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brain based MI 2015We’ve written about the brain based defenses a lot here. And here’s an article that may shed light on how the presentation of neural defenses could backfire on defense attorneys.

First, let’s look at the research. The researchers wondered how the biological explanation of mental illness might affect the empathy of mental health clinicians toward the patient. To test their hypotheses, the researchers performed three studies with a total of more than 300 participants (all mental health clinicians—psychologists, psychiatrists, counselors, and social workers).

What they found in the studies (using vignettes focused on clients/patients presenting problems of social phobia and depression) was surprising. Mental health professionals are trained to find ways to empathize while maintaining objectivity with their clients/patients. However, simple exposure to a biological explanation for the mental health issues resulted in mental health professionals reporting less empathy for the individual presenting for help.

When the researchers offered both biological and psychosocial explanations for the mental health issues (emphasizing biological causes in one experimental condition and psychosocial causes in the other condition), the mental health professionals were still less empathic when the explanation they heard emphasized biological explanations for the mental illness. Our take on this reaction is that empathy is reserved for circumstances that we can relate to, and that evoke some identification with the underlying problem. We understand and to some extent can relate to family tumult, loss, trauma, etc., how much can we empathize with a biological condition that results in anti-social behavior? It is a harder stretch.

From a litigation advocacy perspective, this raises red flags for the Defense attorney putting forth a biologically based (e.g., “his brain made him do it”) defense. If even trained mental health professionals are made less empathic by biological explanations for the mental illness, then what chance is there of non-mental health professionals feeling more empathic toward your client when they hear biological explanations for your client’s behaviors?

While neurological or brain-based explanations for behavior can sometimes be persuasive, they also categorize your client (the defendant) as something different from the jurors (i.e., not “like” the jurors). The creation of that distance can lead to objectification rather than identification with defendants, which isn’t usually helpful.

Even though jurors may accept the neurolaw defense, the defendant is alien to them, almost mechanistic and therefore not as likely to generate empathy and concern. For example, jurors may see your client as a psychopath and thus irredeemable (as well as very, very scary).

If the victim/Plaintiff is “like the jurors” and therefore worthy of empathy and concern—a neurolaw defense may work to the detriment of your client by increasing juror empathy for the victim/Plaintiff and decreasing empathy for the defendant (aka “that animal”). And while this defense may work to some extent in criminal courts, it seems that it would be a much more difficult position in a civil case.

Lebowitz MS, & Ahn WK (2014). Effects of biological explanations for mental disorders on clinicians’ empathy. Proceedings of the National Academy of Sciences of the United States of America, 111 (50), 17786-90 PMID: 25453068


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beeper vs iPhoneBack in the early ‘90s, I had a job that required me to carry a beeper. The constant awareness that I was “on call” was a source of strain and led me to complain I was never really “off duty”. Flash forward to this century and I cannot imagine being without my smart phone. In fact, I often double-check to be sure I have my iPhone when I am on the go so I never leave it behind. It’s a whole different sort of anxiety about being separated from my iPhone than I felt toward that beeper.

And I am not alone. Today’s researchers examine how many of us are anxious when separated from our instant access to email, texting, the internet, and the ability to make phone calls. They go so far as to say “cell phone separation can have serious psychological and physiological effects on iPhone users, including poor performance on cognitive tests”. Further, they say, “iPhone are capable of becoming an extension of our selves such that when separated, we experience a lessening of ‘self’ and a negative physiological state”. Seriously?

Researchers conducted what they call a “multistaged experiment”. They used a survey phase to recruit 208 participants from three separate journalism courses. Of those 208, 136 completed the online questionnaire to allegedly “understand media usage among a sample of college students”. (In truth, the researchers were looking for iPhone users and found 117 iPhone users in the 136 who completed the survey.)

Those 117 iPhone users were contacted again and told they could participate in a second study for additional course credit and a $50 gift card. Of the 117, 41 (73% female, average age 21.2 years, 88% White, 5% Black, 5% Asian and 2% Hispanic) agreed to participate in a 20 minute experiment.

The purpose of the 20 minute experiment was to see what happened to “perceived level of self, cognition, emotion and physiology” when the participant was separated from their iPhone and the iPhone was ringing. However, the participants were told they were testing the accuracy of a new blood pressure cuff while completing word search puzzles. The researchers had the participants complete word search puzzles while hooked up to the blood pressure cuff and either having their iPhone or not having their iPhone (since it was allegedly interfering with the blood pressure cuff operation and so the participant was asked to set their iPhone on a table four feet away from them).

The researchers found that participants separated from their iPhones had increases in heart rate, increases in self-reports of feeling unpleasant, found fewer words in their word search puzzles, increases in blood pressure levels, and higher self-reported anxiety.

The researchers conclude that being separated from your iPhone results in poorer cognitive performance and thus you may not want to be separated from your iPhone during tasks requiring significant mental performance (think test-taking, meetings, classes, and even perhaps, jury duty). The distraction and loss of your sense of self when separated from your iPhone may make you perform more poorly on those tasks. (Somewhere, Steve Jobs is smiling.)

While we wonder if this level of intrusive anxiety and poor performance is unique to college students (as measured by the FOMO scale) who have grown up with the constant presence of various cell phones and smart phones, it does raise the question of whether jurors are distracted from their deliberations by the court instructions to not use the internet, or post status updates about their experiences, or communicate with anyone, or quickly look up the definition of a word or phrase. And in Federal courts, you are usually banned from bringing the phone into the courthouse.

Being told to not use your phone is along the same lines as placing your iPhone out of your reach and not being able to answer it. Does it have the same effect? Are jurors struggling with distraction over not being able to use their phones? If yes, all the more reason to tell them why we don’t want them to use their smartphones. It probably won’t make the distraction go away, but it may help them understand why it is important.

Clayton, R., Leshner, G., & Almond, A. (2015). The Extended iSelf: The Impact of iPhone Separation on Cognition, Emotion, and Physiology Journal of Computer-Mediated Communication DOI: 10.1111/jcc4.12109


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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002


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Serial-2I like to think I keep up with trends and popular culture. Apparently though, I have been asleep at the popular culture wheel since I completely missed this until it was over. On the other hand, since the podcast had completely aired, I could binge-listen a la House of Cards. And binge-listen I did.

Serial, a podcast spinoff from This American Life (and touted as the most popular podcast of all time) is now here. You might think of Serial as a documentary of sorts—except in audio rather than video (and with enough journalistic flair to make it compelling listening). Twelve episodes (each roughly an hour) take us through what happened at trial, and review evidentiary documents and interviews as well as examining the distortions that ultimately arose. As narrator (Sarah Koenig, a journalist) says, our review of the evidence leaves us with more questions than answers.

Often described as a murder mystery or a whodunit thriller—Serial is, to my way of thinking, an exercise in understanding reasonable doubt. This true-life podcast has generated an incredible amount of media attention with witnesses and prosecutors taking issue with how they were presented in the podcast. Here’s a “rebuttal” interview on Serial from the prosecutor in the case, here’s the media reply from Serial producers saying they repeatedly attempted to make contact with the prosecutor, and another from the prosecution witness “Jay”.

Serial’s narrator, Sarah Koenig, is so naïve about the criminal justice system it can seem hard to believe. But her naïveté serves as an important reminder for us all of how foreign the criminal justice system is and how important it is for us to teach jurors what their job is so they can understand how to do their work effectively.

Here’s a snapshot of the podcast:

Adnan Syed was convicted of murdering his ex-girlfriend while they were both in high school. That was 1999. He is still in prison, has steadfastly maintained his innocence, and appears to have been convicted on circumstantial evidence. Mostly. Some say his conviction is the result of religious discrimination (Syed is Muslim). Others have said the podcast itself smacks of white (reporter) privilege. But you can decide for yourself.

Real. Real people. Real lives. Real jury deliberations. Real consequences (whether you agree with them or not). You can download Serial here:

Addendum: Just before we posted this, Gideon at the blog posted his own thoughts about Serial. We tend to agree with commenters Larry M and Sujal about the benefits of Serial for shining a light on the fallibility of the criminal justice system.

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solution aversionAlmost three years ago, we blogged about something called the extremist effect. The extremist effect is a strategy of taking something virtuous and turning it into a vice through clever language. For example:

You are a snowmobiling association being sued by environmental groups to block access to public lands. You diminish their position by saying, “Sporting enthusiasts may not get to enjoy our national parks this winter because [radical] environmentalists care more about rabbits than the local economy”.

In other words, you do not attack directly and seem uncaring about the environment. Instead, you tar their position as extremist and tie your position to something positive–in this case, the local economy. Those researchers were, like today’s researchers, interested in studying the polarizing language popularized by politicians and divisions between liberals and conservatives.

Fast forward three years, and we have researchers saying that the reason liberals and conservatives (which they simplistically and erroneously define respectively as Democrats and Republicans) disagree on specific issues–is not so much due to the problem per se, as it is due to the solutions proposed for those problems. (There’s been a lot of research in the past several years positing differences between Republicans and Democrats–usually described as conservatives versus liberals.)

When we focus on “problem deniers”, say the researchers, the tendency is to blame or somehow vilify those who deny a problem despite heavy scientific evidence pointing to problem existence. The “solution aversion” model says, “people will be skeptical of scientific evidence supporting the existence of a problem, to the degree that the existence of the problem directly implies solutions that threaten a person’s cherished beliefs and ideological motives”. Today’s researchers believe this is a more accepting and non-judging way of looking at why people choose to deny problems exist despite scientific consensus to the contrary.

They test their solution aversion model using the concept of climate change (which they say results in solutions that are unfriendly to Republican ideology but not to Democratic ideology). They did four separate studies which are loosely summarized below:

Study 1 focused on climate change and found (like other recent studies) that Republicans are more skeptical about climate change science than are Democrats. Republicans see the proposed solutions to climate change as a threat to the economy.

Study 2 focused again on climate change but manipulated solutions so they were less inconsistent with Republican ideologies. Half the participants in this study read about a regulatory restrictive emissions policy (less friendly to Republican ideology) while the other half read about a free market friendly solution that involved the US profiting from green technology (a policy friendly to both Republican and Democratic ideologies). As hypothesized, Democrats were supportive of either policy, while Republicans favored the free market solution.

Study 3 looked at how strongly participants believed in the free market ideology and then had them read an alleged blog post about the problem of air pollution and which proposed either free market solutions or government regulation solutions. The participants were then told the blog post had been written in response to a statement by the American Lung Association saying “44 million people live in an area burdened year-round by unhealthful levels of deadly particle pollution”. The more people supported free market ideologies, the more they denied the existence of a health problem when the solution was increased government regulation. So far, every experiment had shown conservative Republicans exhibiting solution aversion.

In Study 4, the researchers wanted to see if they could make the liberal Democrats demonstrate a solution aversion. So they created a scenario involving violent home break-ins and proposing either tighter (i.e., gun control) or looser (i.e., gun rights) gun control laws as the solution. Those who held a strong gun control ideology saw the “severity of intruder violence” as higher when the solution was gun control friendly.

The researchers say we need to stop assuming large groups of people are anti-science and instead, start looking at ways proposed solutions to problems may bump up against strongly held values. They believe that when solutions are presented in ways that do not conflict with ideology, you will not see the knee-jerk reactions reflected in so much of the research pitting liberals against conservatives. This is consistent with what we have advocated for years when it comes to litigation advocacy.

There are certain phrases that result in knee-jerk reactions. One is “global warming”. You can bet, if you use that phrase, that your jurors will line up along political lines. On the other hand, a phrase like “climate change” is much less divisive as it is much less associated with political polarization.

While Republicans will react negatively to the idea of global warming, say these researchers, both Democrats and Republicans have more neutral reactions to the concept of climate change.

Use pretrial research to identify hot-button phrases or associations that will polarize your jurors and then find ways to edit your case narrative to avoid those hot button land-mines.

Campbell TH, & Kay AC (2014). Solution aversion: On the relation between ideology and motivated disbelief. Journal of Personality and Social Psychology, 107 (5), 809-24 PMID: 25347128


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