{"id":3680,"date":"2023-05-12T21:23:45","date_gmt":"2023-05-12T21:23:45","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3680"},"modified":"2023-05-12T21:23:45","modified_gmt":"2023-05-12T21:23:45","slug":"the-liberating-properties-of-weaker-evidence","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2023\/05\/12\/the-liberating-properties-of-weaker-evidence\/","title":{"rendered":"THE LIBERATING PROPERTIES OF WEAKER EVIDENCE"},"content":{"rendered":"

It was one of the most surreal accident photographs I have ever seen, defying easy explanation.\u00a0 The lower half of a leg.\u00a0 Sturdy.\u00a0 The foot, bare.\u00a0 The toenails painted recently, but not so recently to be free of wear and blemish.\u00a0 The skin was clean with just a hint of mottling nearest to the site of the injury.\u00a0 But then there was the brake pedal.\u00a0 Somehow, in some physics-defying way, while the car was somersaulting from the road into a corn field, the pedal for the parking brake had snapped off and was now tumbling around in the lower compartment of the driver\u2019s side.\u00a0 The crescent shape of the pedal\u2019s attachment bar and the sharpened, angular tip at its end made it look like the gleaming black sword of some ancient sultan.\u00a0 The long section of the attachment bar that remained was pierced cleanly and entirely through<\/em> the calf.\u00a0 One half on one side of the calf and the sharpened end on the other.\u00a0 It vaguely resembled some perverse version of the funny hat that positions the front half of an arrow on one side of the head while holding the back half on the opposite side. The absence of blood was startling.<\/p>\n

Knowing what you know so far, is there any doubt that the freak injury occurred during the destructive chaos of the car\u2019s barrel rolls?\u00a0 Certainly not.\u00a0 It\u2019s beyond a doubt that her morning routine did not include, among the act of inserting small metal crescents in her earlobes, the adorning of her calf with the fractured arm of a parking brake.\u00a0 The evidence of that direct cause of injury is clear.\u00a0 However, what if she and the driver of the other vehicle each blamed the other for crossing the sacred barrier of the double-yellow line\u2014and the only witnesses to call were a handful of nearby cattle, lazily grazing before the tumult began?\u00a0 If we had to answer the question of who crossed, is our brain\u2019s default to comb the scant pieces of conflicting external<\/em> evidence or to look inward<\/em> for our own answers?\u00a0 A rather large study of real-world jurors suggests an answer.[1]<\/a><\/p>\n

The focus of this study was on how jurors reacted to the relative strength of evidence offered in a criminal case.\u00a0 The goals, reach, and methods of the study were many, so for this space I will considerably narrow the discussion to the question of how real world juries in the study dealt with strong and weak evidence for guilt.\u00a0 The study was exclusively in the realm of the criminal courts, but studies with actual juries are rare enough that they all merit a look regardless of their scope.\u00a0 In addition to thoroughly probing juries on their decision making, the study also surveyed the judges and attorneys for the nearly 200 trials reviewed.\u00a0 All parties involved weighed in on the relative strengths of the various evidence offered and those results were tallied for categorizing consensus on strength of evidence.[2]<\/a><\/p>\n

In addition to measuring all participants\u2019 views on the strength of the evidence, the study also indexed the various kinds of evidence the state offered, the severity of the charges, the complexity of the case, the extent and knowledge of any pretrial publicity, jury demographics, foreperson race and gender, defendant\u2019s characteristics, and perceptions of attorney competence, among other additional measures.[3]<\/a>\u00a0 You are starting to get a sense of the scope here, I\u2019m sure.<\/p>\n

One of the authors\u2019 goals that I wish to discuss more here was to test a hypothesis offered by a study of criminal juries in the 1960\u2019s.[4]<\/a>\u00a0 This hypothesis will seem intuitive to us as trial lawyers, but as educators it strikes me as one we ought to know and teach as a term of art.\u00a0 Termed by the original authors as the \u201cliberation hypothesis\u201d it proposes that \u201c[w]hen the evidence presented at trial points clearly to a particular verdict, the jury will usually choose that verdict; when the evidence is more equivocal, the jury\u2019s decision will be more likely to reflect the influences of other normatively undesirable variables.\u201d[5]<\/a><\/p>\n

With some admittedly broad strokes, I wish to lay out some of the conclusions of this more recent study testing the liberation hypothesis and then we can reflect a bit on them below.\u00a0 First, \u201c\u2026guilty verdicts were more likely when: (a) the defendant was faced with a more serious charge, (b) substantial pretrial publicity was reported by the judge, and\/or (c) the trial was rated as more complex by the legal professionals in terms of the evidence and relevant law.\u201d[6]<\/a> \u00a0Second, the more varied the kinds <\/em>of evidence the prosecution presented, the more likely the evidence was to produce a guilty verdict.\u00a0 Surprisingly, this was true regardless of the perceived strengths of the varied evidence presented.[7]<\/a> Variety mattered more than strength.\u00a0 Finally, \u201cConsistent with the [liberation] hypothesis, several correlations between potential sources of extraevidentiary influence were strong and significant for cases classified as ambiguous that featured moderate prosecution [strength of evidence].\u201d[8]<\/a><\/p>\n

Perhaps these conclusions above call out for us the need for greater emphasis upon a key principle we already teach our students: we have to think more like jurors and less like attorneys working the case in a vacuum.\u00a0 I have to imagine we all see students doing the same things with case facts and jury instructions in their trial preparations.\u00a0 They see everything<\/em> through the carefully polished lens of facts and elements\u2014because we have trained them in the first two years of case briefing to do that.\u00a0 In so doing, we mislead them into thinking that all<\/em> reasoning about difficult questions of law and fact is conducted at all times and by all people through the eye of this polished lens.\u00a0 We then have to learn the hard way that jurors will grasp for explanations where none are immediately evident and will often then fall into heuristic shortcuts, such as believing a defendant is likely guilty due to the severity of the charge.\u00a0 \u201cIf they accused you of that<\/u> you must have done something bad!\u201d\u00a0 <\/em>Or, \u201cThe different kinds of evidence I saw indicates to me that the prosecution has the better case here.\u201d <\/em><\/p>\n

I can only imagine the seasoned lawyer on the other side of this car accident case looking at the photos we sent over with the damages packet. \u00a0I can only imagine them working through the math of how that photo would land on a jury. \u00a0It\u2019s been so long that, frankly, I can\u2019t recall precisely how they had contested liability in the case.\u00a0 It\u2019s not the law of the case that has stuck with me these 20-plus years later.\u00a0 It\u2019s the brake pedal through the calf.\u00a0 It\u2019s the philosophically pleasurable and, yet, practically terrifying thought that some juror somewhere could feel an unconscious pull toward a finding of negligence just because<\/em> of this most-improbable sight.\u00a0 It is this endless fascination with human thought and reason that moves Jules and me to write for you every month.<\/p>\n

[1]<\/a> \u00a0Dennis J. Devine et al., Strength of evidence, evidentiary influence, and the liberation hypothesis: data from the field, 33 LAW AND HUMAN BEHAVIOR, June, 2008, at 136-148, doi: 10.1007\/s10979-008-9144-x<\/a><\/p>\n

[2]<\/a> Id. <\/em>at 139-141.<\/p>\n

[3]<\/a> Id.<\/em><\/p>\n

[4]<\/a> Id. <\/em>at 136.\u00a0 Internal citation omitted.<\/p>\n

[5]<\/a> Id. <\/em>at 138.<\/p>\n

[6]<\/a> Id. <\/em>at 142.<\/p>\n

[7]<\/a> Id. <\/em>at 143.<\/p>\n

[8]<\/a> Id. <\/em>at 144.<\/p>\n","protected":false},"excerpt":{"rendered":"

It was one of the most surreal accident photographs I have ever seen, defying easy explanation.\u00a0 The lower half of a leg.\u00a0 Sturdy.\u00a0 The foot, bare.\u00a0 The toenails painted recently, but not so recently to be free of wear and blemish.\u00a0 The skin was clean with just a hint of mottling nearest to the site<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[5],"tags":[],"coauthors":[203],"class_list":["post-3680","post","type-post","status-publish","format-standard","hentry","category-brain-lessons"],"yoast_head":"\nTHE LIBERATING PROPERTIES OF WEAKER EVIDENCE - Advocacy and Evidence Resources<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/law.temple.edu\/aer\/2023\/05\/12\/the-liberating-properties-of-weaker-evidence\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"THE LIBERATING PROPERTIES OF WEAKER EVIDENCE - 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