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Archive for March, 2012

“Glasses can’t hide neck tattoos”

Friday, March 30, 2012
posted by Rita Handrich

It’s been more than a year since we first wrote about the “nerd defense”. Essentially, this is the practice of sticking eyeglasses on your allegedly dangerous defendant to communicate their innocence to members of the jury. But now, the Washington Post has finally picked up the practice and we thought we’d mention it again.

Here’s how the Post describes the evolving use of the “nerd defense”.

“Attorneys say inmates trade them before hearings, while friends and family sometimes deliver them during jailhouse visits. Some lawyers even supply them themselves.

They often escape notice — as was the case with another murder defendant who wore glasses with thick, black frames during a summer murder trial. Convicted of first-degree murder in August, his glasses never came up in court.

But the eyewear sported during the trial of Carter and his friends, which began its fifth week in D.C. Superior Court on Tuesday, has attracted attention. Court observers say prosecutors seized an opportunity to suggest to jurors that the defendants were dishonest in misrepresenting their appearance.”

Some would say this is simply another example of defendants cleaning up prior to court appearances–they come in dressed in suits and with haircuts–why not eyeglasses? Others say it is going too far–like the furor over the court order to pay for makeup to cover a defendant’s racist face and neck tattoos in Florida.

But there is a flaw in the strategy that is pretty odd to overlook.  The entire premise of the ‘nerd defense’ is based on a distortion of the original research (cited below). The research suggests that jurors perceive the glasses-wearer as being smarter and less threatening, but it isn’t likely to have a significant affect on the verdict.  When we initially blogged about the study, it was this misunderstanding that we found most interesting.

“Our line of research suggests that the presence of eyeglasses on a defendant may significantly affect verdict outcome. However, this effect is likely to be small and indirect. In both scenarios, the presence of eyeglasses increased ratings of defendants’ intelligence. For the violent crime scenario, this increase was associated with less guilty verdicts. Eyeglasses also decreased ratings of defendants’ as threatening; however, this decrease was not significantly related to verdict. Thus, how intelligent a defendant appeared was a better predictor of verdict outcome than how physically threatening he appeared. Future research should examine if other indicators of intelligence (level of education, vocabulary, etc.) produce the similar effects.” See the full article here.

In other words, the glasses had a small pro-defense effect. No get-out-of-jail-free magic. Yet, trial lore spreads and criminal defense lawyers have defendants in eyewear for court proceedings.

We don’t think jurors are that easily fooled. Instead, we concur with the commenter on the Washington Post article from whom we stole the title of this blog post: “Glasses can’t hide neck tattoos”! [They can’t hide character, either.]

Brown, M. J., Henriquez, E., & Groscup, J. (2008). The effects of eyeglasses and race on juror decisions involving a violent crime. American Journal of Forensic Psychology , 26 (2), 25-43

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The new issue of The Jury Expert is up!

Wednesday, March 28, 2012
posted by Douglas Keene

It’s been a while since we touted The Jury Expert here. It’s a terrific publication for learning of the latest in litigation advocacy. Keene Trial has been instrumental in the rebirth of The Jury Expert with Rita Handrich serving as Editor since the online debut in May, 2008.

Articles in The Jury Expert are written by ASTC-member trial consultants and researchers working in areas relevant to courtroom persuasion and advocacy. So, in one place, you get the latest in research, practice applications, and strategies to inform your work. And, did we mention it’s free and presented as a service to the litigation community by the American Society of Trial Consultants? You’ll want to bookmark the site (if we say so ourselves)! Just think of it as our gift to you…

Here is the latest Table of Contents for the issue publishing yesterday.

Intellectual Property Cases: Ten Lessons From Pre-Trial Research

by Ellen Brickman and Julie Blackman of DOAR Consulting

Ten lessons learned from mock jurors participating in pre-trial research on intellectual property cases. 

Principles in Persuasion: Beyond Characteristics of the Speaker

by Brad Bradshaw of Bradshaw Litigation Counseling

What do you need to know about persuasion? The author of a recent book on persuasion summarizes the research so you know what to do now. 

The Art of Rehearsing for the Courtroom

by Suann Ingle and Nancy Geenen of Suann Ingle Communications

Does it matter if you actually rehearse for mock trials? The answer is yes and these two consultants tell you why as well as the all-important ‘how’.

Vocal Pitch in the Courtroom

by Jessica Boyle and Stanley Brodsky of the University of Alabama

High voice, low voice, male voice, female voice? What the research says about your vocal pitch and persuasion in the courtroom. 

Road Warrior Tips (March, 2012)

Submitted by various ASTC frequent flyers

Do you know what the nastiest, germiest thing in your hotel room is? Think again. And learn how to avoid taking bedbugs around the country with you! These two tips and much more more in this growing category. 

Harming Children: Uncovering and Overcoming Bias When Defending Sex Crimes Against Children

by Beth Bochnak of NJP Litigation Counseling (formerly the National Jury Project)

In our last issue we focused on ‘sensitive topics’ and approaching them successfully. Here’s another one: an SJQ (and the rationale for various questions) for defending those accused of sex crimes against children. 

A Big Book Filled With Big Ideas

by Steve Perkel of Archer & Greiner, PC

A review of Daniel Kahneman’s (500 page!) tome Thinking, Fast and Slow. What can we learn from this book to inform litigation advocacy. Steve says “a lot” but we have to give it time to percolate. 

Weird Science: How Misperceptions of Litigation Consulting Can Drive Juror Cynicism

by Ken Broda-Bahm of Persuasion Strategies

You probably saw the “Why does everyone hate jury duty?” ‘surveys’ floating around the web. A trial consultant takes a look at the original article questioning our system and ponders how cynicism plays a role in the responses. 

Irises, Tulips, Last Minute Scrambles & Gratitude

from Rita Handrich, Editor of The Jury Expert

Usually we keep this stuff from you. This issue though, a behind-the-scenes look at what members of the ASTC (American Society of Trial Consultants) are really like. Famous old saying: “Character will out”. 

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So you may have read about the life-long curse of an unpopular first name. But there’s more. Before you run off to change your first name, you may want to consider your last name as well!

I’ve always liked my last name. It’s unusual and it’s phonetic. Hand. Rich. Simple. I never understood why people mangled it so much. Hendricks. Handrick. Handridge. By the time I completed my Ph.D., I knew I would rarely be Dr. Handrich. Instead, I went by Rita. When I worked in an environment where it was unseemly to be called by your first name, the residents of that facility gratefully called me “Dr. H”.

So seeing this research on how much more people like ‘simple’ and common names doesn’t seem particularly novel to me but then my last name is simple compared to the exemplar used by the researchers: Colquhoun.

We’ve talked about how women with masculine-ish sounding first names [like Jim] are more likely to become judges. But there is a whole lot more. Your first name portends both your income and educational level. Boys with girls’ names are more likely to be suspended from school. (But Johnny Cash told us that one long ago.) The popularity of your first name also predicts whether you will be a juvenile delinquent! Surely that is enough. Well, guess what. The simpler your last name, the more likely you are to advance in a law firm! Seriously? Let’s back up a bit and go through the research.

This research is based on the literature on processing fluency. In short, the same body of research that talks about why we don’t like to listen to people with accents speak English. It’s simply too much work. Researchers conducted five separate experiments to look at the effect of an easy to pronounce last name.

Experiment 1 found that people with easy to pronounce last names were seen as more likable.

Experiment 2 found that political candidates on ballots were more popular when they had easy to pronounce last names.

Experiment 3 found that when political candidates names were embedded in a newspaper story about a local election, the candidate with the easier to pronounce last name was deemed “more suitable” for the position than those with harder to pronounce last names.

Experiment 4 found that when participants rated both in group (a citizen of their own country) and out group (a citizen from another country) surnames, they found the easier to pronounce surname more “likable”.

Experiment 5 gathered a list of 500 US lawyers first and last names from law firm websites.

“To sample randomly but widely, we extracted 50 names from each of ten firms that varied in size from the largest US firm to the 178th largest US firm (using the website: http://www.ilrg.com/nlj250).”

The names were then rated by undergraduate research participants for ease of pronunciation and foreignness. The researchers determined that attorneys with foreign sounding names had likely been employed for shorter periods of time and thus only ran comparisons on those with Anglo-American sounding surnames. You know what they found. The easier to pronounce names were of those lawyers occupying superior positions in company hierarchies.

Wow. This takes that first-impression effect and ramps it up a few notches. All the witness preparation in the world can’t change the impact of your surname. Or can it? We would argue it can. You can diminish the impact of an unusual last name by simply asking the witness about pronunciation and offering a self-deprecating apology for inquiring. Share their understandable difficulty. The witness can then (charmingly) explain the pronunciation of their last name and offer a simplified version for use in court. (“If you prefer, you can simply call me Dr. C.”) If opposing counsel persists in struggling (genuinely or not) with the witness’ surname regardless of the encouragement to use the simpler version, the witness can make eye contact and smile at jurors and the damage is likely reversed. After all, making something difficult when an easy solution is offered starts to sound rude.

The most important thing is that jurors see someone being “different” as unimportant to them while they struggle with issues that really do matter. Jurors only ask that your client or witness communicates with them in a respectful, clear and comprehensible fashion. That’s a lot more important than a difficult to pronounce last name.

And by the way. It’s Hand-rich. But you can call me Rita.

Laham, S., Koval, P., & Alter, A. (2012). The name-pronunciation effect: Why people like Mr. Smith more than Mr. Colquhoun. Journal of Experimental Social Psychology, 48 (3), 752-756 DOI: 10.1016/j.jesp.2011.12.002

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We’ve written a lot about racial bias and how it effects all of us. This research is a little scary in highlighting how simple it is for well-meaning ‘interventions’ to result in negative impact for ethnic minorities.

Most of us are familiar with the idea of “color-blindness” when it comes to varying racial groups. Many of us were taught as children that it was more polite to simply not notice the race, ethnicity, and even the skin color of those we encountered.

What does it mean to be “color-blind” when it comes to ethnicity?

Colorblindness is the racial ideology that posits the best way to end discrimination is by treating individuals as equally as possible, without regard to race, culture, or ethnicity.” 

The authors point out that in, for example, employment settings, the more a multicultural ideology is endorsed by White employees, the more engaged ethnic minority coworkers are in the work itself. So these researchers wondered what effect it would have on ethnic minorities to have Whites primed with colorblindness (versus multiculturalism).

Research participants were female and worked in dyads. They were previously not acquainted with their research partner. The sample included 31 White/White dyads, 25 White/Asian dyads and 23 White/Black dyads. Each of them read news editorials that endorsed colorblindness, multiculturalism or the importance of eating locally grown food (the control condition).

In the interracial dyads (White/Asian or White/Black), White participants read either the multicultural or colorblind editorial while ethnic minorities read the control editorial on locally grown food. In the White/White dyads, participants were randomly assigned to read any of the three editorials.

After reading the editorials, there followed a five minute discussion [this is important–it was only a five minute discussion!] within the dyad on either modern racism or ethnic diversity in schools–and thereafter, each participant went to a separate room to complete a computerized measure of cognitive performance. [Performance on the cognitive tests is significantly affected by emotional states. If a person is upset, distracted, or stressed, performance is expected to be lower.]

The results are disturbing. The important variable was the computerized measure of cognitive performance.

In White/White dyads, there was no difference in level of cognitive performance between the partners.

In both the White/Asian and White/Black racial dyads, the Asian and Black participants were more cognitively depleted after interacting with a White partner primed with the color-blind editorial than they were after interacting with a White partner primed with the multicultural editorial.

Overall, the effect of either the colorblind or the multicultural primes were not different for White participants but differed significantly (and detrimentally) for the ethnic minorities.

Further, judges (who were not informed as to whether a White research participant had been exposed to the color-blind or multicultural editorial) viewed the five minute videotaped discussions and rated the color-blind White participants as communicating in a more racist fashion than the multicultural White participants. When tested, the level of the ratings on color-blind White participants prejudicial statements was related to the level of cognitive depletion experienced by the minority partner.

The researchers say that for short-term interactions, an exposure to the color-blind content among Whites negatively effects the cognitive function of the ethnic minority. We would go a bit further. In our experience, when race is salient (as it was in these dyadic discussions) really strange and volatile things can happen in deliberating groups. We’ve had to intervene between combative jurors when offense was taken (and given). We’ve worked our mock jurors through tears and frustrations and un-politically correct tirades. Do we think our minority jurors were cognitively depleted by those experiences? You bet.

Do we work to combat those experiences so they don’t happen in the actual jury room? You bet we do. This is a terrific research example of why it’s so important to connect your jurors to parties or witnesses via what we think of as universal values. Even if “they” look different than me, we share values of family, community, education, work, and more. The goal is not to make your jurors color-blind but to expand their view of how they may be different and yet the same from the “different” other. “Colorblind” doesn’t work any better than “separate but equal”. Silence doesn’t work. “Be fair” doesn’t work.  It requires building a connection between people through values, priorities, commonalities, and the stories of everyday life.

That’s how you prime your jurors to be multicultural in the courtroom. And more importantly, that’s how you prime your jurors to remember to be multicultural during deliberations.

Holoien, D., & Shelton, J. (2012). You deplete me: The cognitive costs of colorblindness on ethnic minorities Journal of Experimental Social Psychology, 48 (2), 562-565 DOI: 10.1016/j.jesp.2011.09.010

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It’s been almost a year since we first wrote about female stalkers. That was research with a US sample. Now we see some new research out of Sweden and Australia with some interesting similarities and contrasts.

This new research provides a terrific reference list of prior work done on women stalkers and reports a high rate of psychosis among women stalkers. Delusions are the most common symptom in two of the three major studies completed so far. Half of the women stalkers described in prior research had character disorders and women were more likely than men to target a former professional contact (like mental health professionals, teachers or lawyers!). It appears that male stalkers are less particular, and more likely to target strangers. Women stalkers seek intimacy.

Researchers in the current study wanted to see if they could identify predictors of violence in female stalkers. They gathered a sample of 71 female [50 from Sweden] and 479 male [289 from Sweden] stalkers from both Sweden and Australia. Women accounted for about 9% of stalkers in both countries. This paper is full of important information and we are going to summarize for brevity.

There were no significant differences between the Swedish and Australian samples with regard to target gender, age, or how long they stalked their targets.

Female stalkers were, on average, 37.4 years of age (not that different than male stalkers at 37.7 years).

Females were less likely to have a criminal history (28%) than were males (63%) but they were equally likely to have a restraining order concerning their current target (28% versus 35%, respectively).

Mental disorders were prevalent (women, 84%; men, 79%) with women more likely diagnosed with personality disorder (71% versus 57%) and borderline personality disorder being most common among the women (33%). Men and women were equally likely to be diagnosed with Axis I mental disorders (such as depression, anxiety, bipolar disorder or substance use) but women stalkers were slightly (but not significantly) more likely to be psychotic (38% to 20%).

Women more often targeted someone known to them (94%). Women were more likely to stalk professional contacts (13% vs 5%); friends/family members (13% vs 5%); or neighbors (14% vs 5%). Men were more likely to target an ex-intimate partner (60% vs 40%); or strangers (17% vs 6%). Women were also more likely to engage in same-gender stalking (50% vs 13%).

More than half of the women stalkers (52%) were classified as “rejected stalkers” where the stalking arose after the breakdown of an intimate relationship. One-third (36%) were classified as “resentful stalkers” where the stalking was an effort to punish the victim for a perceived slight or mistreatment. Another group (9%) were “intimacy seekers” who wished to establish a “loving and intimate” relationship with the victim.

Female stalkers were more likely to communicate via email, letter or fax and less likely than male stalkers to physically follow their target.

Female stalkers in this research stalked for a duration of between one week and 11 years (!) with a median stalking time of 31 weeks. Men, on the other hand, stalked between 1 week and 20 years (!) with a median of 21 weeks.

There was no difference in frequency of violence among female (23%) stalkers and male stalkers (31%).

Women’s violent behavior ranged from slapping and pushing to serious assaults.

Violent female stalkers were more likely to be abusing substances, to be a former sexual intimate and to have a “rejected” motivation for the stalking.

Women stalkers who were “resentful” were much less likely to be violent and violence, in general, was related to following or accosting the victim.

Both male and female stalkers were significantly more likely to be violent towards an opposite-gender target; women were more likely to be violent when stalking with a desire for “intimacy”.

While victims of female stalkers often report they are taken less seriously by the authorities, there is no reason for that perspective. Women stalkers are just as likely as male stalkers to be violent. If you or your client are being stalked by a female who is a former romantic partner, there is a high risk for violence–especially if you are the one who is viewed (by the stalker) as ending the relationship.

This study confirms many of the findings in the US sample we wrote about last year. Stalking, whether by a male or female, needs to be taken seriously via all remedies possible. Education about the differences (or rather the lack thereof) between male and female stalkers will be critical in convincing potential jurors of the seriousness of these threats. Addressing embarrassment or shame at being the male victim of a female stalker is also an important endeavor. There is nothing flattering or amusing about this.

Sometimes litigation advocacy challenges our beliefs about the ‘gentler’ sex. This is one of those times.

Strand, S., & McEwan, T. (2011). Violence among female stalkers Psychological Medicine, 42 (03), 545-555 DOI: 10.1017/S0033291711001498

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