Document Category: Juror Psychology

This motion argues that, in cases where the government must prove a prior conviction as an element of the offense, the trial should be bifurcated into two phases. In the first phase, the jury should hear evidence about the non-prior-conviction elements. Only if the jury returns a guilty verdict on these elements should the government be allowed to present evidence on the prior-conviction element. The motion relies on social science research demonstrating that (a) juries make propensity-based inferences when they learn about a defendant’s prior conviction; (b) these propensity-based conclusions are stronger in cases involving Black defendants due to implicit biases; and (c) limiting instructions do not effectively stop jurors from engaging in improper propensity-based reasoning. Because the prior conviction has no probative value with respect to the non-prior-conviction elements and bifurcation provides an easy way to remove the danger of unfair prejudice without compromising the prosecution’s need for the evidence on the prior-conviction element, the motion asks the court to join others around the country and split the guilt-phase of the trial into two different segments.

This draft motion argues that physically distancing defendants from juries threatens the right to a fair trial by prejudicing jurors. Social science research suggests that physical distance subconsciously signals danger and threat [p. 1-2], and creates emotional distance that impedes interpersonal connection and understanding [p. 2-4]. Because there is no essential state reason for locating the prosecution at the table closer to the jury and there is substantial danger that distancing the defendant from the jury could unfairly prejudice him, this motion argues that both the rules of evidence and the defendant’s right to a fair trial with an impartial jury argue in favor of permitting the defense to sit at the table closer to the jury.  In cases where proximity to the jury would better serve a client’s interests, defenders can use this template to make such an argument informally to the court personnel or formally through motion practice.

This draft motion relies on social science about the effectiveness of mental imagery techniques at combatting implicit biases to argue for a proposed criminal jury instruction that employs a “cloaking” or “perspective-switching” exercise in which jurors are asked to consider if their impressions of the defendant (or a witness) would change if they were a different race. The draft motion collects research showing how pervasive implicit racial bias is, how voir dire alone is ineffective at ensuring defendants get fair trials, and how effective mental imagery exercises can be.  It also explains how other jurisdictions already have mental imagery instructions.

This draft motion should be used to exclude a confession when police officers contaminate the confession by feeding nonpublic facts about the offense to the questioned suspect. Relying on social science research and police interrogation manuals, the motion argues that: (a) police-contaminated confessions are impermissibly coercive and result in involuntary statements (pg. 1-3); and (b) police-contaminated confessions should be excluded under Rule of Evidence 403 because their probative value is substantially outweighed by the danger of unfair prejudice (pg. 3-8).

This motion relies on the Federal Rules of Evidence to argue for exclusion of expert DNA testimony about the likelihood ratio obtained using STRMix probabilistic genotyping software. Pages 5-8 describe the basic steps of DNA extraction and analysis. Pages 8-9 discuss the problems of trace DNA and the possibility of innocent transfer of DNA.  Page 11 explains how DNA analysis is less reliable when there is a complex DNA mixture and pages 12-15 discuss the danger that jurors will misunderstand (and prosecutors will misrepresent) what a likelihood ratio actually means.

This sample motion asks the trial court to amend the pattern jury instruction on a defendant’s right not to testify to include possible innocent reasons why a person might choose not to testify.  Most pattern instructions improperly “blindfold” jurors by withholding important information about possible innocent reasons why a criminal defendant might not testify, leaving jurors to rely on improper background assumptions that innocent people will testify in their defense and that those who choose not to testify are more likely to be guilty.  The proposed amendment (found at p. 7)  builds on the explanation-based jury instructions on flight that some jurisdictions have crafted (which include innocent reasons why a suspect might flee) and argues that jury instructions on the right not to testify should similarly include reasons why an innocent person might not testify in their defense.

This sample motion relies on social science showing that the “sex offender” label evokes strong negative emotional responses to argue that Rule 403 should prohibit all references to a client as a “sex offender.” The motion also discusses alternative labels that are less likely to evoke prejudicial responses.

This is a draft motion defenders can use to seek exclusion under Rule 403 of a co-defendant’s redacted confession that directly or indirectly incriminates your client. This motion can be used even when exclusion under the Confrontation Clause fails post-Samia (the Supreme Court’s 2023 Confrontation Clause). This motion distinguishes between the Confrontation Clause and the Federal Rules of Evidence and explains why a separate Rule 403 analysis is necessary even if the court finds no Confrontation problem (pages 8-11). It describes social science research demonstrating that (a) juries are unlikely to follow the limiting instruction to consider the co-defendant’s statement only against the co-defendant (pages 4-7) and (b) secondary confessions by a co-defendant will be weighed heavily by juries even when the co-defendant has a motive to lie or downplay their role (pages 7-8). Taken together, this research shows that the likelihood of unfair prejudice is extremely high and outweighs any interest the system may have in a joint trial, requiring either severance of the trials or exclusion of the co-defendant’s redacted confession under Rule 403.

In this amicus brief, the ACLU of Iowa relies on social science to point out that juries are likely to (a) form negative impressions of criminal defendants who are associated with rap music, (b) view rap lyrics are more truthful and literal than lyrics from other musical genres; and (c) associate those who write or perform rap lyrics with criminality and bad character.  Pages 16-32 discuss why singing along to rap music is not typically probative in a criminal case, because fictional violent imagery is prevalent throughout popular culture and media, including in hip hop and rap music, but it is a form of artistic expression rather than journalism or autobiography.  Pages 35-37 collect social science research showing the danger of unfair prejudice by noting that jurors are more likely to form negative impressions of defendants as involved in general criminal activity when defendants are associated with rap music. And pages 26-27 discuss the problematic racial justice implications of such findings given that hip hop and rap are associated with Black people and Black culture.

This brief challenges Washington Evidence Rule 609 under the Washington State Constitution and objects to the introduction of a prior robbery conviction for impeachment purposes. The brief cites research showing that the admission of prior convictions against criminal defendants has minimal, if any, probative value on the defendant’s truthfulness as a witness, and instead lowers the prosecutor’s burden because of high risk of prejudice (p. 3-7). The brief explains that the categorization of robbery as a crime of dishonesty comes from antiquated honor norms rather than social science (p. 7-9). The brief also discusses the disproportionate impact of impeachment with prior convictions on defendants of color (p. 13-16).

This motion relies on social science demonstrating the unreliability of witness attempts to identify people from surveillance videos/photographs and argues that due process and the evidence rules (Rules 602, 701, and 403) require exclusion of a police officer’s attempt to identify the defendant from a surveillance video.

Pages 2-4:  Discuss studies showing that humans are bad at matching people to images in photos/videos

Pages 4 –9:  Discuss studies showing that image quality (resolution, distance from subject, and moving versus still images), camera angle and viewpoint, lighting conditions at the time of the video or image capture, the presence or absence of obstructions to the camera’s view, and the size of the image captured all affect reliability

Pages 9 – 13: Discuss how situational factors including a lack of prior familiarity, cross-racial identification problems, and time delays between a prior exposure and the viewing of a surveillance photo/video all contribute to mistaken non-eyewitness identifications

Pages 15-16 – Discuss how these studies could also be used to (a) limit or prevent the prosecution from asking the judge/jury to compare a surveillance video/photo to the defendant, (b) obtain favorable expert testimony about the problems of non-eyewitness identification; (c) get the court to take judicial notice of these problems; (d) obtain favorable jury instructions about the problems with non-eyewitness identification testimony; (e) cross-examine non-eyewitnesses more effectively.

The ACLU of Michigan included these reports as exhibits in its recent litigation attacking the constitutionality of Michigan’s Sex Offenders Registration Act (SORA). Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.). The research cited in these reports — specifically on the low risk of recidivism among people convicted of sexual offenses and the counterproductive impact of registration/notification requirements on public safety and recidivism — could be used (1) when negotiating with a prosecutor for a plea to a non-registration offense, (2) when justifying such a plea to a sentencing judge, (3) in pre-trial release arguments, (4) in sentencing arguments where clients will be forced to register to show the onerous nature of registration, or (5) to support a motion in limine to preclude reference to a client as a “sex offender.”

(Note that the following page numbers are keyed to the page numbers in each expert report, which you can find in the middle bottom footer of each report):

Letourneau Report

Pages 2-11: Explaining through a dozen different scientific studies that sex offender registration and notification laws fail to increase community safety, do not have a general deterrent effect, and may even increase the incidence of crime by making it difficult for ex-offenders to find and maintain housing, employment, and social relationships.

Pages 11-12: Noting that researchers have found no connection between juvenile registration/notification and an increase in public safety but they have found increased incidences of attempted suicide among juvenile registrants as well as an increase in their likelihood of being victims of sexual assault themselves.

Pages 12-13: Citing research showing that 80% to 90% of adult males convicted of sex offenses are never reconvicted of a new sexual crime, including studies that debunk recidivism myths by showing rates of recidivism as low as 2-5%.

Pages 13-14: Discussing research showing that conviction offense has no bearing on recidivism risk.

Pages 16-17: Citing research showing the negative impact of registration on people’s mental health and ability to find and maintain stable housing, employment, and prosocial relationships, creating barriers for reintegration.

Pages 17-20: Discussing why the costs of implementing sex offender registration and notification laws are greater than any savings or benefits generated by those laws

Pages 21-22: Finding no correlation between failure-to-register violations and sexual recidivism

Socia Report

Pages 4-8:  Citing research showing that 90-95% of all sex crime arrests are for first-time offenders; the vast majority of sex crimes are not committed by strangers; and sex offender registration and notification laws do not reduce recidivism or make communities safer

Page 9-12:  Debunking through scientific research any suggestion that there is a high sexual recidivism rate and noting that sexual recidivism rates are actually lower than those of any other offense except murder

Pages 16-17:  Noting that language matters to public perceptions and that individuals are more likely to think negatively about someone described as a “sex offender” than someone described as an “individual convicted of crimes of a sexual nature” (this research might support a motion in limine about how clients should be described in court)

Pages 19-22:  Documenting how individuals on the sex offender registry are stigmatized in ways that affect reintegration including compromising employment and housing opportunities, as well as social support networks

Pages 22-25:  Noting that there is no consistent evidence that failure-to-register convictions predict increased sexual recidivism.

Details the dilemma that admitting a prior felony conviction results in: if the defendant testifies and his conviction is introduced, research shows there is a heightened risk that the jury will use the prior conviction to “draw an impermissible inference.” However, if the defendant chooses not to testify in order to prevent his conviction from being introduced, research shows people are more likely to find him guilty because he did not testify.

p. 51-56 cite research on general inefficacy of jury instructions

Studies demonstrate that pre-trial publicity impacts decision-making and individual questioning about content exposure is necessary in cases involving substantial, prejudicial pre-trial publicity

p. 30 – 37 discuss studies of implicit bias and the ways that racial cues – like a prosecutor characterizing a Black man as ‘angry’ –  can “automatically affect a broad range of decisions and behaviors” within juries.

Incorporates studies on implicit bias generally, as well as specifically within jury panels

Filed by the Innocence Project, this brief details research demonstrating that hair microscopy evidence does not meet the standards of reliable scientific evidence, as well as research showing how persuasive forensic testimony is to juries.

Summarizes research on accuracy of “criminal profiling” evidence over forty years, concluding profilers are no “better than bartenders at predicting the traits and features of offenders.” Also provides an overview of cases nationwide excluding criminal profiling evidence and finding that its major premise is faulty and essentially propensity evidence.

“When jurors are presented with evidence that is particularly gruesome, they are likely to experience a visceral emotionally charged feeling that leads them to be inappropriately punitive.” Incorporates studies demonstrating that exposure to gruesome evidence decreases the brain’s capacity for logical reasoning.

p. 22-38 discuss the use of 404(b) “other acts” evidence and why evidence of drug possession is not relevant to intent to distribute drugs. The brief goes on to outline research demonstrating that such “other acts” evidence is highly likely to improperly prejudice the jury in a way that cannot be cured by a limiting instruction.

Argues that “likelihood ratio” evidence — the statistical frequency of a suspect’s characteristic — has not been sufficiently validated and is misleading to the jury because the jury conflates it with probability of guilt.

p. 14 – 22 outline research on how jurors respond to limiting instructions, demonstrating that “providing a limiting instruction likely has little effect because it is almost impossible for jurors to forget evidence for one purpose, while remembering it for another.”

p. 9-18 overview studies on unreliability of cross-racial identifications and juror tendency to overestimate eyewitness accuracy. Brief also details why expert testimony and cross-examination do not eliminate the need for a jury instruction.

Brief outlines the factors that have been demonstrated to impact the reliability of eyewitness identification and argues for jury instructions that explain each individual factor.

p. 9-13 cite research on jury bias, impact of prior conviction evidence, and inefficacy of limiting instructions about prior convictions

p. 8 – 12 outline existing research on how jurors respond to and use evidence of prior convictions. Incorporates research demonstrating that limiting instructions do not cure the prejudice, as jurors still use prior convictions as propensity evidence even when instructed not to.

In-court identifications are inherently suggestive because they imply to the witness that the prosecutor has confirmed the witness’ initial identification. This brief argues that such an identification is more suggestive than a show-up and that the witness’ sense of accuracy artificially increases during subsequent identifications.

Because of the inherently suggestive nature of in-court identifications, courts should (1) subject them to the same protections and scrutiny as suggestive pretrial identification procedures (pgs. 4-9 of brief); (2) update existing standards and law to align with social science and other, more protective jurisdictions (pgs. 13-22 of brief); and (3) recognize that in-court identifications may be a violation of due process rights (pgs. 26-36 of brief)

Filed by the American Psychological Association, this brief supports specific jury instructions on eyewitness memory:

“Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex. The process of remembering consists of three stages: acquisition — the perception of the original event; retention — the period of time that passes between the event and the eventual recollection of a piece of information; and retrieval — the stage during which a person recalls stored information. At each of these stages, memory can be affected by a variety of factors.”

“Although nothing may appear more convincing than a witness’s categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness’s level of confidence, standing alone, may not be an indication of the reliability of the identification.”

Affidavit submitted by proposed defense expert detailing the existing research on how juries perceive the testimony of jailhouse informants (otherwise called “secondary confessions.”)

p. 7-12 collect lower court cases excluding gruesome photos due to likelihood they would inflame the jury.

p. 8-12 incorporate social science studies on how jurors respond to testimony designated as “expert”