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Archive for the ‘Bias’ Category

How big is that potential juror’s house? 

Wednesday, March 25, 2015
posted by Douglas Keene

tiny houseTiny house craze aside, could this be a secret jury selection strategy? In June 2014, the Pew Research Center published a study showing that liberals prefer small, walkable communities while conservatives prefer the more sprawling suburbs. While about half of Americans prefer urban living and half prefer rural life—the split is apparently highly partisan. So Lisa Wade of the blog Sociological Images asks the question for us: “Can you guess someone’s political preferences by the size of their house?”.

To which we would add, “or by their zip code?” It’s an intriguing idea. Say you’ve done pretrial research and have learned your case plays better to those with either more conservative or more liberal leanings. Can you quickly choose between the urban and suburban dweller with positive results for your case? If you’ve read this blog for long, you already know the answer: it probably depends. The goal of research such as this—as far as jury selection is concerned—is to reduce uncertainty. Not everyone in a big suburban house is conservative, and not everyone who lives in a smaller home in a city is liberal. But the research points out a variable that already feels familiar to all of us involved with litigation—there are pockets of conservatism and liberalism.

Not all people live in what researchers would identify as their preferred setting. You will find liberals in the country or suburbs and conservatives in the city. Career focus, phase of life issues from childcare to elder care, financial status, convenience, as well as varying attitudes, beliefs and values, all factor into one’s home address. Microtargeting strategies for advertising, political campaigning have been in use for years, identifying people by factors such as living on specific blocks within zip codes, size and value of homes, ownership of cars, membership in certain churches, and use of particular credit cards. It only makes sense that jury selection would ultimately tap into these strategies. We have been factoring them in for years.

Some of the findings can be understood in practical terms.

We tend to have greater empathy for people we come into contact with, people we feel we relate to and understand (people “like me”).

Those in racially homogeneous precincts don’t feel as able to relate to other races than those who live in mixed race areas.

People who only hang out with the affluent, or with the financially stressed, don’t identify as readily with those who live at the other end of the financial spectrum.

And we tend to gravitate toward those who we feel understand us, as neighbors, fellow church-goers, and cohorts in various other dimensions.

We like people best who are most like us.

While, under strict time and information constraints, you may choose to use broad stereotypes (and this one is at least supported by data rather than assumptions), given the opportunity, there are plenty of other clues you may want to consider in addition to rural, urban, and suburban addresses.


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light skinned black manMost of us have heard of the preference for lighter skin within the African-American community. Some of us have also heard of “colorism” in general—a bias shared by many in our culture. Recently, author Lance Hannon (a sociologist from Villanova University) used data from the 2012 American National Election Study and found that Whites in America tended to see light-skinned Blacks and Hispanics as more intelligent than those with darker skins.

The National Election Study requires interviewers to sit down in a face-to-face survey with respondents (who disclose their income and education level and take a brief vocabulary test). Hannon identified 223 Black or Hispanic respondents who were interviewed by White survey takers. The White interviewers were asked to list each individual respondent’s skin tone on a 10 point scale as well as to estimate the respondent’s intelligence on a 5-point scale ranging from “very low” to “very high”.

What he found is disturbingly consistent: “white observers will look at two identically qualified minorities and assess the lighter skinned one as more intelligent”. Other factors about the respondent simply did not seem to matter.

Specifically, regardless of the respondent’s age group, gender, income, or their vocabulary test score, those respondents the interviewer’s described as “lighter” in skin tone were seen as “more intelligent”.

Educational level of the respondent did predict the interviewer’s assessment of their intelligence, but not as strongly as the respondent’s skin tone predicted the interviewer’s estimate of their intelligence.

If this finding is supported by follow-up studies (which appears likely), it has far-reaching implications for our society. When skin tone has a larger role in estimating intellect than educational level—the tendency to equate lighter skin with higher intelligence is obviously deeply entrenched.

From a litigation advocacy perspective (and an inclusive workplace perspective), this research informs us on biases we may assume without question.

When assessing jurors for your specific case, pay more attention to education and curiosity than to skin tone in estimating intelligence.

Do the same in the workplace. When you are assessing workplace performance, set skin tone (and gender, and age, and ethnicity) aside. Focus instead on concrete behavioral indicators that deserve reward.

Just as we have “learned” to have biases against race and color, we need to “unlearn” those biases and make ourselves consciously aware of them—whether it is in the courtroom or the workplace.

Hannon, L. (2015). White Colorism Social Currents, 2 (1), 13-21 DOI: 10.1177/2329496514558628


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Red States, Blue States and Brain States 

Wednesday, March 11, 2015
posted by Douglas Keene

red and blue brain_83860474Neurolaw interest has been building for years among those of us who work in litigation advocacy. But what about among the public—those who may serve as jurors, for example? Earlier this year, we wrote about a study done in the United Kingdom that showed citizens there were more confused than intrigued by neurolaw principles. Here is part of what we said back in January:

“The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique.They also  found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness.”

So that was in the United Kingdom. What about here in the United States? These researchers first used a small sample (N = 89) online to identify the ways the public  thought fMRI findings, for example, might be used in the legal system. A quarter (25%) said “none” (i.e., they did not think of any ways an fMRI might be used in the legal system. Slightly more than a third (34%) listed “lie detection”; 36%  mentioned it might be used in the assessment of a criminal defendant (e.g., support for an insanity case); and 2% mentioned brain injury cases. The authors indicate only a few participants mentioned topics such as addiction, juvenile justice, or brain death.

The authors thought the topics offered by the participants in their pilot study meant that when Americans are asked to think of neurolaw, most of them focus on the criminal domain. So, the researchers used a large, published poll (done through Columbia Law School) administered in 2011 to gather information from a “truly nationally representative sample”. The survey (a random-digit-dial telephone survey) resulted in a sample of 1,010 respondents all from the continental United States.

The researchers wanted to know whether attitudes toward the use of neurolaw varied based on political affiliation and based on how the use of neurolaw was described. All of these respondents were read the following during their telephone survey:

“Recently developed neuroscientific techniques allow researchers to see inside the human brain as never before.”

The researchers divided up the participants into three groups (i.e., a control group, a “prosecution” treatment group, and a “defense” treatment group).

Control group participants were asked if they approved or disapproved of legal reforms based on advances in neuroscience. Ultimately, 9% strongly disapproved and 9% strongly approved. 40% were undecided and the remainder were split between approving and disapproving. The distribution of responses was roughly normal and approval/disapproval of neurolaw was the same for Democrats as it was for Republicans and Independents.

Prosecution treatment group participants were asked if they approved or disapproved of prosecutors using neuroscientific evidence to show that criminal defendants deserved lengthy prison sentences.

Defense treatment group participants were asked if they approved or disapproved of defense attorneys using neuroscientific evidence to show that criminal defendants deserved reduced sentences.

Normally, we would not expect to see differences based on self-reported political party affiliation for reasons we’ve written about earlier. But, in this case, (which is why you should never assume) political affiliation matters!

Republicans had less approval for neurolaw when it was framed as helping the defense than when there was no framing (i.e., in the control group) or when it was framed as helping the prosecution.

Democrats did not differ in their approval for neurolaw in the three conditions.

Independents leaned toward the Republican perspective, although the results were not statistically significant. The researchers thought perhaps the Independents were “closet partisans” who tended to see issues of law and order similarly to the Republicans.

The authors summarize their findings by saying that the American public is largely undecided as to their attitudes toward neurolaw but that how neurolaw is framed (as benefitting either the prosecution or the defense or no one) matters when self-identified Republicans are assessing whether they approve or disapprove of neurolaw’s use. The researchers see this as representing the Republican’s law and order values. If neurolaw helps the defense, Republican’s don’t think it is a good thing. However, the authors also opine that neurolaw is not yet a polarizing political issue. On the other hand, neurolaw can be presented in such a way as “to excite partisan differences” if it is presented as something that will help “defendants get off easy” for their crimes.

While this may have something important to add to the neurolaw discussion, it seems likely to mirror the overall prevailing view of criminal prosecution/defense leanings more generally. Republicans generally have a more pro-prosecution view than do Democrats, so it isn’t much of a surprise that Republicans would look less favorably on a strategy that might favor defense. So it leaves open the question of whether this research is testing bias or views of neuroscience.

More broadly, this study highlights the importance of framing when asking for what appear to be standard reactions to a specific topic. While the question is not as obvious as with push polls, the same sort of reactivity appears to occur when neurolaw is described as benefitting either the prosecution or the defense—at least for Republicans.

If those skeptical about neuroscience being used by defendants  were taught that validation of neuroscience has been established through application by prosecutors, they might be more receptive to it being employed by defendants as well. They are more likely to grant credence to prosecution strategies, so in a paradoxical way, boot-strapping the defense use of neuroscience—by reframing it to be a method used by prosecutors— could raise acceptance among some who are skeptical of defendants.

Shen, F., & Gromet, D. (2015). Red States, Blue States, and Brain States: Issue Framing, Partisanship, and the Future of Neurolaw in the United States The ANNALS of the American Academy of Political and Social Science, 658 (1), 86-101 DOI: 10.1177/0002716214555693


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TJE_logoThe February 2015 issue of The Jury Expert has been uploaded and here’s what you’ll see if you visit the site:

Why Women Speak Up in the Jury Room by Suann Ingle. Many of us have read the book Lean In by Sheryl Sandberg. Suann read it and then saw the recent article by Sandberg and a colleague discussing why women don’t speak up at work. Suann has ideas about why women may not speak up in the corporate world but she also has ideas about why they do speak up in the deliberation room. If you want your female jurors to participate, take a look at Suann’s ideas on how to make that happen.

The Psychology of a Persuasive Settlement by Ken Broda-Bahm. “We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait, followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room.” So begins Ken Broda-Bahm’s article on the psychology of a persuasive settlement. This is an article that focuses on the issues that keep us (or rather, “the other side”) from settling a case when that is the most logical outcome.

Racial Disparities in Legal Outcomes: On Policing, Charging Decisions, and Criminal Trial Proceedings by Samuel R. Sommers and Satia A. Marotta. We don’t do reprints in The Jury Expert. But this time, we are doing a reprint, because this article was written in plain language and the content is so important we want to make sure everyone has a chance to read it. There are many ways racial bias factors in to legal decisions and this article focuses on how racial bias enters into decisions on policing, charging decisions, and criminal trial outcomes. This is a must read article.

Top 10 Most Accessed Articles from The Jury Expert in 2014! Here’s a look at what your colleagues have been clicking on and reading in 2014. Have you read all of our top ten? Now you can!

Road Warrior Tips. Here’s a few more tips and tricks from our “often on the road” ASTC member trial consultants. Make sure you know the newest tips and tricks!

Who is my ideal juror? by Jill Leibold. It’s a question often asked by trial attorneys. Jill Leibold has some thoughts on turning that question around so you ask who is not your ideal juror. She also has some ideas on how you can identify both your favorites and your not favorites so you go into jury selection more confidently.

Favorite Thing for February 2015! We like a good infographic here at The Jury Expert and this favorite thing entry gives you many infographics. If you, like me, have trouble remembering the different uses of the words “affect” and “effect”—you’ll love the infographic we are featuring!

Mea Culpa in the Courtroom [a TJE Classic] by Kevin Boully. Before May 2008, when we began to publish entirely online, The Jury Expert had some very good pieces that saw limited exposure. We devoted an entire issue to “the classics” that stood the test of time but didn’t have room for this one. How do you apologize effectively in the courtroom? Kevin Boully knows the literature and offers his perspective on the importance of both apology and the importance of doing apology right.

We hope you enjoy this issue of The Jury Expert and, tell your friends, colleagues, and opponents about us!

Image from Jury Expert website

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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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