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genetic defenseThe growing body of research on genetic variations and their relation to crime may leave you uncertain about how to best defend your client charged with a violent crime. Do you encourage jurors to support an insanity defense by using a genetic defense or does that route backfire and leave jurors seeing your client as “different, dangerous, and likely to reoffend”? New research says it isn’t all straightforward and jurors may hear your defense in a way that biases them against your client.

Researchers in Canada conducted three experiments with a total of more than 600 participants to examine the effect a genetic defense for a violent crime might have on the listener. The researchers offered variations on a nature versus nurture defense in a (fictional) murder committed by a college student.

Specifically, one group read that the defendant had a genetic variation associated with aggression and violent tendencies (i.e., MAOA which is also nicknamed “the warrior gene”).

The second group read that the defendant had been beaten as a child by his single mother and grew up in a neighborhood populated with gangs. Both of the first two groups were told that either a genetic (i.e., nature) or environmental (i.e., nurture) background could result in a four-fold increase in the likelihood of violent behavior.

The third group (a control group) read about the murder but did not receive any information on the defendant.

The researchers spend some time explaining the concept of mens rea:

“a legal concept pertaining to one’s malicious intent and volition to commit a crime” is necessary for a conviction. Perceiving someone’s actions as being beyond their control likely leads to the perception that the perpetrator lacked mens rea”.

Here is what they found across three studies (with both online recruits and university students as participants):

The group of participants who saw the genetic explanations for the murder were more likely to see the Insanity defense and Diminished Capacity defenses as legitimate than were those in the environmental explanation condition.

Those who were in the genetic condition also saw the perpetrator as less in control over his actions and less likely to be truly intending to harm the victim—but the genetic explanation did not change their sense the perpetrator knew the potential outcome of his actions.

Overall, say the researchers, the participants believed that the genetic explanations “diminished the defendant’s agency”. In other words, they explain, “despite knowing that his actions could have killed the victim, he neither was able to control his behavior nor did he really intend to kill the victim”.

Only participants in the third study thought the genetic defense decreased criminal responsibility. However, the length of the sentences assigned did vary somewhat. Those who had genetic explanations rather than environmental explanations thought the defendant had less conscious behavioral control. At the same time though, genetic defenses resulted in more sense the defendant would reoffend than did environmental defenses and that predicted lengthier sentences (since the defendant would be dangerous).

The researchers see this as the double-edged sword of the genetic defense: Jurors may see your client as less criminally responsible but they are more concerned about recidivism and dangerousness so they will want to lock your client up for a longer time. This is complicated by whether the jurors feel that he is NGRI (not guilty by reason of insanity) or GBI (guilty but insane). A NGRI verdict ends the trial, foregoing a punishment phase, while the latter can result in sentencing.

From a litigation advocacy perspective, this dilemma reminds us of our writings on the psychopath. Telling jurors that your client is a psychopath can be very convincing as a “his brain made him do it” sort of defense. The problem is that people are (fairly enough) very frightened by violent psychopaths, and have the belief that they are not subject to rehabilitation. Punishment is necessarily lengthened as jurors want to remain safe rather than having “that animal” back out on the streets.

It’s a good reason to carefully think through the pros and cons of any defense that leads the listener to see your client as irrevocably damaged. In some cases, your task is to make your client appear to be potentially rehabilitatable so that jurors don’t throw in a lengthy sentence to keep themselves “safe”. In other cases, it is enough to try to achieve a verdict that reflects psychiatrically impairment, instead of a guilty result. If the cause of the ‘insanity’ is a treatable condition, it is a much safer strategy to pursue from a punishment standpoint, but it is also harder to convince a jury of the non-volitional cause.

Cheung BY, & Heine SJ (2015). The Double-Edged Sword of Genetic Accounts of Criminality: Causal Attributions From Genetic Ascriptions Affect Legal Decision Making. Personality & Social Psychology Bulletin PMID: 26498975


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guiltproneThree years ago we wrote about the goodness of fit for the guilt-prone with the presiding juror position. Counter-intuitive as it may seem, there were a number of reasons supporting them in that role. And today, new research gives us another reason the guilt-prone may be more skilled at leadership—they are more able to identify emotions of others.

The Australian researchers wanted to see how guilt-prone and shame-prone people differed in their abilities to correctly identify the emotion experienced by others. They begin by defining the difference between guilt and shame.

“…a key difference between shame and guilt lies in the perceived role of the self in the problematic behavior. With experiences of shame, the focus of the individual’s negative evaluation is squarely on the self (e.g., “How could I have done that?”), with the transgression or failure viewed as evidence that the self is defective (e.g., “I am a terrible person”).

In contrast, the individual experiencing guilt is focused not on the self, but squarely on their problematic behavior (e.g., “How could I have done that?”) and the ways in which they may make amends for their failure or transgression (e.g., “I need to fix this”).”

While experiences of shame are highly aversive—they are also associated with feelings of “inferiority, exposure, powerlessness and a strong desire to conceal one’s real or imagined deficiencies”. Guilt, on the other hand, is described as “unpleasant and niggling, but less aversive than shame”.

Given those definitions, the researchers asked 363 students and community members (age range 18-67 years with an average age of 27.48 years; 71% White, 12% Asian, 4% Hispanic, 3% African and 10% of other or mixed ethnicity) to predict how they would feel in 11 hypothetical and negative scenarios. The scenarios were taken from a measure of what is called “self-conscious affect”. The researchers used only those scenarios measuring shame-proneness and guilt-proneness. For example, one scenario involved a big mistake on a work project and the students selected their most likely reaction. If they chose “I should have recognized the problem and done a better job”, the researchers categorized them as guilt-prone. If, on the other hand, they selected a response such as “I would feel like I wanted to hide”—they were categorized as prone to shame.

After this task, they looked at photographs of actors dramatizing different facial emotions and chose one of five emotions as best fitting the emotion on the actor’s face: happiness, sadness, disgust, fear, anger or shame. What the researchers found is this:

Those participants whose responses on the first task indicated a guilt-prone perspective were better at identifying emotions on the second task even when the emotions dramatized were lower intensity. The authors say that past research also supports their findings—in the past, guilt-prone people have been reported as having overall better than usual psychological adjustment and to have good relationship skills.

Conversely, participants whose initial responses categorized them as shame-prone were not very good at accurately identifying emotions and the authors say this is consistent with past research demonstrating shame-prone people have lower levels of empathy.

The researchers conclude that when people who are guilt-prone experience guilt following a transgression, “they remain firmly focused on the negative impact that their transgressive behavior may have had on others”. Thus, according to the researchers (and consistent with past research) the guilt-prone person is likely to be compelled to learn from their bad behavior and make attempts to repair things. Conversely, the shame-prone person is less likely to have empathy for the experience of the other—they focus so much on their “badness” that they are blinded to the feelings of others.

We view this on a somewhat less complicated level. People who feel guilt are thinking in terms of having failed the expectations of others. It is an outwardly focused, interpersonal emotion. Shame is a defensive frame of reference, focused on themselves, rather than others. People feeling guilt are concerned about the feelings of others, while those feeling shame are concerned about how they are judged by others. While our primary focus in this blog is litigation applications, this research also contains intriguing implications for hiring decisions. Which employee—guilt-prone or shame-prone— is more likely to admit a mistake, and which one is more likely to hope no one notices?  Which one is more likely to be an effective manager or team leader? Which is more likely to be proactive in the face of possible problems? Overall, you can’t beat a guilt-prone employee.

From a litigation advocacy perspective, this is an intriguing study. If indeed you can categorize people based on their responses to negative situations (like the example offered earlier on a bad mistake made at work) into either guilt-prone or shame-prone individuals—that may work well for your case. (Of course, you’d want to test this in pretrial research to see if being either guilt-prone or shame-prone worked well for your case.) If you are curious as to whether you are more guilt-prone or shame-prone or more prone to blame others for bad things that happen (i.e., externalization-prone), you can take and score the TOSCA-3 here.

Treeby MS, Prado C, Rice SM, & Crowe SF (2015). Shame, guilt, and facial emotion processing: initial evidence for a positive relationship between guilt-proneness and facial emotion recognition ability. Cognition & Emotion, 1-8 PMID: 26264817


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macho nachoAccording to a new study in the journal Social Psychology, it’s because we are willing to pay more for less healthy food in macho packaging or healthier food in pretty feminine packaging. You may protest at being stereotyped in this way but, apparently it works (or food package designers wouldn’t do it) because it’s just easier for us to process cognitively.

The researchers say the packaging reflects our beliefs about gender and food preferences: women prefer to eat more healthfully than men. Evidently, men can’t be bothered with health and nutrition. They explored these beliefs in three separate studies and draw conclusions about how “packaging” can use these stereotypes to influence behavior.

In Study 1, the researchers “primed” participants with a word scramble task wherein sentences contained either masculine, feminine, or neutral words embedded in the sentences. After completing the word task (and being “primed” for either a masculine, feminine or neutral state) the participants ranked 10 foods in terms of how likely they were to eat them in the next month. The researchers then looked at whether there was a relationship between the priming condition (masculine, feminine, or neutral) and their choice of the foods they were most likely to eat.

Sure enough, the researchers found that participants exposed to masculine priming were more likely to prefer unhealthy versions of food (e.g., soda, fried chicken, movie theater popcorn, donuts, potato chips, French fries) than were those exposed to the feminine priming (who tended to prefer bananas, oatmeal, spinach, or an orange).

In Study 2, the researchers wanted to vary the way food was packaged or presented. They used the same food (a muffin) in all conditions but the muffin was either presented as low-fat (“Health Muffin”) or full-fat (“Mega Muffin”) and it was packaged in either masculine, feminine or gender-neutral packaging.

Once again, the researchers beliefs as to how participants would respond were supported. When the packaging (masculine or feminine or neutral) and health (low-fat or full-fat) matched, participants thought the product more attractive, said they were more likely to buy it, and were willing to pay more money for it than when the packaging and health did not match (e.g., feminine packaging and an unhealthy muffin or masculine packaging and a healthy muffin). Oddly, participants also thought the muffin actually tasted better when packaging and health matched. We know they didn’t really taste better since the researchers used Entenmann’s Blueberry Muffins only so they would taste the same regardless of packaging.

In Study 3, the researchers wanted to see if these preferences would remain if the appeals to gender were more explicit—they thought if the appeal was obvious, participants would react against the appeal to gender in product marketing. To test their question, they added a condition where the packaging contained a “blatantly gendered slogan: ‘the muffin for real men’”. Participants again looked at the packaging (masculine, feminine or neutral—but in this case the masculine appeal was printed on the box (in certain conditions): “The Muffin for Real Men”) and indicated how much they would be willing to pay for a box of two dozen miniature muffins. Then they filled out a few measures for the researchers that allowed the researchers to share these results.

The participants who scored highest on psychological reactivity were most likely to react against the gender appeal of the muffin for real men and otherwise the findings paralleled those in Study 2.

The researchers think subtly activated gender stereotypes about food preferences influenced the participants to prefer either masculine/less healthy or feminine/more healthy foods regardless of their gender; that when gender (as communicated via packaging) and health (low-fat or full-fat) match up, we really like that consistency. And finally—no one likes to have gender pushed on them to “bias” their decisions—even though this research clearly communicates that marketers bias our purchases with gender-based packaging on a daily basis. They think these results could well be used to help policymakers consider how “appealing to cultural beliefs can shape food choices”.

From a litigation advocacy perspective, this article is a little disturbing. We all know how powerful implicit effects are—they fly beneath the radar and we often miss them completely. And the packaging used in this study escaped conscious notice but imposed powerful notice on the unconscious to result in gender-based food preferences. So how something is “packaged” makes a big difference.

Could trial graphics benefit from being “packaged” in either a male or female appearance? What is the influence of words, images, or color palette on juror acceptance?

Should you include masculine or feminine priming words in your closing statement to attempt to influence the way jurors view your case?

Do these results suggest anything about how you might want to choose your attire in court?

The researchers conclude their work by discussing the power of cultural stereotypes to “implicitly shape food preferences”. It seems to us that those cultural stereotypes are more powerful than we often given them credit for being—especially, as this study illustrates, stereotypes around gender.

Zhu, L., Brescoll, V., Newman, G., & Uhlmann, E. (2015). Macho Nachos Social Psychology, 46 (4), 182-196 DOI: 10.1027/1864-9335/a000226


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ConcealedCarryRecently we conducted a focus group where two participants likely had concealed handguns in their possession during the group. Both were older—one male and one female mock juror, and neither did a single thing that was inappropriate during the project (which happened to involve a shooting). We discovered their concealed carry status when reviewing final questionnaires after the group was complete and observed how unexpected we found concealed carry permits on those particular two mock jurors. There was nothing we saw or could discern to make these two jurors any more or less likely to be carrying weapons. But then, the group was held in Texas.

With the ongoing occurrences of mass shootings at schools and in other public places, concealed carry laws have become a hotter topic than usual with some saying the shootings could have been stopped by citizens with concealed weapons and others arguing that more citizens carrying weapons could result in more violence and accidental shootings. At least one professor at the University of Texas in Austin has announced he will resign his position with a new law allowing people on campus to carry concealed weapons.

Now Gallup has released a nationally representative poll in the US (conducted October 7-11, 2015 via telephone interview with a random sample of 1,015 adults [60% were cellphone respondents and 40% landline respondents] living in all 50 US states and Washington, DC) on whether the country would be safer if people carried more concealed weapons. Here are a few findings from the Gallup poll:

Slightly more than half of the respondents (56%) thought the country would be safer if people who’d completed training courses and passed a criminal background check could carry concealed weapons.

Democrats and those with postgraduate educations are least likely to believe concealed weapons will make us safer.

Republicans and gun owners are more likely to believe concealed weapons will make us safer.

Younger Americans (below age 30) are more likely to say concealed weapons will make us safer.

Despite the failure of national legislative proposals to require background checks for gun purchasers, 86% of respondents favored this sort of law and only 12% opposed it (2% expressed no opinion).

However, nearly half of those favoring required background checks doubt they would reduce the number of mass shootings in this country.

From a litigation advocacy perspective, it’s important to know the range of views on gun control, background checks and concealed carry permits on your panel when the case involves a shooting (whether with a concealed carry permit or not).

As the economy has worsened, we’ve had recruiters for mock jurors in small rural communities call us and say those turned away due to demographic slots being filled have threatened us with bodily harm for not selecting them.

Our mock jurors tell us they are not as afraid of those who “know what they are doing” carrying concealed weapons as they are of those who are demonstrably unstable and just carry for defensive purposes which could be seen as necessary for a fairly minor offense.

It is a scary time for many as they hear of yet another mass shooting in the US and begin to wonder just how safe they are when at work, in a shopping mall, a crowded restaurant, or at any public event. This Gallup poll illustrates the difference between the opinion of the large majority of Americans and our legislative representatives when it comes to background checks and gun control.


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this and that November 2015This is a conglomeration of articles we thought were interesting and useful but chose not to devote an entire post describing them. Think of this as a series of articles that might pique your interest and make you want to learn more. We’ll provide links so it’s easy to learn more.

Christians and Science: A new stereotype threat?

You’ve probably heard about how women reminded of how men perform better in math do more poorly on math tests than those not reminded. Or about how African-Americans perform more poorly on standardized tests when reminded they tend to do so. Studies like these have been around for the past couple of decades. But here’s a new one—at least to us. A new study says that Christians are stereotyped as being less competent in science and so they do less well on scientific tests and tasks! We wonder whether this is really a “stereotype threat” since those are typically descriptive of minority groups and Christians remain a majority group in this country. Regardless, it’s an interesting factoid.

White People Have Hardships Too

Matt Damon recently apologized for whitesplaining and Miley Cyrus ran into some trouble with Nikki Minaj recently over the same issues. White people seem to have troubles accepting how their lives are so very different due to privilege. We’ve seen this before in the professional literature but the studies keep coming with very similar findings. In this new study, Whites respond to evidence they are privileged by their race by focusing on all the hardships they endure. The study says that having (White) people “self-affirm” before they are shown evidence of privilege will result in fewer claims of hardship (due to decreases in defensiveness).

When works strikes too close to home: Suppose you have the brain of a psychopath?

This is one of those things you just can’t make up. Well, you could make it up—but no one would believe you. Let’s say you have researched the brain scans of psychopaths for more than 20 years and suddenly you look at your own brain scan and it looks like a psychopathic murderer’s brain? That is apparently what happened to Jim Fallon who then went out and discovered (at least based on a story told by his mother) a familial connection to Lizzie Borden (the famous ax murderer). Because he does what he does, Fallon went out and checked the genes and brains of relatives. He was the only one with the brain of a psychopath. It is likely that the definition of ‘normal’ is now a fragile one (at least) for Jimmy Fallon.

You too can reduce prejudice and “turn people into atheists” [if you buy a big machine]

All it apparently takes is a quick zap, aka “transcranial stimulation of the posterior medial frontal cortex”. Oh is that all? A new publication collaborated on by researchers in the US and UK shows us that if you “stimulate” the brain area linked to “responses to threats”, you can reduce prejudicial views (by about 1/3 in this study) held by the person being “stimulated”. Oddly not only does it reduce prejudice (in this study against immigrants) it also reduces religious beliefs. The researchers say that when you are challenged—you defend yourself and by stimulating the brain in this area, they lower the need for defensiveness. They make no real comment on what the reduction in religious conviction means although a writeup of the study makes it clear they’ve been accused of “turning people into atheists”. And if you are left feeling vulnerable, you will likely find this quote comforting:

“It’s worth mentioning that this technique requires a very loud, very expensive, fairly large machine operated by a technician who’s an expert, and there’s no way that I can conceive of that this kind of magnetic energy could be directed into anyone’s brain without their knowledge.”

Personally, we cannot imagine what kind of people signed up to have their brains zapped by a big, loud machine that is described as changing your brain activity— in the name of science, and not as a life-saving intervention.

Phillips, LT, & Lowery, BS (2015). The hard-knock life? Whites claim hardship in response to racial inequity. Journal of Experimental Social Psychology, 61, 12-18

Rios, K., Cheng, Z., Totton, R., & Shariff, A. (2015). Negative Stereotypes Cause Christians to Underperform in and Disidentify With Science Social Psychological and Personality Science, 6 (8), 959-967 DOI: 10.1177/1948550615598378


Comments Off on Things You Want to Know: Stereotypes, biases,  defensiveness, and when work strikes awfully close to home