In this episode of The Sniper Defense, Podcast Playbook for Defense Attorneys, Thomas M. O’Toole, Ph.D. discusses strategies for defense attorneys to exert greater influence over the content and structure of jurors’ notes.
By Thomas M. O’Toole, Ph.D.
Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.
The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations. Continue reading
By Thomas M. O’Toole, Ph.D.
There has been a lot of discussion and research devoted to the value of juror note-taking. Not too long ago, the concept of allowing jurors to take notes during trial was considered cutting edge. Some trial venues still do not allow it, although most do. No attention appears to have been given to strategies for influencing juror note-taking, which is shocking since so much of the research speaks to the influence that note taking plays in deliberations. According to one study, 75% of all jurors given the opportunity to take notes believed it assisted them in recalling the evidence, understanding the law and reaching a decision. Given the influence that jurors’ notes play in their decision-making, the jury consulting field needs to venture into an examination of how presentation strategies can influence the process of note-taking.
I am absolutely convinced there is a significant strategic advantage to be gained when an attorney can structure a presentation in a manner that exerts influence on juror note-taking. But it is not enough that jurors just take notes. This is the problem of the current research. It focuses on the value of taking notes versus not taking notes. But the issue is not that simple. The real strategy development lies in the next level of examining how jurors take and use their notes and how an attorney’s presentation at trial can influence the way in which jurors take and use their notes. Continue reading