You are currently browsing the The Jury Room blog archives for May, 2012.

Blog archive

We Participate In:

Archive for May, 2012

Pretrial publicity often makes it difficult to find unbiased jurors to hear the actual story you need to tell them. The George Zimmerman/Trayvon Martin case continues to make headlines. There are few neutral observers. Some believe George Zimmerman’s behavior was justifiable. Others believe Zimmerman’s behavior reflects racial profiling, stalking and outright murder. Others discuss the ways in which this case reflects either institutional racism embedded in our society or that no matter what happens, when one of the parties is African American, some will always attempt to cry “racism”. The inarguable reality is that a teenager is dead and his shooter says he acted in self-defense.

As we watched this case unfold, with more evidence (often conflicting) emerging over time, we wondered how to explain this case to information-saturated jurors and began to look at the social sciences research. We were not surprised to discover that very recent research can be used to craft case narratives for both the defense and prosecution. In our work, we often find it useful to look to the research for assistance in framing the initial case narrative. We then test those narratives with pretrial research.

When considering this case, the social science research points to at least five possible hypotheses for George Zimmerman’s decision to shoot:

  1. a heightened tendency to see Trayvon holding a gun;
  2. George feeling powerful/“larger than life” because he was holding a gun;
  3. George perceiving himself as being in a position of power;
  4. a domestic variation on the turban effect; and
  5. increased racial bias due to exposure to alcohol (not necessarily drinking it).

Overall, a disturbing picture is painted by the hypotheses suggested by research in this case. Ultimately, we craft both prosecution and defense narratives based in the research. It’s worth a read: our new article on “the hoodie effect” is now available in The Jury Expert.

Keene, Douglas L., & Handrich, Rita R. (2012). “The hoodie effect”: George, Trayvon and how it might have happened. The Jury Expert, 24 (3.)

Image

Share

We learn a lot from our mock jurors and not just about cases–but about life and about persuasion. Early this month, we were doing a pretrial research project about allegedly fraudulent billing practices that targeted poor people. We learned a very effective and yet, very quiet way of confronting racism in a deliberating group.

The mock jurors purposely reflected the diverse demographic make-up of the venue. They were various ages, incomes, and educational levels as well as a mixture of ethnicities. As the story unfolded, the mock jurors learned that the accused party only served the poor and actually targeted services to specific zip code areas. Initially there was a positive response, as it appeared that this business was interested in providing services to a segment of the community that was typically underserved. When the purported deceptive practices were described, there were heads nodding differently around the room.

That’s a good business model”, an older Caucasian woman said, “because those Mexicans will do whatever you tell them to do”. She seemed oblivious to the very bright, young Hispanic male sitting next to her and the Asian American woman sitting next to him and the middle-aged Hispanic female next to her. All of their eyes opened very wide and they made extended eye contact with a young African American male with dreadlocks sitting across the table from them. The lawyers in the observation room watched with open mouths.

When asked to explain what she meant, the woman modified her statement a bit to incorporate comments about education, lack of language proficiency and poverty. Several other Caucasian jurors around the room chimed in that poor people were more likely to fall victim to financial scams since the economy had made their lives especially tough. It became apparent that “poor” would be a code word for “Mexican” and that the group was going to talk around issues of race and bias and potentially blame the victims.

Suddenly, an older African American male grinned and said “You know, money don’t got no color–not in terms of who wants it! Not in this economy. I think any of us would be interested in a potential financial windfall if it knocked on our door or rang our cell phone.” Others grinned back and nodded in agreement and just like that, the room changed. Jurors were able to talk and disagree and eventually, (and surprisingly, given how the discussion began) they were unanimously against the predatory nature of the service provider seeking out the poor and disempowered.

We’ll call that older African American man William. He was a pleasant man who cracked jokes throughout the night but also made pointed comments about power, greed, and values. He was a pivotal member of the group. He probably would not have been the presiding juror–but his contributions were critical to moving the group from automatic biases to consideration of the evidence without skin color attached. His wisdom, candor, and humor cut through the rhetoric and made the conversation real. We liked William a lot. And we’re always thrilled to see persuasion in action–even when you don’t expect it.

Image

Share

Marketers are always trying to figure out how to distinctly describe various groups of us. This time it’s the often-studied Millennial Generation. Apparently there are six discrete types of Millennials (those aged 16 to 34) and they are not all what marketers seem to think.

Boston Consulting Group identifies the various groups of Millennials. And because they are marketing consultants, they have to give each market segment a goofy name that would embarrass any member of that segment: Hip-ennials (29%); Millennial Moms (22%); Anti-Millennials (16%); Gadget Gurus (13%); Clean and Green Millennials (10%); and the Old School Millennials (10%).

Their graphic succinctly describes these young people as separate and distinct segments within the Millennial generation.

While we understand the desire of marketers and others to categorize and thus target various groups in this huge generation, we don’t find this sort of break-down is useful for voir dire and jury selection. We’ve written a lot about generations in The Jury Expert  and we think it really makes more sense to look at attitudes, values and life experiences as they relate to your case narrative.
There are some cases for which we’ve seen young Millennial jurors emerge as respected members of a deliberating group and others in which their youth and lack of life experience leave them ill-equipped to process and/or contribute. Figuring out if your potential juror is ‘green’ may be useful and it may not. “Green” (or any other attribute) becomes more or less important based on the personality of the individual, their sense of personal power and authority, and whether there is a cohort on the jury that will allow them to feel safe if they are assertive.

So while marketers continue to parse and define subgroups of the Millennials, they are looking at different reasons for describing this group than makes sense for trial lawyers. We recommend you stay focused more on the values, beliefs and attitudes that resonate with your case and identify the jurors that won’t be good fits when it comes to hearing your story.

We’re all for debunking stereotypes (as the title of this report trumpets) but this approach simply looks like another way of sticking people in categories that aren’t useful in the courtroom.

Barton, C. Fromm, J. Egan, C. 2012 The Millennial Consumer: Debunking stereotypes. Boston Consulting Group.

Share

Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.

It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.

As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.

In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.

In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.

Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”.  [We would then encourage you to consider the bias implicit in that belief…]  But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.

As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially  loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.

Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.

Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.

Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.

Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.

Perhaps it is a combination of all those factors.

Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.

It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.

Image

Share

Contrary to the now famous New Yorker cartoon, people on the internet do know you’re a dog. Sort of. We’ve all heard of undercover police officers pretending to be children in online chat rooms as they attempt to identify pedophiles. The assumption behind this strategy is that an adult can successfully manipulate perceptions of their gender and age on the internet. That may be helpful for catching pedophiles, but as a general rule it appears likely untrue.

New research demonstrates that it is quite possible to discern the age and gender of someone posing as a child online. Researchers cite a 2007 case where an alleged pedophile identified in online sting operations said he knew all along he was talking to a middle-aged man rather than a teenage girl and so he was simply role-playing. A jury acquitted him.

For the study in today’s blog, researchers divided 46 undergraduate and graduate students ranging in age from 18 to 38 years of age into two groups with the intent to have them lie about their gender and age in internet chats with each other. One group was told to pretend to be a 13 year old girl in the internet chat of up to 30 minutes that followed. Following the chat, all participants estimated the age and gender of their unknown chat partner.

None of those pretending to be a 13 year old girl was successful in the ruse. No one even thought they were 16 years old or less. When questioned about how they determined their internet chat partner was not a young teenage girl–reasons were given that had to do with both style of communication (i.e., language used, emoticons used, syntax and colloquialisms) and content of communication (i.e., chatting about football teams, shopping or television shows).

So how, say the researchers, can covert operatives become better liars? Likely by learning the content information their gender and age would be likely to know (and reading magazines and watching TV shows those girls would watch). Even better, though researchers imagine the “middle aged men who are covert operatives” would complain, they could practice chatting with adolescent females to observe content and style first-hand. In other words, being an impostor is not a job for an amateur.

When it comes to litigation advocacy, there are likely two ways this study is potentially useful.

First, if you are actually prosecuting someone caught in an internet sting operation–this research would say it’s a good defense for them to say they knew the ‘teenage girl’ with whom they were chatting was in reality, a balding, 45 year old man. This research says we simply are pretty good at intuiting gender and age of our chat partners (or we are not very good at pretending to be what we have not been for years or even ever). Conversely, if you are attempting to prosecute pedophiles through the use of internet chat-room impostors, you might want to assess the credibility of their ‘skills’ by validating their effectiveness in a blind study, to avoid the defense that resulted in the acquittal in 2007.

Second, it reminds us of a way to teach jurors about increasing their likelihood of identifying deception. Tell them to use more than one source of information. Not only the apparent credibility of the speaker (which is often linked to likability), but what does s/he say, how does s/he say it, and does the language used seem to fit the person speaking?

Generally speaking, we are not that good at identifying deception. While we have given you some ways to identify a psychopathic killer, in general, it simply isn’t that easy. But seemingly irrelevant research, like improving covert operatives performance in internet chat rooms, can often give you ideas for helping jurors ‘see’ deception more effectively than they might on their own.

Lincoln, R., & Coyle, IR (2012). No-one knows you’re a dog on the internet: Implications for proactive police investigation of sexual offenders. Psychiatry, Psychology and Law.

Image taken by Rita Handrich

Share