Archive for the ‘Case Preparation’ Category
Every once in a while we at The Jury Room get comments from readers that we simply look for bias “everywhere” and it doesn’t exist at the level our blog would intimate. Doctors don’t treat patients of color differently, they insist. Jurors don’t make decisions based on pre-existing biases. And so on. These are typically sincere people and they are disturbed that we are misrepresenting the prevalence of bias. Are we becoming part of the problem? Of uninformed or invalid perspectives actually creating false issues? We reply to the distressed responder with more information, which we have already reviewed with great care before we publish. Sadly, these sorts of biases are so prevalent it’s unusual not to find them. So unusual in fact, that when they do happen, we blog about it!
So here’s some work from someone other than us that illustrates the prevalence of racist ideas and beliefs about Blacks in America. They are from the New York Times and published in response to the controversy over LA Clippers owner Donald Sterling’s racist comments. The graphs (created from General Social Survey data) were published with the following included in their written summary:
“The condemnation of remarks by the Los Angeles Clippers owner Donald Sterling is almost unanimous. But racism is still more common than you may realize. In surveys, more than one-fifth of whites volunteer views consistent with negative racial stereotypes.”
We would say these graphs reflect the low end of actual prevalence of these ideas since the GSS is collected via telephone surveys and most people know you shouldn’t say these sorts of things out loud–although like Donald Sterling, a few still haven’t gotten the message.
If you’ve read us for any length of time at all, you know we love this strategy to increase empathy and reduce bias in civil cases. Today we are looking at new research relevant to criminal work that shows how empathy (and the resulting perspective-taking) drives decisions about responsibility and guilt, sentencing, and leniency.
This research isn’t so much about looking inside yourself (and ridding the biases that lurk within) as it is about seeing the view from the defendant’s perspective (and increasing your empathy for what it is like to be in that position) or from the victim’s perspective (with the same goal). The researchers paid attention to real-world issues by making several of the experiments comparable to the “perspective-taking” directives offered in a real courtroom trial. That is, the only perspective-taking directive was that in the attorney’s closing statement. The research participants were not given perspective-taking instructions prior to the beginning of the experiment.
Our attorney readers already know this, but for those who are unfamiliar, the rules at trial are clear: You cannot attempt to overtly put the jurors into the role of any party. For instance, you can’t say “What would you [juror] do if this had happened to you?” This is a violation of the bar on invoking the ‘Golden Rule’ [“Do unto others as you would have them do unto you.”]. So the attorney approaches the same dynamic differently, by edging close to the Golden Rule line without violating it.
Here is a sample of the perspective-taking instructions contained in the attorney closing statement (this one asking them to take the perspective of the Defendant):
“Ladies and Gentlemen of the jury: I am here today to ask you to be kind and considerate when thinking about your decision in this case. My client, who is an upstanding citizen just like you all, was wrongly accused of hitting an innocent victim, and this necessitates your consideration and kindness when making your decision about this case.”
The researchers completed four different experiments to explore the effect of perspective-taking on the view of the target. They used a case with ambiguous evidence where the Defendant was charged with vehicular manslaughter but it was unclear if his car was actually the vehicle involved in the accident and subsequent death of a child. Over the course of four experiments, they found that perspective-taking often, but not always, results in viewing the target more favorably.
Taking the perspective of a criminal defendant resulted in research participants seeing the defendant as less culpable, and thus less guilty and less likely to re-offend.
Taking the perspective of the victim of a crime increases one’s sense of the defendant’s culpability, guilt, and the likelihood they will re-offend against someone else.
Finally, taking the perspective of a defendant can result in more leniency in punishment assigned.
The researchers say that the manipulation of perspective-taking (for the defendant or the victim) is powerful in that it takes place in actual trials and it clearly elicits empathy for either the defendant or the victim. Empathy results in a lower sentence for the defendant (or a higher sentence if the empathy is elicited for the victim and their family). Perspective-taking, say the authors, is thus a double-edged sword.
“Depending on the desired outcome, it is important to, like a weapon, point it toward the target where it will do the most good.”
Skorinko, J., Laurent, S., Bountress, K., Nyein, K., & Kuckuck, D. (2014). Effects of perspective taking on courtroom decisions Journal of Applied Social Psychology, 44 (4), 303-318 DOI: 10.1111/jasp.12222
We’ve written about women and leadership before. While some new research shows female leaders handle stress more effectively than male leaders, we’re not going to write about that one today. Instead, here is a report on a study showing some other good news: women are no longer punished for behaving assertively in a leadership role!
It’s a positive change. The past research showed us that women who were assertive were seen negatively due to perceived violations of their gender role expectations. That is, men are assertive and women are sweet. And when women are not sweet, we call them witches (or something like that). So. The news that what these researchers call “agentic behavior” (i.e., acting like a leader) is now acceptable for women (as long as they are not aggressive and ruthless as they exhibit leadership behavior) is good news indeed.
Alas, though. Every silver lining seems to have a cloud and the battle is not yet won. As it happens, while women are now evaluated just as positively as men leaders for behaving assertively in their leadership role–women leaders who are tentative or submissive are rated much more negatively than are tentative or submissive men who lead. Leaders frequently fake their confidence and strength, but if a woman is seen as doing that, reactions they get are worse than those accorded to men.
The researchers used 185 participants (47% female, average age 28.3 years, either undergraduate students or graduates from an Australian university) who were told they were participating in a study on effective communication. The participants read a transcript of a speech (on climate change) which was identified as being given by an Independent (non-party-affiliated) candidate for national office. They were told the speech was given by a female (Annette Hayes or Susan Hayes) or a male (David Hayes or Andrew Hayes).
The speech itself was written in either an assertive voice (indicating dominance, confidence and strength) or a tentative voice (indicating deference, hesitancy, and a lack of confidence). After reading the transcripts, the participants rated the candidate’s likability and influence (i.e., how persuasive they were and therefore how likely to convince others of their position). They also rated the leaders on agency (i.e., how dominant, forceful and confident they were) and communality (i.e., how friendly, sensitive and warm they were).
Assertive female leaders were rated more likable than tentative female leaders but there was no difference in likability between the assertive and tentative male leaders. Further, while there was no difference in likability between assertive male and assertive female leaders, tentative males were more likable than tentative females.
Assertive female leaders were significantly more influential with participants than were the tentative female leaders. There was no difference in influence exerted on participants between the assertive and tentative male leaders. Further, while participants saw no difference in influence by the assertive women and assertive men leaders, they saw the tentative man as more influential than the tentative woman.
In other words, say the authors, women in political leadership will only be as effective as men if they are always confident, strong and decisive. When their behavior deviates from these male-stereotypic leadership ideals, they will be punished far more than their male counterparts. A follow-up study found the same pattern. The authors summarize their findings as follows:
“Based on men’s continued dominance in positions of power, expectations of women to show unwavering signs of confidence and strength will provide a considerable challenge. While a few women will be able to meet this expectation, the majority who cannot remain disadvantaged, with men avoiding similar penalties for equivalent non-agentic behaviors. Therefore, this subtle form of prejudice towards women demands our attention and effort if gender equality is to be achieved.”
It’s a societal double standard recently highlighted by Jon Stewart on the Daily Show. When male leaders display emotion– even inappropriate emotion– it is often celebrated. When women display even a little emotion, it is interpreted very negatively. It’s a good thing to keep in mind as you consider the behavior and leadership potential of male and female attorneys. We are all subject to bias– until we pay attention to it. Merely by being conscious of its potential, it can become a much smaller problem.
Bongiorno, R., Bain, P., & David, B. (2013). If you’re going to be a leader, at least act like it! Prejudice towards women who are tentative in leader roles. British Journal of Social Psychology DOI: 10.1111/bjso.12032
It’s a common line, typically heard right before some sort of slur. It reminds me of the ‘friends’ who make some ruthless joke at the expense of someone, then say “Hey, I was only kidding! Some of my best friends are Black/Gay/Women/Disabled/Old.”
New work from the researcher who wrote Racist Roads Not Taken, says what we probably knew all along: it’s a self-protective move, masking the underlying bias the speaker is trying to avoid disclosing. We don’t want others to think we are racist/homophobic/sexist/ or biased against the disabled or old(er) folks. So we protest, like Lady MacBeth, just a bit too much.
Daniel Effron is following up on his earlier work to explain why, based on more than mere intuition and anecdote, we tend to defend decisions that might make us seem biased to others, by invoking the presence of our “friends”. Essentially, Effron calls this tendency a defensive reaction in response to a sense our “moral identity” is being threatened/questioned. In other words, the belief that we might be seen as racist (or homophobic, sexist, ageist or biased against the disabled) results in us overestimating how past “non-discriminatory” actions or choices are indicative of our actual lack of bias against the current target group.
One question raised by Effron is “does over-estimating the value of your ‘non-racist credentials’ work?” That is, do observers see your reported history of having a Black friend or of standing up for a gay colleague at work as indicative of a lack of prejudice? It must work, right? Otherwise why would it be such a common strategy? Turns out it doesn’t really work at all. Others see right through us:
Overestimating your non-racist credentials (e.g., saying you are not racist because you have a Black friend) is more likely to be seen as prejudiced than underestimating your non-racist credentials (e.g., not justifying your decision).
It’s probably more common than we think and Effron’s seven studies show our tendency is to “protest too much” in our own defense, over and over again. We want others to see us positively. Unfortunately, those self-protective (“I really am a good person”) protests have the opposite effect from what we intend since others see the excuse/explanation itself as a sign of prejudice.
Effron does identify multiple strategies we can use when our moral identity is questioned. We can act virtuously, distort our memory of our [past] moral track record, or lower our standards for what we believe will count as moral credentials [this is what happened in the current research findings]. Regardless of how we make efforts to magnify or overestimate our moral credentials, observers will likely find us wanting. In short, it’s probably better to just keep your mouth shut rather than put your foot in it.
An unrelated observation that we reflect on from time to time in our work on cases with issues or themes that touch on social evolution is that of the tipping point. At what point does society start looking at an issue or an action as being socially unacceptable? It varies depending on various factors including the societal subset one moves in, region of the country, and economic security. For example, gay rights was not a widely embraced value a decade ago, and now it is a foregone fact of life. Legalization of marijuana was controversial less than a decade ago, and now a majority of the country favors it. There is always a mountain to climb in terms of cultural bias, though, and the challenge will remain to be aware of who the social out-groups are, and how to neutralize bias against our clients and key witnesses. It always boils down to who is “not like me”, or “not like people I love”.
Effron DA (2014). Making Mountains of Morality From Molehills of Virtue: Threat Causes People to Overestimate Their Moral Credentials. Personality & Social Psychology Bulletin PMID: 24793359
The options for online searches of potential jurors seem to be a fast-moving target. Our experience is that often there is simply no time for more than the most cursory efforts that often happen during a very short voir dire session itself. In other cases, if there is time to conduct such research, sometimes the information required to do accurate online research (i.e., full name, address, date of birth) are not provided. Yet presentations talk about the importance of a thorough search and some go so far as to say it is not ethical to forego such background internet research into potential jurors [citing the 2010 Missouri Supreme Court standard]. So it was good to see this (hard to obtain) article from last year on what is actually being done in the trenches.
Researchers did their own background search of an actual jury venire using the following sites as search tools: Google, MySpace, Facebook, LinkedIn, and GoogleBlogSearch. They actually found information on more than a third (36%) of the jurors (in our experience, this is a fairly high proportion, and suggests that this was probably an urban venire).
They performed four separate searches on each of the five sites: full name, full name + state, full name + city, and full name + date of birth.
However, 94% of the information they found was procured via simple Google searches. Only 6% of the information they found was unique to other internet sites. On the other hand, their strategies for ensuring they had the correct “Joe Johnson” were not as intensive as we actually do in our internet searches where accuracy is critical.
The researchers’ [common sense] interpretation of finding the vast majority of information in one spot was that it really was not particularly efficient nor effective to search multiple sites– it is more efficient to stick with Google.
They then turned to lawyers, trial consultants, law students and undergraduates to see the level of information known on social media, attitudes toward use of that information in jury selection, and what was actually being done (and taught) in the trenches of litigation advocacy and law school classrooms about juror’s right to privacy as well as the possible ethical issues in using online search tools for jury selection.
Study participants identified four areas wherein they saw ethical issues:
- juror rights [either a right to privacy or the idea that they should not post information online if they wanted privacy],
- defendant/accuser rights [a fair and impartial jury is a constitutional right but some thought these online searches ethical and indicative of competent lawyering while others did not],
- court processes [some felt the jury selection process should be uniform across individual jurors and those with online presence would be subject to unfair scrutiny] and,
- the sites themselves [using the sites for purposes other than social networking is inappropriate and the information is of questionable validity].
It’s an interesting article although the sample sizes are quite small (175 undergraduates, 27 law students, and 11 trial consultants and trial lawyers). The authors see this as an initial foray with follow-up work to be done in the future. The takeaway for us is this: when time pressure is intense–the most bang for your buck comes from a Google search. When you have ample time and budget (perhaps for the high-profile trial) using other searches may be worthwhile if the extra 6% is critical information to have. If, for instance, the value of their home, the model of car they drive, the level of their education, or the number of people who live with them is crucial, there are better ways to find it unless you do a lot of drilling-down through Google links. The authors also recommend the use of paid search sites and perhaps, even a private investigator.
We think we’ve seen the gamut of investigations, ranging from none to those using both paid search sites (in the event you don’t know this, “privacy” is largely a pleasant fiction) and private investigators. Even in the latter cases, though, our work in slogging through site after site after site (in search of that elusive 6%) did yield information previously unknown. Whether it was essential information or not is highly variable. The overall cost benefit analysis of social media research during voir dire remains, for us, an open question. It just depends.
Neal, TMS, Cramer, RJ, Ziemke, MH, & Brodsky, SL (2013). Online searches for jury selection. Criminal Law Bulletin, 49 (2)