Thursday, September 16, 2010

New article looks at juror's decision-making biases

Earlier this month Keene Trial Consulting's Douglas Keene reviewed an article on countering juror's decision making biases by Tarika Daftary-Kapur, Rafaele Dumas and Steven Penrod. The article focused on pre-trial publicity, jury instructions, inadmissible evidence and scientific evidence.

I wanted to focus on jury instructions and inadmissible evidence. The authors point out that a good many jurors are simply confused by the array of instructions they are read by the judge at the end of the trial. The instructions are unwieldy and poorly worded - no matter how much we try to rewrite them in plain English. Of course what else would you expect when a bunch of lawyers get together to try to "simplify" something -- who do you think mangled the language in the first place?

Mr. Keene's "takeway" from the authors' observation is that attorneys should consider introducing flow charts into evidence - thereby giving the jurors what would amount to a decision map. Texas Rule of Evidence 1006 allows for the introduction of summaries, charts or calculations when it is impracticable to introduce the contents of otherwise admissible writings into evidence. The same rule may be used to admit summaries of testimony into evidence.

If nothing else, prepare a flow chart as a demonstrative aid during your closing argument. You can walk the jurors through the decision-making process and leave them with a visual in mind.

The authors also observe that jurors have a hard time disregarding evidence once they have been exposed to it. We all know is damn near impossible to stuff the genie back into the bottle after the fact. Mr. Keene suggests asking the judge for an instruction as to why the evidence was deemed inadmissible. The authors suggest that attorneys think before objecting to certain evidence as their research indicates an increase in guilty verdicts when evidence is ruled inadmissible over cases in which the evidence is allowed in.

While I agree that objecting to something tends to focus the jurors' minds on it, there is a need to make a good record in the event your client wishes to pursue an appeal. To be an effective trial attorney you must think ahead to what an appellate attorney may need if the jury comes back with a one word verdict.

Here's the cite for the article:

Daftary-Kapur, T., Dumas, R. and Penrod, S.D. (2010). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15, 133-154.

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