Archive for the ‘Case Preparation’ Category
Here’s another combination post offering multiple tidbits for you to stay up-to-date on new research and publications that have emerged on things you need to know. We tend to publish these when we’ve read a whole lot more than we can blog about and want to make sure you don’t miss the information.
Juror questions during trial and the prevalence of electronic and social media research
The National Center on State Courts just published a study authored by a judge in the Pennsylvania Lawyer on whether allowing jurors to ask questions during trial will help resolve issues of electronic and social media research during trial. The judge-author suggests the judicial directives to not conduct any form of research (the instructions usually itemize various forms of social media as examples of “what not to do”) do not stop the research from happening—it simply makes the research surreptitious rather than public. Since this publication is in the Pennsylvania Lawyer, they focus on Pennsylvania jury instructions but also discuss how other venues have used (and controlled) juror questions during trial. The article offers suggestions developed in the subcommittee on civil jury instructions. It is well worth a read if you have questions about the practice of allowing juror questions.
We should question alibis and the weight we place on them during jury deliberations
Given all the concerns about the accuracy of eye-witness testimony, it only makes sense we should also closely examine alibis and whether we simply accept them as true. A new article in Pacific Standard magazine says we need to pay attention to alibis as new research is telling us that accuracy of alibis resemble the vagaries of faulty eye-witness testimony. According to the new research, we tend not to remember mundane events (like where we were on August 17, 2009). The authors of the study described say that the wrong people can end up in jail due to alibi inconsistency and eyewitness mis-identification.
The curious impact of donning a police uniform
New research published in Frontiers in Psychology tells us that putting on a police uniform automatically affects how we see others and creates a bias against those we consider of lower social status. Essentially, say the researchers, the uniform itself causes shifts (likely due to the authority communicated by the uniform) resulting in judgment of those considered to be lower status (i.e., in this study those wearing hoodies were identified as having a lower social status). The researchers think it possible that police officers (who put on their uniforms) may perceive threat where none exists.
Identifying lies with fMRI machines
We’ve written about identifying deception using fMRIs frequently at this blog and here’s a four-page “knowledge brief” from the MacArthur Foundation Research Network on Law and Neuroscience. You can also download this summary at SSRN. This is a terrific (and brief) summary on everything you need to know about what fMRI machines can tell us about deception and what they cannot tell us about deception. You could think of this as a primer on fMRIs and how they work (and don’t work) as well as a guide to deposition testimony of an expert witness touting the deception-identifying abilities of the machine. This resource is very worth your time.
Ciro Civile, & Sukhvinder S. Obhi (2017). Students Wearing Police Uniforms Exhibit Biased Attention toward Individuals Wearing Hoodies. Frontiers in Psychology, (February 6,)
We’ve written before about American attitudes toward China and Asians in general and are used to seeing knee-jerk negative reactions toward Asian companies or parties across the country as we complete pretrial research.
But, like other biases and attitudes all over the media these days, American attitudes toward China have been getting worse in the past decade. You likely know we hold Pew Research in high regard for measuring shifting attitudes in this country. We often look to their work to take a “national temperature” on various issues so we can then see if those attitudes are stronger or weaker in various venues in which we work. Earlier this month, Pew published a brief article on attitudes Americans have toward China and, as you might predict, our attitudes toward China are not particularly warm.
Here are a few highlights from the Pew report:
As you can see in the graphic illustrating this post (taken from the Pew site), American attitudes toward China are now (since 2015) more negative than the attitudes of Chinese citizens toward America. In fact, as of May 2015, the majority of Americans (55%) had unfavorable attitudes toward China.
It is more common for older (ahem, Pew says you are “older” if you are 50 years of age or above) Americans to view China unfavorably. However, negative views of China increased 21 percentage points among those aged 18 to 34 in the US between 2006 and 2016 (so it isn’t just the “old folks”).
US Republicans have consistently been more negative toward China than US Democrats. However, negative attitudes have increased among members of both political parties by more than 20 percentage points over the past decade.
American citizens see their country as declining while Chinese citizens see their country as ascending.
From a litigation advocacy perspective, it is imperative for you to be aware of the almost instantaneous reactivity to Chinese or Asian parties or products in your case. The vitriolic nature of the bias initially caught us off guard, but now we wait for it. Our various posts on negative attitudes we’ve seen in the literature and in our pretrial research (here, here, here, and here) may be useful for you to review in order to see ways the bias or negative attitudes arise. You may also want to review one of our perennially popular posts on when you want to talk about race and when you want to be very, very quiet.
Pew Research Center (February 10, 2017). Americans have grown more negative toward China over the past decade. http://www.pewresearch.org/fact-tank/2017/02/10/americans-have-grown-more-negative-toward-china-over-past-decade/
Lately we’ve heard a lot more anti-immigrant bias expressed in public and it turns out, hate speech breeds hatred of its own. This research has pretty frightening findings and you may find it hard to believe there is such misinformed hatred in 2017. Or, perhaps you won’t find it hard to believe at all.
We will just share a few of the disturbing findings here:
The researchers (from Northwestern University) showed American participants (recruited via the internet through online subject pools and via email through university channels) the ‘Ascent of Man’ diagram (which is apparently popular in research circles and conveniently illustrates this post). They asked participants identify where they thought (whole groups of) people belonged on this scale “from the ape-like human ancestor to the modern human”. You likely can guess if you regularly read this blog what happened.
Participants placed Muslims and Mexican immigrants significantly lower on the scale than they placed Americans as a whole.
In other words, the participants saw Muslim and Mexican immigrants as significantly less than fully human. In an attempt to understand this better, the researchers statistically controlled for conservative views and racial prejudice, but still found differences.
Those participants who dehumanized Muslim and Mexican immigrants by placing them lower on the ‘Ascent of Man’ scale were also more likely to see them as threatening, to withhold sympathy for them and to support measures like increased surveillance, restricted immigration and increased deportation.
Overall, say the researchers, “the correlation between dehumanization and then-candidate Trump was significantly stronger than the correlation between dehumanization and support for any other Democratic or Republican candidates”.
And what did that dehumanization result in? The researchers asked Muslim and Mexican immigrants to report how dehumanized they felt, and found the greater the perception of dehumanization, the more likely the individual was to support violent versus non-violent collective action.
For example, Mexican immigrants who felt dehumanized by candidate Trump “were more likely to dehumanize him, want to see him personally suffer, and endorse hostile actions such as spitting in his face”.
Further, Muslims who felt dehumanized also favored violent over non-violent collective actions and were less willing to assist in anti-terrorism efforts by law enforcement.
The authors suggest two results from dehumanization of others:
Those who dehumanize are more likely to support hostile policies.
Those who feel dehumanized feel less integrated into society and are more likely to endorse violent as opposed to nonviolent responses in return (which will reinforce the idea among those who dehumanize that “these people are like animals”).
Ultimately, this results in a “vicious cycle” of what the researchers call meta-dehumanization, and make life less safe for all of us. Previous research, reported by the authors, tells us marginalization leads to radicalization.
In other words, say the authors, the subset of the American public spewing hate speech toward immigrants may result in radicalization and subsequent violence from those they hate (and dehumanize) and thus, make their fear-based prophecy come true.
Kteily, N., & Brunei, E. (2017). Backlash: The politics and real-world consequences of minority group dehumanization. Personality and Social Psychology Bulletin, 43 (1), 87-104
Anyone who has been in court more than a few times, has likely heard a judge “rehabilitate” a potential juror who has expressed bias by asking the juror if they will, in judging “this case”, be “fair, impartial and unbiased”. Why yes, your Honor (say almost all of them). Mykol Hamilton and Kate Zephyrhawke, researchers, call this “prehabilitation” and have written several articles over in The Jury Expert speaking to this issue.
But, today, we have a simple and straightforward blog post so you can tell it to the judge: it simply does not work! You may be familiar with Mind Hacks blog (one of our favorites) and Tom Stafford. Recently, Tom wrote a post that seems specifically designed to educate judges on the ineffectiveness of this common practice. According to Dr. Stafford’s post, it’s all about confirmation bias.
He describes a classic (i.e., thirty years old) psychological experiment by Charles Lord and his colleagues, that looked at confirmation bias. You can see the succinct explanation of this “classic” experiment over at Mind Hacks. Essentially, in this study, even though participants were asked to be objective and unbiased, they showed evidence of the same biases as they voiced prior to study completion.
In other words, the instructions to be fair and unbiased did not work even though the participants voiced their agreement with the importance of being fair and unbiased.
To use the “consider the opposite” strategy, you would ask jurors to simply consider alternatives that could have happened and talk about how they might have occurred just as readily as the real outcome. In research, when participants do this, they are able to see the multiple outcomes that “could have happened” much more clearly and their tunnel vision (aka hindsight bias) surrounding the event dissipates.
In this study, half the participants were asked (again) to be “fair and impartial” and half were asked to “consider the opposite”. The results were powerful. Those in the “consider the opposite” condition “completely overcame the biased assimilation effect”.
That is, they did not make decisions based on preconceptions expressed prior to the experiment.
So. There you go. You can tell it to the judge (or not). If the judge insists on a “prehabilitation approach”—you can incorporate the idea of the “consider the opposite” strategy into your opening statement and then show jurors how to apply that strategy in your case in chief.
Who would have thought that research three decades old could solve a current-day problem?
Charles G. Lord, Lee Ross, & Mark R. Lepper (1979). Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence. Journal of Personality and Social Psychology, 37 (11), 2098-2109
Lord CG, Lepper MR, & Preston E (1984). Considering the opposite: a corrective strategy for social judgment. Journal of Personality and Social Psychology, 47 (6), 1231-43 PMID: 6527215
It is disconcerting to watch the political upheaval in this country but similar things seem to be happening around the world. We just found a new group that measures societal changes in trust. Edelman has surveyed “tens of thousands of people across dozens of countries” for the past 17 years measuring levels of trust in business, media, government, and non-governmental organizations (NGOs) which are typically non-profit. According to Edelman, this year is the first time the average level of trust (“to do what is right”) in all four types of institutions decreased. They also report the following statistics:
71% of survey respondents said government officials are not at all or somewhat credible.
63% said CEOs are not at all or somewhat credible.
60% of respondents trusted “a person like yourself” (which was in line with trust in a tech expert or an academic). In other words, they say, peers are now on par with experts.
NGOs were most trusted, Business was a close second (only one point behind NGOs), media came in third, and government came in fourth. (These place finishes should be considered skeptically since their combined overall approval rating was less than 50%.)
The following graphic shows a comparison of 2016 and 2017’s trust ratings for the four areas surveyed.
In addition to the Executive Summary, you can view Global Results, and watch a video on what Edelman calls a trust implosion. When trust declines, populism rises says Edelman—and we have seen that internationally as well as here at home.
From a litigation advocacy perspective, perhaps most important for our work is their lessons on how trust has been broken—housed over at Scribd. Here are a few of their lessons we see as related to litigation advocacy:
Leading the list of societal concerns and fears we measured that are commonly associated with populist actions are corruption (69% concerned; 40% fearful); globalization (62% concerned; 27% fearful); eroding social values (56% concerned; 25% fearful); immigration (55% concerned; 28% fearful); and the pace of innovation (51% concerned; 22% fearful).
People are nearly four times more likely to ignore information that supports a position they don’t believe in; don’t regularly listen to those with whom they often disagree (53%); and are more likely to believe search engines (59%) over human editors (41%).
53% agree that the pace of change in business and industry is too fast. They worry about losing their jobs due to lack of training or skills (60%); foreign competitors (60%); immigrants who work for less (58%); jobs moving to cheaper markets (55%); and automation (54%).
The trust crisis demands a new operating model for organizations by which they listen to all stakeholders; provide context on the issues that challenge their lives; engage in dialogue with them; and tap peers, especially employees, to lead communications and advocacy eﬀorts.
We will be paying careful attention to these issues as we pursue pretrial research and litigation advocacy in 2017. The ways that people (aka “jurors”) evaluate cases will reflect the kinds of mistrust and alienation that this study identifies. Anger seems to be intense, we are devaluing experts, concerned about those different from us, and not listening to those with whom we disagree. These states of being have direct relevance to our efforts to teach, explain, and persuade.