Omission Suspicion: Juries, Hearsay, and Attorneys’ Strategic Choices

Attorneys understand that presenting evidence consists of a series of strategic choices. Yet legal scholars have not studied whether jurors are sensitive to the trial strategy that underlies those choices. Do jurors question why an attorney has omitted what jurors consider the “best” evidence of some trial fact and has instead put forth weaker evidence? Do they attempt to understand the motivation behind that choice, and does that affect their legal judgments? Six original experiments explore these questions in the context of hearsay evidence. The experiments reveal a ubiquitous finding: Jurors carefully scrutinize a party’s strategy for presenting hearsay, and this has a substantial impact on their verdicts. Moreover, jurors scrutinize an attorney’s strategic decision to proffer hearsay regardless of the identity of the legal actor, regardless of the type of case, and regardless of the type of hearsay presented. These findings demonstrate that when evaluating hearsay evidence, jurors are attuned to factors that the law may not appreciate. This has substantial implications for legal policy and practice. These findings suggest a new dimension of competency with respect to how jurors evaluate evidence. They also suggest that the normative debate over hearsay evidence—that jurors do not think critically about it—should change. Finally, the findings present a cautionary tale to trial practitioners who make ground-level decisions about hearsay evidence

Testing Tribe’s Triangle

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice. To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets of infirmities—those of the in-court witness and those of the original declarant. With respect to hearsay evidence, policymakers fear that jurors do not attend appropriately to the infirmities of the original declarant—who is not subject to in-court cross-examination—and will give hearsay evidence undue weight. This Article reports the results of the first empirical examination of the testimonial triangle. The studies reported in this Article suggest that, consistent with behavioral science research on implicit goal activation and psychological distance, jurors are attuned to the testimonial infirmities that lurk beneath hearsay evidence and discount the evidence defensibly. These findings have important implications for the hearsay doctrine, for the contentious debate over juror competency, and for practicing attorneys who make decisions about hearsay evidence at trial. They also provide a theoretical framework for further empirical hearsay research and suggest that policymakers should focus their debate over the hearsay doctrine on the degree to which the doctrine promotes procedural justice, not decisional accuracy

Redesigning the Science Court

Scientific evidence is a field in crisis. The validity and reliability of forensic techniques have been criticized by nearly every actor in the legal community—by attorneys, judges, the legal academy, and even the National Academy of Sciences—and high-profile cases of scientific evidence gone awry have garnered national attention. Policymakers have suggested many solutions to the scientific evidence crisis, including a controversial proposal to remove complex scientific cases from state and federal dockets and to hear those cases instead in a specialized “science court.” Science court proposals face one substantial hurdle: they have become exceedingly unpopular. But this is for good reason; it is entirely possible that the architects of the science court did not design it correctly. I argue—with evidence from original psychological experiments—that public approval of a lawmaking body is largely a function of two discrete psychological dimensions: decisional accuracy and procedural legitimacy. Earlier science court proposals failed to maximize public perceptions of these important psychological values. I propose a redesigned science court, which includes features of both adversarial and inquisitorial decision-making paradigms and prioritizes these dual values. I then report the results from original experiments that illustrate: (1) that litigants prefer the redesigned science court significantly more than they prefer other proposals to maintain the integrity of scientific evidence, and (2) the redesigned science court enjoys greater perceptions of decisional accuracy and procedural legitimacy from litigants. Implications for institutional design—and for the future of science in the courtroom—are discussed

The Truth-Justice Tradeoff: Perceptions of Decisional Accuracy and Procedural Justice in Adversarial and Inquisitorial Legal Systems

Two studies provide empirical support for Thibaut and Walker’s (1978) theory that inquisitorial and adversarial dispute resolution systems are associated with different psychological values: the pursuit of truth and the pursuit of justice. Study 1 suggests that, in civil and criminal disputes, the adversarial system is perceived to produce less truth than it does justice, and less truth than does the inquisitorial system. Conversely, the inquisitorial system is perceived to produce less justice than it does truth, and less justice than does the adversarial system. Study 2 examines how legal outcomes moderate litigants’ perceptions of the truth and justice produced by these dispute resolution systems. Study 2 suggests that perceptions of the truth and justice provided by the adversarial system are highly sensitive to the outcome of the dispute, whereas perceptions of the truth and justice provided by the inquisitorial system are not affected by dispute outcomes. Implications for Thibaut and Walker’s theory are discussed

The Unintended Consequences of Local Rules

Many legal rules are based on hunches about human behavior that have not been tested empirically. A behavioral analysis of these rules can illuminate whether they work as policy makers intended or whether they have unforeseen, systematically negative effects. Behavioral analyses of legal rules, unfortunately, are in short supply. This is particularly true with respect to local procedural rules that govern the everyday operation of trials and are left to the discretion of trial courts. This Article begins to fill that gap by empirically examining one of these local procedural rules: the one allowing jurors to take notes during trial. Intuitively, few would question the practice of jury note taking. Permitting, even encouraging, jurors to keep track of evidence seems like an obvious way to ensure the fidelity of verdicts, especially as trials and evidence become increasingly complex; however, an empirical test of note-taking reveals that the intuition may be wrong. More specifically, this Article reports the results from an original experiment that evaluated whether note-taking, under certain circumstances, can affect trial outcomes in unexpected ways. Drawing on literature from behavioral law and economics, this experiment demonstrated that jury note-taking can exacerbate a phenomenon known as “vividness bias,” which is the extent to which vivid information affects social judgment independent of its probative value. This surprising finding has implications for the ways in which heterogeneous, local procedural rules affect the transparency, equity, and accuracy of jury verdicts. And it suggests that there is a compelling need for additional empirical testing of the behavioral intuitions behind procedural rules