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liberal-vs-conservative 2016It’s a basic tenet of the reptile theory that you want to frighten your jurors to make them vote for your client in deliberation. [The ABA has put out an open-access primer on the reptile theory and you can see that here.] It is also been shown repeatedly that conservatives are more fearful than liberals, but now we have research telling us that if you terrify a liberal, they think more like conservatives. We’ve seen the results of fear in multiple pretrial research with mock jurors but we do not think the reptile theory particularly original. It seems to be an adept repackaging of the terror management theory but it is certainly marketed persuasively as the “only way to win”.

So, on to today’s research. Researchers from the UK analyzed data from two nationally representative surveys (completed about 6 weeks before and about a month after the July 7, 2005 bombings in London). As a reminder, in the bombings in London, the bombs went off on the public transport system. The explosion led to the death of 52 people and injuries to 770 and were part of an Al Qaeda attack carried out by several Britain-born Muslims and a Jamaican Muslim immigrant. (In the event you wonder why this is only being published now, the data just recently became available.)

The researchers looked at questions that represented “four moral foundations”:

In-group loyalty (“I feel loyal to Britain despite any faults it may have”)

Authority-respect (“I think people should follow rules at all times, even when no one is watching”)

Harm-care (“I want everyone to be treated justly, even people I don’t know. It is important for me to protect the weak in society.”)

Fairness-reciprocity (“There should be equality for all groups in Britain”)

Then they looked at the level of agreement with this statement on Muslims (“Britain would lose its identify if more Muslims came to live in Britain”) and this statement about immigrants (“Government spends too much money assisting immigrants”). They wondered if beliefs about Muslims and immigrants would be more negative following the terror bombings and….attitudes were more negative.

However, attitudes were not more negative for everyone! Only liberals attitudes became more negative while conservatives attitudes remained about the same. The researchers believe the liberals were “terrified” and thus more negativity was reported directed at Muslims and immigrants and they wonder if when conservatives experience terror—does it work to consolidate their perspective and make them more resistant to change?

In other words, conservatives hunkered down in their pre-existing beliefs and liberals rushed to join them. The authors make this comment about implications for their research:

“For people working to tackle prejudice, it is important to be aware that terror events may have different effects on the attitudes of people who start from different political orientations. Among people who tend to be conservative, such events may consolidate their existing priorities, making them resistant to change. Among people who tend to be liberal, the same events may prompt a shift in their priorities and propel them toward more prejudiced attitudes.”

It’s an interesting finding when considering the reptile approach since it would support long-standing terror management theory beliefs that say when you are threatened, you seek safety. Apparently, for liberal Brits, safety was found in numbers among their own kind (and conservative Brits were more “like the” liberal Brits than were the terrorist Muslim immigrants). So, let’s say opposing counsel has frightened your jurors to death (metaphorically speaking). What can you do to (quickly) help them feel safe again?

While we feel a need to make clear that we have never tried any of these in the aftermath of a terrorist attack, here are a couple of strategies you can employ to counteract the reptile approach.

Ultimately, we still like this strategy (blogged about earlier) to counteract the fear purposely instilled by the litigator employing the reptile approach—we even called it the anti-reptile theory and have used it to good effect at trial.

Our colleague Ken Broda-Bahm also wrote an article in The Jury Expert on the Defense approach to the reptile theory at trial.

Van de Vyver, J., Houston, D., Abrams, D., & Vasiljevic, M. (2015). Boosting Belligerence: How the July 7, 2005, London Bombings Affected Liberals Moral Foundations and Prejudice Psychological Science DOI: 10.1177/0956797615615584

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multiracial 2016We began to see an increase in mock  jurors endorsing multiple racial categories perhaps 10 years ago, and modified our questionnaires to make it easier for them to express that view. We’ve had jurors list as many as half a dozen racial categories and have had mock jurors whom we would describe as multiracial describe themselves as White (in one case due to extreme anger at the juror’s African-American mother who had abandoned the family). It’s been an issue we’ve thought about a lot but apparently we haven’t thought about it as carefully as has Pew Research Center.

Regular readers know we think highly of Pew Research and their work to measure and document changing social norms but this time they’ve done something pretty amazing. Pew now gives us six different ways to measure racial identity or the concept of being “multiracial”. It’s a fascinating comparison since each method of measuring seems to result in slightly different answers. If you ask about the individual, for example, you may get one answer, but if you ask about the racial identity of the individual’s parents or grandparents you may get a different racial category than the individual uses to describe their own race.

According to the Pew report, the most common way to measure racial identity is to simply ask a respondent to “select one or more races, with a separate question measuring Hispanic ethnicity”. From this question, the Pew estimates 3.7% of Americans are mixed race (which they define as self-selecting two or more races).

However, then they looked at multiple other ways to identify race in survey respondents. First they examined a question being considered for the 2020 census which does not list Hispanic origin separately. The question will simply be “mark one or more” and when using this format, Pew says 4.8% of adults indicate they are multiracial.

The next strategy is to also ask about the race and ethnicity of parents. With this method, the share of those reporting a multiracial background jumped to 10.8%! Then Pew looked at adding in grandparents race and ethnicity by asking if “any of their grandparents were ‘some other race or origin’ than their own” and the proportion leapt to 16.6%. (Pew goes into detail explaining why they believe this number overestimates the multiracial population due to the follow-up questions.)

The fifth strategy is to give respondents ten “identity points” and ask them to allocate the points across different racial and ethnic categories as they see fit. In Pew’s exploration of this method (developed by UC Berkeley political scientist Taeku Lee) “some 12.7% of adults gave points to two or more races”. And finally, Pew asked people directly, “Do you consider yourself to be mixed race; that is, belonging to more than one racial group?”. Using this strategy, 12.0% of adults identified themselves as multiracial.

Based on all these ways of measuring racial identity, Pew revised their estimate of the percentage of Americans who self-represent as being multiracial from 3.7% to 6.9% and they indicate that if great-grandparents and earlier ancestors racial identity been taken into account, their estimate would rise to 13.1%.

It’s a long ways from 3.7% to 13.1% and it speaks to the changing demographics of our society (or perhaps to the increased comfort in acknowledging being multiracial). And it may speak of some delicacy about the issue of race. It seems possible that we are seeing a contrast between what someone’s ethnicity is by history, and how they view themselves culturally and ethnically today.

As jurors, if race is a factor (either because of the issues in dispute or by sheer coincidence) does it matter more that a person derives their genetics from one or more racial groups, or that they identify with a particular racial group? It’s a valuable piece of work for us since we always take a look at whether racial identity is tied to ultimate verdict (even though it infrequently is related). Our own belief is that we want to keep up with changing ideas and attitudes in the country as we craft our pretrial research questionnaires and Pew is terrific at helping us do that. Take a look at their new report.

Pew Research Center (November 6, 2015). Who is multiracial? Depends on how you ask: A comparison of six survey methods to capture racial identity. http://www.pewsocialtrends.org/2015/11/06/who-is-multiracial-depends-on-how-you-ask/

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steven-avery-1024Last year over the holidays, I binge-listened to Serial (the podcast story of Adnan Syed) and apparently it is a new holiday tradition—because this year I ended up binge-watching a 10-hour documentary series (from the Defense perspective) called Making a Murderer. I won’t link to the show since there are spoilers everywhere but it proves yet again that fact is stranger than fiction.

This is the story of Steven Avery, a young man with an IQ in the 70s from a rough and tumble family with a bad reputation in Manitowoc, Wisconsin. Somehow, despite the fact there was no physical evidence tying him to the crime, he was convicted of sexual assault and spent 18 years in prison until DNA testing evolved to the point that the Wisconsin Innocence Project took on the case. He was exonerated while another prison inmate was charged with the crime. So he is out of prison and says he is happy to be free and left all of his anger inside prison. He filed a wrongful conviction suit against Manitowoc County and then even worse things begin to happen.

His family owns an auto salvage yard and 40 acres of land. One day a woman came to photograph a car Steven Avery’s sister is trying to sell. She disappeared, and suddenly her vehicle was discovered on the Avery’s land with Steven Avery’s blood in it and her bones are discovered in several burn pits on the Avery property (with the primary burn site right behind Steven’s house). The evidence is largely circumstantial but, once again, he is convicted and returned to prison, where he remains today. Along the way, his 16-year-old nephew (who is learning disabled with an IQ of 70) was interrogated alone for hours and gives information (fed to him by the investigators as we see in the film) that he participated actively in the crime along with his uncle.

What is fascinating about this case is that we are privy to the defense attorneys reactions and case strategy and to the shocking machinations of the Manitowoc police and the Calumet County DA (disgraced and no longer in office after a 2010 sexting scandal in which he referred to a domestic abuse victim as a “hot nymph” and himself as her “prize”—remember that thing about fact being stranger than fiction?). While, as with Serial, I was unsure at the end if the defendant had murdered anyone. The criminal justice system is shown as flawed and the possible consequences that can befall you when you are accused of a crime are terrifying.

I was initially drawn to this documentary because of the wrongful conviction and false confession angle since we have done work in that area and it is frighteningly easy to lean on defendants and get confessions out of them—especially when they are young and not very bright. It is yet another well-done project that shows the underbelly of the criminal justice system and the problems of poor people and the mentally impaired. In the final segment, there is a group discussion among the attorneys that represented Steven at various points in time about whether they think he has any hope for a second exoneration and there is a quote by one of his defense attorneys (Dean Strang) that took my breath away. Watch for it. It’s about how part of him really, really hopes Steven Avery is guilty since the alternative is just too frightening to contemplate.

This is a documentary well worth watching and knowing about as it is already becoming “must-see-TV”. Just be prepared knowing you won’t want to stop watching. The first episode has also been uploaded to YouTube.

And once you are done with this, season two of Serial has premiered and it is focusing on the story of Bowe Bergdahl.

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Four (new) ways to identify a liar…. 

Monday, January 4, 2016
posted by Douglas Keene

liar pinocchio 2015We’ve tracked the literature on deception detection for some time now and so were glad to see recent multiple new entries in the pursuit of identifying liars. Rather than blogging about these strategies one at a time, here’s a combined entry to let you know about them all in a single post.

Are children good liars?

Apparently, even kids are good liars. A 2011 experiment showed that 3-6 year old children who lied about parent’s transgressions were able to fool adults—although forensic interviewers were able to identify lies from older children at a higher rate of accuracy than they were with younger children.  Evidently, you really can’t trust a pre-schooler.

Need to lie effectively? Drink lots and lots of water

Here’s a strange one. Recent research (cited at the end of this post) shows that if you have to urinate, you are able to lie more effectively. The study is small (22 participants) and it is unwise to generalize from such a small group. Aldert Vrij, a leading researcher in the field of deception detection, questions whether we should even publish research telling people how to be better liars.

How do people behave when they are lying?

During focus group and mock trial deliberations, we often hear mock jurors discussing their ways of “knowing” when someone is lying. Usually this involves eye movements, gaze direction, touching one’s nose, covering one’s mouth, answering too quickly, answering too slowly, and other ‘foolproof strategies’ the individual mock juror has perfected for identifying liars. Unfortunately for the mock jurors, most of these strategies are useless. But the mock jurors think they are windows into the soul of the witness, so we work to remove those sorts of distracting nonverbal behaviors when prepping witnesses for testimony. New research from the Journal of Experimental Psychology, Applied says rather than relying on intuition to identify liars—we would do better to pay attention to specific behaviors such as whether the speaker appears to be thinking really hard while talking.

“We often think of nonverbal behavior when we think of deception. But it would be better to focus on the content of the tale people are selling us, and asking if it is consistent with other facts we know. But even then there is a large amount of room for error.”

In thousands of juror and mock-juror interviews about witness credibility, their judgments on credibility often seem to serve as methods for simplifying the case. If the witness is credible but contradicts another witness who also seems credible, what are they to do? Determining by any method available that one of the witnesses looked shifty when they looked to the side, or they drank water which means they are nervous about telling a lie, their job becomes simpler.

It might be better to let machines catch liars

We know most of us are not very good at identifying liars. Most people are barely above chance in their ability to know who is telling the truth and who is lying. But a new “machine learning algorithm” is purportedly able to identify truth-tellers correctly about 75% of the time. Wow. Here’s the pdf of the article and below is a snippet of information on how the work was done:

“Mihalcea and her colleagues took 121 videos from sources such as the Innocence Project, a non-profit group in Texas dedicated to exonerating people with wrongful convictions. This is superior to simulated conversation because the speakers are more invested in what they are saying.Transcriptions of the videos that included the speaker’s gestures and expressions were fed into a machine learning algorithm, along with the trial’s outcome. To hone it further, the team plans to feed in even more data. Such a system could one day spot liars in real-time in court or at airport customs, says Mihalcea, who will present the work at the International Conference on Multimodal Interaction this month in Seattle, Washington.”

Fenn, E., Blandón-Gitlin, I., Coons, J., Pineda, C., & Echon, R. (2015). The inhibitory spillover effect: Controlling the bladder makes better liars. Consciousness and Cognition, 37, 112-122 DOI: 10.1016/j.concog.2015.09.003

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santa tracker

We’re taking a break until 2016 so we’ll see you in January!

Most of us grew up watching the weather report on TV and seeing a NORAD ‘Santa Tracker’ showing where Santa and his sleigh were on their way for a long night of work. But this is 2015 and if you celebrate the holiday, you likely want something a bit more scientific to show you that there is a “Christmas spirit” if not a Santa Claus. Thankfully, we can rely on the annual December issue of the British Medical Journal to enlighten us on holiday traditions and offer a light-hearted look at important questions on many of our minds.

In this case, the researchers wanted to figure out if there was a “Christmas spirit” within the human brain. The authors are neurology researchers, neuroimaging researchers, a professor of clinical physiology, and a medical physicist. A quick glance at the author names on this paper will show you that they are presenting, as they describe it themselves, “a cross cultural group study with functional magnetic resonance imaging” to “detect and localize the Christmas spirit in the human brain”. Participants were 10 “healthy people from Copenhagen who routinely celebrate Christmas and 10 healthy people living in the same area who have no Christmas traditions”. Some further research into whether this project was the result of typical, careful funding proposals or left over slush funds that were set to expire by Christmas morning seems warranted. But our skepticism at this time of year has an unfortunate “Scrooge-like” quality, so we won’t look very hard.

The participants completed a questionnaire about their Christmas traditions, feelings associated with Christmas and their ethnicity. The researchers are careful to let us know “no eggnog or gingerbread was consumed prior to the scans”. While the participants were in the MRI, they were shown 84 images (displayed for 2 seconds each and organized so there would be six Christmas associated images and then six images devoid of Christmas symbolism).

The researchers say they found a “cerebral response when people view Christmas images, and there are differences in this response between people who celebrate Christmas compared to those with no Christmas traditions”. They also greatly contribute to science in this area by saying there is a “functional Christmas network comprising several cortical areas, including the parietal lobules, the premotor cortex, and the somatosensory cortex”. These areas of the brain have been shown in previous studies (according to the authors) to be related to spirituality and transcendence, experiencing emotions shared by others, and “observation of ingestive mouth actions” which the researchers think is likely related to recall of shared meals with loved ones. All in all, they say, “these cortical areas possibly constitute the neuronal correlate of the Christmas spirit in the human brain”.

The researchers have carefully thought through their study design and interpretations and have compelling rejoinders to any of their colleagues whom they “suspect could be afflicted by the aforementioned bah humbug syndrome”. They would like further research on this issue—perhaps with subjects who’ve been given “tacky jumpers” (known here in the US as ‘ugly Christmas sweaters’) as gifts since they may well have different brain activity than those who received more attractive gifts for the holiday. They close with this comment in the acknowledgements section…

“We call ‘dibs’ on any profitable non-invasive or even invasive treatment of the bah humbug syndrome. We are currently preparing a patent application on a Santa’s hat you can buy for family members with symptoms. When they start grumbling at Christmas dinner, with the touch of a button you can give them electric stimulation right in the Christmas spirit centers.”

Hougaard A, Lindberg U, Arngrim N, Larsson HB, Olesen J, Amin FM, Ashina M, & Haddock BT (2015). Evidence of a Christmas spirit network in the brain: functional MRI study. BMJ (Clinical research ed.), 351 PMID: 26676562

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