Archive for the ‘Case Preparation’ Category
Conspiracy theories that arise during pretrial research are instructive for filling holes in the case narrative. Recently though, Popular Mechanics ran a feature on a number of conspiracy theories we haven’t heard arise in our work (so far). The conspiracy theories run the gamut from the government burying Atlanta, Georgia (very recently) in “poisonous snow” that did not burn but instead, “blackens, twists like plastic, and stubbornly refuses to melt”, to sharks involved in attacks off the coast of Egypt really being “remote-controlled Israeli spies”.
Recently we wrote about Bigfoot believers and the fact that almost 1/3 of Americans believe Bigfoot exists. (As an aside, we have been told that Bigfoot used to exist but a Las Vegas hunter has since claimed to have killed the Bigfoot near San Antonio, TX and will soon be taking the body on the road so you can see it with your own eyes). Popular Mechanics does not include Bigfoot in their list of outrageous conspiracy theories. Among the theories they do include, like the moon really being a hologram, were a few that we would love to hear jurors or mock jurors share. In public. If for no other reason but to see the reactions of the others gathered, and possibly to see whether the judge would consider them too crazy to serve. Obviously, we don’t get out enough because most of these were completely new to us. Forewarned though, is forearmed.
The lizard people: We think it possible this one could arise in cases of government corruption or political malfeasance. Only four in a hundred Brits (allegedly) believe this theory but a close friend of Princess Diana claims Diana confided that the British royal family were actually lizard people. Apparently, “cleverly disguised reptilian aliens traveled to Earth thousands of years ago to infiltrate our highest echelons of government”. There are YouTube videos described as “terrifying” and also videos to debunk the videos. Popular Mechanics opines this one may actually be true due to “lack of any better explanation for Rob Ford”.
The Siri Apocalypse: This one could come up in a high-tech patent or IP dispute as jurors debate the merits of technology in society. If you read this blog regularly, you know we have a fondness for Siri (the iPhone personal assistant). But who knew she was scheduling events without our asking, like designating July 27, 2014 as the “appointed time for the Opening of the Gates of Hades”. We tried this one and it didn’t work but Siri seems to know a lot, so who knows what Steve Jobs might be orchestrating from beyond the pale?
Denver International Airport is, quite literally, hell on earth. As far as we know, this one wasn’t started by frustrated, stranded travelers. But one can never be sure. And, like many conspiracy theories, this one is quite complex. These theorists believe DIA to be the “den of the devil”, that a FEMA death camp is hidden beneath the airport, that the terminal runways form a swastika, and the walls are lined with satanic symbols (in the guise of artwork). There is even a two-part YouTube documentary on the coverup at DIA. It’s certainly worth a tour next time you are stranded in Denver. Just don’t undertake the tour alone!
In short, there are many topics about which conspiracy theories emerge, yet, in our experience, a good conspiracy theorist is very good at connecting the dots between your case and their bizzaro-world. We’ve seen cases where fairly routine facts led to proclamations of very unlikely sexual partners imagined, cocaine use assumed when a not well-liked witness sniffled, and a social media site being described as “the devil’s work” by a school teacher to the agreement of a significant portion of other mock jurors in the room. Still, it is within the realm of possibility that you may hear about lizard people, Siri, and the devil’s den being in Denver.
When these sorts of comments are made, we always take time to make sure we understand how the connection was made and how others in the room reacted to the suggestion so we can then plug that hole in the narrative. Now, there may be no real hole in your narrative and you may just have an odd, idiosyncratic association on the part of a single juror. It is always to your benefit to consider when to plug a hole, when to leave it open (and maybe open it just a little wider), and when to add information when there isn’t a hole–but it’s better to not have jurors wondering and creating a hole where none really existed.
Most of us realize that real life stalking is a serious issue and very frightening to the victim, whether male or female and whether young or old. But what about cyber stalking? While research on real life stalking has grown over the past two decades, actual research on cyber stalking is sparse–despite ever-increasing depictions on television and in movies.
Recently, German researchers did a large scale survey of 6,379 participants on a large German social network (StudiVZ) to assess the prevalence of cyber stalking. They asked the participants to complete a measure of well-being (the WHO-5 Wellbeing Index), as well as other measures describing demographics, and level of internet use. Of the 6,379 participants, 42% were female, the average age was 24.4 years, 75% had the equivalent of a high school education, 50% were currently college students, 38% were employed and 11.4% were unemployed. The majority (59.6%) were not married. So, basically a gen-Y sample.
The researchers wanted to determine the prevalence of cyber stalking using the definitions for stalking in the real (offline) world. They required three criteria (which were used in the first population-based study on stalking in Germany): unwanted internet contacts/harassment; a duration of more than 2 weeks; and harassment that provoked fear.
The researchers are quick to say that “Facebook stalking” (referring to gathering info on someone from Facebook profiles) should not be included in cyberstalking definitions since it “trivializes the seriousness of cyberstalking”. They recommend classifying “Facebook stalking” as a “less severe method of online pursuit” under either the category of “cyber obsessional pursuit (COP)” or “online obsessive relational intrusion”. Okay, those terms sound much less severe, right?
Here is what they found about cyberstalking among users of this widely used German social media platform:
43.4% of the participants said they had experienced online harassment at least once. However, when the other two criteria for offline stalking (i.e., a duration of more than 2 weeks and the harassment causing fear), the prevalence dropped to 6.3%.
Those who had been stalked (the 6.3% meeting all three criteria), were more likely female (80.5%), less educated, more likely to be unemployed, and more likely to be single.
Thirty-two per cent of the segment that were cyberstalking victims reported their cyberstalking lasted up to a month, 45% said it had lasted up to a year, while 22% said it continued for more than a year. Twenty-seven percent were stalked several times daily, 21% were contacted daily, 30% were contacted several times a week, 11% once a month, and 11.5% were only contacted occasionally. (Keep in mind that this is a study of over 6000 participants, so the subgroup that qualified under the definition of being cyberstalked was nearly 400 strong).
The victim-participants reported being stalked through emails, defamation to others online, messages posted about them online, encouraging others to also send harassing messages to the victim (“stalking by proxy”), sent email viruses, downloaded data from the victim’s computer without the knowledge of the victim, and other avenues for online intrusion.
Victims reported their cyberstalkers were often known to them and listed cyberstalkers as distant relatives, family members, ex-partners, friends, acquaintances, or some other person. The majority of cyberstalkers (69.4%) were male although a significant proportion (28.1%) were female. The gender of the remaining 2.5% was unknown. The researchers note that this proportion of female stalkers is higher than the offline female stalker rate in Germany and hypothesize that the avoidance of the direct confrontation may make cyberstalking more attractive for women (since more women than men use indirect stalking behaviors).
Motivation(s) for the stalking (from the victim’s perspective) was mainly (62%) seen as the result of either a real or perceived rejection, jealousy (55%), a desire for a romantic relationship (49%), or revenge (40%). Thirteen percent of the victims were unable to identify any cyberstalking motive at all. These motivations are very similar to the motivations ascribed to offline stalkers.
There was overlap between cyberstalking and offline stalking with only 1/4 of the victims experiencing cyberstalking alone . Forty-two percent reported simultaneously occurring offline and cyberstalking, 16.5% said cyberstalking was followed by offline stalking, and 15.8% said offline stalking came first and cyberstalking began later.
In those cases where both offline stalking and cyberstalking were present, 12% said they had been “grabbed or held down”, 8.8% reported being hit with the hand and 3.8% reported having “been attacked with objects”.
In terms of the emotional and physical response to the cyberstalking, only 2.5% of the victims reported no symptoms at all. Among the symptoms reported were “feelings of inner unrest” (78.2%), distrust of others (68.2%), sleep disturbance (64.2%), feelings of helplessness, anger and aggression (55%), and multiple other issues often seen in victims of offline stalking (e.g., upset stomach, headaches, social withdrawal and depression, panic attacks, relationship wariness, and more).
These reactions are very similar to the reactions reported by offline stalking victims. Further, there were no differences in the reactions of male and female victims. The researchers believe this to be the result of including the presence of fear in the criteria of cyberstalking since “victims’ fear levels are the best predictor of physical and psychological health consequences”.
Overall, the researchers say the prevalence rate for cyberstalking was estimated at 6.3% which “is similar to the prevalence estimate for offline stalking in Germany”. The psychological and physical health impact is also similar. The researchers believe that cyberstalking is as serious a situation as offline stalking but also acknowledge the correlation between mental health symptoms and being a victim of cyberstalking could mean if you have mental health issues you are at higher risk for being cyberstalked. Unhealthy people often have unhealthy relationships. But with that said, it is both foolish and unfair to presume that someone who is being stalked (cyber or not) has mental health problems apart from the stalking.
In terms of litigation advocacy, this study offers a large sample where half of the sample was non-students and as the researchers put it, “this study offers a broader empirical data basis to shed light on cyberstalking and its impact upon victims”. It’s a good way to communicate the seriousness (and the impact on both men and women) of being a victim of cyberstalking.
Dreßing, H., Bailer, J., Anders, A., Wagner, H., & Gallas, C. (2014). Cyberstalking in a Large Sample of Social Network Users: Prevalence, Characteristics, and Impact Upon Victims Cyberpsychology, Behavior, and Social Networking, 17 (2), 61-67 DOI: 10.1089/cyber.2012.0231
We’ve written a number of times about the role of non-belief or of strong religious beliefs on juries and juror decision-making. The majority of research, largely based on White participants, has shown repeatedly that for White Christians, if you are an non-believer (e.g., an Atheist or a Muslim), you will be looked on less favorably than you if you were a Christian. We’ve written about countering that negative judgment at some length over in The Jury Expert.
But what about Black Christians? Will Black Christians also have a negative judgment of those who don’t share their religious beliefs? The answer, according to today’s research, is a resounding “it depends”.
The research participants were 175 Black Christian undergraduates in the United States. Seventy-six per cent were female and the average age was 19.3 years. They were shown a “target” who was named Aisha. She was “Christian, Muslim or Atheist, and either Black or White. In the Muslim condition, Aisha wore a hijab.” Participants were asked to rate Aisha on both positive and negative traits and to list the things they considered as they evaluated Aisha on these traits. They also completed demographic and personality measures assessing their “need to belong, motivation to control prejudice, social desirability, and numerous measures of religiosity”.
What this research shows is that some Black Christians will judge a nonbeliever (e.g., an Atheist or a Muslim) more negatively than they will judge a fellow Christian, but others will not take the person’s religion into account at all. Apparently, the difference is whether the individual Black Christian is “religiously conscious”. There is no standardized measure of religious consciousness and it is hard to tell exactly what that phrase means from the article itself. The authors say it refers to whether one is “conscious of the religion of others”. In other words, it relates to whether one views another in terms that include their religion, or in entirely non-religious terms.
The first and third authors “coded participant responses for explicit mentions of religion [in their description of the person being judged]; initial inter-rater reliability was 0.82 and subsequent discussion resolved all differences until the agreement reached 100%.”
Based on this method of assessing “religious consciousness”, the authors found 70 participants mentioned Aisha’s religion and 105 did not. The participants who mentioned or did not mention Aisha’s religion did not differ on demographic or personality measures. What the researchers found is this:
Only Black Christians who were religiously conscious (e.g., the 70 who mentioned Aisha’s religion) showed intergroup bias. That means the majority of the participants (e.g., the 105 who did not mention her religion) did not show any intergroup bias. (There was no significance for these participants as to whether Aisha was Black or White.)
Keep in mind that this sample may not be normative. First, most Black teenagers are not in college, which makes this sample more questionable for generalization. Second, the age of these research subjects places them firmly amidst Gen Y, a well researched group whose acceptance of out-groups such as atheists and religious minorities is higher than older people. And third, the frequency of Muslims in the African American population is more common (and possibly more accepted) than in the White American population.
Nonetheless, these findings are quite different than the patterns seen in research on White Christians (who display a strong bias in favor of those who share their beliefs). In this sample, only 40% had a more negative view of Aisha when she was an Atheist or a Muslim, than they did when she was a Christian. In this issue of The Jury Expert, Gayle Herde suggests some ways of “listening” to juror responses in voir dire to assess whether their religious beliefs are intrinsic (i.e., “religion is a way of life”) or extrinsic (“religion is a part of life”). It is possible that Herde’s distinction could explain some of the differences in “religious consciousness” but it would have to be tested with greater care for us to know.
So the answer to the question posed in the title of this post is that based upon this research, if your client is Atheist or Muslim you would prefer a Black Christian juror since they are more likely than White Christian jurors to omit the inclusion of religious beliefs in their judgment of the individual.
And, if you can figure out a way to assess whether that Black Christian is “religiously conscious” or “intrinsically religious”, you will be more clear about whether you want those particular Black Christian jurors weighing their decisions in your deliberation room.
Van Camp, D., Sloan, LR, & ElBassiouny, A. (2014). Religious bias among religiously conscious Black Christians in the United States. The Journal of Social Psychology, 154 DOI: 10.1080/00224545.2013.835708
The sad and painful tale of Dylan Farrow has emerged again following her letter to the NYT after Woody Allen received the Golden Globes Lifetime Achievement Award. Woody Allen responded to Ms. Farrow’s open letter and she responded to his response. The internet has been on fire with reactions, pro-Farrow, pro-Allen, and everything in between. You can find them with a simple internet search and we won’t link to them here.
This post isn’t really about the letter, the responses, or the internet reaction to them. Instead, it’s about the original judge in the dispute and a cautionary tale for the attorneys who hire expert witnesses everywhere. I first saw the judge’s written opinion when it was sent around on a mailing list. It reads like a “don’t do this” text for the would-be forensic expert witness. There are so many legitimate reasons this case would not have succeeded at trial–regardless of Mr. Allen’s actual culpability.
Among the trial attorney lessons to be culled from the judges’ opinion, are the following:
Be sure your experts are really experts.
“Both Dr. Coates and Dr. Schultz expressed their opinions that Mr. Allen did not sexually abuse Dylan. Neither Dr. Coates nor Dr. Schultz has expertise in the field of child sexual abuse.” (p 22)
Make sure your expert keeps notes made during the process of report completion.
“The notes of the [Yale-New Haven] team members were destroyed prior to the issuance of the report, which, presumably, is an amalgamation of their independent impressions and observations. The unavailability of the notes, together with their unwillingness to testify at this trial except through the deposition of Dr. Leventhal, compromised my ability to scrutinize their findings and resulted in a report which was sanitized, and therefore, less credible.” (p 23)
Make sure your expert documents rationale behind conclusions and does not draw conclusions about anyone s/he has not seen.
“Dr. Herman faulted the Yale-New Haven team for making visitation recommendations without seeing the parent interact with the child; for failing to support adequately their conclusions that Dylan has a thought disorder; for drawing any conclusions about Satchel, whom they never saw; for finding that there was no abuse when the supporting data was inconclusive; and for recommending that Ms. Farrow enter into therapy.” (p 23-24)
Make sure your expert doesn’t say anything ridiculous like they just “know” when someone is not telling the truth.
“He claimed to have an intuitive ability to know if a person is truthful or not. He concluded, “based on my experience”, that Dylan lacked credibility.” (p 24)
Reading the written opinion is disturbing. The level of dysfunction in the Farrow/Allen household appears to have been very high and the judge’s opinion leaves little to the imagination when describing impressions of the adult parties. It is hard to imagine that Yale is particularly proud of the standard of practice by their ‘experts’, if the judge’s characterizations are accurate. It violates both common sense and standards of practice employed by psychologists who do custody evaluations (see the guidelines published by the American Psychological Association). All the more reason to ensure your expert is going to have the highest standards of practice possible and thereby not contribute to a possible miscarriage of justice.
The movie Her plays with the idea of Joaquin Phoenix falling in love with a computer operating system (voiced by Scarlett Johansson). And today’s research article isn’t far off that track but….it’s much more applicable to litigation advocacy. These researchers took on the issue of trust in autonomous driving vehicles (computer-controlled, rather than driver-operated– which are expected to comprise 75% of the vehicles on the road by the year 2040). Participants used a simulator that either 1) drove like a normal car, 2) was autonomously able to control steering and speed, or 3) was able to control steering and speed but was also a simulator given a human name, gender and voice (although not Scarlett Johansson’s voice).
While no one reported falling in love with the anthropomorphized driving simulator, the researchers found “behavioral, physiological, and self-report measures” revealed that as the simulator became more “human-like” the participants thought the autonomous driving simulator was more competent. Specifically, participants liked the vehicle more, and they trusted the vehicle more.
However, an odd thing happened when they were involved in an “accident” in their vehicle–even though the accident was someone else’s fault. Those in the agentic (i.e., the car could steer and accelerate independently) and anthropomorphic (i.e., cars that could steer and accelerate independently but also had a name, gender and voice) blamed their vehicle more than did those driving a driver-operated vehicle. But, oddly enough, those in the anthropomorphic condition blame their cars less than those in the agentic condition whose cars could only steer and accelerate! Why would that be? The researchers believe that the more we see inanimate objects as being human, the more we see them as like us, and presumably, give those objects the benefit of a doubt.
For litigation advocacy, this has obvious implications:
Does your case involve a high-tech decision-maker–like a sophisticated piece of software that assesses and decides upon action? Or a robotic level of intelligence? Or, perhaps, it’s a very dry section of a computer program that does a very important but not very exciting thing. Perhaps your device is a surgical robot, or a temperature regulator, or a security algorithm.
The answer in all these situations is to anthropomorphize. Imbue the inanimate object with human characteristics: a name, a gender, a voice. Even cartoon characters can anthropomorphize inanimate objects as seen in this article by Jason Barnes giving high-tech objects human characteristics.
It is a dynamic to which those of us who’ve grown fond of our smart phone personal assistant or of our GPS system’s voices can attest. Why do you imagine that Apple introduced this function first by name (Siri), then by voice (soft, feminine) and only then by function (often imperfect). When our cable television or internet connection goes out, people are usually very irritated and intolerant. When our smart phone gives us inaccurate information or our GPS takes us in circles–we are bemused, confused, or even amused–but rarely as ticked off as with less personalized technology. This research would say it is because we have anthropomorphized our smart phone and our GPS.
So, did a widget or gadget cause troubles resulting in litigation? Give it a name!
Waytz, A., Heafner, J., & Epley, N. (2014). The mind in the machine: Anthropomorphism increases trust in an autonomous vehicle. Journal of Experimental Social Psychology. DOI: 10.1016/j.jesp.2014.01.005