May 29, 2007

Jurors deliberate competently, study finds

As a former legal affairs reporter and criminal investigator who had many an opportunity to observe jury trials and interview jurors, I have always felt that the jury system is one of America's best features. It is one of the few places where people from all social classes and walks of life come together in a meaningful way and to further a common goal. Having just returned from a week of jury service myself (which I found fascinating and gratifying), I was pleased to learn that my experience is the norm.

The June 2007 issue of Small Group Research reports on a study indicating that juries do, indeed, “deliberate at a remarkably high level of competence” and that a direct link exists between the quality of deliberation and juror satisfaction. Not only that, but the jury deliberation process is a “civic education experience” that prompts many jurors to further their civic involvement.

To help understand “how often everyday juries actually engage in meaningful deliberation,” the researchers surveyed 267 municipal court jurists in Seattle regarding their experiences.

The resulting article, “Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse,” is available on-line at:

California weighs in on Atkins

States are using various approaches to comply with the U.S. Supreme Court's ban on executing mentally retarded offenders. (The 2002 case of Atkins v. Georgia held that such punishment was cruel and unusual, in violation of the Eighth Amendment.) Now, the California Supreme Court has weighed in, with an intriguing opinion in the case of Jorge Junior Vidal.

The Court unanimously held that a defendant may be spared the death penalty because he is mentally deficient in one area, even if his overall IQ score falls in the normal range. The decision overturned an appeals court finding that “full-scale IQ” was the best measure of intelligence.

Vidal was one of seven Tulare County men who faced the death penalty for the grizzly 2001 torture-killing of a 17-year-old youth. As a child, Vidal underwent intelligence testing due to his severe academic problems. Although his full-scale IQ on the widely used Wechsler test consistently fell above the typical cutoff score of 70 for mental retardation, this was due to a large split between his low verbal IQ score and his high performance IQ (which measures non-verbal skills such as ability to solve puzzles).

At issue in his case was how to determine whether he was mentally retarded for purposes of the death penalty. Under California’s Penal Code Section 1376, mental retardation is defined as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” In Atkins, the U.S. Supreme Court did not specify how “general intellectual functioning” was to be determined.

At the trial level, two psychologists testified that Vidal’s full-scale IQ score was misleading. They opined that Vidal’s verbal abilities were more important in this context, because they involve the ability to process information and to think logically. Individuals with low verbal IQs, they argued, have problems interpreting social cues and are more likely to go along with a group. The prosecution countered with a psychologist who testified that the most accurate measure of mental retardation was the full-scale IQ score.

The state Supreme Court ruled that a specific test score or legal rule cannot determine “general intellectual functioning.” Rather, the court must consider the defendant’s overall capacity based on the specific evidence in that case.

In a great discussion of the distinction between science and law, the Court chastised the appellate court for taking sides in a psychological debate: “An appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a ‘legal standard.’ … [The question here is] whether, when both sides of a scientific dispute have been presented by expert testimony, an appellate court may declare the debate’s winner as a matter of law.”

The decision is likely to affect dozens of cases statewide by giving judges broader discretion to spare defendants from the death penalty based on low intellectual functioning.

The court's decision is available at:

May 25, 2007

Battered Women's Syndrome gaining acceptance

The Battered Women’s Syndrome is gaining acceptance from judges and jurors, according to an article in the May 21 issue of Massachusetts Lawyers Weekly.

The controversial defense combines elements of self-defense and Posttraumatic Stress Disorder to explain why some women ultimately kill an abusive partner.

In jurisdictions where the defense is allowed, defendants can present jurors with specific instances of prior victimization to show self-defense or the lack of criminal intent necessary for certain convictions. The defense also enables attorneys to answer the question that is often paramount in jurors’ minds: Why didn't the woman simply leave?

The 2000 Massachusetts Supreme Court decision of Commonwealth v. Pike described the syndrome as a mental state common to women who are abused over an extended period. "Numbed by a dread of imminent aggression, these women are unable to think clearly about the means of escape from this abusive family existence," the decision states.

The defense can pose a major obstacle to prosecution by engendering sympathy for the defendant, according to the Massachusetts Lawyers Weekly article.

The full article, authored by David E. Frank, is available at the journal’s website,

May 18, 2007

First CSI, Now Duke

For several years, prosecutors have had to contend with the so-called “CSI Effect” – jurors' unreasonable expectations for scientific evidence based on fictional TV shows such as CSI and Cold Case.

Now comes the “Duke Effect,” fallout from prosecutorial misconduct in the Duke University lacrosse rape case. Shortly after rape charges were dropped against three lacrosse players, ethics charges were levied against the prosecutor for allegedly withholding exonerating DNA evidence.

Now, defense attorneys nationwide are using the Duke case to paint prosecutors as overzealous advocates, according to an article by Tresa Baldas in today’s National Law Journal.

The article cites a Texas case in which a teacher was accused of pinning down a female student while other students beat her. In his closing argument, defense attorney Edmund "Skip" Davis warned jurors not to allow "that tragedy that nearly fell upon those kids at Duke." The jury took just three minutes to acquit the teacher of assault.

The Duke case worked so well for attorney Davis that he plans to use it again in an upcoming rape trial. Other attorneys nationwide say they are doing likewise, raising the Duke case during both voir dire and closing arguments.

Prosecutors worry that the Duke Effect may hamper their efforts to win convictions.

"[It is] definitely going to make it difficult for us, there's no question about it," Oregon prosecutor Joshua Marquis told the Journal.

May 11, 2007

CA: Juvenile too immature to stand trial

Following trends in a handful of other states, an appellate court in California has held that developmental immaturity can be a grounds for a finding of incompetency to stand trial.

California law lists only mental illness and developmental disability as grounds for incompetency. But the new ruling acknowledges that some children can be too immature to understand their legal proceedings or assist in their own defense.

With more juveniles being prosecuted as adults, more attention is being paid to the issue of juvenile competency to stand trial. A new instrument for evaluating juveniles’ competency, written by leading forensic psychologist Tom Grisso, stresses the need to consider developmental maturity.

The Dante H. case, decided May 10 by California's 3rd District Court of Appeal, involved an 11-year-old Sacramento boy accused of breaking into an elementary school and stealing candy bars. He was charged with second-degree burglary.

Two psychologists had evaluated the boy, and both concluded he was not fit to stand trial.

Dr. Adam Alban has kindly made the court decision (2007 Cal. App. LEXIS 704) available online.

More information on adolescent development issues in juvenile justice is available from the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice.

May 9, 2007

Quiet revolution in juvenile justice

Who would have predicted that locking up fewer youths might improve community safety?

With California’s juvenile prisons plagued by violence and scandals, a quiet revolution is taking place on the local level, as more and more counties send their youthful offenders to intensive treatment programs rather than the California Youth Authority.

Paralleling the drop in incarceration has been a dramatic drop in juvenile crime. As James Sterngold of the San Francisco Chronicle reports, the juvenile arrest rate for serious felonies has fallen by more than half while the state’s imprisonment of youth has dropped from a peak of 285 (in 1988) to just 65 per 100,000. In 2005, only about 3% of the 219,000 juveniles arrested in California were sent to state facilities.

Rather than punishing youths, local treatment programs focus on teaching them new skills and behaviors. The families – a big part of these youths’ problems – are also included in the treatment.

The turn-around is being heralded as “the huge, untold story” in corrections. "What we're seeing is the exact reverse of the old argument that said the only thing that works is incapacitating these juveniles. The crime rates are falling as we got less tough, not tougher," the Chronicle quotes the president of the National Council on Crime and Delinquency as stating.

Indeed, the new model is working so well that Gov. Arnold Schwarzenegger would like to see it expanded to include some younger prisoners in the adult correctional system.

For more information on crime and juvenile justice, check out the Center on Juvenile and Criminal Justice at:

May 7, 2007

Subtle brain changes after trauma exposure

A new study highlights how easily a traumatic incident can alter brain functioning, and how long that change can last.

The researchers studied people who had been close to the World Trade Center on 9/11. Four years after the attack, people who were within 1.5 miles of the disaster still showed greater activation of their amygdalas – the region of the brain that controls our fight-or-flight instincts – than a control group who had been further away.

Participants were shown pictures of either calm or fearful faces while their amygdala activation was measured through a functional magnetic resonance imaging (fMRI) procedure. Those who were close to the WTC on 9/11 showed greater amygdala activation to fearful faces.

The results suggest that exposure to a single traumatic event may produce long-term brain changes that cause even healthy-appearing people to react more fearfully to everyday events.

The article, by Barbara Ganzel of Cornell University and colleagues, is available from the American Psychological Association at