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Archive for November, 2012

“The idea that you would confess to a murder you didn’t commit is just….just absurd!”

Mock jurors don’t like to hear about false confessions or coerced confessions. They often do not want to believe the repeated errors and, in some cases, the lies told by police or prosecutors to obtain a conviction. They know they, personally, would “never” confess to a crime they did not commit. Not even a robbery. But never a violent crime– especially not a murder! Anyone who would do that might just deserve what they get.

Doing stupid things can be very costly, and you don’t have anyone to blame but yourself.

That’s what we hear from our mock jurors anyway. And it’s supported by the research on false confessions. It’s part of why once you make a false confession, you are much more likely to be convicted of the crime. You confessed. You can’t un-ring the bell– not even in the minds of judges and investigating professionals. You must be guilty. Gotcha. And the evidence is viewed through that confession. No one is looking for reasons your confession might be false. They are simply looking for evidence to support the confession.

Just like we review litigation-relevant research for this blog, we often review the social sciences research more thoroughly for ongoing cases in which we are completing pretrial research. We know some trial consultants who say things like “I don’t write papers because I’m too busy working”. And we think that’s a shame.

For us, it is (to paraphrase Stephen Covey) all about ‘sharpening our sword’. We study anything we work on– on our own time– if we feel it will make us more effective for our clients. Since we first wrote about the research on jurors and racism more than ten years ago, it’s been clear to us that we begin projects with much more clarity and direction when we’ve reviewed the social science research relevant to the case or area of study.

And we made a decision to share that work with you. Our website contains articles we’ve written over the years on a broad variety of topics. In the past five years, we’ve been publishing our work [once the specific cases are concluded] in The Jury Expert so it goes to an even broader audience.

Here’s a page with links to multiple topics on which we’ve published in The Jury Expert. That list does not include the two most recent papers–but you can see our article on hydraulic fracking here.

Our most recent article is published in the November/December issue of The Jury Expert and is on the mystery of False Confessions. Because of the unique nature of the research and the importance of the content, we asked four professionals to offer their thoughts on the work. We are honored to have responses on the article from Saul KassinWalter Katz, Karen Franklin and Larry Barksdale. They are respectively, perhaps the best known expert on false confessions; a former criminal defense attorney turned police oversight attorney for the Office of Independent Review in the Los Angeles area; a forensic psychologist/expert witness; and a police detective with more than 4 decades of law enforcement work.

We hope you will read this article on false confessions and invite you to comment at The Jury Expert website. As in many of our past experiences, taking the time to review the research and write the article crystallized our thoughts, informed our practice, and made our feedback to client attorneys more useful, practical and relevant. We’re never “too busy working” to give specific cases in-depth attention. Make the time, get it right.

Here’s a link to the article now available in The Jury Expert: Only the Guilty Would Confess to Crimes” Understanding the mystery of false confessions.

***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***

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Top criminal defense attorneys are an intense group. They care passionately about what they do. When they blog about the work they do, the result is often emotional, passionate, and downright amazing. Jeff Gamso (a criminal defense lawyer in Toledo, Ohio) writes Gamso For the Defense blog. His writing is often beautiful as befits a former English professor.

But as befits a blog about criminal defense, the content is gritty, often depressing, usually sad, and always intensely felt. I tend to imagine him writing in a darkened room after a long day of work with a strong drink next to him and fingers pounding at the keyboard in search of relief from the strain of seeking justice for his clients. For all I know, he writes laboriously and with precision (editing as he writes) in a sun-drenched room with a large mug of steaming black coffee. I’ve never met Jeff Gamso. But I read his thoughts regularly.

In the recent past, we have been living with the false confessions literature while working on a false confessions/wrongful convictions case. I was impressed by the volume of the literature and the regularity with which it emerges. Just in the past couple of weeks, for example, NPR did a story on what happens after jurors get it wrong and Pacific Standard wrote a terrific piece called “Why can’t law enforcement admit they blow it sometimes?”.

And as I studied the literature, and then our mock juror data– all the while reading Jeff Gamso’s blog–it was clear how defense attorneys get hooked on the process. The stakes are the highest, and the implications of errors are horrible. The justice-seeking is lengthy, convoluted and often, fruitless. But it’s the right thing to do. So they do it. Very recently, Jeff wondered aloud (well, actually in text) if defense attorneys were more Sisyphus or more Don Quixote.

“It is clear, I hope, why we who toil in these trenches, who stand beside those who hear the words that will send them away or free them, those who may never see another sunset or hug a loved one, we often see ourselves as Sisyphus.  

Our job is to fight.  Our fate is to lose.  And yet, as Camus concludes,

One must imagine Sisyphus happy.

I prefer the image of Quixote, the mad knight of La Mancha.  Wrapped in his psychosis he is the romantic figure.  Not dashing and romantic.  Not capable and brilliant.  He is no Lancelot.  He hasn’t the purity of a Galahad.  

What he has is his madness.  His insistence that the world be as he wishes it, that it be a place where one such as he believes himself to be might exist, and even flourish.  He will love she he declares his Dulcinea [in case you've forgotten, she is the object of Don Quixote's affections], because that is what a knight does. He will tilt at that windmill, no matter the consequence, because that is what a knight does.

He will, of course, no more tame the world than Sisyphus will tame his rock and mountain.   But he’ll go forth to battle the windmills anyway.  Convinced, as always, that this time he will win.”

This post reminded me why I have to read Jeff Gamso. The writer, the lawyer, the philosopher, and perhaps the poet. And then, shortly after that, he wrote a post on the experience of exoneration–here’s what he said in the introduction:

“A few years ago in Cleveland.  Maybe 6 or 7 of us were walking back to the hotel after a dinner party for speakers at the seminar for capital defense lawyers.  All but one were lawyers.  The one was Ray Krone, the 100th person to be exonerated from death row. 

He’d been convicted of kidnapping, raping, and murdering Kim Ancona in 1991.  In fact, he’d been convicted of it twice. Except Ray didn’t do it. It was, instead a guy named Kenneth Phillips. Ray was wholly innocent. He’d been convicted based on junk science by an incompetent self-proclaimed forensic dentist.  And he was at the seminar to tell his story, to remind the practicing lawyers there that we were dealing with real people with real lives.  And that, at least sometimes, they were really truly factually innocent.  Ray does a lot of these speaking gigs now.  He talks to lawyers and activists and legislators.  Telling his story.  Standing up, as the organization he helped found says, as a Witness to Innocence.

Anyway, we were walking back to the hotel when some guy came up to us looking for a handout.  Maybe he had a story.  Maybe he said something about needing money to feed his family.  Maybe he just wanted cash to buy a bottle of something or some controlled substance. Maybe he just stuck out his hand at this bunch of guys walking together and talking, looking much better off than he did.  I don’t remember.

Here’s what I remember.  Most of us were set to just keep walking.  Ray reached into his pocket and gave the guy something: a five or a ten or a twenty. Whatever it was, one bill and more than a single.  And as if on cue, the rest of us reached into our pockets and matched what Ray had done.  I’m pretty sure the guy didn’t know just how he’d hit the mother lode, but he knew he had.

See, for Ray Krone it’s not theoretical.  He’s stared right at the gates of hell.  Shit, he entered.  And he’s one of the comparatively lucky ones who came out the other side.  And by his example, he shamed those of us who do this work, care about the work and the guys.

Because it’s not just our clients and our cause.  There are lots of people who need help.  Who have been beaten.  Who are lost.  There’s only so much we can do, but there’s always more.”

And that’s just the introduction. There is always more when Jeff Gamso writes. The point of the post is really to talk about what happens after exoneration and how people who have been wrongfully convicted put their lives back together. Or not.

It’s powerful. It’s Jeff Gamso at his best. It will make you cringe and catch your breath at injustice. And just maybe, it will make you want to act.

Thank you, Jeff.

***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***

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A few years ago we worked on a case where a young mother and her pre-school daughter had attempted to cross the train tracks and were hit by an oncoming train. The mother was killed and her daughter was horribly and permanently injured.

Mock jurors questioned how she could simply not have seen nor heard the oncoming train. After these questions were raised, one of the jurors tentatively stated that she had had several near misses. After this admission, several others agreed they shared that frightening experience. The room was split.

The animations of what would have been visible from the driver’s vantage point were not of use to them (so they thought) since they “were not in the car with her” and did not know if she had been distracted by her child or perhaps by music playing in her vehicle.

It was before the research, now widely known, about inattentional blindness was publicized. We’ve written about that research, which is also known as the “invisible gorilla” research. When we are strongly focused on specific elements of our environment, we can be ‘blinded’ to other elements, even when they are objectively obvious or prominent. Now we have more research that says we may be experiencing the results of something beyond mere “inattention”–we may actually be blinded to other details by efforts to keep an image in memory. And it can apparently happen in a wide variety of situations–take for example, that ever-helpful GPS unit in your car.

GPS is a wonderful invention but apparently it can unintentionally impair your ability to perceive what you are looking at when you use it. You ‘look’, but do you ‘see’? Researchers recently examined the idea that when holding an image in memory, we are essentially “blind” to whatever object is currently in our line of vision. Nilli Lavie (one of the researchers) explains:

“An example of where this is relevant in the real world is when people are following directions on a satellite navigator [i.e., a GPS] while driving.

“Our research would suggest that focusing on remembering the directions we’ve just seen on the screen means that we’re more likely to fail to observe other hazards around us on the road, for example an approaching motorbike or a pedestrian on a crossing, even though we may be ‘looking’ at where we’re going.”

Participants in the study were given a visual memory task to complete while the researchers looked at the activity in their brains using functional magnetic resonance imaging. The findings revealed that while the participants were occupied with remembering an image they had just been shown, they failed to notice a flash of light that they were asked to detect, even though there was nothing else in their visual field at the time.

The participants could easily detect the flash of light when their mind was not loaded with the visual memory demands, suggesting that they had established a ‘load-induced blindness’. At the same time, the team observed that there was reduced activity in the area of the brain that processes incoming visual information – the primary visual cortex.

Professor Lavie adds: “The ‘blindness’ seems to be caused by a breakdown in visual messages getting to the brain at the earliest stage in the pathway of information flow, which means that while the eyes ‘see’ the object, the brain does not.”

In other words, when we are processing a lot of information (like when translating a computerized representation of a map to the real life scene before you)–we just can’t see that at which we appear to be looking. So–looking up from your vehicle’s GPS screen to view the real-life scene in front of you, means you may not see the pedestrian, the bicyclist, the dog, the man in that gorilla suit, or even–yes, that oncoming train.

The implications for litigation are problematic. Given the availability of this information studying human factors research (including product manufacturers), does this constitute a new area of warnings? Our work with focus groups on issues such as this suggest that jurors’ application of a ‘what would a reasonably careful driver do?’ analysis would still place the responsibility for attentional blindness on the driver. “She shouldn’t focus on anything that causes her to drive inattentively” is a common-sense reaction.

In the case of the train, what made a difference to the jurors was how the train approached at an oblique angle (somewhat behind the driver’s shoulder, rather than straight to the side), and the fact that there had been several deaths at this crossing in the years since the railroad had downgraded the crossing from active warning to passive warning (yes– there are always more details). But the bias represented by the sole fact of inattention by the driver was insurmountable for numerous jurors, especially when the unseen object is as big as a train. Testimony about how predictable this kind of oversight is would likely be of help to plaintiffs.

Konstantinou N, Bahrami B, Rees G, & Lavie N (2012). Visual Short-term Memory Load Reduces Retinotopic Cortex Response to Contrast. Journal of Cognitive Neuroscience, 24 (11), 2199-210 PMID: 22905823

***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***

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We’ve all heard that tired truism urging us to exercise caution: “look before you leap”. Well. New research says “just leap” and it will often work out. Granted, it doesn’t always work out but the researchers also discovered that we are more risk-taking than one might predict. So, go ahead. Leap!

Researchers in Israel found that intuition was just as good as a calculator up to (but certainly not always) 90% of the time. Specifically, they showed research participants fast glimpses of numbers (two to four pairs every second) and asked them to use “intuitive arithmetic” to identify the group having the highest average. Some pairs appeared on the left hand side of the computer screen and some were on the right. Those on the left were considered a group and those on the left were considered a group. They disappeared so quickly there was really no opportunity to memorize or actually mentally calculate the group averages. You simply had to respond and say which group you thought had the highest average.

And the more challenging it got, the more accurate the participants became! When they were asked to arithmetically intuit which group of 6 pairs of numbers had the higher average, they were correct 65% of the time. But when they were asked to assess the higher average of groups with 24 pairs, their accuracy skyrocketed to 90%!

The researchers believe the brain has an innate averaging tendency that doesn’t only function well with mathematical averages but also does well with other decisions. It’s about trusting your intuition. Of course, intuition doesn’t always work accurately and can be risky. So they also asked participants to complete tasks that measured risk-taking–again with a mathematical task.

Participants were shown two groups of numbers that actually had the same average but one group had a narrow distribution (like between 45 and 55) while the comparison group had a broad distribution (like between 30 and 70). When people saw the disparity in distribution of the numbers comprising the two groups–they were fooled [and the researchers were surprised]. Most of the participants (p < .0001) chose the group with the broader distribution as having the higher average. The researchers say this shows we are more willing to take risks than might be predicted.

It reminds me of a colleague who was trying to make a decision about what to do when her internship concluded. Did she stay put and finish her dissertation or did she move to a larger town where she could perhaps find work as a master’s level clinician? The impending decision obsessed her but she was unable to decide. Finally, an older staff member produced a quarter and said “Heads you move, tails you stay” and flipped the coin in the air. The indecisive colleague looked horrified and then when the quarter came up tails she was obviously relieved. The older staff member told her that was the test. Not whether the quarter said you should go or stay but whether you felt relief or distress over the quarter’s pronouncement. It was an intuitive decision already made but not yet consciously accepted.

It’s a struggle to take a risk. Yet, when faced with unknowable puzzles (as were these research participants) we somehow know. So when faced with a tough decision, just leap. And hopefully your choice will become clearly accurate rather than painfully inaccurate.

Tsetsos K, Chater N, & Usher M (2012). Salience driven value integration explains decision biases and preference reversal. Proceedings of the National Academy of Sciences of the United States of America, 109 (24), 9659-64 PMID: 22635271

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If you remember the hearings on Clarence Thomas’ Supreme Court nomination and the sexual harassment testimony from University of Oklahoma law professor Anita Hill, you likely recall how Hill was vilified. What you may not know is that after her testimony, sexual harassment complaints more than doubled while damage awards to harassment plaintiffs more than quadrupled.

Attorneys representing plaintiffs in sexual harassment suits are all too familiar with the condemnation heaped on the victims of sexual harassment for not acting sooner (among other criticisms). Efforts to minimize this condemnation have always been at the forefront of advocates’ minds. Now, we have new research that points to very specific ways to minimize this condemnation. It’s good news for sexual harassment victims and their advocates. It’s also intuitively sensible.

Researchers completed a series of five studies examining why we are so eager to condemn the victim (aka “blame the victim”). All five studies are important as they build to the ultimate conclusion and so we will briefly summarize the findings. Another important factor in the research was the choice to use all female participants: “We studied female participants across our studies because they provide a conservative test of our hypotheses–women are likely to have a better understanding of and appreciation for the experience faced by the sexual harassment victim”. The participants were women of both college age and women recruited from the community whose ages varied and they had significant workplace experience.

Sexual harassment was depicted by presenting the following scenario to participants:

“A female student named Karen was being interviewed for a research assistant position on campus. She was being interviewed by a male (age 32) in an office on campus. During the course of the interview, the male interviewer asked Karen the following questions: 

Do you have a boyfriend? 

Do people find you desirable? 

Do you think it is important for women to wear bras to work?”

Participants in the initial three studies were then told that the female candidate (Karen) answered all three questions and thus behaved passively rather than confronting the interviewer/harasser. In the last two studies, some participants were told Karen answered the questions and others were told she did not respond, thereby confronting the harasser.

Study 1 and Study 2: asked participants to predict how they themselves would react if sexually harassed. Perhaps not surprisingly, participants predicted righteous indignation and said they would act much more forcefully than victims typically do in confronting the perpetrator. And again, perhaps unsurprisingly, the more forceful the participants predicted they would be themselves, the more condemning they were of the passive victim.

Study 3 examined the impact of instructing participants to consider the typical motivations reported by sexual harassment victims for not confronting the perpetrator. When participants considered those motivations [e.g., wanting to get the job and wanting to get along socially during the interview], their predictions for their own behavior if sexually harassed were much more consistent with those actually reported by sexual harassment victims.

Study 4 found that when important motivations experienced by victims were highlighted [e.g., wanting to get the job], participants were significantly less condemning of victim passivity.

Study 5 asked participants to recall a specific instance from their own workplace experiences where they had not acted when intimidated (although not sexually harassed). Again, their tendencies to condemn sexual harassment victims for passivity was decreased.

The researchers believe that the proud fantasy that we ourselves would act quickly and assertively in the face of harassment, leads to our condemnation of the typically passive victim of sexual harassment. When we are placed in situations that increase empathy with the victim (by simply considering their motivations or recalling the impact of being intimidated in the workplace) we are much more understanding and much less condemning.

They also discuss the importance of the distinction between two different forms of perspective-taking. It is one thing to imagine oneself in another’s shoes. It is quite different to instead focus on and imagine what the other person experienced. The first perspective does not always elicit empathy or an understanding of what their experience might have been like. The second often does.

We see this as an important study for the litigation advocate:

It outlines a specific strategy for decreasing the likelihood of a punitive and condemning attitude toward the plaintiff.

That strategy emphasizes the importance of situational factors on the plaintiff’s behavior as opposed to the plaintiff being a passive person (and thus somehow worthy of condemnation).

And that strategy results in a consistently empathic stance toward the plaintiff rather than an unpredictable tendency of some to condemn while others do not.

In light of our recent review and research on the phenomenon of false confessions (on our blog and coming in the next issue of The Jury Expert), it would be interesting to see how a similar research design would apply to these cases.

In essence, those who falsely confess during or following interrogation usually describe feeling harassed.

The wish to ‘escape’ the interrogation causes them to overlook the ramifications of their admitting to criminal acts of which they are innocent.

It sounds hard to believe that anyone would be so blind to the implications of cooperating with police in this way, but it happens. They confess in an effort to put an end to the aversive questioning. In the research design discussed here, the interviewee essentially acquiesces to the harassment in an effort to get the interview to conclude. In an effort to escape an uncomfortable interview and achieve her goal of employment, she overlooked the evident fact that this ‘boss’ feels entitled to cross sexual boundaries whenever he wants to, and that he is not likely to limit it to the job interview.

Keep in mind that this research was done with entirely female participants. This would speak to the value of using these strategies with a jury composed of a significant proportion of female jurors with workplace experience and representing a range of ages.  Given the number of these sorts of cases where we’ve seen women jurors condemn the victim, this is a terrific and relevant study for helping everyone understand the variation between inaccurate predictions of one’s own action and the typically passive behavior of the sexual harassment victim.

And while this research is a good start, it raises questions about how men would respond to similar behavior toward men, or how they would appraise a female faced with this interviewee’s situation. The complexities of establishing a healthy workplace culture oblige us to understand who judges the harassment complaints as valid, who judges the woman (in this scenario) as agreeable or complicit, and who feels that the whole construct of sexual and emotional harassment is invalid.

Diekmann, K., Walker, S., Galinsky, A., & Tenbrunsel, A. (2012). Double Victimization in the Workplace: Why Observers Condemn Passive Victims of Sexual Harassment Organization Science DOI: 10.1287/orsc.1120.0753

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