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We all know the hazards of eye-witness identification. It simply isn’t reliable. Yet jurors often are strongly convinced by the testimony of the eye witness. So researchers wondered if jurors would be swayed by knowledge of ID inconsistencies on the part of the eye witness. That is, if the witness chose someone other than the defendant prior to court and then identified the defendant as the perpetrator in court–would that make a difference to jurors?

The researchers decided to assess both ID inconsistencies and the confidence of the witness [either 10% confident or 100% confident] in their identification of the perpetrator. They created eight versions of a three page mock trial summary and varied accurate or inaccurate lineup IDs as well as the witness’ confidence in their initial lineup ID decisions. All lineup IDs in the written scenarios were followed up by a second lineup ID decision in which the witness identified the suspect who was the defendant and then a third identification in court.

The researchers found that:

Jurors preferred the witness ID decision and the description of the accused to match. That helped them to see the witness as more reliable.

Jurors also preferred consistency (and accuracy) in the witness IDs over time.

When the witness was 100% confident in the initial ID, jurors were likely to see the ID as more reliable.

However, mock jurors did NOT render more guilty verdicts or rate the defendant ‘more guilty’ when the witness provided consistent IDs and expressed high confidence.

So, the research participants liked consistency of IDs in theory and they liked the confident witness. But it didn’t make a difference in their guilty verdicts. When questioned afterwards, they were unable to identify what factors/evidence contributed to their verdict.

That’s scary. And frankly, we are not clear about whether this would happen on a real jury where the stakes are more real. In our mock juries, when jurors are deliberating, someone always raises the question of inconsistency in identification (if there is any) and they talk about the confidence/certainty of the witness. Sometimes that conversation goes “she was very confident but obviously wrong” and other times it is “he wasn’t certain initially but the description matched and in court he was more confident”. There is a synergy in group discussion/deliberation that is simply missing when single research participants complete their questionnaires in isolation.

Those of us who have been in trial know it is a path fraught with contradiction and mystery and sadly, not an entirely predictable route to verdict. Using pretrial research to identify (and fill) holes in your case narrative, identify the challenges to witness credibility, and see which jurors respond more positively to your case is of critical importance.

Pozzulo, JD, & O’Neill, MC (2011). Juror decision making when a witness makes multiple identification decisions. Journal of Applied Social Psychology.

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My [newly turned] 18-year-old daughter loves this phrase. She loves many such phrases and I have learned to become non-reactive over the [eighteen] years I have known her. So as I read the title of this article, I grinned as I thought of my newly adult youngest child. Herein lie lessons for trial lawyers attempting to emotionally reach jurors (as well as parents of young adults everywhere).

Courtroom communication requires telling a story that will resonate with jurors and lead them to support your view of the case, client, and facts. In service of those efforts, we often attempt to elicit the empathy of jurors for our own client and situation.

Some jurors see this as ‘spin’ or ‘manipulation’ and resent it. Other times, attempts to use empathy can backfire if jurors are threatened by the random nature of the situation and the injuries to the plaintiff.

Researchers wanted to figure out if eliciting empathy resulted in motivation resulting from internal variables (like altruism) or a motivation based on external pressures. Their belief is that the type of motivation [i.e., internal or external] is related to the persistence and frequency of the helping behavior. First, they elicited empathy to examine how the ‘state’ (a fleeting condition) of feeling empathy would be related to willingness to help another person.

They found that using empathy to elicit helping behavior resulted in more internal desire to be helpful. Then they looked at whether a personal tendency to be empathic toward others would result in a greater desire to help. They found this to be true as well. In other words, those inclined to be thoughtful of others also tend to be helpful to them.

So they did one more study to see if participants who were instructed to emotionally involve themselves in the story of a depressed woman (“vividly imagine how this would be”) would be more willing to help her than those told to be “as objective as possible” and to avoid “getting caught up in imagining what this person has been through”.

These are interesting instructions as they are akin to directives many jurors will hear in personal injury cases (depending on what side is talking to them). The findings from the third study were consistent with the earlier studies: when participants ‘empathy was activated, they were more internally motivated to offer aid.

It may be part of why one of our favorite litigation strategies works so well. It elicits empathy with no judgment attached. It simply asks every individual on the jury to access their best self. Indirectly, it challenges them to take the perspective of the injured other, elicits their empathy and activates their internal desire to make things right.

Pavey, L., Greitemeyer, T., & Sparks, P. (2012). “I help because I want to, not because you tell me to”: Empathy increases autonomously motivated helping. Personality and Social Psychology Bulletin

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Not only are ‘Pollyanna’ type people good lie detectors they are also good-hearted people in general. They “value relationships, prosocial behavior and smooth interpersonal interactions”. What wonderful jurors! Maybe. And maybe not.

Imagine that your case involves allegations of conduct that Plaintiff or Prosecutor feels is an assault on social values.  Behavior that Pollyanna would never engage in, and perhaps never even imagine.  Will they be optimistic and think the best of the person, or will they act with punitive vigor (even though that suggests negative thinking)?

According to the research, Pollyanna’s experience more distress about relational transgressions. Curious researchers wondered how that heightened reactivity might translate in the Pollyanna’s perception of communal behaviors [positive] and communal transgressions [negative]. Contrary to popular belief that Pollyanna’s see the best in everyone, the researchers hypothesized that Pollyanna’s would tend toward extremes–judging communal behaviors more positively and communal transgressions more negatively.

They were right. Although participants (across four different studies) were likely to view transgressions negatively, highly agreeable participants (the Pollyanna’s) were more likely than others to judge those behaviors negatively. What is intriguing is that the Pollyanna’s were more harsh when the negative behaviors were related to group or individual relationships. There were caveats:

Pollyanna’s only showed a negativity effect when they could clearly and unambiguously identify the transgression as relational/communal.

There had to be little incentive for the Pollyanna to “regulate away” (i.e., repress, deny, forget) an initially negative evaluation. Why? The researchers also discuss the “tension within the agreeable perceiver”. Essentially, Pollyanna’s are often in a bind because they have “private negative judgments that they cannot or will not express publicly (or would feel guilt for expressing)”. To compensate for this anxiety about public censure, researchers ensured that the Pollyanna’s could privately express their judgments.]

It’s an intriguing study for litigation advocacy. The Pollyanna will judge positive and negative behaviors more harshly and yet, may be averse to sharing those judgments publicly for fear of censure from others. (e.g., they don’t want to be seen as impolite or uncharitable in their public judgments). When you sit around a table with eleven peers where the entire goal is to express your opinion–that would be pretty threatening to a Pollyanna–at least if you think of Pollyanna traditionally (as all positivity, sunshine and light).

If, however, jurors were educated about the importance of judgment in litigation and the Pollyanna therefore saw it as a duty to be clear–even if negative–their behavior may differ. Pollyanna’s are more attuned to relational transgressions and that finding may have general relevance for the trial lawyer:

Criminal defense attorneys would likely want to avoid the Pollyanna as a juror since whether a crime against persons or a corporate malfeasance–the Pollyanna is likely to see the behavior as hurtful to someone and therefore want to punish.

Civil defense attorneys will want to be careful with the Pollyanna juror as well. If there is a way to see the case narrative as a transgression (and most likely there will be), the Pollyanna juror will react more negatively than other jurors.

Plaintiff attorneys may welcome the Pollyanna if the case themes involve harm to social fabric or relationships among the wronged parties. When the claim of Plaintiff is that they have been wronged, the wrong had better extend beyond their own personal and selfish interest. If a case narrative is well-told (and especially if the plaintiff has behaved positively toward others and still been transgressed against), the Pollyanna will be more inclined to embrace the plaintiff view.

It’s certainly an area well worth considering examining in pretrial research and voir dire. The Pollyanna may well be hiding within an exterior that looks like a leader and is highly persuasive. The balance could be in this person’s gentle hands.

Kammrath, L., & Scholer, A. (2011). The Pollyanna Myth: How Highly Agreeable People Judge Positive and Negative Relational Acts Personality and Social Psychology Bulletin, 37 (9), 1172-1184 DOI: 10.1177/0146167211407641

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Liberals probably did this research. And we’re surprised it hasn’t hit the media in a big way. We have written about research saying conservatives are more driven by fear than are liberals and how liberals and conservatives simply ‘see’ the world differently. So far, though, we haven’t written about which group is smarter.

Researchers from friendly Canada remind us that children with low intelligence are more likely to hold biased/prejudiced attitudes as adults. They also advise us that lower-intelligence adults tend to prefer socially conservative ideas. As curious folks [and we assume, unafraid to upset anyone], they wanted to examine the relationships between intelligence, political ideology and racism.

So they assessed both verbal and nonverbal intelligence and then measured social conservatism and racism. [It should be noted the validity of instruments purporting to measure all three of these constructs (quick measures of intelligence, conservatism, and racism) are, by themselves, of questionable validity according to some reviewers.]

Social conservatism was measured by agreement with a list of statements including “Family life suffers if mum is working full-time” and “Schools should teach children to obey authority”.

Attitudes toward other races were assessed by measuring response to statements such as “I wouldn’t mind working with people from other races” or “I wouldn’t mind if a family of a different race moved next door”. [This would measure overt racism and not the more covert sort we’ve written about repeatedly on this blog.]

They found, as expected, that lower levels of intelligence were correlated with higher levels of racism. But the link between the two (intellect and prejudice) was largely explained by political ideology. That is, conservatives were both lower in intelligence and higher in racism than were liberals. Conservatives were also less likely to have relationships with or simple exposure to people of other races.

The researchers then conducted a study of American undergraduates and found the same relationship when looking at attitudes toward homosexuals. Conservatives were less intelligent, more prejudiced/biased against homosexuality and less likely to have contact with homosexuals than were liberals.

The researchers suggest that conservative ideologies offer structure and a roadmap to attitudes for the less intellectually gifted. They offer the suggestion that it may be too mentally taxing for some conservatives to consider taking on the personal perspective of someone very different from them. (This is a long-held strategy for increasing empathy and thus lowering bias.) They also say that not all conservatives are prejudiced, stupid or isolated from those ‘different’ than themselves [how liberal of them!]–just as all liberals are not brilliant, bias-free, or surrounded by those ‘different’ than themselves. They describe their findings as “the averages” from large groups of people of both orientations.

It is a very controversial finding indeed and perusal of the comments section in one on-line discussion forum finds liberals and conservatives arguing for and against the findings of this research.

From a litigation advocacy perspective, we recommend against assuming political ideation predicts intellectual level or bias. Our recommendation is partly due to it being an offensive presumption, and partly because in small samples (such as a jury venire) the individual differences are bigger than almost any demographic characteristic. Political ideation is not predictive of intellectual level or prejudice–it is simply correlated or related–and we don’t know exactly how. So we would recommend the following:

Look at how liberal/conservative orientation, education (as a stand-in for IQ), and measures of prejudice interact with your specific case facts.  Ask yourself how much abstract reasoning or complex analysis of the facts are required for understanding.  Ask yourself how, if your client is a social minority (ethnic, sexual preference, or other) you can help them to appear more ‘relatable’ to the jury. If any of those variables are related to ultimate decision-making in pretrial research, use that.

Avoid assuming how different people will react to your case based on stereotypes. It is generally a waste of time to try to imagine the impact of stereotypes, but that doesn’t stop a lot of us from believing that (for example) women are good for the plaintiff or minorities are bad for the defense.

The researchers in this study mention that we might do better to intervene at the emotional level rather than the thinking level when dealing with people of lower intelligence. We would say prepare your case to address both thinking and feeling.

Finally, a variable we always pay attention to when examining potential jurors is with regard to who has leadership ability and who will be influential in deliberations. What we see over and over again is that leaders tend to be articulate and persuasive and those who are neither bright nor persuasive tend to be followers. When we have a mix of both on a jury (whether liberal or conservative) we see the brighter and more persuasive jurors leading the deliberations. And that’s what matters most.

Hodson, G., & Busseri, M. (2012). Bright Minds and Dark Attitudes: Lower Cognitive Ability Predicts Greater Prejudice Through Right-Wing Ideology and Low Intergroup Contact Psychological Science, 23 (2), 187-195 DOI: 10.1177/0956797611421206

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Many of us have been members of organizations led by someone we consider unethical. And we’ve seen that people tend to excuse individual behavior when we see it as something done through the charismatic [albeit negative] influence of a group leader.

Now researchers are looking at how we (as members of a group led by an unethical leader) justify our own bad behavior as acceptable since “s/he [e.g., the leader] told us to do it”. The concept is called ‘moral disengagement’ and it describes the process through which we displace our own responsibility for unethical behavior because it was ordered or condoned by someone in leadership. [Think My Lai, Abu Ghraib or Enron, for example.] We think it’s relevant for both the dynamics of juries and our own membership in varied organizations. It’s about our perspective toward what leadership is and how we either stand up for our beliefs or condone unethical behavior.

The researchers looked at various orientations toward leadership and hypothesized accordingly:

High leadership self-efficacy beliefs: These followers see themselves as being as capable as their leaders and may view leaders more as peers. They would likely have a more difficult time displacing responsibility for their own behavior onto an unethical leader.

Low leadership self-efficacy beliefs: These followers see themselves as in need of a leader who is more talented and experienced than they are themselves. They “value harmony and are nonconfrontational in their relationships with others. As followers, the combination of desiring harmony, being unwilling to confront others and having an unsophisticated view of the leader-follower relationship may cause them to be vulnerable toward displacing responsibility onto a leader”.

And they were right. Those who do not see themselves as leadership material, who are nonconfrontational and naive about leadership are more likely to displace responsibility for their actions onto others. The researchers recommend we pay attention to how we educate about leadership–and stop focusing on dividing people up into groups of leaders and non-leaders.

Why? Basically, they warn that ‘followers’ identified as ‘non-leadership material’ may see themselves as less ‘able’ than those designated as leaders. This would increase ‘followers’ being prone to excuse themselves for bad behavior performed on the order or advice of the group leader. Rather, say the researchers, we should focus on educating about the shared responsibilities of the leader and group member/follower.

We would concur. As part of orienting jurors (or new members of an organization) it is wise to educate on how the role of the follower and the role of the leader are much the same.  Challenge and empower the typical follower into embracing a stronger role. A perspective where we see our leaders (elected as presiding juror or as leader of our organizations) as sharing responsibility with us is the healthiest and most functional strategy as well as the one most likely to result in all members maintaining responsibility for their own behavior.

When you have a ‘shared orientation’ toward leadership, you do not blindly accept directives, you consider both your values and the views of leaders, and speak up if you disagree. You engage and participate. In other words, you come to resemble (by your nature or your new awareness) those classified as having “high leadership self-efficacy beliefs”.

Justice challenges this rising-up from jurors. We should expect it from ourselves within those groups with which we choose to affiliate.

HINRICHS, K., WANG, L., HINRICHS, A., & ROMERO, E. (2012). Moral Disengagement Through Displacement of Responsibility: The Role of Leadership Beliefs Journal of Applied Social Psychology, 42 (1), 62-80 DOI: 10.1111/j.1559-1816.2011.00869.x

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