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Unreliability of Eyewitness Memory & How to Counteract It

If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight.  And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable.  I want to briefly discuss the research and then will talk about implications for your case.

Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others.  She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign.  Half of the participants later received a suggestion that the traffic sign was a yield sign.  When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event.  I am certainly not suggesting that this happens every time –  there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion). 

Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy.  This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.

Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory.  But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.

So what can you do about it?  You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup).  But consider informing your jurors of these psychological phenomenon.  Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.

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Watch for Inconsistencies

In my last post, I talked about trusting jurors.  The flip side to that is that you need to be trustworthy.  There are many elements that go into being trustworthy, such as:

  • How you present yourself in court
  • How you treat witnesses and court staff
  • How honest you are in voir dire (and how little you use voir dire as a means to persuade rather than gather information)
  • How much you ask for in damages and what you ask for (be reasonable!)
  • How consistent your story is

There are many other factors but I want to briefly talk about the last element.   Pennington and Hastie are credited with developing what is now termed the “Story Model” of jury decision-making.  There are several elements that go into making a good story and as jurors listen to a case, they construct several stories.  One or two win out in the end.  One of the elements of a winning story is consistency. 

If jurors sense any inconsistency in your story, you lose credibility.  Be aware of inconsistencies in testimony as well as issues you may not always be on the lookout for.  For example, if you are claiming back injuries and ongoing pain, does your client shift in the chair during trial?  If your client has neck pain and loss of mobility, is he/she still driving?  Jurors will not only spot the inconsistency but will be angry that your client is an unsafe driver who cannot look where he/she is going and therefore is putting that juror in potential danger.  Will jurors hear about a settlement with one defendant and yet your client claims to have no money to get treatment?  Jurors will assume the money from the settlement could have gone to treatment and often then surmise that your client is not really motivated to get better. 

Often you will need an outsider’s eye to spot these things.  You may be too close to the case.  If you don’t have the budget for a focus group, run your case by some non-legal friends or strangers.  See what questions they have and what troubles them.  The less inconsistencies you have, the more jurors will be able to trust you and your story.

 

 

 

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Why Should Jurors Give Money to Your Client?

Jurors are skeptical of giving money to anyone.  It seems like a handout to a stranger.  And worse, jurors do not get to track where the money goes afterward.  There are a lot of factors that go into making jurors want to give your client money, but I want to focus right now on your client’s mental state and demeanor.  Jurors do not want to give to hopeless causes.

Just last week, I ran a focus group on a case with a woman who had severe neck pain following a car wreck.  Liability was admitted.  The plaintiff is on morphine multiple times per day.  But instead of the morphine showing jurors how much pain she is in, jurors focused on “giving money to someone to be doped up her whole life.”  The problem was that the plaintiff did not appear to be doing anything to make her situation better.  She claimed to continue to seek medical attention but could not explain what kind.  She looked through a list of 200 jobs provided by her SSDI attorney but decided she was not able to do any of them.  And to top it off, she’s a smoker.  Jurors immediately figured if she isn’t going to help herself and try to get off the drugs, stop smoking, and try to find a job to take her mind off the pain, they were not willing to give her any money.

It’s human nature.  We all want to help causes that provide hope.  It makes us seem like our money is doing something good and worthwhile.  Make sure your client presents as hopeful.  If they cannot get a job or get out of the house, try to get them to do online surveys for money or look for bookkeeping jobs they can do from home.  Have them seek therapy for the changes they are dealing with as a way to overcome any depression (jurors often fault plaintiffs for not seeking mental health help to cope with depression even if depression is never mentioned).  Get them to read some self-help books instead of watching TV so they can tell the jury about their attempts to better themselves.  See if they can donate their time to a cause that does not affect their pain.  Jurors love to see others trying to help people and put their own pain aside.  Finally, either get your client to stop smoking (pot or cigarettes!) or at the very least not mention it at trial or smoke at the courthouse or outside their homes during the trial.

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Protect Your Case from Twitter

There has been much talk about the use of blogs for monitoring public opinion and shaping trial strategy during the Casey Anthony trial.  While that may be a useful strategy for high profile cases, you may wonder what impact the internet will have in your everyday run of the mill case.  It has a very real impact, just in a different way.

The dangers of the internet are becoming so pervasive that it is now imperative that you understand the importance of doing internet research.  Jurors are internet-savvy (even some of the older ones) and you can almost guarantee that at least one of your jurors will be going home researching every aspect of your case online.

If that one juror finds something harmful to your case, they will bring it up in deliberations and impact the rest of the jurors. 

Jurors will research you, your firm, your experts, your client, and even medical terms or other issues related to your case.  They will go on facebook, myspace, google, twitter, etc.  They will research arguments in your case – whether a 5mph collision can cause brain damage.  Whether brain damage can occur  without a concussion.  Whether there really is a policy that doctors have to do a differential diagnosis and rule out the most dangerous possibility first.  Guaranteed, they will find articles and websites that dispute your claims and because the juror found them online, they think the sources are neutral and therefore more trustworthy than your experts.

What they find on their own online will trump your evidence. 

So what do you do about it?  You need to know what is out there.  You cannot undermine what you do not know.   Either hire someone skilled at internet research or find someone in your office who is young and can dig deep on search engines.  That person needs to set aside multiple hours to research every aspect of your case and every person involved.  You need to know what is out there so that you can mention it during trial.  Know what arguments there are against you and have your experts explain the faults in those arguments so that when jurors come across it, they know why not to believe it.  These days, you can lose a case because of jurors doing due diligence to research on their own.  Your loss may have nothing to do with what goes on in the courtroom.  Recognize this danger and devote time and effort to online research – even before accepting a case.  The costs of avoiding it may be high.

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Defending the Jury System from Casey Anthony Uproar

What did we learn from the Casey Anthony trial?  Lots – and likely lots more once the jurors give their interviews, but for now, here are a few things to consider:

1. Justice does not always have a “TV ending” in that you walk away having the answers you sought and feel a sense of relief.

2. The jurors on this case, whatever they say in their interviews, must have all had strong personalities.  To render a verdict that they know the public and media will persecute them for takes conviction and strength.

3. Do NOT over-promise in your opening.  The one alternate juror who has spoken so far has already mentioned the promise of the prosecution to prove beyond all reasonable doubt how Caylee died.

4. Jury selection is greatly important – as are focus groups.  You may not realize that a fine group of my colleagues were involved in this case starting 2.5 years ago, often doing work pro bono, running focus groups every day and shadow juries.  I believe the defense verdict speaks to their tireless work.

Learning aside, even if you are surprised, angry, or skeptical of the verdict, it is important not to blame the jurors.  What we all saw on television is not what the jurors saw and vice-versa.  While we were watching interposed images of Caylee’s smiling face with her rotting skull, jurors were sitting in uncomfortable chairs looking at blank documents or simply listening to testimony.  Do not underestimate the unconscious power of the media to sway the public.  The jurors were removed from all of that.  Further, the jurors did not say that Casey was innocent – only that there was not enough evidence to convict her.  We can disagree with the verdict, but please respect the jurors.  They gave up a lot and it is very rare to find jurors who simply do not care about doing a good job.  Remember that the media trial we watched is not the same trial the jurors participated in.

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“12 Angry Men” In Real Life

Sometimes movies have good lessons.  “12 Angry Men” had a few.  Below is a short snippet from a 9th Circuit Court of Appeals order.  I will also provide the link to the full opinion but wanted to briefly mention a couple of lessons from the below-referenced case:

OPINION

REINHARDT, Circuit Judge:

Consider two scenes:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.

Juror #10: I want to ask you something: do you believe his story?

Juror #8: I don’t know whether I believe it or not — maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two-thirds of the jurors have tried to persuade— have actively tried to persuade . . . him that his current view is incorrect.

Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . .

Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict. Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

[Here is a link to the full opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf]

I have two comments, one relating to the opinion, and one relating to a comment of a quoted juror.  Regarding the opinion itself, I give the judge credit for understanding that holdout jurors are a fundamental part of our legal system.  Expecting that all jurors will come to a consensus on every case is not only unreasonable but it also implies that all minds think alike – which is the very antithesis to the purpose of having a cross-section of the community. 

Secondly, notice that the juror says, “I wouldn’t want to take anyone’s freedoms away unless I was sure that certain things took place.” [Emphasis added]  This comment is common in both civil and criminal lawsuits when plaintiff’s attorneys or criminal defense attorneys are not clear throughout trial about the burden of proof.  When you try cases, make sure that jurors understand that they do not have to be 100% sure of anything.  Ask in jury selection how sure they would have to be to make a decision in this case – 80%? 70%?  What is their line.  In civil cases, you can get challenges for cause based upon these answers.  Make sure you reiterate the burden in opening, through witnesses, and in closing.  Jurors cannot think backwards, so if you only hit on the burden once in voir dire/opening, they forget it by the time you mention it again in closing and by that time, they have analyzed all of the trial evidence through a lens of “am I sure?”  Particularly in civil cases, preponderance is one of your best weapons.  Don’t forget to use it!

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The Empty Chair

Time and time again, it comes up in focus groups – why aren’t they suing the doctor as well as the hospital?  Why are they just suing the company but not the driver?  These comments are most often followed by some version of “they’re going after the deep pockets.  They’re after the big money.”  These are not good comments for you – it means that jurors are seeing you as the greedy, manipulative trial lawyer who goes after any entity that has money to pay regardless of who is at fault.  Jurors often want to blame the party that belongs in the empty chair.

In some cases, this is unavoidable.  If you have settled with one party and not the other, there is no way to bring the settled party into court just to fill the empty seat.  There are, however, some circumstances in which you can and should name an additional party to avoid having an empty chair.  For example, if you think the defense is going to name a non-party that will then be on the verdict form, address that party head-on.  Add them to the lawsuit.  If jurors are going to hear about them and be able to allocate fault to them regardless, better to have it come from you so that they see you as asking for relief from all parties who are responsible rather than simply the ones who can pay.  Once you have added them to the lawsuit, you can strategize on how to keep as much liability as possible on the larger entity.  Test various themes and arguments in focus groups to find out how to keep the responsibility where you need it.  Sometimes admitting that another party is at fault for certain acts gains you the trust you need with jurors to then argue to reduce that liability percentage. 

  • For example, you may be able to argue that the doctor is responsible.  He did x, y, and z wrong.  However, the largest harm in this case was caused by the system failures of the hospital – the choices hospital administrators made to violate patient safety rules.  If it were not for those choices, the plaintiff would not be in nearly as bad a condition and because of that, we think the hospital is 90% responsible for the harm. 

This type of argument can shift blame where you need it once you acknowledge the other parties at fault.  If you fail to mention those other parties or you let the defense mention them and put them on the verdict form as non-parties, jurors will be tempted to place even more blame on those non-parties because no one guided them as to how to deal with attribution of liability in this case.

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