Unfair (72 page)

When significant injustice has come:
University of Virginia School of Law, “Promoting Policing at Its Best,”
Virginia Journal
15 (2012): 39.

In the 1960s, for instance:
University of Virginia School, “Promoting Policing at Its Best,” 39.

Faced with the specter of coerced confessions:
Miranda v. Arizona, 384 U.S. 436, 479 (1966).

Does the Constitution's prohibition:
Bond v. United States, 529 U.S. 334 (2000); State v. Sobczak, 347 Wis.2d 724 (2013).

In the case of
Miranda
rights:
Salinas v. Texas, 133 S.Ct. 2174 (2013).

If the police begin to interrogate:
Salinas
, 133 S.Ct. at 2180;
Miranda
, 384 U.S. at 479.

Likewise, the Supreme Court has stated:
Salinas
, 133 S.Ct. at 2180.

If the police ask you to come:
Salinas
, 133 S.Ct. at 2180.

Far from ensuring our goal:
Is it true that the Fourth, Fifth, and Sixth Amendments are the major influences governing police officer and prosecutor interactions with members of the public—and that they have shielded the innocent, while exposing the guilty to the sword of the law? Is it true that the Eighth Amendment is the primary factor impacting the treatment of prisoners? I would suggest that the answer to these questions is a strong no. Procedural protections are important, but the best evidence from social science is that they are not the major movers of our legal actors and that they are insufficient, in and of themselves, to secure the justice that we seek. University of Virginia School, “Promoting Policing at Its Best,” 41.

The Supreme Court's handling of:
Joel D. Lieberman, “The Utility of Scientific Jury Selection: Still Murky After 30 Years,”
Current Directions in Psychological Science
20 (2011): 48.

Allowing counsel on both sides:
Jennifer K. Robbennolt and Matthew Taksin, “Jury Selection, Peremptory Challenges and Discrimination,”
APA Monitor on Psychology
40 (2009): 18.

But in practice the rule was often used:
Samuel Sommers and Michael Norton, “Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the
Batson
Challenge Procedure,”
Law and Human Behavior
31 (2007): 262–64.

Facing significant criticism, the Supreme Court finally:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” (2010): 12,
http://www.law.berkeley.edu/​files/​thcsj/IllegalRacialDiscriminationJurySelection.​pdf
; Sommers and Norton, “Race-Based Judgments,” 263–64. When Robert Swain, a black man, unsuccessfully challenged his death penalty conviction based on the fact that there were no black people on his jury (all six African Americans on the panel were struck by the prosecutor), the Supreme Court dissent noted that, despite African Americans making up 26 percent of the jury-eligible population, no African American “within the memory of persons [then] living [had] ever served on any petit jury in any civil or criminal case tried in Talladega Country, Alabama.” Swain v. Alabama, 380 U.S. 202, 231–32 (1965) (Goldberg, J., dissenting).

Unfortunately, it has not been much:
Lieberman, “The Utility of Scientific Jury Selection,” 48.

The problem, as Justice Thurgood Marshall:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 12.

“The juror worked as a plumber”:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 30.

It need not be persuasive:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 15; Sommers and Norton, “Race-Based Judgments,”269.

Experimental research involving practicing attorneys:
Sommers and Norton, “Race-Based Judgments,” 261.

As a result, in many areas:
Lieberman, “The Utility of Scientific Jury Selection,” 48; Sommers and Norton, “Race-Based Judgments,” 261-64.

Between 2005 and 2009:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 14.

About half of the resulting juries:
Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 14.

Despite all of the effort:
University of Virginia School, “Promoting Policing at Its Best,” 41–42.

But if you
waive
your
Miranda
rights:
Dan Simon,
In Doubt: The Psychology of the Criminal Justice Process
(Cambridge, MA: Harvard University Press, 2012), 138–39; Saul M. Kassin et al., “Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs,”
Law and Human Behavior
31, no. 4 (2007): 381–400; Richard A. Leo, “Inside the Interrogation Room,”
Journal of Criminal Law and Criminology
86 (1996): 266–303; Brandon Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go Wrong
(Cambridge, MA: Harvard University Press, 2011), 36–37, 42; Richard A. Leo et al., “Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century,”
Wisconsin Law Review
2 (2006): 479–86.

To begin with, it would matter:
Richard Rogers, “Getting It Wrong About Miranda Rights: False Beliefs, Impaired Reasoning, and Professional Neglect,”
American Psychologist
66, no. 8 (2011): 731.

We would address the fact that roughly:
Rogers, “Getting It Wrong About Miranda Rights,” 729.

And we would care that the vast majority:
Simon,
In Doubt
, 140; Rogers, “Getting It Wrong About Miranda Rights,” 730–31.

Most critically, we would pay attention:
Simon,
In Doubt
, 139.

And that allows for truly absurd results:
Garrett,
Convicting the Innocent
, 37; Trial Transcript at 20, People v. Lloyd, No. 85-00376 (Mich. Rec. Ct. May 2, 1985).

Police departments, for instance:
David Shipler, “Why Do Innocent People Confess?”
New York Times
, February 23, 2012,
http://www.nytimes.com/​2012/02/26/​opinion/sunday/why-do-innocent-people​-confess.html?pagewanted=all
.

Officers are encouraged to bring up:
Shipler, “Why Do Innocent People Confess?”

When the
Miranda
doctrine was first introduced:
Simon,
In Doubt
, 138.

The same may be said of the historic:
Devon W. Carbado, Cheryl I. Harris, and Kimberle Williams Crenshaw, “Racial Profiling Lives On,”
New York Times
, August 14, 2013,
http://www.nytimes.com/​2013/08/15/​opinion/racial-profiling-lives​-on.html?hp&_r=0
.

There is nothing preventing:
Carbado, Harris, and Crenshaw, “Racial Profiling Lives On.” What does seem to matter is when those in charge make it clear that stopping and frisking people should stop, whether or not a police officer is technically within the rules. New York Mayor Bill de Blasio made that a major campaign promise and the number of such encounters fell drastically after he entered office. Rocco Parascandola, Jenna O'Donnell, and Larry McShane, “NYPD Stop-and-Frisks Drop 99% in Brooklyn, While Shootings Increase in Brownsville, East New York,”
New York Daily News
, August 16, 2014,
http://www.nydailynews.com/​new-york/nyc-crime/nypd-stop-and​-frisks-drop-99-percent​-shootings-increase-brooklyn​-article-1.1905456
.

If we heeded the evidence:
Rogers, “Getting It Wrong About Miranda Rights,” 729.

And it is revealing that most:
Rogers, “Getting It Wrong About Miranda Rights,” 729.

In recent decades, large companies:
Simon Owens, “Is the Academic Publishing Industry on the Verge of Disruption?”
U.S. News and World Report
, July 23, 2012, 2,
http://www.usnews.com/​news/articles/2012​/07/23/is-the-academic-publishing-industry-on-the-verge-of-disruption?page=2
.

When a single journal subscription:
Owens, “Academic Publishing Industry,” 1. To make it through, you have to be a member of a university or big business—and even universities are now struggling with the financial burden. This is particularly galling because, each year, billions in taxpayer revenue goes to funding scientific research that ends up being published in journals that deny access to the people who made the research possible in the first place. Owens, “Academic Publishing Industry,” 4.

And there will always be a danger:
Alva Noë, “When Science Becomes News, the Facts Can Go Up in Smoke,” NPR, May 4, 2014, accessed May 4, 2014,
http://www.npr.org/blogs/​13.7/2014/05/04​/308926616/​when-science-becomes-​news-the-facts-can-go-up-​in-smoke?utm_source=facebook.​com&utm_medium​=social&utm_campaign=npr&utm_​term=nprnews&utm_content=20140504
.

A scientist who advocates changes:
Tamsin Edwards, “Climate Scientists Must Not Advocate Particular Policies,”
Guardian
, July 31, 2013,
http://www.theguardian.com/​science/political​-science/2013/jul/31/​climate-scientists-policies
; Robert T. Lackey, “Science, Scientists, and Policy Advocacy,”
U.S. Environmental Protection Agency Papers
, Paper 142 (2007),
http://digitalcommons.unl.edu/​usepapapers​/142
; Robert A. Pielke, Jr.,
The Honest Broker: Making Sense of Science in Policy and Politics
(Cambridge, UK: Cambridge University Press, 2007).

They are trial consultants:
Nicole LeGrande and Kathleen Mierau, “Witness Preparation and the Trial Consulting Industry,”
Georgetown Journal of Legal Ethics
17 (2004): 947–48; Richard L. Wiener and Brian H. Bornstein, “Introduction: Trial Consulting from a Psycholegal
Perspective,” in
Handbook of Trial Consulting
, eds. Richard L. Wiender and Brian H. Bornstein (New York: Springer, 2011), 1.

Before the 1970s there was:
LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 947–48. They even have a dedicated professional organization, the American Society of Trial Consultants. American Society of Trial Consultants, “History and Goals of the American Society of Trial Consultants,” accessed May 4, 2014,
http://www.astcweb.org/​/files/17/35/25/f173525/public/​article.cfm/society-goals
.

In major litigation, trial consultants:
Lieberman, “The Utility of Scientific Jury Selection,” 48.

Interestingly, these consultants are not:
Joel D. Lieberman and Bruce D. Sales,
Scientific Jury Selection
(Washington, DC: American Psychological Association, 2007), 9.

Rather, they are social scientists:
Lieberman and Sales,
Scientific Jury Selection
, 9.

As one litigation consultant explained:
Matthew Hutson, “Unnatural Selection,” 95.

One of the first and most prominent:
Caroline B. Crocker and Margaret Bull Kovera, “Systematic Jury Selection,” in
Handbook of Trial Consulting
, eds. Richard L. Wiender and Brian H. Bornstein (New York: Springer, 2011), 25–26; J. T. Frederick, “Social Science Involvement in Voir Dire: Preliminary Data on the Effectiveness of ‘Scientific Jury Selection,' ”
Behavioral Sciences and Law
2 (1984): 375–94.

Little claimed that the guard had:
Neil J. Kressel and Dorit F. Kressel,
Stack and Sway: The New Science of Jury Consulting
(Cambridge, MA: Westview Press, 2002): 62–63.

A group of scientists led by:
Kressel and Kressel,
Stack and Sway
, 62–63.

In addition, the team collected:
The scientists identified other factors, as well, that correlated with a pro-prosecution disposition. Kressel and Kressel,
Stack and Sway
, 62–63;
Crocker and Kovera,
Systematic Jury Selection
, 25–26; Frederick,
Social Science Involvement
, 375–94.

Although the trial dragged on:
Kressel and Kressel,
Stack and Sway
, 62–63.

Some critics now question:
Kressel and Kressel,
Stack and Sway
, 82–83.

It is still standard practice:
Lieberman, “The Utility of Scientific Jury Selection,” 49.

Actual jurors are generally scored:
Hutson, “Unnatural Selection,” 93; Kate Early, “The Impact of Pretrial Publicity on an Indigent Capital Defendant's Due Process Right to a Jury Consultant,”
Roger Williams University Law Review
16 (2011): 694–95. Although they are not always permitted, in the search for deeper insight into potential jurors, questionnaires can sometimes push past a hundred questions: the one in O.J. Simpson's trial had some three hundred questions or, put differently, roughly 50 percent more questions than on the Multistate Bar Exam that Simpson's lawyers had to pass in order to practice law. Hutson, “Unnatural Selection,” 93; National Conference of Bar Examiners, “The Multistate Bar Examination (MBE),”
http://www.ncbex.org/​about-​ncbe-exams/mbe/
.