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Archive for the ‘Bias’ Category

If you read this blog routinely, you know we like the work done by the Pew Research Center that keeps us abreast of how demographic patterns are changing. They’ve done it again with some trends for us to watch as 2017 marches forward. Here are some of the highlights from their report on how the world around us is changing.

Millennials are now the largest generation in the US. In 2016, according to this new report, there were about 79.8M Millennials (aged 18 to 35 in 2016) compared to about 74.1M Boomers (aged 52 to 70 in 2016). The Millennial population is expected to continue to grow until 2036 as a result of immigration.

Fewer of us are marrying although we are increasingly cohabiting and Pew discusses the “gray divorce” rate (divorces among those 50 and older) which has roughly doubled between 1990 and 2015.

More of us are living in multigenerational households (with two or more generations). This is due to economic changes as well as the changing racial and ethnic makeup of the country. Also, for the first time in 130 years, more Millennial-aged people are living with their parents than in any other living situation.

Women may never make up half of the US labor force although the gender pay gap has narrowed from women earning 64 cents for every dollar earned by men in 1980 to women earning 83 cents for every dollar earned by men in 2015.

Immigrants are responsible for overall workforce growth in the US. If not for immigrants, the average working age population in the US would decrease in size by 2035. They also report public opinion has turned more positive for immigrants this year. Similarly, since 1970, the increase in the annual number of US births is driven by immigrant women. Babies born to Muslim mothers will outnumber babies born to Christian mothers by 2035.

The US admitted 84,995 refugees in 2016, this is the most admitted since 1999. The graphic illustrating this post shows which states most refugees went to live in. About half (46%) the 2016 refugees were Muslim.

There is more information in the Pew report on demographic changes shaping our country and the world this year. Read it to keep yourself abreast of changing demographics in our country and around the world—as well as in all of our panels of prospective jurors.

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One of the most common internet searches that brings people to our blog is “women who stalk” and we intermittently receive emails from men who say they have been belittled by the police for reporting a female stalker. They wonder if we can somehow help them. (No. We cannot. We typically refer them back to law enforcement in their area.)

Dangerous women are apparently intensely interesting and intensely frightening, as we’ve seen by the number of visits to our posts on women who murder or commit other violent crimes.

Female cannibals “frighten and fascinate”

We will start with the most attention-grabbing headline in our stack of recent articles all about women. Female cannibals. Can it get scarier than that? The Atlantic has an article written by a woman who has been studying female cannibals for the past five years. And yes, she knows that is an odd subject in which to immerse oneself, (i.e., not a good dinner date). The article focuses on how much female cannibals are making their way into popular culture via Netflix and popular (and current) movies. If you would like to sample this fare, you may want to read this article but if you choose to view the films or Netflix shows described therein, please do so with your doors locked and in well-lit rooms. Don’t say we did not warn you.

Babies born to “older mothers” (35-39 years of age) are doing better intellectually

This is a study comparing data from moms of babies born 40 years ago and is research from the London School of Economics and Political Science (LSE) and the Max Planck Institute for Demographic Research (MPIDR). These turn of the century (circa 2001) newer “older mothers” are more educated, less likely to smoke, and are established in professional occupations. These tend to be women who were actively engaged in careers before motherhood, which naturally is different from women who gave birth as teenagers or young adults. The children are likely to receive more resources and attention from parents than children born to women of this age range 40 years ago. You can learn more at Science Daily.

Video games influence sexist attitudes

The debate used to be over whether video games caused violent behavior off-line but this article says that video games are encouraging adolescents to be more sexist. The researchers studied more than 13,000 adolescents (aged 11 to 19) who spent about 3 hours a day watching TV and almost 2 hours a day playing video games. (We are not told how much time they spent doing their homework.) Instead of measuring how sexist the content of the games played were, the researchers asked a simple question and asked the gamers to say how much they agreed or disagreed with the following statement:

“A woman is made mainly for making and raising children.”

Those adolescents who spent more time playing video games were more likely to agree with this statement. Before you go wrench the controller from your adolescent’s hand, we think you should also know that other video game research suggests that people remain calm as the world ends, so at least we have that.

Is this black woman the next Steve Jobs? Venture capitalists are withholding funding

This is a story worth reading. Here is a woman (who happens to be black) with credentials, accolades, and a free financial literacy product that is badly needed and yet having trouble getting funding. Why? Maybe because she is a black woman.

“Steve Jobs revolutionized the computer industry, the way we listen to music, and how we make phone calls. Angel Rich wants to revolutionize financial literacy education and level the playing field between those who have money and those who don’t. But she’s playing on an uneven field. Jobs was a white man and Rich is a black woman.”

Mindfulness meditation helps women with negative emotions more than it helps men

Usually these “hard to be a woman” posts are filled with things not so uplifting (if you are a woman) but here’s a nice finding for women (and some recommendations on how it might be made more helpful for men). If you have not heard of mindfulness meditation, you are quite unusual, but here’s a Brown University report showing that mindfulness meditation has stronger self-reported benefits for women in “reducing the intensity of negative emotions” than it does for men. A more detailed summary of the study is posted over at PSMag.

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Resting Bitch Face’ is, in case you missed it, the condition of having a neutral facial expression that people perceive as sour, unpleasant, and generally bitchy. Long before was RBF was a thing, a woman in my graduate school class told me that professors often thought she was angry because her face carried a flat expression when she was thinking. “It’s just how my face is!” she protested. Years later, allegedly not until 2013 (although it hit the Urban Dictionary in 2011), the phrase went viral.

It is a “real thing” say scientists, is seen in the famous and the not-famous, has caused some to become depressed, is mostly attributed to women but also seen in men, and some say it reflects contemptuousness. There is support for RBF from social media (sort of), it inspires creativity and career advice, and constant social directives to ‘smile’ or ‘be kind’. There have also been multiple (tenure-seeking) scientific studies on first impressions (which includes the impressions made about RBF particularly in women). RBF even resulted in a video parodying all those direct-to-consumer medical ads.

The term has many detractors who do not think it is at all funny (for the most part) and they wonder why women are expected be always smiling and inviting. They say it is a variation on the “Smile honey!catcalls from men congregated in groups as the woman walks by. As the name would suggest, it is a sexist distinction. There are slide shows designed to show multiple other meanings for expressions deemed to be RBF. Detractors also have career advice, decry the constant focus on women expending energy to appear pleasant to everyone, have created posters, have published articles on the costs of RBF at work, and made angry comments about health professionals giving advice on avoiding the RBF expression as you mature.

From a litigation advocacy perspective, we actually rely on first impressions when doing pretrial research with mock jurors and have blogged about the importance of the first impression and strategies for being more likable a lot here. But the concept of RBF is not something we’ve discussed, and frankly, it is a dilemma. Gravity and age give all of us a more RBF facial expression. We need to disconnect the initial negative impression some jurors may have formed due to RBF. Some good advice comes from, of all places, the Business Insider:

“I’ve heard people with resting bitch face sometimes tell me that they’ll contextualize it verbally for other people. That they’ll say, “I’m not unhappy with you. I’m not displeased with the situation. I just look this way.” And that’s a really honest way to talk about this facial expression that they’re giving, because facial expressions are so critical to how we perceive what other people are telling us.”

This is just part of the video transcript on the website (with the author publicizing his new book) and this may be a good way to talk to witnesses, or parties, or yourself (if you have RBF). The message is so similar to what my friend in graduate school said to me as we first met, “That’s just how my face is”. Humanizing the party/witness with the RBF can help jurors (many of whom will have RBF themselves) reshape their first impressions of him or her.

What is instructive is that the speaker on the video has a constant grin on his face (perhaps Resting Happy Face) that makes his spoken message much less empowering than the written transcript provided under the video.

When you are testifying in court, interposing a laugh, or learning to ‘force’ a slight lift to the corners of your mouth can negate the ‘resting’ expression that may look a bit sour or unhappy.

Perhaps the best advice to give to someone who is concerned about being observed (and judged for having RBF) is just this:

So listen to me. You do not have Resting Bitch Face. You just have a face. There’s nothing wrong with it. Don’t let anyone tell you otherwise.

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It’s been all about “fake news” for a while now and here’s a study telling us to just stop talking about it. Well, sort of. What it actually says is even when we have knowledge to the contrary, if we hear something repeated enough—we come to believe it. Hence, our recommendation that we need to all stop repeating fake news—even if our comment is on how ridiculous it may seem. It is as if the false statements morph when repeated enough from outrageous to familiar to having a ring of truth. Merely by repetition.

It’s a bit like the dictum we’ve written before to “change the narrative” and not use the same terms the opposition is using to describe something like “death panels” or figuring out how to debunk faked visual imagery. You don’t want to accidentally reinforce the ideas and images of the opposition but you do need to put forth your own narrative. Today’s research offers insight into just how a listener can know something to be false and yet, after hearing it repeated, accept it may be true after all.

As the researchers remind us, “repeated statements are easier to process, and subsequently perceived to be more truthful, than new statements”. Nazi Joseph Goebbels is often credited with a law of propaganda that would be another way to communicate the same idea as the researchers want us to understand: “Repeat a lie often enough and it becomes the truth”. While we may not believe this would ever happen to us, it definitely does with the researchers ultimately concluding that we have “knowledge neglect” and tend to support the conclusion that is easiest for us to support. It’s just too tiring, apparently, to actually think. Against the tide of fake news, it requires endless vigilance.

In this case, the researchers wanted to see if the “illusion of truth” (i.e., hearing falsehoods repeated) would over-ride “stored knowledge” (i.e., things we know to be true). For example, they offered two statements to participants:

The Atlantic Ocean is the largest ocean on Earth.

The Pacific Ocean is the largest ocean on Earth.

The researchers figured most people would know that the Pacific is the largest ocean on Earth and thus that elementary school factoid would be in the “stored knowledge” of most participants. (We questioned this assumption but we should note the participants in the two experiments were all undergraduates at Duke and thus perhaps more able to remember elementary school factoids than those of us who are slightly older.) Despite being fairly young, most of the participants did not put forth enough effort to ponder their prior knowledge and call up the facts—so, the illusion of truth worked. Sometimes. However, when participants did think about their stored knowledge, they chose the correct answer

The authors explain this finding by saying that we can all apply our stored knowledge to every bit of new information that comes to us, but this takes tremendous effort and energy. It requires us to assess the new information against other things we know or think we know. That requires a commitment to stay focused and costs the individual in terms of both energy and effort. We see this sort of fatigue and energy loss often in our mock jurors who are operating at full capacity to come to a decision on what is right during pre-trial research. They are thinking and want to come to the right decisions.

From a litigation advocacy standpoint, however, we have to realize this energy and effort is a limited resource.The energy and understanding of jurors are prey to the illusion of truth effect because our tendency is to use short-cuts in assessing how plausible something is as we hear it. Sometimes this works and sometimes it doesn’t. You can help jurors by using expert witnesses to teach them that something really is true—and it is a provable fact rather than simply a statement of opinion. How?

Start by having the witness ease them into the area that is key to their testimony, by having them first remind jurors of what they know, establishing that the expert relies on knowledge that they believe in. Give them the experience of “Hey—I know what s/he just said is true!” Then move the focus to increasingly unfamiliar territory, after building the credibility connection.

Have the expert witness cite scientific studies finding whatever statement they are testifying to is supportable by recent research. That broadens the connection from the juror to the research, using the expert as a conduit.

Go further by having that expert witness address what the opposing expert may say and why your expert  knows that to be incorrect (citing other research and scientific consensus rather than mere opinion).

What is most important is that you respect jurors’ ability to think and give them reason to want to expend the effort to evaluate the facts in the case for you and for your client. Don’t make this merely about which party is more likable or attractive (although certainly do what you can to portray your client as both likable and similar in values to the jurors).

While the researchers recommend future research focus on how to get people to rely on their own stored knowledge rather than repetition to ascertain truth—until that research is completed—your best strategy is to help jurors think through the facts and answer the questions that are likely to come up for them as they hear the evidence.

Fazio LK, Brashier NM, Payne BK, & Marsh EJ (2015). Knowledge does not protect against illusory truth. Journal of Experimental Psychology. General, 144 (5), 993-1002 PMID: 26301795

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Those of us who’ve been around for a while have heard this repeatedly. But, lest you think times are changing, here’s some sobering data from a March, 2017 report co-edited by a Michigan State University College of Law Professor.

From the beginning, this is a disturbing report. Here’s how it starts:

African-Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations”.

The report focuses on murder, sexual assault and drug crimes. To stay brief, we will give you highlights only of the murder statistics for Black defendants. Once you see those, we think you will want to review the whole of this very recent document.

Here are the statistics on Black defendants accused of murder.

Judging from exonerations, innocent black people are about seven times more likely to be convicted of murder than innocent white people.

African-American prisoners who are convicted of murder are about 50% more likely to be innocent than other convicted murderers.

The convictions that led to murder exonerations with black defendants were 22% more likely to include misconduct by police officers than those with white defendants.

In addition, on average black murder exonerees spent three years longer in prison before release than white murder exonerees, and those sentenced to death spent four years longer.

Many of the convictions of African-American murder exonerees were affected by a wide range of types of racial discrimination, from unconscious bias and institutional discrimination to explicit racism.

If you represent Black defendants, these are realities you know. The report is not that long and you can read it and see the consistency of how having black skin gives you less of a shot at justice. One day, we’d like to see the report telling us that courtrooms are color blind, but we are nowhere near that goal.

Samuel R. Gross, Maurice Possley, & Klara Stephens (2017). Race and Wrongful Convictions in the United States. UC Irvine: National Registry of Exonerations. 

Available here.

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