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Archive for the ‘Beliefs & values’ Category

silver-racial-index-2Every once in a while we at The Jury Room get comments from readers that we simply look for bias “everywhere” and it doesn’t exist at the level our blog would intimate. Doctors don’t treat patients of color differently, they insist. Jurors don’t make decisions based on pre-existing biases. And so on. These are typically sincere people and they are disturbed that we are misrepresenting the prevalence of bias. Are we becoming part of the problem? Of uninformed or invalid perspectives actually creating false issues? We reply to the distressed responder with more information, which we have already reviewed with great care before we publish. Sadly, these sorts of biases are so prevalent it’s unusual not to find them. So unusual in fact, that when they do happen, we blog about it!

So here’s some work from someone other than us that illustrates the prevalence of racist ideas and beliefs about Blacks in America. They are from the New York Times and published in response to the controversy over LA Clippers owner Donald Sterling’s racist comments.  The graphs (created from General Social Survey data) were published with the following included in their written summary:

The condemnation of remarks by the Los Angeles Clippers owner Donald Sterling is almost unanimous. But racism is still more common than you may realize. In surveys, more than one-fifth of whites volunteer views consistent with negative racial stereotypes.”

views of white americans

We would say these graphs reflect the low end of actual prevalence of these ideas since the GSS is collected via telephone surveys and most people know you shouldn’t say these sorts of things out loud–although like Donald Sterling, a few still haven’t gotten the message.

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empathy-9550064_lIf you’ve read us for any length of time at all, you know we love this strategy to increase empathy and reduce bias in civil cases. Today we are looking at new research relevant to criminal work that shows how empathy (and the resulting perspective-taking) drives decisions about responsibility and guilt, sentencing, and leniency.

This research isn’t so much about looking inside yourself (and ridding the biases that lurk within) as it is about seeing the view from the defendant’s perspective (and increasing your empathy for what it is like to be in that position) or from the victim’s perspective (with the same goal). The researchers paid attention to real-world issues by making several of the experiments comparable to the “perspective-taking” directives offered in a real courtroom trial. That is, the only perspective-taking directive was that in the attorney’s closing statement. The research participants were not given perspective-taking instructions prior to the beginning of the experiment.

Our attorney readers already know this, but for those who are unfamiliar, the rules at trial are clear: You cannot attempt to overtly put the jurors into the role of any party. For instance, you can’t say “What would you [juror] do if this had happened to you?” This is a violation of the bar on invoking the ‘Golden Rule’ [“Do unto others as you would have them do unto you.”]. So the attorney approaches the same dynamic differently, by edging close to the Golden Rule line without violating it.

Here is a sample of the perspective-taking instructions contained in the attorney closing statement (this one asking them to take the perspective of the Defendant):

“Ladies and Gentlemen of the jury: I am here today to ask you to be kind and considerate when thinking about your decision in this case. My client, who is an upstanding citizen just like you all, was wrongly accused of hitting an innocent victim, and this necessitates your consideration and kindness when making your decision about this case.”

The researchers completed four different experiments to explore the effect of perspective-taking on the view of the target. They used a case with ambiguous evidence where the Defendant was charged with vehicular manslaughter but it was unclear if his car was actually the vehicle involved in the accident and subsequent death of a child. Over the course of four experiments, they found that perspective-taking often, but not always, results in viewing the target more favorably.

Taking the perspective of a criminal defendant resulted in research participants seeing the defendant as less culpable, and thus less guilty and less likely to re-offend.

Taking the perspective of the victim of a crime increases one’s sense of the defendant’s culpability, guilt, and the likelihood they will re-offend against someone else.

Finally, taking the perspective of a defendant can result in more leniency in punishment assigned.

The researchers say that the manipulation of perspective-taking (for the defendant or the victim) is powerful in that it takes place in actual trials and it clearly elicits empathy for either the defendant or the victim. Empathy results in a lower sentence for the defendant (or a higher sentence if the empathy is elicited for the victim and their family). Perspective-taking, say the authors, is thus a double-edged sword.

“Depending on the desired outcome, it is important to, like a weapon, point it toward the target where it will do the most good.”

Skorinko, J., Laurent, S., Bountress, K., Nyein, K., & Kuckuck, D. (2014). Effects of perspective taking on courtroom decisions Journal of Applied Social Psychology, 44 (4), 303-318 DOI: 10.1111/jasp.12222

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outdated dataWhen you have been doing the work for a long time, it’s always a shock to discover your assumptions are outdated. Better to figure that out before voir dire though! We’ve written about this issue several times before but, reminders are a good thing.

Recently, as we were in the midst of a mock trial and munching on warm chocolate chip cookies during a break, one of the attorneys mentioned that our mock jurors were mostly Republican and because we would be going to trial in a largely Democratic county, he was concerned that the sample of jurors we had selected was not representative of the venue. He was very specific about the political affiliation breakdown we were looking at based on the county in which they resided.

Given our own experiences over the past couple of years, we wondered if that was still accurate information. We had already profiled the county in question, but we double-checked the self-reports of our mock jurors. We knew the recruit was random and, if the pattern of the past couple years held, we would see a lot more Independents and non-affiliated mock jurors in the group. Sure enough. The group of mock jurors was about 25% Republican, about 25% Democrat, and about 50% a mix of Independent and not politically affiliated jurors. Our client was taken aback and had another cookie. They really were very good cookies.

It’s an intriguing thing about doing this work. We often do not have nearly as much experience in the specific county as our clients do. But what we do have is a good grasp of trends across the country and in various regions of the country. And this trend is a big one. Trends move quickly in some areas, slowly in others, but it is unusual for a venue shows no response at all over time to a social movement.

Our randomly recruited mock jurors are unhappy with the political system, and are thus unwilling to identify (for the most part) as either Republican or Democrat. When we do find a group where the majority identify as either Republican or Democrat, we look especially closely for other ways they are not representative of the county. It’s the new normal.

Political affiliation used to be predictable. The majority of our mock jurors were identified with a major party and a sprinkling would say they were Independent or unaffiliated. Political affiliation is still predictable. It’s just that now the majority are telling us they are Independent or not affiliated and they share a disapproval of government, politicians and big business that is often palpable in the room.

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mock arbitrationMost of our work involves mock juror pretrial research and we have a report structure that feels very comfortable to us, easy to read, and easily searched by counsel. It took a few efforts with mock arbitrations to get to the same place though and here is some of what we’ve learned.

Arbitrators are really smart people! Selecting the right mock arbitrators is not simple, and like other litigation research, the quality of the recruit is essential to a worthwhile effort. They need to have experience and a scope of knowledge that resembles the assigned arbitrator(s). They are well-versed in the applicable law, and they are neither fooled nor impressed by “spin”. They often have a way with words. In a recent project, one of the mock arbitrators searched for a way to characterize the Plaintiff attorney’s presentation. Finally, he said, “I am not one who is drawn to rhetorical flourishes”. It was a very kind way of describing what he found not persuasive.

Put this in context for me. Sometimes our mock jurors want a historical context for what happened. They think of it as a timeline of events that help them understand the larger picture. In our experience, arbitrators always want this. But their desire for historical context spans beyond a timeline for the specific case to a timeline for the industry as a whole with the history of the specific case placed in the industry timeline context. While this is harder for the presenting attorney, it often helps the mock arbitrator come to an informed decision that feels comfortable to them in the abbreviated timeframe of a mock arbitration. The fact that the mock arbitrators rank this contextual information so important that it should be a priority should inform your presentation at the actual arbitration.

Go ahead–bury me in detail. Our mock jurors tolerate a glossy explanation of complexity in patents or technology. In contrast, the more details given on an economic theory of damages, for example, the more our mock arbitrators lean forward, smile slightly, take notes, and nod. They are educated in the area and often are experts in the area of the dispute.

Give me multiple ways to express myself. As with mock jurors, some arbitrators are more ‘themselves’ when writing feedback with ample time for consideration, and others are more comfortable sharing their thoughts aloud or typing them at a breakneck pace immediately after attorney presentations on very complex issues. Our mock arbitration process design has evolved to allow the individual arbitrators to express themselves in multiple ways and we find each mode of expression offers new information that we then integrate into a readable report.

Confidentiality is understood. These are tight-lipped people! And we mean that in the best possible way. They understand confidentiality and report even being careful to not tip their hands to each other as they eat dinner together and socialize after-hours. We have never had the experience of arbitrators knowing where their fellow arbitrators stood on a case at the end of a mock arbitration. They have fabulous poker faces.

I just wanted to tell the truth.” Sometimes we eavesdrop. And this is a refrain we often hear as arbitrators are sharing coffee on breaks or waiting for programs to start in the wee hours of the morning. The question often comes up about how different mock arbitrators moved into the work. Typically, the arbitrators we use are experienced trial lawyers as well as neutrals, and we often hear something like this: “I began to do this because I just wanted to tell the truth. I wanted to hear the evidence and make my best judgment. No spin. No reframing. Just the truth.”

Arbitration is not a perfect system, and we have long conferred with trial counsel who are either frustrated or relieved that citizen jurors are not part of the process. Like any other trier of fact, an arbitrator is the product of his or her values and life experiences, which colors their judgment. Anyone who imagines it less prone to bias is simply wrong. The shape of the bias can be different–instead of sympathy for one side or the other, it might be that they favor one type of presentation over another, or they like the style embodied by one arbitration team rather than the other. It’s a human system. It’s our justice system. Working as it was meant to work. It’s enough to warm the heart of any trial consultant, trial lawyer, or justice junkie.

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girl cryingHere’s one that just makes intuitive sense. When children are testifying in court, teary testimony is thought to be more credible than stoic and controlled testimony from child victims of non-sexual crimes. At least so say aspiring lawyers in Sweden.

Researchers developed four (5 minute long) videos using two child actors (one boy and one girl) both 8 years old. In each video, the children gave the exact same testimony but in one video the testimony was teary and in the other video, the testimony was emotionally neutral. The evaluators (the experimental subjects) were law students.

In the emotional video, the child hesitated and avoided eye contact with the interviewer when disclosing “delicate details” about the event. Additionally, the emotional child curled up in the chair, shivered and sobbed several times during the interview.

In contrast, the neutral child was composed, maintained eye contact, and showed little sign of emotion.

The children told the story of arriving early to school to return a book to the school library. On the playground, s/he ran into a group of 11 year olds who grabbed the child’s hat and began to toss it back and forth to each other rather than giving the hat back. Since the child was younger and shorter, s/he was unable to retrieve the hat. When the child requested the return of the hat, the “ringleader” of the group laughed and ran to the bathroom and flushed the hat down the toilet. The child reported the incident to the school janitor and the janitor, in turn, reported it to parents and school administrators.

The testimony of the emotional child was seen as more credible and authentic. That is, the law students were more likely to believe (in two separate experiments) the child had actually experienced the harassment. Further, those student participants observing the emotional testimony reported the child’s demeanor to be a better match with their expectations of what a child experiencing this sort of incident would look like.

The researchers say this assessment of emotional testimony as more credible is consistent with research done on adult crime victims. When the victim cries, they fulfill our expectations of the “emotional victim” and we feel more sympathy and believe their story more (i.e., we think they are more credible). Despite having a girl and a boy actor in the videos, there is no report on differences, if any, in participant reactions by victim gender. (Perhaps that is a follow-up article.)

This has obvious implications for litigation advocacy as not all victims react emotionally or tearfully and, it is natural for us to want to protect children who have been harmed. Stoicism is not rewarded by observers if the alternative is credible distress. The researchers make several recommendations to avoid this tendency to assume more witness credibility when the victim is emotional/tearful.

Warn the observers (i.e., the jurors) that not everyone responds emotionally and so the presence or absence of emotion is not an accurate indicator of credibility.

Consider presenting the emotional testimony on video rather than in person. Some research has shown videotaped testimony is perceived less emotionally than the same testimony presented live. (This is often done with child witnesses anyway as a means to protect them from the trauma of live testimony in the courtroom.)

Educate observers (i.e., the jurors) on the large body of research showing “credibility assessments tend to be more accurate when based on verbal content instead of demeanor”. Tell them you will send a transcript of the child’s testimony to the deliberation room so they can review the content without the emotional factor of the non-verbal presentation. The researchers refer to the criteria outlined in 2010 by the Swedish Supreme Court for assessing credibility (although these guidelines were not supported in research done by one of them).

Landström, S., Ask, K., Sommar, C., & Willén, R. (2013). Children’s testimony and the emotional victim effect Legal and Criminological Psychology DOI: 10.1111/lcrp.12036

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