Archive for the ‘Case Preparation’ Category
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
This will shock you, or maybe relieve you: Psychopaths are different from the rest of us. Here’s another article saying there are measurable differences in how the brains of how criminal psychopaths work (and look) when compared to non-criminal psychopaths (those who have psychopathic traits but have not been convicted of criminal offenses) and non-psychopaths.
While many criminal offenders have psychopathic traits, there are some psychopaths who never commit offenses (at least, for which they are convicted). Today’s researchers wanted to see if there were “brain differences” visible on an MRI. They tested 14 convicted psychopaths and 20 non-criminals—half of whom who had a high psychopathy scale score but had not been convicted of any offenses. This is a very small group size but as they comment—it is the first time convicted offenders have actually been examined.
They found a few differences and the following is a summary of their findings:
Psychopaths (both criminal and non-criminal) have stronger reward centers in their brains
To clarify, the brain’s reward center—called the nucleus accumbens—“is responsible for recognizing and processing the rewards and punishments that follow from our actions”. The researchers had participants perform various tests while in an MRI scanner to measure brain activity. Those who had no significant psychopathic traits had a weaker response in the brain’s reward center than did both the criminal and non-criminal psychopaths.
Low self-control and less response to reward in criminal compared to non-criminal psychopaths
Good communication between the reward center of the brain and an area in the mid-brain is seen as reflecting good self-control. The authors found that criminal psychopaths did not have as good communication between those brain areas as did non-criminal psychopaths. While this is the first time criminal psychopaths were actually examined in this way (and there were only 14 of them) the researchers think it possible that the tendency to commit a criminal offense stems from a combination of a lack of responsiveness to reward and a lack of self-control.
Among the other lessons learned was a sense that when your reward center is extremely sensitive, you may be more likely to behave impulsively. The researchers think a sensitive reward center may be more predictive than a lack of empathy but obviously follow-up studies are needed. They also think that if future studies continue to show the brain plays an important role in criminal behavior—we may yet see brain scans being used in forensic examinations for diminished responsibility down the road.
While neurolaw advances are not being published as quickly as they were for a while, there are still multiple researchers working on the question of responsibility for criminal acts when your brain is demonstrably different from a non-psychopath. This is an interesting line of research in terms of comparing criminal psychopaths to non-criminal psychopaths and non-psychopaths. The small sample size is a concern and we need to wait for larger samples but the ideas are ones we think likely to continue to spark new research until we have to deal with these questions of responsibility in the courtroom. We’ve written about this area frequently so if you’d like to see what our mock jurors say in pretrial research, take a look at the neurolaw category in our blog.
Geurts DE, von Borries K, Volman I, Bulten BH, Cools R, & Verkes RJ (2016). Neural connectivity during reward expectation dissociates psychopathic criminals from non-criminal individuals with high impulsive/antisocial psychopathic traits. Social Cognitive and Affective Neuroscience, 11 (8), 1326-1334 PMID: 27217111
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.
We are big fans of how visual evidence can take very complicated ideas and make them easy to grasp by allowing those who are puzzled to “see” the complex big picture. Recently, we saw two really good examples of how to take complex issues and make them simple enough for the layperson to grasp. Both examples are from the political realm and both are based on easily fact-checked data. But the questions they answer come from a lot of data that would be very difficult to make sense of without these images.
1. Who chose these presidential candidates?
Here’s one from the New York Times that was posted on a infographic site (FlowingData.com/). As it happens, only 9% of Americans chose Hillary Clinton and Donald Trump as our two main political party candidates. For an interactive look at how you can “see” which 9% gave us these two candidates, visit the New York Times site for an interactive version of the graph. This is a very cool and very understandable way to allow viewers to understand what is a very complicated concept! As you read it, consider how it might apply to the ways your jurors need to grasp complex ideas.
2. Which politicians lie more?
PolitiFact is an independent fact-checking website. They pay attention to what politicians say and then tell us whether what they say is true to some degree, or sort of lying, lying, or must have their pants on fire (known to be demonstrably false). They illustrate political statements with their trademarked truth-o-meter graphic.
Enter Robert Mann whose work was featured over at DataViz (described as a site to get you excited about data–one graphic image at a time). Mann took a compilation of more than 50 statements made since 2007 by well-known politicians and (using the Politifact ratings) put all of the statements into a comprehensive chart to show us who lies more.
When some commenters questioned the accuracy of his graph and wondered just which Politifact analyses were used, a colleague of his (Jim Taylor) stepped up to say why Mann was accurate and to explain how to fact check the fact checkers–which, thanks to the internet, is a pretty straightforward thing to do these days. Additionally, Mann himself has issued an explanation for the data behind this graph which specifically explains how he chose whom to include and whether he “cherry-picked” statements (that would be a no).
From a litigation advocacy perspective, if you can get graphics that tell as much of a story as these visuals do, you go a long way toward juror persuasion. Our next post will be an example of bad data visualization, because while terrific examples like the ones in this post are more rare—there are plenty of losers out there.