It should come as no surprise that evidence rules and their application are often without regard to, and indeed in conflict with, scientific findings.\u00a0 That is a challenge every advocate faces, the law as it is versus the law as it should be.\u00a0 But science can be enlisted to try and change evidence or evidence-related precedent.<\/p>\n
The method when no record on that science was developed below is the classic \u201cBrandeis brief,\u201d described by one court as follows:<\/p>\n
The term Brandeis brief<\/em> is used to describe a brief which emphasizes statistics and commission reports more than judicial precedents, and the origin of the appellation is a brief filed by Louis D. Brandeis when he appeared as counsel in Muller v. Oregon<\/em>, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908).<\/p>\n Torres v. Seaboard Foods, LLC, <\/u>2016 OK 20, P6, fn 1.\u00a0 That same court noted that, at least in Oklahoma, such briefs are forbidden -even from amici curiae<\/em> \u2013 because \u201cIn an appeal, the brief of an amicus curiae<\/em> is limited to facts and issues raised by the parties that have not been “presented adequately” by the parties from the viewpoint of the amicus curiae<\/em>. Okla. Sup. Ct. R. 1.12 (b)(1). This language does not allow an amicus curiae<\/em> to expand the record on appeal via a Brandeis<\/em> brief.\u201d\u00a0 Id<\/em>.<\/p>\n I am not from Oklahoma, and don\u2019t practice there.\u00a0 But I do suggest that \u2013 absent an express prohibition – science belongs in briefs.\u00a0 Here are three options\/illustrations:<\/p>\n <\/p>\n In Pennsylvania, the state Supreme Court granted allowance of appeal \u2013 the equivalent of a writ of certiorari<\/em> \u2013 on the issue of whether, under Pennsylvania\u2019s double jeopardy guarantee, proof of a Batson<\/em> violation should bar retrial.\u00a0\u00a0 Here is how science was used, after setting forth the legal principle, by the amicus<\/em> team:<\/p>\n <\/p>\n Batson <\/em>is fundamental to the right to a fair trial because diverse juries enhance and indeed may ensure verdict reliability. As early as 1973, well before Batson <\/em>was decided, this general principle was recognized:<\/p>\n When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable …. [I]ts exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.<\/p>\n \n Peters <\/em>v. Kiff, <\/em>407 U.S. 493, 503-504 (1972) (Marshall, J., opinion announcing judgment of the Court, joined by Douglas and Stewart, JJ.). As the Court affirmed in Miller-El <\/em>v. Dretke, <\/em>545 U.S. 231, 238 (2005), racial discrimination in jury selection “casts doubt” over the entire legal process, permits prejudices to cloud judgment, and compromises the right of trial by impartial jury.<\/p>\n Other states’ highest courts agree that a Batson <\/em>violation undermines verdict reliability. One court concluded succinctly, “diversity begets impartiality.” State <\/em>v. LaMere, <\/em>2 P.3d 204, 212 (Mont. 2000); see also State <\/em>v. Saintcalle, <\/em>309 P.3d 326, 337 (Wash. 2013) (“more diverse juries result in fairer trials”).<\/p>\n That which courts have intuited has been borne out by social science research. Diverse juries deliberate longer and more thoroughly and, as a result, generate verdicts of greater reliability. As a 2019 survey of research concludes, “diversity among jurors has a positive influence on the quality of jury deliberations and verdict fairness.” Margaret Bull Kovera, Racial Disparities in the Criminal Justice System: Prevalence, Causes, and a Search for Solutions, <\/em>JOURNAL OF SOCIAL ISSUES, Oct. 31, 2019, available at https:\/\/doi.org\/10.1111\/josi.12355<\/u> (last visited Apr. 7, 2021).2<\/sup><\/p>\n The most-cited research on this point is Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, <\/em>90 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, 597-612 (2006). Of particular note is Sommers’ finding that:<\/p>\n [h]eterogeneous groups deliberated longer and considered a wider range of information than did homogeneous groups. However, these differences did not simply result from Black participants adding unique perspectives to the discussions. Rather, White participants were largely responsible for the influence of racial composition, as they raised more case facts, made fewer factual errors, and were more amenable to discussion of race-related issues when they were members of a diverse group.<\/p>\n Id.<\/em>, at 606<\/p>\n 2<\/sup>This correlates with other research which demonstrates that “jurors mak[e] harsher judgments about defendants from different racial or ethnic groups (i.e., <\/em>outgroup members) or, conversely, more favorable judgments for defendants from the same racial or ethnic group ….” Jennifer S. Hunt, Race, Ethnicity, and <\/em>Culture in Jury Decision Making, <\/em>11 ANNUAL REV. LAW Soc. SCI. 269-88 (2015).<\/p>\n One other finding has special significance: “[D]iverse groups made fewer factual errors than all-White groups [and] inaccuracies were more likely to be corrected in diverse groups.” Id. <\/em>at 608. A Batson <\/em>violation-a deliberate attack on jury diversity-therefore meets the second criterion of the Smith\/Johnson <\/em>cases: it is an act that occurs with the purpose of denying the defendant his constitutional right to a fair trial.<\/p>\n The argument did not prevail \u2013 the Court was concerned less about racial justice and more about opening the \u2018floodgates\u2019 to post-conviction claims.\u00a0 But the science spoke.<\/p>\n <\/p>\n When the Pennsylvania Superior Court, the Commonwealth\u2019s intermediate appellate court, created a new rule \u2013 if you lose a motion in limine<\/em> and then preemptively bring out the challenged [bad] proof, you waive the right to appeal \u2013 the appeal of that decision had no record to be limited by.\u00a0 The issue was fresh, and so too was the slate on which argument would be written.<\/p>\n Here, too, science was embraced by the challenger to the new rule.<\/p>\n Once a criminal conviction (or any other form of proof challenged in limine<\/em>) is deemed admissible, it should be judged for its worth and not with the added baggage of who disclosed or failed to disclose it.\u00a0 If the opposing party \u2013 here, Mr. Stevenson \u2013 does not disclose in order to preserve the right to appeal, then once the jury hears of the proof in the prosecution case he is damned not only by that impeaching fact but also by his lawyer being seen as someone lacking trustworthiness, a belief that may spread beyond the specific impeaching fact.fn<\/strong><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 _____________________<\/sup><\/p>\n Fn <\/strong>That credibility comes with the disclosure of adverse proof is well-established.\u00a0 See, e.g.<\/em>, Waites, COURTROOM PSYCHOLOGY AND ADVOCACY 336 (2003)(\u201cResearch in the field of social psychology tells us that to admit a weakness or fear about one\u2019s position can increase credibility dramatically.\u201d).<\/p>\n \u00a0<\/strong><\/p>\n This challenge \u2013 telling Pennsylvania to reject the U.S. Supreme Court\u2019s ruling in the Ohler<\/em> case — was just briefed and the case will take roughly a year to resolve.\u00a0 The science is essential \u2013 without it, there is just conjecture to try and prove the unfairness of the rule.<\/p>\n If you have a criminal law background or include criminal law\/Confrontation Clause cases in an Evidence course, you know the basics of the Bruton <\/em>rule \u2013 if codefendants are tried together and one confessed, the portion of that confession that details the guilt of another codefendant must be \u201credacted.\u201d\u00a0 In the simplest terms, that means taking out all mention of that non-confessing codefendant or replacing their name with a generic phrase like \u201csomebody else\u201d and <\/em>\u00a0instructing the jury that the confession may be used only against the person who made it.<\/p>\n This is because in Bruton<\/em> the Court \u2013 in a rare move \u2013 held that leaving in the codefendant\u2019s name could not be \u2018fixed\u2019 by an instruction telling jurors to ignore the confession when deciding that person\u2019s guilt.\u00a0 If the confession was \u201cI robbed the bank and Jules shot the guard,\u201d telling the jury \u201cdisregard the words \u2018Jules shot the guard\u2019 when deciding Jules\u2019 guilt\u201d was deemed \u2013 and rightly so \u2013 a mental gymnastic that simply couldn\u2019t be performed.<\/p>\n Why tell this story?\u00a0 Because in June. 2023, the U.S. Supreme Court ruled that if you changed the confession to \u201cI robbed the bank and the other guy shot the guard,<\/em>\u201d a jury instruction of \u201cdon\u2019t use that confession against Jules\u201d [the only \u201cother guy\u201d in the courtroom] would work and thus prevent a Confrontation Clause violation.<\/p>\n Really?\u00a0 Based on no science?\u00a0 Yes.\u00a0 And now that is settled law \u2013 science be damned; if we say jurors can follow that instruction then indeed they can and justice is served.<\/p>\n So how can science be enlisted to offset this?\u00a0 By testing this proposition in rigorous jury studies.\u00a0 This is now being proposed to the American Psychological Association.\u00a0 The outlines of such a study (proposed by this author to a research psychologist colleague) would be:<\/p>\n <\/p>\n And if the results confirm what we intuit – that the instruction \u201cdon\u2019t consider the confession against the other guy<\/em>\u201d don\u2019t work and guilty verdicts increase beyond the baseline \u2013 then it is time to bring science into the courtroom with challenges under state constitutions and\/or Rule 403.<\/p>\n \u201cScience\u201d can be wrong \u2013 it evolves, it makes mistakes \u2013 but it is often better than intuition and deserves a place in advocacy and persuasion.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" It should come as no surprise that evidence rules and their application are often without regard to, and indeed in conflict with, scientific findings.\u00a0 That is a challenge every advocate faces, the law as it is versus the law as it should be.\u00a0 But science can be enlisted to try and change evidence or evidence-related<\/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":[330],"class_list":["post-3727","post","type-post","status-publish","format-standard","hentry","category-brain-lessons"],"yoast_head":"\n\n
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