Archive for November 15, 2007
When the black box is opened
Nov 15th
Juries are often likened to the black box. You know stuff goes in and you know stuff comes out. What happens inside the box, however, is a mystery. People can guess, people can opine (some make careers out of it), but you never really know how a jury is going to behave. Until one of them speaks out, that is.
This unfortunate tale comes from New York, where, after verdict, a juror spoke up and revealed that they misunderstood the judge’s instructions.
The anonymous juror contended that at least six others on the 12-member jury would have found Joseph Cammarano not guilty of gang assault if they had understood the charge properly.
Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski.
The juror claimed the panel mistook the charge to mean Cammarano should be found guilty of gang assault if they believed he had participated in the Dongan Hills playground melee, regardless of whether he stabbed Orloski.
“We never intended to find (Cammarano) responsible for Richard Orloski’s stabbing, period,” the juror contended.
Part of the cause of this problem is the discretion of judges to permit note taking during trials. This judge did not allow it. The jury didn’t have a written copy of his charge available during deliberations, but requested a read-back of his orders on how to apply the charge in their verdict.
Collini reread his charge on gang assault, and also repeated instructions on three additional charges.
“We had several things read back to us. It was confusing,” the juror contended, claiming that on their return to the jury room, the panelists were still unclear about how to interpret Cammarano’s role in a brawl involving 30 youths in the playground next to PS 52 on Feb. 4, 2006.
I have never understood why note-taking is not permitted during trials. With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?
That’s not all, though. This jury exhibited the classic symptoms of a jury that just wanted to go home:
Describing the atmosphere behind closed doors as including “a lot of cursing and arguing,” the juror claimed the panel was “absolutely split down the middle” as to whether Cammarano stabbed Orloski.
After deliberations began, another member “refused to spend another day” and threatened to hang up the entire panel and force a mistrial if they had to come back on Friday, according to the anonymous juror.
While he was correctly convicted on other counts (and therefore his total exposure doesn’t change much), we still have a man who was convicted of something he shouldn’t have been. That’s unacceptable.
H/T: Indefensible
Update: Scott notes the most obvious downside of juries taking notes: They don’t pay attention to what is currently being said. I don’t think this is as big a problem as he makes it out to be – super juror and what not – and can be rectified with a simple jury instruction. The notes are to assist in recall and should be treated as such. He also points out that notes aren’t perfect and we have a system of perfect recall: reading back the testimony. Sure, that may work in some cases, where the information the jury is seeking is a large part of the case and they are constantly reminded of it. But what of something that seems minor, but could be pivotal? If they don’t have notes to remind them, how will they know what to have read back?
At the very least, the jury should have a copy of the charge.
Freeze! Your memory, that is
Nov 15th
Apparently, scientists have developed a new tool to “freeze” crime scene memories.
The tool – a self-administered interview applied by witnesses at crime scenes – combats natural memory decay by using the latest research in cognitive psychology techniques. It ‘freezes’ images and details of crime scenes and perpetrators in the minds of witnesses, particularly small and seemingly insignificant details that provide major leads for detectives that turn out to be crucial in solving cases.
While this might have utility in memorizing details from the scene itself, I have to question its usefulness in remembering descriptions of perpetrators. Part of the problem with eyewitness identification testimony (and partly why experts are starting to be used) is eyewitness confidence. Studies have shown that there is very little correlation between eyewitness confidence and accuracy. I fear that this tool might serve to cement incorrect recollections of the perpetrator.
It is a tool that seems to work, though:
Tests at simulated crimes scenes were remarkable with witnesses using the tool recalling forensically relevant information 42 percent more accurate than other witnesses who were simply asked to ‘report as much as you can remember’. The tests also revealed the witnesses using the self-administered interview (SAI) were 44 percent more correct with details about people – therefore, possible suspects – who had been involved in the event.
In another test there was a delay of seven days between witnessing the event and providing a full account. Half the participants completed self-administered interviews after witnessing the event while the other participants simply gave their name and contact details – as normally happens to a large number of witnesses at crime incidents. Scientists tested the group after seven days and found participants who had completed the SAI were still reporting almost 30 per cent more correct details than other witnesses.
That’s just staggering. This goes to show that in every case we have involving eyewitness testimony, we must explore any and all challenges to its reliability and perhaps retain an expert. This cannot be ignored any more in practice. For the CT practitioner, Lisa Steele’s Law Review article at 25 Quinnipiac L. Rev. 799 is very helpful (thanks to JC).
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