Sample Closing Argument Civil Trial No Jury by qzk17655


Sample Closing Argument Civil Trial No Jury document sample

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									Teaching legal psychology
as an application of social
      Michel Sabourin, Ph.D.
       Dept. of Psychology
  University of Montreal, CANADA

(1) Applying social psychology
     Trial consultation
     Jury selection
     Pretrial attitudes and biases
     Credibility asessment
     Eyewitness testimony

              OUTLINE           (cont’d)

     Pretrial publicity
     Jury deliberation
     Psychological expertise

(2) Experiential learning


During the past twenty years, I have been
teaching undergraduate classes and
graduate seminars in legal psychology,
assuming as well the training and
supervision of graduate students both in
research projects and in the numerous
applications of psychology to the legal
field .

   Two major influences on the core
    curriculum of my lectures and on the
    delivery method:
    (1) the idea developped by Sharon Brehm and
    Saul Kassin (in their Social Psychology textbook)
    that legal psychology is one of the direct
    applications of social psychology
    (2) the need to rely on experiential activities to
    promote learning

       Applying Social Psychology
   Theories and research findings of social
    psychology allow us to increase our
    understanding of settings and problems of
    the real world
   According to Brehm & Kassin (1990 and
    the following editions), three major aplied
    areas to social psychology: LAW,

      Applying social psychology
   The applications to law include areas, like
    (1) trial consultation, (2) jury selection,
    (3) pretrial attitudes and biases,
    (4)credibility assessment, (5)eyewitness
    testimony, (6)pretrial publicity, (7) the
    jury deliberation process and (8)
    psychological expertise
   Each of these areas is linked with specific
    theories and research findings in social
    psychology that students must review
        Applying social psychology
   The trial itself illustrates the profound
    importance of social psychology at work in
    the legal system
       What kinds of people do lawyers select as
        jurors and why ?
       Can eyewitness accurately recall the details of
        traumatic events ?
       How do juries manage to reach unanimous
        decisions, often afer days of deliberation ?

          (1) Trial consultation
   This involves assisting the attorney (in
    criminal cases, the defence lawyer) in the
    different aspects of trial preparation, like,
    for example, evaluation of the evidence
    and its presentation strategy, preparation
    of the opening statements and closing
    arguments, witness preparation and order
    of appearance, etc…

         (1) Trial consultation (cont’d)
   These different areas link with the
    following social psychology sub-areas :
       Persuasion :social influences on attitude
          How attitudes are measured
          The link between attitudes and behavior

          Methods of changing attitudes

       Persuasion by means of communication
          Two routes to persuasion
          The source, the message and the audience

    (1) Trial consultation (cont’d)
   Persuasion by our own actions
      Role playing
      Cognitive dissonance theory

      Alternative routes to self-persuasion

Most important for the student to
 master these basic areas to better
 understand and apply them to trial

               (2) Jury selection
   Three stage process =
       (1) Pool of eligible citizens
       (2) Pretrial examination of prospective jurors
       (3) Peremptory and for cause challenges

    What guides the decision to accept
     certain jurors, while rejecting others ?

         (2) Jury selection (cont’d)
   From a social psychology standpoint, jury
    selection involves a good knowledge of:
      Stereotype formation: social
       categorization, outgroup homogeneity
       bias, illusory correlations,
       subcategorization, contrast effect
      Implicit personality theories

      Impression formation

     (2) Jury selection (cont’d)
 Prejudice: individual differences,
  authoritarian personnality
 Trait differences : implicit personality
  theories and the power of first
 Confirmation bias

 Research methods (observation, self-
  reports, surveys, etc…)

    (3) Pretrial attitudes and bias
   Systematic jury selection: Finding valid
    and objective indicators allowing the
    lawyer to identify individuals coming from
    the pool of potential jurors who will be
    favorable or neutral with respect to the
    theory of the client represented and to
    reject unfavorable or biased individuals
   Verdict prediction depends on the specific
    issues and details of a particular case
    (3) Pretrial attitudes and bias

   Scientific jury selection involves
    knowledge of:
      Demographics and attitudes relevant to
      Confirmation bias and confirmatory
       hypothesis testing
      Kohlberg’s stages of moral development

      Research methods

      (4) Credibility assessment

   Identification of the behaviors (nonverbal,
    paralinguistic and verbal) allowing an
    evaluator (judge, police officer, custom
    officer, etc…) to distinguish between those
    telling the truth and those lying (or

    (4) Credibiity assessment (cont’d)
   For a better understanding of this concept
    and its applications, the student should
    master :
       The link between attitudes and behavior
       Persuasion by means of communication
       Behavioral observation methods
       Social psychophysiology: sympathetic and
        parasympathetic reactions
       Role of scripts and self-schemas
       (5) Eyewitness testimony
   The testimony (or evidence) given by someone
    present during an event who actually saw what
    happened and who is willing to testify in court to
    help the judge or jury arrive at a decision .
   General research conclusions = (1) eyewitnesses
    are imperfect, (2) many well known factors
    systematically affect their performance, (3)
    judges and juries are usually unaware of these
   The main cause of wrongful convictions
    (5) Eyewitness testimony (cont’d)
   Involves the knowledge of:
       The three stage process in memory:
          (1) acquisition: relation between arousal and
           performance (Yerkes-Dodson Law), cross-racial
           identification bias
          (2) storage: theory of reconstructive memory

          (3) retrieval: line up construction, identification,
       Role of self-confidence and accuracy
       Over-estimation of eyewitness accuracy
            (6) Pretrial publicity
   The more information the people have about a
    case from the media, the more likely they are to
    presume the defendant guilty
   Does this information have an impact on jury
    verdict ?
   Pretrial publicity can severely compromise a
    defendant’s right to a fair trial
   The closest social psychology concept that helps
    better understand what’s going on is the power
    of first impressions
              (7) Jury deliberation
   Group deliberation process designed to
    produce a binary decision : guilty or not
   Involves a large number of social
    psychological concepts:
       Group polarization
       Conformity,
       Majority influence
       Effect of group size, social change, leadership, etc…

      (8) Psychological expertise
   Expert witnesses: individual who testify in court
    on technical matters related to their expertise
   Psychologists are being asked with increasing
    frequency to testify as expert witnesses (mostly
    in custody cases, but also in areas more familiar
    to the social psychologist, like cameras in court,
    eyewitness testimony, trademark litigation, etc…
   What do we need to know about social
    psychology to become a better expert ?

     (8) Psychological expertise
   An overview of research methods
   Ethics and values in social psychology
   Again, social influence and persuasion
   The expert witness is allowed to voice
    opinions (inference from observed facts),
    to report hearsay, to speculate based on a
    recognized (even if not exact) science

    Promotion of learning through
        experiental activities
   In each area that we have just looked at, I
    have, throughout the years, made special
    efforts to design learning activities related
    directly to the issues under scrutiny
   The idea was to supply undergraduates, in
    some cases, and graduate students in
    other occasions, with the chance to live an
    experience that would provide them with a
    better comprehension of the phenomenon
    Trial consultation in real cases
   Since 1985, I have been involved as a
    consultant in over 30 jury (criminal) trials
    in sometimes highly publicized cases
   Each time, I would profit from the
    occasion to involve my graduate students
    as assistants, either for the gathering of
    data and/or the discussions concerning
    the specific issues of a particular case.
    They would also be present during the
    trial and the debriefings with the lawyer
    Trial consultation in real cases
   Various types of services can be offered to
    help lawyers with case preparation:
       Organization of a mock trial (from paper
        presentations to highly sophisticated « trial »
        with actors in « real » courtrooms)
       Videotaping (and thorough reviewing) of
        opening statements and closing arguments in
        light of social psychology principles: Ex.:
        primacy and recency effects, one or two-sided
        arguments, etc…

    Trial consultation in real cases

   Goal of these procedures: (1) to test the
    reactions of lay persons to the arguments
    that could be used and to identify
    potential problems of comprehension, (2)
    to gather demographic information that
    can eventually be used for jury selection

              Jury selection
   Using systematic jury selection
    methodology, information is gathered
    through the application of survey
    techniques or by using questionnaires with
    mock jurors and/or results of credibility
   Data collected allow us to define the
    favorable and unfavorable profiles of
    potential jurors
               Jury selection
   In highly publicized cases, where
    prejudicial information has circulated, data
    can also be provided by using the public
    opinion poll methodology
   Graduate students are involved in the
    design of the questionnaire, the actual
    polling and the data analysis. Thus they
    learn concretely how things are done

               Jury selection
   General scheme of a pretrial survey:
   First, spontaneous recall, then recognition.
   Then specific questions concerning
    attitudes toward the arguments to be used
    by the defense and/or the prosecution
   Judgment call on the degree of perceived
    guilt of the accused

               Jury selection
   Measure of general attitude toward certain
    issues, v.g. racial prejudice
   Finally, gathering of socio-demographic
   Through appropriate statistical analysis
    (multiple regression), possible to establish
    the relation between different variables
    and draw very precise profiles
   Importance of proceeding in a systematic
    fashion for jury selection using data
           Credibility assessment
   Important to know how the accused is
    perceived to enable attorney to decide if
    he/she will testify, since there is no
    obligation to do so.
   Also important to know the credibility of
    the major witnesses for the prosecution
       In Canada, obligation for the prosecution to
        demonstrate sufficient evidence to support
        the charges laid against the accused during a
        preliminary hearing.This information can be
        used for credibility assessment.
         Credibility assessment
   Also, a videotaped mock interrogation (with a
    cross-examination by a mock prosecutor) of the
    accused can be evaluated for credibility by a
    sample of lay persons
   Test using Adjective Check List devised to
    perform this evaluation both for the witness
    itself and his/her testimony ; administered to
    large samples and results compiled. Again,
    graduate students are directly involved in data
   Decisions made are therefore based on empirical
         Credibility assessment
   Same material used for credibility assessment
    can be used to stage a mock trial with balanced
    presentation of the evidence and mock jury
   Multiplied a certain number of times, these mock
    trials provide useful empirical data that can be
    used for jury selection
   Also, in-depth viewing and analysis of the
    videotapes of the mock jury deliberations can be
    very useful to assess proper understanding of
    legal concepts involved

           Credibility assessment
   For teaching purposes with students (in
    psychology or in law school), as well as for
    judges and custom officers, an
    experiential workshop was designed
       First activity: gathering information on what
        indicators are spontaneously used by the
        participants to identify truth tellers or liars.
        Degree of confidence of indicators

       Credibility assessment
   Second activity: viewing the testimonies (on
    video) of an alleged victim and an alleged
    accused in a « university » case seemingly
    involving sexual harassment. Evaluation of
    the credibility of both and listing of indicators
    used to arrive at conclusion
   Third activity : evaluating the pertinence of a
    list of 25 indicators to help identifying truth
    tellers or liars and noting their degree of
    confidence in these indicators.

       Credibility assessment
   Fourth activity: Being given a 45-min. lecture
    involving general notions of credibility and
    research results concerning the validity of a
    certain number of indicators (all in previous
    list) to distinguish between liars ans truth-
    Fifth activity: Results of third activity have
    been compiled and general results (means of
    the group) are presented and discussed.
    Indications are given as to the most valid
    indicators and those who are anecdotic
           Eyewitness testimony
   Two experiments have been designed to
    enable undergraduate students to better
    grasp the reality (and difficulties)
    surrounding eyewitness testimony
       (1) A confederate accomplice knocks and
        enters my classroom with a big problem: a
        specific car is blocking his own and needs to
        be immediately removed. It happens to be
        my car ; I lend him my keys with the promise
        that they will be returned immediately
       Eyewitness testimony
   Doesn’t come back after 10 minutes. I call for
    a pause to go see what has happened. Car is
    stolen. University security (other
    accomplices) is called in, and since it’s too
    long to interview everyone individually, they
    distribute a paper with various questions for
    proper identification of culprit ; in order to
    follow up only the sure indicators, students
    are asked to rate their degree of certainty
    concerning the various elements of their
       Eyewitness testimony
   Once all students have completed the task, I
    inform them that the car theft is a hoax ! The
    « culprit » comes back into the room…
   Each one then compiles his own report,
    noting number of correct and incorrect items,
    as well as the degree of certainty for each
   The experiment ends with a long discussion of
    the difficulties surrounding eyewitness
       Eyewitness testimony
   (2) The second experiment is also presented
    as a true story. A Swedish colleague involved
    as a consultant to the prosecution has asked
    me to evaluate the construction and validity
    of a lineup made by the Stockholm police
    during the inquiry surrounding the
    assasination of Prime Minister Olof Palme in
    1986. (True)Reason: the convicted murderer
    has appealed to the Swedish Supreme Court
    advocating that the video lineup was invalid

       Eyewitness testimony
   Student are asked to view the video of the
    lineup with twelve suspects and to identify
    who they think would be the culprit
   If the lineup is valid, each suspect has one
    chance out of twelve to be chosen. If any
    one suspect or suspects are chosen
    significantly more often than chance, and if
    the murderer is correctly identified, then the
    video is not valid
   Answers are compiled and there is discussion

             Pretrial publicity
   Usually the main argument for asking for a
    change of venue and/or supporting the
    need to ask questions during the voir dire
    (selection of jurors)
   The large amount of prejudicial publicity in
    the written articles or in media broadcasts
    is not sufficient to show convincingly that
    a true prejudice exists
   There must be a causal relationship
             Pretrial publicity
   Again, this factor is evaluated by means of
    public opinion polling with first, the
    measurement of spontaneous recall, then
    that recognition
   The impact of the most prejudicial
    informations that circulated is evaluated
   Graduate students participate in all stages
    of questionnaire preparation,
    administration and data analysis
       Jury deliberation process
   Following the trial part (or after the
    presentation of evidence by the
    prosecution and the defence and the
    closing arguments) of a mock trial, the
    mock jurors are given instructions and
    asked to deliberate, as if for real, in a
    special room equiped with video recording

       Jury deliberation process
   Viewing and analysis of these videos is
    very instructive for students (or for
    lawyers !) with regard to what is
    remembered from the evidence presented
    initially, what is used to reach a verdict,
    what is clear, what is unclear, what is
    understood, what is not understood, how
    legal concepts are interpreted or
    understood, etc…
       Jury deliberation process
   Also, it gives information on how the
    group structures itself and what degree of
    polarization can be witnessed
   Very instructive to look at the way siding
    develops and ultimately, how is consensus
   Observing for specific behaviors or
    arguments (in terms of frequency and
    duration) is also very helpful to better
    understand the deliberation process
        Psychological expertise

   Over the years, I have been involved as
    expert witness or consultant not only with
    criminal jury trials, but also in various
    cases dealing with lie detection in civil
    proceedings, the impact of cameras
    outside the courtroom and presently, with
    the identification and control of vexatious
    litigants (at the request of the Chief
        Psychological expertise
   In most of these occasions, and whenever
    possible, I have tried to involve my
    graduate students in the discussions
    surrounding those cases, but also in the
    main activities deriving or required by the
   In a way, it’s like supervising interns in the
    application of psychology to law

   We strongly believe that relating
    concretely social psychological concepts to
    the reality of the real world of law enables
    the students to better comprehend
    sometimes difficult to grasp theoretical
   For doing so, involving personnally and
    experientially the learner surely enhances
    significantly the learning process


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