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p300 brain waves and deceptionWe’ve written before about the inaccuracy of eye witness testimony despite the familiarity of the saying, “I know what I saw!”. But here is newly published research purporting to have been “able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 non-knowledgeable subjects who viewed only irrelevant items”. What does that mean? Well, let us tell you (and you can also see a more complete description of the experiments here).

These researchers wanted to test eye-witness memory through the measuring of brain waves (called the P300 event-related-potential-component, as I am sure you knew already). The P300 wave is thought to represent the transfer of information to consciousness, a process that involves many different regions of the brain. Some say the P300 wave occurs when the observer sees something that stands out for them, “an oddball” stimuli. In order for a P300 wave to occur, the subject must be consciously paying attention to targets presented. These researchers thought they could present familiar (e.g., “Hey! I’ve seen this before!”) stimuli to research participants and those who had seen something similar the day before would have a corresponding P300 spike in their EEGs.

To test, they had 26 students (6 males and 20 females) wear a camera attached to their clothing for four hours. (Two participants were removed from the analysis due to concerns about the quality of their data.) The camera footage obtained was then used to construct a concealed-information-test (CIT) also sometimes referred to as the “guilty knowledge test”. What this means is that various keywords relating to events taken from their actual camera footage filmed the day before were assembled along with other unrelated words. The researchers thought that if the participants saw situation relevant words describing events/places they had actually traveled past the day before, they would recognize it and their EEGs would show a P300 spike. This spike, if it happened, would tell the researchers that the witness had indeed seen the item described.

Half the participants were put into a condition called the “knowledgeable” group. Their footage would be described in the key words they were shown the next day. The other half were put into a condition called the “non-knowledgeable” group. Their footage would be entirely composed of irrelevant words that had nothing to do with what they had seen or passed by the day before. The researchers believed that the “knowledgeable” group would show the P300 spikes on their EEGs while the “non-knowledgeable” group would see nothing familiar and thus have no P300 spiking.

And they were right. The use of the P300 brain wave was highly effective in this particular scenario and the researchers believe this work moves the CIT closer to use in the courtroom. Specifically, they think details of the crime scene or a cell phone dropped at the scene could result in the P300 spike in perpetrators being interrogated. It would not really matter what the perpetrator said out loud. We can simply look at their P300 brain waves to see what really happened. The researchers report they were able to differentiate between knowledgeable and non-knowledgeable subjects with 100% accuracy.

From a litigation advocacy perspective, we think, as does Loonylabs.org, that this idea is just plain creepy.

Perhaps, like the two subjects in this article whose data was thrown out, the words or objects used could have idiosyncratic meaning and the P300 spike could occur and mean something very different from that the person being interrogated had been at the scene.

Perhaps, anxiety can trigger a P300 spike.

Who knows what P300 spikes are related to in total? Or even if they are related to different things for different people?

The way in which the words were introduced seems likely to affect response. If presented on a computer screen, what size is the font? What is the subject’s reading ability? Is there music accompanying the words? If the words are spoken aloud, the person speaking the words would need to be carefully trained, and the reliability of the results could be questioned on this basis, among others.

This would surely be subject to the same limitations that lie detector tests are, and the results are far from acceptable levels of reliability.

There is so much to question when scientists suggest a brain wave can tell us information that can result in the removal of liberty and freedom. We’d say this interrogation strategy has a long long ways to go before it’s ready for prime time.

Meixner JB, & Rosenfeld JP (2014). Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test. Psychological Science. PMID: 25231899

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online pornWe can hear the snickers and gasps now–and likely the immediate objection from (probably) the opposing counsel or (unquestionably) the judge. But not always. So why might this be something you want to know? According to new research in the Journal of Sex and Marital Therapy, a distinguishing characteristic of narcissists is that they watch more porn online. That actually makes intuitive sense since narcissists would want to avoid rejection and objectify others as sexual objects. We are not sure how you would get this sort of question in though–unless the case actually involved online pornography.

More interesting to us (by far) was the information on the frequency of porn viewing online. For the study, researchers asked 257 participants (aged 18-61 years with an average age of 29 years, 63% female, 89.1% heterosexual, 70% White, 12.1% Hispanic, 7.4% Black, and 10.5% Other) to complete measures of narcissism (using the Narcissistic Personality Inventory, the Pathological Narcissism Inventory, and the Index of Sexual Narcissism) and report on the specifics of their internet pornography viewing (they were asked if they had ever viewed, and if they currently viewed internet porn as well as how many minutes per week they viewed internet pornography).

79% reported they had viewed internet porn.

44% reported currently (recently) viewing internet porn.

Current viewers, on average, viewed internet porn 85 minutes per week (or about an hour and a half).

Men spend more time on internet porn (an average of 3 hours per week) than do women (an average of about 1/2 an hour per week).

There was a significant difference in level of narcissism between those (79%) who had ever viewed internet porn and the 21% who had never viewed internet porn.

The researchers comment the sample of those who had viewed porn (the 79%) was skewed by gender since 96% of men reported they had viewed internet porn. Nonetheless, the 4% of men who had not viewed internet porn was lower in narcissism than the 96% who had. As for women, 68% of women had seen internet porn and again, those who had not scored lower in narcissism than women who had seen porn on the internet.

There was also a difference in level of narcissism between those who currently use internet porn for all measures of narcissism. Current users of internet porn (67% of men and 30% of women) were higher in narcissism than were non-current users.

Finally, as the frequency of internet porn use increased, so did the levels of measured narcissism.

What the researchers say is that there is a relationship between “internet pornography use, narcissistic behavior and psychological harm” to the viewer. They believe that using internet porn “inflates an individual’s narcissism (i.e., selfishness, isolation, and entitlement)”. For the researchers, this work focused on narcissism and how it harms relationships.

While we don’t recommend using this as a method for spotting narcissists (the study falls far short of suggesting that), there are clearly cases (copyright cases, sexual violence cases, premises liability cases, and various wrinkles in family law, to name a few) where attorneys and jurors need to be comfortable talking about salacious topics such as this. From a litigation advocacy perspective, this research validates being able to ask about sex and pornography in court* with a reduced fear of offending jurors.

The asterisk is that you need to tell them that virtually all men and over ⅔ of women have watched pornography on the internet. Otherwise, many will feel embarrassment and anxiety. You can normalize by pointing out the truth. When more than 3/4 of a group of 250+ have viewed internet porn, it takes much of the fear of stepping on juror sensibilities away. In fact, you could even say you’ve seen studies saying almost 80% of adults have viewed internet porn at some point in their lives.

There are many times we think the themes in our case are sure to alienate the triers of facts. What we’ve learned in our pretrial research is that when you matter of factly explain the issues, without giggling, blushing, or perspiring, jurors are willing to join you in an adult discussion of case facts.

We’ve also seen glib puns, one-liners, and shared glances with disbelieving grins shared among our mock jurors but they have always been able to quickly redirect their attention when their humor was acknowledged and a focus drawn back to the issues at hand.

Kasper TE, Short MB, & Milam AC (2014). Narcissism and Internet Pornography Use. Journal of Sex & Marital Therapy, 1-6 PMID: 24918657

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stewart_ebola-1280x900Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.

So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?

We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:

Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice.  Expert witnesses are the worst when it comes to arrogance and gamesmanship.  Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.

Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.

Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.

Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have.  We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.

Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.

These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.

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Admissibility of brain scans in criminal trials

Wednesday, October 1, 2014
posted by Rita Handrich

brain normal or murdererIt’s been a while since we’ve done an update on neurolaw issues and we think you’ll want to read the entire article upon which this post is based. The article is published in Court Review: Journal of the American Judges Association (which is probably a journal you would benefit from perusing regularly). The article (authored by a psychiatry professor with both MD and JD degrees) offers a review of past courtroom use of the Positive Emission Tomography (commonly referred to as a PET scan) and their potential admissibility for criminal trials. This is obviously a very contentious topic but one that is essential for trial advocates to monitor.  Here are just a few of the thoughts on (past and future) admissibility of the PET Scan that Dr. Rushing offers to the judges for whom the journal is written.

Pretrial Competency Hearings:

If during pretrial examination, a defendant is found incompetent to stand trial, the examiner offers a diagnosis and a prognosis for when (and how) competency can be restored. If the examiner believes competency cannot be restored, “a PET scan can help illustrate the brain-based abnormality that the examiner detected”.

Guilt Phase of Criminal Trials:

During this phase of a criminal trial the PET can “elucidate damage to areas of the brain that are involved in cognitive functions such as judgment and impulse control”. The author comments that prosecutors may challenge the defense expert’s ability to establish a causal link between the violence and the brain damage (and those challenges have often been successful in excluding PET evidence). However, she says, “PETs colorful imagery of brain damage can be useful during trial or in plea bargaining discussions”.

Penalty Phase of Criminal Trials:

The author comments brain-based deficits are a mitigating factor in cases of both capital and non-capital defendants. She cites 2004 case law mandating the consideration of cognitive and/or neuropsychological limitations even when those limitations have no direct link with homicidal behavior. Thus, she recommends the use of PET scans as mitigating evidence during the sentencing phase of a capital murder trial. This evidence could help a jury understand the limitations of the defendant and thus, they may impose a lesser sentence.

Ineffective Assistance of Counsel Claims for Failure to Explore Brain-Based Abnormalities:

Failure to present evidence on brain damage has been a “factor in overturning death sentences in ineffective-assistance-of-counsel cases”.

Finally, the author opines that the rules of evidence offer clear guidelines regarding “when and for what purposes” evidence such as PET scans can be introduced. She identifies a list of questions for judges to considering at various stages of trial.

Whether you think, as we do, that the colorful PET scans are not yet ready for prime time use in courtrooms around the country or not–when an article is published in a journal directed at judges–it’s probably a good idea to have a look!

Rushing, SE (2014). The admissibility of brain scans in criminal trials: The case of positron emission tomography. Court Review, 50 (2)

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forgiving infidelityAccording to new research, you can’t have both. Inspired by women who told them they “would not vote for Hillary Clinton [in the Presidential primaries a decade later] because she forgave then-President Bill Clinton’s infidelity”, these researchers looked at how male and female observers viewed male and female victims of infidelity based on how they responded to their partner’s behavior.

The researchers did three separate experiments:

The first experiment used 100 male fraternity members (aged 18 to 24 years) who read a story about (ostensibly) a member of their own fraternity whose significant other had posted photos of her infidelity on Facebook. (This is tempting to visualize–what sort of photos do you imagine were purportedly on Facebook?) When confronted, the woman apologized and in response, the fraternity brother either forgave her, broke up with her, or slashed his (ex-)girlfriend’s vehicle tires.

In the second experiment, 114 “female voters” (aged 20 to 79 years) read the story of a woman who was presented as a political candidate. Her spouse of 25 years had an affair with his secretary and when confronted, he apologized. The “female voters” in this study read that the woman either forgave him, divorced him, or slashed his car seats.

In the third experiment, (dare we anticipate the use of a knife again?), 94 male and 131 female undergraduate students (ranging in age from 17 to 55 years of age) participated. Half of them read the story (ostensibly published in their college newspaper) of “Natalie Lewis, a student at a “sister” campus who learned that her male partner, a student body president at another campus and chair of the statewide student senate, was unfaithful”. The other half read a similar scenario but in this case it was a male student leader (“Brandon Thomas”) who learned his female partner had been unfaithful. When confronted, as in the other two experiments, the unfaithful partner apologized. In response to the infidelity, the victim either forgave the partner, broke up with the partner, or (wait for it) posted embarrassing details about the partner’s sexual inadequacy on Facebook. (Well, at least the aggression avoided knife-play!)

We think maybe these researchers have some anger issues (and what is it with all these knives and public shaming?), but here is what they found:

The young fraternity brothers in Experiment 1 rated the “brother” who forgave as about the same level of maturity but as less competent than the brother who left the relationship. However, they did see the forgiving brother as violating shared values as to how one should respond to a publicly revealed infidelity. They rated the brother who forgave as more competent and less damaging to their group reputation in comparison to the brother who slashed her tires. (This is reassuring.)

The “female voters” in experiment two rated the forgiving politician as less competent, slightly weaker, and less worthy of support in comparison with the politician who divorced her philandering spouse. The female voters thought the forgiving politician damaged the group’s (presumably all of womankind) power and status and violated their shared values. They did see the car seat slashing politician more negatively than the forgiving politician (which again, is reassuring).

Finally, in the third study which included male and female undergraduates and featured male and female student leaders with unfaithful partners–observers rated the leader who forgave his or her partner as just as mature as the leader who broke up with the partner and as more mature than the one posting scandalous information on Facebook. However, the one who forgave was seen as weaker, less competent and less worth voting for than the student leader who left the relationship. The one who forgave was seen as violating shared group values and damaging the group’s power and status more so than the one who left. Overall, they preferred the leaver to the forgiver, but in one final gesture of reassurance, these undergraduates preferred forgiveness to retaliation.

In other words, even though participants across all three studies agreed that forgiveness can be mature–it also can make the forgiver appear weak and incompetent. In every experiment, the participants preferred the partner who left the relationship (despite the researcher’s insistence on incorporating slashing knives and public shaming into the scenarios) to the one who forgave–although they preferred the one who forgave to the one who retaliated.

From a litigation advocacy perspective, you need to think carefully about how to repair perceptions of competence and strength if your client has chosen to remain in a relationship after a public infidelity. Obviously, this is more often in the news with male politicians publicly apologizing to their constituents and to their spouses who stand (publicly shamed and likely humiliated) behind them. But, regardless of whether your client is male or female–choosing to stay has consequences. Mature but incompetent and weak political candidates are less electable. We’d guess Hillary’s consultants are on this one, and, if not, she can call us.

It would be interesting to see whether there are correlates of these findings for other forms of trust betrayal. What happens if a company finds an employee has used company assets improperly for personal reasons? Or violated confidentiality? Or violated behavioral guidelines (drinking or drugs on the job, or making sexist jokes, or aggressive behavior). Certainly the current controversy about the degree to which domestic violence should result in workplace ramifications is the biggest headline in professional football right now. Is this going to be treated as an anger management problem that calls for treatment, or misogyny and thuggery that is intolerable? This is an intriguing first phase of a research design with huge social ramifications.

J. Smith, H., Goode, C., Balzarini, R., Ryan, D., & Georges, M. (2014). The cost of forgiveness: Observers prefer victims who leave unfaithful romantic partners European Journal of Social Psychology DOI: 10.1002/ejsp.2054

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