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As of this post’s press time, the National Registry of Exonerations shows the number 1,625. Those are the documented ones, at least, marking the number of people convicted of serious crimes who have been later shown to be not guilty. As our understanding of the prevalence of wrongful convictions grows, scholars and advocates are looking into the reasons why. Kara MacKillop and Neil Vidmar of Duke Law School have a new article in the Chicago-Kent Law Review (MacKillop & Vidmar, 2015), in which they ask, “With estimates of wrongful conviction rates as high as 5% in serious felony cases, how are juries getting it wrong?” After all, one reaction to the risks of convicting the innocent is to just consider it an inevitable by-product of a justice system that depends on fallible human judgment. The analysis provided by MacKillop and Vidmar, however, offers a sobering response: In most cases, based on what they were told, the jury seems to have the right decision, or at least a justifiable one. Instead of the blame lying with the 12 individuals, good and true, responsibility rests with the quality of evidence that does or doesn’t make it into trial. “When the evidence presented is false or misleading or simply nonexistent at trial,” they write, “the jury cannot be held responsible for creating an erroneous narrative and thus a wrongful verdict.”

The article is entitled, “Decision-Making in the Dark: How Pre-Trial Errors Change the Narrative in Criminal Jury Trials” and it is currently available in a free download. MacKillop and Vidmar review research showing that jurors work hard, take their roles seriously, and apply a rational system in resolving cases by trying to form a complete narrative. The main problem, they say, is not with that process, but with the information that is fed into it. For example, they report on one recent analysis (Garrett, 2012) of the first 250 DNA exonerations showing clear patterns of error in those cases regarding the evidence that was let in or kept out. And when those errors are explored, the appeals process applies a bias for finality and a very high standard for tossing out a verdict and ordering a new trial. As a result of what the authors describe as “astonishingly consistent problems with withheld, suppressed, and misleading evidence,” jurors try to complete the story, but frequently don’t have the necessary information to reach a fair conclusion. MacKillop and Vidmar draw out of this some implications for court reform, but their investigations carry some broader implications for jury trials generally.

The Root Cause of Wrongful Convictions

The authors both work with the Duke Wrongful Convictions Clinic and the article is part of their development of a “root cause analysis” methodology to look at what policies and doctrines are most responsible for erroneous verdicts. As part of that effort, they also looked at the jury’s role, but found little evidence to support the idea that juries are making independent errors of their own to any substantial degree. Instead, their analysis points to the way the two keystone cases on withheld evidence (Brady v. Maryland) and false evidence (Napue v. Illinois) are being applied by the courts. At the appeals level, courts apply a high standard of whether the evidence’s presence or absence would have likely led to a different result, and all mistakes that don’t rise to that level are tossed into a bin labeled “harmless error.” The problem with that approach is that it ignores the fact that jurors aren’t just processing evidence, but are instead trying to form their own narrative of what happened, and if the error leads to jurors not reaching a complete and accurate story, then the error isn’t harmless. As MacKillop and Vidmar argue, “Without question, the allowance of absent, misleading, or false evidence must influence the narrative the jury develops, and the final verdict absolutely springs from that narrative.”

In keeping with their focus on narrative, the authors also provide two stories to illustrate these problems, and both are worth reviewing in the article. The first involves LaMonte Armstrong, convicted and sentenced to life in a 1988 murder. His conviction was based on testimony from a number of incentivized jailhouse sources that would have been much less credible if jurors had heard the full extent of their prior activities. Prosecutors also presented misleading information about the relationship between Mr. Armstrong and the murder victim, a neighbor, and suppressed evidence denying the state’s implication that Armstrong had a motive in the form of an attempt to borrow money. The second story focuses on J.L. Hardee, a juror who wrote a 2012 account of his own experience as a capital juror in a 1999 conviction. That case also involved several problems including a very questionable confession along with suppressed evidence on an alternate suspect and indications of a lack of communication and a broken-off relationship between the supposed co-conspirators. In both cases, the reasons for the wrongful conviction stem from the inaccurate and incomplete information that made up the jurors’ story.

The Implication  for Civil Trials

Drawing lessons from both stories, MacKillop and Vidmar focus their implications on criminal trials, paving the way for what is likely to be a broader set of recommendations on handling Brady and Napue issues in trial. In thinking more broadly on juries and the causes of questionable verdicts, however, I believe that the work carries implications for civil trials as well.

The main implication is to expect jurors to want a complete story in every case. MacKillop and Vidmar rely on Hastie, Penrod & Pennington’s story model (1983), noting that “jurors construct a story that embraces the facts presented, as well as their own knowledge and experience, into a coherent whole.” That insight suggests that treating narrative gaps as “harmless errors” is a problem not just for criminal trials but for all trials. To make sense of the events and to work their way to a resolution that feels just, jurors need to knit the disparate facts together until they form a continuous narrative. One lesson of the story model is that jurors will be unsatisfied with any unfilled gaps, and will have a powerful incentive to fill in those gaps with inferences, probabilities and even speculation. And that is where the perspective runs up against the rules of evidence, which understandably aren’t interested in “the full story,” but in what is relevant and material. Still, it is every litigator’s responsibility to know about the likely gaps and to make reasonable efforts to understand how jurors are likely to fill them. If a focus group, for example, tells about a key assumption that jurors are likely to make, then steps are taken to address it. You can, for example, call it out to them by acknowledging where they’ll be tempted to speculate, and then reminding them that they’ll be instructed to resist that temptation. There is some evidence that becoming sensitized to a bias can provide jurors with improved armor in combatting that bias. In addition, litigators and judges should also think broadly about relevance and materiality, understanding jurors’ natural pull toward resolving issues in the context of the full story.

Ultimately, a jury’s decision can only be as good as the information that is allowed in to support that decision. While the stakes are definitely higher in serious criminal cases, the narrow and selective processes that can lead a reasonable jury to an unreasonable conclusion are a risk in any case.

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