ABA Journal Blawg 100!
We Participate In:
Archive for September, 2010
Simple Jury Persuasion: I’m too smart to fall for that!
Like Charlie Brown—we are more easily persuaded than we would like to believe. But social scientist researchers sure don’t make it easy on us. They keep tricking us long after we think we are so on to them. It isn’t just that gorilla video. Although I have to admit, the new one got me too! These scientists are just tricky. They can make us believe we have mental illnesses. They know how to make us crave methamphetamines. They put snakes with us in the MRI machine to measure courage! And they wonder why we are suspicious. (And afraid of an MRI.)
But all the suspicion in the world doesn’t seem to make us less susceptible to actually being gullible (and thus, fooled once again). We have a hard time believing we would be fooled by cunning researchers or advertisers. Or even tricky attorneys. We hear this in focus groups a lot. Usually, something like “that doesn’t matter to me at all—others might be persuaded by it, but not me!”
But we are affected. And here’s why. It’s called the “third-person effect” and it’s one of the most powerful persuasion strategies in existence.The research (whether from the 80s, 90s or that completed since the turn of the century) is consistent. We always think ourselves less gullible than others when, in fact, we are just as likely to be persuaded as anyone else. To make matters worse, when we don’t agree with the message, judge its source as negative, or the message isn’t directly relevant to us—the effect is even stronger. The less we think something is relevant to us or likely to effect our judgment—the more it does!
We simply under-estimate our similarity to others and therein lies the power of the third-person effect. So what can you do to put a kink in this powerful persuasive chain when you see opposing counsel using this strategy to persuade? You simply break the chain. The power is in our belief that we are not as gullible as others or that we are more analytical or cynical or bright than the rest of the audience. What you want to do is find a way to say to the jurors that we are all persuaded by these sorts of messages.
Obviously, you cannot say “you, ladies and gentlemen of the jury, are all gullible!” because each individual member will simply believe you are wrong…at least about them! What you can do instead is invite them to learn a secret. That we all think we are secretly less gullible than others, and that very belief sets us up to be fooled. Join them in their gullibility. “I truly wanted to believe…” “For the longest time I clung to the hope that X was true, but finally I had to let it go and accept the facts…”
Let them know there is a “wanting to believe” Charlie Brown in each of us.
Betrayal trauma defense: “She was too distraught to form legal intent”
Here’s a strange one. A 54-year-old woman is charged with first degree attempted murder for shooting her spouse of 30 years after he told her he had been cheating on her and wanted to end their marriage. According to reports, Sheryl J. Martin shot her husband four times with a double-barreled shotgun after he told her he had been having an affair. He was hospitalized for several days.
Bad jokes about her poor aim aside, this case has an unusual twist. Her defense attorney plans to introduce a “betrayal trauma theory defense” and explain her behavior as a result of stress and that she was simply “too distraught to form legal intent”. Betrayal trauma theory first emerged in the 1990’s to explain child sexual abuse and repressed memories. Since then, it has been used to include adults who are victims of abuse and infidelity.
Commenters on this story are suspicious (as jurors would likely be) and report that to fire four times with a double-barreled shotgun, Ms. Martin would have had to reload and they see that presence of mind as “intent”. There is also indication from a State Hospital psychologist that Ms. Martin had been abusing alcohol and marijuana and was depressed.
In our experience, unless there are powerful extenuating circumstances, jurors don’t like explanations like this for violent behavior. They tend to use a lot of life examples of how “my husband cheated on me and I never shot him”. However, there are indications that when you’ve committed a crime of passion—women are let off easier by jurors than a man under similar circumstances. The research would say that Ms. Martin’s attorney might be wise in saying she was provoked by Mr. Martin’s betrayal into behaving uncharacteristically violently. We’ll be interested to see how this one turns out.
Barristers behaving badly
It’s becoming routine to read about lawyers behaving poorly—throwing punches in the courthouse, bartering legal services for sex, submitting 185 pages of deposition bickering to a judge, or being suspended for a deposition tirade. (The reader comments on that last one are pretty funny if you like that sort of thing.)
We’ve all heard how incivility is an ever-present issue all across the country. No one is surprised (at least we don’t think so) that lawyers can be as uncivil as anyone else. But with the downturn in the economy, increasing numbers of unhappy people are being forced to stay in their jobs and we might expect to see increasing numbers of hostile encounters such as those linked to above. And, sadly, while nicer people are often elevated to positions of power, once they get there, they often lose the nice qualities that elevated them in the first place.
So what can you do? You can educate yourself and remain aware of how your mood and stress level can have impact on your interactions with others. The more cognizant you are of your own functioning, the less likely you are to take your frustrations out on others. Here are two strategies to use to manage yourself effectively in the workplace:
Be just assertive enough: Bob Sutton is a researcher and author who writes a lot about communication in the workplace and how to be a good boss. He has a piece here on maintaining a balance in how you communicate with others.
Watch what you say about others: It’s easy to let negative thoughts about others slip out when you are frustrated. However, if you want to be happy, kind-hearted and emotionally stable (and don’t we all?) it is a good thing to pay attention to what you say about others. Being nice matters. And now we know it matters to your own well-being, too.
Simple Jury Persuasion: Countering jury decision-making biases
There’s an interesting new article out by Tarika Daftary-Kapur, Rafaele Dumas and Steven Penrod on countering jury decision-making biases. They examine pre-trial publicity, jury instructions, inadmissible evidence and scientific evidence. We thought it was a good one to post highlights on for you here. If you’d like to read the entire piece, the full citation is at the end of the blog post.
Pre-trial publicity: Media-induced biases clearly exist and threaten the defendant’s right to a fair trial. The recent Supreme Court ruling on the Skilling case and the decision for no change of venue in the Elizabeth Smart kidnapping case leaves many of us puzzled. And, unfortunately, the change of venue is the most promising for cases that are publicized locally. It is also (as seen in the aforementioned cases) hard to get approved. The authors of this article review multiple areas in terms of how pretrial publicity may have impact: continuance; voir dire; judicial admonitions; trial evidence; deliberations; and change of venue.
Takeaway: The sections reviewed on research regarding various aspects of trial are useful for preparation of motions. There are some kinds of pre-trial publicity that are more damaging than others (those, for example involving murder and sexual abuse). Prepare your arguments using this terrific resource summarizing the latest research!
Jury instructions: Jurors have difficulty understanding pattern instructions. Past research has placed juror comprehension at 50% or less! While re-writing instructions has been tried (and is effective) there are concerns about the potential bias inherent in efforts to re-write. Flow-charts and decision trees, however, when used in combination with verbal instructions can be very effective.
Takeaway: You may want to consider introducing flow charts into evidence. Use a flow chart to educate the jury about how to understand the charge. Help them both see and hear the decision-making processes they should follow to implement the law.
Inadmissible evidence: What the most recent research shows is that we need to explain to juries why evidence is to be disregarded. Overall, jurors find it tough to disregard evidence they consider probative—especially if the jury instructions do not specifically tell them which evidence is to be disregarded and why. There is some evidence to indicate judges could acknowledge the biasing nature of the inadmissible evidence and ask jurors to take that into consideration and adjust their verdicts accordingly.
Takeaway: You could request jury instructions from the judge on why evidence is inadmissible and ask that it be reiterated in the jury charge as well as a statement from the judge on how the inadmissible evidence is biasing.
You may also want to consider whether it does you any good to object to certain evidence. “When evidence is ruled inadmissible, there is a significant increase in guilty verdicts as compared to when the evidence is presented uncontested.” (page 140)
Scientific evidence: It is clear jurors (and some judges) have trouble understanding scientific evidence. We need better education for both judges and jurors. Education for judges could stop faulty evidence (aka ‘junk science’) from being admitted. Better education for jurors could help them to understand which evidence is more reliable.
Takeaway: Educate yourself. Learn how accepted scientific evidence is and attempt to stop it from being admitted if there is not a solid scientific foundation. Note that the authors in this piece state we are too early in research publications to specify the exact nature of any ‘CSI effect’ and that it is premature to speculate about possible remedies.
Overall, this article has a lot to offer if you are concerned about jury decision-making biases. And if you are not concerned—you haven’t been paying enough attention.
Daftary-Kapur, T., Dumas, R. and Penrod, S.D. (2010). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15, 133-154.
Men married to rich women are more likely to cheat
Texas is a special place in oh, so many ways…
If you are rich enough and angry enough, you can demand a jury trial to end your marriage. Some issues are determined by the judge, but almost all of the evidence a judge would hear is subject to jury testimony as well. Divorces are always sad stories, but jury trials tend to make them both sad and sensational. Family disputes (over divorce, probate matters, family businesses, or who owns the snow blower) are among the least rational and most difficult to get settled. We worked on a case a few years back where the woman was the wealthier partner prior to the marriage and the man was dependent on her financially. After years of marriage and a number of children, the woman sought to end the marriage due to her husband’s adultery.
Why, jurors wondered, would he be so stupid? He had a fabulous life—vacation homes, golfing treks with his friends, all the money he could possibly want, and a wife who paid for everything. What was wrong with him?
There were issues on both sides but she had been faithful and was furious that he had not been faithful as well. Turns out he was simply doing what men do when they are financially dependent on their female partners! Men are five times more likely to cheat when they are completely dependent on their female partner’s income. Women have the opposite pattern. (Ironically, when men make much more than their female partners they are also much more likely to cheat.)
So, does this fact do you much good in a legal dispute? As in “ladies and gentleman of the jury—this is what men do”? Probably not. But it certainly can help you understand why this happens. And likely will happen in increasing numbers. The Pew Research Center published a report in January, 2010 looking at the rise in relationships where women earn more income than their male partners. According to the Pew Report, in 1970, 4% of wives earned more than their husbands and in 2007, 22% did. Perhaps it’s simply a good fact to keep on hand when your wealthy female client plans to marry. A powerful prenup may be a very good idea.
Recent Comments