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anti-scienceApparently it’s all about motivated reasoning and uncertainty. When people hear new research findings that are unfamiliar or hear new findings that contradict what they already believe—they are likely to feel uncertain and confused. When you feel that way, it is unpleasant and you want to get back to feeling certain and clear about how things are (whether you are accurate or not).

A nation-wide (Taiwanese since the researcher is located in Taiwan) telephone survey was conducted to check the accuracy of the hypotheses that if reports of new research findings leave you uncertain and confused, you will discount the credibility of the source and have a more negative attitude toward research. Participants in the national telephone survey were only told the headlines of the report and not the contents of the actual stories themselves.

What they found was that the more novel or unfamiliar the research report, the less credible it was seen as being and the less likely participants were to say they would comply with the findings.

When contradictory headlines were presented [think of these as akin to dueling expert witnesses disagreeing with each other], they were rated as less credible and participants were less likely to say they would comply with the research findings.

Then the researcher wanted to see what would happen if participants actually read the entire story rather than headlines alone. They conducted two separate experiments using university students as participants—one experiment exposed the participants to novel versus familiar findings and the other exposed them to contradictory [e.g., dueling experts who disagree with each other] versus one-sided stories [e.g., only one expert testifies so participants do not know the other side of the story].

The researcher found that when participants were exposed to novel/unfamiliar research stories, they saw the information as less credible and were less likely to report plans to adopt the recommendations from the study.

When they were exposed to contradictory news, participants were less likely to have a favorable attitude toward health research than when they were exposed to one-sided news. Additionally, contradictory news was seen as less credible than the one-sided news.

The more unfamiliar and contradictory science presentations left participants defensive and uncertain and their attitudes toward health research became more negative than the attitudes of those who only saw familiar or one-sided research findings.

The researcher recommends that press releases describing research findings that are novel present their findings in context with the cumulative body of prior research and offer possible explanations for discrepancies with previous findings.

From a litigation advocacy perspective, this reminds us an awful lot of what we do when we expect dueling expert witnesses on the stand. Jurors don’t like experts that contradict each other and they tend to toss both experts testimony out and rely on their intuition or idiosyncratic reactions to the experts (e.g., “He looked sort of like Newt Gingrich. I’m not sure if that’s a good thing or a bad thing” or “His mustache reminds me of my favorite high school teacher”). We often work with our expert witnesses to not only present information in a way jurors can understand, but to also explain the contradictions in the research and why our experts’ perspective is more accurate. If the research is unfamiliar or is likely to run counter to their previously held positions, it often works best to embrace the novelty—call it ‘groundbreaking’ or ‘a major step forward in scientific understanding’, etc.—rather than minimizing the difference. Jurors appreciate an expert who is credible, personable, and who wants to help them in the difficult task of understanding complex new information.

This research would say that experts who contradict each other leave jurors feeling uncertain and confused—which is what we see over and over again in our pretrial research. Rather than taking the chance they will simply base their decisions on idiosyncratic associations to the expert’s appearance or demeanor, work with the expert to place the research in context, explain contradictions or inconsistencies in the research literature, and teach the jurors what they need to know to make the best decisions possible. They’ll appreciate you for it.

Chang, C. (2015). Motivated Processing: How People Perceive News Covering Novel or Contradictory Health Research Findings Science Communication, 37 (5), 602-634 DOI: 10.1177/1075547015597914

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morals value shiftAccording to a recent Gallup survey report, Americans continue to shift to the left in terms of “key moral issues”. For some, this is a cause for celebration and for others, it may lead to a question of “what has happened to our country?”.

But that’s not all! The same poll trumpets that the majority of those in the US say that moral values are getting worse (not better). Further, most Americans apparently believe the death penalty is “morally okay”. Other behaviors that Gallup says were “once taboo” (i.e., suicide, polygamy, cloning) are now acceptable to some Americans. As many of the Gallup polls point out, Americans are divided on whether moral shifts toward the liberal end of the continuum are a good thing or a bad thing for our society.

We read these polls a lot (perhaps too much) and are used to the somewhat contradictory responses to varying but related questions. But it’s reminiscent of what jurors go through with dueling expert witnesses. We’ve posted a number of times about what our mock jurors have to say about dueling experts. They don’t like them. They prefer what they see as “case-neutral” experts who have no stake in the case outcome.

Recently we had an expert who was called in by the Defendant (to determine environmental impact and direct remediation efforts) after a potentially toxic chemical spill. The expert had impressive academic professionals, had exhaustively evaluated the site, tested the air to ensure citizen safety, and then testified in a straight-forward and objective manner. But he was still paid by the Defense, which raised questions about how he would be seen. Our mock jurors (and ultimately the trial jurors) reacted to him as though he were a treating expert rather than a testifying expert— they imbued him with credibility, objectivity, and a neutral perspective. He was not a “witness for hire” in their eyes. He was an observing expert who made the spill site safe again. Jurors believed and trusted him. They were willing to trust him because he never appeared to be an advocate for the Defendant— he reported his findings in a straightforward manner without any hint of advocacy.

We’ve written a lot about how to apply the research to discredit the opposing expert witness. We’d encourage you to read a number of those posts on dueling experts.

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stewart_ebola-1280x900Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.

So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?

We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:

Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice.  Expert witnesses are the worst when it comes to arrogance and gamesmanship.  Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.

Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.

Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.

Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have.  We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.

Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.

These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.

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The dilemma of the ‘Expert’ Witness

Wednesday, April 10, 2013
posted by Douglas Keene

snowman_same_or_differentIn any case that includes a dispute over professional standards, science, technology, or an area of specialized knowledge, expert witnesses are going to be involved. Selecting someone who will be viewed as knowledgeable and credible to jurors is often difficult. You obviously are going to choose someone who knows the content at issue, but that’s only the beginning of the selection process.

Do you go with an academic theorist or a practitioner?

Do you hire someone who knows evidentiary standards and has experience in a courtroom, or an inexperienced (but untainted) witness?

As you might imagine, if you want to understand how jurors assess witnesses, you ask an expert on, uh, witnesses. Not surprisingly, there is a good deal of research on the subject (‘wherever there is an academic in search of tenure, there we will find research on every imaginable subject’).

“It turns out that both actual jurors and experimental subjects in mock jury studies understand the incentives of the paid expert, and as a result often substantially or even completely discount the opinions of those they perceive as ‘hired guns’.”

These authors go into the impact dueling experts can have on jurors and their thoughts align with the experiences we’ve had over the years in pretrial research. When expert witnesses disagree, jurors sometimes ignore both sides, telling us they “cancel each other out”. More typically, though, in a matched duel they prefer the witness that affirms their pre-existing beliefs, or speaks to them in a way that feels both respectful and comprehensible.

The authors also explore what they call the ‘conceptual response’ to arguments for expert testimony. Ultimately, they conclude there is no real conceptual distinction between lay and expert testimony.

“…[W]hen experts testify directly their evidence has traditionally been suspect for fear of overvaluation, but when lay witnesses offer opinions or even facts, expert knowledge appears to be coming in the back door through expert-dependent observations. The puzzle therefore, is in understanding why direct expert testimony is thought suspect when indirect expert evidence is not.”

 The researchers wonder if Daubert really addresses the issue it was meant to resolve. However well-intended their efforts, though, they seem to overlook the true intent of Daubert. It is not intended to assure that witnesses only base their decisions on sound science. It was intended to keep quacks and junk science out of the courtroom. Even at that, it isn’t perfect, sometimes being applied too restrictively, and other times too loosely (IMHO). But it is a big help. The judge wants valid science in the trial. But doing it in a way that jurors find credible is a different matter. They make recommendations for addressing what is, to them, a problem now entrenched into our legal system.

I have testified under oath over 100 times as a psychologist and neuropsychologist. And I think I was subject to a Daubert challenge perhaps twice. In my opinion, most mental health testimony is junk science. Every day there are countless ‘mental health experts’ testifying around the country, and most of them, however well-intended, don’t know a thing about standards of evidence and Daubert standards. They generally feel that a graduate degree, professional experience and good intentions are sufficient to qualify them to testify. They are wrong. But for some odd reason, most lawyers let them get away with it.

Take a look at this article, but keep in mind that just because you and your opposition each have experts doesn’t mean that they will cancel each other out. Make your witness be the voice of authority in the jury room:

Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them.

Make sure your expert is communicating– which requires being understood– in addition to offering up their technical gobbledygook.

They are not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.

And like in any other walk of life, we pay more attention to a speaker who is paying attention to us. They look at us, make eye contact in a pleasant way, they smile, they speak in terms we understand, they use analogies that resonate with our life experience, and they are nice people.

What these authors address is that experts aren’t effective just because they are smart and ‘expert’. That is the court’s requirement, but not enough to pass muster with jurors. For that, a witness needs to understand their audience, and speak to what matters to them.

Schauer, F., & Spellman, B. (2013). Is Expert Evidence Really Different? SSRN Electronic Journal DOI: 10.2139/ssrn.2210397

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Hearsay testimony is often admissible in cases of child abuse when the individual who interviewed the child recounts the child’s testimony in court. This strategy is meant to protect the child from embarrassment and repetitive trauma in the courtroom. Recent research (according to the current authors) has highlighted at least two potential issues with even this limited exception to the hearsay rule.

Interviewers often lack the ability to retain and accurately report interview details. While they likely recall the gist of the interview, the specific details are often fuzzy. It is further compounded by the typical process of contemporaneous written notes being later converted and often interpreted by the interviewer into a report.

To further complicate matters, jurors often believe the interviewer testimony more than they would believe the testimony of the actual child whose statements the interviewer is reporting.

Researchers wondered if expert testimony that raised multiple questions regarding the validity of hearsay evidence would be more persuasive to jurors than no expert at all or an expert testifying about only one issue with the hearsay evidence validity. That is, if you hear no expert witness at all, is that more persuasive (or as persuasive) as an expert testimony discussing only one of the above issues with hearsay evidence validity? And what if the expert testimony covers both of the afore-mentioned issues with hearsay evidence? Is that the most persuasive of all?

We’ve written about the “one at a time effect” as part of our Simple Jury Persuasion series and based on that, we’re expecting the expert who has multiple reasons the hearsay evidence is problematic is going to be more persuasive to their listeners.

The research included about 200 participants (undergraduate students) who were given a written mock trial summary where a hearsay witness [a counselor at the Department of Human Services] testified on behalf of a child alleging sexual abuse by her father. The research participants also received testimony from a character witness for the defense. Then the study introduced the variable of ‘testimony on the effect of hearsay evidence’ by an expert witness (an experimental psychologist). They were randomly assigned to one of four expert witness conditions:

In the first condition, no expert testimony was presented.

In the second condition, the expert testimony covered the research on poor interviewer memory with regard to hearsay witnesses.

In the third condition, the expert testimony presented research showing that jurors tend to over-believe hearsay witnesses.

And in the fourth condition, the expert testimony presented research covering both types of expert testimony (e.g., poor interviewer memory and juror tendency to over-believe the hearsay witness).

The researchers found that most of the jurors were unaware that interviewers had poor memory with regard to the specific details of their interview conversations. Jurors who heard expert testimony gained knowledge whether they heard about one issue with hearsay evidence or two.

However, it was only when they were given expert witness testimony on both issues with hearsay evidence that perceptions of credibility were affected and actual verdict decisions changed. The researchers offer the suggestion that marketers who say “more is better” are likely accurate. Multiple reasons to doubt testimony reliability are more persuasive than one or none.

So, we were right!  The earlier research on the “one at a time” effect is affirmed. It’s a pretty intuitive outcome when you think about it. Give jurors education and information on why what they believe to be true may not be. It’s akin to how to best deflate the impact of ‘dueling experts’. We have to trust our jurors. And we have to educate them so they can make informed decisions.

Maybe it isn’t so much a one-two punch for jurors as the authors propose in their article title–but rather a one-two punch for the trial lawyer to reinforce the importance of education along with advocacy for optimal courtroom effectiveness.

Nunez, N., Gray, J., & Buck, JA (2011). Educative expert testimony: A one-two punch can affect jurors’ decisions. Journal of Applied Social Psychology.

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