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US Case Law

The United States Supreme Court is the highest court in the United States. Lower courts on the federal level include the US Courts of Appeals, US District Courts, the US Court of Claims, and the US Court of International Trade and US Bankruptcy Courts. Federal courts hear cases involving matters related to the United States Constitution, other federal laws and regulations, and certain matters that involve parties from different states or countries and large sums of money in dispute.

Each state has its own judicial system that includes trial and appellate courts. The highest court in each state is often referred to as the “supreme” court, although there are some exceptions to this rule, for example, the New York Court of Appeals or the Maryland Court of Appeals. State courts generally hear cases involving state constitutional matters, state law and regulations, although state courts may also generally hear cases involving federal laws. States also usually have courts that handle only a specific subset of legal matters, such as family law and probate.

Case law, also known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be binding or merely persuasive. For example, a decision by the US Court of Appeals for the Fifth Circuit is binding on all federal district courts within the Fifth Circuit, but a court sitting in California (whether a federal or state court) is not strictly bound to follow the Fifth Circuit’s prior decision. Similarly, a decision by one district court in New York is not binding on another district court, but the original court’s reasoning might help guide the second court in reaching its decision.

Decisions by the US Supreme Court are binding on all federal and state courts.

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Courtroom Communities: Criminal Case Processing and Sentencing Reform

Movies and television have long portrayed criminal trials and sentencing as adversarial courtroom battles fought between the prosecution and defense in a drama-fueled quest for justice. In reality, the vast majority of criminal cases involve negotiated pleas with the final sentence determined through compromise rather than battle. These negotiations generally take place outside the courtroom and involve individuals who are skilled at working cooperatively using a combination of written and unwritten rules to move cases quickly and efficiently through the system. Working in tandem with law and formal policy, the unofficial rules are developed collaboratively and evolve over time, changing in response to legal reforms and external influences.

The entity within the court system responsible for implementing formal rules of operation — and developing informal rules — is often referred to as the “courtroom community.” Researchers James Eisenstein and Herbert Jacob formally articulated the concept of a courtroom community in their 1977 publication Felony Justice: An Organizational Analysis of Criminal Courts . [1] They later expanded the framework through a series of courtroom studies completed in collaboration with Roy Flemming and Peter Nardulli, wherein they developed and articulated a multifaceted theory of courtroom interaction to better understand the realities of felony case processing and differences across jurisdictions. [2]

Based on a theory of organizational dynamics, the courtroom community framework has been used to provide a better understanding of felony court decision-making, processing, and outcomes. [3] In recent years, the concept has been used to analyze the implementation of sentencing guidelines, mandatory minimums, and “get tough” sentencing policies in an effort to better understand how court adaptation affects the final outcome of legal and policy changes in the court system. [4] The framework provides valuable insight into the factors underlying differences in reform implementation and outcomes across jurisdictions subject to the same sentencing policies and laws.

This article explores the courtroom community framework — its members, its goals, and its role in court operations and sentencing outcomes. Drawing from research on courtroom culture, the article highlights the critical need to consider the courtroom community when developing and implementing future criminal justice reforms.

See “NIJ-Funded Research on the Courtroom Community”

The Courtroom Community, Plea Negotiations, and Going Rates

Under the Sixth Amendment to the United States Constitution, individuals facing felony charges are guaranteed the right to representation in court — regardless of their ability to pay. In order to uphold this protection, all states and the federal government offer a system of publicly funded defense, created to serve indigent individuals charged with a crime. However, in a system where the majority of those charged with a crime require this service, jurisdictions may not have the resources necessary to conduct extensive investigations or devote substantial attorney time to trial preparation. As a result, an estimated 90% to 95% of both federal and state court cases are resolved through plea bargaining. [5] Although it has been argued that the reliance on plea negotiations undermines an individual’s Sixth Amendment rights, [6] the practice reduces overall court costs and uncertainty, thus fulfilling one of the primary goals of the courtroom community.

The courtroom community has four shared internal goals: reduction of uncertainty with respect to case outcomes, expeditious handling of cases, maintenance of group cohesion, and doing justice. [7] Of these, the most critical goal is the reduction of uncertainty, as this minimizes the expenditure of court resources. [8] This goal is one of the primary reasons that felony case processing in action differs so dramatically from court operation as portrayed in the media. Instead of an adversarial process in which the primary goal is justice, felony sentencing is focused on reducing uncertainty and increasing expediency through the use of negotiated pleas. By offering individuals pre-negotiated sentences in exchange for a guilty plea, uncertainty — in terms of the case outcome and resources expended — is reduced for all parties. This system allows overburdened court systems to process most cases via plea negotiation rather than trial.

Under courtroom community theory, each courtroom establishes what are termed “going rates” for sentencing in routine case types to help streamline the plea process. Going rates are established by informal negotiation and agreement among courtroom actors and are applied differently depending on the strengths and weaknesses of each case. The majority of felony cases naturally fall into one of a number of standard categories in terms of the factors most frequently used to determine sentences: offense type, prior record, aggravating or mitigating circumstances, and strength of evidence. Over time, each court develops an informal sentencing “shorthand” — it assigns like sentences to like cases through the application of both formal and informal rules, thereby establishing a unique set of informal going rates based on case characteristics and what is deemed acceptable within that particular court system. This mechanism allows the courtroom actors to move the majority of cases through the system expeditiously, reserving limited trial-related resources for those cases that do not fit the norm or that present unusual legal challenges.

By their nature, criminal trial outcomes are uncertain. Although it is true that an individual could avoid all criminal penalty if found not guilty, should they be found guilty, the final penalty is unknown — and would likely exceed the sanction offered in a plea agreement. Similarly, courtroom actors face an uncertain outcome when cases go to trial rather than being determined via negotiation. Thus, there is a clear incentive for individuals charged with a crime to accept a guilty plea — which comes with a predetermined sentence agreed upon by both the prosecution and defense. At the same time, the courtroom actors benefit from the plea process because the prosecution is assured a win, and the defense is spared the risk of an unknown outcome and expenditure of limited resources.

The Courtroom Workgroup

The courtroom workgroup, which includes all individuals who routinely play a part in the workings of the court and case processing, is the core of the courtroom community. However, the courtroom triad — a subset of the workgroup consisting of the judge, prosecutor, and defense — is most instrumental in determining going rates for felony cases.

The actors within the triad have significantly different roles and levels of influence over court proceedings. Although the judge is commonly considered to be the most powerful actor in the court system, the prosecutor wields the greatest power over case outcomes in a system reliant on processing cases via plea agreement. The role of the judge, who is often described as an administrator rather than a decision-maker, is limited to overseeing court activities and ensuring compliance with applicable laws and formal policy.

Importantly, the prosecutor determines the initial type and number of charges for each case. This is true for both trials and plea agreements. In so doing, the prosecutor establishes the upper limits of penalty possibilities — the starting point of negotiation. To ensure the best possible negotiating position for their office, the prosecutor generally brings the most serious supportable charges against the individual, even when lesser charges are an option. This makes a negotiated plea more attractive to the defense, which knows that the prosecutor can use their discretion to lower the charges and associated penalty if the individual accepts a plea rather than a trial.

Although individuals who are unfamiliar with the system may hesitate to accept a predetermined penalty at the court’s going rate, defense attorneys — who regularly interact with the other members of the courtroom workgroup — understand that it is generally in the individual’s best interest to do so in order to avoid the “trial penalty” that may be imposed should the plea not be accepted. [9] A trial penalty is essentially the imposition of a harsher sentence at trial than would have been received had the individual accepted a guilty plea. According to the National Association of Criminal Defense Lawyers, on average, an individual charged with a crime who goes to trial receives a sentence that is three times longer than the one they would have received if they had accepted a guilty plea. [10] This increased punishment can be achieved via legal manipulation and tools available to both the prosecutor and the judge. For example, the prosecutor might refuse to stipulate to relevant conduct and offense-specific behavior that may have otherwise reduced punishment, or they might include affiliated charges at trial that would not have been attached under a plea agreement. A judge — depending on the jurisdiction — could consider “obstruction” or deny “acceptance of responsibility” during the sentencing phase, resulting in increased sentence length. This trial penalty, though legal, [11] is an informal and discretionary mechanism — available to both the prosecutor and the presiding judge — that can be used to encourage a guilty plea.

In addition to reducing uncertainty, plea-driven court processes also undermine transparency — an important tenet of criminal trials in the United States. When the determination of guilt or innocence shifts from a public forum to a closed-door negotiation, the process is hidden from public scrutiny and oversight. At the same time, the reliance on pleas arguably reduces the system’s responsibility for the punishment, while normalizing the circumvention of the rights of individuals charged with a crime. [12]

Local Legal Culture

Local legal culture refers to the larger environment in which the courtroom workgroup operates. This includes formal laws, policies, and structures; the informal norms and attitudes that govern court operation; and the external agencies and individuals that influence the activities and behaviors of the workgroup. In translating formal policy and law into practice, the courtroom workgroup must be attentive to law enforcement, legislative bodies, appellate courts, prison officials, the media, and political organizations, as well as the voting public. Numerous factors affect the manner and degree to which these external forces influence workgroup operation, including whether judges are elected or appointed, judicial term length, court size, perceived community values, local government structure, and state or federal sentencing statutes and policies.

Due to the evolving nature of sentencing legislation and courtroom policy, the methods by which the courtroom workgroup processes criminal cases are interpretive and dynamic. However, because the courtroom community operates within the larger legal culture, it must also be performative. [13] Not only must the workgroup ensure that cases are managed efficiently and in compliance with governing laws, but its members must also be viewed as responsive to the perceived interests of the community and sponsoring organizations. Prosecutors answer to their electorate and political party — particularly if they aspire to higher office — and judges must be responsive to voters or their appointing bodies.

Local influence over the courtroom workgroup and variation in jurisdictional characteristics mean that there is no single state or federal policy that can prescribe how courts operate. Although much of the courtroom community’s activity is closed to the public, the imposition of sentencing reforms — such as structured sentencing, policy guidelines, or mandatory minimum statutes — and the reforms’ ultimate impact, shed light on just how much the courtroom community affects court operations and sentencing outcomes from one jurisdiction to the next.

Sentencing Reform

The U.S. criminal justice system is constantly evolving and subject to ongoing reform efforts. Reform initiatives have varied widely over the last century and include a move away from indeterminate sentencing toward structured sentencing, widespread adoption of get tough era mandatory minimum statutes, and attempts at prosecutorial and plea-bargaining guidelines. Although the majority of these reforms alter sentencing practices and penalties to some degree, the results rarely meet the stated expectations of either the politicians who promoted them or the public at large. It has been argued that what were often described as the “unexpected consequences” of mandatory minimum penalties during the get tough era were, instead, the result of policies and laws that were written and implemented without an understanding or consideration of courtroom community dynamics. Conversely, the reforms could be characterized as very sophisticated mechanisms designed to work with existing courtroom dynamics — but with different end goals than publicly stated. Both prosecutors and legislators have acknowledged that mandatory minimum laws provide prosecutors with an advantage during plea negotiations, with one senator opposing their modification on the grounds that they have achieved their “intended goal” of pressuring individuals charged with a crime to cooperate with law enforcement. [14]

The criminal justice system’s ability to adapt to sentencing reforms has been widely reported in the literature. [15] This adaptation usually takes the form of selective enforcement of new laws and policies, meaning that the system actors charged with implementing these reforms use their discretion to determine which of the eligible cases will be subject to the new laws and which will not. This is usually accomplished via prosecutorial charging policies — either formal or informal. Research examining the impact of sentencing reform and modification shows that the courtroom community adapts to mandated changes to reflect existing norms and the local legal culture. This holds true in jurisdictions adopting sentencing guidelines, mandatory minimum penalties, and plea or prosecutorial guidelines. [16]

Although a reform may be imposed at the state or national level, it is always implemented at the local level. Consequently, it is inevitable that reforms will be implemented with variation in sentencing patterns, sanctions, and resource requirements across sites.  

The past 50 years of courtroom community and sentencing reform research makes it clear that reform does not occur in a vacuum. Instead, it is an evolving process affected both directly and indirectly by individuals, organizations, and systems operating within the sphere of the local courtroom. These entities — members of the courtroom community — have a vested interest in local court operation and will implement external change in a way that best serves that court. Although it may not be possible, or desirable, to institute reforms that are impervious to local manipulation, the importance and role of the courtroom community must be considered in order to craft effective policies and legislation.

About This Article

This article was published as part of NIJ Journal issue number 284 .

Sidebar: NIJ-Funded Research on the Courtroom Community

NIJ recognizes the important role the courtroom community plays in criminal justice proceedings. Over the years, NIJ has supported various research to help the field better understand this role and how courtroom culture may affect the implementation of criminal justice reforms. This research includes the following studies:

• “ Craft of Justice: Politics and Work in Criminal Court Communities ,” award number 79-NI-AX-0062
• “ The Contextual Significance of Courtroom Workgroup Racial Diversity to Criminal Case Outcomes ,” award number 2006-IJ-CX-0009
• “ Courtroom Workgroups and Sentencing: The Effects of Similarity, Proximity, and Stability ,” award number 97-CE-VX-0001
• “ Legal Change and Sentencing Norms in Federal Court: An Examination of the Impact of the Booker, Gall, and Kimbrough Decisions ,” award number 2010-IJ-CX-0010

[note 1] James Eisenstein and Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown and Company, 1977).

[note 2] James Eisenstein, Roy B. Flemming, and Peter F. Nardulli, The Contours of Justice: Communities and Their Courts (Lanham, MD: University Press of America, 1988); Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice: Criminal Courts and the Plea-Bargaining Process (Urbana, IL: University of Illinois Press, 1988); and Roy B. Flemming, Peter F. Nardulli, and James Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (Philadelphia: University of Pennsylvania Press, 1992).

[note 3] Jo Dixon, “ The Organizational Context of Criminal Sentencing ,” American Journal of Sociology 100 no. 5 (1995): 1157-1198; Susan U. Philips, Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control (New York: Oxford University Press, 1998); Darrell Steffensmeier and Stephen Demuth, “ Ethnicity and Sentencing Outcomes in U.S. Federal Courts: Who Is Punished More Harshly ?” American Sociological Review 65 no. 5 (2000): 705-729; Steven E. Barkan, Criminology: A Social Understanding (Hoboken, NJ: Prentice Hall, 2001); Chester L. Britt, “ Social Context and Racial Disparities in Punishment Decisions ,” Justice Quarterly 17 no. 4 (2000): 707-732; Stephanos Bibas, “ Prosecutorial Regulation Versus Prosecutorial Accountability ,” University of Pennsylvania Law Review 157 no. 4 (2009): 959-1016; Allison D. Redlich, Miko M. Wilford, and Shawn Bushway, “ Understanding Guilty Pleas Through the Lens of Social Science ,” Psychology, Public Policy, and Law 23 no. 4 (2017): 458-471; Jeffrey T. Ulmer, “ Criminal Courts as Inhabited Institutions: Making Sense of Difference and Similarity in Sentencing ,” Crime and Justice 48 (2019): 483-522; Cyrus Tata, Sentencing: A Social Process: Rethinking Research and Policy (London: Palgrave Macmillan, 2020); Christi Metcalfe, “ Toward a Method for Evaluating Court Actor Influences on Plea Negotiations: A Preliminary Exploration of Public Defenders ,” Behavioral Sciences and the Law 39 no. 3 (2021): 345-357; and Calvin Morrill and Lauren B. Edelman, “ Sociology of Law and New Legal Realism ,” in Research Handbook on Modern Legal Realism, ed. Shauhin Talesh, Elizabeth Mertz, and Heinz Klug (Edward Elgar Publishing, 2021), 413-431.

[note 4] Jeffrey T. Ulmer, Social Worlds of Sentencing: Court Communities Under Sentencing Guidelines (Albany, NY: State University of New York Press, 1997); Jeffrey T. Ulmer and John H. Kramer, “ The Use and Transformation of Formal Decision-Making Criteria: Sentencing Guidelines, Organizational Contexts, and Case Processing Strategies ,” Social Problems 45 no. 2 (1998): 248-267; Nancy Merritt, Terry Fain, and Susan Turner, “ Oregon’s Get Tough Sentencing Reform: A Lesson in Justice System Adaptation ,” Criminology and Public Policy 5 no. 1 (2006): 5-36; John R. Sutton, “ Structural Bias in the Sentencing of Felony Defendants ,” Social Science Research 42 no. 5 (2013): 1207-1221; Mona Lynch and Marisa Omori, “ Legal Change and Sentencing Norms in the Wake of Booker : The Impact of Time and Place on Drug Trafficking Cases in Federal Court ,” Law and Society Review 48 no. 2 (2014): 411-445; Rob Tillyer and Richard Harley, “ The Use and Impact of Fast-Track Departures: Exploring Prosecutorial and Judicial Discretion in Federal Immigration Cases ,” Crime and Delinquency 62 no. 12 (2016): 1624-1647; Isaac Unah and Ryan Williams, “What Is So Special About Specialized Courts in the United States?” in Routledge Handbook of Judicial Behavior, ed. Robert M. Howard and Kirk A. Randazzo (New York: Routledge, 2017), 280-300; Lauren M. Ouziel, “ Democracy, Bureaucracy, and Criminal Justice Reform ,” Boston College Law Review 61 no. 2 (2020): 523-589; Mona Lynch, Matt Barno, and Marisa Omari, “ Prosecutors, Court Communities, and Policy Change: The Impact of Internal DOJ Reforms on Federal Prosecutorial Practices ,” Criminology 59 no. 3 (2021): 480-519; and Rebecca Richardson and Besiki Luka Kutateladze, “ Tempering Expectations: A Qualitative Study of Prosecutorial Reform ,” Journal of Research in Crime and Delinquency 58 no. 1 (2021): 41-73.

[note 5] Lindsey Devers, “ Plea and Charge Bargaining: Research Summary ,” Washington, DC: U.S. Department of Justice, Bureau of Justice Assistance.

[note 6] National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How To Save It , Washington, DC: National Association of Criminal Defense Lawyers; and Carissa Byrne Hessick, “The Constitutional Right We Have Bargained Away,” The Atlantic, December 24, 2021.

[note 7] Eisenstein and Jacob, Felony Justice .

[note 8] Celesta A. Albonetti, “ Criminality, Prosecutorial Screening, and Uncertainty: Toward a Theory of Discretionary Decision Making in Felony Case Processings ,” Criminology 24 no. 4 (1986): 623-644; and Eisenstein and Jacob, Felony Justice .

[note 9] Celesta A. Albonetti, “ Sentencing Under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991-1992 ,” Law and Society Review 31 no. 4 (1997): 789-822; Candace McCoy, “Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform,” Criminal Law Quarterly 50 no. 2 (2005): 67-107; Andrew Chongseh Kim, “ Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study ,” Mississippi Law Journal 84 no. 5 (2015): 1195-1255; and Miko M. Wilford, Gary L. Wells, and Annabelle Frazier, “ Plea-Bargaining Law: The Impact of Innocence, Trial Penalty, and Conviction Probability on Plea Outcomes ,” American Journal of Criminal Justice 46 (2021): 554-575.

[note 10] National Association of Criminal Defense Lawyers, The Trial Penalty .

[note 11] Brady v. United States, 397 U.S. 742 (1970).

[note 12] Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal (New York: Abrams, 2021).

[note 13] Tata, Sentencing: A Social Process .

[note 14] Hessick, “The Constitutional Right We Have Bargained Away.”

[note 15] Candace McCoy, Politics and Plea Bargaining: Victims’ Rights in California (Philadelphia: University of Pennsylvania Press, 1993); Jeffrey T. Ulmer, James Eisenstein, and Brian D. Johnson, “ Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation ,” Justice Quarterly 27 no. 4 (2010): 560-592; and Sonja B. Starr and M. Marit Rehavi, “ Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker ,” Yale Law Journal 123 no. 1 (2013): 2-80.

[note 16] Merritt, Fain, and Turner, “ Oregon’s Get Tough Sentencing Reform ”; Joshua B. Fischman and Max M. Schanzenbach, “ Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums ,” Journal of Empirical Legal Studies 9 no. 4 (2012): 729-764; Lynch, Barno, and Omori, “ Prosecutors, Court Communities, and Policy Change ”; and Richardson and Kutateladze, “ Tempering Expectations .”

About the author

Nancy Merritt, Ph.D., is a senior policy advisor in NIJ’s Office of Research, Evaluation, and Technology.

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Designing for the Law: Rethinking Courthouse Architecture

• Written by Eric Baldwin
• Published on February 03, 2022

Courthouse architecture is defined by civic and monumental designs. These projects establish contemporary expressions that move beyond vernacular traditions to explore modern aesthetics and new forma approaches. As prominent landmarks in a city, courthouses reflect the beliefs, priorities, and aspirations of a people. They are also a meeting ground, cultural hub, and social gathering place.

The following projects create hybrid programs and entirely new envelopes within the courthouse typology. They materialize inherent design values and those of governments and cities. Organized to take advantage of environmental conditions and embrace views, the projects are tied to place. They represent physical and programmatic connections to public life, and in turn, are central properties and gathering points within a community. 

International Criminal Court in The Hague / SHL Architects

When designing the new permanent premises of the International Criminal Court, the point of departure was to communicate trust, hope and – most importantly – faith in justice and fairness. The team wanted the building to have the courage to be an ambassador for the credibility of the ICC. By designing a compact building with a small footprint, the landscape is returned to the city so that the open spaces, the sky and the horizon become an integrated part of the architectural composition.

John M. Roll US Courthouse / Ehrlich Yanai Rhee Chaney Architects

This courthouse project had numerous goals: safe, secure processing of mass immigration defendants; updating the American traditional courthouse; creation of an outdoor communal space, cohesive with the urban fabric of downtown Yuma; high performance and sustainability at low cost; design excellence within strict security mandates. The Courthouse’s grand design gesture is its canopy of photovoltaics, held up by a series of naturally weathering steel columns.

Regional Court at Montmorency / Dominique Coulon & Associés

The theme of the project is accessible justice. This is an unostentatious public building within the urban fabric. The team opted for modest, elegant exterior architecture, preferring a facing in brick, a timeless material which becomes more attractive with age. This choice also enables the building to blend in with its immediate surroundings. The treatment of the entrance, worked as a lateral hollow on the main façade, constitutes a break with the traditional symmetrical composition of court buildings. From the outside, this entrance – on a single level – is on a modest scale.

United States Courthouse / Mack Scogin Merrill Elam Architects

The Courthouse is a seven story, 252,000 square foot structure designed to house one special proceedings courtroom, four district courtrooms, four magistrate courtrooms, jury assembly and joint-use facilities, as well as associated facilities. The Austin judiciary set the criteria for the defining feature of the courthouse: the introduction of natural light into and views out of the courtrooms, jury deliberation rooms, attorney/ witness conference rooms and all other public spaces.

United States Courthouse, Salt Lake City / Thomas Phifer and Partners

The design of the new United States Courthouse in Salt Lake City emanates from our search for a form that is strong, iconic, transparent, and metaphorically egalitarian as a symbol of the American judiciary system. The resulting cubic mass of the new courthouse, like the monumental buttes of southern Utah, is just such a primary form, projecting grounded dignity, immovable order, and an equal face to all sides. The 400,000 square foot, 10-story courthouse resides in a garden setting on a level terrace encompassing the entire city block.

Palace of Justice / Mecanoo + AYESA

The new Palace of Justice in Córdoba is located in Arroyo del Moro which is characteristically dominated by anonymous housing blocks, products of the rapid urban development of 21st century Spanish cities. The blocks that characterize the urban fabric of the zone were not capable of generating public space or offering something new to the city, but collectively they form a compact and coherent urban identity. The addition of a public institution to the area creates the opportunity to upgrade the public realm and add a civic quality to this relatively new neighborhood.

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• Discussion Forum
• Why and How: Using the Case Study Method in the Law Classroom

Post by: Jackie Kim and Lisa Brem

Why should legal educators use case studies and other experiential teaching methods, such as role plays and simulations, in their classes?  Hasn’t the Langdell method served legal education well these last 140 years?  Certainly creating and using experiential materials requires a different set of skills from faculty, elicits a different response and level of engagement from students, and poses barriers to implementation. The ABA’s LEAPS Project [i] has a comprehensive list of objections to practical problem solving in the classroom: materials are time consuming and expensive to create and deploy; addition of a case study or simulation to a syllabus inherently displaces other material; and there are few incentives from law school leaders to introduce this type of teaching.

Yet, the argument promoting experiential materials and techniques is strong. The 2007 Carnegie Report [ii] recommended integrating lawyering skills practice into the curriculum alongside doctrinal courses, and the ABA added simulation courses to the list of practical experiences that can and should be offered by law schools in its 2015 Guidance Memo [iii] .

In a 2007 Vanderbilt Law Review article [iv] , HLS Dean Martha Minow and Professor Todd D. Rakoff argued that Langdell’s approach to teaching students using appellate cases does not do enough to prepare law students for real-world problems: “The fact is, Langdell’s case method is good for some things, but not good for others. We are not talking about fancy goals here; we are talking about teaching students ‘how to think like a lawyer.’”

But does the case study method result in a higher degree of student learning? While we have not yet seen a study on the efficacy of the case study method vs. the Langdell method in law schools, research [v] from political science professor Matthew Krain suggests that case studies and problem-based activities do enhance certain types of learning over other types of pedagogy.  In his investigation, Krain compared the results of pre-and post-course surveys of students who participated in active learning with those who received a traditional lecture course. The case studies and problems that Krain used in his non-traditional classes included: case studies in the form of popular press articles, formal case studies, films, or problem-based case exercises that required students to produce a work product.

Krain found that:

Student-centered reflection, in which students have the opportunity to discuss their understanding of the case, allows both students and instructors to connect active learning experiences back to a larger theoretical context. Case learning is particularly useful for dramatizing abstract theoretical concepts, making seemingly distant events or issues seem more “authentic” or “real,” demonstrating the connection between theory and practice, and building critical-thinking and problem-solving skills (Inoue & Krain, 2014; Krain, 2010; Kuzma & Haney, 2001; Lamy, 2007; Swimelar, 2013).

This study suggests that case-based approaches have great utility in the classroom, and they should be used more often in instances where students’ understanding of conceptual complexity or knowledge of case details is critical. Moreover, case-based exercises can be derived from a variety of different types of materials and still have great utility. If deployed selectively in the context of a more traditional classroom setting as ways to achieve particular educational objectives, case-based approaches can be useful tools in our pedagogical toolbox.

For those who might be ready to try a case study, role play, or simulation, there are resources that can help.  Harvard Law School produces case studies for use throughout the legal curriculum. The HLS Case Studies program publishes these teaching materials, and makes them available to educators, academic staff, students, and trainers. Outside of Harvard Law School, links to resources for educators implementing the case study method can be found on the Case Studies Program Resources page. Listed are case study affiliates at Harvard, legal teaching and learning tools, tips for case teaching, and free case materials. Examples include the Legal Education, ADR, and Practical Problem Solving (LEAPS) Project [vi] from the American Bar Association , which provides resources for various topics on legal education, and the Teaching Post , an educators’ forum offered by the Harvard Business School where professors can seek or provide advice on case study teaching.

“… [O]ur society is full of new problems demanding new solutions, and less so than in the past are lawyers inventing those solutions. We think we can, and ought to, do better.” – Dean Martha Minow & Professor Todd Rakoff. [vii]

[i] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” Legal Education, ADR & Practical Problem-Solving (LEAPS) Project, American Bar Association, Section of Dispute Resolution. Accessed March 16, 2017, http://leaps.uoregon.edu/content/overcoming-barriers-teaching-%E2%80%9Cpractical-problem-solving%E2%80%9D. [ii] William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman, “Educating Lawyers,”  The Carnegie Foundation for the Advancement of Teaching (2007). [iii] American Bar Association, “Managing Director’s Guidance Memo,”  Section of Legal Education and Admissions to the Bar  (2015). [iv] Martha Minow and Todd D. Rakoff, “A Case for Another Case Method,” Vanderbilt Law Review 60(2) (2007): 597-607. [v] Matthew Krain, “Putting the learning in case learning? The effects of case-based approaches on student knowledge, attitudes, and engagement,” Journal on Excellence in College Teaching 27(2) (2016): 131-153. [vi] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” [vii] Minow and Rakoff.

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The Impact of Video Proceedings on Fairness and Access to Justice in Court

Increasing use of remote video technology poses challenges for fair judicial proceedings. Judges should adopt the technology with caution.

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Introduction

The Brennan Center has also developed a set of principles stakeholders can use as they develop policies for the use of remote court proceedings, available here .

The Covid-19 pandemic has disrupted court operations across the country, prompting judges to postpone nonessential proceedings and conduct others through video or phone. footnote1_4fwgijy 1 Brennan Center for Justice, Courts’ Responses to the Covid-19 Crisis, last updated September 10, 2020, https://www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis .  Even as courts have begun to reopen, many are also continuing or testing new ways to expand the use of remote technology. footnote2_qrxg375 2 Daniel Siegel, “Miami, Orlando Headline Fla. Courts’ Remote Trial Experiment,” Law360, June 4, 2020, https://www.law360.com/articles/1279653/miami-orlando-headline-fla-courts-remote-trial-experiment .; and Jake Bleiberg, “Texas Court Holds First US Jury Trial via Videoconferencing,” Associated Press, May 22, 2020, https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-videoconferencing-70825080 .  At the same time, public health concerns are leading some legal services providers and other advocates to oppose the return to in-person proceedings. footnote3_9s8pfy6 3 Rocco Parascandola and Molly Crane-Newman, “Lawyers Fear Sudden Return to NYC Courthouses Next Week will Spread Coronavirus,” Daily News, July 8, 2020, https://www.nydailynews.com/new-york/nyc-crime/ny-courts-reopening-early-outrage-lawyers-advocates-20200708–42rpmgyhyjc2jphrqohwdsyy6q-story.html .  Beyond the current moment, several court leaders have also suggested that expanded use of remote technology should become a permanent feature of our justice system. footnote4_u6fnh3s 4 Lyle Moran, “How Hosting a National Pandemic Summit Aided the Nebraska Courts System with its Covid-10 Response,” Legal Rebels Podcast, May 13, 2020, https://www.abajournal.com/legalrebels/article/rebels_podcast_episode_052 .; and Katelyn Kivel, “How the Coronavirus Revolutionized Michigan’s Courts,” The Gander Newsroom, July 14, 2020, https://gandernewsroom.com/2020/07/14/coronavirus-revolutionized-courts/ .

Remote technology has been a vital tool for courts in the midst of a public health crisis. But the use of remote technology — and its possible expansion — also raises critical questions about how litigants’ rights and their access to justice may be impacted, either positively or negatively, and what courts and other stakeholders can do to mitigate any harms.

This paper collects and summarizes existing scholarship on the effects of video technology in court proceedings. Federal courts, immigration courts, and state courts have long used video technology for certain kinds of proceedings. footnote5_53l47jh 5 Shari Seidman Diamond et al., “Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions,” Journal of Criminal Law and Criminology 100 (2010): 877–878, 900; Ingrid V. Eagly, “Remote Adjudication in Immigration,” Northwestern University Law Review 109 (2015): 934; and Mike L. Bridenback, Study of State Trial Courts Use of Remote Technology, National Association for Presiding Judges and Court Executive Officers, 2016, 12, http://napco4courtleaders.org/wp-content/uploads/2016/08/Emerging-Court-Technologies-9–27-Bridenback.pdf .  While the available scholarship on the use of video proceedings is limited, existing research suggests reason for caution in expanding the use of these practices, as well as the need for further research on their potential effects.

For Example:

• One study of criminal bail hearings found that defendants whose hearings were conducted over video had substantially higher bond amounts set than their in-person counterparts, with increases ranging from 54 to 90 percent, depending on the offense. footnote6_pd6jgbr 6 Diamond et al., “Efficiency and Cost,” 893.
• A study of immigration courts found that detained individuals were more likely to be deported when their hearings occurred over video conference rather than in person. footnote7_7brc9up 7 Eagly, “Remote Adjudication,” 966; and Frank M. Walsh and Edward M. Walsh, “Effective Processing or Assembly-Line Justice – The Use of Videoconferenceing in Asylum Removal Hearings,” Georgetown Immigration Law Journal 22 (2008): 271–72.
• Several studies of remote witness testimony by children found that the children were perceived as less accurate, believable, consistent, and confident when appearing over video. footnote8_5wr89dl 8 Holly K. Orcutt et al., “Detecting Deception in Children’s Testimony: Factfinders’ Abilities to Reach the Truth in Open Court and Closed-Circuit Trials,” Law and Human Behavior 25 (2001): 357–8, 366. However, it is important to note that these studies are simulated experiments and not observations of actual court proceedings, so outcomes might have differed if video proceedings were used and examined in an actual court hearing. Also worth noting is that the judge, bailiff, and attorneys questioning the children were in the room with the children testifying; the children only appeared by CCTV to the mock jurors.
• In three out of six surveyed immigration courts, judges identified instances where they had changed credibility assessments made during a video hearing after holding an in-person hearing. footnote9_ywpepj0 9 Government Accountability Office, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, 2017, 55, https://www.gao.gov/assets/690/685022.pdf .

Research also suggests that the use of remote video proceedings can make attorney-client communications more difficult. For example, a 2010 survey by the National Center for State Courts found that 37 percent of courts using videoconferencing had no provisions to enable private communications between attorneys and their clients when they were in separate locations. footnote10_k2z1t3p 10 Eric Bellone, “Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom,” Journal of International Commercial Law and Technology 8 (2013): 44–45.  Remote proceedings can likewise make it harder for self-represented litigants to obtain representation and other forms of support by separating them from the physical courthouse. A study of immigration hearings found that detained immigrants who appeared in person were 35 percent more likely to obtain counsel than those who appeared remotely. footnote11_pnlj1fy 11 Eagly, “Remote Adjudication,” 938.

At the same time, other research suggests that remote video proceedings may also enhance access to justice under some circumstances. For example, a Montana study found that the use of video hearings allowed legal aid organizations to reach previously underserved parts of the state. footnote12_qquowup 12 Richard Zorza, Video Conferencing for Access to Justice: An Evaluation of the Montana Experiment, Legal Services Corporation, 2007, 1, 3, https://docplayer.net/3126017-Video-conferencing-for-access-to-justice-an-evaluation-of-the-montana-experiment-final-report.html .  Organizations such as the Conference of Chief Justices have called for the expanded use of video or telephone proceedings in civil cases, particularly for self-represented and low-income litigants, as a way of reducing costs for those who, for example, may need to take time off work to travel to court. footnote13_78rumiy 13 National Center for State Courts, Call to Action: Achieving Civil Justice for All, 2016, 37–38 https://iaals.du.edu/publications/call-action-achieving-civil-justice-all .

One challenge in interpreting this research is that court systems hear a wide range of cases, both civil and criminal, and the use of videoconferencing may pose widely disparate challenges and benefits for litigants in different types of cases. Courts are involved in adjudicating everything from evictions to traffic violations, from multimillion-dollar commercial disputes to felony cases. In some instances, litigants are detained in jails or detention centers. In others, they may be self-represented. Courts hold preliminary hearings, arraignments, settlement negotiations, scheduling conferences, arguments on legal motions, jury trials, and much more.

At its core, this review of existing scholarship underscores the need for broad stakeholder engagement in developing court policies involving remote proceedings, as well as the need for more research and evaluation as courts experiment with different systems.

Impact of Video Proceedings on Case Outcomes

A handful of studies have directly assessed whether replacing certain in-person proceedings with videoconferences impacted substantive outcomes in criminal, civil, or immigration proceedings. Several other studies have sought to evaluate the impact of using video on factors that are likely to affect substantive outcomes, such as credibility assessments by juries or other factfinders, and communication between attorneys and their clients.

Video Proceedings and Substantive Outcomes

One study by law and psychology professor Shari Seidman Diamond and coauthors, published in the  Journal of Criminal Law and Criminology , looked at the impact of using closed-circuit television during bail hearings in Cook County, Illinois. The study found that judges imposed substantially higher bond amounts when proceedings occurred over video. footnote1_miohq6d 1 Diamond et al., “Efficiency and Cost,” 897.

In 1999, Cook County began using closed-circuit television for most felony cases, requiring defendants to remain at a remote location during bail hearings. A 2008 analysis of over 645,000 felony bond proceedings held between January 1, 1991 and December 31, 2007 found that after the closed-circuit television procedure was introduced, the average bond amount for impacted cases rose by 51 percent — and increased by as much as 90 percent for some offenses. By contrast, there were no statistically significant changes in bond amounts for those cases that continued to have live bail hearings. footnote2_yqq9gwr 2 Diamond et al., “Efficiency and Cost,” 896.  These disparities persisted over time. The release of this study, which was prepared in connection with a class action lawsuit challenging Cook County’s practices, caused the county to voluntarily return to live bail hearings. footnote3_ok0pic8 3 Diamond et al., “Efficiency and Cost,” 870.

The authors theorized several explanations for the difference in bond amounts in Cook County. Among other things, they pointed to the picture quality and the video setup, which gave the appearance that the defendant was not making eye contact. In addition, they suggested that the defendant’s remote location made it difficult for their attorney to gather information in advance of the hearing or consult with their client during the hearing. The authors also pointed out that the video was in black and white, and that litigants with darker skin were difficult to see on camera. Finally, they raised the question of whether some aspect of appearing in person affects a person’s believability. footnote4_j9i46hy 4 Diamond et al., “Efficiency and Cost,” 884–85, 898–900.

Another study by law professor Ingrid Eagly looked at the use of video technology to adjudicate immigration proceedings remotely, finding that detained respondents were more likely to be deported when their proceedings occurred over videoconference. footnote5_wpclb2a 5 An earlier analysis by Frank and Edward Walsh in the Georgetown Immigration Law Journal likewise found disparities in outcomes in asylum cases. The study, which looked at fiscal years 2005 and 2006, found that “the grant rate for asylum applicants whose cases were held in person is roughly double the grant rate for the applicants whose cases were heard via [video].” Walsh and Walsh, “Effective Processing,” 271. These differences were statistically significant, and the authors found similar and statistically significant differences when controlling for whether the applicant was represented by counsel. However, according to Eagly, most immigration hearings were not coded for whether they were conducted in person or by video prior to 2007, undercutting the reliability of the findings. Eagly, 946. Nor did the study identify the basis by which some asylum applicants were designated for video conference, suggesting the possibility of confounding variables. Nevertheless, the striking difference in asylum rates highlights the need for further research.  Video hearings are now a common feature in immigration court, and have been used regularly since the 1990s. footnote6_sxgw3qo 6 “Video Hearings in Immigration Court FOIA,” American Immigration Council, last modified August 11, 2016, accessed May 14, 2020, https://www.americanimmigrationcouncil.org/content/video-hearings-immigration-court-foia .  The use of videoconferencing, even without the petitioner’s consent, is specifically authorized by statute. footnote7_7a94ca6 7 See 8 U.S.C. § 1229a(b)(2)(A)(iii); see also 8 C.F.R. § 1003.25(c) (“An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person.”).  According to the Transactional Records Access Clearinghouse Immigration Center at Syracuse University, from October through December 2019, one out of every six final hearings deciding an immigrant’s case was held by video. footnote8_igpjhh0 8 TRAC Immigration, “Use of Video in Place of In-Person Immigration Court Hearings,” January 28, 2020, https://trac.syr.edu/immigration/reports/593/ .  Eagly examined outcomes for detained immigrants in immigration court, comparing those who participated via video to those who participated in person. footnote9_wq1866t 9 Eagly, “Remote Adjudication,” 933.  Eagly used a nationwide sample of nearly 154,000 cases, in which immigration judges reached a decision on the merits during fiscal years 2011 and 2012. footnote10_k7ubyte 10 Eagly, “Remote Adjudication,” 960.

Eagly found what she described as a “paradox”: detained immigrants whose proceedings occurred over video were more likely to be deported, but  not  because judges denied their claims at higher rates. Rather, these respondents were less likely to take advantage of procedures that might help them. Detained individuals who appeared in person were 90 percent more likely to apply for relief, 35 percent more likely to obtain counsel, and 6 percent more likely to apply only for voluntary departure, as compared to similarly situated individuals who appeared by video. These results were statistically significant, even when controlling for other factors that could influence case outcomes. footnote11_rp0z8qj 11 Among other things, Eagly controlled for the type of proceeding and charge, the respondent’s nationality, whether they are represented by counsel, their judge, and the year the proceedings took place. Eagly, “Remote Adjudication,” 938.

At the same time, among those individuals who actually applied for various forms of relief, there was no statistically significant difference in outcome after controlling for other factors. However, because video participants were  less likely  to seek relief or retain counsel, video cases were still significantly more likely to end in removal. footnote12_zgxixcf 12 Eagly looked at two samples, a national sample and a subset of locations that she called the Active Base Sample. She found that “in the National Sample, 80 percent of in-person respondents were ordered removed, compared to 83 percent of televideo respondents. In the Active Base City Sample, 83 percent of in-person respondents were ordered removed, compared to 88 percent of televideo respondents.” The disparities in outcomes were statistically significant. Eagly, “Remote Adjudication,” 966.  Eagly argued that “[t]elevideo must therefore be understood as having an indirect relationship to overall substantive case outcomes—one linked to the disengagement of respondents who are separated from the traditional courtroom setting.” footnote13_ui5o03u 13 Eagly, “Remote Adjudication,” 938.

Eagly relied on interviews and court observations to explore why video proceedings led to less engagement by respondents. She suggested that respondents may have been less likely to participate fully in video proceedings due to logistical hurdles requiring advanced preparation, such as the need to mail an application for relief in advance of the hearing, rather than bringing one to court and physically handing over a copy. She also highlighted the difficulties that video proceedings pose in allowing individuals to communicate effectively and confidentially with their attorney. Finally, she found that respondents often found it difficult to understand what was happening during video proceedings, and that many perceived a video appearance as unfair and not a real “day in court,” an assertion which has also been made by the American Bar Association Commission on Immigration. footnote14_o2xe5p5 14 Eagly, “Remote Adjudication,” 978, 984, 989. A 2019 report from the American Bar Association, which issued recommendations for reforming the immigration system, argued that based on its 2010 findings, the use of video conferencing technology can undermine the fairness of proceedings by making it more difficult to establish credibility and thus argue one’s case. The report goes on to suggest limiting the use of video to nonsubstantive hearings. See American Bar Association Commission on Immigration, 2019 Update Report: Reforming the Immigration System, 2019, 18, https://www.americanbar.org/content/dam/aba/publications/commission_on_immigration/2019_reforming_the_immigration_system_volume_1.pdf .

A few studies have also examined the impact of video testimony on jury trials, with mixed results. One study by psychology professor Holly Orcutt and coauthors examined the impact of remote testimony by children in sexual abuse cases. The authors created a simulation involving a fake crime with children and an adult actor. The children then testified on their experiences within the experiment during a mock trial, using actors and mock jurors. footnote15_x4r8eyz 15 Some children experienced the fake crime and some did not. In addition, some children were asked to modify their testimony to falsely indicate that a crime had taken place. Orcutt et al., “Detecting Deception in Children’s Testimony,” 343. The child witnesses testified either in person or via one-way closed-circuit television. footnote16_099w4h7 16 Orcutt et al., “Detecting Deception in Children’s Testimony,” 339–372.  

Orcutt found that when children testified via closed-circuit television, the mock jurors rated them as less honest, intelligent, and attractive, and concluded that their testimony was less accurate. Mock jurors were also less likely to vote to convict the defendant (accused by the child witness), when the child testified by closed-circuit television. footnote17_eu7e9uw 17 Orcutt et al., “Detecting Deception in Children’s Testimony,” 357, 363.  Thus, closed-circuit testimony “appeared to result in a more negative view of child witnesses as well as a small but significant decrease in the likelihood of conviction [of the defendant].” footnote18_w13sc53 18 Orcutt et al., “Detecting Deception in Children’s Testimony,” 366.  However, after jurors deliberated, there was no statistically significant impact of video versus live testimony on the verdict. footnote19_sydoiw7 19 Orcutt et al., “Detecting Deception in Children’s Testimony,” 358.  It is possible that study participants had a specific skepticism about remote testimony by children in abuse cases due to assumptions about why a child might not testify in person. However, this study also raises the possibility that remote witness testimony is generally less likely to be seen as credible, disadvantaging litigants and raising fairness concerns in cases where testimony is likely to be critical to a party’s case.

On the other hand, a series of studies from the 1970s and 1980s based on reenacted trials generally found that videotaped trials had no impact on outcomes. For example, in a reenacted trial involving an automobile personal injury case, staffed by actors, there was no statistically significant difference in the mean amount awarded by the jury, or in the jury’s retention of information, between the in-person and videotaped trials. footnote20_3qaru2y 20 Gerald Miller, “Televised Trials: How Do Juries React,” Judicature 58 (December 1974): 242–246. The jurors in Miller’s study thought they were rendering a verdict in an actual trial. A similar study likewise found no statistically significant difference in juror attributions of negligence or the amount awarded by jurors in simulated video and in-person trials. The mode of presenting expert witnesses did affect pre-deliberation award, information retention, and source credibility, but not in a straightforward manner. The plaintiff’s witness was more effective in obtaining favorable awards when he appeared live, while the defendant’s witness was more effective in reducing the award (advantaging the defendant) when he appeared on videotape. The study suggested that “The most plausible explanation for this difference could be the variations in the communication skills of the two witnesses across presentational modes.” Gerald R. Miller, Norman E. Fontes, and Gordon L. Dahnke, “Using Videotape in the Courtroom: A Four-Year Test Pattern," University of Detroit Journal of Urban Law 55 (Spring 1978): 668. See also Gerald R. Miller, Norman E. Fontes, and Arthur Konopka, The Effects of Videotaped Court Materials on Juror Response (East Lansing: Michigan State University Press, 1978).  However, several caveats apply. First, these studies did not address the use of remote jurors, or jurors who interacted with each other over video. footnote21_iue1k8x 21 For additional research on simulated trials, see David F. Ross et al., “The Impact of Protective Shields and Videotape Testimony on Conviction Rates in a Simulated Trial of Child Sexual Abuse,” Law and Human Behavior, 18, (1994): 553–566; and Tania E. Eaton et al., “Child-Witness and Defendant Credibility: Child Evidence Presentation Mode and Judicial Instructions,” Journal of Applied Social Psychology, 31 (2001): 1845–1858. However, in these studies, mock jurors watched videotapes of trials involving either live or videotaped testimony, so their findings are of limited utility for comparing videotaped and live trials.  Also relevant is that the technologies available to conduct remote proceedings today are vastly different than those used in studies in the 1970s and 80s. Finally, another limitation of these studies is that they do not address how less than ideal technological conditions may impact court dynamics. For example, a study of immigration courts by Booz Allen Hamilton for the Department of Justice determined that technological glitches had disrupted cases to such an extent that due process concerns may arise. footnote22_ac7zzb7 22 Booz Allen Hamilton, Legal Case Study: Summary Report, 2017, 23, https://perma.cc/B3VS-FQAY .

Lastly, the Administrative Conference of the United States has studied the use of video teleconferencing by federal executive agencies in administrative hearings. According to an analysis by the Bureau of Veteran Affairs, there was no evidence that video proceedings for veterans benefits adjudications had an impact on outcomes: “the difference in grants [for veterans’ benefits claims] between video hearings and in-person hearings has been within one percent” over the five-year period preceding the 2011 report. footnote23_z520tbb 23 Funmi E. Olorunnipa, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, Administrative Conference of the United States, 2011, 24, https://perma.cc/B3VS-FQAY.  The study also found that these hearings had increased productivity for Veterans Law Judges and supporting counsel by eliminating the need for travel to and from hearings.

Other Effects on Litigants

Video and perceptions of credibility.

In addition to studies that directly assess the relationship between video proceedings and outcomes, such as conviction or deportation rates, other research has looked at whether video testimony by a witness has an impact on how they are perceived by factfinders. Because credibility determinations are often central to case outcomes, the effect of video appearance on credibility has important implications for the overall fairness of remote proceedings.

In addition to the Orcutt study discussed previously, several other studies have looked at the impact of video testimony by children on their perceived credibility in the context of sexual abuse cases, finding that video testimony had an impact on jurors’ perceptions of the child’s believability. For example, an analysis involving mock trials with actors where a child testified either in-person or via closed-circuit television found that testimony over video lowered jurors’ perception of a child’s accuracy and believability. footnote24_j6tqhsb 24 Gail S. Goodman et al., “Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children’s Eyewitness Testimony and Jurors’ Decisions,” Law and Human Behavior 22 (1998): 195–96.  Similarly, in a Swedish simulation where different jurors watched the child testimony either live or via video, jurors perceived the live testimony in more positive terms and rated the children’s statements as more convincing than the video testimony. Live observers also had a better memory of the children’s statements. footnote25_6iaw76m 25 Sara Landstrom, “Children’s Live and Videotaped Testimonies: How Presentation Mode Affects Observers’ Perception, Assessment and Memory,” Legal and Criminological Psychology 12 (2007): 344–45.

Other research suggests that technological limitations may affect immigration judges’ ability to assess credibility in video proceedings. For example, in a 2017 U.S. Government Accountability Office report on immigration courts, judges in three of the six surveyed courts identified instances where they had changed credibility assessments made during a video hearing after holding a subsequent in-person hearing:

“For example, one immigration judge described making the initial assessment to deny the respondent’s asylum application during a [video teleconference] hearing in which it was difficult to understand the respondent due to the poor audio quality of the [video teleconference]. However, after holding an in-person hearing with the respondent in which the audio and resulting interpretation challenges were resolved, the judge clarified the facts of the case, and as a result, decided to grant the respondent asylum. Another immigration judge reported being unable to identify a respondent’s cognitive disability over [video teleconference], but that the disability was clearly evident when the respondent appeared in person at a subsequent hearing, which affected the judge’s interpretation of the respondent’s credibility.” footnote26_91twh8q 26 Government Accountability Office, Actions Needed to Reduce Case Backlog, 55.

Psychology research also provides theoretical support for the concern that individuals who appear by video may face disadvantages. For example, psychology professor Sara Landstrom, who studied video testimony by children, has described the “vividness effect,” whereby testimony that is more emotionally interesting and proximate in a sensory, temporal, or spatial way is generally perceived by observers as more credible and is better remembered. Landstrom notes, “it can be argued that live testimonies, due to face-to-face immediacy, are perceived [by jurors] as more vivid than, for example, video-based testimonies, and in-turn are perceived more favourably, considered more credible and are more memorable.” footnote27_2shfr5e 27 Landstrom, “Children’s Live and Videotaped Testimonies,” 335. See also Richard E. Nisbett and Lee Ross, L. Human Inference: Strategies and Shortcomings of Social Judgment. (Englewood Cliffs, NJ: Prentice-Hall, 1980).

Similarly, drawing from communications and social psychology research, law professor Anne Bowen Poulin argued, “[s]tudies reveal that people evaluate those with whom they work face-to-face more positively than those with whom they work over a video connection. When decisionmakers interact with the defendant through the barrier of technology, they are likely to be less sensitive to the impact of negative decisions on the defendant.” footnote28_58dpdex 28 Anne Bowen Poulin, “Criminal Justice and Videoconferencing Technology: The Remote Defendant,” Tulane Law Review 78 (2004): 1118.

Technology choices may also have unintended consequences. For example, research by G. Daniel Lassiter and coauthors have documented a camera perspective bias in the context of videotaped confessions, finding that observers were more likely to believe a confession was voluntary when the camera was focused only on the defendant during a videotaped interrogation. footnote29_ipn3iad 29 G. Daniel Lassiter et al., “Videotaped Confessions: Panacea or Pandora’s Box?” Law and Policy 28 (2006): 195–201.  Poulin has also noted that space constraints may necessitate the use of close-up shots during some video hearings, which can exaggerate features, obfuscate the perception of a person’s size and age, and obscure body language. footnote30_zkormjh 30 Poulin, “Criminal Justice and Videoconferencing,” 1121–1122.

Effects on Attorney-Client Communications and Relationship

Another question raised by the use of video proceedings is whether they impact communication and other aspects of the relationship between attorneys and their clients, who are frequently separated during remote proceedings. For example, in a 2010 survey by the National Center for State Courts, 37 percent of courts that used video proceedings reported that they had no provisions to enable private communications between an attorney and client when they were in separate locations. footnote31_qa2tz8u 31 Bellone, “Client Communications and the Effect of Videoconferencing,” 44–45.  Poulin also noted that even when a secure phone line for private attorney-client communication is provided, nonverbal communication is likely to be difficult, and it may be hard for a client to catch their attorney’s attention with a question or to provide relevant information. footnote32_blr06wo 32 Poulin, “Criminal Justice and Videoconferencing,” 1130.

Similarly, Diamond’s Cook County study on the impact of video proceedings on bail observed that separating attorneys and clients made it harder for them to quickly confer during a bail hearing. She noted that such a communication challenge could be consequential in a bail hearing: a defendant may be able to provide “mitigating details regarding past convictions that will greatly assist counsel… Obviously, such communications must occur immediately if counsel is to be able to make use of his client’s information during a fast-paced bail hearing.” footnote33_6mm5n4b 33 Diamond et al., “Efficiency and Cost,” 881–882.

A study by the advocacy organization Transform Justice surveyed lawyers, magistrates, probation officers, intermediaries, and other officials about the use of remote proceedings in the United Kingdom. Fifty-eight percent of respondents thought that video hearings had a negative impact on defendants’ ability to participate in hearings, and 72 percent thought that video hearings had a negative impact on defendants’ ability to communicate with practitioners and judges. footnote34_try9sq6 34 Penelope Gibbs, Defendants on video — conveyor belt justice or a revolution in access?, Transform Justice, 2017, 16, http://www.transformjustice.org.uk/wp-content/uploads/2017/10/TJ_Disconnected.pdf .  Survey respondents indicated that they believed the following groups were the most negatively impacted by video hearings: defendants with limited English proficiency, unrepresented defendants, and children under 18. footnote35_dpn2ltu 35 Gibbs, Defendants on video, 10, 26.

These findings were echoed in Florida’s experience with remote video proceedings for juvenile detention hearings. In 2001, the Florida Supreme Court repealed an interim rule that had been in effect from 1999 through 2001 that authorized remote juvenile hearings. footnote36_kb6kqg1 36 Due to the Covid-19 pandemic, the Florida Supreme Court temporarily authorized video proceedings for juvenile delinquency proceedings (including juvenile detention hearings). See Florida Supreme Court, “Chief Justice Issues Emergency Order Expanding Remote Hearings and Suspending Jury Trials into Early July Statewide,” May 4, 2020, https://www.floridasupremecourt.org/News-Media/Court-News/Chief-Justice-issues-emergency-order-expanding-remote-hearings-and-suspending-jury-trials-into-early-July-statewide .  In repealing the rule, the Court detailed public defenders’ concerns that “there was no proper opportunity for meaningful, private communications between the child and the parents or guardians, between the parents or guardians and the public defender at the detention center, and between a public defender at the detention center and a public defender in the courtroom.” footnote37_dmxghp2 37 Amendment to Fla. Rule of Juvenile Procedure 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).  The court observed that “[a]t the conclusion of far too many hearings, the child had no comprehension as to what had occurred and was forced to ask the public defender whether he or she was being released or detained.” footnote38_jdxdkn2 38 Amendment to Fla. Rule of Juvenile Procedure 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).

Additional Access to Justice Considerations

Another question raised by remote video proceedings is how their use impacts the public’s access to justice in civil cases, where there is generally no right to counsel and where other safeguards for litigants are weaker than in criminal cases.

Access to Counsel and Other Resources in Civil Cases

One critical issue is the extent to which videoconferencing increases or diminishes burdens for self-represented litigants in arenas like housing or family court. Understanding the relationship between video proceedings and access to justice can inform courts’ use of video both now and in the future, and help identify areas where courts should invest in additional resources or support for litigants.

The Conference of Chief Justices has encouraged judges to “promote the use of remote audio and video services for case hearings and case management meetings” in civil cases as part of a broader set of reforms to promote access to justice. footnote1_c9ogcey 1 National Center for State Courts, Call to Action, 37.  The Conference cites, among other things, that video proceedings can help mitigate the costs borne by litigants who might have to travel far distances or take time off from work to attend in-person court proceedings. footnote2_dsrsbah 2 National Center for State Courts, Call to Action, 37–38.  Notably, the Conference of Chief Justices’ proposal calls for combining video proceedings with enhanced services for self-represented litigants, including internet portals and stand-alone kiosks to facilitate access to court services, simplified court forms, and real-time court assistances services over the internet and phone.

A report by the Self-Represented Litigation Network similarly observed that videoconferencing technology can reduce the time and expenses associated with traveling, transportation, childcare, and other day-to-day costs that individuals incur when they go to court. The report also noted the potential costs of such technology, including the possibility that remote appearances may lessen the accuracy of factfinding and reduce early opportunities to settle cases. footnote3_w34iq3u 3 John Greacen, Remote Appearances of Parties, Attorneys, and Witnesses, Self-Represented Litigation Network, 2017, 3–4; and see also Camille Gourdet et al., Court Appearances in Criminal Proceedings Through Telepresence: Identifying Research and Practice Needs to Preserve Fairness While Leveraging New Technology, RAND Corporation, 2020, 4–5, https://www.rand.org/pubs/reserch_reports/RR3222.html (discussing advantages and disadvantages of remote proceedings in criminal cases).

There is only limited research on the benefits and harms of video proceedings with respect to access to the courts. Eagly’s study of immigration court hearings found that detained immigrants who appeared in person were 35 percent more likely to obtain counsel than those who appeared remotely, highlighting the role that courthouses often play in connecting self-represented individuals with resources, including representation. footnote4_de1qrau 4 Eagly, “Remote Adjudication,” 960.

On the other hand, a 2007 study on the use of videoconference technology in Montana, which included interviews and court observations, found that the use of video court appearances in both civil and criminal hearings enabled legal aid organizations to serve previously underserved parts of the state. footnote5_irdixdx 5 Zorza, Video Conferencing for Access to Justice.  Montana, one of the largest and least populated states, had only 84 lawyers in the entire eastern portion of the state in 2004. footnote6_wxba45l 6 Zorza, Video Conferencing for Access to Justice. For context, the overall population in this 47,500 square mile region was between 10 to 14 percent of the state’s total in 2004. See Larry Swanson, “Montana is One State with Three Changing Regions,” Belgrade News, February 28, 2019, http://www.belgrade-news.com/news/feature/montana-is-one-state-with-three-changing-regions/article_cc6ccb66–3b82–11e9–881c-8f20afd84778.html#:~:text=The%20Central%20Front%20region%20has,of%20the%20total%20in%201990 .  The study concluded that introducing video hearings means that “legal aid has a presence in counties from which they would be absent if video were not there as an option.” footnote7_ttjniqk 7 Zorza, Video Conferencing for Access to Justice, 12.  Video proceedings also opened up greater opportunities for pro bono representation. The report endorsed the use of the video technology in Montana, while urging caution in ensuring that the technology was “used with sensitivity to overall access to justice goals,” including recognizing that there are cases that may not be appropriate for video appearances, such as those involving lengthy proceedings. footnote8_mo421zh 8 Zorza, Video Conferencing for Access to Justice, 13.  The study also acknowledged that there are still unanswered questions about how to properly cross-examine a witness over video and that the potential issues with such examinations could be more significant when dealing with an individual’s credibility or integrity. footnote9_5fdjtx0 9 Zorza, Video Conferencing for Access to Justice, 18.

Beyond the use of videoconferencing, another study looked at an online case resolution system for minor civil infractions and misdemeanors. This online system did not use video; rather, individuals had the option to use an online portal to communicate with judges, prosecutors, and law enforcement at any time of day. The study found that the system saved time, significantly reduced case duration, and reduced default rates (where individuals lose cases by not contesting their claims). footnote10_lrlu3ls 10 J.J. Prescott, “Improving Access to Justice in State Courts with Platform Technology,” Vanderbilt Law Review 70 (2017): 2028–2034.  The author highlighted the costs associated with going to court for relatively low-stakes proceedings: “Physically going to court costs money, takes time, creates fear and confusion, and presents both real and perceived risks.” footnote11_bqb82js 11 Prescott, “Improving Access to Justice,” 1996.  To the extent that video proceedings may similarly reduce some of the costs of going to the courthouse, this study suggests that in lower-stakes proceedings, the use of video can save time compared to attending in-person proceedings, and can enable more individuals to engage with the system rather than defaulting their claims. However, it also highlights that videoconferencing is not the only way to conduct proceedings remotely, and that in some contexts online systems and other technologies have functioned well. footnote12_zbdsrsr 12 See also Maximilian A. Bulinski and J.J. Prescott, “Online Case Resolution Systems: Enhancing Access, Fairness, Accuracy, and Efficiency,” Michigan Journal of Race and Law 21 (2016). OCR systems involve transitioning some everyday court proceedings, such as civil infraction citations, outstanding failure-to-pay or failure-to-appear warrants, and some misdemeanors to be settled online, sometimes via videoconference.

Additional Consideration for Marginalized Communities

Other research raises potential equity concerns about the broad use of video proceedings, particularly for marginalized communities and in cases where individuals are required to participate by video. These concerns underscore the need for additional research and evaluation as courts experiment with remote systems, as well as the need for courts to consult with a wide array of stakeholders when developing policies for video proceedings.

For instance, there is a substantial digital divide associated with access to the internet and communication technology. One critical unanswered question is whether and how video proceedings may exacerbate existing inequalities. According to studies by the Pew Research Center, there are substantial disparities in access to internet broadband and computers according to income and race. footnote13_rgo43ny 13 29 percent of adults with household incomes below $30,000 did not own a smartphone, 44 percent did not have home broadband services, and 46 percent did not own a traditional computer. Households with incomes of $100,000 almost universally had access to these technologies. Monica Anderson and Madhumitha Kumar, “Digital Divide Persist Even as Lower-Income Americans Make Gains in Tech Adoption,” Pew Research Center, May 7, 2019, https://www.pewresearch.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/ . Only 66 percent and 61 percent of Black and Latino Americans respectively have access to a home broadband compared to 79 percent of white Americans. Andrew Perrin and Erica Turner, “Smartphones Help Blacks, Hispanics Bridge Some — But Not All — Digital Gaps with Whites,” Pew Research Center, August 20, 2019, https://www.pewresearch.org/fact-tank/2019/08/20/smartphones-help-blacks-hispanics-bridge-some-but-not-all-digital-gaps-with-whites/ .  Americans who live in rural communities are also less likely to have access to broadband internet. footnote14_d8nb8zy 14 Andrew Perrin, “Digital Gap Between Rural and Nonrural America Persists,” Pew Research Center, May 31, 2019, https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-america-persists/ .  The same is true for people with disabilities, who may also require special technology in order to engage in online activities such as remote court proceedings. footnote15_hjzk8ai 15 Disabled Americans are about 20 percentage points less likely than those without a disability to say that they have access to home broadband internet or own a computer, smartphone, or tablet. Monica Anderson and Andrew Perrin, “Disabled Americans are Less Likely to Use Technology,” Pew Research Center, April 7, 2017, https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-less-likely-to-use-technology/ .

Technology disparities potentially pose significant hurdles to the widespread use of video court proceedings for marginalized communities, particularly when Covid-19 has led to the closure of many offices and libraries. The pandemic has also caused a massive spike in unemployment, which may hinder litigants’ abilities to pay their phone and internet bills. footnote16_ygoytal 16 Rachel Dissell and Jordyn Grzelewski, “Phone, Internet Providers Extend Service Yet Some Still Disconnected from Lifelines During Coronavirus Pandemic,” Cleveland.com, April 8, 2020, https://www.cleveland.com/coronavirus/2020/04/phone-internet-providers-extend-service-yet-some-still-disconnected-from-lifelines-during-coronavirus-pandemic.html . See also NORC at the University of Chicago, “Most Working Americans Would Face Economic Hardship If They Missed More than One Paycheck,” press release, May 16, 2019, https://www.norc.org/NewsEventsPublications/PressReleases/Pages/most-working-americans-would-face-economic-hardship-if-they-missed-more-than-one-paycheck.aspx .  Because there is currently a dearth of research on how the digital divide impacts access to video proceedings, courts and other stakeholders should conduct their own studies before committing to the use of video hearings in the long term.

Other research has identified challenges that self-represented litigants face in navigating the legal system, including the need for training and support offered in multiple languages. footnote17_9s4osb7 17 Phil Malone et al., Best Practices in the Use of Technology to Facilitate Access to Justice Initiatives: Preliminary Report, Berkman Center for Internet and Society at Harvard University, 2010, 6–7, 14–19, Appendix A, https://cyber.harvard.edu/sites/cyber.harvard.edu/files/A2J_Report_Final_073010.pdf .   In some states, as many as 80 to 90 percent of litigants are unrepresented. footnote18_3uhk7ep 18 Jessica Steinberg, “Demand Side Reform in the Poor People’s Court,” Connecticut Law Review, 47 (2015): 741. Another critical research question is the extent to which courts are able to provide adequate support remotely, particularly in jurisdictions where courthouses have been the principal place where individuals going to court connect with resources.

A final question is how remote technology affects access to justice for individuals who do not speak English or have limited English proficiency. This is a particular concern in the judicial context because research suggests that dense court language can be difficult to communicate via translation to non-English speakers. footnote19_2tsioc2 19 Charles M. Grabau and Llewellyn Joseph Gibbons, “Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation,” New England Law Review 30 (1996): 237–244, 255—60. See also Ashton Sappington, “Implied Consent and Non-English Speakers,” John Marshall Law Journal 5 (2012): 638.

Research related to the use of remote translation in areas such as telemedicine has been mixed as to whether remote translation impacts quality and satisfaction. footnote20_2fdph1i 20 Ann Chen Wu et al., “The Interpreter as Cultural Educator of Residents: Improving Communication for Latino Parents,” Archives of Pediatrics and Adolescent Medicine 160 (2006): 1145–50; C. Jack, “Language, Cultural Brokerage and Informed consent — Will Technological Terms Impede Telemedicine Use?” South African Journal of Bioethics and Law 7 (2014): 14, 16–17; and Imo S. Momoh, Cultural Competence Plan, Contra Costa County Mental Health Services, 2010, 78, 101–108, 114, https://cchealth.org/mentalhealth/pdf/2010_cultural_competence_plan.pdf .   And while there is limited research on remote translation in courts, a study by the Legal Assistance Foundation of Metropolitan Chicago and the Chicago Appleseed Fund for Justice found that approximately 30 percent of litigants in immigration court who used an interpreter appeared to misunderstand what was happening, either due to misinterpretation or inadequate interpretation. footnote21_6smfyw1 21 The Legal Assistance Foundation of Metropolitan Chicago and the Chicago Appleseed Fund for Justice, Videoconferencing in Removal Hearings: A Case Study of the Chicago Immigration Court, 2005, 8, http://chicagoappleseed.org/wp-content/uploads/2012/08/videoconfreport_080205.pdf .  The study lacked a control group, making it difficult to assess the role that remote video immigration proceedings played in translation difficulties, but the report’s authors suggested that, based on their observation of these proceedings, videoconferences exacerbated translation difficulties. footnote22_ytuyz9f 22 The Legal Assist. Found. of Metropolitan Chicago and the Chicago Appleseed Fund for Justice, Videoconferencing in Removal Hearings, 13.

Though video conferencing technology has been a valuable tool during the Covid-19 pandemic, existing scholarship suggests reasons to be cautious about the expansion or long-term adoption of remote court proceedings. More research is necessary, both about the potential impact of remote technology on outcomes in a diverse range of cases, as well as the advantages and disadvantages with respect to access to justice. In the meantime, as courts develop policies for remote proceedings, they should consult with a broad set of stakeholders, including public defenders and prosecutors, legal services providers, victim and disability advocates, community leaders, and legal scholars.

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Case Studies

The WH-LAIR Case Studies are two-page documents that illustrate how civil legal aid supports federal efforts to serve the low-income and other vulnerable populations in various areas. They contain descriptions of common challenges faced by vulnerable populations, examples of federal responses to these challenges, and concrete examples of the ways in which civil legal aid meaningfully supports federal agencies’ efforts. The WH-LAIR continues to issue new case studies on selected topics.

Civil Legal Aid Supports Federal Efforts To Help Protect Consumers

Standing up for Victims of Mortgage Fraud

A home repair contractor approached Sadie, an 85-year-old African American woman who has owned her home for forty years, promising to perform home improvements under a "free government program" for seniors.  Sadie did not understand the papers she signed, and did not realize that the contractor had taken $122,000 from a reverse mortgage on her home even before any work was done.  He eventually remodeled two bathrooms, but the work was sloppy and defective.  No other home improvements were performed.  Legal Assistance Foundation of Chicago (LAF), a federally-funded Legal Services Corporation grantee, filed a lawsuit to void the loan and recover money damages from the contractor's company, ultimately settling for $110,000.  LAF continues to represent other mostly elderly and minority victims of this reverse mortgage scheme.

Civil Legal Aid Supports Federal Efforts To Help Keep America Working

Legal Aid gets Dad Back on Road to Work

After five years working as a delivery driver for a home improvement chain, Joe lost his job when his driver’s license was suspended because medical expenses for his prematurely-born daughter left him unable to pay outstanding traffic fines.  SonomaWORKS,  Sonoma County’s HHS-funded  welfare-to-work program, referred Joe to what seemed like a perfect job as a delivery driver for a parts store. When the employer offered him a position contingent on securing a driver’s license, he sought help from Legal Aid of Sonoma County.  With funding from California’s TANF program, Joe’s legal aid lawyer successfully arranged an affordable payment plan for a reduced bail amount so Joe could pay off his fines and get his drivers license reinstated. Thanks to the legal and employment services provided through SonomaWORKS, Joe once again became self-sufficient.

Civil Legal Aid Supports Federal Efforts To Help Prevent Elder Abuse

Legal Aid Delivers Justice for Elderly Domestic Violence Victim

Cynthia was 83-years old when her controlling husband threw her out of their home and cut her off from all assets after she became too ill to care for him and their home. Cynthia’s husband was wealthy, and theirs was a second marriage that occurred late in life. During their marriage, Cynthia became isolated and was subjected to controlling and threatening behavior. After her husband Kicked her out of their home, she had no means of support other than a small Social Security benefit. Funded in part by DOJ OVW’s Legal Assistance for Victims grant, a Montana Legal Services Association attorney represented Cynthia in court.  The attorney successfully obtained a property settlement that allowed Cynthia to live out her remaining years in safety and in a home close to her adult children.

Civil Legal Aid Supports Federal Efforts On Behalf Of Tribes & Tribal Members

Doctor prescribes a lawyer to keep family healthy and housed

After Rose, a citizen of the Navajo Nation, lost her adult daughter in a car accident, she was left to raise five grandchildren.  With no room for the children in her own house, Rose moved into her deceased daughter’s apartment.  Still grieving, Rose received an eviction notice from the housing agency, because she was not named on the apartment lease.  She was told that she and the children had to move.  When a pediatrician at the Indian Health Service clinic learned of the situation, she referred Rose to DNA-People’s Legal Services Medical-Legal Partnership Program, funded by DOJ’s Tribal Civil Legal Assistance Program. With the help of her DNA-People’s Legal Services lawyer, Rose showed that tribal law and federal policies allowed her to assume the lease obligations.  Rose continued to care for the children in their own home and, with DNA’s help, obtained legal guardianship over each grandchild.

WH-LAIR Case Study: On Behalf Of Tribes & Tribal Members

Civil Legal Aid Supports Federal Efforts to Help Prevent Domestic Violence

“Nazia,” a 37-year-old immigrant from Guyana, fled with her two young children from the physical and emotional abuse of her husband. With the assistance of Legal Services Corporation-funded Queens Legal Services (QLS), a recipient of U.S. Department of Health and Human Services Family and Youth Services Bureau funding, she successfully obtained an Order of Protection and full custody of her children. However, shortly thereafter, Nazia’s abuser retaliated by filing for a modification of custody, citing frivolous allegations of inappropriate parenting. Her legal aid lawyer continued to represent her and also referred Nazia to a QLS social worker, who provided counseling to her and her children throughout the process. Again, thanks to her legal aid lawyer, after two years of litigation, Nazia settled the case and retained sole legal custody of her children.

WH-LAIR Case Study: Prevent Domestic Violence  

Civil Legal Aid Supports Federal Efforts to Help People with Criminal Records Make a Successful Reentry

“Andy’s” 10-year old felony conviction prevented him from pursuing his hopes of securing a state license to become a New York Licensed Practical Nurse. The Fortune Society, a grantee of U.S. Department of Labor’s Reintegration of Ex-Offenders Program, referred Andy to MFY Legal Services in New York. His legal aid lawyer helped Andy obtain out-of state criminal court records, gather proof of rehabilitation, and represented him at the initial investigative interview. The result was a successful license application and a job.

WH-LAIR Case Study: Successful Reentry

Civil Legal Aid Supports Federal Efforts to Help Veterans & Servicemembers

When “Clyde” sought medical help from the Philadelphia U.S. Department of Veterans Affairs Medical Center, a social worker learned he had fallen behind on his rent and faced eviction from his apartment. The social worker and the Supportive Services for Veteran Families (SSVF) caseworker recognized Clyde’s need for legal help, and assisted Clyde in getting an appointment with an attorney at the SSVF program’s legal aid partner, Homeless Advocacy Project. With the SSVF program providing some of Clyde’s back rent, the attorney negotiated an agreement to stop the eviction in exchange for a lump sum payment for most of the unpaid rent, plus a payment plan to cover the remainder. With his housing stabilized, Clyde was able to focus on his health needs.

WH-LAIR Case Study: Help Veterans and Servicemembers

Civil Legal Aid Supports Federal Efforts to Help Keep Children in School

Growing up in a community influenced by gangs, “Carl” was expelled from middle school. Later incarcerated for a juvenile offense, Carl began working with a TeamChild ® attorney – partially funded by U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevent – to plan his release and return to school. His attorney successfully advocated for his readmission. When other students threatened Carl he sought help from school administrators who responded by expelling him. His attorney successfully represented him at the hearing and Carl finished the semester. Fearful of the gangs, he left Washington state to live with relatives, and pursue a GED and Job Corps training program. Denied admission because of his juvenile record, his lawyer stepped in yet again, to appeal and document Carl’s determination to get back on track. Job Corps reversed their decision. Carl got his GED and is working hard towards his auto mechanic certificate.

WH-LAIR Case Study: Keep Children in Schools

Civil Legal Aid Supports Federal Efforts to Help People Exit Homelessness and Stay Housed

“Frank,” a disabled man living in U.S. Department of Agriculture-subsidized housing in rural Iowa, received an eviction notice from his landlord after neighbors complained that he yelled too much, especially late at night. Attempts by the property manager to talk to Frank about the problem only made it worse. Fearing that he would become homeless, Frank sought help from Legal Services Corporation-funded Iowa Legal Aid. With support from the U.S. Department of Housing and Urban Development’s Emergency Solutions Grant, Iowa Legal Aid could assist him. Frank’s lawyer realized that his disruptive behavior flowed from untreated mental illness. She met with his property manager and reached out to other professionals to help Frank manage his mental illness. They collaborated on a plan to address the problems and involve his case manager as an intermediary if an issue arose. The property manager agreed to dismiss the eviction, and Frank remained in his home.

Civil Legal Aid Supports Federal Efforts to Help People Access Healthcare

“Alex” sought help from Legal Services Corporation-funded Neighborhood Legal Services of Los Angeles County because of medical debt that threatened his family with bankruptcy. Unable to purchase affordable insurance in the private market because of his pre-existing condition, Alex’s debt had accrued after several emergency room visits for a severe heart condition that required surgery he could not afford. In addition to helping negotiate his medical bills with the hospital and avoid bankruptcy, his legal aid attorney – thanks in part to support from the Affordable Care Act Consumer Assistance Program funds – helped identify affordable insurance options through California’s Covered CA and new adult Medicaid expansion programs that will help Alex get the surgery he desperately needs.

WH-LAIR Case Study: Access Health Care

Civil Legal Aid Supports Federal Efforts to Assist Law Enforcement & Promote Public Safety

Police partnership with legal aid help decrease incidence of domestic violence

The High Point Police Department partnered with Legal Aid of North Carolina, Family Service of the Piedmont, and other community groups to open the High Point Center for Children and Families and Victims’ Justice as part of the COPS-funded Offender Focused Domestic Violence Initiative (OFDVI). The initiative focuses on early intervention to break the cycle of domestic violence, and helps victims with their civil legal needs, such as obtaining protective orders. Within the first two years of the OFVDI, recidivism rates – which typically range from 20-34% -- decreased to 9% across more than 1,000 offenders.

WH-LAIR Case Study: Assist Law Enforcement & Promote Public Safety

Civil Legal Aid Supports Federal Efforts to Help Americans with Disabilities

P&A Lawyer Listens to Teacher’s Tale of Denial of Services for Hearing Loss

When “Jack” realized his already limited hearing had deteriorated, he knew he needed new hearing aids to keep his teaching job. But when Jack requested a replacement device, Indiana Vocational Rehabilitation Services (VR), the state government office that helps people with disabilities get and retain employment, denied the request because VR’s policy required a hearing change of at least 10 decibels to provide replacement devices and Jack didn’t meet that requirement. Indiana Protection and Advocacy Services (IPAS), with funding from the Department of Education’s Client Assistant Program, appealed the denial. At the appeal, the administrative law judge determined that VR’s 10-decibel requirement was inconsistent with federal law, as it did not account for the individual needs of each VR client. Thanks to IPAS’s help, Jack received new hearing aids and kept his job. IPAS also used the decision to help other Hoosiers needing replacement hearing aids to retain their employment.

WH-LAIR Case Study: Help Americans with Disabilities

Civil Legal Aid Supports Federal Efforts to Help Human Trafficking Victims

Legal aid helps restaurant workers in federal prosecution of traffickers and public benefits

“Narawit” was enticed to Colorado from Southeast Asia with a work visa and good wages as a chef. However, the restaurant owner forced him to work twelve-hour shifts without breaks, and the pay was far less than promised with numerous illegal deductions and fees. When the owner didn’t renew his visa, Narawit feared he had no options. Fortunately, DOJ prosecuted the owner, and  Colorado Legal Services (CLS) helped Narawit and 8 other workers in the federal prosecution. CLS helped them meet with federal prosecutors and investigators, calculate unpaid wages, and prepare victim impact statements. CLS also helped recover restitution for nearly 60 workers. Later, when Narawit became seriously ill, CLS, with funding from OVC’s Specialized Services for Victims of Human Trafficking grant, helped him successfully appeal the denial of Medicaid and food stamps by establishing his eligibility as a human trafficking victim.

WH-LAIR Case Study: Help Human Trafficking Victims

Civil Legal Aid Supports Federal Efforts to Strengthen Families

Father and son get parenting support from legal aid

“Christopher” was a dedicated father to a young son, for whom he regularly paid child support. When his work schedule was reduced and his earnings dropped, he sought help from the Alameda County Superior Court Family Law Facilitator’s office, which is funded in part by ACF’s Child Support Enforcement Program at HHS. A staff attorney there helped him request a modified child support order that would reflect his pay cut. The lawyer then explained how Christopher could use this opportunity to request increased visitation time with his son and take on more parenting responsibility. Staff from the court’s Family Law Facilitator’s Office was present at the hearing to provide legal information and procedural guidance to Christopher. The court made the proposed changes and Christopher’s payments were reduced to an amount that he could afford. He began picking his son up from school twice a week and eating dinner together, before returning him to his mother.

WH-LAIR Case Study: Strengthen Families

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Every law student and practicing attorney must be able to find, read, analyze, and interpret case law. Under the common law principles of stare decisis, a court must follow the decisions in previous cases on the same legal topic. Therefore, finding cases is essential to finding out what the law is on a particular issue.

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• Published: 22 October 2019

Neuroscientific evidence in the courtroom: a review

• Darby Aono 1 ,
• Gideon Yaffe 2 &
• Hedy Kober   ORCID: orcid.org/0000-0001-9893-1046 3  

Cognitive Research: Principles and Implications volume  4 , Article number:  40 ( 2019 ) Cite this article

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The use of neuroscience in the courtroom can be traced back to the early twentieth century. However, the use of neuroscientific evidence in criminal proceedings has increased significantly over the last two decades. This rapid increase has raised questions, among the media as well as the legal and scientific communities, regarding the effects that such evidence could have on legal decision makers. In this article, we first outline the history of neuroscientific evidence in courtrooms and then we provide a review of recent research investigating the effects of neuroscientific evidence on decision-making broadly, and on legal decisions specifically. In the latter case, we review studies that measure the effect of neuroscientific evidence (both imaging and nonimaging) on verdicts, sentencing recommendations, and beliefs of mock jurors and judges presented with a criminal case. Overall, the reviewed studies suggest mitigating effects of neuroscientific evidence on some legal decisions (e.g., the death penalty). Furthermore, factors such as mental disorder diagnoses and perceived dangerousness might moderate the mitigating effect of such evidence. Importantly, neuroscientific evidence that includes images of the brain does not appear to have an especially persuasive effect (compared with other neuroscientific evidence that does not include an image). Future directions for research are discussed, with a specific call for studies that vary defendant characteristics, the nature of the crime, and a juror’s perception of the defendant, in order to better understand the roles of moderating factors and cognitive mediators of persuasion.

Significance

The increased use of neuroscientific evidence in criminal proceedings has led some to wonder what effects such evidence has on legal decision makers (e.g., jurors and judges) who may be unfamiliar with neuroscience. There is some concern that legal decision makers may be unduly influenced by testimony and images related to the defendant’s brain. This paper briefly reviews the history of neuroscientific evidence in the courtroom to provide context for its current use. It then reviews the current research examining the influence of neuroscientific evidence on legal decision makers and potential moderators of such effects. Our synthesis of the findings suggests that neuroscientific evidence has some mitigating effects on legal decisions, although neuroimaging-based evidence does not hold any special persuasive power. With this in mind, we provide recommendations for future research in this area. Our review and conclusions have implications for scientists, legal scholars, judges, and jurors, who could all benefit from understanding the influence of neuroscientific evidence on judgments in criminal cases.

Introduction

Over the last four decades, the number of incarcerated Americans has increased by 500% (The Sentencing Project, 2018 ). In 2017, there were 1,097,083 arrests made in California alone (California Department of Justice, 2017 ), while an estimated total of 6,613,500 American citizens were on parole, probation, in jail, or in prison (Kaeble & Cowhig, 2018 ). Importantly, while incarceration rates have skyrocketed, the neuroscientific technology available for both criminal prosecution and defense has also increased at a rapid rate over the past few decades. From the advent of electroencephalography (EEG) in the 1930s to the first magnetic resonance imaging (MRI) scans performed on humans in the 1970s, the twentieth century saw great advances in neuroscience, and neuroimaging specifically. These tools not only gave scientists an inside view into the structure and function of the human brain, but they also allowed experts to better conceptualize the connection between the human brain and human behavior. This connection has become particularly evident, and relevant, in the courtroom.

The entrance of neuroscience to the courtroom has been featured in scientific and law review articles, as well as in numerous mainstream news articles, with titles ranging from “How criminal courts are putting brains—not people—on trial” (Gonzalez, 2017 ) to “Brain scans in the courts: prosecutor’s dream or civil rights nightmare?” (Gaines, 2018 ). Given how relatively new neuroscience is to the courtroom, there remain many open questions regarding its potential role. The purpose of this paper is to review the historical and current use of neuroscientific evidence by the legal system, as well as the current research investigating the effects of neuroscientific evidence on legal decision makers in criminal cases. Such a review is particularly timely in light of media, legal, and scientific concern over the potential biasing effect of such evidence (e.g., Choi, 2017 ; Davis, 2017 ).

Neuroscience in the courtroom: a brief history

Neuroscience has been used in legal proceedings since the early twentieth century. Shen ( 2016 ) traces one of the earliest introductions of neuroscience into courtrooms to the 1940s, when EEG was first used in a case involving a defendant with epilepsy. At the time, EEG was used to shed light on diagnosing and treating epilepsy; some lawyers used this tool to argue against laws that denied rights to individuals with epilepsy, while others used it in an attempt to identify the neural markers of violence (Shen, 2016 ). By the mid-twentieth century, EEG had become such a common occurrence in epilepsy cases that psychiatrist and attorney Irwin Perr advised, “The lawyer interested in this subject must know some principles of electroencephalography—both in understanding and evaluating epilepsy and because of its frequent use as a tool in court cases” (Perr, 1958 ). Indeed, within a few decades of its invention, an understanding of EEG was recommended for attorneys, both for its probative value as well as its growing presence in the courtroom.

In 1981, John Hinckley’s attempted assassination of President Ronald Reagan led to one of the highest profile cases that utilized neuroscience in a criminal trial. Hinckley’s defense team introduced a computed tomography (CT) scan of his brain to help bolster its argument that he suffered from schizophrenia, and should therefore be found not guilty by reason of insanity (NGRI). Although the prosecution opposed the introduction of Hinckley’s CT scans as evidence, the district court judge ruled that the scans were admissible. Hinckley was ultimately found NGRI.

A decade later, a new form of neuroimaging made an appearance in People v. Weinstein ( 1992 ). Weinstein was charged with second-degree murder for strangling his wife and throwing her from the 12th floor of their Manhattan apartment, a charge he readily admitted to. His attorneys considered it suspicious that Weinstein would show so little remorse for his actions, and ordered positron emission tomography (PET) scans. At trial, Weinstein’s defense team presented his PET scans to support their claim that, due to an arachnoid cyst, his brain function was disrupted. Thus, they claimed that the defendant did not have the requisite mental state to be found criminally responsible. Weinstein was later allowed to plead guilty to the lesser charge of manslaughter.

Only a year after Weinstein , the rules governing the introduction of scientific evidence into federal trials changed significantly. In Daubert v. Merrell Dow Pharmaceuticals, Inc. ( 1993 ), two families sued Merrell Dow for their children’s birth defects, allegedly caused by the prenatal ingestion of a drug sold by the company. Although the district court granted summary judgment for Merrell Dow, the families appealed, and the case was eventually heard by the Supreme Court of the United States. Prior to Daubert , trial judges used the “ Frye standard” to guide decisions on the admissibility of scientific testimony. The Frye standard dictated that, in order for testimony to be admitted to trial, the method by which the evidence was obtained must be “generally accepted” by the relevant scientific community. However, almost two decades before Daubert , Congress had passed the Federal Rules of Evidence (FRE), which offered a more liberal standard for allowing scientific testimony to enter trial. Rather than requiring “general acceptance” of the scientific technique for admissibility, the standard set by the FRE deemed such an assessment to be only one of a number to consider, along with whether or not the methodology is testable, whether it has been subjected to peer review, and its known or potential error rate. In Daubert , the Supreme Court replaced Frye’s supremacy in federal cases with the standard set forth by the FRE, which has come to be known as the “ Daubert standard.” This opened the door for the more liberal use of scientific evidence in modern courtrooms. Specifically, the Daubert standard allowed scientific techniques and results that had not yet achieved general acceptance to appear in courtrooms. Thus, new imaging tools that were not yet widely used became admissible thanks to Daubert .

Neuroscience in the modern courtroom

Along with its development in scientific contexts, the opportunity for neuroscience to be used as evidence in criminal trials has predictably increased since the turn of the century. Theoretically, neuroscientific evidence (broadly construed as any information related to the brain) can be used like any other type of evidence to establish or dispute any claim in a criminal case. It could be used, for example, to support or cast doubt on the testimony of an expert, to support or rebut a medical diagnosis, to corroborate a defendant’s testimony about his frame of mind at the time of the crime, to establish that a defendant’s conduct caused severe harm, or used demonstratively to help the judge or jury understand some other kind of evidence, and so on. In practice, the standard described in the prior section regulates the admission of such evidence in various courtrooms.

Meixner ( 2016 ) reviewed the use of neuroscientific evidence in criminal trials from 2005 to 2012 in the US, Canada, the Netherlands, England, and Wales. Summarizing prior findings, he reported that the use of neuroscientific evidence has increased at similar rates across all studied jurisdictions, with a sharp upwards slope from 2005 that levels off in around 2010. The absolute number of US cases involving neuroscientific evidence, however, has been significantly higher than the other jurisdictions.

In an analysis of US cases between 2005 and 2012, Farahany ( 2016 ) reported that 1585 judicial opinions from criminal cases mentioned the defense’s use of neuroscientific or genetic evidence. In 2012 alone, there were 250 judicial opinions written in which the criminal defendant argued (successfully or otherwise) that their “brain made them do it”. In another analysis, Farahany determined that neuroscientific and genetic evidence was introduced in 5% of all murder trials and 25% of all death penalty trials in 2012 (Farahany, 2016 ). In fact, 15% of the 1585 judicial opinions reviewed discussed such evidence specifically. It should be noted, however, that only a fraction of all criminal cases go to trial and end in guilty verdicts. Of these cases, only a fraction reach appellate court and subsequently generate written opinions. Therefore, this set of judicial opinions may not be representative of all cases, or even all cases that go to trial.

Denno ( 2015 ) provided a nuanced view of how neuroscience is used in criminal trials with her review of 553 criminal cases that presented neuroscientific evidence between 1992 and 2012. Two thirds (66.18%) of the cases began as death penalty cases, while 24.23% were cases in which either life or significant prison sentences (10+ years) were possible outcomes for the defendant. In nearly all cases, neuroscientific material was presented as mitigating evidence by the defense; in only 7% of cases was it presented as aggravating evidence by the prosecution. Although Denno did not quantify the claim, she reported that, across defense cases, neuroscientific evidence was often used to bolster a diagnosis that was already confirmed by a medical professional (Denno, 2015 ). Such diagnoses included substance use disorders, schizophrenia, depression, and organic brain damage (among others). However, in many cases neuroscientific evidence was used to suggest the existence of a “mental or behavioral” disorder that was not otherwise diagnosed. Interestingly, 63.29% of the reviewed cases specifically involved a form of neuroimaging evidence, including MRI, PET, and CT scans.

A particularly intriguing subset of the cases reviewed by Denno ( 2015 ) were those in which a defendant was convicted and subsequently argued that they had received “ineffective assistance of counsel” thanks to their attorney’s failure to introduce neuroscientific evidence. In Strickland v. Washington ( 1984 ), the Supreme Court ruled that in order for defendants to successfully appeal on account of ineffective assistance of counsel they must show that their attorneys performed below an “objective standard of reasonableness,” and that there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Such Strickland claims appeared in 53% of the cases reviewed by Denno ( 2015 ). Importantly, 87% of these Strickland claims included arguments that defense counsel presented insufficient neuroscientific evidence. Furthermore, 27.65% of the reported Strickland claims were successful (an extraordinarily high rate), with defense counsel’s inadequate use of neuroscientific evidence forming the basis of all but one successful claim. This success rate is especially striking given that Strickland claims are typically unsuccessful. For example, Benner ( 2009 ) reported a 4% success rate for all Strickland claims in California over a 10-year period. This difference in success rates likely stems from the types of cases reported by Denno ( 2015 ), namely, cases in which neuroscientific evidence was presented in the first place. Indeed, defendants who had a reason to introduce neuroscientific evidence in their original court cases (presumably due to neurological or mental abnormalities) may be more likely to successfully establish ineffective assistance of counsel compared with neurologically typical defendants. However, this high success rate may still suggest that the law is beginning to require defense lawyers to introduce neuroscientific evidence when it might prove valuable to the defendant’s case.

Scientific investigations of courtroom neuroscience: definitions and scope

Following the above overview of the extent and nature of the role of neuroscience in criminal trials, we now focus on assessing the potential influence of such evidence on legal decision makers. In the US, criminal cases that do not end with plea bargains might be decided at a bench trial, over which the judge presides. However, most criminal cases that go to trial are decided by juries. In jury trials, jurors are responsible for both determining the facts of the case based on the presented evidence and for reaching a verdict (American Bar Association, 2018 ). Despite this responsibility, jurors are rarely experts in the types of evidence presented, nor are they trained in weighing evidence to arrive at legal conclusions. Therefore, juror response to neuroscientific evidence in which they have little, if any, expertise is of particular investigative interest.

Thus, here we focus on studies aiming to understand the effects of neuroscientific evidence on jurors in criminal trials. We define neuroscientific evidence as encompassing expert testimony related to brain structure or function and/or neuroimages presented as evidence. Expert testimony solely related to a mental disorder diagnosis, for example, was not considered neuroscientific evidence for the purposes of this paper, even if it was delivered by a neuroscience expert. Notably, the majority of studies in this field have been conducted on mock jurors (i.e., study participants who are asked to imagine themselves as part of a jury). Finally, the “effect” of neuroscientific evidence is measured via the legal judgments rendered by such mock jurors (e.g., guilty/not guilty, death penalty/life sentence).

To focus this review further, we used the framework suggested by Jones ( 2013 ) who helpfully outlined seven main categories for the application of neuroscience in the legal field: buttressing (the use of neuroscience as supporting evidence); detecting (the use of neuroscience to gain otherwise elusive insights, such as the extent of brain injuries); sorting (the use of neuroscience to categorize people into legal classifications, such as sane versus insane); challenging (the use of neuroscience to challenge an institutionalized assumption); intervening (the use of neuroscience to create and recommend interventions); explaining (the use of neuroscience to shed light on uncontested, yet not well understood phenomenon); and predicting (the use of neuroscience to help make predictions about people’s future behavior).

Accordingly, this review focuses on studies that examined the use of neuroscientific evidence as buttressing, detecting, or sorting devices. We chose to focus on these categories because there is both legal precedent and a relatively substantial body of research on the use of such neuroscientific evidence, while the other categories are in relatively earlier stages of examination. Therefore, in the reviewed studies, neuroscientific evidence is used to support an argument put forth by the criminal defense attorney, reveal brain damage relevant to the criminal case, or provide evidence for a diagnosable mental disorder. Finally, although technically within Jones’ category of detection, studies that focused on the use of neuroscientific evidence for lie detection purposes in criminal cases (e.g., McCabe, Castel, & Rhodes, 2011 ) were considered outside of the scope of this review.

Scientific investigations of courtroom neuroscience: the empirical research literature

Empirical investigations of neuroscientific evidence in the courtroom were largely motivated by earlier studies exploring the effects of neuroscientific information on “regular” (nonlegal) judgments. In one of the pioneering studies on the broad persuasiveness of neuroscience outside of a courtroom context, Weisberg, Keil, Goodstein, Rawson, and Gray ( 2008 ) presented neuroscientifically naïve adult participants with brief descriptions of psychological phenomena (e.g., attentional blink), followed by more detailed explanations of the same phenomena. Importantly, the detailed explanations were either good or bad in quality, and either contained irrelevant neuroscientific information or no neuroscientific information at all, in a 2 (quality of argument) × 2 (presence of neuroscience information) design. Although the neuroscientific information was irrelevant, participants rated the scientific reasoning of bad explanations as more satisfying when it was included (there was no effect for good explanations). These findings were replicated in a second study with students in an introductory cognitive neuroscience class (Weisberg et al., 2008 ). Follow-up work showed that the effect that neuroscientific information renders explanations more satisfying did not depend on the length of the explanation or on neuroscientific jargon (Weisberg, Taylor, & Hopkins, 2015 ). Furthermore, this core finding (now termed “the seductive allure”) has since been replicated in much larger samples of neuroscientifically naïve participants (Michael, Newman, Vuorre, Cumming, & Garry, 2013 ). Together, these findings serve as the initial motivation for studies testing the effects of neuroscientific evidence on jurors.

While Weisberg et al. ( 2008 ) examined the influence of neuroscientific information, McCabe and Castel ( 2008 ) examined whether neuroimages held any power to bolster scientific arguments. Across two experiments, participants were presented with summaries of fictitious cognitive neuroscience studies (e.g., “watching TV is related to math ability”). Depending on the condition, the article was accompanied by a neuroimage, bar graph representing brain activity, topographical map of brain activation, or no image. Participants then rated whether “the scientific reasoning in the article made sense” on a four-point Likert scale. Overall, the results showed that participants presented with a neuroimage rated the scientific reasoning as making more sense compared with those who were presented with any other image, or no image. Thus, McCabe and Castel ( 2008 ) offered one of the first pieces of empirical evidence suggesting that neuroimages may hold a unique persuasive power over laypeople’s judgments, spurring several investigations into the effects of neuroimages on jurors.

However, these findings were later challenged by studies with similar designs that failed to replicate the persuasive influence of neuroimages. For example, Gruber and Dickerson ( 2012 ) compared the evaluations of participants on an article when it was presented with a neuroimage, an artistic rendering of a human head, an image from a movie, or no image. They found no differences across all conditions (Gruber & Dickerson, 2012 ). Similarly, Hook and Farah ( 2013 ) found that neuroimages had no effect on participants’ overall evaluation of or agreement with scientific articles when compared to stock photos or bar charts (they did not compare neuroimages to no images). The effects of neuroimages failed to replicate again in a series of studies using much larger samples (Michael et al., 2013 ).

Nevertheless, Weisberg and colleagues (Hopkins, Weisberg, & Taylor, 2016 ; Weisberg, Hopkins, & Taylor, 2018 ; Weisberg et al., 2008 , 2015 ) and Michael et al. ( 2013 ) do provide evidence that laypeople’s evaluations of scientific claims may be affected by the mere presence of neuroscientific information, even when that information provides no additional value to the argument. These data have implications for everyday events (such as reading the news), as well as criminal trials, where the stakes of laypeople’s judgments are particularly high. To determine the extent of such implications, a number of studies have examined the effects of neuroscientific evidence on mock jurors. We review the extant research in an effort to answer the following questions: (1) Are legal judgments influenced by neuroscientific evidence (and, if so, what types of evidence)? (2) In which circumstances is neuroscientific evidence helpful and are there moderating factors? (3) Given the current state of the evidence, what might be productive avenues for future research?

It is important to note that this body of empirical work is methodologically varied. For example, some studies compare neuroscientific evidence accompanied by neuroimages with neuroscientific evidence without neuroimages (e.g., Schweitzer & Saks, 2011 ), while others only compare neuroscientific testimony with neuroimages to no neuroscientific testimony at all (e.g., Appelbaum, Scurich, & Raad, 2015 ). Additionally, although all reviewed studies asked participants to render a legal judgment on hearing the case, the types of legal judgments vary by study; for example, some studies asked for a guilty/not guilty verdict (e.g., Mowle, Edens, Clark, & Sörman, 2016 ), while others asked mock jurors to choose between guilty and NGRI (Schweitzer & Saks, 2011 ), or between the death penalty and a life sentence (Greene & Cahill, 2012 ). To provide a clear review of the current literature while accounting for wide methodological differences, we have organized the reviewed studies according to the types of evidence compared, separated into three sections: 1) neuroscientific expert testimony without neuroimages versus no neuroscientific testimony; 2) neuroscientific expert testimony with neuroimages versus no neuroscientific testimony; and 3) neuroscientific expert testimony with versus without neuroimages. Within each section, we organized studies by the type of legal judgment mock jurors were asked to render (e.g., guilty/not guilty, guilty/NGRI, sentence length; see Table  1 ).

Does neuroscientific expert testimony affect juror decisions?

Several studies examined the effects of neuroscientific expert testimony (without neuroimages) by comparing mock juror decision-making in its presence versus its absence (Table  1 ). For example, Saks, Schweitzer, Aharoni, and Kiehl ( 2014 ) presented mock jurors with a defendant who had been convicted of first-degree murder. The mock jurors were asked to decide whether to sentence the defendant to death or to life in prison. The defendant was described as healthy, diagnosed with schizophrenia, or diagnosed with psychopathy. The authors note that they chose these disorders as they both commonly coincide with behavioral disinhibition (Saks et al., 2014 ). In the neuroscientific testimony conditions, mock jurors were told that the defense presented expert testimony from two neuroscientists who, having examined functional MRI (fMRI) scans of the defendant’s brain, affirmed the mental disorder diagnosis (or lack thereof). In the control condition, mock jurors were presented with the same case, but were not presented with any expert testimony supporting the diagnosis.

Saks et al. ( 2014 ) found a mitigating effect of neuroscientific testimony on death penalty rates. This effect was moderated by diagnosis; defendants who had been diagnosed with schizophrenia were sentenced to death less often when mock jurors were presented with neuroscientific testimony. This effect did not hold for defendants who had been diagnosed with psychopathy or defendants who had been described as healthy; neuroscientific testimony had no mitigating effects on death sentences for these defendants. Thus, this study suggests that neuroscientific expert testimony can have a mitigating effect on death penalty sentences under some conditions, namely, for defendants diagnosed with schizophrenia.

Greene and Cahill ( 2012 ) also compared the effects of neuroscientific testimony on death sentences for a defendant convicted of first-degree murder of his cellmate. In their study, however, the defendant was diagnosed with psychosis in all conditions. In the neuroscientific expert testimony condition, a psychologist testified to the defendant’s diagnosis of psychosis. The psychologist summarized neuropsychological tests that revealed cognitive deficiencies (e.g., lack of behavioral control, poor impulse control), and testified that these results suggest damage to the frontal area of the defendant’s brain. In the control condition, the psychologist only testified that the defendant suffered from psychosis, and that such a mental disorder would likely influence his behavior (i.e., the control condition neither referenced neuropsychological tests nor suggested brain damage). Across all conditions, the researchers varied the testimony of the prosecution’s expert witness, who testified that the defendant posed either a high or low risk of future dangerousness.

The authors reported that the defendant’s risk of future dangerousness moderated the effect of neuroscientific testimony on death sentences. Specifically, when the defendant was described as low-risk, the neuroscientific testimony did not affect sentences. However, neuroscientific testimony was significantly mitigating when the defendant was described as high-risk. In fact, mock jurors were 12 times less likely to sentence the defendant to death in the neuroscientific testimony condition compared with the control condition. Again, results from this study suggest neuroscientific expert testimony can have a mitigating effect on death penalty sentences under some conditions, in this case when the defendant is characterized as being at high risk of future dangerousness.

Testing the effects of neuroscientific testimony on guilty/not guilty verdicts, Schweitzer et al. ( 2011 ) performed four experiments with similar designs, and then quantitatively summarized their results in a meta-analysis. In each of the four experiments, mock jurors were presented with a case in which a defendant was charged with a violent crime. The defense attorney argued that the defendant suffered from a “neurological defect” preventing him from being able to form the requisite intention to harm. In the neuroscientific expert testimony conditions, a neuroscience expert testified that a defect in the defendant’s frontal lobe, discovered via (an unpresented) brain scan, prevented him from being able to form the intent necessary to be found guilty of murder. In the control conditions, there was no neuroscientific testimony supporting the defense’s claims. Mock jurors were then asked to choose a verdict, which, in three of the experiments, spanned multiple degrees of guilt (e.g., first-degree murder, second-degree murder, manslaughter). If the mock juror returned a guilty verdict, they were also asked to recommend a sentence.

Across all four experiments, the presence of neuroscientific testimony regarding the defendant’s defective frontal lobe failed to mitigate either verdicts or sentences. Their meta-analysis similarly found no effects of neuroscientific testimony on these outcomes, suggesting that neuroscientific testimony does not affect guilty verdicts or sentencing decisions (Schweitzer et al., 2011 ).

Mowle et al. ( 2016 ) tested the effects of neuroscientific expert testimony on simple guilty/not guilty verdicts. Mock jurors were told that the defendant was being charged with robbing a woman and slashing her face with a knife. Across all conditions, a psychologist described the defendant as either “a psychopath” or “a schizophrenic” and described symptoms of the disorder. In the control condition, a psychologist testified that the defendant had suffered a traumatic brain injury 6 months prior in an automobile accident. In the neuroscientific evidence condition, the psychologist also testified that the defendant had significant damage to his prefrontal cortex and that individuals with such damage are impulsive and less likely to control their actions. The mock jurors were then asked to return a verdict and, if they deemed the defendant guilty, a recommended sentence. Results showed no effects of neuroscientific evidence on verdict or sentence length. Diagnosis type did not moderate the effect of neuroscientific evidence on verdict or sentence length.

More recently, Allen, Vold, Felsen, Blumenthal-Barby, and Aharoni ( 2019 ) tested the effects of neuroscientific expert testimony on prison sentences for a defendant found guilty of sexually assaulting a woman. Notably, participants in this study were instructed to act as mock judges, not jurors. In the neuroscientific expert testimony conditions, participants were told that neurologists had conducted “MRI scans of the defendant’s brain” and concluded that the defendant had a “large tumor in a part of the brain involved in impulse control,” which could explain his impulsive criminal behavior. In the control condition, participants were told that psychologists had conducted “a series of clinical interviews with the defendant” and concluded that the defendant had an impulse control disorder, which could explain his behavior (note that these conditions differ not only in neuroscience content, but also in whether the defendant has a tumor versus an impulse control disorder). Under both conditions, half of the participants heard that the defendant’s affliction had been treated and he was therefore at low risk of future dangerousness, while the rest heard that it was untreatable and he was thus at high risk of future dangerousness. Participants were additionally asked about their beliefs regarding the defendant, including his moral responsibility, moral wrongness, blameworthiness, desert of punishment, self-control, and free will.

Allen et al. ( 2019 ) found that participants in the neuroscientific expert condition recommended significantly shorter sentences than those in the control condition. Importantly, further analyses revealed that beliefs about the defendant (e.g., his moral responsibility, blameworthiness, self-control, free will) fully accounted for the mitigating effect of the neuroscientific evidence. Testimony regarding the defendant’s treatment and risk of future dangerousness also had a significant effect on sentences; defendants who were successfully treated and were at low risk of future dangerousness received shorter prison sentences than those whose treatment was unsuccessful and therefore posed a higher risk of future dangerousness. However, the researchers did not find any interaction between expert testimony and treatment/risk of future dangerousness.

All the studies reviewed thus far have presented participants with neuroscientific expert testimony in written form. However, this format is actually unrepresentative of the typical trial experience, which generally involves in-person testimony. LaDuke, Locklair, and Heilbrun ( 2018 ) attempted to mimic juror experience by presenting mock jurors with video expert testimony. In their study, the defendant had been found guilty of burglary and aggravated assault and was now awaiting sentencing. In the neuroscientific expert testimony conditions, mock jurors were shown a video of an expert psychologist (interestingly, the expert was not presented as either a witness for the defense or for the prosecution). The expert described the defendant’s brain scans which suggested neurological abnormalities, as well as the behavioral implications of such abnormalities. In one expert condition, the expert referenced a structural MRI scan, and in the other, he cited an fMRI scan. In both conditions, the expert concluded by saying that, in his professional opinion, the defendant posed a high risk for future dangerousness. In the control condition, mock jurors were only presented with the facts of the case; they did not see any expert testimony. LaDuke et al. ( 2018 ) found no difference in sentences between conditions, and thus no mitigating effect of neuroscientific evidence. Finally, Marshall, Lilienfeld, Mayberg, and Clark ( 2017 ) compared neuroscientific expert testimony with a psychiatric expert testimony in a murder case (see Table  1 for experiment details). The researchers found no difference in recommended prison sentences between the neuroscientific and psychiatric expert conditions.

Taken together, the data suggest that neuroscientific expert testimony may be mitigating under certain circumstances; specifically, it may lead mock jurors to forgo the death penalty (i.e., Greene & Cahill, 2012 ; Saks et al., 2014 ). However, even in death penalty cases, such evidence was mitigating for only a subset of mock jurors. For example, Saks et al. ( 2014 ) showed that neuroscientific evidence was mitigating for defendants diagnosed with schizophrenia, but not for those diagnosed with psychopathy. Greene and Cahill ( 2012 ) showed that, across defendants with psychosis, neuroscientific testimony was mitigating only when the defendant was described as posing a high risk of future dangerousness. Greene and Cahill ( 2012 ) specifically hypothesized that the psychosis diagnosis in conjunction with the low-risk danger assessment already substantially mitigated the defendant’s death sentence, making any additional mitigating testimony superfluous. By contrast, high-risk defendants may benefit more from expert neuroscientific testimony.

Importantly, across studies, neuroscientific testimony does not appear to have a consistently mitigating effect on guilty/not guilty decisions (Mowle et al., 2016 ; Schweitzer et al., 2011 ), or on sentencing (LaDuke et al., 2018 ; Marshall et al., 2017 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Notably, this was the case even for defendants who posed a high risk of future dangerousness (LaDuke et al., 2018 ) and those with diagnoses of mental illness (Marshall et al., 2017 ; Mowle et al., 2016 ). Indeed, only a single study (Allen et al., 2019 ) found a mitigating effect of neuroscientific testimony on prison sentences. Overall, one plausible explanation is that the effects of neuroscientific testimony are strong enough to prevent a death sentence for some defendants (or reduce the prison sentence in one study), but too weak to introduce reasonable doubt of guilt.

Does neuroscientific expert testimony accompanied by neuroimages affect juror decisions?

Several studies examined the effects of neuroscientific evidence in the form of an expert testimony accompanied by a neuroimage, and compared such conditions with those in which no neuroscientific evidence was provided (i.e., no neuroscientific testimony or image; Table 1 ). Such comparisons do not isolate the effects of neuroimages on mock jurors, but rather test the combined effects of these two forms of neuroscientific evidence. We review these studies in the present section and discuss their results further in the “General discussion” section.

Appelbaum et al. ( 2015 ) performed two experiments. In the first, the defendant was described as having stabbed the victim to death, and the defense argued for a shorter prison sentence; in the second, the defendant was described as having shot and killed a police officer, and the defense argued for a life sentence over the death penalty. In the control condition in both cases, the defense attorney claimed that the defendant’s act was impulsive. In the combined expert+neuroimage conditions, a psychiatrist presented an MRI scan of the defendant’s brain and testified that it showed functional abnormalities predisposing him to impulsivity and violent behavior. Additionally, the crime was described as being of either low or high heinousness (e.g., one stab wound versus 17 stab wounds). Appelbaum et al. ( 2015 ) found no effect of neuroscientific evidence on the length of sentence in the first experiment. Such evidence did, however, reduce the death penalty rate in the second experiment compared with the control condition. The heinousness of the crime did not moderate this effect.

Greene and Cahill ( 2012 ) also tested the expert+neuroimage combination on death sentences (the study is described in full in the prior section, as well as in Table 1 ). Across all conditions, the expert described the defendant as “psychotic.” In the expert+neuroimage condition, a psychologist described the defendant’s neuropsychological tests, images of his damaged brain, and provided testimony regarding the likely behavioral consequences of such brain damage. In the control condition, the psychologist only testified that the defendant’s psychosis would likely influence his behavior. The defendant’s risk of future dangerousness also varied by condition (high versus low risk). The results showed that the defendant’s dangerousness moderated the mitigating effects of the evidence; mock jurors in the expert+neuroimage condition were 22 times less likely to sentence a high-risk defendant to death than mock jurors in the control condition. Low-risk defendants, however, were sentenced to death at the same rate across both conditions.

Conversely, Saks et al. ( 2014 ) found no change in death sentence rates following expert testimony accompanied by neuroimages (see prior section and Table 1 ). In the expert+neuroimage condition, the defense presented expert testimony from two neuroscientists who presented fMRIs of the defendant’s brain and affirmed his mental disorder diagnosis (schizophrenia, psychopathy, or healthy). In the control condition, mock jurors were not presented with any expert testimony or neuroimages supporting the diagnosis. The null effect of expert+neuroimage in this study is surprising given that, in the same study, expert testimony without neuroimages was mitigating for defendants diagnosed with schizophrenia (Saks et al., 2014 ). However, because this disparity (i.e., mitigating effects without brain images, but no effect with brain images) has not been replicated by any other study to our knowledge, we will not interpret it further at this time.

Several other studies have examined the effects of expert+neuroimage conditions on guilty/not guilty verdicts and sentences. These include the four experiments (and their associated meta-analysis) by Schweitzer and colleagues (Schweitzer et al., 2011 ), which tested the effects of expert+neuroimage evidence on guilty verdicts and sentences (see above, and Table 1 ). In the combined expert+neuroimage conditions, a neuroscientist presented the defendant’s fMRI scans and claimed that his frontal lobe was defective in such a way that he could not have formed the necessary intent required for conviction. Mock jurors in the control condition only read the defense’s argument.

Again, Schweitzer et al. ( 2011 ) found no effect of expert+neuroimage on verdict or sentence in the first three experiments. The fourth experiment, however, removed one aspect of the case summary—in the first three experiments, part of the defense included family testimony that the defendant was physically abused as a child. Without this family testimony, mock jurors in the expert+neuroimage condition returned more lenient verdicts than those in the control condition (e.g., simple versus aggravated assault). There was no effect on sentences, however. In the final meta-analysis, the researchers found a significant 12% reduction in guilty verdicts between the expert+neuroimage conditions and the control conditions, but no difference in sentences.

Mowle et al. ( 2016 ; see above and Table 1 ) presented all mock jurors with expert testimony from a psychologist describing the defendant’s diagnosis (psychopathy or schizophrenia) and his history of traumatic brain injury. In the combined expert+neuroimage condition, the psychologist also testified that the defendant had significant damage to his prefrontal cortex, and that individuals with such damage are impulsive and less likely to control their actions than someone with an undamaged brain. This testimony was accompanied by an image of the defendant’s brain, with the brain damage highlighted. Results showed no effects of the expert testimony on verdict or sentence length. Similarly, LaDuke et al. ( 2018 ; described above and in Table 1 ) found no effect of the of the combined expert+neuroimage condition on sentence length for a defendant convicted of burglary and aggravated assault. These null findings held for both the MRI and the fMRI conditions.

In addition, two studies examined the effects of neuroscientific evidence on NGRI verdicts. For example, Schweitzer and Saks ( 2011 ; see above and Table 1 ) described expert+neuroimage conditions in which a neurologist testified that the defendant’s brain damage (presented in an MRI) could cause him to lose control over his actions. In the control condition, there was no expert testimony supporting the defense’s claim of a mental disorder. Depending on the condition, mock jurors were instructed to return a verdict of guilty versus guilty but mentally ill (GBMI) or guilty versus NGRI. Results showed that mock jurors in the expert+neuroimage conditions were more likely to render NGRI/GBMI verdicts than those in the control condition. Furthermore, the mitigating effect of neuroscientific evidence on verdicts was mediated by the amount of control the mock juror believed the defendant had over his actions.

Gurley and Marcus ( 2008 ) also tested the effects of expert+neuroimage on NGRI verdicts. In their study, all mock jurors were presented with a murder committed by the defendant and expert testimony that the defendant suffered from a mental disorder (psychosis or psychopathy). In the expert+neuroimage conditions, a psychologist and a psychiatrist supported the diagnosis with MRI scans showing extensive damage to the prefrontal cortex, and described the relationship between such prefrontal damage and impulse control problems. In the control condition, there was no neuroscientific evidence presented in support of the diagnosis. Importantly, results showed that mock jurors in the expert+neuroimage conditions were significantly more likely to find the defendant NGRI than those who had not been given any neuroscientific evidence in support of the diagnosis (Gurley & Marcus, 2008 ). Interestingly, diagnosis did not moderate the effect of expert+neuroimages on the verdict as it did for expert testimony in other studies (e.g., Saks et al., 2014 ). However, mock jurors who rendered the NGRI verdict reported that they were more influenced by the expert testimony compared with those who rendered the guilty verdict.

Taken together, the data in this section suggest that, similar to expert testimony alone, neuroscientific expert testimony accompanied by neuroimages may be mitigating under certain circumstances. Specifically, it led mock jurors to forgo the death penalty in one study (Appelbaum et al., 2015 ) although not another (Saks et al., 2014 ). In another study, such evidence was mitigating for a subset of defendants described as posing a high risk of future dangerousness (Greene & Cahill, 2012 ). Importantly, expert+neuroimage conditions mitigated NGRI/GBMI verdicts compared with control conditions (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ), a verdict type that was not tested in any study with expert testimony alone. Notably, the defendant’s mental disorder diagnosis did not appear to moderate the effect of the expert+neuroimage on NGRI verdicts (Gurley & Marcus, 2008 ).

Furthermore, unlike the effects of expert testimony alone, the combination of expert+neuroimage also had a mitigating effect on guilty/not guilty verdicts in some studies (Schweitzer et al., 2011 ), while several other studies reported no effects (Mowle et al., 2016 ; Schweitzer et al., 2011 ). Similar to expert testimony alone, none of the studies reported effects of expert+neuroimage on sentence length (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ).

Do neuroimages affect juror decisions above and beyond neuroscientific expert testimony?

Several of the aforementioned studies attempted to isolate the effects of neuroimages on mock jurors by comparing expert conditions to expert+neuroimage conditions. In other words, they asked whether neuroimages enhance neuroscientific expert testimony (for details, see Table 1 ). Perhaps unremarkably, given the failure to replicate the findings of McCabe and Castel ( 2008 ), none of the studies found a significant mitigating effect of neuroimages above and beyond that of the expert testimony. Specifically, both Schweitzer et al. ( 2011 ) and Mowle et al. ( 2016 ) found no differences in guilty/not guilty verdicts, even when mock jurors were offered a range of possible guilty verdicts (e.g., first-degree murder, second-degree murder, manslaughter). Similarly, no differences were reported in recommended sentence lengths when neuroimages were introduced with the xpert testimony, compared with the same expert testimony without neuroimages (LaDuke et al., 2018 ; Marshall et al., 2017 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ).

Finally, although expert testimony (with and without brain images) was mitigating in several studies describing death penalty and NGRI cases, similar effects were not found for neuroimages (Greene & Cahill, 2012 ; Saks et al., 2014 ; Schweitzer & Saks, 2011 ). One additional study compared a neuroimage with a bar graph (both accompanied by neuroscientific expert testimony) and reported no differences (Baker, Schweitzer, Risko, & Ware, 2013 ). Together, these null findings suggest that, while neuroscientific expert testimony with and without neuroimages may lead to more lenient outcomes for defendants, neuroimages themselves hold very little, if any, mitigating power.

General discussion

As multiple analyses have shown, the use of neuroscientific evidence in criminal proceedings has increased tremendously in the US within the last two decades (Meixner, 2016 ). This trend holds true for both neuroscientific evidence in general, and neuroimage-based evidence specifically (Denno, 2015 ). Indicative of an even greater systemic change, defendants have begun making, and winning, Strickland claims on the basis that their attorney neglected to present neuroscientific evidence in their defense. These claims argue that, had neuroscientific evidence been presented, the case's outcome would likely have been different (Denno, 2015 ).

The growing prevalence of neuroscientific evidence in criminal proceedings raised the question: are legal judgments influenced by neuroscientific evidence? Scientifically, this question was also motivated by a set of studies suggesting that neuroscientific information is seductively alluring in nonlegal contexts (Weisberg et al., 2008 , 2015 ). It was further motivated by initial studies suggesting that neuroimages are uniquely persuasive (i.e., McCabe & Castel, 2008 ), but these effects have not been replicated (Gruber & Dickerson, 2012 ; Hook & Farah, 2013 ; Michael et al., 2013 ).

Although the experimental work on criminal cases reviewed above is methodologically varied, taken together it suggests that some legal judgments are influenced by neuroscientific evidence (for summary, see Table 1 ). Specifically, in all three studies that involved the death penalty, the presence of neuroscientific evidence (i.e., neuroscientific expert testimony, either alone or alongside neuroimages) decreased death sentences, at least for a subset of defendants (Appelbaum et al., 2015 ; Greene & Cahill, 2012 ; Saks et al., 2014 ). Similarly, in both studies that tested the effects of neuroscientific evidence on NGRI verdicts, such evidence reduced guilty verdicts (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ). However, across studies, neuroscientific evidence did not consistently lead mock jurors to return a not guilty verdict (Baker et al., 2013 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Furthermore, with one exception (Allen et al., 2019 ), neuroscientific evidence did not reduce sentence length (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Interestingly, a study with real judges (who determine sentence lengths in real courtrooms) reported a mitigating effect of neuroscientific expert testimony on sentencing (Aspinwall, Brown, & Tabery, 2012 ).

Notably, while neuroscientific expert testimony influenced mock jurors in some studies with or without a neuroimage, neuroimages themselves had no effects above and beyond expert testimony (Greene & Cahill, 2012 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Saks et al., 2014 ; Schweitzer & Saks, 2011 ; Schweitzer et al., 2011 ). Furthermore, several studies found that no combination of neuroscientific testimony and neuroimages could persuade mock jurors to be more lenient (e.g., Baker et al., 2013 ; Mowle et al., 2016 ).

Furthermore, we asked whether there are factors moderating the efficacy of neuroscientific evidence on legal judgments. Several researchers tested whether psychiatric diagnoses may moderate these effects, but the results were inconsistent. Specifically, one study reported that neuroscientific evidence was more mitigating for defendants diagnosed with schizophrenia compared with those diagnosed with psychopathy (Saks et al., 2014 ), while another found equally mitigating effects for schizophrenia and psychopathy (Gurley & Marcus, 2008 ). A third study reported null effects for both diagnoses (Mowle et al., 2016 ). Similarly, results have been inconsistent across studies that tested whether the defendant’s future dangerousness is a moderator. Specifically, one study found that the effects of neuroscientific evidence on death sentences differed for defendants that were reported as having high versus low risk for being dangerous in the future (Greene & Cahill, 2012 ). In another study, defendants who were described as “treated”, and therefore low risk for future dangerousness, received lower prison sentences overall, although this did not moderate the effect of neuroscientific testimony (Allen et al., 2019 ).

Interestingly, although not tested directly as a moderator in any single study, the type of legal judgment appears to be a likely candidate. Indeed, across studies, neuroscientific evidence reduced death penalty sentences under most conditions (Appelbaum et al., 2015 ; Greene & Cahill, 2012 ; Saks et al., 2014 ), increased NGRI verdicts (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ), but did not increase non-NGRI not guilty verdicts (Mowle et al., 2016 ; Schweitzer et al., 2011 ) except in one study (Schweitzer et al., 2011 ). Furthermore, neuroscientific evidence did not influence length of prison sentences (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ) except in one study (Allen et al., 2019 ).

One explanation for this apparent effect of judgment type is that mock jurors evaluate evidence based on their adjudicative responsibility. For example, a mock juror tasked with choosing between a verdict of guilty and NGRI/GBMI (e.g., Gurley & Marcus, 2008 ) may be especially attuned to testimony regarding the defendant’s neural health. By contrast, a mock juror asked to recommend a sentence for a convicted defendant may not grant particular consideration to the defendant’s neural status when evaluating expert testimony.

Importantly, we must consider that multiple likely moderators have yet to be studied. For example, not a single study (to our knowledge) has varied the race of the defendant. This is a particularly important point when there is mounting evidence of racial bias in everyday judgments of various types (Pager, Bonikowski, & Western, 2009 ; Pletcher, Kertesz, Kohn, & Gonzales, 2008 ), whereby African-Americans are judged, for example, as less trustworthy (Stanley, Sokol-Hessner, Banaji, & Phelps, 2011 ) or more dangerous (Spector, 2001 ). Furthermore, there is evidence for racial bias in legal decisions specifically (Demuth, 2003 ; Hart, 2017 ; Hetey & Eberhardt, 2014 ; Johnson & Betsinger, 2009 ; Mitchell, Haw, Pfeifer, & Meissner, 2005 ; Mustard, 2001 ; Rachlinski, Johnson, Wistrich, & Guthrie, 2008 ; Sweeney & Haney, 1992 ). We might thus expect that the defendant’s race may be subject to bias, and may moderate the potential mitigating effect of neuroscientific evidence (e.g., such that African-American defendants will not be spared, even in cases in which white defendants will be). Other defendant-specific factors including age, gender, socioeconomic status, and physical attractiveness may also play roles in determining neuroscience’s efficacy in criminal trials (e.g., Ahola, Christianson, & Hellström, 2009 ; Doerner & Demuth, 2010 ; Freeman, 2006 ; Mustard, 2001 ; Walker & Woody, 2011 ).

On the other side of the courtroom, it is also possible that juror-specific factors may moderate the effects of neuroscientific evidence. For example, level of scientific training (and neuroscientific training in particular) is likely to moderate the degree to which neuroscientific information is mitigating. For instance, we predict that jurors (mock or real) who receive training on interpreting neuroscientific evidence, and/or determining its relevance, might respond differently to such evidence than those who have not received such training (Roskies, Schweitzer, & Saks, 2013 ). Although this has not been investigated directly, such findings would be consistent with those reported by Weisberg et al. ( 2008 ), whereby individuals with neuroscience expertise do not show the “seductive allure” effect. It is also possible that general attitudes about neuroscience may be influential, along with attitudes about mental illness, brain damage, free will, and personal responsibility. However, such factors have rarely been measured (c.f., Appelbaum et al., 2015 ).

Finally, trial-related factors, such as jury instructions, might also affect the jurors’ interpretation of evidence. While at least one influential study of the effect of jury instructions on the insanity defense found that mock jurors were insensitive to significant variation in instructions (Ogloff, 1991 ), this was not tested directly in any of the studies reviewed above. Thus, it remains possible that jury instructions do have an effect on jurors’ treatment of neuroscientific evidence.

We also sought to answer, Why might neuroscience evidence be mitigating? One explanation would be that such evidence is considered a “better argument” (i.e., more satisfying or more impactful), thus rendering the defense’s argument more satisfying or impactful. This explanation seems likely because, outside of the legal arena, it has been consistently reported that people find neuroscience explanations of psychological phenomena more satisfying (i.e., the “seductive allure effect”; Hopkins et al., 2016 ; Weisberg et al., 2018 , 2008 , 2015 ). Subsequent studies have suggested that this is due to a general preference for reductive explanations across the sciences (Hopkins et al., 2016 ; Weisberg et al., 2018 ). However, of the studies reviewed herein, none asked mock jurors whether neuroscientific evidence is more satisfying, and only two asked mock jurors whether they found such evidence persuasive (Gurley & Marcus, 2008 ; LaDuke et al., 2018 ). In one such study, neuroscientific evidence was associated with increased rates of NGRI verdicts, and those who rendered such a verdict reported finding such evidence more influential (Gurley & Marcus, 2008 ). However, the other study reported null effects (note that one additional study asked mock jurors such a question, but did not report results; Marshall et al., 2017 ). Thus, it remains unclear whether jurors broadly rate neuroscientific expert testimony as more satisfying or persuasive, and whether this might explain the mitigating effects found in some of the reviewed studies.

A powerful extension of this argument is that neuroscientific evidence specifically impacts jurors’ perceptions and cognitions regarding the defendant, including perception of responsibility, judgments of self-control, and predictions regarding future dangerousness. Indeed, in one study that tested this directly, the mitigating effect of neuroscientific evidence on verdicts was mediated by the amount of control the mock juror believed the defendant had over his actions (Schweitzer & Saks, 2011 ). Unfortunately, jurors’ perceptions and cognitions about the defendant remain a relative mystery, partly because such questions are not consistently asked (e.g., Gurley & Marcus, 2008 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ) or because analyses of such questions are not consistently reported (e.g., Saks et al., 2014 ).

Nevertheless, the evidence is quite suggestive. For example, in three-quarters of the studies reported by Schweitzer et al. ( 2011 ), mock jurors were asked about their perception of the defendant’s self-control. In those studies, mock jurors who believed the defendant was more in control of his actions were more likely to render guilty verdicts and recommend longer sentences. Furthermore, a meta-analysis across these studies showed that all neuroscience conditions were associated with lower perceptions of control and responsibility (Schweitzer et al., 2011 ). Relatedly, Marshall et al. ( 2017 ) reported that neuroscience conditions were associated with lower perceptions of dangerousness, which were further related to lower sentences. Similarly, Appelbaum et al. ( 2015 ) reported that apprehension of the defendant (which includes perception of dangerousness) was related to sentence length. Finally, describing the defendant as having low versus high dangerousness has had a mitigating effect in two studies (Allen et al., 2019 ; Greene & Cahill, 2012 ).

Similarly, two studies found that the mitigating effect of neuroscientific evidence was related to decreased beliefs in the defendant’s self-control and other “deontological concerns” (e.g., moral responsibility, free will; Saks et al., 2014 ; Schweitzer & Saks, 2011 ). However, another study found that mock jurors’ perceptions of the defendant’s self-control were irrelevant to death sentence rates (Greene & Cahill, 2012 ). These conflicting results may suggest that the type of legal judgment, and thereby adjudicative responsibility, may play a role in moderating the cognitive mechanisms by which neuroscientific evidence persuades jurors towards leniency. Overall, although jurors’ perceptions and cognitions are a likely mechanism underlying the effect of neuroscientific evidence, to date not a single study has asked all the relevant questions and reported all the relevant analyses to address this hypothesis directly.

Our last question was, Given the current state of the evidence, what might be productive avenues for future research? As noted above, we strongly believe that additional research into moderating factors and cognitive mediators would benefit this field significantly. Specifically, we hope that moderators including the defendant’s race and gender will be tested as research has shown them to have an effect on legal judgments (e.g., Ahola et al., 2009 ; Demuth, 2003 ; Doerner & Demuth, 2010 ; Freeman, 2006 ; Johnson & Betsinger, 2009 ; Mitchell et al., 2005 ; Mustard, 2001 ; Rachlinski et al., 2008 ; Sweeney & Haney, 1992 ; Walker & Woody, 2011 ). In addition, we hope that future studies will probe juror cognitions about the evidence and about the experts delivering the evidence (i.e., whether they are persuasive, satisfying, and so on). Furthermore, we hope that such studies will also test the juror’s resulting beliefs about the defendant’s responsibility and character as possible cognitive mediators of any mitigating effects.

In addition, we believe that the type of criminal cases used could be varied. Indeed, the reviewed studies largely focus on murder and assault cases, in which the perceived costs of returning not guilty verdicts (or recommending lenient sentences) may be high. However, the majority of cases within the criminal justice system are not murder and assault cases, but rather lesser crimes. Edersheim, Brendel, and Price ( 2012 ) analyzed US court cases that introduced neuroscientific evidence as a mens rea defense. They found that the cases in which neuroscientific evidence successfully led to reduced charges or sentences were primarily property and drug crimes. Importantly, those are crimes where proof of greater intent is necessary for a guilty verdict, compared with violent crimes which do not share the same requirements of intent. Unfortunately, virtually no studies have examined the effects of neuroscientific evidence on property or drug crimes. Such studies could shed light on factors and circumstances that could affect the efficacy of neuroscientific evidence as it is used in courts today.

Finally, it is important to remember that neuroscience is already being used in criminal cases without regard to how well understood its effects are (Meixner, 2016 ). Therefore, while further research into its influence may not prevent (or promote) its use in criminal proceedings, additional research can help us educate judges and jurors about what neuroscientific evidence does (and does not) mean in a legal context. Indeed, some neuroscientists have specifically cautioned against overestimating the ability of neuroscience to answer questions of legal concern (Buckholtz & Faigman, 2014 ; Treadway & Buckholtz, 2011 ). This hesitation is due both to differences between the types of questions each field asks and answers, as well as the paucity of data linking neuroscientific findings to legally relevant aspects of criminal behavior. It is therefore ultimately possible that the greatest contribution of neuroscience to criminal justice will be its influence on how people think about free will, responsibility, and treatability in the context of criminal behavior, rather than to influence the legal decisions they make (Greene & Cohen, 2004 ).

Availability of data and materials

Not applicable.

Ahola, A. S., Christianson, S. Å., & Hellström, Å. (2009). Justice needs a blindfold: Effects of gender and attractiveness on prison sentences and attributions of personal characteristics in a judicial process. Psychiatry, Psychology and Law , 16 (suppl 1), S90–S100.

Article   Google Scholar  

Allen, C. H., Vold, K., Felsen, G., Blumenthal-Barby, J. S., & Aharoni, E. (2019). Reconciling the opposing effects of neurobiological evidence on criminal sentencing judgments. PLoS One , 14 (1), e0210584.

Article   PubMed   PubMed Central   Google Scholar  

American Bar Association. (2018). How courts work: The role of juries. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jury_role.html

Google Scholar  

Appelbaum, P. S., Scurich, N., & Raad, R. (2015). Effects of behavioral genetic evidence on perceptions of criminal responsibility and appropriate punishment. Psychology, Public Policy, and Law , 21 (2), 134–144.

Aspinwall, L. G., Brown, T. R., & Tabery, J. (2012). The double-edged sword: Does biomechanism increase or decrease judges’ sentencing of psychopaths? Science , 337 (6096), 846–849.

Article   PubMed   Google Scholar  

Baker, D. A., Schweitzer, N., Risko, E. F., & Ware, J. M. (2013). Visual attention and the neuroimage bias. PLoS One , 8 (9), e74449.

Benner, L. A. (2009). The presumption of guilt: Systemic factors that contribute to ineffective assistance of counsel in California. California Western Law Review , 45 , 263.

Buckholtz, J. W., & Faigman, D. L. (2014). Promises, promises for neuroscience and law. Current Biology , 24 (18), R861–R867.

California Department of Justice. (2017). Arrest rates from 1980 to 2013. From OpenJustice https://openjustice.doj.ca.gov/exploration/crime-statistics/arrests

Choi, O. S. (2017). What neuroscience can and cannot answer. The Journal of the American Academy of Psychiatry and the Law , 45 (3), 278–285.

PubMed   Google Scholar  

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Davis, K. (2017). Why are lawyers using brain damage as a criminal defense? The science doesn’t support it . LA Times http://www.latimes.com/opinion/op-ed/la-oe-davis-neuroscience-criminal-court-brain-damage-brain-scans-20170503-story.html .

Demuth, S. (2003). Racial and ethnic differences in pretrial release decisions and outcomes: A comparison of Hispanic, black, and white felony arrestees. Criminology , 41 (3), 873–908.

Denno, D. W. (2015). The myth of the double-edged sword: An empirical study of neuroscience evidence in criminal cases. Boston College Law Review , 56 (2), 493–551.

Doerner, J. K., & Demuth, S. (2010). The independent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in US federal courts. Justice Quarterly , 27 (1), 1–27.

Edersheim, J. G., Brendel, R. W., & Price, B. H. (2012). Neuroimaging, diminished capacity and mitigation. In J. R. Simpson (Ed.), Neuroimaging in forensic psychiatry: from the clinic to the courtroom . West Sussex: Wiley.

Farahany, N. A. (2016). Neuroscience and behavioral genetics in US criminal law: An empirical analysis. Journal of Law and the Biosciences , 2 (3), 485–509.

PubMed   PubMed Central   Google Scholar  

Freeman, N. J. (2006). Socioeconomic status and belief in a just world: Sentencing of criminal defendants 1. Journal of Applied Social Psychology , 36 (10), 2379–2394.

Gaines, J. (2018). Brain scans in the courts: Prosecutor’s dream or civil rights nightmare? Inside Science http://www.insidescience.org/news/brain-scans-courts-prosecutors-dream-or-civil-rights-nightmare .

Gonzalez, R. (2017). How criminal courts are putting brains—not people—on trial . Wired http://www.wired.com/story/how-criminal-courts-are-putting-brains-not-people-on-trial/ .

Greene, E., & Cahill, B. S. (2012). Effects of neuroimaging evidence on mock juror decision making. Behavioral Sciences & the Law , 30 (3), 280–296.

Greene, J., & Cohen, J. (2004). For the law, neuroscience changes nothing and everything. Philosophical Transactions of the Royal Society B: Biological Sciences , 359 (1451), 1775–1785.

Gruber, D., & Dickerson, J. A. (2012). Persuasive images in popular science: Testing judgments of scientific reasoning and credibility. Public Understanding of Science , 21 (8), 938–948.

Gurley, J. R., & Marcus, D. K. (2008). The effects of neuroimaging and brain injury on insanity defenses. Behavioral Sciences & the Law , 26 (1), 85–97.

Hart, C. L. (2017). Viewing addiction as a brain disease promotes social injustice. Nature Human Behaviour , 1 , 0055.

Hetey, R. C., & Eberhardt, J. L. (2014). Racial disparities in incarceration increase acceptance of punitive policies. Psychological Science , 25 (10), 1949–1954.

Hook, C. J., & Farah, M. J. (2013). Look again: Effects of brain images and mind–brain dualism on lay evaluations of research. Journal of Cognitive Neuroscience , 25 (9), 1397–1405.

Hopkins, E. J., Weisberg, D. S., & Taylor, J. C. (2016). The seductive allure is a reductive allure: People prefer scientific explanations that contain logically irrelevant reductive information. Cognition , 155 , 67–76.

Johnson, B. D., & Betsinger, S. (2009). Punishing the “model minority”: Asian-American criminal sentencing outcomes in federal district courts. Criminology , 47 (4), 1045–1090.

Jones, O. D. (2013). Seven ways neuroscience aids law. In A. M. Battro, S. Dehaene, M. S. Sorondo, & W. J. Singer (Eds.), Neurosciences and the human person: new perspectives on human activities , (pp. 181–194). Vatican City: The Pontifical Academy of Sciences.

Kaeble, D., & Cowhig, M. (2018). Correctional populations in the United States, 2016 . U.S. Department of Justice , Washington: Bureau of Justice Statistics.

LaDuke, C., Locklair, B., & Heilbrun, K. (2018). Neuroscientific, neuropsychological, and psychological evidence comparably impact legal decision making: Implications for experts and legal practitioners. Journal of Forensic Psychology Research and Practice , 18 (2), 114–142.

Marshall, J., Lilienfeld, S. O., Mayberg, H., & Clark, S. E. (2017). The role of neurological and psychological explanations in legal judgments of psychopathic wrongdoers. The Journal of Forensic Psychiatry & Psychology , 28 (3), 412–436.

McCabe, D. P., & Castel, A. D. (2008). Seeing is believing: The effect of brain images on judgments of scientific reasoning. Cognition , 107 (1), 343–352.

McCabe, D. P., Castel, A. D., & Rhodes, M. G. (2011). The influence of fMRI lie detection evidence on juror decision-making. Behavioral Sciences & the Law , 29 (4), 566–577.

Meixner, J. B. (2016). The use of neuroscience evidence in criminal proceedings. Journal of Law and the Biosciences , 3 (2), 330–335.

Michael, R. B., Newman, E. J., Vuorre, M., Cumming, G., & Garry, M. (2013). On the (non) persuasive power of a brain image. Psychonomic Bulletin & Review , 20 (4), 720–725.

Mitchell, T. L., Haw, R. M., Pfeifer, J. E., & Meissner, C. A. (2005). Racial bias in mock juror decision-making: A meta-analytic review of defendant treatment. Law and Human Behavior , 29 (6), 621–637.

Mowle, E. N., Edens, J. F., Clark, J. W., & Sörman, K. (2016). Effects of mental health and neuroscience evidence on juror perceptions of a criminal defendant: The moderating role of political orientation. Behavioral Sciences & the Law , 34 (6), 726–741.

Mustard, D. B. (2001). Racial, ethnic, and gender disparities in sentencing: Evidence from the US federal courts. The Journal of Law and Economics , 44 (1), 285–314.

Ogloff, J. R. P. (1991). A comparison of insanity defense standards on juror decision making. Law and Human Behavior , 15 (5), 509–531.

Pager, D., Bonikowski, B., & Western, B. (2009). Discrimination in a low-wage labor market: A field experiment. American Sociological Review , 74 (5), 777–799.

People v. Weinstein , 156 Misc. 2d 34, 591 N.Y.S.2d 715 (Sup. Ct. 1992).

Perr, I. N. (1958). Epilepsy and the law. Clev.-Marshall Law Review , 7 (2), 280–301.

Pletcher, M. J., Kertesz, S. G., Kohn, M. A., & Gonzales, R. (2008). Trends in opioid prescribing by race/ethnicity for patients seeking care in US emergency departments. JAMA , 299 (1), 70–78.

Rachlinski, J. J., Johnson, S. L., Wistrich, A. J., & Guthrie, C. (2008). Does unconscious racial bias affect trial judges. Notre Dame Law Review , 84 , 1195.

Roskies, A. L., Schweitzer, N. J., & Saks, M. J. (2013). Neuroimages in court: Less biasing than feared. Trends in Cognitive Sciences , 17 (3), 99–101.

Saks, M. J., Schweitzer, N., Aharoni, E., & Kiehl, K. A. (2014). The impact of neuroimages in the sentencing phase of capital trials. Journal of Empirical Legal Studies , 11 (1), 105–131.

Schweitzer, N. J., & Saks, M. J. (2011). Neuroimage evidence and the insanity defense. Behavioral Sciences & the Law , 29 (4), 592–607.

Schweitzer, N. J., Saks, M. J., Murphy, E. R., Roskies, A. L., Sinnott-Armstrong, W., & Gaudet, L. M. (2011). Neuroimages as evidence in a mens rea defense: No impact. Psychology, Public Policy, and Law , 17 (3), 357–393.

Shen, F. X. (2016). The overlooked history of neurolaw. Fordham Law Review , 85 (2), 667–695.

Spector, R. (2001). Is there racial bias in clinicians’ perceptions of the dangerousness of psychiatric patients? A review of the literature. Journal of Mental Health , 10 (1), 5–15.

Stanley, D. A., Sokol-Hessner, P., Banaji, M. R., & Phelps, E. A. (2011). Implicit race attitudes predict trustworthiness judgments and economic trust decisions. Proceedings of the National Academy of Sciences , 108 (19), 7710–7715.

Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Sweeney, L. T., & Haney, C. (1992). The influence of race on sentencing: A meta-analytic review of experimental studies. Behavioral Sciences & the Law , 10 (2), 179–195.

The Sentencing Project. (2018). From http://www.sentencingproject.org/

Treadway, M. T., & Buckholtz, J. W. (2011). On the use and misuse of genomic and neuroimaging science in forensic psychiatry: current roles and future directions. Child and Adolescent Psychiatric Clinics , 20 (3), 533–546.

Walker, C. M., & Woody, W. D. (2011). Juror decision making for juveniles tried as adults: The effects of defendant age, crime type, and crime outcome. Psychology, Crime & Law , 17 (8), 659–675.

Weisberg, D. S., Hopkins, E. J., & Taylor, J. C. (2018). People’s explanatory preferences for scientific phenomena. Cognitive Research: Principles and Implications , 3 (1), 44.

Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of Cognitive Neuroscience , 20 (3), 470–477.

Weisberg, D. S., Taylor, J. C., & Hopkins, E. J. (2015). Deconstructing the seductive allure of neuroscience explanations. Judgment and Decision making , 10 (5), 429–441.

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• Neuroscience explanation
• Legal decisions
• Neuroimages
• Neuroimaging
• Seductive allure

Case study: The courtroom of the future

By Debbie Dibble

Judge Nuffer wanted to implement such a new and innovative realtime system for state-of-the-art record delivery in the brand-new, 10-story courthouse being built at the time in Utah. The federal reporters in his court worked on different systems, so Judge Nuffer wanted a solution where the reporters could use their own systems. He wanted attorneys to be able to use whatever software they desired. The system also needed to provide secure access to the realtime stream through two systems: The attorneys would not be allowed onto the courthouse secure server and would need access to the feed through the public Wi-Fi, while the judges would stay on their secure intranet so they could access files and email throughout the day to conduct their other business. Judge Nuffer wanted all of these things to occur simultaneously and seamlessly.

Judge Nuffer was immediately connected with NCRA Director Sue Terry, who enlisted NCRA’s Tech Ed committee and myself, a Utah reporter and NCRA Director. Over the next several months, the assembled group discussed software needs, IT issues, and possible solutions to Judge Nuffer’s request.

Finally, in March 2014, Sue and I personally met with Judge Nuffer and his IT specialist for a hands-on demonstration of possible solutions to making this courtroom of the future a reality. We first met with Ed Young, a long-time federal reporter, and Larry Garland, the courthouse IT specialist. We cleared up a few issues, such as the manufacturers of CAT systems and writing machines. Then the feed was launched and sent to four mini iPads and the judge’s laptop via Internet.

We called several of the manufacturers of streaming products, and they efficiently answered the judge’s questions about their specific products. They also gave some IT remedies for some of the connection issues the courthouse staff had been having.

The judge then invited us to his courtroom upstairs, where we, within moments, were streaming, via the public Internet, to two iPads, the judge’s laptop and phone, and simultaneously, via the court’s restricted intranet, to the judge’s bench computer. The judge was thrilled as all of the obstacles he had encountered were overcome.

The federal reporters then joined us, and they were all taken from boot-up on the sending computer to receiving the live feed on iPads and on their personal phones within moments. These reporters excitedly and energetically took on this  new challenge. They are examples to all of us of how to step up to the plate and continue to grow and improve as we continue to show the world that court reporters are the premier method of keeping the record.

In a video interview I conducted with Judge Nuffer for the conference for the National Association of Court Management, he talked about his first experience with realtime: “I became convinced that this is what I wanted in my hearings and in my trials because I was so much better able to focus my attention, track what had been really been asked and answered, and carefully evaluate objections on evidence as they were made.

“So when you met with us, it was with the idea of helping us understand how we could integrate Wi-Fi into the courthouse, and realtime that Wi-Fi. So we’ve been very appreciative of your help to make this really a state-of-the-art system,” Judge Nuffer said. To view the 10-minute interview between Debbie Dibble and Judge Nuffer, visit NCRA’s YouTube page . 

Debbie A. Dibble, RDR, CRR, CBC, CCP, is a freelance reporter in Salt Lake City, Utah, and a member of NCRA’s Board of Directors. She can be reached at  [email protected].

Published in Industry Update , News , Realtime and Technology

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• Lexitas announces acquisition of Kusar Court Reporters

• Lexitas announces acquisition of Oasis Reporting Services
• Barkley Court Reporters acquired by Magna Legal Services

• Captioning Committee shares latest on Microsoft Teams captioning
• Ask a Techie: Secure realtime testimony when using iPads in the courtroom

• Tech the halls, court reporters!

Top 40 Most Popular Case Studies of 2021

Two cases about Hertz claimed top spots in 2021's Top 40 Most Popular Case Studies

Two cases on the uses of debt and equity at Hertz claimed top spots in the CRDT’s (Case Research and Development Team) 2021 top 40 review of cases.

Hertz (A) took the top spot. The case details the financial structure of the rental car company through the end of 2019. Hertz (B), which ranked third in CRDT’s list, describes the company’s struggles during the early part of the COVID pandemic and its eventual need to enter Chapter 11 bankruptcy. 

The success of the Hertz cases was unprecedented for the top 40 list. Usually, cases take a number of years to gain popularity, but the Hertz cases claimed top spots in their first year of release. Hertz (A) also became the first ‘cooked’ case to top the annual review, as all of the other winners had been web-based ‘raw’ cases.

Besides introducing students to the complicated financing required to maintain an enormous fleet of cars, the Hertz cases also expanded the diversity of case protagonists. Kathyrn Marinello was the CEO of Hertz during this period and the CFO, Jamere Jackson is black.

Sandwiched between the two Hertz cases, Coffee 2016, a perennial best seller, finished second. “Glory, Glory, Man United!” a case about an English football team’s IPO made a surprise move to number four.  Cases on search fund boards, the future of malls,  Norway’s Sovereign Wealth fund, Prodigy Finance, the Mayo Clinic, and Cadbury rounded out the top ten.

Other year-end data for 2021 showed:

• Online “raw” case usage remained steady as compared to 2020 with over 35K users from 170 countries and all 50 U.S. states interacting with 196 cases.
• Fifty four percent of raw case users came from outside the U.S..
• The Yale School of Management (SOM) case study directory pages received over 160K page views from 177 countries with approximately a third originating in India followed by the U.S. and the Philippines.
• Twenty-six of the cases in the list are raw cases.
• A third of the cases feature a woman protagonist.
• Orders for Yale SOM case studies increased by almost 50% compared to 2020.
• The top 40 cases were supervised by 19 different Yale SOM faculty members, several supervising multiple cases.

CRDT compiled the Top 40 list by combining data from its case store, Google Analytics, and other measures of interest and adoption.

All of this year’s Top 40 cases are available for purchase from the Yale Management Media store .

And the Top 40 cases studies of 2021 are:

1.   Hertz Global Holdings (A): Uses of Debt and Equity

2.   Coffee 2016

3.   Hertz Global Holdings (B): Uses of Debt and Equity 2020

4.   Glory, Glory Man United!

5.   Search Fund Company Boards: How CEOs Can Build Boards to Help Them Thrive

6.   The Future of Malls: Was Decline Inevitable?

7.   Strategy for Norway's Pension Fund Global

8.   Prodigy Finance

9.   Design at Mayo

10. Cadbury

11. City Hospital Emergency Room

13. Volkswagen

14. Marina Bay Sands

15. Shake Shack IPO

16. Mastercard

17. Netflix

18. Ant Financial

19. AXA: Creating the New CR Metrics

20. IBM Corporate Service Corps

21. Business Leadership in South Africa's 1994 Reforms

22. Alternative Meat Industry

23. Children's Premier

24. Khalil Tawil and Umi (A)

25. Palm Oil 2016

26. Teach For All: Designing a Global Network

27. What's Next? Search Fund Entrepreneurs Reflect on Life After Exit

28. Searching for a Search Fund Structure: A Student Takes a Tour of Various Options

30. Project Sammaan

31. Commonfund ESG

32. Polaroid

33. Connecticut Green Bank 2018: After the Raid

34. FieldFresh Foods

35. The Alibaba Group

36. 360 State Street: Real Options

37. Herman Miller

38. AgBiome

39. Nathan Cummings Foundation

40. Toyota 2010

Diversity in the judiciary isn't just about representation. It impacts how cases are decided.

• Researchers who study courts have found judges' gender and racial identity impacts how cases are decided.
• In sex discrimination cases, women are 15% more likely to rule in favor of the claimant than men.
• 74% of active federal judges are white and 67% of active federal judges are men.
• This article is part of a series called " The Cost of Inequity ," examining the hurdles that marginalized and disenfranchised groups face across a range of sectors.

In the spring of 2009, the Supreme Court was asked to decide whether officials at an Arizona school violated the Constitution when they put a 13-year-old girl through a strip search in the nurse's office. The school officials believed that the girl was hiding ibuprofen in her underwear.

During oral arguments, Justice Stephen Breyer wondered if it might have been reasonable for officials to think pills were in her underwear. 

"In my experience, when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear," he said, prompting laughter in the courtroom.

Justice Ruth Bader Ginsburg was not laughing. At the time of the hearing, she was the only female justice on the Supreme Court. "They have never been a 13-year-old girl," Ginsburg told a reporter at USA Today about her colleagues a couple of weeks later. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

That summer the court sided with the girl.

It's impossible to know what went on behind the scenes and whether the late Justice Ginsburg swayed her colleagues. But it's incredibly likely that her presence, especially when she was the only woman on the court, influenced the outcome of this case and others.

Advocates for gender parity and racial diversity in federal courts often emphasize the importance of representation: Ginsburg was considered by many to be a role model for young girls aspiring to a legal career. But researchers who study the makeup of the courts have found judges' gender and racial identity affect how cases are decided.

"When you care about who is crafting the law, who the judges are really matters," Christina Boyd, a University of Georgia political-science professor, said. "Why do we keep talking about representation and numbers? It matters because people want to look at the courts and see themselves. But it also has substantive effects."

In most issue areas, there's really no observable difference in how female and male judges behave, Boyd said. But she has found that a trial judge's gender and race have "very large effects" on their decision-making when the cases before them implicate sex, gender, or race. 

These findings matter today because the US federal judiciary is still predominantly white and 

Related stories

male. About 74% of federal judges are white and 67% of federal judges are men, according to an Insider analysis of Federal Judicial Center data.

In sex-discrimination cases, women are about 15% as likely to rule in favor of the claimant as men. This was true even when accounting for age and political ideology, Boyd said.

Ginsburg addressed this in her 2009 interview with USA Today, speaking of her former colleague Sandra Day O'Connor, the first woman on the Supreme Court. "As often as Justice O'Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases," Ginsburg said.

"It's not just that female judges behave differently, but that they actually affect male judges' behavior," Boyd added. In her research on federal appeals courts, just one level below the Supreme Court, Boyd found that the presence of just one woman on a panel of three judges influences the court's decision. "You add that female judge to the panel, to the deliberations, it causes the male judges to rule differently," she said.

"In the law, there's this 'reasonable person' standard, and for decades the reasonable person was a white male cis perspective," said Theresa Lau, senior counsel on judges and courts at the National Women's Law Center. "If somebody is a woman or person of color they'll have a different outlook on life."

When it comes to gender, a judge's identity might have a significant effect in a case about pregnancy discrimination or abortion access. "Let's say you're deciding whether a law unfairly restricts the right to abortion," Lau said. "I guarantee you women will have a different perspective on what is an undue burden, especially if they come from a community that has historically faced restrictions to access to care."

"There are differences in the way judges of different backgrounds judge cases, but it really matters mostly when the identity or the difference speaks to something about the case," said  Maya Sen, a professor at Harvard's John F. Kennedy School of Government.

Sen, who also studies the effects of diversity on judicial decisions, said it has been hard to study this topic in part because diversity on the bench is such a new phenomenon. 

Researchers couldn't even begin to study it in earnest until after the 1970s, when President Jimmy Carter made judicial diversity a priority, according to Sen. Before that, federal judges were nearly all white and male.

Since then Boyd has found that racial identity affects how judges rule when race is at the heart of a case. Black judges are about 39% more likely to decide in favor of the race discrimination plaintiff than white judges. Another study found that African American judges were more than twice as likely to rule in favor of Voting Rights Act plaintiffs as white judges, and that the presence of just one nonwhite judge on a panel of judges was enough to influence its ruling.

Researchers have had a hard time studying the rulings of Latino, Asian American, Native American, and LGBTQ judges because there are so few of them, Sen said. "The numbers are so small that it's really impossible to firmly try to put a narrative on it," she said.

That hasn't stopped some judges from speculating how cases might have been decided differently in the past.

In March, US District Judge Edward M. Chen testified before a House committee on diversity in the judiciary. He brought the landmark case United States v. Korematsu, which upheld the government's internment of Japanese Americans.

"In justifying why Japanese Americans could be singled out for mass treatment, whereas Americans of German and Italian descent were not, the court opined that Japanese Americans were more prone to be disloyal and presented a military risk," Chen testified. "I ask the question: What if there had been a Japanese American Justice on the court?"

• Main content

Trial Presentation 101: Impactful Courtroom Demonstratives

• Michael Beumer

TRIAL PREPARATION SERIES | PART THREE of THREE

A looming trial or hearing date is no reason to panic. As we have described in PART 1 and PART 2 of our blog series, if your trial team has kept a well-organized and thoughtful document review and deposition process, your trial preparations and courtroom presentation should come together naturally. 

The key to making impactful trial presentations and graphics is not necessarily doing anything novel, but creating a cadence and drawing attention to the key points you’re trying to make. Your review team should have identified most of your key points when reviewing evidence. Organize it so that the most important and clear-cut examples can be easily found by the trial team.  

You must relate the most compelling story possible when your matter is tried in front of a judge, panel, or jury. Here’s how to do it.

★  In Trial Presentation, Simple Is Better

Above all, keep your courtroom presentation simple. Even if you have uncovered a mountain of damning evidence, your job in presenting your case is to tell a simple and clear story. When presenting, don’t overwhelm your audience and don’t die by bullet point. The less clutter on a slide, the more memorable your language and imagery, the more powerful the message will be. 

Once ESI has been reviewed for relevance, only a few key pieces or passages might actually be presented at a deposition , hearing, or trial. Consider how you’re organizing your presentation. 

The bullet points you use should be descriptive but succinct. Your timeline should be clear and easy to understand. Use charts, quotes and visual images to draw the viewer in and tell your story, not just illustrate a chronology. As discussed in our Taking Depositions post, a timeline not only organizes your evidence, but helps find patterns to define and accentuate your story. 

★  Timelines in Trial Presentation

To ensure your courtroom presentation is on point, use analytics to see date ranges and help determine your starting and ending points. Metadata can sort evidence by date so that you can organize it in a timeline view and can see patterns over time. 

These timelines are functional, but they can also be given to a professional graphic designer who can create a simplified, polished timeline slide for presenting in court. ( Reach out to Nextpoint for help with your trial graphics.)

Once your trial team and creative team understand key themes, the timeline becomes a roadmap or case brief. It will help set the stage for the audience and identify your cast of characters. Just like a good novel, consider the conflicts. Consider the rising action that brought conflict in the case. Then help lead the audience to a logical conclusion.  

One of the most difficult questions is how to manage complex electronic data. Data is an important part of most litigation today. The aim is to create custom graphics to complement the data and make it more digestible for a judge, arbitration panel, or jury to follow. 

Alternatively, you can employ a true exhibit presentation platform (such as Nextpoint, Trial Director or OnCue) to present data using callouts to make the data or financial information easily comprehensible. 

★  The Tools of the Trial Presentation Trade

As you receive designations from opposing counsel, organize them side by side with yours. In Nextpoint, reporting features allow you to discover what designations have been made. You can also see if there are any discrepancies and any objections you might raise. Issue tagging and coding in review will help make your key points and themes clear. We pointed that out in our recent post  on trial preparation.

In addition, you can view designation types and search across all depositions easily. This means information can rise to the top so you can have a vertical view to leverage transcripts of depositions . This is especially useful for MDLs or large scale litigation which may involve depositions and evidence from other jurisdictions or matters. 

If you’ve done this work ahead of time, creating final exhibits will be much easier. In fact, many of our clients will run presentations from their trial database . Simply call up documents and video as needed and replay important designations or clips. 

Callouts make great visuals. But professional designers or a good slide template can make even more powerful presentation materials. 

Modern trial databases are great tools for organizing and presenting your case. But we also believe in old-fashioned courtroom presentation materials. As courts go back to in-person meetings, a mixed media presentation should include digital exhibits on your presentation platform. You can also include a poster board that you can point to in the courtroom or arbitration room to hammer home important points. 

★  Want to Learn More?

Check out Parts 1 and 2 of our Trial Preparation Series:

• Trial Preparation 101: Strategies for Building Winning Arguments outlines the strategic aspects of trial planning
• Taking Depositions: Preparation Strategies for Attorneys   explains how to get the most out of your depositions and manage them alongside the rest of your case

And download our comprehensive eGuides on case building and deposition prep

If you’re looking for help with your courtroom presentation or any part of the litigation process, please reach out to the experts at Nextpoint . We can help you create custom graphics for your presentation, provide assistance in person when you go to trial, and so much more.

• trial graphics
• Trial Presentation
• trial presentation software

8 Essential Attorney Tech Tools for Trial Presentation

Nextpoint trial preparation and oncue software, how to prepare for your next hearing, conference or trial.

• ACC Communities

The Association of Corporate Counsel (ACC) is the world's largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations, nonprofits and other private-sector organizations around the globe.

Top Ten Cases Involving Ethical Issues for In-House Counsel (United States)

You may also be interested in

Speakers on ethical issues for in-house counsel often get challenged by the audience as to the reality of the problems posed. Many in-house counsel apparently believe that the ethical rules do not apply to them, or apply with less force.

In fact, reported cases involving ethical issues in-house counsel have risen dramatically in recent years. What follows is a list of ten of the most significant cases involving in-house counsel and ethical issues.

1. Kaye v. Rosefielde , 75 A.3d 1168, 1204 (New Jersey Super. Ct. App. Div. 2013).

This is a dream case for commentators on in-house ethics because it raises two of the most common "defenses" asserted by in-house lawyers when pushing back against ethical concerns.

Mr. Rosefielde was in-house for several small companies owned by Mr. Kaye. He also represented Mr. Kaye himself and a trust for his children. As he had done many times before, Mr. Rosefielde created a small company at Mr. Kaye's direction and gave himself a small equity share. He did not hide this from Mr. Kaye, but he also did not comply with Rule of Professional Conduct 1.8 regarding business transactions with a client.

Mr. Kaye later sued Mr. Rosefielde for malpractice, and alleged among other things that Mr. Rosefielde had violated Rule 1.8 by not advising Mr. Kaye in writing to have another lawyer review the transaction, and giving him (Mr. Kaye) time to do so.

Mr. Rosefielde's first defense was that the requirements of Rule 1.8 regarding a business transaction with a client did not apply to him because he was in-house. This was rejected so soundly as to be described as being irrational:

"Independent of the particular facts of this case, we also discern no rational basis to exempt attorneys who have been hired by corporate clients to serve as in-house counsel from the ethical requirements of RPC 1.8" (Emphasis added.)

Another argument of Mr. Rosefielde was that for some conduct he was acting as officer of the company, not as its in-house lawyer, and therefore the ethical rules did not apply to his conduct. This was also squarely rejected as "fallacious."

Practice Tips: The ethical rules, including Rule 1.8 restrictions on getting an equity interest in your client, apply to you. Further, the ethical rules probably apply even when you are acting not as counsel, but as an officer of the company.

2. Yanez v. Plummer , 164 Cal. Rptr. 3d 309 (California Ct. App. 2013)

This case involved an incident at a factory. The company conducted an investigation, and Mr. Yanez, a company employee and bystander witness, told the investigator the company was not at fault. In later litigation, Mr. Yanez was identified as a witness and his deposition was to be taken.

The company agreed to provide him with counsel to defend the deposition, and it provided its in-house counsel Mr. Plummer. Literally on the way to the deposition, Mr. Yanez told Mr. Plummer that: (a) he had lied to the company investigator; and (b) that the truth was worse for the company than he had said previously. Mr. Plummer essentially said: "Just tell the truth; you'll be fine."

Mr. Yanez indeed testified differently than he had told the company investigator. The company opened a new investigation, and subsequently fired Mr. Yanez for lying during the first investigation. He sued the company for wrongful discharge and Mr. Plummer for malpractice. While the trial court granted summary judgment for Mr. Plummer, the court of appeals reversed.

Mr. Plummer's error was in not recognizing that, once Mr. Yanez told him that his testimony at deposition would be different than he had given previously and not as favorable to the company, Mr. Plummer had an irreconcilable conflict of interest between his two clients (the company and Mr. Yanez).

Practice tip: In-house counsel have to be vigilant regarding possible conflicts when representing anyone other than the company.

3. Pang v. International Document Services, 2015 WL 4724812 (Utah).

The in-house attorney reported improper business practices "up the ladder" as required by Rule 1.13. At some point, the attorney was fired and brought suit for retaliatory discharge. The attorney's claim was dismissed and the dismissal was affirmed on appeal. The Utah Supreme Court held that the attorney was an employee at will, was entitled to be fired for any reason not illegal, and the ethical requirements that he report "up the ladder" were insufficient to overcome the general public policy in favor of employees being at will.

This is contrary to other cases that have allowed lawyers to bring suit for whistle-blower terminations, seeking monetary relief but not reinstatement. In Van Asdale v. International Game Technology , 587 F.3d 989 (9th Cir. 2009), the Ninth Circuit reinstated a claim for wrongful discharge under Sarbanes Oxley brought by two terminated in-house counsel. The in-house counsel had brought suit claiming they were discharged for reporting possible stock fraud to higher-ups within the company. The District Court had granted summary judgment on the grounds that the claims were not "protected activity." The Ninth Circuit, however, reversed, holding that reporting stock fraud was a protected activity.

Practice tip: complying with your ethical obligations may not be painless. This is the life we have chosen, and it comes with some costs.

4. Anwar v. Fairfield Greenwich Ltd., 982 F. Supp. 2d 260 (Southern District of New York 2013)

This is yet another in the long line of cases out of the Southern District of New York (SDNY) involving issues of in-house counsel not being licensed in the jurisdiction where they regularly office. The court held that there was no attorney-client privilege for communications between the in-house counsel and the client because the in-house counsel was not licensed and, therefore, not an "attorney."

There is some split of authority on this issue. Some courts have held that if the attorney is licensed somewhere then the fact that the attorney is practicing law without a license in the particular state does not implicate the attorney-client privilege. Other courts have held this rule only applies where the company reasonably relies on the attorney having a license.

Crews v. Buckman Labs. Int'l , 78 S.W.3d 852 (Tenn. 2002) demonstrated the burden on counsel, co-workers, and the client that can arise from the unlicensed practice of law in-house. An associate in-house counsel discovered that the general counsel was not licensed to practice law in Tennessee where the general counsel officed. She reported this first to the general counsel and later to the company's board of directors. After considerable time, the general counsel was still not admitted, so the in-house obtained her own legal advice concerning her ethical obligations and felt compelled to report the unlicensed practice of law to appropriate State agency. The reporting counsel was later fired and brought suit for common-law retaliatory discharge. No lawyer should want to subject their client to this kind of embarrassment, and this was all driven by the general counsel's refusal to become licensed in the state where she practiced.

Practice Tip: Not being licensed in the jurisdiction where you regularly office can be a crime, an ethical violation in the state where you are licensed, can get your colleagues in trouble, and can wreck your client's claim to the attorney-client privileged. Please consider getting licensed where you regularly office.

5. Haeger v. Goodyear Tire and Rubber Co, 793 F. 1122 (9th Cir. 2015).

In this case, Goodyear withheld documents and otherwise gave false responses during discovery. The court entered drastic sanctions against Goodyear, and the "nail in the coffin" was the fact that Goodyear's in-house counsel had participated in reviewing the false discovery responses before they were filed.

Practice Tip: If you are practicing law, take it seriously.

6. People v. Miller, 354 P.3d 1136 (Colorado O.P.D.J. 2015).

A lawyer was helping run the family business, which was controlled by his mother and shared with his siblings. There was no engagement letter. As the mother started aging and fading, there were disputes among the children (the lawyer and his siblings) how things should be handled.

The lawyer had the mother sign documents giving lots of power and authority to the lawyer and putting him on a salary, and he hid these documents from his siblings. The lawyer was disciplined for violations of Rule 1.7 (conflicts of interest); Rule 1.8 (business transaction with a client); and Rule 8.4(c) (dishonesty, fraud, and deceit). Interestingly, disciplinary prosecutor asked for a 90-day suspension as a penalty, but the court sua sponte imposed twice that.

Practice Tip: All the ethical rules apply to in-house counsel, including prohibition on deceitful conduct.

7. Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364 (5th Cir. 1994)

This case involved an in-house attorney who complained to the US Department of Energy (DOE) about discrimination at her client. To further her case, she gave information to the DOE about other complaints of discrimination at the company. Even though she prevailed in her jury trial, the ruling was reversed. The Fifth Circuit held that there was no exception to the ethical rules that allowed her to disclose information regarding other wrongs without client consent, which she did not have. The verdict was reversed and the case dismissed based on the lawyer's misconduct.

Practice Tip: You cannot talk about client information with any third parties absent with some narrow exceptions. Even when an exception applies, it is no broader than is absolutely necessary to fulfill the purpose of the exception.

8. Dinger v. Allfirst Fin., Inc., 82 Fed. Appx. 261, 265 (3rd Cir. 2003)

In this case, former officers of a bank brought a claim against the bank, alleging that its in-house counsel had given them bad legal advice regarding the exercise of stock options. The company won on summary judgment on the merits of the case, with the District Court determining that the lawyer's advice had been reasonable. The issue of the lawyer giving advice to someone other than his client was not discussed. In affirming, the Third Circuit noted that "The District Court recognized that defendants owed plaintiffs a fiduciary duty based on the confidential relationship that existed between [the lawyer] and plaintiffs, but found no breach of that duty."

Practice Tip: Be careful in giving advice to anyone other than your client. You may inadvertently create an attorney-client relationship.

9. In re Teleglobe Commc'ns. Corp., 493 F.3d 345 (3rd Cir. 2007)

This case involved a dispute among related companies. The in-house counsel for one company had often performed legal work for the related companies. In the dispute, it was determined that the lawyer's notes were not privileged as to any of the companies in the dispute, as he was each company's lawyer. It was also held that the common-interest doctrine did not apply to protect the notes, because that doctrine requires the involvement of multiple lawyers.

An even more striking case arose in GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C. , 618 F.3d 204 (2nd Cir. 2010). Again, this case involved the question of attorney-client relationship where a lawyer did legal work for multiple closely-related companies. When a dispute arose between a subsidiary and a third party, the subsidiary was able to disqualify the third-party's lawyer who had previously done work for the parent company. The court held that the connection between the wholly owned subsidiary and its parent corporation was sufficiently close that the two were a single client for attorney-disqualification purposes. The court noted, among other things, that the subsidiary and the parent relied on the same in-house legal department, and that the parent's legal department had been involved in the dispute between the plaintiff and subsidiary since it first arose.

Practice Tip: When you do work for related companies, you are the lawyer for all of them, owe fiduciary duties to all of them, and cannot prefer one over the other.

10. Harkabi v. SanDisk Corp., 275 F.R.D. 414 (S.D.N.Y. 2010)

In this case, the defendant was sanctioned because its in-house counsel failed to preserve evidence while litigation was pending. Although in-house counsel was involved in several steps to protect information, he did not supervise or even approve the copying and wiping of laptop hard-drives and was not involved in the transfer of email archives from servers. Thus, when that information was no longer available, the defendant was determined to have a culpable state of mind regarding the failure to preserve.

Practice Tip: If you are going to bring litigation in house, be aware of the risks. Your in-house litigators will essentially have the duties of both lawyer and client.

The ethical rules still apply to in-house counsel. Not only that, the stakes are higher because it is much more difficult for your to disengage from your client when you are in-house. If you have any questions about your ethical duties at all, contact the author.

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Case study definition

Case study, a term which some of you may know from the "Case Study of Vanitas" anime and manga, is a thorough examination of a particular subject, such as a person, group, location, occasion, establishment, phenomena, etc. They are most frequently utilized in research of business, medicine, education and social behaviour. There are a different types of case studies that researchers might use:

• Collective case studies

• Descriptive case studies

• Explanatory case studies

• Exploratory case studies

• Instrumental case studies

• Intrinsic case studies

Case studies are usually much more sophisticated and professional than regular essays and courseworks, as they require a lot of verified data, are research-oriented and not necessarily designed to be read by the general public.

How to write a case study?

It very much depends on the topic of your case study, as a medical case study and a coffee business case study have completely different sources, outlines, target demographics, etc. But just for this example, let's outline a coffee roaster case study. Firstly, it's likely going to be a problem-solving case study, like most in the business and economics field are. Here are some tips for these types of case studies:

• Your case scenario should be precisely defined in terms of your unique assessment criteria.

• Determine the primary issues by analyzing the scenario. Think about how they connect to the main ideas and theories in your piece.

• Find and investigate any theories or methods that might be relevant to your case.

• Keep your audience in mind. Exactly who are your stakeholder(s)? If writing a case study on coffee roasters, it's probably gonna be suppliers, landlords, investors, customers, etc.

• Indicate the best solution(s) and how they should be implemented. Make sure your suggestions are grounded in pertinent theories and useful resources, as well as being realistic, practical, and attainable.

• Carefully proofread your case study. Keep in mind these four principles when editing: clarity, honesty, reality and relevance.

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The Supreme Court is nearing the end of its term. Here are the cases it still has to decide.

Washington — The Supreme Court has wrapped up arguments for its current term and until around the end of June, it will be handing down opinions for the remaining cases, among them, over a dozen involving hot-button issues including abortion, guns, homelessness, Purdue Pharma's bankruptcy plan and the prosecution of former President Donald Trump.

This term, which began in October 2023, follows two in which the Supreme Court handed down consequential decisions unwinding the constitutional right to abortion and bringing to an end affirmative action in higher education. The justices kicked off this latest slate of cases with several involving administrative law and online speech. But it was a pair of disputes involving Trump that captured widespread attention and thrust the justices into the center of legal battles with high stakes for the former president as he mounts a bid to return to the White House.

The court has already decided one of the cases involving the presumptive Republican presidential nominee: whether Colorado could keep him off the 2024 ballot using a Civil War-era provision of the 14th Amendment. The high court ruled in March that states cannot disqualify Trump from holding the presidency under Section 3 of the 14th Amendment and allowed him to stay on the ballot.

"It's the most consequential term of my lifetime," said Victoria Nourse, law professor at Georgetown University, "because they're covering a gambit of things from guns to abortion to presidential power."

Here are the most significant cases that the Supreme Court will decide in the coming weeks:

Presidential immunity for Trump

Trump v. United States

Argued April 25

The Supreme Court is considering whether a former president is entitled to sweeping immunity from criminal prosecution for allegedly official acts taken while in the White House. Trump has argued that he cannot be criminally charged for his alleged efforts to subvert the transfer of presidential power after the 2020 election.

The decision by the Supreme Court will impact special counsel Jack Smith's case against Trump in Washington, D.C., where the former president has pleaded not guilty to the four charges he is facing. But a ruling could also have consequences for two other cases involving Trump: One, also brought by Smith, in South Florida involving Trump's alleged mishandling of classified documents; and a second brought by prosecutors in Fulton County, Georgia, related to Trump's alleged efforts to overturn the results of the 2020 election in the state. He has pleaded not guilty to all charges.

During arguments in April, the last of the term, the Supreme Court seemed likely to recognize that former presidents are entitled to some level of immunity from federal prosecution for acts undertaken while in the White House. But the justices expressed skepticism toward Trump's claim that he is absolutely immune from criminal prosecution.

FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine

Argued March 26

Less than two years after the Supreme Court overturned Roe v. Wade , the issue of abortion returned to the high court. This case involves access to the widely used abortion pill mifepristone and whether the Food and Drug Administration acted unlawfully when it relaxed the rules for the drug's use in 2016 and 2021.

The challenge was brought by a group of anti-abortion rights doctors and medical associations who claimed the agency went too far when it made the changes that made mifepristone easier to obtain. 

During arguments, the justices seemed inclined to maintain access to the drug. Several expressed skepticism that the medical groups and physicians had the legal right to sue, a concept known as standing. If a majority of the court finds that the challengers do not have legal standing to bring the lawsuit, it would order the case to be dismissed.  

Moyle v. United States and Idaho v. United States

Argued April 24

This pair of cases involves the interplay between Idaho's near-total ban on abortion and a federal law that requires Medicare-participating hospitals to provide necessary stabilizing treatment to a mother whose health is at serious risk.

The Biden administration has argued that in certain circumstances, that stabilizing treatment will be abortion care. But Idaho lawmakers have said that the administration is using the law, called the Emergency Medical Treatment and Labor Act, or EMTALA, to invalidate state abortion restrictions enacted after Roe's reversal.

The justices appeared divided during arguments over whether federal law requires physicians in states with stringent abortion bans to offer pregnancy terminations in certain medical emergencies.

Social media and the First Amendment

Moody v. NetChoice, LLC, and NetChoice, LLC, v. Paxton

Argued Feb. 26

The two cases involve similar laws enacted in Florida and Texas that impose rules on social media companies and their content-moderation policies. Enacted in 2021, the Florida and Texas laws came in response to claims by Republicans that social media companies were silencing conservative viewpoints. 

At issue in the challenges, brought by Internet trade associations, is whether the states' restrictions on the social media companies violate the First Amendment. The justices heard arguments in February, during which they seemed skeptical that the Constitution allows states to regulate how the companies make decisions about the content posted to their platforms.

Murthy v. Missouri

Argued March 18

In another clash involving the First Amendment and social media, the Supreme Court weighed whether the Biden administration violated the free speech rights of a group of social media users when it pressured platforms to remove content it believed spread misinformation about the 2020 election and COVID-19 pandemic.

The dispute tests how far federal officials can go to push platforms to take down or suppress posts before crossing a constitutional line. When the justices heard the case in March, several appeared wary of curtailing the administration's contacts with platforms and raised concerns about hampering officials' ability to communicate with social media companies about certain issues.

The regulatory power of federal agencies

Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Department of Commerce

Argued Jan. 17

In a major challenge to the power of federal agencies, these two cases call on the Supreme Court to overrule its 1984 decision in Chevron v. National Resources Defense Council. That case laid out the framework, known as Chevron deference, that requires judges to defer to an agency's interpretation of ambiguous statutes if it is reasonable.

The 40-year-old decision has long been a target of the conservative legal movement, which has argued that it gives federal officials too much power in crafting regulations that affect areas like the environment, public health and the workplace.

The justices heard arguments in January, during which the court's conservative majority seemed open to curtailing agencies' ability to interpret laws passed by Congress.

Garland v. Cargill

Argued Feb. 28

A ban on bump stocks implemented during the Trump administration is at the center of this dispute, brought by a Texas man who was forced to surrender his devices to comply with the restriction. The case does not involve the Second Amendment, but rather whether the Bureau of Alcohol, Tobacco, Firearms and Explosives could outlaw bump stocks.

Bump stocks are attachments to semi-automatic rifles that speed up their rate of fire. Following the 2017 mass shooting at a music festival in Las Vegas, where the shooter used semi-automatic weapons outfitted with bump stocks, ATF issued a rule finding that a rifle equipped with the device qualifies as a machine gun, as defined under federal law. Machine guns have been largely banned since 1986.

The justices heard arguments in the case in February and grappled with whether to leave the ban on bump stocks in place.

Obstruction charge for Jan. 6 defendants

Fischer v. U.S.

Argued April 16

More than 1,300 people have been charged in connection with the Jan. 6, 2021, assault on the U.S. Capitol, and of those, more than 350 are accused of violating a federal law that makes it a crime to "corruptly" obstruct or impede an official proceeding. 

But the Justice Department's use of that law is now under scrutiny from the Supreme Court, which is considering whether federal prosecutors can apply the obstruction law, passed in the wake of the Enron scandal, to the Jan. 6 attack.

The outcome of the case could affect the Jan. 6 defendants who have already been convicted of the obstruction offense or pleaded guilty, as a decision rejecting prosecutors' broad reading of the measure could lead to new trials or lighter sentences. The ruling could also impact the federal prosecution of Trump in Washington, D.C., as he is charged with one count of obstructing an official proceeding — Congress' counting of Electoral College votes — and one count of conspiring to obstruct the proceeding, as well as two other charges. 

Trump has pleaded not guilty to all four counts. 

During arguments in April, the court appeared divided over prosecutors' use of the obstruction statute. 

Funding for the Consumer Financial Protection Bureau

Consumer Financial Protection Bureau v. Community Financial Services Association

Argued Oct. 3

On the second day of the term, the Supreme Court heard a case challenging the Consumer Financial Protection Bureau's funding mechanism.

The question in the legal battle is whether the way in which the CFPB receives its funding violates the Constitution's Appropriations Clause. The dispute is one of several that has been brought since the CFPB's creation in 2010 that has sought to weaken the agency.

But during the arguments, several of the justices expressed skepticism that the CFPB's funding mechanism is unconstitutional.

Federal firearms prohibition for alleged domestic abusers

United States v. Rahimi

Argued Nov. 7

This case presented the Supreme Court with its first opportunity to clarify its June 2022 decision that expanded the scope of the Second Amendment. In that ruling in New York State Rifle and Pistol Association v. Bruen, the justices laid out a new standard which says gun laws must fit with the nation's history and tradition of firearms regulation to pass constitutional muster. To demonstrate that, the government must put forth laws that are analogous to the modern-day measure at issue.

This dispute involves a 1994 law that prohibits people subject to domestic violence restraining orders from having guns. A federal appeals court struck down the 30-year-old law under the Supreme Court's new test, and the justices considered whether the prohibition violates the Second Amendment.

The justices appeared inclined to leave in place the law stripping alleged domestic abusers of their firearms, and several suggested that those deemed dangerous to society could be disarmed.

Racial gerrymandering

Alexander v. South Carolina Conference of the NAACP

Argued Oct. 11

At issue in this case are the lines of South Carolina's Congressional District 1, which a lower court struck down as an unconstitutional racial gerrymander.

The district, represented by GOP Rep. Nancy Mace, was redrawn after the 2020 Census to produce a safer Republican district. To achieve that goal, state GOP officials moved more than 30,000 Black voters from Congressional District 1 into a neighboring district. 

The Supreme Court weighed whether race or politics was the predominant factor during the mapmaking process, though the conservative justices appeared likely to leave the GOP-drawn lines intact .

Purdue Pharma's bankruptcy plan

Harrington v. Purdue Pharma

Argued Dec. 4

This court fight arose from a bankruptcy plan for Purdue Pharma , which shields the Sackler family from civil lawsuits stemming from the opioid crisis. The Sacklers owned and operated Purdue during the height of the opioid epidemic, and after Purdue filed for Chapter 11 bankruptcy in 2019, the family agreed to contribute $6 billion for abatement of the opioid crisis in exchange for the legal shield.

The bankruptcy plan was approved by 95% of victims, but several states, Canadian municipalities and a smaller group of individuals opposed it because of the protections for the Sacklers. The case involves whether those dissenters should be bound by the releases and therefore unable to pursue their own opioid-related lawsuits against the Sacklers, who never filed for bankruptcy protection.

The Justice Department objects to Purdue's bankruptcy plan and has argued that the so-called third party releases are not allowed under federal bankruptcy code.

Some of the justices during arguments raised concerns about the consequences of a decision unraveling Purdue's bankruptcy agreement, especially for victims and their family members who stand to benefit from it. Others, meanwhile, noted that the plan deprives the holdouts of the ability to hold the Sacklers accountable in civil court, and said the family is benefitting from bankruptcy protection without ever declaring bankruptcy.

A provision of Trump's tax reform package

Moore v. U.S.

Argued Dec. 5

This case involves a challenge to an obscure provision of Republicans' sweeping tax reform package signed into law by Trump in 2017. The mandatory repatriation tax is a one-time tax targeting U.S. taxpayers who hold shares of certain foreign corporations and requires them to pay a levy on their proportionate share of the company's earnings.

The tax was projected to generate roughly $340 billion in revenue over 10 years. A couple from Washington state challenged the tax as impermissible under the 16th Amendment, but the Supreme Court appeared likely to leave it in place .

EPA rule for addressing harmful smog

Ohio v. EPA; Kinder Morgan, Inc. v. EPA; America Forest and Paper Association v. EPA; and U.S. Steel Corp v. EPA

Argued Feb. 21

In these cases, which were heard together, the court is considering whether to halt an environmental rule from the Biden administration that aims to curb air pollution and address harmful smog that travels from certain states into others.

The dispute stems from a plan announced by the EPA in 2023 that established an emissions-control program for large industrial sources like power plants and factories in 23 states. The EPA said emissions from those facilities were contributing significantly to smog pollution in downwind states.

Three GOP-led states, energy companies and industry groups challenged the initiative, and the Supreme Court seemed likely to halt the "good neighbor" rule during arguments in February.

Anti-camping ordinances

City of Grants Pass v. Johnson

Argued April 22

Arising out of an Oregon city's ordinances banning public camping, the case raises whether it's a violation of the Eighth Amendment's protection against cruel and unusual punishment to punish homeless people with civil citations for camping on public property when they have nowhere else to go.

The dispute is the most significant involving homelessness to come before the Supreme Court in decades, and the outcome could impact how cities and states respond to high rates of homelessness as encampments pop up on public property.

The justices weighed the constitutionality of anti-camping laws during arguments in April and appeared divided over whether the city of Grants Pass went too far with its rules.

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Inside the courtroom where Trump was forced to listen to Stormy Daniels

All eyes are on porn actor Stormy Daniels, who took the stand in Donald Trump’s trial Tuesday and recounted the lead-up to meeting Trump and a 2006 sexual encounter she has said the two engaged in. Trump denies the encounter took place.

Former President Donald Trump sits in Manhattan Criminal Court on Tuesday, May 7, 2024 in New York. (Win McNamee/Pool Photo via AP)

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Former President Donald Trump, center, and attorney Susan Necheles, left, attend his trial at Manhattan criminal court on Tuesday, May 7, 2024, in New York. (Win McNamee/Pool Photo via AP)

Judge Juan Merchan presides over proceedings as Stormy Daniels, far right, answers questions on direct examination by assistant district attorney Susan Hoffinger in Manhattan criminal court as former President Donald Trump and defense attorney Todd Blanche look on, Tuesday, May 7, 2024, in New York. (Elizabeth Williams via AP)

In this courtroom sketch, defense attorney Susan Necheles, center, cross examines Stormy Daniels, far right, whose real name is Stephanie Clifford, as former President Donald Trump, left, looks on with Judge Juan Merchan presiding during Trump’s trial in Manhattan criminal court, Tuesday, May 7, 2024, in New York. (Elizabeth Williams via AP)

Stormy Daniels, center, exits the courthouse at Manhattan criminal court in New York, Tuesday, May 7, 2024. Porn actor Daniels, whose real name is Stephanie Clifford, took the stand mid-morning Tuesday and testified about her alleged sexual encounter with former President Donald Trump in 2006, among other things. (AP Photo/Seth Wenig)

NEW YORK (AP) — Donald Trump squirmed and scowled, shook his head and muttered as Stormy Daniels described the unexpected sex she says they had nearly two decades ago, saying she remembered “trying to think of anything other than what was happening.”

It was a story Daniels has told before. This time, Trump had no choice but to sit and listen.

What to know about Trump’s hush money trial:

• Follow AP’s live updates as the third week of testimony draws to a close.
• A guide to terms used in the Trump trial.
• Trump is the first ex-president on criminal trial. Here’s what to know about the hush money case.
• Trump is facing four criminal indictments, and a civil lawsuit. You can track all of the cases here.

Years in the making, the in-person showdown between the former president and the porn actor who has become one of his nemeses happened Tuesday in a New York courtroom that has become the plainspoken stage for the historic spectacle of Trump’s hush money trial , where the gravitas of the first-ever criminal trial of a former U.S. commander-in-chief butts up against a crass and splashy tale of sex, tabloids and payoffs.

It’s often said that actual trials are not like the TV drama versions, and in that way, this one is no exception — a methodical and sometimes static proceeding of questions, answers and rules. But if Tuesday’s testimony wasn’t an electric scene of outbursts and tears, it was no less stunning for its sheer improbability.

Daniels’ testimony had been speculated about for as long as Trump has been under indictment. But when it would happen was still a mystery until Tuesday morning, when her lawyer Clark Brewster confirmed in an email to an Associated Press reporter that it was “likely today.”

But even after the trial resumed, Daniels still had to wait.

The first witness of the day was a publishing executive who read passages from some of Trump’s business books.

Then, when the judge asked for the prosecution’s next witness, Assistant District Attorney Susan Hoffinger matter-of-factly declared, “The people call Stormy Daniels.”

Daniels strode briskly to the stand, not looking at Trump, her shoes clunking on the floor. The former president stared straight ahead until the moment she had passed his spot at the defense table, then tilted his head slightly in her direction.

As is standard in court proceedings, Daniels was asked if she saw Trump in the courtroom and to identify him. Before answering, Daniels, wearing eyeglasses, shuffled in her seat for a beat, looking around the courtroom. She then pointed toward him, describing his navy suit coat and gold tie, and said he was sitting at the defense table. Trump looked straight forward, lips pursed.

Dozens of reporters and a handful of public observers packed the courtroom gallery.

In one row alone: CNN anchor Erin Burnett, MSNBC host Lawrence O’Donnell and Andrew Giuliani, the son of Trump’s former lawyer Rudy Giuliani, who wore a media credential from WABC Radio, where he and his dad host shows. Trump’s son Eric sat elsewhere in the courtroom.

As she testified, Daniels spoke confidently and at a rapid clip, the sound of reporters typing reaching a frenetic tempo.

She spoke so quickly, at least six times during her testimony she was asked to slow down so a court stenographer could keep pace.

Jurors seemed as attentive as they’ve been all trial as Daniels recounted her path from aspiring veterinary student to porn actor.

One juror smiled when Daniels mentioned one of the ways into the industry was by winning a contest, like “Ms. Nude North America.” Another juror’s eyes widened as he read along on the monitor displaying a Truth Social post in which Trump said he “did NOTHING wrong” and used an insulting nickname to disparage Daniels’ looks.

Trump denies her claims and has pleaded not guilty in the case, in which he’s charged with falsifying business records related to a $130,000 payment to Daniels to keep quiet.

Many of the jurors jotted notes throughout her testimony, peering up from notepads and alternating their gaze from Daniels in the witness box to the lawyers questioning her from a lectern.

Guided by prosecutors, Daniels drew a detailed scene of her alleged evening with Trump at a hotel suite in Lake Tahoe in 2006, delving frankly into details that Judge Juan M. Merchan would later concede “should probably have been left unsaid.”

She recalled entering the sprawling suite to find Trump in a pair of silk pajamas. She sheepishly admitted to snooping through his bathroom toiletries in the bathroom, finding a pair of golden tweezers. Daniels even acted out part of her interaction with Trump, reclining back in the witness box to demonstrate how she said he was positioned on the bed of his hotel suite when she emerged from the restroom.

Her willingness to provide extra details prompted an usual moment: Trump’s lawyers consented to allowing a prosecutor to meet with Daniels in a side room, during a break in testimony, to give her some instructions to — as Judge Merchan put it — “make sure the witness stays focused on the question, gives the answer and does not give any unnecessary narrative.”

Out of the earshot of the jury, or the reporters in the room, Merchan also asked Trump’s lawyers to stop him from cursing as Daniels spoke.

“I understand that your client is upset at this point, but he is cursing audibly, and he is shaking his head visually and that’s contemptuous. It has the potential to intimidate the witness and the jury can see that,” the judge said. “I am speaking to you here at the bench because I don’t want to embarrass him,” Merchan added.

“I will talk to him,” said one of Trump’s lawyers, Todd Blanche.

Peppy and loquacious when she was being questioned by prosecutors, Daniels was feistier on cross-examination, digging in when defense lawyer Susan Necheles questioned her credibility and motives.

Daniels forcefully denied Necheles’ suggestion that she had tried to extort Trump, answering the lawyer’s contention: “False.”

Daniels left the witness stand just before 4:30 p.m. She didn’t look at Trump as she trod past. He didn’t look at her, either, instead leaning over to whisper to Necheles.

Moments later, Merchan adjourned court until Thursday — with Wednesday the trial’s usual off day. Trump left the courtroom with his entourage of lawyers and aides.

“This was a very revealing day in court. Any honest reporter would say that,” Trump said to journalists in the hallway outside the courtroom. He is limited by court order from saying much more about Daniels to the media.

Inside the courtroom, the witnesses to history reconciled their thoughts, gathered their belongings and waited for Trump to leave the building, so they could, too.

The unexpected explanation for why school segregation spiked

On eve of the 70th anniversary of Brown v. Board of Education, a study finds policy choices explain the rise in segregated schools.

It’s well documented that after falling for years, school segregation has risen again in the United States. But why? New research by academics at the University of Southern California and Stanford University concludes that some popular theories are not to blame.

Ahead of the 70th anniversary of the Supreme Court’s landmark 1954 Brown v. Board of Education decision, a study being released Monday shows a pronounced increase in school segregation since 1988, particularly in large school districts with significant numbers of Black students.

Overall, school segregation between Black and White students has increased by 25 percent since 1991 in the 533 large districts serving at least 2,500 Black students — a significant increase but nowhere near the decline that occurred in the aftermath of Brown , according to the study. (Of note: the paper makes clear that most of the school segregation in the United States is driven by demographic differences between districts , not within them.)

A school district that was entirely segregated would score 1.0 on the researchers’ segregation scale, whereas a perfectly integrated district, where every school perfectly matched the overall district’s demographics, would score 0.0.

Looking at the nation’s 100 largest districts, segregation was 0.45 in 1968. That fell to 0.17 by 1986 and then rose to 0.28 by 2019, researchers found. So while schools are nowhere near as segregated as they were before courts began enforcing the Brown decision, segregation has risen in recent decades.

Researchers offered the example of the Charlotte-Mecklenburg schools system in North Carolina, where segregation was absolute — a score of 1.0 — in 1950, before Brown . By 1968, it remained a still-high 0.66 — at that time, the average White student’s school was 10 percent Black, while the average Black student’s school was 76 percent Black (the difference between 10 and 76 produces the score of 0.66).

Then, in 1971, after the courts ordered a desegregation plan in another landmark court case, this one involving the Charlotte-Mecklenburg district , the segregation score there shrank to just 0.03. (The average White student’s school was 31 percent Black; the average Black student’s school was 34 percent Black.) By 1991, it was still low at 0.10 before rising again. In 2022, segregation had reached 0.44.

The study finds that the rise nationally was not driven by increasing housing segregation. Housing segregation certainly helps explain school segregation. But since 1991, housing has become less segregated.

The study also finds that rising school segregation is not driven by racial economic inequality because racial economic inequality also declined over this period.

Both of these trends “would have led to lower school segregation, had nothing else changed,” said the paper by Ann E. Owens, a sociologist at USC, and Sean F. Reardon, a professor of poverty and inequality in education at Stanford.

So what does explain the rise?

Rather than systemic forces that are difficult to change, these trends are driven by policy choices, they conclude. The researchers point to two specific policies: federal courts releasing school districts, including Charlotte-Mecklenburg, from obligations to desegregate schools beginning in significant numbers in the late 1990s; and school-choice policies that let parents pick what school their children attend.

“It’s not these big structural factors that are outside the school districts’ control that are driving this,” Reardon said in an interview. “It’s things that are under the control of the educational system.”

Court-ordered desegregation plans implemented based on the Brown decision had reduced segregation. But then judges began lifting those orders. “If you switch from an active desegregation effort and go back to neighborhood schools, school segregation is going to go up a lot,” Reardon said.

Had those court orders not been lifted, the study estimates that school segregation would have grown 20 percent less than it did.

At the same time, choice systems such as the introduction of charter schools allowed parents more control — and many used that to choose schools with students like their own. The new study specifically looked at the growth of charter schools and found that if charter schools had not expanded, school segregation would have grown 14 percent less.

These two factors account for all of the rise in school segregation from 2000 to 2019, the paper found.

The rising segregation numbers “appear to be the direct result of educational policy and legal decisions,” the paper concludes. “They are not the inevitable result of demographic changes — and can be changed by alternative policy choices.”

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How a Supreme Court Immunity Ruling Could Affect Trump’s Election Case

In arguments on Thursday, the justices appeared to signal two ways they could help Donald Trump as he fights charges that he plotted to overturn the 2020 election.

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By Alan Feuer

If the Supreme Court’s hearing on Thursday about former President Donald J. Trump’s claims of executive immunity is any indication of how the court might ultimately rule, the justices could end up helping Mr. Trump in two ways.

The justices signaled that their ruling, when it comes, could lead to some allegations being stripped from the federal indictment charging Mr. Trump with plotting to overturn the 2020 election.

And because the process of determining which accusations to keep and which to throw away could take several months, it would all but kill the chance of Mr. Trump standing trial on charges that he tried to subvert the last election before voters get to decide whether to choose him again in this one.

Near the end of the arguments, however, Justice Amy Coney Barrett abruptly floated a way that prosecutors could maneuver around that time-consuming morass. If the special counsel, Jack Smith, wanted to move more quickly, she said, and avoid the ordeal of lower courts reviewing his indictment line by line, deciding what should stay and what should go, he could always do the job himself.

That suggestion, which Mr. Smith’s team seemed to grudgingly accept as a possibility, hinted at the ways in which the hearing on Thursday focused not only on lofty issues of presidential power and constitutional law, but also touched on more practical elements of how Mr. Trump’s criminal case could proceed after the court’s decision.

However the justices rule on the question of granting presidents a degree of immunity from criminal prosecution, the result will have a direct and immediate effect on the election interference case, one of the most important prosecutions Mr. Trump faces.

When Mr. Smith filed his indictment in Washington last summer, it placed Mr. Trump at the center of an intersecting web of criminal conspiracies, all of them devised to reverse the results of the election in several key swing states.

The charges detailed dozens of individual steps that Mr. Trump took to achieve his goals. They described, among other things, how he sought to enlist the Justice Department in validating his claims that the results of the election had been marred by fraud. And they set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won in states he actually lost.

Executive immunity was the first defense that Mr. Trump raised against these charges, and when his lawyers initially advanced the claim six months ago , the approach they took was audacious.

Flipping the script of Mr. Smith’s indictment, the lawyers argued that Mr. Trump was completely shielded from the prosecution because he had been acting in a protected role as president to defend the “integrity” of the election, not, as prosecutors claimed, in his private role as a candidate seeking to undermine it.

While the Supreme Court did not appear to buy these sweeping claims altogether, the court’s conservative justices did seem interested in the idea that presidents should enjoy some form of criminal immunity. Over and over, they circled around the notion that presidents were probably protected from prosecution for official actions central to their jobs, but could still face charges for conduct that was private.

If the court issues a ruling adopting that standard, some of the specific allegations that Mr. Smith has made might have to be tossed out. While the case would still survive and make its way toward trial, prosecutors might not be able to tell the jury every chapter of the sprawling story they have crafted.

An early glimpse of the process of winnowing the charges by separating official acts from private ones emerged on Thursday during some back-and-forth discussions between two of the justices and D. John Sauer, the lawyer who argued on behalf of Mr. Trump.

Speaking to Justice Elena Kagan, for example, Mr. Sauer said that Mr. Trump had been acting in his official role as president when he sought to install a loyal Justice Department official, Jeffrey Clark, as the acting attorney general in his waning days in office. Mr. Sauer portrayed that move as the sort of personnel decision that fell under the purview of the president, even though prosecutors say Mr. Trump sought to elevate Mr. Clark for a very different reason: because he had promised to advance claims of election fraud.

In a similar fashion, Mr. Sauer argued that Mr. Trump had simply been exercising his presidential duties when he asked Rusty Bowers , the speaker of the Arizona House, to call the State Legislature into session in late 2020 to hold a hearing on election fraud.

“We have taken the position that that is official,” Mr. Sauer said, adding that the request to Mr. Bowers had been made “to defend the integrity of a federal election.”

But if Mr. Sauer sought to define some actions in Mr. Trump’s indictment as official — and thus off limits to the prosecution’s case — he acknowledged that others appeared to be private, suggesting they would remain fair game for Mr. Smith’s team.

When Justice Barrett noted that Mr. Trump turned to “a private attorney” — an apparent reference to Rudolph W. Giuliani — “to spearhead his challenges to the election results,” Mr. Sauer conceded that he was not acting in his capacity as president.

“That sounds private to me,” Mr. Sauer said.

Justice Barrett got a similar response when she pressed Mr. Sauer on Mr. Trump’s involvement in the now-famous scheme to create fake slates of electors. When Justice Barrett reminded Mr. Sauer that the indictment claimed that Mr. Trump was joined in the scheme by personal lawyers and an outside political consultant, Mr. Sauer said, “That’s private.”

But these admissions could be read as a tactical retreat meant to secure a larger strategic victory. Indeed, it seemed at times as if Mr. Trump’s legal team was giving up its maximalist position — that immunity extended to all of the indictment — in order to invite the court to explore in detail the more minute distinctions between official acts and private ones.

If the justices do that, they could order a federal appeals court or the trial court in Washington to undertake the job. It is possible the court could issue a narrow ruling giving the trial judge, Tanya S. Chutkan, the power to make those decisions on her own and limit Mr. Trump’s ability to appeal them until after a conviction.

But it is also possible the court’s decision could result in extended arguments about dozens of accusations — and possible appeals of those decisions — which could easily take months to complete and could push the trial into 2025.

While some of the conservative justices in particular did not appear to be in any hurry to move the case toward trial, Justice Barrett at least acknowledged the tensions over timing. At one point, she told Michael R. Dreeben, who argued on behalf of Mr. Smith, that “the special counsel has expressed some concern for speed and wanting to move forward.”

It was then that she weighed in with her surprising plan to speed the case up.

Her suggestion?

The special counsel could, in essence, edit his own indictment and “proceed based on the private conduct and drop the official conduct.”

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

Our Coverage of the 2024 Election

Presidential Race

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Mexico Prepares for a Trump Win:  Behind the scenes, the Mexican government is talking to people close  to the Trump campaign about proposals such as a threat of a “universal tariff” on imported goods, and working to resolve trade disagreements before the U.S. election.

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