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suspenseSo here’s a strange study. Or perhaps an unexpected outcome. We enjoy a good suspenseful thriller but never knew it might be messing with our political beliefs. Wait until you see this!

The researchers were curious about how various forms of physiological reactivity (aka anxiety) would affect a political belief about one particular issue: attitudes toward immigrants. So they recruited 138 males with an average age of 22.8 years (men and women react differently to physiological reactivity and it is common to do single gender studies in this area) to participate in the study.

Essentially, the men were connected to sensors that measured physiological reactivity throughout the experiment. In other words, the researchers wanted to measure how much sweat the individual participants manufactured during the tasks. The men watched brief videos of an immigrant story and then responded to questions about their perspectives on immigration. The key was in how the participants spent their time between watching a story and completing the questions as researchers had randomly divided the men up into three experimental groups.

Group 1—The “relax” condition: Watched the video story of a male immigrant and then watched a video “entitled Crystal Chakra Meditation” which the researchers describe as “soothing music played over visuals of abstract shapes and colors”.

Group 2—The “neutral” condition: Watched the video story of a male immigrant and then watched an abstract shapes screen saver (with no sound) before completing the questions on immigration.

Group 3—The “anxiety” condition: Watched the video story of a male immigrant and then watched video clips from the Sylvester Stallone film Cliffhanger. Yes, Sylvester Stallone. Apparently that film causes anxiety reliably and is often used in psychological experiments to elicit anxiety. The researchers describe the clip this way,

“Sylvester Stallone is attempting to rescue a female mountain climber who is dangling over a precipice attached only by a metal carabiner to a single rope”.

That does sound tense! The researchers go on to say that in the actual film the woman falls to her death but they mercifully did not make the participants view that part of the film.

After the relax/neutral/anxiety film clips, participants were asked two sets of questions. First they were asked to rate their feelings about the high levels immigration in the US. They rated their levels of anxiety, pride, anger, hope, worry, and excitement. Then, they were asked to rate their level of agreement or disagreement with a number of statements about immigrants.

The researchers found that participants who watched the Cliffhanger excerpt, had significantly more negative views toward immigrants than did participants in the soothing conditions. What was even more interesting though, was that the participants did not rate their feelings toward immigration more negatively. Instead, they tended to agree more with statements like “Immigrants should only be allowed to take jobs that cannot be filled by American workers”.

The researchers interpret this as indicative that the participants were not consciously aware they “felt” more negatively toward immigrants but that their agreement with more hostile positions about immigration gave them away. That, and their sweaty palms (remember, they were hooked up to all those sensors).

To recap, when asked directly how they felt about immigration, participants reported no differently across the three experimental groups. When asked what researchers considered to be an “indirect question”, i.e., how much the participant agreed or disagreed with a particular statement, the Cliffhanger group was more negative toward immigration (and sweatier too).

Anxiety (as measured by physiological reactivity or the amount of sweat you generate), conclude the researchers, results in more negative attitudes toward immigration.

It is likely no surprise to anyone who’s watched more than a few mock jurors deliberate—that what is reported by the mock juror as a firmly held belief is no more accurate than these research participants’ assessments of how they “feel” about a hot button issue like immigration. In other words, this is research that shows people don’t always accurately report how they feel. It’s a real blow to those who think they are self-aware and attuned to how they “feel” about important issues. There is simply not the level of self-awareness reflected in most academic research (and, in truth, in much pretrial research).

And that is why, while you won’t be attaching sweat detectors to jurors, it is important to anticipate how to align your case narrative with universal values that most jurors in your venue embrace (whether they know it or not). Your client, after all, ideally reflects their own values.

Renshon, J., Lee, J., & Tingley, D. (2014). Physiological Arousal and Political Beliefs Political Psychology DOI: 10.1111/pops.12173


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How headlines can help you pick a jury 

Wednesday, February 25, 2015
posted by Douglas Keene

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????CNN just ran a cover story on what they call “Southern Discomfort”. The story is all about the status of same-sex marriage in the United States and the discomfort with it, especially in the southern states.   If you are going to trial soon, it would serve you to consider whether the attitudes, values and behaviors that result in antipathy toward same-sex marriage will play for or against your specific case.

The CNN story leads with two men and two women who come from very religious backgrounds and also both recently married in Alabama. CNN explains that same-sex marriage is now legal in 37 states and the District of Columbia. They use quotes from the spouses that make it clear these are people who struggled with their decisions and the lack of family support for their relationships but who loved each other and wanted their relationship legally sanctioned so they could enjoy the legal benefits of marriage. The story also covers the reactions to same-sex marriage laws by Chief Justice Roy Moore in the state of Alabama who says same-sex orientation is a choice rather than a characteristic such as race or gender and thus not entitled to constitutional protection.

“I’m not standing in any door. I did not bring this on. This was forced upon our state. This is simply federal tyranny,” he said. “This is not about race. This is about entering into the institution of marriage.” Race, he said, is biologically predetermined and therefore can’t be used to deny someone her or his rights under the Constitution. Homosexuality, he claimed, is a choice. “People can choose different lifestyles and no doubt they have since Sodom and Gomorrah,” he said.

If the state supreme court judge’s opinions reflect those of the larger population in the heart of the Bible Belt, it is imperative that you know it. We tend to pay more attention to surveys (national and regional) than to major news sites (who, after all, gather their stories from survey data) as we look at the attitudes, values and beliefs in any potential trial venue.

But when a site as mainstream as CNN runs this sort of story, you want to take a very close look at what underlies the antipathy.

Is it religious beliefs?

Is it bias akin to racism or sexism or ageism?

Is it lack of knowledge?

Is the bias worse against males marrying or females marrying?

And most importantly, do the values in your case narrative bounce up against any of the values that result in this negativity toward same-sex marriage? If yes, that could be a very dangerous thing for your client and for your case. What does it reflect generally about the reception a witness will have if they are perceived to be gay or lesbian (accurately or not)?

Know the venue. Know your venire. Know the values your case narrative pushes against. Know the random, largely irrelevant values and beliefs that will still find their way into a jury’s deliberations. And finally, know how to tell your specific story in a way that invites jurors to join with you and not react against you.


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williams and stewartI grew up listening to the television news with (Uncle) Walter Cronkite and my dad every night. I had a morbid fascination with his recitation of the body count of soldiers in the Vietnam War and silently said his sign-off line along with him: “And that’s the way it was…” and then a repeat of the day’s date. Walter Cronkite reported the news. He had credibility and gravitas. He was a cultural icon in a more innocent time.

Flash forward to the present and I have not watched the evening news with any regularity for at least two decades. There is simply no need with breaking news alerts and NPR while I am on the road. So when the Brian Williams “misremembers” memes began, after his story of being shot down in a helicopter was refuted, I was saddened, but neither surprised nor particularly interested. But the buzz turned to scandal and scandal  turned to NBC news dropping Mr. Williams name from the show title. Conservative websites published “32 Lies” that Williams told regularly about his experiences. He was mocked mercilessly on the Saturday Night Live 40th Anniversary Special. Time Magazine wondered if Williams was a narcissistic liar or the victim of false memories.

Brian Williams is likely not the only well-known news personality to embellish his experiences and even to tell stories easily proven to be untrue. Yet, he seems to have believed nothing bad would happen to him even if he continued to exhibit very poor judgment. Just like Anthony Wiener. Eliot Spitzer. Tiger Woods. Even David Letterman (on whose show Brian Williams told falsehoods to a national audience). And so on. David Letterman appears to have not forgotten the glare of the spotlight when his own deceptions were made public. He combined his support of Brian Williams with a Top 10 List of Things Brian Williams Has Said That May or May Not Be True on a recent show and said he believes this will “blow over” and it will all “be fine”.

But how can we trust the mass media when a highly respected and well-liked spokesperson for the media has fallen so publicly and so hard? Well, says Gallup Polls, we don’t trust the mass media anyway and while Brian Williams’ actions may reinforce that distrust, he certainly has not created the distrust of the mass media. One Gallup chart shows clearly that TV news now enjoys less confidence from the American people than any institution in the country—other than Congress! A second chart shows how dramatically our trust in television news has been declining for the past two decades.

brian williams insert 2

So Brian Williams’ “misremembering” and offering a glib apology that only made things worse will hardly sink all of television news. That ship appears to have sailed, largely propelled by the cable news industry. In some ways, I miss the days when Uncle Walter intoned and I believed. But I was a kid then and the news cycle is very different. Faster. Constant. Now I have more information about the world from a multitude of sources. I understand how various media outlets slant their reporting to meet political ideology demands, the demographics of their desired audience, or biased but real demands of their owners. Frankly, as I have considered all this attention for Brian Williams’ falsehoods, it has been hard for me to think anything but, “what will we do without Jon Stewart?”. That, to me, is the larger loss as I contemplate my own news consumption habits. And the answer may turn out to be John Oliver.


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Miscellaneous_396x264From time to time, we bring you tidbits that we don’t want to devote a whole blog post to but still find interesting. Today we’ll cover medical devices that are not FDA approved, the belief that social media has killed privacy, and a novel experiment in which jurors help judges make sentencing decisions.

You might want to make sure that medical device is FDA approved…

This one is hard to believe but a non-FDA approved medical device was sold (and ostensibly used) about 18,000 times before the government shut it down. The device was the OtisKnee which was used in surgeries for knee replacement. It is essentially like a specialized carpentry device which allowed the surgeon to line up a bone saw precisely and (allegedly) speed both surgery and recovery. The corporation making OtisKnee had not sought FDA approval and when they did, they were rejected due to failing to prove the product safe and effective. Read more about this situation at Pacific Standard magazine and remain aware of how easy it is, in the $110 billion a year medical device industry, for tools to be used quite widely without FDA approval.

Privacy is dead in the age of social-networking

Most of us likely won’t find this hard to believe but it is still eye-opening. In September and October of 2014, 6,063 adults were surveyed about privacy in the age of social media. What is unusual, is that the sample included people from all around the world— and in every country— the majority believe privacy is dead.
privacy is dead insert

There was no real difference between the scores in developed versus developing countries. We all seem to know (at least intellectually) there is no longer any real privacy. The article itself lists a couple of apps to use to enhance your privacy. One allows you to create “self-destructing social media posts” and another lets you “securely share” an image with specific Facebook friends only—all other friends “see a picture of a kitten” instead. These probably won’t work to keep your social media presence entirely invisible but they appear to help keep what you don’t want public hidden (for now).

Judges asking for sentencing recommendations from jurors who heard the case

One of the questions sometimes posed to jurors is whether the conduct of the litigants reflects how they want business to be conducted in their community. It takes the question from a purely legal one to one that has a relationship to their day-to-day lives, their values, and their belief about business and society. In other words, it taps into their community sense of justice. And here’s a story of a judge asking jurors for their sense of community justice. This was a case involving an unrepentant man convicted of “possessing, receiving, and distributing child pornography” with more than 1500 sexually explicit images of children on his computer (some less than 12 years old). The prosecutor wanted 20 years (the statutory maximum). The judge polled the jurors and the average of their sentence recommendation was only 14 months. The judge then sentenced the defendant to “the statutory minimum of five years in prison”. The article itself has multiple perspectives on whether the judge should have done this polling and then apparently made a decision for sentencing informed by juror sensibilities. It is well worth reading.


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hannibal lecterAt least that is the headline we’ve been reading about this research. We’ve written before about the psychopath. They are typically characterized as scary and “other” than us—not like us at all. They have been described as without conscience, and yet some of them are involved in corporations rather than prison. There actually are researchers who would say that because the brains of psychopaths are abnormal—they should not be punished for their behavior. Today’s spotlight is on an article which is of that ilk. These researchers say “one in five violent offenders is a psychopath”. That number is not really surprising since prevalence rates for psychopathy have been estimated at 15% to 25% of the male offender population. The researchers continue by saying psychopaths have higher rates of recidivism and do not seem to benefit from rehabilitation. The researchers say they know “why” this happens and they hope their work will improve childhood interventions to prevent or at least decrease violent behaviors in those with psychopathy.

They begin by reviewing the literature on the cold and premeditated aggression of the psychopath and posit that the behavior is due to abnormal and distinctive brain development that can be seen from a young age. The researchers recruited 50 men (aged 20 to 50 years; reading age higher than 10 years; no history of major mental or neurological issues) to participate in the study. Obviously, they chose some men who reported they were healthy, and others with a documented history of violent offenses. The study used the fMRI to examine brains, looking for similarities and differences in the brains of healthy non-offenders and violent offenders (some with psychopathy and some with antisocial personality disorder but who did not meet the criteria for psychopathy).

Their subjects were paid minimum wage for their time and included:

12 violent offenders with both antisocial personality disorder and psychopathy, and

20 violent offenders with antisocial personality disorder but not psychopathy, and

18 healthy non-offenders.

The offenders had been convicted of various violent crimes (e.g., murder, rape, attempted murder, grievous bodily harm) and the researchers recruited them from Britain’s probation system. The non-offenders were recruited from unemployment offices and from community webpages. All participants were interviewed and scored on the Psychopathy Checklist and the offenders’ criminal records were reviewed. Participants were asked to not use alcohol or illicit drugs for 2 weeks before and during the study and were given urine and saliva tests at each research session. They were also given an IQ test (the Wechsler Adult Intelligence Scale, third edition) and completed a reactive-proactive aggression questionnaire.

The researchers reported differences in brain regions related to empathy and the lack of empathy, processing prosocial emotions (like guilt and embarrassment) and moral reasoning. These regions are also associated with the ability to learn from rewards or punishment. If you don’t experience discomfort when you do something incorrectly, you are less likely to change your behavior the next time. As in “why can’t that boy stay out of trouble?” These researchers believe they have an idea about why junior keeps messing up.

Contrary to the attention grabbing headlines, it is not that psychopaths cannot learn from punishment. And they do “register” punishment. It is just that they do not modify their behavior after being punished. The researchers believe that the psychopath may fail to consider the negative consequences of an action and instead only focus on the positive. When caught, the psychopath is punished, and often incarcerated. Upon release, however, the psychopath is much more likely to re-offend and thus, is seen as not changing behavior as the result of punishment.

The researchers recommend that parents of children with psychopathy be taught “optimal parenting skills” in order to reduce the conduct problems among their children “except amongst those who are callous and insensitive to others”. They believe this sort of disciplined parenting, which works consistently to teach conduct disordered children the consequences of their actions, can interrupt the abnormalities of brain structure and actually modify behavior (and modify the brain at an age when the brain is more plastic and susceptible to change).

There are obvious concerns with this recommendation. In short, the impact of such a label (especially for pre-teens) is frightening. The New York Times wrote a plain language article on whether you can call a 9-year-old a psychopath which generated more than 600 comments. How would parents change their view of their child if they were told the child was a budding psychopath? How would teachers change their view of a child labeled a psychopath? How would parents and teachers change their behavior if a child was given that label? We know what happens when children are diagnosed with learning disorders, labeled “slow” and so on in the school system. They are expected to perform at a lower level and they do.

There is a huge body of literature on the “halo effect” (easily found through internet searches). Among kids in school, if even well-intentioned teachers are told that a student is a slow learner or a discipline problem, they later report that the student couldn’t understand as well as others, or had problems getting along. Conversely, if the reputation of a student is positive, the teacher is likely to spend more time and attention being helpful and supportive. Labels are dangerous, because they tend to allow people to stop looking carefully and using objective judgment. And with children, it can put them on paths for good or ill that are later very difficult to change.

From a litigation advocacy perspective, what does this mean? Let’s assume that these researchers are correct and the brain of the psychopath is different, and you can see those differences from a very young age. Does that mean psychopaths should not be held responsible for their behavior? That would likely not play well with an audience of jurors since the violent crimes of the psychopath are often heinous and clearly premeditated. Could they perhaps be thought of as legally responsible but not morally responsible? It is truly a dilemma for the attorneys involved and for the jurors who hear the case facts.

From the perspective of a world in which genetic coding or fMRI data is centrally and digitally maintained for entire lifetimes, there have long been concerns about how the data could be (mis)used. Of course it is highly confidential and protected by numerous laws, but so is my credit card information, my social security number, et cetera. If it was communicated to schools, employers, medical professionals, etc., it could permanently alter opportunities to live successful lives. And if the person already has psychopathic markers, surely knowing that isn’t going to improve their ambition toward good citizenship.

Gregory, S., Blair, R., ffytche, D., Simmons, A., Kumari, V., Hodgins, S., & Blackwood, N. (2015). Punishment and psychopathy: a case-control functional MRI investigation of reinforcement learning in violent antisocial personality disordered men The Lancet Psychiatry, 2 (2), 153-160 DOI: 10.1016/S2215-0366(14)00071-6


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