Use Smartphones to Get Smarter About Your Jury

If you’ve ever been 20 minutes into a two-hour errand run and had anxiety over leaving your cell phone at home, maybe even turning the car around and going home to get it, then you’re fully aware of how integral these devices have become in our daily lives.  This is a good thing in the sense that we are better connected, have access to virtually unlimited information and, for the navigationally challenged, can get turn-by-turn driving directions in seconds.

However, when it comes to the courtroom, this reliance on our phones, tablets and wonder-devices presents a unique, and troubling, challenge.  In prior newsletters we’ve covered the temptations jurors face to research terms or even people on the Internet during trial – even despite specific instructions from a judge not to.  In the old days, the court could just confiscate all newspapers from the deliberation room, but with the sheer amount of information and research tools available to jurors with the touch of a button, the perceived acceptance of using these devices in a courtroom – just as people would in the course of their daily lives – has become more commonplace.

Recently, NFL defensive tackle Darnell Dockett made the news for live-tweeting, and mocking, his jury duty experience.  The New York Post characterized his anti-jury-duty tweets as “hilarious,” supporting the general impression among many people that this is acceptable behavior for a potential, or actual, juror.  

The article doesn’t state whether the judge specifically banned the use of devices, but the article did note, “Dockett even claimed to continue to tweet on his iPhone after the guards took his Android” – further demonstrating some people simply don’t see a problem with this activity, or openly defying judges’ orders.

But what happens when judges themselves fall prey to these temptations?  Last month, a Detroit judge got in hot water when she was caught tweeting during a murder trial.  The day the defendant’s close friend testified, she tweeted, “A true Friend will support you at your worst and NEVER again mention when you become your best.”

The judge clarified the jury was out of the courtroom at the time, but it just goes to show how commonplace social media has become in most peoples’ lives and in the courtroom. 

And you and your trial team should use it to your advantage.

First, you would be amazed what some people put out there in the public, whether via Facebook, Twitter or comments on news sites.  When we’re called to consult on a trial, we start by conducting thorough social media audits on the jury panel to see if there is any information that can help determine whether certain jurors will be helpful or detrimental to the case.  Political leanings, recreational activity, education level, viewpoints on current events, homeownership, etc. can all tell you something about a potential juror – and sometimes this information takes very little effort to gather.

More importantly, we continue to conduct ongoing monitoring of their online lives to ensure they are complying with court orders and are not discussing the trial.  On a surprising number of occasions we have had unfavorable jurors kicked off of the jury for openly defying orders not to discuss the trial on social media. 

Finally, don’t assume just because a judge gives jurors specific instructions about not researching aspects of the trial or discussing the proceedings on social media, they will listen.  In fact, you should operate under the assumption they will give into smartphone temptation, and ensure time is taken to address likely predispositions and potential misconceptions they might encounter online, and educate them through expert testimony in a way that benefits your case.  

If you would like to know more about how we can use technology and social media to benefit your case, or how to best educate jurors about complex issues, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.  

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This will be our last issue of Things in 2014. The newsletters will resume January 7, 2015. Happy holidays, and thank you for your continued support! We look forward to working with you in the new year.

Debunking Sham Science in the Courtroom

It’s no secret attorneys can usually find an expert witness to say just about anything they want, but this becomes particularly problematic when that expert is testifying regarding complicated scientific or medical issues about which lay jurors have no knowledge, background or understanding.  An opposing expert may be peddling snake oil while yours has medical literature on his or her side, but how is a jury supposed to know who’s the fraud and who’s the real thing?
 
We’ve noticed the issue of sham science in the courtroom particularly rears its head in relation to neuroscience – perhaps no surprise given the complexity of the field.  In fact, scholarly research has found that specious neuroscience can be used to dupe people who have no background in the field – a group that would include most jurors.
 
In our experience, the use of brain scans is an area where jurors are particularly vulnerable to experts willing to mislead.  Technologies such as SPECT scans and functional MRIs (fMRI) produce colorful, compelling visual images that unscrupulous experts can manipulate into showing whatever they want them to show.  These images take on added significance among jurors accustomed to such high-tech forensic presentations from TV shows such as CSI.

Based on recent trial experiences, we believe the best tactic to combat such sham science is to use your own experts to unmask exactly what the opposing expert is doing – taking them “behind the curtain,” so to speak.  It is not enough to simply have your experts offer a competing interpretation of a brain scan, because it can be too difficult for lay jurors to sort through complicated scientific testimony and figure out who is right.  Instead, we recommend unleashing your expert to attack his or her counterpart’s methodology. 
 
For example, during a recent trial involving alleged brain damage, the plaintiff’s neuroscience expert relied on a bright, multicolored SPECT scan to highlight areas of supposed damage.  Based on exit interviews, we know jurors found this very compelling – that is, until they heard from the defense expert.  The defense expert testified how the plaintiff expert’s color scale used is intended not to diagnose areas of brain damage but only to highlight previously known damage for presentation purposes (such as at conferences or in medical literature) because it uses bright colors to make extremely small differences look more dramatic.  In other words, it was a complete misuse of technology intended to mislead the jury.  Jurors told us after the trial that the defense expert “destroyed” the plaintiff on this issue.
 
Although jurors may not be neuroscience experts, they’re smarter than we often give them credit for.  They’re capable of understanding how they’re being misled by sham science, but it’s up to you to show them exactly how that’s happening rather than just asking them to believe your expert’s word instead of the plaintiff’s.
 
If you have a case where sham science comes into play, we’d love to help you figure out how to address it.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.