Omission Suspicion: Juries, Hearsay, and Attorneys
Recommended citation: Justin Sevier, Omission Suspicion: Juries, Hearsay, and Attorneys'
Strategic Choices
Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices
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1 Justin Sevier , Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices, 40 Fla. St. U. L. Rev., 2012
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FLORIDA STATE UNIVERSITY
LAW REVIEW
OMISSION SUSPICION: JURIES, HEARSAY, AND ATTORNEYS' STRATEGIC CHOICES
Justin Sevier
VOLUME 40
FALL 2012
NUMBER 1
JUSTIN SEVIER*
Attorneys understand that presenting evidence consists of a series of strategic choices.
Yet legal scholars have not studied whether jurors are sensitive to the trial strategy that
underlies those choices. Do jurors question why an attorney has omitted what jurors
consider the “best” evidence of some trial fact and has instead put forth weaker evidence? Do
they attempt to understand the motivation behind that choice, and does that affect their
legal judgments?
Six original experiments explore these questions in the context of hearsay evidence. The
experiments reveal a ubiquitous finding: Jurors carefully scrutinize a party’s strategy for
presenting hearsay, and this has a substantial impact on their verdicts. Moreover, jurors
scrutinize an attorney’s strategic decision to proffer hearsay regardless of the identity of the
legal actor, regardless of the type of case, and regardless of the type of hearsay presented.
These findings demonstrate that when evaluating hearsay evidence, jurors are attuned
to factors that the law may not appreciate. This has substantial implications for legal policy
and practice. These findings suggest a new dimension of competency with respect to how
jurors evaluate evidence. They also suggest that the normative debate over hearsay
evidence—that jurors do not think critically about it—should change. Finally, the findings
present a cautionary tale to trial practitioners who make ground-level decisions about
hearsay evidence.
* Visiting Assistant Professor, University of Illinois College of Law. Harvard Law
School, J.D. 2006; Yale University, Ph.D. Candidate (psychology) 2015; Cornell University,
B.A. (psychology) 2003. I thank Amitai Aviram, Steve Beckett, Lisa Bernstein, Kenworthey
Bilz, Joni Hersch, Bob Lawless, Larry Ribstein, Jennifer Robbennolt, Arden Rowell,
Jamelle Sharpe, Nicola Sharpe, Suja Thomas, Kip Viscusi, Lesley Wexler, and the Florida
State University Law Review for their helpful comments and general guidance. I also
thank my University of Illinois research assistants (Daniel F. Hardin, Cassie Mulliken,
and William Pipal) for recruiting study participants, and my Yale research assistant
(Jason Kuo), for his editing work and feedback. All errors are mine.
I. INTRODUCTION
The production of weak evidence when strong is available can lead
only to the conclusion that the strong would have been adverse.
Silence then becomes evidence of the most convincing character.
– Interstate Circuit, Inc. v. United States1
The American legal system allows attorneys substantial freedom
to present their cases in the manner they deem most persuasive and
effective. The practicing attorney has several tools in her arsenal:
She may vary the type of evidence she presents, the mode through
which that evidence is presented, or even the types of witnesses she
calls. She may present either direct evidence, such as an eyewitness,
or circumstantial evidence, such as the results from forensic analysis.
She may choose to call live witnesses to testify, or she may opt to
enter into evidence writings or recordings. She may also call a mixture
of witnesses, including those who will testify only to their knowledge
of the facts of the case and others who will proffer expert testimony.
These strategic decisions are not without potential costs. For
many reasons, a party may decide to proffer weaker evidence instead
of evidence a factfinder may consider the “best” evidence of some trial
fact. For example, an attorney who is concerned that an eyewitness is
unlikely to be persuasive may, under certain circumstances, produce
1. 306 U.S. 208, 226 (1939) (citation omitted).
documentary evidence instead.2 By doing so, the attorney can convey
the same information to the factfinder without submitting the
eyewitness to potentially damaging cross-examination. But if the
factfinder would expect the witness to testify, might the attorney’s
failure to call the witness—even though the decision to do so is
permitted under the Federal Rules of Evidence—affect the factfinder’s
judgment of the persuasiveness of the attorney’s case? Might a jury
look beyond the evidence presented to it and attempt to discern an
attorney’s motivation for producing—or failing to produce—certain
witnesses? If so, does (...truncated)