Trial Starts for Mom in Child Endangerment Case

I was on television giving commentary on a trial that starts in San Francisco today.

http://www.ktvu.com/video/9527583/index.html

One Juror's Experience

http://www.bloggingvegas.com/lasvegas/opinion/jury_duty_101-11066.html

That link is to a blog posting by someone in Las Vegas who is reporting about his or her service as a juror in a federal criminal trial. If you are a trial practitioner, READ IT. Ladies and gentlemen of the trial bar, I present . . . your jury. This is NOT picking on this person! Rather, this person is obviously an above-average intellect, above-average articulate, above-average thoughtful. But this person is also a person, and is thus susceptible to all the usual prejudices and fallacies that we see as repeated patterns in juries (both real and mock ones).

Read the person's essay first, then come back here for a few comments.

* See the pop culture references to "Boston Legal" and "CSI"? This is your jurors' law school and criminal investigation school (along with "Law and Order" and its progeny, and for really discerning jurors of good taste, their police procedure school is FX's brilliant "The Shield").

* Note that this person took it upon himself or herself to chat with the prosecutor after the trial. Ask yourself: what sort of person does that? How might you determine what sort of person might do that in voir dire?

* Interesting that the prosecutor admitted to putting on certain evidence just because jurors widely expect it based on viewing "CSI".

* This juror reports -- undoubtedly accurately -- an avid desire to convict immediately after hearing the case. This is no doubt aided by the other interesting bit of data the jurors heard: the defendant had a prior criminal record. The psych literature is full of work that confirms the commonsense: knowledge of prior bad acts conditions jurors to think worse of the defendant in the current (and UNrelated) case.

* Um, yeah... a good practice tip for the defense bar: try really hard not to mispronounce your client's name. It's good manners. Oh, and jurors notice everything.

* Notice the jury's decisionmaking process. They pick their foreperson quickly, then the writer suggests a vote... apparently before deliberation. Now, that's illegal. Right up there with restaurant employees returning to work without washing their hands, and you know that rule is never broken, either.

* The juror reports regret bordering on anger that the jury hung and the defendant went free. We don't know the evidence and I certainly wouldn't pass judgment on this person's opinions. But it is worth noting that this person has open hostility to the notions of the presumption of innocence, the high burden of proof on the government in criminal prosecutions, rules of evidence ("the truth is so darn inadmissible") and the founders' notions that an unchecked government is more harmful to society than some number of criminal defendants avoiding conviction. Not unusual at all.

* The writer raises a very intriguing notion that men are more likely to be empathetic to a male criminal defendant and that women are more interested in "getting a bad man off the streets." I actually don't think the literature or vast amount of experience of lawyers and trial consultants bears this out, what with defensive attribution and other psych phenomena that make people harder on their own kind. Further, almost without exception, there are no useful conclusions to make about How Men Think or How Women Think as opposed to each other. Still, for reasons I can't pinpoint, I find this person's discussion of it really interesting.

The "CSI Effect"... in Civil Cases as Well as Criminal Ones

There is a phenomenon that has shown up in criminal juries for the last several years now: laypeople have very high expectations that technical, exact, and conclusive evidence will be presented to them. Further, the expectations are that this evidence -- which can be expensive or highly time-consuming to process -- will be offered no matter how important the case, how serious the charges, how expensive it might be to produce the evidence. This overestimation of both the availability of technical, scientifically processed evidence and the advisability of DA offices seeking it has been described as the CSI Effect, after the highly rated CSI series on television. (Although Dick Wolf, creator of the 371 variants of "Law & Order", believes that this effect showing up in juries actually predates "CSI" and is more properly attributable to his many, many, many, many series.)

Attorneys and trial consultants who work in criminal cases have noticed this for a long time, and it has been documented that prosecutors are offering scientific evidence that they wouldn't have awhile back -- either because it is on a point that isn't really that important or because managing the resources and priorities of a crime lab would have led to not producing it. They must do it now, lest a jury wonder where the CSI stuff was, and assume that an absence of proof is a proof of absence. And really, in my opinion, that is the linchpin of the danger of the CSI effect; a lack of evidence which is expected by an amateur leads to the assumption that "if that evidence existed anywhere in the universe, the prosecutor would have offered it, which he or she did not, so therefore it doesn't exist and the claimed event never happened."

But the "CSI Effect" occurs in civil cases, too, and thus more trial lawyers should be aware of it when working on a case that involves anything technical or technological in the story at all. Here is an example:
In a federal suit in the western U.S., plaintiff alleges sexual discrimination and violations of the Equal Pay Act. Part of the dispute is over who saw which emails and when, and the ability of either side to offer any hard evidence about this is pretty meager. In short, this is a standard, run of the mill civil lawsuit. While the fight is over how much the plaintiff had been paid during certain years, whether others had been paid more for improper reasons, whether her pay had been affected by her complaints about certain things, it had escaped the notice of counsel on both sides that they were handling a technical lawsuit.

Why is a standard issue pay dispute a technical lawsuit? We conducted a focus group of this case to discern how civilians would react to the major issues of the case, how they respond to graphics that one party had created, how they would go about deciding what happened, liability leaning, damages inklings, and so forth. Out of nowhere, one participant said: "What do they mean they can't tell who got which emails and who didn't? The FBI can find hard drives from computers that have been blown up or burned, and they can put them under microscopes to see if the individual bit is a one or a zero, and can visually reconstruct the contents of the hard drive. That's how they've caught a bunch of terrorists. So why aren't we seeing that evidence? Because they don't want us to see it. Or they aren't sure of their case." Or maybe, just maybe, forensic computer coroners don't see civil lawsuits alleging unequal pay on quite the same level of priority as stopping terrorists. Hence this overestimation of both the availability of crime lab resources and the overestimation of attorney prioritization of scientific evidence on points that aren't terribly important.

So we learned something very important that day: Anticipate that even in cases that don't seem to be technical in nature, if there is any transaction that happened by technical means, jurors will have some grandiose ideas about the availability of evidence on that topic... and then mistake an absence of proof as a proof of absence.

I later learned about another case which alleges sexual harrassment in the workplace, some of which allegedly occurred via company email. The plaintiff claims that she deleted it all, and naturally, mock jurors assumed that the internet service provider could simply be subpoenaed and, presto, all the emails could be recovered. Right. And if that fails, the FBI's al-Qaeda team can get right on her hard drive.

My point isn't to pick on jurors. That's never my point and I don't permit it in my presence! Nope. It's the attorneys responsibility to tell their story in a way that laypeople will access and process correctly. Now we know that even in civil cases, attorneys must fashion their stories by taking into account the "CSI Effect."

Antidote: in your story, tell the jurors that they won't be seeing the evidence that you think 'CSI' would lead them to expect. Let them know in voir dire, in opening, during the presentation of your evidence through witnesses, and again in closing.