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- Is anatomy destiny? One more time on ‘ugly criminals’
- Eww! That is just disgusting! (but…very interesting)
- If only you weren’t so greedy…
- Is it wrong to want an 8-foot chicken?
- May it please the Court
- Mad enough to kill? It’s better if you’re a woman
- I read the entire newspaper every day
Archive for the ‘Beliefs & values’ Category
Is anatomy destiny? One more time on ‘ugly criminals’
We wrote about this back in May but another publication has picked up the Ugly Criminals paper. This paper asks if appearance (attractive or ugly) results in being either law-abiding or not. Or is it more related to being seen by others as guilty or not. Reading the Ugly Criminals paper, it becomes quite clear that there are some disturbing ways that attractiveness is related to both criminal history and incarceration.
The Fortean Times article questions if anthropometrics is about to make a comeback. (Anthropometrics was originally the practice of measuring criminal’s faces to identify criminal facial traits for profiling.) The authors in the Fortean Times piece suggest that perhaps we should make efforts to understand rather than condemn the unattractive. They also admit they think this is unlikely. Commenters on the Fortean Times website mock the idea that the ugly are criminals. This makes it all the more disturbing that somehow, the unattractive are over-represented in our prisons since juries (made up of individual citizens) often have a hand in sending them there.
So how far has the ‘brain craze’ spread? Pretty far, it would seem. We can (sometimes, at least) understand the application to the law. But how about to career counseling? Neurocritic blog writes about the Johnson O’Connor Research Foundation (JOCRF). As Neurocritic writes:
“The Johnson O’Connor Research Foundation is a nonprofit scientific research and educational organization with two primary commitments: to study human abilities and to provide people with a knowledge of their aptitudes that will help them in making decisions about school and work. Since 1922, hundreds of thousands of people have used our aptitude testing service to learn more about themselves and to derive more satisfaction from their lives.”
And then goes on to describe an ongoing research project the Foundation is involved in looking at aptitudes and brain areas. Forty participants in the Foundation’s aptitude testing program were also given MRI’s and the volume of gray and white matter in various brain areas was measured. Ultimately, the authors concluded the sample size gave results that were simply too small to interpret meaningfully.
But that isn’t how the media saw it! Neurocritic goes on to point out that multiple websites picked up this project and presented it in such bold terms as “Brain Scans Could Guide Career Choices“. It didn’t matter what the JOCRF researchers actually said. The information was sensationalized. (And in truth, Neurocritic blog didn’t make it horribly clear that the sensationalizing was done outside the control of the Johnson O’Connor personnel.)
It’s part of what happens when research is done that hits on a hot topic in the world. Right now, anything about the brain and using the brain to predict our criminality; our career choices; our facial features; and more—is hot. And it obviously is interpreted in ways that sell papers or result in website URL clicks. Our longing for a rational basis for what we want to believe is pretty powerful.
The stronger our longing to find meaning in the data, the more easily we are misled. When I was in graduate school there was a geeky joke about people so determined to validate their hypothesis that they “drew the curve and then plotted the data”. In a world dominated by unsubstantiated reports of sensational rumor selling as science, you can’t be too cautious. Find out what was really said. In the courtroom, when you show jurors what was really said and how it got distorted and confused—they are often able to dismiss all the hyperbole based on an incorrect interpretation of the facts. If you want to debunk an appealing theory, you might want to discuss with your witness other examples of how headlines distort facts, and provide anecdotes to the jurors. But to tell that sort of clarifying story, you have to go beyond the sensational headline of ‘ugly criminals’ or ‘career counseling by brain scan’ and allow for what may simply be a false validation of what we would love to see proved.
If only you weren’t so greedy…
Two sisters in their eighties have been in the news for years as they keep fighting over a $250,000 lottery win. Theresa Sokaitis (age 80-something) and Rose Bakaysa (age 87) had gambled together for years and drew up a contract to share their winnings after a $165,000 win at a casino in 1995. But in 2004, the sisters had a bitter dispute over $250.00 (or maybe it was $100.00) one had loaned the other and they have not spoken since.
Rose Bakaysa (who won the $250K as her half of a $500,000 winning ticket she purchased with her 84 year old brother, Joseph) says during that 2004 fight they rescinded their gambling partnership. Her sister Theresa Sokaitis says they did no such thing and Rose is obligated to give Theresa half of the winnings. This fight has made it to the Connecticut Supreme Court and continues to this day. (Although the Connecticut Supremes found in favor of the lucky sister, Rose.)
Concurring Opinions blog posts the complete text of a letter Theresa sent to Rose and we post an excerpt below:
Rose,
I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it. [snip]
Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .
See you in court.
Terry
As the sisters fight on, we point to a common counter-factual in Theresa’s (aka Terry) letter to Rose. “If only you hadn’t been so greedy”…
This line of thinking is a consistent one we see in jurors’ reactions to case narratives. We’ve written about this before in the context of helping jurors to see the frame through which you would like them to view your case. In the case of these sisters, there is the issue of a contract dispute but it’s likely secondary to the family relationship that has been severed.
It’s always sad when family matters end up in litigation. We’ve worked on a fair number of family disputes (usually between members of very wealthy families) and the mock jurors reactions are almost always the same. It has never mattered whether it was a dispute over inheritance, family business income, contractual disputes, or a high-stakes divorce. Mock jurors consistently express the same reactions you likely have in reading about the tale of these two sisters.
“This isn’t right. Blood is thicker than money. [?] They should put this behind them and start again.”
“Let’s throw this case out and direct them to a family counselor to repair the damaged relationships.”
“This is just ridiculous. They aren’t really fighting over the money. They’re fighting over their hurt feelings.”
In Texas (and everywhere else) families are important to jurors. As we have noted countless times before, jurors want to fix problems and make the world a better place. There is no resolution to this dispute that will leave jurors feeling that the special bond between sisters is repaired, and that is, of course, what they want to see. While they are intrigued by the drama, they are ultimately heart-sick at the toxicity and finger-pointing. Jurors don’t feel good about being moral arbiters between family members.
As an advocate for your client, you have a very fine line to walk. Like the mothers before King Solomon fighting over the child, they want to see who is more open to higher values, to compromise, and healthy rapprochement instead of naked greed. Jurors are going to watch you to see if you (and your client) are about grabbing the money or about what is fair and right.
Is it wrong to want an 8-foot chicken?
Since some of you cynics imagine this to be a trick question, you’re thinking it probably depends on the definition of ‘want’. For more than 5 years, I have wanted, ruminated about, and considered how I could fit this chicken into my life. Would the neighbors complain about it peering over their fence? Would my HOA have a fit? Would it make me smile every time I saw it?
The chicken lives in Brenham, Texas along Highway 290 between the Dairy Queen and Michael’s Taxidermy. Every time I drive to Houston, I pass the chicken (yes, I know it’s really a rooster, but in my mind, it’s a chicken). I always think “I want that chicken” but I never stop. This week I stopped. And the chicken is not for sale until the price of metal in Mexico stabilizes. I want the chicken even more now that I know I can’t have it. They offered a 4-foot chicken and even a 2-foot chicken for a whole lot less than the 8-foot chicken will cost. But it wouldn’t be the same. Sometimes, only the real 8-foot chicken will do.
It’s beyond reason—my chicken fixation. Like the way sometimes attorneys choose to take on cases that really are not good ones. I remember a case we did a focus group on a number of years ago—a motorcyclist not wearing a helmet and ending up with a horrible head injury. His spouse said “he was responsible—he wore a helmet every time, except this time”. The mock jurors thought he knew better and this is what happens. I wonder what made the attorney choose that case?
Or the case of the high school teenager (a very good girl) who met a boy (who was actually a young man pretending to be a high school senior) on a social networking site and secretly met him (knowing her mother would not approve) and she was raped. Her mom thought the social networking site was responsible. Jurors thought the girl had made a bad choice and painful as it was, this was a natural consequence. What we predicted, and what the focus group told us, was that the jurors were distressed by the failure of parental supervision. That one was easier to see in terms of attorney investment: a horrible outcome and fears about how social networking sites were playgrounds for predators. But jurors saw it differently.
We’ve seen the newer research on how bad many lawyers are at predicting case outcomes and therefore, on choosing cases. But why is that? The researchers say women are better at it then men and that there are specific case patterns that make it tougher. While those things may be true—perhaps there are also some individual/internal factors at work.
I think sometimes we don’t want to believe we made a really bad decision. Or we are blinded for various reasons in our own history. So I was thinking about why I want this chicken. What are the motivations or early childhood experiences drawing me to an 8-foot chicken? And I thought of Paul Bunyan.
I grew up in Michigan’s Upper Peninsula, close to the border of Canada. We didn’t have 8-foot chickens up there. But we did have a 15-foot tall Paul Bunyan statue near my high school. I considered if the 8-foot chicken was a substitute for a Paul Bunyan. But then I came to my senses. I never, ever, even for a moment, wished for a Paul Bunyan statue in my yard. That would be tacky. But an 8-foot chicken? That’s art.
I read the entire newspaper every day
It used to be that agreement with this statement was a good indicator of social desirability responding. This is the social scientist way of saying “he is lying, but only because he wants you to admire him.” Now, with newspaper readership declining for the past two decades it’s less useful. We simply don’t see reading the newspaper as a highly desirable trait any longer. And this is especially true of younger people.
But the desire to “look good” has certainly not gone away. We say we watch the network news much more often than we apparently actually do. Those who design questionnaires say we can make questionnaires that accidentally result in our encouraging respondents to agree with our questions. Respondents who don’t wish to carefully consider their answers fall victim to ‘satisficing’ by simply giving ‘adequate’ rather than ‘accurate’ answers.
The last thing you want is for a juror to engage in social desirability responding. Except when you do want them to do exactly that. And there are times you don’t.
- If you want jurors in voir dire to honestly disclose bias, you have to embolden them to admit to attitudes that might seem critical, judgmental, or harsh.
- If you want to inoculate jurors against disqualification, they need to affirm their ability to be open minded until all of the evidence is in, even if they are frankly biased. [We are reminded of the old story of the juror who, when questioned, assured the defense counsel that he would keep an open mind during the whole trial, and when they sentenced the defendant he could be fair then, too.]
- If you represent the plaintiff (who happens to be African American) in a personal injury case, you want social desirability responding.
- You want to raise the issue of race overtly and ask jurors if it should make a difference that the plaintiff is African American. You want them to act in an unbiased fashion and you make unbiased responses socially desirable.
- If, on the other hand, you represent the defendant and the plaintiff happens to be African American, you don’t want socially desirable responding—you want bias.
- So you do not raise the issue of race. And you hope the plaintiff doesn’t either. Because if you don’t, (and they don’t) the award, if any, will be lower and the finding against your client less severe.
It’s sad, really. How you tell the story and how you raise or don’t raise the flag announcing racism can determine the specific version of ‘justice’. We have clear preferences for justice being real and justice being color-blind (and blind to parties attractiveness, gender and education). But it isn’t. So we attempt to share the truth of what we know to be true to help you in your advocacy work.
Legal decisions that tick jurors off
Two recent legal events (an arrest and the overturning of a conviction) have resulted in a lot of commentary by aggravated citizens. Those who have served on juries tend to have more positive things to say about jury service than those who have never served—but the reality is there is much in the media to tick potential jurors off. And of course, the vast volume of sound verdicts by jurors are simply not as much fun for the press to cover, so… Recently, two decisions have struck chords with jurors and resulted in them expressing a perspective that something is seriously wrong with our criminal justice system.
The Warren Jeffs retrial
Warren Jeffs (known as the “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints—aka FLDS) was convicted in September, 2007 of coercing a 14 year old girl into marrying her 19 year old cousin. Jeffs was charged with two counts in being an accomplice in the rape of a teenage girl. Many doubted Jeffs could be convicted in Utah. But convicted he was. Now,as of July 28, 2010, Jeffs’ conviction has been overturned by the Utah Supreme Court on a technicality. In less than a week, there are more than 1600 comments about the ruling. Most of them are from ticked off citizens who think this should never have happened. Stories like this one, regardless of their legal merit, enrage the public.
The Grim Sleeper arrest
On July 7, 2010, Los Angeles Police arrested a man they believe to be a serial killer dubbed the ‘Grim Sleeper’. They charged Lonnie Franklin, Jr. with at least 11 murders between 1985 and 2007. That first day, it was reported that:
“Franklin’s arrest was the first successful use of a DNA investigative tool known as “familial” searching in California. Familial searching, approved by Atty. Gen. Jerry Brown at the urging of Cooley and other prosecutors, allows investigators to pursue partial genetic matches to crime scene evidence when the suspect’s DNA profile is not in the state database.”
Later on July 7, 2010, an article was published detailing how LAPD had followed the DNA trail to the alleged perpetrator. And the next day (July 8, 2010) questions began to arise about whether it was fair to use family DNA to catch a killer. Before another week went by, the debate had been framed as either a tool to protect communities or an invasion of privacy smacking of racial profiling. And comments show people are unhappy on either side of the debate. Those who think it makes sense to allow ‘familial searching’ point to the reality that it may be the only way to catch dangerous criminals. Those who think it goes too far say relatives who are innocent can be dragged into situations over which they have no control and no involvement.
The lesson for us in this is to make sure and explain ‘why’ the rules are important. Explain ‘why’ they can’t use the internet to research the case, and explain how reliable (or not) forensic evidence is. To be optimally persuasive, you have to educate, inform, and bring jurors along with you in the story. It won’t keep things from happening that may rub jurors the wrong way. But it gives them a framework to understand “why” and while that framework may not help them feel good about their decision, it comforts them in their distress.
When you expect a gorilla you often miss other unexpected things
Many of us have seen the original change blindness video by academics Dan Simon and Christopher Chabris (“the gorilla guys”). And if you haven’t seen it, watch it here! The original video made quite a splash when it was released and now, not content to be one-hit wonders, these two researchers have released a second video. Watch this one and see if they get you again!
While the researchers say this video is instructive regarding our ‘change blindness’—we can see the lessons for trial lawyers. After living with a case for the length of time it takes to go from taking on a case to filing to depositions to preparing for your day(s) in court—attorneys often lose sight of what will appeal to the potential triers of fact. They know what appeals to them. They know what they think is important. They know what “should” happen. In other words, they expect a gorilla. And jurors often see something else.
One of the true benefits of pre-trial research is the opportunity to see what else happens when the case is presented. That is, do jurors see a gorilla or do they see something else and totally miss the gorilla? We’ve had countless examples of jurors missing the gorilla (or perhaps the attorney missing something even more important to the jurors).
- A hospital-based malpractice case where the heart-sick nurses shared their feelings with the attorneys but did not show their emotions in deposition testimony. The attorneys knew the nurses’ pain. The jurors saw cold and uncaring and defensive professionals who were likely responsible for harm to an innocent patient. They wanted the hospital staff to understand it was important to care when you are in a caring profession. Witness preparation focused on helping the nurses to trust their honest feelings, which resulted in them coming across as caring and concerned about patients.
- A high-dollar patent case where the technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file? Who was hurt? Who was cheated? Whose dream was stolen? If the patent is validated, is anyone harmed?
- A contract case where much of the agreement was not detailed in writing. (“God bless poorly executed transactions” say the commercial litigators…”) The attorney thought the fine reputation for good work in the local community would serve the plaintiff well and that jurors would want them to be able to continue in their work. The jurors thought that good practitioners do not necessarily make good business decisions. They thought the defendant was a schmuck, but also that the plaintiffs had no real case.
In all of these cases (and many others) the attorneys spent so much time and energy on the case that they lost sight of some important facts. They expected a gorilla. If you weren’t expecting a gorilla—what else might you see?
To be or not to be? Can you answer that question on-line?
Choosing to end one’s life has always been a controversial choice in Judeo-Christian societies, among others. But it used to be more of a private, highly personal and solitary consideration. Now it’s being written about and discussed (there are more than 100 comments on the article referenced here) online. I remember when the Hemlock Society was whispered about—now we talk about suicidal impulses for the world to see.
And, naturally, those discussions wind up in the courtroom. An odd case surfaced in the late spring (May 2010) of a licensed practical nurse who later claimed a “suicide chat room addiction”. In brief, a seemingly caring young woman who said she was a nurse would strike up conversations in chat rooms with people contemplating suicide. “She told some that it was all right to let go, that they would be better in heaven, and entered into suicide pacts with others.”
Turns out the alleged young woman was actually a middle-aged man (William F. Melchert-Dinkel, a 47 year old father from Minnesota) who says he gave between 20 and 30 people advice on how to end their lives (practical, how-to strategies). He is now being charged under the assisted suicide statutes and says he is sorry for the advice he dispensed online.
The case raises thorny questions about free speech, assisted suicide statutes (will they really cover this behavior?) and how we prosecute those who use speech as a persuasive tool in the demise of others. It is certainly as disturbing a question as many raised in our coverage of the neurolaw defense.
- Can a person be prosecuted for harmfully influencing depressed people?
- If I tell you it is alright to kill yourself and you do, am I legally responsible?
- What does it mean to make choices of our own? Is any other responsible for what I do with my own hand?
As we enter more and more into the virtual worlds of connection with strangers on-line, where do we draw the lines as to responsibility? It’s a scary question.
Keep your eye on this one: A Depravity Scale
Like art (“I know what I like”) we may think we know depravity when we see it. But scientists think it would be better to quantify evil. And so they ask important questions.
“Which is worse: Bombing a building or forcing a child to watch a crime? Attacking a stranger for fun or causing a car accident while under the influence of drugs or alcohol? Murder with intent or murder by mistake?”
To identify what Americans think is worse, the researchers ask participants to rank order behaviors:
“Examples include: Bombing a crowded building in the middle of the work day in order to cause the greatest number of casualties; wanting to watch a victim die; victimizing the disabled; massacring obviously harmless villagers during wartime; and being able to carry out regular activities as if nothing happened after a crime.”
Don’t you wonder about the kinds of people who think up this research? Wow! And they want your help! If you’d like to participate in the research to help craft the Depravity Scale, you can participate here (at least as of July 24, 2010).
The idea is that if researchers can rank order the depravity (e.g., how heinous, cruel, atrocious, depraved or evil) of a particular crime, it would give guidance on sentencing—since one would likely want sentencing to fit the depravity of the crime. The downside is that we have no idea if the people responding to this survey are truly representative of American society as a whole. And even if they are, do we want sentencing for various acts based on a scale of how depraved a particular action/behavior is? Sometimes, it just isn’t that simple. But it can be nearly that creepy.
We know liars when we see ‘em
Or so we believe. We’ve written about beliefs in our individual ability to detect deception a number of times. The truth is, our ability to detect deception is often less than that of chance alone. But that doesn’t inhibit our wish to imagine great skill in detection. Even when we experience lies big and small—right to our faces—on a regular basis, we still want to believe we have nearly magical ability to spot it. If this delusion wasn’t so dangerous it would be somehow funny or sad. But in fact it is hazardous to justice.
We want to believe we can spot liars on sight. Some would say that intensive ‘scientific’ research has brought us closer and closer to ‘scientific’ means of assessing deception. In fact, recently an eye-tracking lie detection method has been licensed to a Utah based company. Principals in the company say that this product was developed based on intensive research and that it will enable better “national security” among other things.
While most jurors can’t use advanced equipment to identify liars, many of them are attempting to enhance their skills in deception detection by watching TV. The Fox Network show “Lie to Me” has become a popular television show which many tune in to faithfully. In fact, many trial attorneys routinely ask jurors what television shows they watch on TV to get a sense of who may have beliefs about the work of the police, investigators and attorneys.
So here’s an interesting finding. A recent study on viewers of Lie to Me found that all watching this TV show did was make viewers more suspicious of others—but it did nothing to improve their detection of deception. Which leads us to a new reason to ask about television shows jurors watch:
- If you want jurors who are suspicious and prone to see conspiracy about them, you likely want viewers of this TV show on your panel
- If you want jurors who are not suspicious and prone to see conspiracy about them, you don’t want viewers of this TV show on your panel
We love research. It’s always good for something!
The Millennials (aka ‘Gen Y’): On tattoos, TMI, tolerance and technology
We have an article in this edition of The Jury Expert on the Millennials (aka ‘Generation Y’). There’s been a lot of information floated out there as fact that is simply observation, opinion, and (frankly) made up stuff. Pretty shocking, eh? As trial consultants and as parents of four Millennials between us, we wanted to collect what is actually known (based on data, evidence and surveys) about this emerging generation. I mean to say—is it possible that I could misunderstand my kids?
What we found was enough for two articles rather than one so you’ll have to wait until September for the next piece (Gen Y in the law firm and in the workplace in general). But you can see the first one, Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials now.
We were taken aback when we found this article from 1990 at Time.com. This piece is written about Generation X but if you tilt your head just a bit when reading it you can see it is quite reminiscent of what we are now reading about Generation Y (the Millennials) and what we would have likely read back in the late 1960’s about the Baby Boomers. What goes around, comes around. We forget our own youth and immaturity and assume that those coming up behind us are less worthy than we were, have poor work ethics, poor hygiene, and bad values. The only difference is that now, when we write, it’s on the internet (courtesy of Web 2.0) and readily searchable, spreadable, and taken as ‘research’ rather than opinion. W.R. Eilers wrote a terrific blog post on this point back in May, 2010.
What we’ve done in our article on the Millennials is to collect what we really ‘know’ about this emerging generation so that you can know what is truly descriptive of them and what is not. (We include some of the ‘what is not’ as well, just to keep you on top of things!) What we found is captured (without much detail) in our paper’s title. But there’s a lot more to this generation than tattoos, technology, tolerance and TMI and we hope you’ll stop by and read the article and leave a comment to let us know what you think! As always, we make a particular point of what all this information means for you in the courtroom and in voir dire. After all, that’s what we do!
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