University of Haifa - Faculty of Law; University of Oxford - Faculty of Law
University of Haifa
September 1, 2009
Law and Contemporary Problems, Vol. 73, 2011
5th Annual Conference on Empirical Legal Studies Paper
“Stealing Sunshine” is a trial advocacy technique whereby an attorney discloses, in the opening statement or on direct examination of a witness, information that seems advantageous to the opponent’s case, before the latter elicits or reveals it, in order to mitigate its expected impact on fact-finders. Our study is the first to examine the efficacy of this tactic, both theoretically and empirically. Given the primacy of our work, we drew on existing literature on a related courtroom technique commonly known as “stealing thunder,” which is - in a sense - the mirror image of the tactic under scrutiny. We hypothesized that stealing sunshine, just like stealing thunder, would be helpful to a litigant’s case.
We experimentally tested the efficacy of the tactic when used by the prosecution in a criminal case. The results support our hypothesis. We found, inter alia, that fact-finders’ assessments of the measure of guilt and of the appropriate level of punishment in the Stealing Sunshine condition (where the prosecutor revealed positive information about the defendant) were significantly higher than in the Sunshine condition (where the defendant revealed the same information about himself). The difference between the two conditions with respect to the ultimate verdict (namely the dichotomous variable: guilty/not guilty) was statistically insignificant, yet consistent with our hypothesis.
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Date posted: May 21, 2010 ; Last revised: October 2, 2010
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