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- Eww! That is just disgusting! (but…very interesting)
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Archive for the ‘Bias’ 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.
Eww! That is just disgusting! (but…very interesting)
We’ve written about secret weapons for the trial lawyer before. Like the chairs in the jury box and wearing red which turned out not to be for just the women among us! And now, where should more secret weapons come from but the research on moral judgments and especially, the research on disgust.
The Boston Globe just published a piece on how our moral judgments may come not from our religious/spiritual beliefs or from our deeply ingrained values but instead from our visceral reactions to what we see and hear.
Here are some examples:
- If you are more easily disgusted by bugs, you are more likely to see both gay marriage and abortion as wrong.
- If the room you are sitting in smells bad, you judge both controversial films and a person who didn’t return a wallet more harshly.
- Washing our hands makes us feel less guilty about our own moral transgressions and making us prone to feel disgust results in us seeing wrongdoing in totally innocuous stories.
The Globe helpfully shares specifics of some initial research on disgust:
“The father of modern disgust research is a psychologist named Paul Rozin. In a series of studies in the 1980s and 1990s that read like hidden-camera pranks, he set out to see how powerful the emotion was, and what exactly it was about disgusting things that repelled us. A professor at the University of Pennsylvania, Rozin served people cups of juice that a sterilized cockroach had been dropped into and offered others chocolate fudge shaped like dog poop. He asked whether subjects would wear a thoroughly laundered sweater that had once belonged to Adolf Hitler. In all those instances, most people refused, even though they knew the cockroach and sweater were clean and that the fudge was in fact fudge. They just felt disgusted.”
And there’s more there if you’d like to read about ‘fart spray’ or ‘eating your pets’—these are tenure track researchers living out adolescent fantasies. It’s gross. Which is pretty much their point.
And our point, is this: if you want jurors to judge innocuous actions harshly or you want to drive home the point about ‘bad’ behavior—use subtly disgusting analogies, metaphors or expressions. You want to tie ‘disgust’ to the other side. Quietly. Subtly. Let jurors think it was their own reaction. Yes. It is disgusting. But isn’t it interesting as well?
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.
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!
Maybe you better sweat the small stuff…
You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…
Facial scars:
If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health. We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness. Or, perhaps, creepy.
Videography angles and focus:
It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously. We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.
New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)
Foreign accents:
Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful. When we have trouble understanding someone, we assume they are less than truthful.
While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.
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!
Secret Weapon: The Chairs in the Jury Box?
Spoiler alert! There are about to be times when you look at the furniture in a courtroom and start either grinning or feeling a sense of dread. It’s like a secret weapon of knowledge that happens to be largely luck of the draw. And we owe this knowledge to our friends who do social sciences research!
Scientific American has recently published a study summary on what is called ‘embodied cognition’. We’ve blogged about this phenomena before and think it’s a really fun fact to know about how our minds work—from the times of Jesus to Shakespeare to now.
The Scientific American study includes this thought-provoking snippet:
“And to see if other, more passively perceived surfaces could affect a person’s mindset, the researchers had volunteers pretend to negotiate the purchase price of a car while sitting in either hard or soft chairs. Those who happened to be sitting in hard chairs seemed to perceive the situation as more rigid, presenting second offers much closer to the original sticker price than those who had been seated in softer seats.”
Does that mean uncomfortable chairs compel passive acceptance? Does it mean that comfortable people are less distracted by their own distress, and are more likely to analyze information thoughtfully? And here’s what we thought.
- If the jury sits on hard chairs during the trial, might that bode well for the prosecution (in a criminal case) or the defendant in a civil trial? It sounds like the research disposes people to be less challenging of authority, even if it is adverse to your own interests.
- Conversely, if the jury sits on soft chairs, might that benefit the plaintiff in a civil trial or the defense in a criminal case? Again, it seems as if the research would have people being more comfortable, and more able to question the information being handed to them.
It’s hard to know. And, of course, you would likely want to visit the deliberations room to see if the surfaces on chairs there mirror those in the jury box in the courtroom or not. Regardless, a visit to your assigned courtroom could be instructive. Our bet is no one would know you were the one placing the cushions on the jury chairs (or removing them).
Voir Dire Strategy: Who’s the authoritarian?
Recently, in his blog (Defending People), Mark Bennett posted about using scientific jury selection via the use of questions to assess jurors’ authoritarianism. Mark even shares the questions he used.
We happen to love this idea. We like to use pre-existing (already validated) survey research items since we have an idea of what a normal distribution of responses should look like. Mark’s idea of using the authoritarianism trait is a tried and true one. Research has long shown us that people who are authoritarian are more likely to be punitive, see the ‘law’ as a black and white standard, and condemn persons who question and/or deviate from societal norms.
The challenge in this sort of approach to jury selection (as pointed out in the comments on Mark’s blog entry) is in figuring out just how to get to the data.
- One reader suggests a pretrial questionnaire.
- And a member of the jury pool where Mark tried this strategy says she found it really interesting but wondered if she had enough time to really consider her responses.
- Mark used half his voir dire time to ask jurors these questions.
Often, you simply don’t have the time in voir dire to do this sort of interviewing/questioning but when you do, this is a good strategy if you do not have the luxury of pre-trial research. There are multiple resources you can peruse (free of charge) that may elicit additional ideas for voir dire investigation. It’s like a scavenger hunt. Below we suggest just a few:
Of Innocence and Dissonance: Reviewing the Conviction-Prone Status of Death Qualified Juries from a Cognitive Dissonance Perspective by Victoria A. Springer (2007). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992963
Our Existential Death Penalty: Judges, Jurors, and Terror Management Jeffrey L. Kirchmeier (2008). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324922
Authoritarians Have Moral Intuitions that Liberals Do Not Share: A New Look at Moral Foundations Theory. Matthew B. Kugler (2009). Download from SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1435002
On Hispanic Jurors: Religiosity and Values
As Texas-based trial consultants we see a lot of Hispanic jurors and are always intrigued by the subtle variances in values that pop up from time to time in cases. Even well-intended observers and professionals can make some important mistakes. Assumptions about “Hispanic jurors” are often simplistic and naively racist, as this is as complex a cultural group as any other. There are differences within any group from a given national origin, as well as variance between those from, for example, Mexico versus Venezuela or El Salvador.
A while back we did a focus group on a case involving salacious infidelity, strained family relations, and abortion. Hot button issues for many but we thought especially for our Hispanic jurors for whom “family values” and religion are often driving forces in decision-making on cases. We were curious to see how Hispanic jurors in particular would hear this story.
What we saw was intriguing—Hispanic jurors saw a straight-forward defendant (the party who admitted marital transgressions) and a strained and seemingly withholding plaintiff. They joined with other jurors in supporting the party they saw as honest and credible. The rest of the story fell into place around their perceptions of the witnesses. When questioned about the aspects of the case that contradicted their own values, they simply said that those facts made a sad situation worse but were irrelevant to determining verdict. He was very imperfect, but he was honest, and he loved his kids. They liked his warmth; they were put off by the frosty harshness of the Plaintiff.
Now we see some data from the blog Gene Expression that offers new insights. According to Razib Khan, the blogger at Gene Expression, we often make the assumption that since Hispanics are often Roman Catholic, they will have very conservative social views. Khan uses data from the General Social Survey to examine various religious beliefs and behaviors and compare non-Hispanic whites, blacks and Hispanics on these factors.
What he concludes is that support for the notion that Hispanics are ‘always’ more religiously conservative is spotty at best. According to Khan, Hispanics are more religious than the median American but the main issue where a noticeable difference arises is around the question of abortion. He opines that this is likely a cultural issue since many Hispanics or their families are of recent origin from nations where abortion is illegal.
We like to see data such as Khan provides to help us understand the ‘why’ of various values and behaviors. In our experience, the best attitude for us to have when taking on any new case is one of curiosity. What will jurors think of this case? Will different groups see it differently? Are there group cultural values that interact with this fact pattern or are there shared beliefs that will override general pre-existing attitudes? Curiosity leaves us open to learning. And the more open we are, the more we learn about blind spots in our cases.
Is racial bias fueling anti-Obama rhetoric?
It would seem so. Or, as a particularly erudite friend observed the other day, “Duh!” New research published at Miller-McCune reports that unconscious negative attitudes toward African Americans make the anti-Obama rhetoric seem more persuasive. Contrary to Obama’s campaign calls for a national debate on race the researchers in this study conclude that “An unfortunate side effect of Obama’s ethnic identity, and that of others leaders and politicians of color, is that it may discourage rational debate.”
The Tea Party stridency is only one example of this racial bias directed at Obama. A more disturbing example can be found on the CNN website in, of all places, the fashion section. A May 2010 piece on Michelle Obama’s style sense—meant to highlight her unique sense of style—instead drew intense racist comments from many, many commenters. (Be sure to scroll to the end of the article to review the comments.)
There is something about the anonymity of website comments that frees people to say hateful and spiteful things that we certainly hope they would not say in person. Just as email communications promote dishonesty so too anonymous web comments promote the sense that it’s okay to say racist and negative things about others.
In focus groups, we hear the refrain routinely—“Well, it doesn’t make any difference to me, but it sure would to a lot of other people.” It is akin to the old “I’m not prejudiced, but all my neighbors are”. When we ask directly about bias, our mock jurors deny it. In fact, when it is obvious that flagrant bias (racial or otherwise) is driving focus group discussion, I don’t ask them if they are biased; I ask two alternate questions: 1) “Has this been your perspective for a long time?”, and 2) “Do you think that a random group of your neighbors and co-workers would likely consider [bias issue] a problem?”
Racism is alive and well despite many believing we are now living in a post-racial society. It’s simply better hidden but not really buried too deeply at all.
For real advocacy to happen–
- We have to tell our stories in ways that transcend race while also acknowledging it is there.
- We have to raise the flag (in a carefully crafted manner) to alert jurors to avoid stereotypes and bias and make their decisions based on justice and fairness. (Register at our website to see our article on Juries and Race.)
- We have to trust jurors while also arming them with forewarning so they can avoid bias in their deliberations.
- We have to make our clients, parties, witnesses, and their family members ‘like’ our jurors so that bias is minimized as “these people are like me”.
Your goal is to disrupt the habitual process of our attempts to find justification for pre-existing beliefs and to encourage consideration of facts and unbiased processing of evidence. It isn’t easy. It isn’t fair. But it does give your client their best shot at real justice.
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