Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices

56 Pages Posted: 5 Aug 2011 Last revised: 29 Sep 2013

See all articles by Justin Sevier

Justin Sevier

Florida State University - College of Law

Date Written: August 5, 2011


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.

Keywords: evidence, hearsay, trial, best evidence, jury, juries, decision making, decisionmaking, motivation, inferences, empirical, experiment, psychology

Suggested Citation

Sevier, Justin, Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices (August 5, 2011). 40 Florida State University Law Review 1, Available at SSRN: or

Justin Sevier (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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