Archive for the ‘Bias’ Category
Just say his brain made him do it! That is the conclusion of new research on the relationship between gruesomeness of the crime and the harshness of the sentence. In case you can’t intuit this one, the more gruesome (and disturbing) the crime, the harsher the sentence tends to be. But if the assault was merely moderately gruesome — even though it could have been deadly– there are ways to minimize punishment decisions.
Researchers at Duke University found that “if the focus is drawn away from the mind of a perpetrator by providing biological explanations of personality instead of traits, people may not make the same social cognitive inferences”. So how did they come to that conclusion (and what does that quotation mean)?
First of all, it’s a small sample (N = 11), likely because it’s expensive and time consuming to use an MRI machine. The researchers conducted brain MRIs while the participants read a number of different vignettes about crimes either strong in violence-related disgust or weak in disgust. The idea was for the researchers to see which areas of the brain were activated while reading the vignettes (that were either disgustingly gruesome or not so much) and then to see whether the participants chose punishment less than the US Federal Sentencing Guidelines or chose the harsher recommended sentence. (We’ve written about disgust before and these researchers equate “gruesome” with “disgusting”–apparently thinking of the visceral reaction to gruesome photos or mental images elicited from written descriptions.)
Here are examples of the vignettes used:
Rob Whitley was on his lunch break. He saw his boss at the hot dog stand and approached him while taking out a pair of scissors. He stabbed his boss on the side of the neck first, and then the lower back, causing the victim serious blood loss and requiring hospitalization. (This vignette was described as high in disgust.)
John Noel was at a bar and saw his ex-girlfriend’s new lover, James. Although John was not expecting to see James there, John took out the gun he regularly carried in his back pocket and tried to shoot James, but missed. (This vignette was described as low in disgust.)
Both of these crimes (whether high or low in disgust) would be prosecutable for aggravated assault. Participants were asked to rate how morally reprehensible the act was, how severe the punishment should be, and how much they were disgusted by what they read. However, as is typical in research like this, there was another twist: The researchers added a single sentence to the end of each vignette describing the perpetrator’s personality using either personality traits or biological language. That is, “Gerald frequently proves to have an impulsive personality” versus “Terry has a gene mutation that has been associated with impulsivity” when the crime was premeditated murder.
And here is what they found:
When the perpetrator was described as having biological reasons for impulsivity (rather than as being impulsive), he was seen as being less responsible and punished less severely.
When crimes were strong in disgust, there were harsher sentences but there was no relationship between how personality was described (biological or trait description) and punishment.
Crimes weak in disgust resulted in less harsh punishment than the guidelines recommended while crimes strong in disgust were punished at the recommended level.
In other words, if the crime is pretty gruesome (and these researchers say therefore one jurors would see as disgusting) your client is likely to get the harsher sentence regardless of whether you invoke a neurolaw (his brain made him do it) sort of defense. But, if the crime isn’t gruesome and you invoke a neurolaw defense, your client may be seen as less responsible for his actions and punished less.
Ultimately, this dovetails well with what we’ve known for many years– its about what the jury focuses on. If the jury spends a lot of time talking about the crime and the injuries it caused, the defendant is in trouble. If there is a credible mediating explanation such as a neurolaw defense or other circumstantial evidence and the jury spends time talking about human behavior instead of terrifying assault, the defendant is in better shape.
Overall, it is important to remember that this is a study based on such a small sample of people (N = 11) that their results might not be verifiable, even when it makes intuitive sense. However, it is worth remembering that according to this study, gruesomeness/disgust of the crime affects the assignment of responsibility but likely does not affect sentencing decisions.
Capestany BH, & Harris LT (2014). Disgust and biological descriptions bias logical reasoning during legal decision-making. Social Neuroscience, 9 (3), 265-277 PMID: 24571553
Women smile more than men. Men are typically seen as more credible than women. So these researchers decided to see if there was a relationship between smiling and assessments of credibility on actual witnesses in the courtroom.
The researchers used the Witness Credibility Scale to assess actual witnesses overall credibility. They thought that if smiling influenced observer evaluations of likability, confidence, trustworthiness and knowledge (the facets of credibility measured by the Witness Credibility Scale) then smiling could influence witness credibility. So off to the courtroom they went to collect observational data from real courtroom testimony. They observed both criminal and civil trials (including proceedings related to worker’s compensation, assault, domestic violence, drug trafficking, and capital murder) over a period of 6 months and, in total, observed 22 male and 10 female witnesses. The majority of the ratings (87.5%) were based on direct examination by the prosecution (84.4%).
There were 21 Caucasian witnesses and 11 African-American witnesses and witnesses ranged in age from 19 to 70 years. The researchers used four trained raters–two assessing the frequency of “smiling behavior” and two assessing credibility using the Witness Credibility Scale. (The credibility raters were trained to use the scale but had no awareness of the study’s hypotheses. The raters counting smiles included the principal investigator and one other person who knew the hypotheses.)
Here is what the researchers found:
Of the 32 witnesses observed, 23 smiled (71.9%) and nine (28.1%) did not.There were more women that smiled than men and although the difference between male and female smiling witnesses did not reach significance, it “trended that way” according to the researchers.
Male witnesses were seen as more trustworthy than female witnesses.
Witnesses who smiled were seen as more likable and female witnesses who smiled were significantly more likable than both smiling male witnesses and non-smiling female witnesses. Oddly, smiling female witnesses were not more likable than non-smiling male witnesses. (The researchers wonder if the smiling male witnesses were seen as behaving in a way incongruent with gender norms and thus the smiling male witnesses were less likable than the non-smiling males.)
The researchers say that, “Contrary to expectations, gender and smiling did not impact ratings of trustworthiness”. Men were found more trustworthy than women witnesses, but when women smiled, they were more likable than everyone but unsmiling men. The researchers recommend female witnesses smile during testimony since it is expected of them (by virtue of gender roles).
As with the research on female expert witnesses we covered earlier this month, there is not a lot of good news for women witnesses here but what we do know now is that women witnesses can relax a little and smile–it won’t make them more credible than stoic men but it will make the women witnesses a little more likable. And every little bit helps.
Nagle JE, Brodsky SL, & Weeter K (2014). Gender, Smiling, and Witness Credibility in Actual Trials. Behavioral sciences & the law PMID: 24634058
Not long ago we blogged about the reality that half of Americans believe in at least one public health conspiracy. The same researchers have now looked into other conspiracy theories and found similar trends: half of Americans believe at least one conspiracy theory. So. Let’s take a look at what the researchers say about the sort of personality that lies behind the acceptance of conspiracy theories.
First, you need to have a tendency to attribute the reason behind unexplained or extraordinary events to “unseen and intentional forces”.
Second, you need to also have a tendency to be attracted to “melodramatic narratives” as explanations especially those narratives that interpret historical events as a classic struggle between good and evil. (If you want to stump your friends, this sort of duality is known as a Manichean narrative.)
This time, rather than public health conspiracy theories, the researchers examined various general and ideological conspiracy theories popular among your friends and neighbors (and perhaps even you!) as sampled by a YouGov/Polimetrix survey of 1,935 individuals in 2011. Here are the conspiracy theories they assessed (and the percentage expressing a belief in them).
The US invasion of Iraq was not part of a campaign to fight terrorism, but was driven by oil companies and Jews in the US and Israel. (This was called the “Iraq War conspiracy” and was familiar to 44% of respondents and 19% agreed.)
Certain US government officials planned the attacks of September 11, 2001 because they wanted the US to go to war in the Middle East. (“Truther conspiracy” was familiar to 67% of the respondents and 19% agreed.)
President Barack Obama was not really born in the US and does not have an authentic Hawaiian birth certificate. (“Birther conspiracy” was familiar to 94% and 24% believed it.)
The current financial crisis was secretly orchestrated by a small group of Wall Street bankers to extend the power of the Federal Reserve and further their control of the world’s economy. (“Financial Crisis conspiracy” was familiar to 46% while 25% believed it.)
Vapor trails left by aircraft are actually chemical agents deliberately sprayed in a clandestine program directed by government officials. (This was called the “Chem Trails conspiracy” was familiar to 17% of respondents although only 9% believed it.)
Billionaire George Soros is behind a hidden plot to destabilize the American government, take control of the media, and put the world under his control. (The “Soros conspiracy” was familiar to 31% and 19% believed it.)
The US government is mandating the switch to compact fluorescent light bulbs because such lights make people more obedient and easier to control. (“The CFLB conspiracy” was familiar to 17% and believed by 11%.)
Overall the researchers say that 55% of the 2011 respondents believed at least one of these theories. The most popular (at 25%) was the Financial Crisis conspiracy, followed by the Birther conspiracy, which was also followed closely by the Truther, Iraq War and Soros conspiracies. The Chem Trails conspiracy theory was far behind the other conspiracies. They do not initially mention the light bulb conspiracy but it was comparably accepted to the Chem Trail conspiracy.
Later the researchers confess to having made up that CFLB theory just to see if anyone would bite. (It’s so hard to trust those conspiracy researchers although they do confide in the reader that there actually are conspiracy theories that CFLB “lights contribute to greater fatigue or may serve as a weapon to induce mercury poisoning through a massive electromagnetic pulse”.)
They remind us that large portions of the population are drawn to the Manichean-style narrative with the struggle between good and evil and that this tendency is particularly strong in “the high proportion of Americans who believe we are living in biblical end times”. The researchers seem to believe that conspiracy theories are simply part of the American experience particularly for the many of us for whom “complicated or nuanced explanations for political events are both cognitively taxing and have limited appeal”. Conspiracy theories are more exciting and engrossing and thus, we choose, in some cases, to believe them.
From a litigation advocacy perspective, it’s a good reminder (again) of how often the message you mean to send can trigger associations to something altogether different. And if in voir dire, you make a joke about an absolutely nutty conspiracy theory, keep in mind that a good number of your jurors are going to believe it, while others will be muttering to themselves on break that they had no idea that your theory was true, and still others will think you are out of your mind. This is a variation on our general advice to avoid making jokes during trial about anything or anyone but yourself. And yet, sometimes it is just irresistible…
Oliver, J., & Wood, T. (2014). Conspiracy Theories and the Paranoid Style(s) of Mass Opinion American Journal of Political Science DOI: 10.1111/ajps.12084
You remember the better than average effect. It’s what makes us evaluate ourselves as better than others. I’m a better driver than the average driver. I’m a better swimmer than other non-competitive swimmers. Or even, I’m a better citizen than those who, unlike me, are not in prison. Yes. “I’m in jail. They are not. But, I am more moral, more kind, more self-controlled, more compassionate, more generous, more dependable, more trustworthy, and even more honest. I am not, however, more law-abiding than those who are not in jail. Because nobody’s perfect.”
Those are the findings of a recent study that presents perhaps the strongest evidence for the better than average effect ever. Even when you are locked up as punishment for a crime, you see yourself as better than other prisoners (even more law-abiding than other prisoners) and better than citizens who are not imprisoned on a number of desirable characteristics. If you want an example, consider the recent lengthy interview with Bernie Madoff. Bernie doesn’t claim to be a great guy, just better than the politicians and greedy co-beneficiaries of his larceny.
British researchers tested 85 convicted inmates (age ranged from 18 to 34 years with an average age of 20.4 years–no information was given on other demographic descriptors) at an English prison. They were imprisoned for a variety of offenses although the majority were crimes against people and 17.7% chose the option “prefer not to say” when asked about their offense. There was ultimately no relationship between offense committed and the inmate scores on the better than average effect.
The inmates were told they were participating in a study of self-perception. They were asked to perform three different tasks: first to rate themselves compared to the average prisoner; second to compare themselves to the average member of the community; and third to complete demographic questionnaires containing demographic information. The characteristics they were asked to rate themselves on during the first and second tasks were: being moral, being kind, being more self-controlled, more law-abiding, more compassionate, more generous, more dependable, more trustworthy and more honest.
Participants rated themselves better than the average prisoner on all of these traits.
Participants rated themselves better than the average community member on all traits except that of being law-abiding. Importantly, while the prisoners did not rate themselves as more law-abiding than the average community member, they rated themselves as equally law-abiding as the average (not imprisoned) community member.
The researchers are taken aback by this last finding and wonder if the findings “raise issues regarding the self-views of other groups who have especially poor skills or detrimental behavior habits”. For example, they ask, “Do students on academic probation believe that they have better than average academic skills? Do serial divorcees think they are better marital partners than the average spouse? Do people who overeat, smoke cigarettes, and fail to exercise think they have average or better than average health habits? If so, the prospects for people in these categories to improve their abilities and characteristics are not promising.”
From a litigation advocacy perspective, this certainly has implications for witness preparation and for how your client presents him or herself. That witness who seems to refuse to take advice might actually think they’re the best witness ever. Sometimes it’s enough to show a witness how they come across on video (so prep them with a camera and show him or her the ways they undermine themselves). If that doesn’t help and the budget permits, holding a focus group– however low-budget might be required– can make a big difference. Our stubbornness usually fades in the face of people mocking us or describing why they dislike us. It is an experience both painful and sobering.
Like the recently viral deposition videos for Justin Bieber demonstrate, most of us are not as smart and clever as we would like to imagine.
Sedikides C, Meek R, Alicke MD, & Taylor S (2014). Behind bars but above the bar: Prisoners consider themselves more prosocial than non-prisoners. The British Journal of Social Psychology PMID: 24359153
Female attorneys know they a special challenge to being accepted as authoritative, just because they are women. Looks like things are about the same for expert witnesses who are women. A new literature review just published by Tess M.S. Neal in Behavioral Sciences and the Law offers a succinct picture of what the research has found over the years. This is an article well worth reading and we are only going to cover the main effect summary findings. There are few rays of sunshine in this research but it’s important information to know (and we bet Tess Neal will be around doing good work for some time to come).
Neal first discusses stereotypes and gender roles and looking at the historical (and unfortunately current) reality that men are expected to be leaders and logical while women are expected to be more emotional followers. Research as recent as 2009 shows we still value what we continue to define as masculine characteristics (e.g., competence, assertion, rationality) above those characteristics defined as feminine (e.g., warmth and expressiveness).
She reviews research findings on the gender of experts, finding women experts twice as likely as men to believe gender is a factor in the selection of an expert witness. Women experts report being sometimes told explicitly that the hiring attorney thought their gender would help the case (e.g., being a female expert in a sexual harassment or sexual assault case). Another study found 55% of female attorneys but only 13% of male attorneys thought judges assigned more credibility to male experts than to female experts. A 1994 study showed women made up only 11% of experts identified in written court opinions, and testifying in 21% of cases overall. The good news was the number increased over time (and Neal points out that trend has likely continued since 1994). And then she summarizes the research on the gender of the expert witness. Here are the highlights of only the main effects findings:
Male experts are rated as more likable, believable, trustworthy, confident, and credible than female experts in a 2010 study. (Yes. 2010–aka, yesterday.)
Expert gender (when the expert was an automotive engineer) made no difference in terms of verdict in a civil case involving an auto accident. However, female experts elicited higher compensatory damages than did the male experts in a 2002 study.
A 1984 study tentatively suggested that female experts might be preferred over male experts when the testimony concerned opinions about child custody. The researchers think research participants could think (due to gender role stereotypes) that women would be better judges of what children need than would men.
There is much more covered in this article. Neal examines the importance of context (what is the gender “domain” of the case, how complex is the information the expert must convey, when is the expert giving testimony in the overall case presentation, and will the experts violate expectations for behavior of men or women). The author of the 1994 study cited earlier observed that women were more likely to be testifying in disputes that had a “human” face–like education, family court or social services. Women accounted for only 4% of experts in corporate cases and 0% of those in contract disputes (again, in 1994). However, the traditional division of labor still seems to be in force in the more recent research Neal reviews.
Finally, she makes recommendations for both experts and attorneys hiring experts, based on the findings in the literature.
Consider if the case revolves around a traditionally male or traditionally female domain. Either gender may have an edge if the conflict is in their domain.
Consider whether the testimony is complex, because jurors may grant men an advantage. When testimony is not complex, women may have an advantage.
Competence is important for both men and women witnesses, but paying attention to gender role expectations may also matter. A 2008 study showed male witnesses were seen as more credible if they maintained high levels of eye contact with the questioner (“assertive eye contact”) but women’s eye contact with the questioner did not matter in terms of their credibility.
Being likable is more important for women experts than for men (according to 2009 and 2012 findings). She recommends the use of informal speech, explaining key terms, using the Plaintiff or Defendant’s name rather than referring to them as either the plaintiff or the defendant, among other things.
Overall, Neal says there are indeed gender differences in how male and female experts are perceived but those differences tend to be relatively small and largely determined by context. So, a little good news and a fair amount of what female expert witnesses likely already knew. Times are changing, albeit slowly. What was a major obstacle documented in 1994 now appears to be a lower barrier.
Neal TMS (2014). Women as Expert Witnesses: A Review of the Literature. Behavioral Sciences & the Law PMID: 24623554