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ADVANCED JURY RESEARCH
Jan Mills Spaeth, Ph.D. Rosalind R. Greene, J.D.
(520) 297-4131 (866) 505-4131 www.adjuryresearch.com | |
| Advanced Jury Research Newsletter |
Volume 2
November, 2009 |
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Greetings!
HAPPY THANKSGIVING! This is our second quarterly newsletter. It is a fun one, filled with humorous, informative and current legal topics. Please enjoy!
Please let us know if you have questions or issues you would like us to address. Also, let us know when we can be of assistance to you and your clients. We are here for you!
Best Regards, Jan, Rosalind & AJR Staff |
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AJR Updates
** We have an article coming out in the near future in the Arizona Attorney on the effects of twittering and blogging in the Arizona courtrooms, including the steps that judges are taking to deal with this increasingly problematic phenomena. Our short article on this topic in our August newsletter received much interest from readers, and prompted a more extensive piece. Thanks to our readers for the positive feedback!
** Our new article on The Vanishing Jury Trial will also be published in the Arizona Attorney this spring. It features interviews with well known, experienced Arizona trial attorneys.
** Work is continuing on the second set of DVDs for The American Bar Association. This 4 hour CLE on witness preparation includes the perspective of experienced, well-known trial consultants, and will be available through the ABA this spring. The first set of DVDs (available now) is for witnesses to watch before testifying at depositions or trials. Please see our website for more information.
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TV Creates
Distorted Perceptions
New research just released indicates that people who watch forensic and crime dramas such as CSI, Law & Order, and Cold Case have a distored view of the American criminal justice system.
Glen Sparks, Professor of Communication at Purdue University, explains that regular viewers "are more likely to overestimate the frequency of serious crimes, misperceive important facts about crime, and misjudge the number of workers in the judicial system."
For example, regular viewers estimated 2.5 times as many deaths due to murder than non-viewers, and perceived more serious crimes in the world than actually exist. Also, although law enforcement officers and attorneys comprise less than 1% of the workforce, viewers of these TV shows estimated it closer to 18%.
According to Sparks, "This kind of TV viewing can lead to 'mean world syndrome,' where people start to think about the world as a scary place. Some people develop a fear of victimization, and this belief can affect their feelings of comfort and security." added Sparks.
Sparks plans to conduct further research to determine how the attitudes and beliefs formed when watching crime shows translates into actual court proceedings.
It could certainly be reasonable to conclude that jurors who develop fears of victimization, and perceive more murders and serious crimes than actually exist, could be more prone to conviction. Thus, there could be a direct correlation between TV viewing of crime shows and convictions in criminal cases.
We will keep our readers posted on future research findings. In the meantime, be sure to ask prospective jurors about their favorite TV shows in voir dire and on jury questionnaires!
www.sciencedaily.com/releases
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PTSD Due To Iraqui Combat a Murder Defense?
The Oregonian recently reported on the Grant County jury's verdict regarding murder charges against former Iraqui veteran Jessie Bratcher. He had admitted shooting Fernando Ceja Medina 10 times on August 16, 2008, for allegedly raping his fiance, Celena Davis, and possibly impregnating her. She admitted to Jessie that she did not know if her baby was his or Medina's.
For the first time in an Oregan court, and one of the first cases in the country, the jury determined whether post traumatic stress from serving in Iraq was an adequate defense to murder.
While in Iraq, Jessie's close friend was killed in an accident caused by an Iraqui truck while Jessie watched. Weeks later, he suffered a head injury due to a bombing. He began suffeing depression, anxiety and mood swings. He was employed in Iraq for 11 months, and experienced continued stress.
Upon his return to Oregon, he was eventually found to be 70% disabled by the VA due to PTSD. Jessie continued to suffer flashbacks, depression and anger. He was 25 years old at the time of the shooting.
On October 30th, the Grant County jury found Jessie Bratcher guilty by reason of insanity due to PTSD. He will be sentenced in December.
Jurors were very concerned with Jessie's welfare. One juror stated, "We are convinced Bratcher was changed. He became what they wanted him to be". Another stated "You wonder what you're asking people to do" in regard to serving in Iraq. A third juror stated "I could live with myself because I knew this boy needed help."
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By It's Cover"
We have all been admonished to "not judge a book by its cover". However, new research by psychologists Laura Naumann of Sonoma State University and Sam Gosling of The University of Texas at Austin suggest that the cover is quite telling, and we are better advised to heed the old adage that "you never get a second chance at making a first impression."
Their work indicates that the early conclusions we make based upon first impressions are surprisingly accurate. First impression judgments were accurate for 9 of the 10 personality traits examined, including extraversion, agreeableness, conscientiousness, emotional stability, openness, likability, self-esteem, lonliness, religiosity and political orientation.
"We have long known that people jump to conclusions about others on the basis of very little information," says Gosling, "but what's striking about these findings is how many of the impressions have a kernel of truth to them..."
Moreover, armed with such knowledge, people can alter their appearance to shape others' impressions of them. For example, "extraverts smile more, stand in energetic and less tense ways, and look healthy, neat and stylish. People who are more open to experience are less likely to have a healthy, neat appearance, but are more likely to have a distinctive style of dress."
The implications for litigation attorneys are double edged. Those skilled at reading people have a distinct advantage in jury selection, interviews, witness preparation, cross-examination and negotiations.
Some studies show a neuro-biological explanation for how experienced-based knowledge is created. "We can never read or calculate our way to all the knowledge and abilities we need in our professional life. Practical experience is indispensable and needs to be revaluated."
Next quarter will feature tips from I Can Read You Like A Book, by G. Hartley and M. Karnich. After all, when judging a book by its cover, it helps to read the book!
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Jurors Deliberate On
"Unbearable" Disturbance
According to the San Francisco Chronicle, on November 2nd, a San Francisco jury reached a verdict on whether Kenneth Herron, 21, was guilty of unlawfully disturbing 2 bears when he entered the city zoo's grizzly grotto on September 26th.
Prior to the acquittal, Superior Court Judge Wallace Douglass threw out a misdemeanor trespassing charge, ruling that the short stay in the grotto did not meet the legal definition of trying to "occupy" the enclosure.
The defense claimed that Herron's mental illness caused him to hear voices telling him to rescue a nonexistent girl in distress in the grotto.
The jurors reported that they had extensive discussions over the legal definition of 'disturbance'. In the end, the panel determined that "because the bear didn't immediately get up when he went in, it wasn't 'disturbing' to the bear". Simple enough. The jury just did not find that this was an "unbearable" disturbance!
Someone, however, did find Herron unbearable. He is still being sought on a domestic violence incident. He appears to have a pattern of disturbing somebody!
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Question: How do you prep a talkative witness who rambles instead of answering questions directly?
If you don't have a sock handy, use a stopwatch or an hourglass. Literally.
Your rambling witness can be trained to answer concisely when watching the clock. This will teach the talkative witness to shrink responses under pressure and stress, stress that will also occur in the deposition or courtroom.
Some answers can be done in 5 seconds or less, some 10. Few answers need more than 20 seconds. Count out 20 seconds. A lot can be said in this timeframe, and research has shown that jurors can lose interest in longer answers.
Even when a witness has much to say, like an expert, jurors pay more attention when the attorney frequently interjects a question or comment, even if it is something simple like "Please tell us more" or "Can you elaborate?"
In addition, in witness prep I ask witnesses to answer a question in one or two sentences, a short paragraph at the most. Have witnesses visualize this in terms of size. They can then better translate this to their responses.
When asked a "yes" or "no" question, teach talkative witnesses to answer with an affirmative or negative response first if they can before providing an explanation. Otherwise, the explanation can be perceived as evasiveness. Of course if either a "yes" or "no" response is incorrect, the witness needs to politely state this before providing an explanation.
Lastly, videotape the witness in both a rambling state and a concise state so the witness can view the difference. If all else fails, show a videotape of the rambling witness to office staff, get their feedback, and share this with the loquacious witness. This often provides motivation for change!
If you have questions you would like us to address, send them to us!
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Desperate Judge Gives
Candy To Gotti Jurors!
The New York Daily News reported that on November 3rd, desperate Federal Judge Kevin Castel passed out "Twizzlers" (red licorice twists) to jurors on the John A. Gotti Jr. case to occupy their testy mouths and keep them from going for fellow jurors' throats!
The judge described Twizzlers as tremendous tension breakers. "When you have a Twizzler in your mouth, you can't have a serious conversation...they put you in a good mood."
Such were his hopes for this panel. Juror tensions were running high in the 7th week of the 4th federal racketeering prosecution of Gotti. The 3 prior trials resulted in mistrials or hung juries. The animosities among these jurors are causing some to predict another hung jury.
The judge has been attempting to appease the panel. He had just received a letter from one juror about Juror #7's antagonism and foul mouth, and that juror's love of Gotti's attorney (Charles Carnesi). This appeared to be the "final straw" for the judge.
Out came the bucket of 105 individually wrapped, strawberry flavored Twizzlers. This did bring chuckles and smiles from the otherwise sour jurors. Next time I assist in jury selection, I'm going to bring some Snickers bars!
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SHADOW JURORS PREDICT LIABILITY AGAINST
On November 8th, the New Orleans Metro Crime News reported a $16.3 million verdict against computer giant Dell Inc. for a conspiring to unfairly compete against 2 local companies.
Glad Jones, attorney for plaintiffs Southern Electronics and Active Solutions, told the paper that the verdicts of the shadow jurors, polled prior to the jury's verdict, mirrored the liability finding. "They were directly on point," he said.
Jones described the process as valuable, giving the trial team daily guidance during trial on what points were being effectively argued. Jones stated that he uses shadow jurors in any complex case.
The defense attorney, Phil Whitmann, acknowledged using shadow jurors in the past, but not on this case. (Mock trials were also used by Jones before trial.)
In addition to picking shadow jurors who reflect the jury demographics, it is also helpful to select individuals who are likely to be influential on the panel, as they will direct the verdicts.
In addition, if doing plaintiff work it is wise to ensure that there are conservative folks on the shadow jury, and vice versa, to ensure "worst case scenarios" and avoid false positives.
It is surprising to note that shadow juries have a long history as a trial assessment tool. In 1987, both the plaintiff and defense attorneys used them in a New Orleans case against CSX Transportation, which resulted in a $3.4 billion dollar punitive award against CSX by a jury.
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You Have Retained Your Experts.
Have You Retained Your Trial Consultants?
Happy Thanksgiving!
Jan & Roz
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P.O. Box 91410, Tucson, AZ 85752-1410 (520)297-4131 (886)505-4131
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