When the First Amendment was ratified in the U.S. Constitution over 200 years ago, it aimed to prevent government overreach by safeguarding free speech and other individual liberties. Since then, it has been warped into the right to say whatever you want without consequences. This has coincided with a shift from using the First Amendment to protect minority viewpoints to a more conservative perspective that believes political correctness has gone too far. Since the rise of the MAGA movement in 2016, supporters have become vocal advocates of free speech, citing concerns about media bias and online censorship. But political rhetoric

In the first part of this series, I attempted to assuage our fears of what is lost by conducting jury selection virtually by identifying what we have gained from this new medium. In the second and final part of this series, I address the concern with jurors’ ability to evaluate the credibility of witnesses who testify remotely or are wearing masks (i.e., in a socially distanced courtroom), as well as to empathize with them and ensure due process (i.e., honor the presumption of innocence). Drawing again upon theory and anecdote, I demonstrate that our fears are much less palpable than originally

As pandemic restrictions start to ease up across the country, it is a good time to evaluate the way courts handled trials during the pandemic and what we can learn from that going forward.  While many trials were postponed, a small number of venues (particularly at the state and local levels) took the bold step of conducting virtual trials on civil matters during the pandemic. This experiment with virtual trials may feel like a temporary solution to what was a temporary problem. But should it be? One of the greatest concerns that attorneys, judges, and legal scholars have expressed in

By Natalie Gordon, M.A., DOAR analyst Recently, we have heard stories in the media being described as instances of “restorative justice.” But sometimes an alleged example of restorative justice will not encompass all the core principles of restorative justice, or will conflict with the principles of our criminal justice system. Some recent examples may help illustrate what restorative justice is — and is not. In October, President Donald Trump arranged a meeting at the White House for the family of Harry Dunn, a British teenager killed in a car crash in England, with the American woman who was driving the

By Natalie Gordon, M.A., DOAR analyst Imagine that your football team makes it to the Superbowl, but only because a referee made a bad call in the previous game that determined who would advance to the championship (hint: Superbowl 2019). You might have conflicted feelings: Happiness about your team, but concerns about the ease of breaching the fairness of the whole system. These concerns are the subject of an area of research on procedural justice that has implications for the courtroom. The fairness of procedures, referred to as “procedural justice,” impacts participants’ and observers’ acceptability of an outcome more than

By Natalie Gordon, M.A., DOAR analyst What makes for an effective anecdote? In health research, good anecdotes are considered an exercise in generalization: “We have generalized from the data to the anecdote; we can generalize from the anecdote about the data and generalize to other contexts and populations.”[1] Applying this to a trial setting, your party’s narrative or case theme might be viewed as the “data,” and the “other contexts and populations” might refer to your jurors and their own personal experiences. Thus, the anecdote connects your narrative to your jurors; it makes your story relatable. But anecdotes do more

By Natalie Gordon, M.A., DOAR analyst Do you want the good news or the bad news first? We are all familiar with this phrase, and when we use it, it is because we are hoping the bad news will be mitigated by the good news. In other words, we want the positive feeling from the good news to spill over and lessen the blow of the bad news. Concerns about so-called “spillover effects” abound in the legal system. As a result, trial separation (“bifurcation”) is used in cases where evidence about one decision might bias a separate, but related decision.

By Natalie Gordon, M.A., Ph.D. student, DOAR analyst When Donald Trump was elected president in 2016, many Americans asked—how did this happen?  Some attributed it to James Comey’s decision to re-open the investigation into Hillary Clinton’s e-mails just days earlier, while others looked farther back in time to Trump’s success on the Apprentice.  This investigation into what led Trump to become President exemplifies the human inclination to create causal chains when trying to understand events.  And we do this all the time, whether we’re trying to understand public events like the space shuttle disaster or the 9/11 attack, or private