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May 23, 2010

Statutory ranges, guidelines, sentencing advocacy and the power of priming

A notable new piece on legal advocacy by Kathryn Stanchi now available here on SSRN, "The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader," reminds me of what I consider to be a key failing by many in the defense bar in the aftermath of Booker. Before I turn to this failing, here is the abstract of this new priming article:

While legal advocates have long understood that first impressions can strongly influence the decision-maker’s view of their cases, so far legal scholars have not explored in any depth the growing body of research on the science of first impressions.  This article remedies that by looking at the scientific studies of a psychological phenomenon called “priming.”  These studies reveal the subtle and surprising ways in which first impressions can be shaped to the legal advocate’s advantage.

Priming is a phenomenon through which a person’s reaction to information is influenced by her exposure to prior material.  For example, priming studies show that if a person reads about golf, her first thought will tend to be “golfer” if someone later mentions Tiger Woods to her.  Her first thought is likely to be quite different if someone has previously spoken to her about marriage or adultery.  Because priming can change a person’s reaction to information by exposing her to different introductory material, it has significant implications for legal advocacy.

This article examines the major studies on priming, with the goal of showing how legal advocates can use the lessons of the studies to make more persuasive arguments.  The article also demonstrates how the psychological data on priming offers new and unique insights on how to use emotion in legal advocacy.  Throughout the article, concrete examples show how legal advocates can use the science of priming to make strategic decisions. In sum, the article represents a first, serious step in studying this powerful tool that has potential application to all facets of legal advocacy.

As the title of this post hints, I think a key failing of many in the defense bar since Booker has been the tendency to allow prosecutors to prime sentencing judges to focus on (now advisory) guideline ranges rather than to prime a focus on (still mandatory) statutory sentencing ranges.  Especially in cases in which there is no applicable mandatory minimum prison term set by statute, defense counsel could and should zero in on 3353(a)(3), which demands a focus on "the kinds of sentences available" and comes before 3353(a)(4) demands a focus on "the kinds of sentence and the sentencing range" set out in the guidelines.

May 23, 2010 at 10:09 AM | Permalink

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