Brain Scans

Anne Reed brings us this post, which clearly fits into the "science" part of The Art and Science of Criminal Defense Trial Lawyering. Researchers in psychology discovered, by using an MRI tracking the brain activity of subjects reading text on a screen, that the brain spontaneously divides read text into discrete "events" in the same places that we would consciously do so (here is the article). It appears that, before this study, psychologists believed that this phenomenon, "event structure perception," was limited to visual inputs. The brain activity evidence of event structure perception in reading suggests, according to the paper, that there is a "larger system involved in the comprehension of everyday activities that may be modality independent (i.e., involved in comprehending real-world visual events as well as narrated descriptions of those events)." So what do we trial lawyers do with this? There are a lot more questions to be answered before we can know for sure (for example, how does the brain respond to events of certain durations or other patterns? how many different narrative threads can the brain keep track of at a time?), but it seems reasonable to play to our jurors' strengths by:

• Thinking about the events in the narrative we're presenting to them and by explicitly dividing the narrative into "events" where we think their brains will do the division anyway (that is, for example, "when the characters, place, or time change [or] when the characters' goals change, they start working with different objects . . . , or new causal relationships are revealed." In Anne's words, "us[e] clear transitions to break the information into the same kind of segments they will." (We do this, to an extent, when we introduce a new topic on direct or cross-examination by saying, "Now let's talk about . . ."); and
• Matching the event structure of the real-world visual events (what the jury is seeing in trial) with the event structure of the narrative we are presenting (the story we or our witnesses are telling). That is, giving visual cues of new "events" by changing what the jury is seeing (for example with physical shifts in position or changes in exhibits) at the points in the narrative at which we would expect our jurors' brains to divide the narrative and only at those points; and
• Disrupting the event structure of our adversary's narrative by making the event structure of the real-world visual events clash with the event structure of the narrative. That is, giving visual cues of new "events" only at points in the adversary's narrative at which the jurors' brains would not divide the narrative.