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mixed race cheeriosHere’s a somewhat predictable but still disturbing finding: If you live in an area where you are not exposed to other races—those of mixed race are confusing to you and that confusion leads to bias against anyone of mixed race. At least confusion is better than outrage—which is what greeted the makers of Cheerios cereal when they created a commercial with a mixed race child and her parents (which we blogged about earlier). Nonetheless, this research shows us that what is unfamiliar is often greeted with fear, and thus, negativity.

Researchers were interested in looking at how mixed race was viewed by those who were not normally exposed to other races. Conventional wisdom would suggest that people who are not exposed to diversity are less comfortable with it.

The researchers used about 350 subjects in two national samples and identified their likelihood of exposure to other races by matching US Census data with participant zip codes. The researchers measured the “zigzagging of the mouse” in tasks where the participants were shown faces (either Black or White faces or a morphed face combining the two) and asked to identify the face as either Black or White. The participants were required to make split-second decisions and the researchers watched to see how much the mouse moved back and forth between the Black and White buttons prior to making a decision.

The researchers say that those participants from low-exposure areas were more likely to have more “abrupt and unstable wavering [of the mouse] while trying to place the face into a racial category”. The researchers took this to mean that the participant was uncertain about the judgment and report that the wavering was “exclusive to decisions of racial categorization”.

In a second study, the participants were also asked to categorize the face racially but they were also asked how trustworthy they found the individual pictured. As you might guess, those with lower exposure to people of other races found these mixed race photos to be less trustworthy.

The researchers say that perhaps when you meet a lot of people from other races, you tend to see race as a bit more ambiguous than when you are someone who is rarely exposed to people of other races. The researchers say that exposure may mitigate prejudice.

From a litigation advocacy perspective, this study tells us that we need to carefully consider the role of race generally, as well as how to introduce mixed race clients or parties to jurors—much the same way we need to consider how to introduce anyone racially or ethnically different to jurors. We’ve written about this a lot before. You may want to review our posts on when to talk about race and our posts on mixed race issues.

The presidential campaign season has exposed the perseverance of racial intolerance in America and shown us that, despite the melting pot aspirations of most, there are plenty who have significant fear, anger and even hatred toward those different from themselves. When your client(s) are of mixed race or a minority race in general, you need to determine whether raising the flag of racial awareness will work for or against your case. And, as we have advised before, you will want to raise the flag of racial awareness especially when race is not at all salient to your case.

Racial issues are often difficult to discuss and we think it likely takes more than mere “exposure” to decrease bias. In our experience, there are surprisingly frequent instances where mock jurors express exceptionally biased attitudes and beliefs (like here and here) and few occasions when one of the other mock jurors push back against that bias unless an example is set by the moderator. And, as a helpful reminder, there are no moderators in deliberations so you will need to “set the example” during case presentation and in your closing argument as you teach jurors how to deliberate.

Freeman JB, Pauker K, & Sanchez DT (2016). A Perceptual Pathway to Bias: Interracial Exposure Reduces Abrupt Shifts in Real-Time Race Perception That Predict Mixed-Race Bias. Psychological Science PMID: 26976082


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Nominations are now being accepted for the ABA Blawg 100 list. If you value this blog, please nominate us at the ABA site: The only catch is you have to do it fast! Nominations close at midnight THIS COMING SUNDAY (8/16/2015).

you-look-guilty__24398_zoomWe like a good conspiracy theorist and last year we ran across an article on some out-of-the-mainstream-conspiracy-theories we had not heard of before. So naturally, we blogged about them. Along the same lines, although Stan Brodsky and some of his colleagues have written an article on jury duty excuses—it appears they missed a few. Although they covered hardship, and goofy excuses (like Tina Fey dressed up like Princess Leia in an effort to be excused) we just don’t think they identified demonic transference as an excuse. As a public service, let us add to their list.

A recent article in The Columbian newspaper listed some of the more creative reasons potential jurors wanted to be excused.

Demonic transference: Judge David Gregerson said he once had a juror explain that he believes in demonic transference, the act of a demonic spirit taking over a mortal body. Gregerson said he didn’t know what that meant at the time and later looked it up. (We must confess that we had no idea what that was either but the pictures you find if you search the internet for ‘demonic transference’ are pretty scary.)

A plastic baby doll: Judge Suzan Clark said her predecessor had a juror who showed up to trial with a plastic baby doll. She said the doll accompanied the man through the entire trial.

Inappropriate T-shirts: (like the one illustrating this post) have also caught Clark’s eye.

I need to meditate: Clark said when she was a defense attorney she encountered a woman who during voir dire said she couldn’t serve on a jury because she needed to meditate for 10 minutes every hour. In the end, she wasn’t selected.

You stink: Many people have said they can’t sit through trial because of the smell of the other jurors’ aftershave or body spray, Clark said. [On several occasions we have had mock jurors request reseating because the person next to them smelled awful. Upon investigation, the complaining juror was always correct.]

You can see people talking about jury duty every day on Twitter, Instagram, tumblr, and even Pinterest. Most of the entries on all of these platforms are either illustrations of their jury summons or questions about how to get out of jury duty. It’s like a cottage industry about getting out of your civic duty!

It’s intriguing to us because it just isn’t what we see and hear in our pretrial research. Most of our mock jurors who’ve been actual jurors tell us they enjoyed their stint as a juror and felt they’d done an important thing by participating. Recently, we had one woman say she’d just finished as a juror in a murder trial and had been traumatized by the photos so she wondered if we would be showing photos of dead people. We assured her we would not.

We tend to think how jurors respond to jury duty has a lot to do with whether they know how to do their job as a juror. When attorneys teach jurors how to deliberate—our guess is satisfaction with the task goes up. And it’s tough to figure out how to engage a juror who didn’t want to be part of your case and now has to attend a lengthy trial against their will. Indeed, if someone has a terrible attitude coming in, they are probably going to be distracted by their own attitude and less likely to attend to the evidence.


Comments Off on Demonic transference and other reasons you can’t be a juror… 

group_discussion-300x157Want to see a lively argument? Ask a couple of legal professionals if jurors can detect deception in witnesses or parties— and then slowly back away. It’s a hotly debated topic with some saying “jurors usually get it right” and others pointing to reams of research saying no one is a very good lie detector.

We’ve written about deception a lot here and you are likely aware that accuracy rates in detecting deception are only slightly greater than chance (even among trained professionals). But today’s research may change your mind. This is terrific news!

While individuals are never that great at figuring out when someone is lying—groups do better at figuring out deception. But if you are nodding and muttering “the wisdom of the crowd” under your breath—that isn’t why. Instead, it appears to be something about the actual process of group discussion that improves the accuracy of lie detection.

The researchers who carried out experiments described in the article featured here today say there are three reasons a group might detect deception better than individuals. They cite the “wisdom of crowds” effect; the “truth bias” (individuals are more trusting than groups and groups will more actively consider that anyone who is talking is being deceptive more often); and the idea that the very act of group discussion can offer additional information to increase accuracy in lie detection.

The researchers conducted a series of studies. They tested small lies (aka “white lies) and large-stakes or intentional lies. Experiments varied whether individuals or groups of people were determining whether lies were being told. In some experiments, participants made individual decisions about deception without discussion, and in others groups discussed and then made group decisions about deception. What the research found is simple (and cause for rejoicing unless your client is the liar).

Groups were better at detecting both small “white” lies as well as high-stakes or intentional lies.

Groups were not simply maximizing the “small amounts of accuracy contained among individual members” but, say the researchers, “were instead creating a unique type of accuracy altogether”.

From a litigation advocacy perspective, this research supports the “jurors usually get it right” perspective but it also tells us something very important: there is a certain magic in jury deliberations. Thus, it’s important you teach jurors how to deliberate so their work is efficient and effective. While the researchers featured here today don’t know just how the magic happens, it is clear the magic does happen during group discussion (aka jury deliberation). It is a compass pointing to Truth that is unavailable in bench trials, and arguably in arbitrations as well.

It’s also another vote for the jury system—a group listens and talks and intuits and proclaims (more accurately than any individual).

Klein N, & Epley N (2015). Group discussion improves lie detection. Proceedings of the National Academy of Sciences [PNAS], 112 (24), 7460-5 PMID: 26015581


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i-am-powerfulWe have written about power poses and other strategies to help yourself feel powerful.  Be clear, though—you do not become more powerful by doing such things, but it might make you feel that way, which in itself can be communicated as confidence or authority. This post isn’t about how to make yourself feel powerful, it is about those who perceive themselves as already powerful. In short, those who see themselves as powerful draw more inspiration from themselves than they do from others. It apparently doesn’t matter if you really are powerful, only that you think you are powerful. The authors begin by quoting from Matthew McConaughey’s Oscar acceptance speech in 2014.

McConaughey “recalled someone asking him ‘Who’s your hero?’. He replied: “You know who it is? It’s me in ten years”. [snip] Apparently, Matthew McConaughey derives inspiration from his future self.”

So the researchers took a look at how this happens. How do you draw inspiration from yourself rather than drawing inspiration from the example of others. They give the example of the sort of  person we have all encountered, who goes on and on about their accomplishments and experiences. The dynamic is not only one exemplified by famous actors.

The researchers planned four separate studies with 555 participants across all four studies (3 studies performed with Dutch undergraduates and one with undergraduates at UC Berkeley). In the first three experiments all participants completed a measure of their personal sense of power, and other tasks (including writing tasks and various efforts to measure how the participants were “inspired”). In the final study, the researchers “primed” the participants to experience either a high or low sense of personal power. What the researchers wanted to know was if the participants who felt “powerful” would report they drew more inspiration from themselves than they drew from others.

Their findings are consistent with Matthew McConaughey’s Oscar speech (even in the fourth study where participants were “primed” for high power sense of self rather than just reporting it was the way they saw themselves).

The powerful are more inspired by their own experiences than are those that do not see themselves as powerful.

And the powerful are more inspired by their own experiences than by the experiences of others.

The authors conclude that the reason powerful people talk more, are poor perspective takers, are less prone to consider the opinions of others, and less likely to take expert advice (all findings in previous research) is because “the powerful prefer to entertain their own rather than other people’s experiences and ideas, because they are more inspired by their own internal states than by those of others”. The authors close by returning to consider the case of Matthew McConaughey. They say,

“Inspiration is always within reach for their powerful—entertaining their own uplifting experiences is enough to spark the flame.”

It brings to mind how important it is to look at how a persuasive person with high socio-economic status and confidence  (a “powerful” person) may function in jury deliberations. If you want to avoid having a jury dominated by this person, take the time to teach all jurors “how to deliberate” so if they feel run over by jurors who feel empowered to drive the verdict—others have ammunition with which to disrupt that intention.

Van Kleef, G., Oveis, C., Homan, A., van der Lowe, I., & Keltner, D. (2015). Power Gets You High: The Powerful Are More Inspired by Themselves Than by Others Social Psychological and Personality Science DOI: 10.1177/1948550614566857


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spiral of silenceWe’ve blogged a fair amount on the impact of the internet and social networking on jurors but here is something unexpected. People that engage in social media are less likely to discuss heated topics in the news, not more likely. This is according to a recent Pew Research report.

Back in 1974, Noelle-Neumann described the “spiral of silence” which basically describes a tendency to not speak up when we perceive our own beliefs and opinions to be in the minority. With the advent of intense social media involvement, researchers had hoped there would be more willingness to engage in discussion that truly reflected a variety of beliefs and values. Alas, it is not so.

The new report on the Pew website essentially says the relative anonymity afforded by the internet doesn’t make us (or at least most of us) brave enough to stand up for what we believe. It’s a sad commentary and what it seems to say is the “new transparency” of social media is just another public facade people who hold minority opinions feel they must maintain. Perhaps it is due to FoMO–another recent blog post of ours.

Regardless, here is some of what the Pew report finds in data collected from 1,801 adults between August 7th and September 16th, 2013–using the example of the Edward Snowden-NSA story. As background, the Snowden story was chosen since previous Pew surveys found the public was split on this story: 44% said the release of classified information harms the public interest and 49% said it serves the public interest. Of the 1,801 adults surveyed, 80% of the adults in this survey were internet users. 71% were Facebook users and (only) 18% of them were Twitter users.

While 86% were willing to have an in-person conversation about the Snowden-NSA story, only 42% of Facebook and Twitter users said they were willing to post about it online. The researchers believe social media users are particularly attuned to the opinions of those around them and are thus less willing to disagree with them.

Even when holding other factors (like age, gender, education, race, and marital status) constant, social media users are less likely to say they would join in (even in person) than non-social media users of the internet. Facebook users are only half as willing to discuss the Snowden-NSA story at a physical public meeting as a non-Facebook user. Twitter users are less likely to be willing to share their opinions in the workplace than internet users who do not use Twitter.

Social media users who think their social media friends and followers disagree with them on the Snowden-NSA issue were “more likely to self-censor their views on the story in both social media and in face-to-face encounters”.

In both face-to-face and online environments, people were more willing to openly express their views if they thought others agreed with them. 86% said they were “very” or “somewhat” willing to have a conversation about the story in at least one face-to-face setting, but only 42% of Facebook and Twitter users would discuss the story on social media.

The Pew Foundation graphic illustrates this clearly:

Pew spiral blog insert


From a litigation advocacy perspective, the chilling effect of social media involvement on one’s willingness to state a differing opinion is of great concern. We have always taken the lone naysayer in pretrial research seriously and expressed appreciation for their courage in speaking up in disagreement. This survey highlights the need to establish a friendly and receptive juror-centric tone (rather than one of client advocacy and confrontation) in voir dire. And it is yet another reason to teach jurors in actual trials how to deliberate and to make clear for them the importance of allowing disagreement and the expression of differing opinions.

One day perhaps we will all feel able to express what we believe to others. Social media, contrary to the expectations of many, has not changed the desire to not make waves and to self-censor opinions we believe will be unpopular.

We have all seen the evidence of what are commonly known as “trolls” on comment pages for various news sites and high-traffic. These people are not those identified by this Pew Report and we’ve covered a research study that helped us to understand those who actually comment on major news sites are probably not people we want as jurors!

KEITH HAMPTON, LEE RAINIE, WEIXU LU, MARIA DWYER, INYOUNG SHIN, AND KRISTEN PURCELL (2014). Social Media and the ‘Spiral of Silence’. Pew Research Internet Project.


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