ABA Journal Blawg 100!
We Participate In:
Archive for July, 2010
Secret Weapon: The Chairs in the Jury Box?
Spoiler alert! There are about to be times when you look at the furniture in a courtroom and start either grinning or feeling a sense of dread. It’s like a secret weapon of knowledge that happens to be largely luck of the draw. And we owe this knowledge to our friends who do social sciences research!
Scientific American has recently published a study summary on what is called ‘embodied cognition’. We’ve blogged about this phenomena before and think it’s a really fun fact to know about how our minds work—from the times of Jesus to Shakespeare to now.
The Scientific American study includes this thought-provoking snippet:
“And to see if other, more passively perceived surfaces could affect a person’s mindset, the researchers had volunteers pretend to negotiate the purchase price of a car while sitting in either hard or soft chairs. Those who happened to be sitting in hard chairs seemed to perceive the situation as more rigid, presenting second offers much closer to the original sticker price than those who had been seated in softer seats.”
Does that mean uncomfortable chairs compel passive acceptance? Does it mean that comfortable people are less distracted by their own distress, and are more likely to analyze information thoughtfully? And here’s what we thought.
- If the jury sits on hard chairs during the trial, might that bode well for the prosecution (in a criminal case) or the defendant in a civil trial? It sounds like the research disposes people to be less challenging of authority, even if it is adverse to your own interests.
- Conversely, if the jury sits on soft chairs, might that benefit the plaintiff in a civil trial or the defense in a criminal case? Again, it seems as if the research would have people being more comfortable, and more able to question the information being handed to them.
It’s hard to know. And, of course, you would likely want to visit the deliberations room to see if the surfaces on chairs there mirror those in the jury box in the courtroom or not. Regardless, a visit to your assigned courtroom could be instructive. Our bet is no one would know you were the one placing the cushions on the jury chairs (or removing them).
Wow. We want to tell stories like these…
“The power of anecdotes to persuade is established, but there’s a dark side to that power. Quite simply, an effective story can take over our brains to the point where we disregard more valid information: reliable statistics, the opinions of true experts, and so on.”
So begins a Neuromarketing blog post on story-telling. They warn of the ‘dark side’ of effective storytelling. And we rub our hands together and think how much fun it is when a powerful story takes shape.
We had a case a few years back with a very sympathetic plaintiff family (who had lost a child a few years earlier when he was hit by a vehicle). The current case facts had the mom in the family driving to work (she was a healthcare professional) when she was hit by a speeding and inebriated defendant and her car exploded in a fireball. The story itself was horrific enough. But imagine what everyone was thinking when we learned the driver of the car was of Middle Eastern descent: the idea that he used a motorized vehicle as a weapon with no care for loss of life.
As you likely imagine, it was a few years after the terrorist attacks of September 11, 2001. That image was the subtext to the trial story. It was powerful and jurors responded with outrage and sent a message.
More recently, we worked on a case involving a very complex and confusing contract involving a natural gas “farm-out agreement”. Pretrial research showed us that mock jurors were totally confused by the complexities of the industry, the language of the contract, and the lack of clarity as to standards of these agreements—so we changed the story.
Instead of telling the sequence of events, we focused the defense story on the profit pattern and the investors’ (aka the plaintiffs) awareness that the profits would drop precipitously shortly after a particular contract was executed. The story framed the plaintiffs as ‘investors’ in name only. Their real role was that of lawsuit filers who planned all along to sue the sellers. They were betting jurors wouldn’t be smart enough to figure out their actual intent.
Not surprisingly, jurors didn’t like that story at all. They voted to leave the plaintiff’s holding the bag on a bad investment. They wanted to send a message to the plaintiffs that they should behave more honorably in their business dealings.
We don’t always hit homeruns in storytelling. But we find that the more experience we have in differing sorts of cases, the better we get. And that’s what makes it really really fun to be involved in this work. We began with a quote from the Neuromarketing blog and we want to end with another one.
“The combination of a powerful anecdote transmitted via a trusted source, our brain’s need to find cause and effect relationships, and the difficulty in changing beliefs due to confirmation bias work together create an environment where sound science can be trumped by misinformation. This is indeed the dark side of effective anecdotes. Use this power wisely.”
And the jury says: “His brain really DID make him do it!”
We’ve been tracking the stories and research (and products for sale) in the area of neurolaw for quite a while now. Neurolaw theory (more popularly described as “my brain made me do it”) is poised to be used more and more frequently in the courtroom. And it’s getting more attention in the mainstream media. Recently NPR broadcast a series on researchers working in the neurolaw area.
They discuss the differences in the brain structures and reactivity in the brain of the psychopath. Special attention is given to the amygdala and limbic system which are under-reactive in psychopaths. The researchers say that perhaps psychopaths should be treated as those with low intellectual function (and not given the death penalty) since they have the emotional IQs of a five year old. They simply do not have the capacity to make the right choices in morally charged situations. Why, say the researchers, should we execute someone who was born with a brain abnormality? They certainly did not ask to be born that way!
Detractors say that if you understand the differences between right and wrong (which psychopaths say they do) and yet rape and kill—you are responsible. The example of the Brian Dugan case is used in the NPR series but jurors found him guilty. As in, his brain did NOT make him do it.
However, the NPR series also examines the case of Bradley Waldroup which was described as a “why done it” rather than a “who done it” case. Waldroup committed a vicious murder—hacking the best friend of his estranged wife to death and then chasing his wife with a machete and cutting her numerous times. Prior to the assault and murder, Waldroup had been drinking and reading his Bible. Waldroup never denied the murder—in fact, he freely admitted he had done it.
But his attorneys presented information on a particular variant of the MAO-A gene (also known as the warrior gene because it has been associated with violence) and said Waldroup had the high-risk version of the gene. Prosecutors said Waldroup was simply “drunk and mad” and acted violently. “After 11 hours of deliberation, the jury convicted Waldroup of voluntary manslaughter — not murder — and attempted second-degree murder.”
Jurors say the brain evidence was “only part of” their deliberation and that they believed Waldroup had simply “snapped” and it was a case of “nature versus nurture”. Waldroup’s defense attorney, Wylie Richardson, said of the successful neurolaw defense: “I would use it again” under the right circumstances. “It seemed to work in this case.”
We’ve been waiting for this defense to work with a jury. This defense seems to fly into the face of significant Daubert challenges, but evidently it survived the process in Chattanooga. And if you read about the testimony, however strange it may seem to you on first blush you will see there is a good deal of hard science involved. Let’s see what happens next!
Voir Dire Strategy: Who’s the authoritarian?
Recently, in his blog (Defending People), Mark Bennett posted about using scientific jury selection via the use of questions to assess jurors’ authoritarianism. Mark even shares the questions he used.
We happen to love this idea. We like to use pre-existing (already validated) survey research items since we have an idea of what a normal distribution of responses should look like. Mark’s idea of using the authoritarianism trait is a tried and true one. Research has long shown us that people who are authoritarian are more likely to be punitive, see the ‘law’ as a black and white standard, and condemn persons who question and/or deviate from societal norms.
The challenge in this sort of approach to jury selection (as pointed out in the comments on Mark’s blog entry) is in figuring out just how to get to the data.
- One reader suggests a pretrial questionnaire.
- And a member of the jury pool where Mark tried this strategy says she found it really interesting but wondered if she had enough time to really consider her responses.
- Mark used half his voir dire time to ask jurors these questions.
Often, you simply don’t have the time in voir dire to do this sort of interviewing/questioning but when you do, this is a good strategy if you do not have the luxury of pre-trial research. There are multiple resources you can peruse (free of charge) that may elicit additional ideas for voir dire investigation. It’s like a scavenger hunt. Below we suggest just a few:
Of Innocence and Dissonance: Reviewing the Conviction-Prone Status of Death Qualified Juries from a Cognitive Dissonance Perspective by Victoria A. Springer (2007). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992963
Our Existential Death Penalty: Judges, Jurors, and Terror Management Jeffrey L. Kirchmeier (2008). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324922
Authoritarians Have Moral Intuitions that Liberals Do Not Share: A New Look at Moral Foundations Theory. Matthew B. Kugler (2009). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1435002
On Hispanic Jurors: Religiosity and Values
As Texas-based trial consultants we see a lot of Hispanic jurors and are always intrigued by the subtle variances in values that pop up from time to time in cases. Even well-intended observers and professionals can make some important mistakes. Assumptions about “Hispanic jurors” are often simplistic and naively racist, as this is as complex a cultural group as any other. There are differences within any group from a given national origin, as well as variance between those from, for example, Mexico versus Venezuela or El Salvador.
A while back we did a focus group on a case involving salacious infidelity, strained family relations, and abortion. Hot button issues for many but we thought especially for our Hispanic jurors for whom “family values” and religion are often driving forces in decision-making on cases. We were curious to see how Hispanic jurors in particular would hear this story.
What we saw was intriguing—Hispanic jurors saw a straight-forward defendant (the party who admitted marital transgressions) and a strained and seemingly withholding plaintiff. They joined with other jurors in supporting the party they saw as honest and credible. The rest of the story fell into place around their perceptions of the witnesses. When questioned about the aspects of the case that contradicted their own values, they simply said that those facts made a sad situation worse but were irrelevant to determining verdict. He was very imperfect, but he was honest, and he loved his kids. They liked his warmth; they were put off by the frosty harshness of the Plaintiff.
Now we see some data from the blog Gene Expression that offers new insights. According to Razib Khan, the blogger at Gene Expression, we often make the assumption that since Hispanics are often Roman Catholic, they will have very conservative social views. Khan uses data from the General Social Survey to examine various religious beliefs and behaviors and compare non-Hispanic whites, blacks and Hispanics on these factors.
What he concludes is that support for the notion that Hispanics are ‘always’ more religiously conservative is spotty at best. According to Khan, Hispanics are more religious than the median American but the main issue where a noticeable difference arises is around the question of abortion. He opines that this is likely a cultural issue since many Hispanics or their families are of recent origin from nations where abortion is illegal.
We like to see data such as Khan provides to help us understand the ‘why’ of various values and behaviors. In our experience, the best attitude for us to have when taking on any new case is one of curiosity. What will jurors think of this case? Will different groups see it differently? Are there group cultural values that interact with this fact pattern or are there shared beliefs that will override general pre-existing attitudes? Curiosity leaves us open to learning. And the more open we are, the more we learn about blind spots in our cases.
Recent Comments