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Archive for July, 2013

interracial-marriageMore than a decade ago, we used a question about approval or disapproval of interracial marriage on our pre-research exposure questionnaires for mock jurors. We were curious about how that issue (which we knew divided people) would relate to other questions more specific to our case. It was useful for reasons other than the narrow topic of the question, as it seemed to track with attitudes about an array of conservative/progressive issues. We stopped using it when we discovered we got more useful information by using questions about ‘immigration’ post 9-11-2001.

At this point, we don’t use either question as we have continued to learn and read and test with more blandly focused attitudinal queries that give us unique foreshadowing of biases and predispositions toward a given verdict.

Regardless, it was interesting to see the new Gallup Poll trumpeting that 87% of Americans now approve of Black-White marriage (compared to only 4% back in 1958). Hmmm. 87%. Something about that high number in a country so unable to discuss race doesn’t make sense to me.

The Gallup Poll was done between June 13 and July 5, 2013 and surveyed 4,373 Americans on their attitudes toward Black/White marriage. According to the survey results, 11% of Americans disapprove of Black-White marriage (compared to the 94% disapproval in 1958). Older Americans are least likely to approve of interracial marriages and Black (96%) and Hispanic (91%) respondents have a higher approval level than do White (84%) respondents. While Gallup informs us that Black-White marriages still represent less than 1% of all married couples in this country–they see the shift in attitudes as a “telling indicator of the general shift on views of racial matters on many fronts in the US over the last five decades”.

I wonder if that is what it means. Without a doubt, attitudes have shifted over the past fifty years. There is no question of that. But do White Americans really approve of interracial marriage to the tune of 84%? If yes, perhaps it is more in theory than in any real sense of the phrase since fewer than 1% of all marriages in this country are interracial. It is common for Americans to have negative attitudes toward politicians in general and to have a much more positive attitude toward their own individual political representative. It would be a different (and much more intriguing) question if what Gallup was asking was not,

Do you approve or disapprove of marriage between blacks and whites?

but rather,

Do you approve or disapprove of your child/sibling/parent/relative/close friend marrying someone Black (or White)?”.

My guess is the numbers would come out somewhat differently. And that still represents a huge change. For a country to move from 4% approval to 87% approval in fifty years is pretty impressive, but there is still plenty of fervent resistance. Consider the racial tension and anger over the recent George Zimmerman acquittal. Initially, President Obama called for calm in reaction to the verdict and later he shared his thoughts on being a man of color. His remarks elicited reactions from scorn to gratitude. He was even called out for being racist and attempting to incite tensions with his thoughtful and very personal remarks. Specifically, his remarks were labeled “disgusting”, “irrelevant”, and the idea that the legal system discriminates against Blacks was labeled “nonsense”.

We are not in a post-racial society. Gallup reports changes that are most often on a theoretical level. The work we do has to address changes (or the lack thereof) on a very personal and practical level. When the issues become personal and focal–the  reactions of our mock jurors (and of real jurors) are layered with a complex blend of emotion and reactivity. In litigation advocacy, we need to make sure we are asking the right questions that will show us real responses that go beyond the politically correct ones.

Two recent videos available on the internet show different stories about America’s comfort with interracial relationships and marriage.

First, a recent Cheerios commercial featuring an interracial couple and their daughter evoked such racist commentary on YouTube that General Mills requested comments on the video be disabled.

Here’s a ‘hidden camera’ video of spontaneous reactions to an interracial couple in a Hoboken, New Jersey bar known for attracting a “diverse crowd of patrons”. The reactions to racial harassment are heartening and we wonder if they would be the same in a bar catering to a more homogenous crowd.

Gallup Polls, 2013. In U.S., 87% Approve of Black-White Marriage, vs. 4% in 1958. July 25.

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paulie walnutsSome years ago, a colleague was recounting an episode of the Sopranos we had both seen to illustrate a point. “He disrespected Paulie Walnuts”, she said. “And I looked at my husband and shrugged and said ‘Now he’s going to have to kill him’.” Her point was that we entered that world so completely we took on the morals/mores of the characters and saw nothing wrong (looking through the eyes of the characters) with killing someone who had disrespected you. (As it happened, Paulie didn’t kill that guy. I don’t recall what happened but I remember having some confusion over why Paulie would let him live after such an insult.)

I’ve been having some Sopranos nostalgia with the recent and untimely death of James Gandolfini. So when I was reading the latest on the Whitey Bulger trial, I found myself grinning and shaking my head at a witness (Stephen “The Rifleman” Flemmi) who was giving his opinion of a courtroom observer . Suddenly, the observer (brother of one of the women Bulger is accused of killing) leapt to his feet and screamed very personal obscenities (involving Flemmi’s mother) at Flemmi.

“The aging gangster suggested that Steve Davis was an informant and a drug addict, prompting him [Davis] to stand up and shout, “You’re a [expletive] liar!””

According to the story, Flemmi quickly backtracked and said he probably had Steve Davis confused with Steve’s brother Mickey. That apparently was meant to make it better. Another Sopranos-reminiscent line in the story surrounds how it was against Whitey Bulger’s code to kill women. (Not men, you understand. But women are a whole ‘nother thing!)

“Although Bulger, 83, is charged with 19 slayings – and has pleaded not guilty to all charges – it’s thought that he is particularly anxious to distance himself from the deaths of Hussey and Davis because the killing of women went against his code.”

When I read that line, I stopped grinning and shaking my head. It’s amazing how a little reality catches up to us and reminds us we are not watching HBO. It’s isn’t a TV show when it’s real. But it’s all too easy for us to think so when the emotional content of the case narrative touches a little too close to home. Sometimes it is really really poor judgment that initiates the emotional distancing. Other times, it is a story that is just too horrible to accept like the one we have never blogged about where I closed the door to my home office and put in headphones while reviewing DVDs so that my college-age kids wouldn’t hear the story. And other times, jurors make associations to your case that you cannot predict in advance. Recently in some pretrial research, one of the mock jurors commented that he was not really angered by the story he was hearing as much as he was surprised by the case facts.

“It’s like being in a real-life game of Clue. I keep thinking it was the butler in the drawing room with the candlestick and then in walks Miss Scarlett with the smoking gun.”

While Clue experts know it wasn’t a gun but rather, a revolver that Miss Scarlett would have been holding, the point is how we quickly make something a little too real into a movie, a TV show, or even a board game to distance from the cold hard reality that this really did happen in real life and it happened to real human beings. We tend to distance like that to avoid the fear that the same sort of thing could actually happen to us.

When jurors are sad, they aren’t likely to be mad. Sadness, depression, and hopelessness suppress decisions in favor of the Prosecution (favoring Defense), because jurors don’t feel called to action to solve a problem or make the world better. Outrage moves people to action. So for Plaintiffs, the challenge is to turn Sadness into Indignation, Depression into Demands, and Hopelessness into a focused solution.  Make sure you know which emotional response you want and which emotional response you are eliciting.

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TIMEcoverIllegalAliensRecently we’ve done pretrial research on a number of cases involving Mexican immigrants who were undocumented. In each case, horrible tragedy had befallen them through no wrongful act of their own. One case involved the death of two young children by fire caused by a fire in a well-maintained vehicle. Another involved a wealthy Mexican family who came to the United States for medical treatment of their son and it went horribly wrong. And in neither case did we have to wait long for the inevitable, “are they illegals?”. When told that information was not likely to be admissible in court, the mock jurors exchanged glances and nodded grimly. They knew what that meant. Later when they were told the wealthy family had always come to the US for medical treatments, they wondered aloud, “why then, they didn’t go back now”?

It isn’t news to attorneys who advocate for Mexican immigrants and plaintiffs or defendants–but Americans are very suspicious of the documentation status of those who find themselves involved in lawsuits. Even when they are involved as Plaintiffs who have been harmed by the negligence of others. “Are they illegals?” seems to be always echoing in their hearts and minds.

This year, some new research on this very issue came out of Lawrence, Kansas. We know what you are thinking. Lawrence, Kansas? How White is that place? And you are right. It’s pretty White. The point is they did some research that can serve as a starting point for looking at the issue of race in immigration and how it interacts with our sense of justice.

The researchers wanted to see if support for tough immigration laws was really about enforcing the law (and thus identity-neutral) or about defense of privilege (and thus based on racial identity of the immigrant–what they called identity-relevant). So they studied the question in two different studies using undergraduates (all White/Caucasian) from the University of Kansas.

In brief, the study had participants read vignettes ostensibly from a local newspaper. The story described a situation where a law-enforcement officer saw a man standing outside an ATM and determined the man seemed “suspicious”. So the law-enforcement officer asked the man for identification documents (to verify immigration status “in accordance with tough, Arizona-type laws”). The man did not produce the documents and was detained. The man was described as either documented or undocumented. In one story, his name was Joseph from Canada and in another he was Jose from Mexico.

You probably know what is coming. Jose from Mexico was described as needing more punishment than was Joseph from Canada. Further, the intrusive enforcement with Jose from Mexico was seen as okay but not okay for Joseph from Canada.

So the researchers did a second study and this time (still using Jose from Mexico and Joseph from Canada) they varied the status of Jose and Joseph to be either an undocumented immigrant or a US citizen of either Mexican or Canadian origin.

And what they saw was eerily similar. Participants endorsed more negative responses toward the undocumented detainee when he was Jose from Mexico than when he was Joseph from Canada. The participants reacted less favorably to tough treatment given to a “law-breaking” (i.e., undocumented) Joseph than to a “law-abiding” (i.e., US citizen of Mexican origins) Jose.

In short, we don’t like it when White people are treated toughly but it’s okay to do it to Mexicans. It’s a very blunt and unattractive finding.  We live in Texas and so we do a significant proportion of our work in the southwestern section of the country. But it isn’t just in this section of the country where we encounter these sorts of attitudes. We have seen it all across the country–even in liberal bastions along the Coasts. As these researchers summarize:

“Participants appeared to extend to detainees of Canadian origin, but not to detainees of Mexican origin, similar standards of procedural fairness and respect for human rights to those they would demand for US citizens.”

In other words, if you are not White skinned, you are going to be responded to differently than you will if you are White skinned. It’s a validation of the anecdotal examples of “flying while brown” or “walking while black” that we have seen discussed in the media. Obviously, we need more research beyond White undergraduate students in Lawrence, Kansas. Hopefully, that will come. And for what it’s worth, it isn’t always racially biased. We’ve done a lot of work in the Chicago area, some of which involved Plaintiffs from Mexico and Central America. When asked during deliberations (since it didn’t come up spontaneously) about their thoughts of documented/undocumented status for the Plaintiff, the jurors all said “Oh, we assumed that she was undocumented, but that has nothing to do with why her child suffered birth trauma.” For this group of 12, it didn’t even bear discussion.

Given the importance and evolving nature of racial influences on the makeup of our country, you might want to take a look at our blog posts on when to talk about race and when to stay quiet for information on how racial bias sneaks about where you do not expect it. And consider whether it is wise for you to elicit empathy without judgment prior to deliberation so racism doesn’t happen under juror’s radar.

Mukherjee S, Molina LE, & Adams G (2013). “Reasonable suspicion” about tough immigration legislation: Enforcing laws or ethnocentric exclusion? Cultural Diversity & Ethnic Minority Psychology, 19 (3), 320-31 PMID: 23875856 Full text here.

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atheist christian tweetTwitter is increasingly being used to assess the country’s mood following various major events. Researchers like it because it gives them access to huge quantities of tweets which contain feeling words or opinions or attitudes they can analyze to describe a sort of “national mood”. Researchers also believe tweets are uncensored expressions of mood/thought and potentially a more accurate depiction of how the tweeter actually feels than one would find in a self-report where you directly inquire as to an individual’s thoughts and feelings. It is now increasingly common to find reports on tweet analyses comparing political orientations, thoughts on major issues or events, and even on litigation in cases capturing the national attention. [From our perspective they seem to have a point. A point that would be made stronger if you had to pass a blood alcohol test before posting a tweet. Is there an app for that?]

So we should not be surprised to see academics taking a look at religious orientation and its relation to tweet content in Christians and Atheists. Specifically, they were curious as to which group was happier. If it is true that, as Karl Marx famously said, “religion is the opiate of the people” then it would follow that Christians should be happier than atheists. And indeed they were. (We should make a point here that Karl Marx never actually said that. He came close but it wasn’t exactly what he said.)

So on to what the researchers did. They looked at the followers of five Christian public figures (Pope Benedict XVI, Dinesh D’Souza, Joyce Meyer, Joel Osteen and Rick Warren) and five Atheist public figures (Richard Dawkins, Sam Harris, Christopher Hitchens, Monica Salcedo, and Michael Shermer). Researchers randomly selected 3,600 followers of each of these public figures and collected up to 200 tweets per follower. Altogether, they accessed 12,849 Christian followers (877,537 tweets) and 8,716 Atheist followers (1,039,812 tweets). Wow. Who knew?

Researchers examined the tweet content for intuitive versus analytical thinking style with a text analysis program.  Their logic was this–analytical thinking style requires critical thinking and skepticism and can negatively impact mood while intuitive thinking draws from “gut” feelings and may not negatively impact mood.

And here is what the researchers found:

Christian followers tweeted more religious words than did atheists and when they tweeted about religion, Christian tweets were less negative and Atheist tweets were more negative.

Christians had more positive emotion and less negative emotion in their tweets than did Atheists.

Christians tweeted more about social connections than did Atheists and this tweeting about social connections was statistically related to being happier (as measured by positive tweets).

Atheists were more likely to use “insight” words (i.e., analytical thinking) than were Christians and insight words were associated with less happiness overall.

When Christians did use insight words, it was to say things like “know” or “feel” and when Atheists used them it was to use insight words like “thought” or “reason”. Researchers saw this as Christians being more certain (and intuitive) while Atheists were more tentative (and analytical).

In short, the research found a positive relationship between religion and happiness. The researchers are quick to assert “these findings should not be taken to mean that religion is a prerequisite for happiness or that atheists are doomed to be miserable”. They suggest atheists could increase happiness by developing social networks so they are not socially excluded. Or maybe atheists could work up a solid plan for covered dish suppers. [Sorry. That was negative. But growing up as a minister’s kid, I went to an awful lot of church events, and back in the day it was all about the food. That made this kid happy–or less grumpy–about going to go to church. My favorite was Shrove Tuesday. Pancakes!]

Our own interpretation of this study is that those who identify as Atheists online and follow prominent Atheists and tweet are more likely to be defending their beliefs online as they will be targeted by believers and engaged in debate. A degree of defensiveness is usually attached to an exploration of what it means to be an ‘outsider’. They may also be more likely to target believers and incite debate.

Twitter users are not a random sample. They are self-selected group who, in some instances, use Twitter to engage in debate with others of dissimilar beliefs. We would be very wary of reading too much into research based on Twitter samples (even large ones like this one). On the other hand, when we see a prospective juror who is a very vocal Twitter user–that gives us good information to apply to voir dire decisions.

To be fair, the authors are conservative in their assumptions and point out the flaws in the research methodology. From a litigation advocacy perspective, our best advice is to be careful on social media with your own tweets/status updates/et cetera and to be conservative in the assumptions you draw about the character or mental health of others based on tweets/status updates/et cetera alone.

Ritter, RS, Preston, JL, & Hernandez, I. (2013). Happy tweets: Christians are happier, more socially connected, and less analytical than atheists on Twitter. SSRN Electronic Journal DOI: 10.1177/1948550613492345

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alibi-roomYou may have heard the idea that people fulfill our expectations so that if we expect accomplishment we often get it and if we expect failure, we can get that too. In research it is called ‘experimenter expectancy’ (and the reason for double-blind studies). In education it is called ‘the halo effect’. Turns out it’s true in mock investigative interviews as well. If we believe the person we are viewing is guilty, we just don’t find them believable.

This is a common problem in police investigation interviews where, when the interviewer determines the interviewee is guilty–the investigation shifts to an interrogation. The investigative interview is to gather information. The interrogation is to determine guilt. The problem with this, as pointed out by false confessions/wrongful conviction researchers, is that when we presume guilt, we tend to hear and recall only the information that points to deception and guilt. We simply pay no attention to facts that disconfirm our assumptions. It isn’t necessarily intentional. We simply look for data to confirm hypotheses.

In this study, 285 undergraduate students at a Midwestern University watched a videotaped narrative of what a young man had done for a few hours on a particular day. Some of them were told his narrative was an alibi and others were not. Further, some were told his narrative was an alibi and he was guilty (while others were told he was innocent). After viewing the videotape, participants were asked to write down as many different facts as they could recall from the videotaped alibi and to be as specific as they could. Finally, they were asked to rate how believable they found the alibi provider. The results of this research mirror what has been written about for decades in the wrongful convictions/false confessions literature.

Participants who had been told the person giving the alibi was guilty recalled less detail from the videotaped alibi, found the alibi less believable and viewed the alibi provider more negatively than those who had not been told he was guilty.

This actually makes sense to us. If you know someone to be guilty, it makes sense you wouldn’t listen as closely, wouldn’t find the person believable and see them negatively in relation to an innocent person. The issue is not when you know the person is guilty–but when you presume/assume they are guilty before you have a basis for judging the issue. And that is the difference between research with undergraduates and with real-life police officers either interviewing or interrogating an individual. The question for the real-life situation is–how can we stop that presumption of guilt from happening?

A recent civil wrongful conviction suit  we worked on was eye-opening for us. To aid us in understanding mock juror reactions to the case narrative, we completed a comprehensive review of the (voluminous) literature on the topic. It was, in a word, disturbing. And later, as we chewed peanut M&Ms and drank ridiculous amounts of coffee in the darkened observation room while mock jurors deliberated–we heard almost every theme we’d read about in the literature. While we knew, as did the mock jurors, that the man was innocent and bad things had happened during his interrogation–the mock jurors simply couldn’t understand why he would have falsely confessed to a homicide. The idea that he was young, naive, exhausted, terrified, and told it would all stop if he simply admitted he had killed the victim was raised and discarded by many of our mock jurors. Even when told of the exculpating DNA evidence and that the authorities had agreed about his innocence, some still didn’t want to believe it.

Fortunately for the wrongly convicted man, some of our mock jurors had watched a true-crime reality show called The First 48 and they excitedly educated their peers on how frightening and leading and guilt-assumptive the interrogation process can be when it goes wrong. Ultimately, more analytical heads prevailed and the jurors agreed the young teenager (now a middle-aged man) had been done wrong and there were pressures they could not imagine on him during the interview turned interrogation. The television show– almost certainly not admissible at trial– was among the most persuasive “evidence” for two jurors, and it gave them a basis for a full-throated lecture to the others. Even though what they said was correct, it was one of those scary times when extra-evidentiary information completely turned a deliberation.

So we look at this research and think it really isn’t about anyone in the real world being told someone is guilty. It’s about making that presumptive leap that changes everything. The question is how we get people, who are professionally trained to look for deception, to suspend disbelief and attempt to get to the truth rather than close the case. It’s a long-standing quagmire for the justice system. For a review of literature about strategies that actually reduce the problem in investigations, read our paper.

Olson, EA (2013). “You don’t expect me to believe that, do you?” Expectations influence recall and belief of alibi information. Journal of Applied Social Psychology, 43 DOI: 10.1111/jasp.12086

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