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Improving Jury Deliberations Through Jury Instructions Based on Cognitive Science

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Improving Jury Deliberations Through Jury Instructions Based on Cognitive Science IMPROVING JURY DELIBERATIONS THROUGH JURY INSTRUCTIONS BASED ON COGNITIVE SCIENCE Jury Committee Approved by the Board of Regents February 2019 MISSION STATEMENT OF THE AMERICAN COLLEGE OF TRIAL LAWYERS he American College of Trial Lawyers is an invitation only fellowship of exceptional trial lawyers of diverse backgrounds from the United States and TCanada. The College thoroughly investigates each nominee for admission and selects only those who have demonstrated the very highest standards of trial advocacy, ethical conduct, integrity, professionalism and collegiality. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on important legal issues relating to its mission. The College strongly supports the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. “In this select circle, we find pleasure and charm in the illustrious company of our contemporaries and take the keenest delight in exalting our friendships.” —Hon. Emil Gumpert, Chancellor-Founder, ACTL American College of Trial Lawyers 1300 Dove Street, Suite 150 Newport Beach, California 92660 Telephone: (949) 752-1801 Website: www.actl.com Email: [email protected] Copyright © 2019 American College of Trial Lawyers All Rights Reserved. AMERICAN COLLEGE OF TRIAL LAWYERS CHANCELLOR-FOUNDER Hon. Emil Gumpert (1895-1982) OFFICERS JEFFREY S. LEON, LSM, President DOUGLAS R. YOUNG, President-Elect RODNEY ACKER, Treasurer MICHAEL L. O’DONNELL, Secretary SAMUEL H. FRANKLIN, Immediate Past President BOARD OF REGENTS SUSAN S. BREWER PAUL J. HICKEY Morgantown, West Virginia Cheyenne, Wyoming JOE R. CALDWELL, JR. LARRY H. KRANTZ Washington, District of Columbia New York, New York JOHN A. DAY MARTIN F. MURPHY Brentwood, Tennessee Boston, Massachusetts RICHARD H. DEANE, JR. DANIEL E. REIDY Atlanta, Georgia Chicago, Illinois MONA T. DUCKETT, Q.C. MICHAEL J. SHEPARD Edmonton, Alberta San Francisco, California KATHLEEN FLYNN PETERSON ROBERT K. WARFORD Minneapolis, Minnesota Riverside, California SANDRA A. FORBES ROBERT E. WELSH, JR. Toronto, Ontario Philadelphia, Pennsylvania THOMAS M. HAYES III Monroe, Louisiana DENNIS J. MAGGI, CAE, Executive Director AMERICAN COLLEGE OF TRIAL LAWYERS PAST PRESIDENTS 1950-51 EMIL GUMPERT* 1973-74 ROBERT L. CLARE, JR.* 1996-97 ANDREW M. COATS Los Angeles, California New York, New York Oklahoma City, Oklahoma 1951-52 C. RAY ROBINSON* 1974- AUSTIN W. LEWIS* 1997-98 EDWARD BRODSKY* Merced, California New Orleans, Louisiana New York, New York 1952-53 CODY FOWLER* 1975-76 THOMAS E. DEACY, JR.* 1998-99 E. OSBORNE AYSCUE, JR. Tampa, Florida Kansas City, Missouri Charlotte, North Carolina 1953-54 E. D. BRONSON* 1976-77 SIMON H. RIFKIND* 1999-2000 MICHAEL E. MONE San Francisco, California New York, New York Boston, Massachusetts 1954-55 CODY FOWLER* 1977-78 KRAFT W. EIDMAN* 2000-2001 EARL J. SILBERT Tampa, Florida Houston, Texas Washington, District of Columbia 1955-56 WAYNE E. STICHTER* 1978-79 MARCUS MATTSON* 2001-2002 STUART D. SHANOR Toledo, Ohio Los Angeles, California Roswell, New Mexico 1956-57 JESSE E. NICHOLS* 1979-80 JAMES E. S. BAKER* 2002-2003 WARREN B. LIGHTFOOT Oakland, California Chicago, Illinois Birmingham, Alabama 1957-58 LEWIS C. RYAN* 1980-81 JOHN C. ELAM* 2003-2004 DAVID W. SCOTT, Q.C.* Syracuse, New York Columbus, Ohio Ottawa, Ontario 1958-59 ALBERT E. JENNER, JR.* 1981-82 ALSTON JENNINGS* 2004-2005 JAMES W. MORRIS, III* Chicago, Illinois Little Rock, Arkansas Richmond, Virginia 1959-60 SAMUEL P. SEARS* 1982-83 LEON SILVERMAN* 2005-2006 MICHAEL A. COOPER Boston, Massachusetts New York, New York New York, New York 1960-61 LON HOCKER* 1983-84 GAEL MAHONY* 2006-2007 DAVID J. BECK Woods Hole, Massachusetts Boston, Massachusetts Houston, Texas 1961-62 LEON JAWORSKI* 1984-85 GENE W. LAFITTE 2007-2008 MIKEL L. STOUT Houston, Texas New Orleans, Louisiana Wichita, Kansas 1962-63 GRANT B. COOPER* 1985-86 GRIFFIN B. BELL* 2008-2009 JOHN J. (JACK) DALTON Los Angeles, California Atlanta, Georgia Atlanta, Georgia 1963-64 WHITNEY NORTH SEYMOUR* 1986-87 R. HARVEY CHAPPELL, JR.* 2009-2010 JOAN A. LUKEY New York, New York Richmond, Virginia Boston, Massachusetts 1964-65 BERNARD G. SEGAL* 1987-88 MORRIS HARRELL* 2010-2011 GREGORY P. JOSEPH Philadelphia, Pennsylvania Dallas, Texas New York, New York 1965-66 EDWARD L. WRIGHT* 1988-89 PHILIP W. TONE* 2011-2012 THOMAS H. TONGUE Little Rock, Arkansas Chicago, Illinois Portland, Oregon 1966-67 FRANK G. RAICHLE* 1989-90 RALPH I. LANCASTER, JR.* 2012-2013 CHILTON DAVIS VARNER Buffalo, New York Portland, Maine Atlanta, Georgia 1967-68 JOSEPH A. BALL* 1990-91 CHARLES E. HANGER* 2013-2014 ROBERT L. BYMAN Long Beach, California San Francisco, California Chicago, Illinois 1968-69 ROBERT W. MESERVE* 1991-92 ROBERT B. FISKE, JR. 2014-2015 FRANCIS M. WIKSTROM Boston, Massachusetts New York, New York Salt Lake City, Utah 1969-70 HON. LEWIS F. POWELL, JR.* 1992-93 FULTON HAIGHT* 2015-2016 MICHAEL W. SMITH Washington, District of Columbia Santa Monica, California Richmond, Virginia 1970-71 BARNABAS F. SEARS* 1993-94 FRANK C. JONES* 2016-2017 BARTHOLOMEW J. DALTON Chicago, Illinois Atlanta, Georgia Wilmington, Delaware 1971-72 HICKS EPTON* 1994-95 LIVELY M. WILSON* 2017-2018 SAMUEL H. FRANKLIN Wewoka, Oklahoma Louisville, Kentucky Birmingham, Alabama 1972-73 WILLIAM H. MORRISON* 1995-96 CHARLES B. RENFREW* Portland, Oregon San Francisco, California * Deceased JURY COMMITTEE CHAIR ROBERT T. ADAMS KANSAS CITY, MISSOURI VICE CHAIR BRUCE R. PARKER BALTIMORE, MARYLAND MEMBERS ALEX AlvAREZ GERALD R. KOWALSKI JOHN R. PENHALLEGON CORAL GABLES, FLORIDA TOLEDO, OHIO TOWSON, MARYLAND JEPTHA F. BARBOUR GREGORY M. LEDERER LYN P. PRUITT JACKSONVILLE, FLORIDA CEDAR RAPIDS, IOWA LITTLE ROCK, ARKANSAS MICHAEL L. BELL ANDREW M. MORSE JAMES S. ROGERS BIRMINGHAM, ALABAMA SALT LAKE CITY, UTAH SEATTLE, WASHINGTON ARTHUR P. BROCK JOEL A. MULLIN JOSEPH J. ROPER CHATTANOOGA, TENNESSEE PORTLAND, OREGON KANSAS CITY, MISSOURI MICHAEL A. BROWN KENNETH A. MURPHY PERRIN RYNDERS BALTIMORE, MARYLAND PHILADELPHIA, PENNSYLVANIA GRAND RAPIDS, MICHIGAN CHERYL A. BUSH JOSEPH E. O’NEIL DANIEL J. SCULLY, JR. TROY, MICHIGAN PHILADELPHIA, PENNSYLVANIA DETROIT, MICHIGAN WILLIAM J. CONROY TIMOTHY G. O’NEILL RALPH A. WEBER* BERWYN, PENNSYLVANIA DENVER, COLORADO MILWAUKEE, WISCONSIN RUDY A. ENGLUND LARRY OTTAWAY MARC E. WILLIAMS SEATTLE, WASHINGTON OKLAHOMA CITY, OKLAHOMA HUNTINGTON, WEST VIRGINIA MARK R. FILIP ANGELO M. PATACCA, JR. SHERYL J. WILLERT CHICAGO, ILLINOIS JACKSONVILLE, FLORIDA SEATTLE, WASHINGTON VINCENT GAlvIN, JR. JANE PAULSON SAN JOSE, CALIFORNIA PORTLAND, OREGON REGENT LIAISON MARTIN F. MURPHY BOSTON, MASSACHUSETTS *Ralph A. Weber was the primary author of this publication TABLE OF CONTENTS Part 1: Cognitive Science Insights into Human Decision-Making .........................................................2 Decision-Making Flaws in Practice ...........................................................................................4 Flaw 1—The “Affect” Heuristic ................................................................................................5 Flaw 2—Confirmation Bias .......................................................................................................6 Flaw 3—Brain Glucose Depletion and Cognitive Performance ................................................8 Flaw 4—Juror Dominance and Submissiveness ........................................................................9 Part 2: How Courts and Jury Instruction Committees Have Used Cognitive Science Regarding Eyewitness Testimony ...........................................................................................10 Part 3: Model Instructions Based on Cognitive Science .......................................................................14 1. Activate System 2 Thinking by an “Accountability” Instruction ...............................14 Model Accountability Instruction ...............................................................................15 2. Offset Confirmation Bias by a “Devil’s Advocate” Instruction ..................................15 Model Devil’s Advocate Instruction ...........................................................................17 3. Schedule Juror Breaks and Nutrition to Offset Brain Drain .......................................17 4. Instruct on the Processes of Jury Deliberation and the Foreperson’s Role in Order to Counteract Dominant Jurors ....................................................................18 Model Deliberation Guide Instruction ........................................................................18 Conclusion ............................................................................................................................................19 EXHIBITS A. Accountability Instruction .......................................................................................................20 B. Devil’s Advocate Instruction ................................................................................................... 21 C. Deliberation Guide Instruction ................................................................................................22 IMPROVING JURY DELIBERATIONS THROUGH JURY INSTRUCTIONS BASED ON COGNITIVE SCIENCE With this closing instruction ringing in their ears, jurors across the country are sent off to their deliberation rooms to reach a verdict:
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