimp on this preparation, the less reliable will be your results. As with most things, you only get out of it what you're willing to put into it.

Online companies typically charge less for participant recruitment and pay subjects less than those who recruit for live studies. The cost savings comes from two sources. First, it is probably easier to convince someone to spend a couple of hours on their laptop than to drive across town to participate in person. This is especially true for non-collaborative online studies, where each subject can log on at her leisure. Second, given the convenience, one doesn’t have to pay online participants as large an inducement.

The vast majority of what a focus group facility charges a consultant is dedicated to subject recruitment and compensation. Please be aware that not all subjects are created equal. Reputable recruiters use random dialing techniques or large proprietary subject databases to insure that the sample is representative of the venue requested. If you go on Craig’s List, MySpace, or dozens of ad posting sites, you can find hundreds of ads seeking online mock jurors. The online mock trial companies typically save time and money by recruiting in this way. Respondents to such ads hardly comprise a random sample of the community, and you run the risk of drawing a jury full of professional mock jurors. As the Econ folks say, “You get what you pay for.”

While you may be able to hire online participants more cheaply, you are definitely buying an inferior product. There is no way to monitor how attentively each respondent is reviewing your case. In some circumstances, it may be impossible to tell whether the subject reads your case, at all. You can’t examine the expression on each subject’s face as she learns about your case. You can’t hear the audible gasp when a particularly damning piece of testimony comes out. Finally, and most importantly, you cannot watch the jurors deliberate – because they don’t. For certain kinds of questions – most notably damages – a jury’s evaluation is much more than the sum of those of its jurors. Deliberation is an organic, collective experience. It is expensive to recruit for a real focus group precisely for the reasons that make it most valuable: It’s hard to get a sizable representative group of people in the same place at the same time so that you can watch them evaluate and deliberate about your case.

When your online jury study has been completed, you get a detailed report of exactly how each subject responded to each question asked. Most sites even draw fancy pie charts and allow you to view the data broken down by age, gender, verdict choice and the like. But what are you supposed to do with all this raw information? For a trial consultant, actually getting the study completed has only started the process. We really earn our money by interpreting the results. We help you figure out what the results really mean and how to implement what you’ve learned when choosing litigation strategies. I suspect that if you hire a full service trial consulting company to conduct an online focus group, using its proprietary technology, it will represent only a modest cost savings over a simple live study.

The Verdict…
So, what’s the bottom line? Well, online jury research can be an economical way to learn how more-or-less ordinary people react to particular aspects of your case. Remember, however, that the value of hiring professional trial consultants and recruiters lies in the expertise they bring to the table. All of this is lost if you choose to go it alone, either online or otherwise. These online services offer a potentially useful tool, but make sure to hire someone who really knows how to use it.

Shop before you buy. Ask explicitly about how the service recruits subjects, how they monitor attentiveness, how subjects are directed to review exhibits and what form of deliberation is available, if any. Run the tutorials on several sites to test for ease of use.

As the technology advances, however, we will be in a better position to simulate a real focus group online. Every MacIntosh already ships with a built-in camera and many PCs are similarly equipped. If teenagers can talk trash while playing World of Warcraft online, we can’t be far from being able to watch and talk to online respondents as they review a case and deliberate among themselves. The technology for such videoconferenced focus groups already exists, but requiring respondents to own compatible technology would further skew the distribution of eligible participants.

Holdout Juror Locks himself in bathroom to avoid deliberating

So, it's come to this, has it?

Fifty-year-old Ismael Nieves was on trial (for the second time) for failing to register as a sex offender, following a conviction for raping two girls in the early 1980s. The jury in the case had been deliberating for a couple of days when one juror left the jury room for a bathroom break. 

He never came back.

The other jurors found him locked in the bathroom, refusing to come out because he did not want to continue deliberating. It seems that the jury was split 11-1 for conviction and the lone holdout didn't want to talk about it any more. So, he took his vote and went home -- after a fashion.

Superior Court Judge Mary-Lou Rup had no choice but to declare a mistrial. When the jury returned to the courtroom to be officially dismissed, only one juror was smiling. Guess who...

This case provides a nice example of why I think the unanimity requirement is so misguided. We know that many juries eventually split 11-1 or 10-2 (almost always in favor of conviction in criminal cases, because prosecutors only choose to try strong cases). Such a split results in one or more of the following:

1) The majority badgers the holdouts. Since the lone juror (or pair) have no chance of convincing all the other jurors to switch their votes (Henry Fonda notwithstanding), the only question is whether they will cave. This third-degree can contain everything from "Don't you want to go home and see your family?" to "Don't be such a stupid idiot!" The "deliberations" can go on a long time, but this isn't what Blackstone had in mind when extolling the virtues of the American jury. Remember that not all deliberation is good deliberation.

2) The holdouts just give in. It might take an hour, it might take a week, but most of them do. So, a juror is voting guilty even though she is not convinced beyond a reasonable doubt. The empirical studies I have examined on the subject seem to support my suspicion is many, if not most, "unanimous" criminal verdicts are not actually the result of unanimous consensus among the jurors. That is, the "legitimacy" of criminal verdicts that supposedly flows from the unanimous voice of the jury is a sham.

3) The jury compromises. Tired of trying to get the holdouts to "see reason," a deal is struck. Everyone agrees to convict the defendant of only some of the charges, or of a lesser included offense. Maybe the jury agrees to convict one codefendant but not the other. This "justice" can result in a verdict that is accepted by all the jurors, but supported by none of them. The Supreme Court has declared that compromise verdicts are contrary to the law but a necessary concession to the functioning of the criminal jury system.

4) The jury hangs. This results in possibly a deal with the defendant where he pleads guilty to a lesser charge (see compromise above) or possibly a retrial. A retrial costs everyone a lot of unnecessary time and money. Meanwhile, the defendant is usually stuck behind bars awaiting a new trial. Suppose the the defendant is subsequently convicted. While the second jury might be unanimous, it is still true that at least one juror who heard his case was not convinced of his guilt beyond a reasonable doubt. So, how legitimate is such a verdict? Again, unanimity is an illusion. Perhaps the first jury hung because it was a hard case. Maybe we should be happy that they couldn't all agree. There is no reason to believe that the jury that reached a unanimous verdict (but perhaps not real consensus) was any more representative of the population, was any more attentive to the facts, deliberated any more conscientiously or voted any more sincerely than the jury that hung. All we know about them was that they all voted the same way. 

I have written at length elsewhere about my views on the unanimity requirement. See Edward P. Schwartz and Warren F. Schwartz, "And So Say Some of Us... What to do when Jurors Disagree," (9 S. Cal. Interdisc. Law Jnl. 429, 2000). I won't belabor the point here, but allow me to briefly outline a few items that few people ever consider on the subject.

1) Oregon (10-2) and Louisiana (9-3) have long had non-unanimous verdicts in criminal cases and there is no evidence that their juries get verdicts "wrong" any more often than juries in other states. There have been no riots in the streets of Portland or Baton Rouge over non-unanimous convictions. Based on a study from the 1990s, the hung jury rate in Oregon was roughly 1/30th that of California (0.5% versus 15%).

2) England, from whom we inherited the common law, adversarial trial system, did away with the unanimity requirement decades ago. No riots in London, either (except in songs by The Clash). Most of the states of Australia use some form of qualified majority now, too. All of the European countries that use some form of lay jurors require something other than unanimity for conviction (usually something between simple majority and two-thirds).

3) Eliminating unanimity would allow us to also eliminate peremptory challenges, which let lawyers strike a certain number of jurors for any reason they choose (except ostensibly for race or gender, but don't get me started on that one!). If no one juror can unilaterally veto a verdict, it won't be critical to eliminate from the jury people with extreme (but not illegitimate) views. As such, jury deliberations can be more inclusive, more complete, and more open. I sincerely believe that it is better to let a person with unpopular views sit on a jury, speak her piece and probably get outvoted than to prevent her from ever sitting on a jury at all.

Well, I have already gone on too long for a blog entry. As you can tell, this is a topic about which I have thought a lot and I deeply care about the right answer. Perhaps a post on the internet can spur the lively debate that my academic writing never did!