Archive for the ‘Bias’ Category
We’ve written about CRISPR (aka gene editing) before and even about concerns of Americans about use of emerging technologies, and while this post is sort of about CRISPR—it is also about visual evidence done right.
We often work on cases where jurors will need to understand very complex information. It may be a patent case or a complex business litigation case or something else that is technically daunting—but jurors often need to understand something very complicated. And often that something is very technologically advanced (and thus intimidating to the jurors).
It is almost always a very difficult process for the attorneys in a complex case (in which they have often been buried for years) to see through the many details of a complicated technology and tell a simple (yet accurate) story for jurors. We often test visual evidence in our pretrial research to see what resonates with jurors, what they remember, and what helps them to make sense of abstract and esoteric technology, processes, or patented ideas.
When we see terrific examples of visual evidence (culled from many different areas) we like to share them here to help you understand there really is a way to take very, very complex facts and details and make them accessible to those who have no experience whatsoever in the area and may be very intimidated by even attempting to understand the information.
Here is just such a video tutorial. This video uses cartoon images and plain language to explain the gene editing technique referred to as CRISPR. While the last parts of the video place it clearly in the pro-CRISPR camp, the first parts explain the technology clearly and succinctly. Because it is in a cartoon format (with which we are all familiar from childhood) it is non-threatening. Since it is visually presented, we are able to understand a tremendous amount of technical information without jargon or numbers that make less technical viewers’ eyes glaze over.
If CRISPR can be explained in a few minutes of cartoons, you can explain anything in ways the most naïve juror can understand. All you need is a fabulous visual evidence consultant. We happen to know a few of them!
Here’s another collection of tidbits that did not stimulate full posts but that we found interesting enough to share with you so that you can investigate them more for yourself if you so desire. While this post contains more serious information than we usually share in these sorts of posts, it is useful information to know and to come back to if you need it at some point. We’ll be here.
Restorative justice works well for juvenile offenders
We’ve covered concerns about the inequitable “justice” received by juveniles in criminal courts in the past and here’s a new study on the impact of restorative justice for the juvenile offender. The Center for Justice and Reconciliation describes restorative justice this way: “Restorative justice repairs the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational.” This perception of restorative justice is echoed by new research out of Sam Houston State University that focuses on recidivism among juvenile offenders.
The researchers tracked 551 juveniles who were either assigned to restorative justice or regular court proceedings between 2000 and 2005—finding 40% of those juveniles committed a new offense within a 3.5 year study period. There was a difference in the number who reoffended after going through juvenile court (nearly 50%) and those who reoffended even with a minimal restorative justice educational program (31%). When more extensive restorative justice programs were used, the differences were even larger (ranging from 24% to 33% recidivism). The researchers suggest restorative justice programs be used more often with more serious offenders being assigned to more intensive restorative justice programs.
Predicting your own likelihood of divorce
The American Sociological Association has just released a new study saying financial factors (e.g., overall financial resources or the woman’s ability to support herself) are not at the root of divorces. Instead, it appears to be typically about the dirty dishes, vacuuming, changing diapers, picking up toys, and taking out trash. That’s right.
“My results suggest that, in general, financial factors do not determine whether couples stay together or separate,” said study author Alexandra Killewald, a professor of sociology at Harvard University. “Instead, couples’ paid and unpaid work matters for the risk of divorce, even after adjusting for how work is related to financial resources.”
Interestingly, whether the “division of paid and unpaid labor” raises your risk for divorce depends on when you were married. If you married before 1975, the higher proportion of housework the woman did, the lower the likelihood of divorce. However, for those married after 1975, although women still do disproportionately more housework (70% compared to 30% done by men), neither a female’s full-time employment nor an even sharing of the housework was more related to divorce. For those married after 1975, when men were employed less than full-time, there was a higher risk of divorce. The author lists both practical and policy implications of her work. Here is the abstract, but the study is currently open access and you can find it here.
Severe brain injury and vegetative states: Assessing the limits of awareness
It’s been more than a decade since the landmark lawsuit over whether Terri Schiavo had any conscious awareness of her surroundings or the family members in her room and still the ethical disagreements are powerful and divisive. New research just published in the Annals of Neurology suggests there may be a non-intrusive, “portable and cost-effective” screening tool with which to identify level of awareness of those in a vegetative state following a severe brain injury.
The researchers suggest using an EEG machine (which has a lower threshold than the more expensive fMRI machines typically used) can show who has “evidence of attention being directed toward infrequent tactile stimuli” and those patients who showed those signs were also able to demonstrate evidence of following commands when using fMRIs. The researchers also say that while many patients are accurately diagnosed, “as many as 15% of patients considered to be in a vegetative state could retain awareness that cannot be detected reliably from their behavior alone”.
Can snopes.com and other myth busting sites keep up with all the misinformation heading our way?
There’s an entertaining and interesting article in the Guardian on whether we are living in a post-truth era. The article interviews Snopes’ founder, David Mikkelson and questions whether the fact-checking sites can hope to keep up with the deluge of misinformation to which we are all subjected. The article points to social media, “a cottage industry of Facebook posts detailing supposed attempts by human traffickers to snatch victims” from every-day settings, and even politicians making outrageous statements that beg verification (for those who value veracity).
At one point in the article, Mikkelson sighs over “perennial rumors such as the US government planning internment camps or gun confiscations, or signing away national parks to the United Nations. It gets tiresome having to do the same thing over and over. Most of the stuff we debunk is so distorted from its source it’s hard to think it’s done accidentally.”
It’s a worthwhile read in a time when many of us need to be brought back to a reminder that there are places (and not just Snopes) to check those outrageous facts you hear repeated over and over again that seem bizarre and just a bit titillating—like say that ridiculous story about today’s adults having less of an attention span than a goldfish.
Gibson, R., Chennu, S., Fernández-Espejo, D., Naci, L., Owen, A., & Cruse, D. (2016). Somatosensory attention identifies both overt and covert awareness in disorders of consciousness. Annals of Neurology DOI: 10.1002/ana.24726
While those of you who have worked with (or lived with) functional psychopaths before may want to scream “Danger, Will Robinson!” — an international group of researchers (studying German research participants) have identified a “good psychopath” and a “bad psychopath” (when it comes to employment) and they even suggest a scale measuring sub-clinical forms of psychopathy (and earnestly tell the reader this will get around that pesky US ADA restriction against measuring psychopathy on “clinical” scales in an employment setting). They take issue with even the label psychopathy as it loosely means “disease of the soul”. We can quibble about terminology, but their results highlight factors to consider when hiring anyone.
Here’s a brief look at how they came to their conclusions and recommendations for hiring people, some of whom are likely to fall on the troubling end of a psychopathology continuum. First, they explain the differences between primary and secondary psychopathy.
Primary psychopathy, according to the researchers, is characterized by “fearless dominance” (which they describe as wanting to get your own way no matter what the consequences of your actions). Their traits, say the researchers, include “an egotistical personal style characterized by self-promotion and prioritization of one’s own needs before those of others”. Yet, primary psychopaths, they say, are often described by coworkers as helpful, cooperative and pleasant if and only if, the psychopath also had good social skills that were present in the workplace (and those social skills helped them keep their arrogance , egocentrism, and prioritization of own needs and wants over those of others at bay). Or, we imagine, as long as their views are supported by others.
Secondary psychopathy, according to the researchers, is characterized by “self-centered impulsivity”. These psychopaths, according to the researchers, lack an inner braking system and thus have no self-control—they also have no consideration for others. Their traits, say the researchers, include “behavioral impulsivity characterized by disregard for rules and responsibilities”, thrill-seeking, and blaming others for their misfortunes. Consistent with this trait description of secondary psychopaths, coworkers often characterize the secondary psychopath as destructive, not helpful to others, and weak in terms of work performance when it comes to self-disciplined behaviors such as working hard, following workplace rules, taking initiative, being considerate and cooperative, or helping others with their tasks.
By definitions embraced elsewhere, Primary psychopathy might be considered more narcissistic, while the lack of control and the heartlessness of Secondary psychopathy is more aligned with the traditional view of psychopathy.
The researchers think our tendency is to assume that all psychopaths have “the malevolent, exploitive, agentic, and callous personality traits” characterizing heinous criminal offenders. However, they say, that description is only relevant for the “clinical psychopaths” which comprise only about 1% of the entire population of psychopaths. Psychopathy, like other human traits, lies on a continuum and the researchers believe that about 10% of individuals with psychopathic traits have “subclinical” levels of psychopathy. (They do not indicate what this means about the remaining 90% of people in the pool of psychopaths—although they do conclude they do not consider “cold-heartedness” in their model since it was not statistically related to what they we’re trying to measure.)
The issue with employment, the researchers say, is not whether you have multiple (sub-clinical) psychopathic tendencies—but rather, how well your particular form of psychopathy fits with your job description (as well as, naturally, your level of social skill). They opine in their 30+ page paper that primary psychopaths can “be selfless heroes in everyday life, such as life-savers, emergency physicians, or fire-fighters” and think we should differentiate more carefully in the large class of psychopaths—both primary and secondary types.
Again, the paper has to be read with a willingness to accept their use of the term “Primary Psychopath”, which by its definition is a milder form.
The researchers used a measure of psychopathy that is able to “detect relatively mild levels of psychopathy traits in non forensic samples (the Psychopathic Personality Inventory—Revised, we’ll blog about this scale in our next post) and they mention the scale is useful for workplace settings since it measures subclinical psychopathy. (We should perhaps mention the scale has 150+ questions on it and some of them are quite odd—but more on that in our next post.)
Overall, say the researchers, the primary psychopath with good interpersonal skills is a good bet for the workplace but if they do not have good interpersonal skills, they will likely be as destructive as the secondary psychopath for workplace productivity and morale.
From a law office management perspective, we really would not recommend this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.
Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day to day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.
The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.
And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.
Schutte, N., Blickle, G., Frieder, R., Wihler, A., Schnitzler, F., Heupel, J., & Zettler, I. (2015). The Role of Interpersonal Influence in Counterbalancing Psychopathic Personality Trait Facets at Work Journal of Management DOI: 10.1177/0149206315607967
New research tells us you may not want to have slow motion videos played at trial if you are the defense attorney. However, if you are the prosecutor—push hard for that video! It’s really a simple lesson: when jurors see slowed down footage of an event, they are more likely to think the person on the screen has acted deliberately (and that will likely mean a more severe sentence and/or verdict).
The researchers say that while the slowed down footage does give the observer better ability to see what happened clearly, it also creates a “false impression that the actor had more time to premeditate” then when the events are viewed in real-time. Their experiments show (among other things) that jurors seeing a crime as calculated rather than impulsive can mean the difference between a “lethal injection and a lesser sentence”. That’s a profound impact from a video.
In a series of experiments, the researchers showed participants a video of an attempted armed robbery where the shop employee was shot and killed. When participants watched the video slowed down, they were 3x more likely to convict the defendant than those who watched the video in real-time.
The researchers reference the trial of John Lewis (still on death row for murdering a police officer in 2007) and the slowed down video used at his trial. Defense attorneys argued on appeal that the slowed down video evidence at his trial made jurors think his actions were premeditated, but prosecutors said since both regular speed and slowed down video were played—jurors were not confused. The judges sided with the prosecutors.
In this set of experiments, researchers tested the notion by showing participants both a real-time speed video and the slowed down version. What they found was that “slow motion replay, compared with regular speed replay, produces systematic differences in judgments of intent”. And, said the researchers, showing both regular speed and slow motion video was “somewhat, albeit not completely, effective in reducing the impact of slow motion on first-degree murder convictions”. In other words, showing both versions does not entirely mitigate the bias introduced by the slow-motion version.
We have all had the experience of watching an action movie in which car crash or a fight is filmed in slow motion. We watch and think to ourselves “Oh no! Slow down!” before the crash. The slow motion allows us to imagine escape alternatives even while we see the events unfold before us. Showing a shooting in slow motion offers the same sense of “Don’t do it!” and alternatives to the bad outcome that don’t occur in real-time.
The researchers see this as a question of whether and under what conditions slow motion video should even be allowed in court and think it imperative that the benefits be weighed against potential costs. Their results, they say, support the idea that slow-motion videos appear to influence observers in a more punitive way than real-time speed. Showing both speeds—mitigates to a degree but not entirely (so the slow-motion still has a chilling effect on juror emotions and decisions).
From a litigation advocacy perspective, this is a reference you may want to tuck away to support a motion to not allow slow motion videos to be shown at a trial where you are defense counsel. Slow motion video is most likely to be found desirable by a prosecutor or plaintiff. While it will certainly be a strategy prosecutors will want to employ (to increase the sense of premeditation and intentionality in jurors observing the video), this article was designed to test the decisions made in the John Lewis appeal and could be found persuasive to judges.
Caruso, E., Burns, Z., & Converse, B. (2016). Slow motion increases perceived intent. Proceedings of the National Academy of Sciences DOI: 10.1073/pnas.1603865113
Last week we published a new post on terrific visual evidence from the political arena that quickly and visually described complex (and huge) data sets. This week (and no, this will not be a regular weekly feature) we mine another (and perhaps unexpected) data source: Twitter. While you may have seen Jimmy Kimmel having movie stars read mean tweets about themselves—this visualization of American intolerance is much less amusing.
Although we are based in Texas (claiming the #3 slot in terms of American derogatory tweets), we travel all over the country doing pretrial research. As we prepare for that travel, we always investigate the demographic data of a planned venue so we can recruit a sample of mock jurors that reflect the community in which we are doing research. We look at online versions of local newspapers to get a sense of what residents have been reading about, talking about, or experiencing first-hand that might have relevance to our case. And sometimes, depending on the case specifics, we do a lot more research than usual to identify themes we might hear from mock jurors that can be instructive for us as we write up reports. However, prior to seeing the information we are about to share with you, we have not done Twitter research. From now on, we might need to add that to the list.
Imagine that you are working on a case that involves litigants that are minorities, or issues about social justice, or immigrants. You want to have a sense of the biases present in the area—where you can find representative opinions about your clients or the other party. You might want to understand the prevalence of biases and their social acceptability within the venue. Are slurs against black people, slurs against Hispanics or Latinos, slurs against women, slurs against the cognitively disabled, slurs against those who are overweight, or just plain nastiness and incivility in general something that people feel able to express openly? How can you know? You guessed it. Twitter.
The results can be found on Twitter, courtesy of the geotagging function in Twitter which allows you to “map” hate speech. The mining was done by a residential search engine site (Adobo) so that people looking for a new place to live can either steer clear of localities or get a higher chance of having a next-door neighbor who shares a particular favorite form of bigotry. It could also, though, be a simple place to take a look at how biases (aka online hate speech) will interact with your specific case facts.
Some of the maps do not fit with our stereotypes of various states—take for example the least bigoted states: Wyoming, Montana, Vermont, South Dakota, Idaho, Arkansas, Minnesota, Maine, North Dakota, and Wisconsin. Some of these states are often seen as having many people in them who are very bigoted and yet, there is no mention of them on Adobo’s data visualization maps as being exceptionally bigoted states. And therein lies the issue. Some areas of the country, especially rural areas, don’t tweet nearly as much as others.
Twitter participation is relatively rare among adults on the internet (only about 23% of all online adults according to Pew Research Center). So these maps geotagging hate speech may not be representative of all your neighbors (we’re talking about the 77% of online adults who are not on Twitter). When we evaluate barriers to evidence-based jury decision-making, understanding the prevalent social attitudes is crucial. So, often these Twitter maps are not accurate enough by themselves—but they are a small window into potentially big problems. And that was the goal for Adobo in publishing the results. Go see the rest for yourself. It’s eye-opening and disheartening with only a few brighter spots.