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im-not-racist-butWe just can’t keep up with all the research on racism. So today, instead of a single article, we’re going to cite 3 of them! They are all disturbing examples that racism is alive, well, and measurable. 

Was s/he a good professor? We’ve all sat through disorganized and incoherent lectures at some point in our lives but students now often look at websites akin to to raise their chances of identifying good instructors. According to new research, however, when you look at a site like that, “the very best instructors were more likely to be White, whereas the very worst were more likely to be Black or Asian”. Unfortunately, those students looking at those “objective ratings” may simply be looking up negative racial stereotypes that may have repercussions on the ability of racial minority faculty to obtain promotion and tenure (Reid, 2010).

Didn’t that stuff kill Michael Jackson? Yes. It’s called propranolol. And researchers gave it to 36 “healthy volunteers” and asked them to complete an explicit measure of prejudice and the IAT (a measure of implicit racial bias). The propranolol “abolished implicit racial bias” while not affecting the measure of explicit bias at all (Terbeck, et al., 2012). Okay. We think this is unlikely to catch on as a means of reducing implicit prejudice in jurors.

Just keep talking: Researchers presented 51 participants with “a brief vignette describing an instance of subtle racism” and asked them to explain what happened in that situation. Those participants who tested higher in prejudice and social dominance, wrote much longer situational explanations and were more likely to not see the situation as racist. Here are examples of short and long explanations participants offered for what happened in the vignettes:

“The server was prejudiced against Black people and did not hesitate to serve his/her White customers first.”

“I am not a racist person by any means; however, I don’t think this situation can be best described by racism given the facts. While it is completely unacceptable to wait over an hour for food, there seem to have been a larger number of people in your party than the woman who ate alone. I think it is unfair to assume that just because the server was White and you and your friends are African American that racism is going to be involved. It very well may be the reason, but I tend to give people the benefit of the doubt.”

The researchers believe the lengthier explanations were used to help research participants explain away subtle racism and to attribute the interactions to chance (Reid and Birchard, 2010).

We see examples of racism and ethnocentrism almost every time we do pretrial research where race is present. Whether it is:

“Is this an American company?”, or

“Are they legal?”, or even,

“Why does it have to be racism? Maybe s/he was just a bad employee.”,

it’s important for us to be alert to the underlying message contained in subtle (or not so subtle) questions posed by our mock jurors. We cannot afford to explain it away and pretend it doesn’t matter or happened by chance.

Reid, L., & Birchard, K. (2010). The People Doth Protest Too Much: Explaining Away Subtle Racism Journal of Language and Social Psychology, 29 (4), 478-490 DOI: 10.1177/0261927X10377993

Terbeck S, Kahane G, McTavish S, Savulescu J, Cowen PJ, & Hewstone M (2012). Propranolol reduces implicit negative racial bias. Psychopharmacology, 222 (3), 419-24 PMID: 22371301

Reid, L. (2010). The role of perceived race and gender in the evaluation of college teaching on RateMyProfessors.Com. Journal of Diversity in Higher Education, 3 (3), 137-152 DOI: 10.1037/a0019865



priest abuse wrongful terminationWe can’t think of a single thing. Except last week we were listening to mock jurors hearing a wrongful termination case and their comments sounded very familiar. It was odd. It wasn’t another employment case that was ringing the memory bell for us. It wasn’t even a contract case. Instead it was pretrial research on allegations of sexual abuse by a priest (who had been convicted and sentenced for the sexual abuse of children). The mock juror comments from these two cases were almost interchangeable. And it was all about fraudulent claims. 

Jurors in the earlier sex abuse research project were sure the Plaintiff was lying. They knew the priest was a pedophile. But there was no evidence of abuse of this particular Plaintiff. In that case, the mock jurors suspected the Plaintiff’s family member who had been abused and received a large financial settlement from the Church, had given the Plaintiff ideas for a windfall of his own. The jurors felt uncomfortable supporting the Church against someone alleging priest sexual abuse. The religious mock jurors felt especially ambivalent and were obviously still feeling very betrayed by the Church leaders. But, they could not support the Plaintiff. He just wasn’t credible.

In the same way, mock jurors in the recent wrongful termination project were sure the Plaintiff was lying. They knew very well that harassment and discrimination happen in the workplace. A number of them had had similar experiences to what the Plaintiff claimed had happened, and others, as managers, had been sensitized to the issues and educated about the laws protecting US workers. They wanted to see proof. Anything. They asked for email, memorandums, voicemail, texts, something–anything that would support the Plaintiff’s claims. There was nothing. Just the Plaintiff’s testimony with lots of “I feel”, “my opinion is”, and “it seemed to me” language that the jurors were not willing to accept without evidence to support it. They wanted to support the Plaintiff because they knew bad things really do happen in the workplace. But the Plaintiff simply wasn’t credible.

As we debriefed the jurors in both cases, here is the message both groups had for the attorneys and clients:

Bad things do happen. We know that. But cases like this, where there is obvious fraud and deceit by the Plaintiff, cheapen the actual legitimate cases of abuse and discrimination so that people don’t take them as seriously. We can’t allow that to happen. We support the Defense.

It’s an odd thing. Priest sexual abuse and wrongful termination. As different as cases can get. And yet, they elicited the same feelings of disgust, unease, and a desire to take a stand for what is right–even if it makes you a little uncomfortable.

Two very different cases. One identical message from the mock jurors. Very often this work warms your heart as you watch everyday people struggle to find what is right at the conclusion of all the evidence. They stood up for what they saw as right, even when it distressed them to do it. It felt like justice.




gruesome crimeJust say his brain made him do it! That is the conclusion of new research on the relationship between gruesomeness of the crime and the harshness of the sentence. In case you can’t intuit this one, the more gruesome (and disturbing) the crime, the harsher the sentence tends to be. But if the assault was merely moderately gruesome — even though it could have been deadly– there are ways to minimize punishment decisions. 

Researchers at Duke University found that “if the focus is drawn away from the mind of a perpetrator by providing biological explanations of personality instead of traits, people may not make the same social cognitive inferences”. So how did they come to that conclusion (and what does that quotation mean)?

First of all, it’s a small sample (N = 11), likely because it’s expensive and time consuming to use an MRI machine. The researchers conducted brain MRIs while the participants read a number of different vignettes about crimes either strong in violence-related disgust or weak in disgust. The idea was for the researchers to see which areas of the brain were activated while reading the vignettes (that were either disgustingly gruesome or not so much) and then to see whether the participants chose punishment less than the US Federal Sentencing Guidelines or chose the harsher recommended sentence. (We’ve written about disgust before and these researchers equate “gruesome” with “disgusting”–apparently thinking of the visceral reaction to gruesome photos or mental images elicited from written descriptions.)

Here are examples of the vignettes used:

Rob Whitley was on his lunch break. He saw his boss at the hot dog stand and approached him while taking out a pair of scissors. He stabbed his boss on the side of the neck first, and then the lower back, causing the victim serious blood loss and requiring hospitalization. (This vignette was described as high in disgust.)

John Noel was at a bar and saw his ex-girlfriend’s new lover, James. Although John was not expecting to see James there, John took out the gun he regularly carried in his back pocket and tried to shoot James, but missed. (This vignette was described as low in disgust.)

Both of these crimes (whether high or low in disgust) would be prosecutable for aggravated assault. Participants were asked to rate how morally reprehensible the act was, how severe the punishment should be, and how much they were disgusted by what they read. However, as is typical in research like this, there was another twist: The researchers added a single sentence to the end of each vignette describing the perpetrator’s personality using either personality traits or biological language. That is, “Gerald frequently proves to have an impulsive personality” versus “Terry has a gene mutation that has been associated with impulsivity” when the crime was premeditated murder.

And here is what they found:

When the perpetrator was described as having biological reasons for impulsivity (rather than as being impulsive), he was seen as being less responsible and punished less severely.

When crimes were strong in disgust, there were harsher sentences but there was no relationship between how personality was described (biological or trait description) and punishment.

Crimes weak in disgust resulted in less harsh punishment than the guidelines recommended while crimes strong in disgust were punished at the recommended level.

In other words, if the crime is pretty gruesome (and these researchers say therefore one jurors would see as disgusting) your client is likely to get the harsher sentence regardless of whether you invoke a neurolaw (his brain made him do it) sort of defense. But, if the crime isn’t gruesome and you invoke a neurolaw defense, your client may be seen as less responsible for his actions and punished less.

Ultimately, this dovetails well with what we’ve known for many years– its about what the jury focuses on. If the jury spends a lot of time talking about the crime and the injuries it caused, the defendant is in trouble. If there is a credible mediating explanation such as a neurolaw defense or other circumstantial evidence and the jury spends time talking about human behavior instead of terrifying assault, the defendant is in better shape.

Overall, it is important to remember that this is a study based on such a small sample of people (N = 11) that their results might not be verifiable, even when it makes intuitive sense. However,  it is worth remembering that according to this study, gruesomeness/disgust of the crime affects the assignment of responsibility but likely does not affect sentencing decisions.

Capestany BH, & Harris LT (2014). Disgust and biological descriptions bias logical reasoning during legal decision-making. Social Neuroscience, 9 (3), 265-277 PMID: 24571553



credibility and smilingWomen smile more than men. Men are typically seen as more credible than women. So these researchers decided to see if there was a relationship between smiling and assessments of credibility on actual witnesses in the courtroom. 

The researchers used the Witness Credibility Scale to assess actual witnesses overall credibility. They thought that if smiling influenced observer evaluations of likability, confidence, trustworthiness and knowledge (the facets of credibility measured by the Witness Credibility Scale) then smiling could influence witness credibility. So off to the courtroom they went to collect observational data from real courtroom testimony. They observed both criminal and civil trials (including proceedings related to worker’s compensation, assault, domestic violence, drug trafficking, and capital murder) over a period of 6 months and, in total, observed 22 male and 10 female witnesses. The majority of the ratings (87.5%) were based on direct examination by the prosecution (84.4%).

There were 21 Caucasian witnesses and 11 African-American witnesses and witnesses ranged in age from 19 to 70 years. The researchers used four trained raters–two assessing the frequency of “smiling behavior” and two assessing credibility using the Witness Credibility Scale. (The credibility raters were trained to use the scale but had no awareness of the study’s hypotheses. The raters counting smiles included the principal investigator and one other person who knew the hypotheses.)

Here is what the researchers found:

Of the 32 witnesses observed, 23 smiled (71.9%) and nine (28.1%) did not.There were more women that smiled than men and although the difference between male and female smiling witnesses did not reach significance, it “trended that way” according to the researchers.

Male witnesses were seen as more trustworthy than female witnesses.

Witnesses who smiled were seen as more likable and female witnesses who smiled were significantly more likable than both smiling male witnesses and non-smiling female witnesses. Oddly, smiling female witnesses were not more likable than non-smiling male witnesses. (The researchers wonder if the smiling male witnesses were seen as behaving in a way incongruent with gender norms and thus the smiling male witnesses were less likable than the non-smiling males.)

The researchers say that, “Contrary to expectations, gender and smiling did not impact ratings of trustworthiness”. Men were found more trustworthy than women witnesses, but when women smiled, they were more likable than everyone but unsmiling men. The researchers recommend female witnesses smile during testimony since it is expected of them (by virtue of gender roles).

As with the research on female expert witnesses we covered earlier this month, there is not a lot of good news for women witnesses here but what we do know now is that women witnesses can relax a little and smile–it won’t make them more credible than stoic men but it will make the women witnesses a little more likable. And every little bit helps.

Nagle JE, Brodsky SL, & Weeter K (2014). Gender, Smiling, and Witness Credibility in Actual Trials. Behavioral sciences & the law PMID: 24634058



Imacon Color ScannerWe often associate people who are especially trusting with gullibility, low self-esteem, and lower intellectual function. However, we seem to have it backwards according to new research (which successfully replicates the results of studies from 2010 and 2012). 

Intelligent people are more likely to trust others while those lower in intelligence are less likely to be as trusting. The authors think it is due to intelligent people being better at judging character and thus befriending those less likely to betray them. Our take is that while they may or may not be better, they appear to have more confidence in the accuracy of their impressions.

The British researchers analyzed data from the General Social Survey (a public opinion survey administered to a nationally representative sample of US adults every 1-2 years since 1972). Their study is the first to ever use GSS data to look at the relationship between generalized trust and intelligence. Ultimately, they find that intelligence and generalized trust are strongly associated and that, even after “adjusting for intelligence, generalized trust continues to be strongly associated with both self-rated health and happiness”.

Here is their primary finding:

Those with the highest verbal ability are 34% more likely to trust others than those with the lowest verbal ability.

This relationship holds for both “men and women, among both blacks and whites, among the young, the middle-aged and the old, and in all five decades since the GSS began”.

From our general perspective, that’s a pretty fabulous finding. It’s nearly universal as it holds true across gender, age, and ethnicity–as well as across the past forty-two years. We don’t know of many personality descriptor variables that do that.

From a litigation advocacy perspective, it’s a quick way of assessing intellectual function for those situations where you cannot look at educational achievement, management experience, or leadership roles. If you know you want smart jurors, you may want to ask them how trusting they are of others. Or conversely, if you need someone to trust your client beyond the immediate facts, you would do best to pick someone smart enough to keep focused on a broader reality.

Carl N, & Billari FC (2014). Generalized trust and intelligence in the United States. PLoS ONE, 9 (3) PMID: 24619035