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
Two recent reports confirmed what experience has shown. Bad lawyering in criminal cases is to be blamed not merely on individual attorneys – the proverbial “few bad apples” – but on a systemic tolerance of underperforming. This was brought home, first, when a federal judge in Maine concluded that a criminal conviction would not be
At the end of a lengthy (or even not-so-lengthy) trial, an exhaustion factor creeps in and the fatigued lawyer sits back as jury instructions are read. But attention must be paid, especially when a judge extemporanizes. The failure to do so may allow an unconstitutional jury instruction to slip past. This is best illustrated in
Factfinders – judges and juries – rely on a witness’ claim of first hand knowledge. “I looked down the street and saw X occur.” And indeed, personal knowledge is a legal prerequisite for all except expert testimony. Yet too few lawyers take the fundamental and essential step of standing in the shoes of the percipient
Much is lost by the audience when lawyers speak to [or “at,” which is even worse] jurors. As one article concluded, “the human mind does not always act like a sponge. In the legal setting, lawmakers, judges, and scholars hope but hardly expect that jurors exhibit perfect retention of trial facts, particularly in complicated trials.”