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The first entry in our Simple Jury Persuasion series was titled “There is no such thing as persuasion”. The thesis was that you should craft your story to fit the jurors–rather than trying to pull them in your direction.

It’s more than two years (and a lot of posts) later and we still know it to be true. The difference is that now, we have much more research supporting the idea that values and attitudes lead the way in whether jurors ‘hear’ your trial story as also being their own.

There’s a long-standing argument about whether demographics (like age, race, gender, education, and more) can be used effectively to identify jurors good for your particular case. Trial consultants have historically said “no they don’t”. Occasionally we’ll do a mock trial where one of those variables is related to eventual verdict but we’re much more likely to see attitudes, beliefs and values pointing to ultimate verdict. And in those cases where a demographic variable appears relevant, it is usually due to a common life experience that shaped their viewpoint, and the key life experience would apply as well to people of another demographic segment.

In three different studies, researchers wanted to see if activating important values prior to the encountering of a persuasive message would enhance message processing. They had participants rate the importance of six different values (e.g., self-respect, loyalty, freedom, wealth, social power, and unity). They divided the values up into more important to the group (e.g., self-respect, loyalty and freedom) or less important (e.g., wealth, social power and unity).

What they found was that activating the ‘important values’–as rated by each participant–prior to hearing the persuasive message was helpful in the participant actually being persuaded. The researchers actually displayed the value labels on a screen (and in other ways)–the participant would see “self-respect” (for example) for a second or so prior to focusing on the message. We imagine there would be an issue with that in the courtroom. But there are other ways to “activate” values.

Activate as early as voir dire: Prime a receptive attitude in jurors by establishing a tone of commonly held values– let them know that what is important to them is important to you. Pay attention in voir dire and jury selection to the ways your jurors answer value and attitude based questions. If your client has visible negatives, you want to avoid jurors who express strong beliefs that will make it uncomfortable for them to support your client and quietly note those who are more open and tolerant.

Make your client ‘like’ the jurors: Introduce your client in a way that touches on universally held values–such as family, community involvement, education, church activities, volunteering, etc.

Use case themes tied to values: Tell your story in a way that touches on values and beliefs that jurors share. You can tell a story about a broken contract with themes of trust, good intentions or bad ones, and keeping your word.

Remember to be responsible: And this is different that ‘taking responsibility’ for the events at issue. Jurors are very focused on personal responsibility these days and want to see your client take responsibility for that for which it is truly appropriate to take responsibility.

Use what you say and how you introduce your client and tell their story to activate values in the jurors. The idea of shared values and beliefs makes whatever story you tell less threatening to jurors. Less threatening messages are less resisted and more likely to be ‘heard’ by jurors with disparate life experiences from your client.

Blankenship, K., & Wegener, D. (2011). Value Activation and Processing of Persuasive Messages Social Psychological and Personality Science DOI: 10.1177/1948550611424084

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An intriguing survey came out recently from the University of Michigan. It’s a study of Americans’ values.

“More than 90 percent of those surveyed agreed that all people deserve equal opportunities in life,” says sociologist Wayne Baker, the project’s principal investigator. “Just about everyone also agreed that respect for people from different racial and ethnic groups, and for people of different faiths, is also important to them.”

In fact, these values are so widely held that they can be said to be American universals , according to Baker, who is a faculty associate at ISR and a professor at the U-M Ross School of Business. [quoted from press release]

So we say we believe in equal opportunity and that respect for varying racial and ethnic groups and for people of different faiths. But do we really show these values through our behavior? The parade of continuing polls showing Americans persist in thinking Obama is a Muslim and the ongoing explosions that continue in the media and often seem to boil down to race (see here for example) would certainly seem to call that into question.

We say these values are important to us but our behavior doesn’t reflect the values we say we hold dear. We see this all the time in pre-trial research. Mock jurors can tell us what they think they think. But almost always, when their decisions reflect bias—they have many ‘reasons’ as to ‘why they think what they think’. Most of those ‘reasons’ don’t hold up to analysis.

It’s a shame. It would be nice if what we say we hold dear was really what we fight to uphold and honor. But it often isn’t.

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It’s been a while since we’ve had a new cognitive bias to share with you. Previously we’ve blogged on many different biases and here are a handful of those posts. Today’s research paper combines three biases—two of which we’ve blogged about before: the better-than-average effect, confirmation bias and also, the endowment effect. The endowment effect is the “(irrational) added value” we place on things just because they belong to us and not to someone else.

So, today’s research was described over at BPS Digest (a reliable source for accurate summaries), and it’s a bit odd. For the sake of brevity, here’s what BPS Digest says (they are based in England so they don’t spell everything like we do in the States) as they describe the study (we added emphasis to important points with bold font):

Across three studies, the researchers asked hundreds of participants to imagine a fictional planet in a distant solar system, inhabited by various creatures some of which are predators and others prey. Focusing on two of the creatures on the planet – Niffites and Luppites – the participants were told to imagine that they (that is, the participant himself or herself) held one of two different beliefs: Some were told that they had a theory that the Niffites were the predators and the Luppites were their prey, while others were told to assume that somebody called “Alex” had this theory. This background scenarios was chosen to be neutral and unconnected to existing beliefs, and the hypothetical “ownership” of the theory by some of the participants was intended to be as superficial and inconsequential as possible.

Next, the researchers presented the participants with a series of seven facts relevant to the theory. The first few were mildly supportive of the theory (e.g. Niffites are bigger), but the last few provided strong evidence against (e.g. Luppites have been observed eating the dead bodies of Niffites). After each piece of evidence, the participants were asked to rate how likely it was that the theory was true or not.

The way the participants interpreted the theory in the light of the evidence was influenced by the simple fact of whether they’d been asked to imagine the theory was theirs or someone else’s. When it was their own theory, they more stubbornly persisted in believing in its truth, even in the face of increasing counter-evidence.

This spontaneous bias toward one’s own theory was found across the studies: when different names were used for the creatures (Dassites and Fommites); whether testing happened online or in groups in a lecture room; regardless of age and gender; and also when an additional control condition stated that the theory was no one’s in particular, as opposed to being Alex’s. The last detail helps clarify that the bias is in favour of one’s own theory rather than against someone else’s.

The ownership of the theory made the difference in belief persistence. We are reluctant to discard ideas we think of as our own, even when the evidence contradicts it.

From a litigation advocacy perspective, we have talked a lot about how facts don’t matter (still true in 2017 as our most recent post on this topic explains) when it comes to personal beliefs and emotional reactions of jurors. In their paper, the authors of the SPOT effect research say this bias cuts across gender and age and that it “reflects a pro-self as opposed to anti-other bias”. They also comment on how easy it was to create allegiance to a theory (“phenomena that require surprisingly little to bring about”)—just by saying “I have a theory”–participants stood by the beliefs even in the face of evidence to the contrary.

We wonder how much stronger (and emotional) this bias would be if those core values and beliefs held by individual jurors were challenged in case narrative. While this is a new bias just named, it is why (for years now) we have recommended that our client-attorneys try to avoid hot-button issues and instead focus on incorporating universal values into their case narrative.

You are less likely to get knee-jerk reactivity from jurors who have polarized political positions when you use universal values to frame your case narrative (and stay away from unnecessary controversies).

Gregg AP, Mahadevan N, & Sedikides C (2017). The SPOT effect: People spontaneously prefer their own theories. Quarterly Journal of Experimental Psychology, 70 (6), 996-1010 PMID: 26836058

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In 2014, we wrote about research investigating how people felt when a witness wore a veil such as some forms of a hijab or a niqab. Here were some of the findings we described in that research.

We’ve written a number of times about bias against Muslims. But here’s a nice article with an easy to incorporate finding on how to reduce bias against your female client who wears a Muslim head-covering. (In case you have forgotten, we’ve already written about head-coverings for the Muslim man.)

The graphic illustrating this post shows the variety of head-coverings Muslim women might wear and the initial findings (as to which head covering style results in the most bias) will probably not surprise you. Researchers did four studies to see how people reacted to Muslim women wearing veils. They consistently found these reactions:

Responses were more negative when the Muslim woman wore a veil of any kind compared to no veil at all.

When the various veils were compared, the niqab or burqa (where only the eyes are exposed or even the eyes are covered) were seen most negatively.

Today’s research goes beyond bias caused by face veils and looks at whether observers are able to detect deception in witnesses wearing veils (as compared to those not wearing veils). The researchers cite three fairly recent (post-2000) cases resulting in judges in the USA, the UK and Canada ruling witnesses cannot wear the niqab when testifying, in part, say the researchers, because they believed it necessary to see a person’s face to detect deception.

The researchers decided to test that assumption by comparing the ability to detect deception when a testifying witness wore a face covering veil versus when the witness did not wear a face covering veil. They ran a study in Canada with 232 participants and then a second study with participants from Canada, the UK and the Netherlands (with a total of 291 participants) and came to a perhaps surprising conclusion. While the detection of deception in unveiled witnesses was no better than chance—the same was not true for those witnesses who wore veils.

“Observers were more accurate in detecting deception in witnesses who wore niqabs or hijab than those who did not veil.”

The researchers say that (contrary to the assumptions underlying court decisions in three countries) the witness who wore a veil did not hamper lie detection—but rather improved it. Why? They make several hypotheses:

Researchers think participants in the “veiled” condition may have interpreted “eye gaze information” more accurately.

Participants had less visual information to attend to and thus were more likely to base their decisions on verbal than non-verbal information.

In short, the researchers think their participants were forced by the situation to rely more on verbal behavior and to focus their attention on the eyes of the witness in the veiled condition. This is actually consistent with the research we’ve covered in our multiple posts on deception detection research. Examples from detection research such as narrowing your focus from multiple cues to just a few or even one cue, examining eyebrows, having certain personality characteristics of your own, how much the witness uses profanity, and even how long it has been since the witness has used a bathroom, and much more are all mentioned in the research as aiding in deception detection. And then there are all of the things jurors often believe point to deception that truly do not help them to identify who is a truth teller and who is a liar.

In this research, the participants could examine eyebrows in the veiled condition and their focus was certainly narrowed so they were less likely to be distracted by irrelevancies—that alone likely improved their ability to detect deception. This is an interesting study that tells us the common reliance we see among mock jurors on non-verbal indicators to detect deception and even the court rulings since 2000 are outdated when it comes to jurors’ ability to detect deception in a witness. Like the researchers say in their article title, less is actually more when it comes to detecting deception.

We made some recommendations to reduce bias against your veil-wearing client back in 2014 and we would still make those recommendations today.

Here they are:

The researchers say that for the least bias, if a religious Muslim woman wants to wear a head-covering, the hijab is likely the best choice. That may, however, not be an option given her religious beliefs.

In either case, this research would say to give jurors information about your client’s choice to wear a Muslim head-covering (of any style) and it will reduce negative assumptions.

The very process of sharing the reasons for wearing a head-covering with jurors, gives them the opportunity for emotional connection with your client. Her sharing reasons for the head-covering allows them to ‘see’ her individuality and religious conviction.

We’d call that both making your client more similar to the jurors (through the use of universal values) and giving jurors an opportunity to see “beneath the head-covering” to the woman herself.

Leach AM, Ammar N, England DN, Remigio LM, Kleinberg B, & Verschuere BJ (2016). Less is more? Detecting lies in veiled witnesses. Law and Human Behavior, 40 (4), 401-10 PMID: 27348716

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atheist-update-2016We’ve written about atheists here (and how unpopular they are in North America) a number of times. The first time was in 2010 when we wrote an article in The Jury Expert because we were so taken aback by the level of vitriol we’d seen in a blog post describing a new research article on atheists. We found the level of vitriol reserved for atheists hard to believe but, when we went to the literature, it was a consistent theme for decades.

It is hard to believe six years has passed since we wrote that article, but the authors of the original research article have published an update ten years later. Despite some religious groups improving their images in the eyes of the public in the last decade, the level of dislike for atheists has remained (although they are now statistically tied with Muslims) as “most disliked”.

In their ten-year update (drawing from the 2014 version of the nationally representative survey they used for the first article in 2003) the researchers tell us about how attitudes have not changed toward atheists and that the negativity toward atheists also colors perceptions of those who describe themselves as “spiritual but not religious”. Here are a few quotes pulled from the new article that illustrate some of their findings.

While Muslims have surpassed atheists as the least-accepted group, Muslims and atheists still receive the most negative evaluations compared to all other groups in 2014, as they did in 2003.

…moral concerns about atheists are, in fact, relatively common in American society; for example, over a third of Americans (36 percent) either somewhat agree or strongly agree that atheists “lack a moral center”.

…it seems that the term “atheist” denotes a cultural category that signifies a general and diffuse sense of moral threat.

…public distrust of atheists is primarily motivated by cultural values, and private distrust of atheists is motivated by cultural values and private religious beliefs, but both effects are substantially mediated by respondents’ moral concerns about atheists.

Moral concerns about atheists have consequences for how Americans perceive the overall decline of religious affiliation. Overall, the spiritual but not religious (SBNRs) are more favorably perceived than are atheists; beliefs that atheists are immoral increase negative sentiment toward SBNRs.

Our analyses show that anti-atheist sentiment in the United States is persistent, durable, and anchored in moral concern. A substantial percentage of Americans see atheists as immoral, and are therefore significantly more likely to say that atheists do not share their vision of America and to disapprove of their son or daughter marrying an atheist.

Overall, atheists are still seen as “other” and devalued for having fewer morals than those with religious beliefs which may be weak but are not a complete repudiation of religiosity. The FBI has just released a report that hate crimes against Muslims are up by 67% in 2015 so (given that this survey was completed in 2014) Muslims are probably even more unpopular now.

From a litigation advocacy perspective, it behooves us to pay special attention to atheists and Muslims involved (even as non-party witnesses) in jury trials. In the effort to overcome “otherness” regarding atheism, there are testimony topics that might be helpful. Atheists are thought of in terms of what they don’t believe, leaving open the question of what they do believe. Of course the answer to that is as diverse as the population, but it is a potentially positive association, rather than a negative one. Also, given the recent presidential elections and the aftermath protests and demonstrations, we would do well to pay special attention to bias against any party to litigation who is not White, and possibly also not male.

Only time will tell if the slightly more than ⅓ of the US electorate that elected Donald Trump will be emboldened in the deliberation room to actively and openly express discrimination toward parties of color. In the meantime, prepare witnesses and clients to espouse universal values and be vigilant to hidden (and not so hidden) biases whether anticipated or complete surprises.

Edgell, P., Hartmann, D., Stewart, E., & Gerteis, J. (2016). Atheists and Other Cultural Outsiders: Moral Boundaries and the Non-Religious in the United States. Social Forces, 95 (2), 607-638 DOI: 10.1093/sf/sow063

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