A house on fire, an occupant wakes up and yells “my brother, my brother.” The occupant dies, and his brother is charged with murder. Are the words “an assertion,” are they offered for the truth of the matter asserted, and should they be admissible? This precise scenario was at the heart of a recent decision
Reduced criminal charges and status as an illegal immigrant. What role may each play in assessing whether the witness who has received reduced charges, or who is an illegal immigrant, is being truthful and accurate? A recent petition for writ of certiorari in the United States Supreme Court addresses the former; and a new decision
Visuals are essential in today’s trials. Many jurors are visual learners; many have reduced attention spans from years of watching television or online video; and many jurors ‘expect’ a show as part of a modern trial. And Powerpoint and other visuals can be potent evidence, crystalizing complex legal concepts and hitting powerful emotional chords. This
We profile people all the time – not necessarily in the pernicious way that is condemned for stops and searches, but in using a person’s character or behavioral patterns as a proxy to estimate how they would conduct themselves in a particular situation. It is a form of “fast” thinking, an intuitive response that leads
Identifying individuals from one’s own ‘group’ is easier than identifying someone from outside the ‘group.’ If you were to stop me and say “but that’s obvious, it’s always easier to identify people you already know than identifying a stranger” I’d have to respond that “you mis-read what I wrote. ‘Group’ does not mean ‘friends’ or
We are often told that “justice is color blind. But research continues to expose the fallacy of this contention, particularly when it comes to subconscious bias. And where must we worry about bias as affecting judgment? Consider these two statements: 1. “A [drug detection] dog’s… reliability is established for the purpose of admitting the
It will come as no surprise that judges are not automatons, oblivious to emotion or extraneous information when making decisions. To the contrary, the literature is filled with examples, such as the increase in sentences (particularly for black youth) if the judge’s football team lost the previous weekend. https://www.thecut.com/2016/09/judges-give-harsh-sentences-when-their-football-team-loses.html So one question is whether judges
On Friday, November 17 the Cardozo School of Law presented a conference titled “25 Years of the Innocence Project: Impact on Law, Policy and the Courts.” This author discussed eyewitness testimony and the IP’s impact on reducing the risk of erroneous identification convictions. The below summarize the views that were offered. The phenomenon
In the hey-day of hippies and LSD, a critical phrase was ‘you’re either on the bus or off the bus.” Loosely translated, it meant you were either “with it,” i.e. fully along for the ride, or you were being left behind. But for the world of trial advocacy, the phrase can have a decidedly different
Lawyers ‘get’ scales. The scales of justice. The scales that are tipped ever-so-slightly when the preponderance burden of proof is explained. Indeed, that quantitative weighing is core to a civil case adjudication, and when mishandled may cause error and reversal: the district court judge erred when he interrupted counsel’s argument and informed the jury