Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

The search for hard data

One of the things I've harped upon in the past is the lack of empirical data to guide lawyers in making strategic and tactical trial decisions.  If I want to find out what Derek Jeter has hit with men in scoring position and two out over the past three years, it'll take me about twenty seconds.  (He hit .345, about twenty points above his regular average.)  If I want to find out a breakdown of the 2004 presidential vote in Ohio, by county, it'll take about the same time.  If I want to find out how making an objection affects a jury, I'm pretty much out of luck.

Or maybe not.  The Ohio Bar Association is doing a seminar on criminal advocacy in Cleveland on August 14, and I got roped into doing the hour on voir dire.  One of the things I've always believed is that no area of trial work is more subject to a lawyer's intuition than voir dire; we develop ideas about who makes a good juror and who makes a bad juror based on little more than hunch leavened with experience, as this quote from Clarence Darrow shows:

An Irishman is called into the box for examination. . . You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

If a Presbyterian enters the jury box. . . let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. Get rid of him with the fewest possible words before he contaminates the others. . . Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict.  Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket.

Since Darrow wrote that about 70 years ago, there's been a wealth of research into how juries arrive at their decisions.  That's how jury consultants can get up to $500,000 a trial.  The problem is that most of the information they've acquired is proprietary, and they're not willing to hand it out.  Sure, there's a lot of other research that's been done, but unless you want to spend a couple of weeks in the library leafing through back issues of the Journal of Applied Psychology or Law & Human Behavior, you're pretty much out of luck.

Until I stumbled across this site.  It's done by a jury consulting company, and there's some good stuff on it, but by far the best is this, a collection of articles on social research of juries.  Take the question I posed above, the effect on objections on the jury:  if I make an objection, will they think I'm trying to hide something and take it out on my client?  Turns out that's not the problem:  my objection will just make the jurors place greater emphasis on that evidence, even if the judge rules it's inadmissible.  Think that black jurors are more favorably inclined toward black defendant?  Not so, if blacks are a minority on the jury, and the evidence against the defendant is strong; in that situation, they'll be harder on the defendant than whites will be. 

Some of the stuff isn't earth-shaking; for example, if you need this site to tell you that women who carry condoms are less credible as sexual assault victims, you probably shouldn't be doing trial work to begin with.  But most of it is quite informative.  It's good to know, for example, before you decide to present character evidence, that it's not going to do you much good, and that if the prosecution questions the witnesses about specific bad acts, it's going to do you considerable harm.  And if you're a judge, it's helpful to know that if you give a very brief explanation of why some piece of evidence is inadmissible, the jury's much more likely to disregard it.  And if you're doing an appeal from a bench trial where there are some evidentiary issues, and you know the appellate court's going to use the old routine about how judges are expected to disregard inadmissible evidence, you might want to toss in the studies which show that judges aren't any better at that than jurors are

You might also want to take all this with a grain of salt.  I haven't read the underlying studies, and for all I know, they're bogus, or there are contradictory results in other studies.  But, as I said, there's not a lot of hard data out there, and anytime you find some it's definitely worth a look.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case