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
In the time-bending blockbuster Inception, Leonardo DiCaprio’s character devises an elaborate method of mental manipulation: implanting an idea in another person’s head so that the recipient actually believes the idea is his own.[1] The reality of implanted ideas is nearly as strange as this movie. I would guess that lawyers are generally suspicious of witnesses’
Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation? Does impairing the ability of jurors and lawyers to fully assess ‘demeanor’ result in less reliable trials? Can jury selection be fair of prospective jurors’ faces are covered? Or is this all a Shakespearean “much ado about nothing” because we – the great majority
In every basic trial advocacy class I teach, I always read my students a snippet of jury selection advice from the renowned Clarence Darrow. At the time he authored this advice, it was “state-of-the-art.” However, as soon as I start reading it to them, my students will scoff, laugh, or gape in shock. Says Darrow,
We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias. This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.