Category: Trial

  • “Yes” Sets, Compliance Sets, and Cross-Examination

    A compliance set is a series of instructions (three will do) that you give to your hypnosis subject to establish his physical compliance with your commands. They don’t have to be fancy, but they have to be things that your subject will do: “Put your feet flat on the floor [he’s already doing it]. Rest […]

  • The Wrong Place for Common Sense

    These many cognitive biases we all have—confirmation bias, fundamental attribution bias, and so forth—were once our friends. They helped our species reach the top of the food chain by allowing us to make snap judgments that, at the time, were right often enough to justify how often they were wrong. But “at the time” was […]

  • Theory: Direct or Indirect Criminal Trial Advocacy

    In hypnosis, there are two basic styles of inducing trance: the direct, or “authoritarian” style, and the indirect, or “Ericksonian” (named after Milton Erickson) style. The direct: “Close your eyes.” The indirect: “You might find yourself wondering whether you can go into trance, and thinking about your doubts you might discover a time when you could […]

  • Attention, Rapport, and Loops

    There are three subjects that I’ve been giving a great deal of thought to lately, and I’d like to summarize them and tentatively tie them together in the context of trial here. Attention, Rapport, and Loop Theory. Attention I wrote about attention here. Attention is your one resource. If you are not yet aware of […]

  • Meditations

    I had a jury trial in Midland County last week. ((Not guilty, thank you very much.)) The jury panel was very authoritarian — the prosecutor asked a Likert-Scaled (Strongly Agree — Agree — Disagree — Strongly Disagree) question: “Better that 100 guilty people go free than that one innocent person be punished?” Almost every member […]

  • Empathy and Cross-Examination

    I recently had an opportunity to cross-examine a heroin-addict witness who claimed that he had watched my client inject another person with heroin, and then had injected himself. The State’s theory was delivery by injection. The witness denied having participated in the alleged delivery—a crucial point because of Texas’s Accomplice-Witness Rule. My client hadn’t injected […]

  • Trick Questions

    It doesn't matter who asks them—defense lawyers, prosecutors, cops—or whom they are asked—witnesses, the jurors themselves, defendants—jurors don't like trick questions. Getting caught asking a trick question lessens the questioner's credibility. Here's a trick question that cops sometimes ask people suspected of DWI: "On a scale of zero to ten, how intoxicated would you say […]

  • Mark’s Typical Trial Schedule

    (In lieu of the more complete trial journal that I should have been keeping for the last eight weekdays.) 0530: Get up. Prepare for trial. 0620: Breakfast, shower, shave, get dressed, etc. 0725: Leave for courthouse. 0800: Arrive in courtroom. Meditate. 0830: Trial begins. 0930: 1-hour break for court to handle court business. Small snack—half […]

  • Small Step Toward Scientific Jury Selection

    Some numbers, perhaps of interest to nobody but me: Panel average -0.15 Struck for cause average 0 Struck by defense average -0.02 Jurors sworn average -0.20 Struck by State average -0.69 Numbers are a measure of authoritarianism/egalitarianism based on scaled answers to eight questions, chosen unscientifically—according to how interesting they were to me. Lower numbers […]

  • Reptiles Revisited: Lizards Don’t Label [updated]

    It turns out that insurance defense lawyers are putting at least some effort into finding new ways to try cases. They have a magazine, For the Defense, and an associated blog (sadly uncommented-on). Kathy Cochran, writing on the blog, takes note of David Ball and Don Keenan’s Reptile: This book posits that jurors must be […]