Evaluating Negative Forensic Evidence: When Do Jurors Treat Absence of Evidence as Evidence of Absence?

What value does a juror place on proof that a test – for gunshot residue, for latent prints, for DNA – produced no results?  This article uses mock juries in a controlled setting, with careful alteration of variables, to discern how jurors respond. What were the findings?  In one sense, the obvious: The first question

The Negative Effect Fallacy: A Case Study of Incorrect Statistical Reasoning by Federal Courts

Appellate arguments, and judicial opinions, often proceed from the premise that “it is never easy to prove a negative.”   But that’s not always the case, as there is a difference between the “philosophical and arithmetic definitions of the word negative[.]” This article is an essential first step to understanding the difference, both to inform current

THE PROFICIENCY OF EXPERTS

Professors Brandon Garrett and Gregory Mitchell, both of the University of Virginia Law School, argue compellingly that expert witnesses should be judged less by credentials and more by proven accuracy, in particular by their performance on proficiency tests.  Their article is not merely theoretical; it draws upon data showing “false positive” identifications in latent print

Campfires, Car Accidents, and the Cosmos: Persuasive Appeals to Jurors Through the Human Appetite for Wonder

That story-telling is key to an opening statement – and thereafter to success at trial – should not be questioned.  This article encourages rich narrative story-design and story-telling, drawing on decades of research as well as experience and intuitive understanding of persuasion theory.  The thesis is best explained by the author: If a trial lawyer

How to write powerful closers

The best short article available on how to write a persuasive “conclusion” section to a brief.  Out with the “and for the above reasons” and in with a pithy summary that contains at least two catchy (but not catchpenny) words that you haven’t used anywhere else in your brief or motion. Keep it understated. But

WINNING AT SENTENCING WITH THEORIES, THEMES, AND THE CREATIVE DEMONSTRATION OF TRUTH

The concepts of “theme” and theory” are well known for planning a trial; but having a sentencing “theme” and “theory” may not be on every lawyer’s radar.  This article persuasively shows the importance of deploying each concept when planning and presenting a sentencing case for the defendant.  The author brings a special perspective, with a

THE BATTLE OVER THE BURDEN OF PROOF: A REPORT FROM THE TRENCHES

Trials as designed are not, or are at most coincidentally, searches for truth; rather, they are tools for assessing whether a particular burden of proof has been satisfied.  This article compiles research showing the effect of telling jurors that a trial is a search for the truth, language that has been shown to cause them to

Ten Things Every Trial Lawyer Could Learn From Vincent La Guardia Gambini

A federal judge’s brief, and modestly useful, survey of positive lessons that can be gleaned from the travails of Vincent ‘My Cousin Vinny” Gambini.  Omitted are any of the pitfalls as well as any critical assessment of the failure to use leading questions.

LOOKING BACKWARDS AT OLD CASES: WHEN SCIENCE MOVES FORWARD

Forensic evidence is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in