| Volume 22, Issue 3, May 2010 | Download Current Issue | Previous Issues | Letters to the Editor | Search |
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Atticus Finch Would Not Approve:
Why a Courtroom Full of Reptiles Is a Bad Idea
Some members of the trial bar have taken a keen interest in a model of trial advocacy that features manipulating jurors by fostering fear. What is this model? It claims you can predictably win a trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles. To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable. Bringing together decades of experience, research, and insights in the law, healthcare, social relationships, and narrative we posit an alternative viewpoint for lawyers interested in reevaluating the wisdom of 'reptiling' the jury.
Is your race-neutral explanation enough to survive a Batson challenge? In February, the Supreme Court handed down its decision in the case of Thaler v. Haynes, the latest in a string of cases originating with Batson v. Kentucky in 1986. In Batson, the Court outlawed the use of race-based peremptory challenges during jury selection. Attorneys can no longer strike racial minorities from a jury without an acceptable "race neutral" explanation for the strike. After briefly describing the history of the Batson line and the three-step process involved in a Batson hearing, the author discusses the most recent Batson decisions and offers some tips to help attorneys avoid Batson problems during jury selection.
The Biggest Bully In the Room Jurors these days seem to make news almost as much for their misbehavior as for the decisions they make. First, there are a multitude of stories about jurors who refuse to follow the rules and use Google to satisfy their curiosity or hop on Facebook to share their opinions with all their Facebook "friends." Occasionally, however, somewhat more lurid tales of jurors behaving badly are reported in the press. These accounts of jury room conduct feature everything from incivility to threats to physical violence.
Less Bad News: What Defense Advocates Can Learn from the Duke Lacrosse Case In covering the infamous Duke lacrosse case, journalists received enormous criticism for the way they allegedly convicted the defendants in the press. Yet the practice is hardly unusual. Standard media routines and practices often contribute to undermining the presumption of innocence, particularly with high profile crimes. Still, in other respects this particular case was atypical, involving national media attention, a prosecutor engaged in misconduct, affluent white young men in the role of the accused and a poor black woman as the accuser. This article assesses the implications of social science research on media, race and crime to draw out lessons for professionals who must deal with the volatile nexus of publicity and race in the criminal justice system.
When aware of Supreme Court justices, the public often reveres them for their esteemed judicial position, and the Supreme Court preserves and emphasizes this reverence. The Court building's semblance to La Madeleine in Paris and The Pantheon along with the Court's depiction of gods and goddesses inspires a sacred feeling in visitors and those with business before the Court. This article presents a dominant model of understanding Supreme Court oral arguments, suggests an improved approach to understanding human decision-making, identifies shared commonalities between Supreme Court justices and jurors, and provides practitioners with suggestions for preventing unpredictable sensemaking behavior.
It would likely surprise many Americans to discover that the right to a jury trial does not include a jury of twelve or even a unanimous verdict. Our common law right to a jury trial predates the Magna Carta, which enshrined nearly 800 years ago the right of all free men (yes, men) to judgment by a jury of his peers in criminal cases. What few experiments have occurred -- usually in the civil area -- indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.
If They Don't Like You They Won't Hear You: An Essay on Persuasive Communication Twenty-three hundred years ago in Rhetoric, Aristotle wrote that persuasive speech was dependent on three variables: the speaker, the subject matter, and the listener. More specifically, Aristotle taught us that three key issues impact persuasiveness; the character of the speaker or Ethos, the veracity of the argument itself, Logos, and the emotional state of the audience or Pathos. Very simply, if your audience does not like you they probably will not hear you. If you are not heard it will be virtually impossible to be persuasive and win your case.
Courtroom Nostalgia: The Rural American Courthouse There are courthouses time has forgotten. No metal detectors. Small town charm and friendliness. Here's a look at some places we've been. We invite you to add yours to the list.
May 2010's Favorite Thing(s) This month we have two favorite things again--one to make you look 'high-tech, gadgety-cool' and one to learn and play at the same time. Editor's Note Thoughts on Spring 2010 and a run-down on what we have for you in this issue. As well as special thanks to some new contributors.
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