Biases distort judgment. It’s as simple as that. They skew how we think, what we believe, and the value we set when we judge the pain and loss of others. And of course this is not limited to law, lawyering and courts – the problem is everywhere. For example, studies have shown that in medicine
As the Pennsylvania Supreme Court recently stated, when dealing with hearsay “[t]hings can get complicated pretty quickly…At times, the line that divides hearsay from non-hearsay can be difficult to discern.” Nowhere is that more true than with “state of mind” hearsay; but a great deal of clarity has been brought to the issue as a
The headline was simple – another person exonerated in a case where police claim he had confessed and where two eyewitnesses positively identified him. But absent from the story was any mention of DNA as the exculpating tool. Instead, it was reported as follows: The experts reviewed surveillance footage of the botched heist of Northeast
Memory – how good is it? The law favors memory – we make witnesses tell their stories months or years after an event but preclude use of their diaries or memos to the file. And memory reliability gets ‘politicized‘ – those who prosecute often default in favor of trusting memories long after the event, while
The waning days of the Trump administration saw a fervid, if not frenzied, rush to put out policy statement or decisions meant to tie the hands of the Biden administration, including declaring Cuba a state sponsor of terrorism, labeling a Yemeni group a terrorist organization, recognizing Moroccan sovereignty over parts of the Sahara, allowing oil
Lawyers fight tooth and nail over whether a particular statement is admissible hearsay – is it an assertion; if so, is it offered for its truth; and if both conditions are met, is there a hearsay exception that permits it to be heard or seen. And then they stop. But as a recent Pennsylvania Superior
Rarely is a cross-examination limited to an attack on credibility – there are often multiple goals which may include eliciting positive/supportive facts and ultimately telling or reinforcing the ‘story’ the witness’ examiner is presenting. The recognition of multiple goals of cross-examination is nothing new. Despite early emphasis on cross-examination as being needed to expose “mendacity,”
The below advice was developed for a lecture to Temple trial team members as work to ‘up our game’ in various aspects of courtroom advocacy. The advice, with minimal modification, is also useful for practicing attorneys. Why concentrate on the opening statement? It is where we are judged first, and our performance shapes how
Given that the Rules of Evidence were developed without regard to, or prior to the development of, principles of cognitive science, one might expect courts to use scientific research to mediate those rules and, especially, to inform the exercise of discretion. But as two divergent lines of cases show, although each involves how a visual
Eyewitness testimony—seen more as the staple of state court trials rather than federal, more often the subject of focus in criminal trials than in civil litigation—is, in fact, ubiquitous. For federal courts, it is involved in trials and in review of state court convictions, particularly on habeas. The prominence of eyewitness testimony, and the