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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

dittohead1

Here’s an intriguing study about how consensus is assumed and how it may inspire both activism and a false sense of confidence about the future. Despite a new Pew survey showing the perception is not accurate, conservatives assume more consensus among those sharing their political perspective than do liberals.

NYU researchers conducted three separate experiments looking at assumptions of consensus as related to political beliefs (i.e., liberal or conservative). The researchers say this false sense of consensus may be related to the shock and disbelief expressed by conservatives after Barack Obama won re-election in 2012.

Study 1: 107 online participants (72 female, average age 34.7 years with a range of ages from 18 to 64) viewed photos of 30 White male undergraduates and were asked to indicate whether the man pictured was gay or straight, the likelihood that the man pictured was born in November or December, and finally, whether the man pictured preferred fruit or vegetables. Then, once that descriptive task was done, they were asked “What percent of participants overall made similar judgments as you did?” and then, “What percent of participants who do not share your political beliefs made similar judgments to one another?”. While there was no consensus on judgments about the photographs with regard to birth dates, conservative participants had a stronger desire to see other conservatives agreeing with them than did liberal participants. Oddly, conservatives did reach consensus on whether the male pictured in the photograph was likely gay or straight.

Study 2: 150 online Americans (94 women, average age 34 years with a range of 18 to 65 years of age) who described themselves as “active members of a political party” performed the same tasks as in Study 1. This time the researchers wanted to see if perceiving consensus among like-minded others would be related to seeing your political party as “efficacious”. Again, conservatives actually were more in consensus on whether the male pictured was gay or straight (perhaps conservatives have better gaydar?). And, again, conservatives believed there would be higher consensus among ideologically similar participants while liberals did not. Conservatives were also more likely to see their political party as effective.

Study 3: For this study, the researchers wondered if seeing your political party as effective would make one more likely to vote. Three hundred and eleven online American participants (210 female, average age 32.9 years with an age range of 18 to 70 years) were asked to complete a study “focusing on the beliefs of individuals who belonged to a political party”. This time the participants were divided into three conditions: one group was the control group, another group was primed with a task for affiliating and the last group was primed with a task for not affiliating. Each participant judged only one of the ratings included in the first two studies. That is, 101 participants judged sexual orientation, 106 judged birth month, and 104 judged the likelihood of eating fruits or vegetables. Again (this is so odd) conservatives had more consensus on sexual orientation. Those conservatives who saw their beliefs as more in consensus with those sharing their ideology were more likely to see their political party as more effective and more likely to report plans to vote in the 2012 elections. (The researchers do not say if the conservatives were accurate in identifying sexual orientation, they just say they were in agreement as to who “looked gay”.)

Overall, say the researchers, conservatives may be motivated to perceive consensus while liberals may be motivated to perceive their beliefs as relatively unique. They cite other 2014 research showing conservatives over-estimate their similarity in beliefs to other conservatives while liberals under-estimate their belief similarities to other liberals.

From a litigation advocacy perspective, this work speaks to our belief in the importance of presenting your case with “universal values” rather than allowing hot-button (e.g., political perspective) issues to shape jurors’ perspectives on the case. To the extent that this research is accurate among your jurors, there are some important implications:

Conservative jurors are more likely to expect consensus with other conservatives and more likely to expect a lack of consensus with liberal jurors.

Don’t tell the story in a way that pushes juror’s political beliefs.

Focus on shared values of fairness, education, community involvement, and family connections.

Stern, C., West, T., Jost, J., & Rule, N. (2014). “Ditto Heads”: Do Conservatives Perceive Greater Consensus Within Their Ranks Than Liberals? Personality and Social Psychology Bulletin DOI: 10.1177/0146167214537834

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

Gallup on lost confidenceLost-confidenceGallup

For several years now, we have watched our mock jurors express increasing disgust at government, large corporations, and politicians. We have written before about their unwillingness to identify with a national political party and the 2014 Gallup Poll showing the same pattern we have been seeing on a national basis.

In a recent pretrial focus group involving an auto accident resulting in death, jurors began spontaneously talking about General Motors and their ignition problems and the choice to keep it a secret (even though GM was not involved in the fact pattern and was not raised in the presentations). They expressed high levels of disgust with GM and then acknowledged that disgust colored their perceptions of the auto manufacturer involved in the current dispute. Then a juror mentioned Wall Street and the mortgage collapse and another mentioned political logjams in Congress and they had to be refocused on the case at hand.

As they deliberated, the themes of disgust and distrust returned repeatedly with jurors who were all-too-willing to assume the worst of the Defendants. From the jurors’ perspectives, the auto maker’s advertising/marketing plan was a lie, the consumer trusted the safety testing as reported, purchased the vehicle, and now they were dead. It could have been any one of them (and when one of them commented on this reality, most of them shook their heads in continued disgust). The damage award was large. The punitive award was larger. And it all seemed affected– or at least consistent with– feelings of disgust and distrust in our institutions.

So when Gallup came out with their recent poll on how Americans are losing confidence in all branches of government, we thought of our mock jurors.

Gallup

In the past 25 years, confidence in our government has eroded pretty consistently with all three branches (the US Supreme Court, Congress, and the Presidency) taking hits as Americans express lower and lower levels of confidence. Currently, fewer than 1 in 10 Americans have confidence in Congress. Does that surprise us? Not really. We’ve been tracking the loss of confidence in public institutions in pretrial research projects over the last 10 years.

From a litigation advocacy perspective, the important thing for defendants is to craft an identity for your client that sets your client corporation apart from the rest. Frame your particular client as different from, or changed from what they once were, and allow jurors to line up in support of corporate change. But you better have credible evidence to show them you really are different because at this point, the public assumes the worst unless you show them something better.

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

WOD-Neuroscience

We regularly follow the neurolaw literature and about a year ago, we blogged about how judges are softer on crime when educated about the brains of psychopaths. Well. Judges are people too and a recently published study shows it isn’t just judges who are affected by neuroscience education. While the idea that flashy pictures alone can unduly influence jurors during a “his or her brain made him do it” defense presentation has been debunked, apparently a lecture on neuroscience can still influence individual ideas about punishment and the Defendant’s responsibility for their actions.

The researchers were interested in seeing if they could manipulate beliefs about free will among their participants. They began with the assumption that most of us believe in free will as opposed to determinism or fate. Then in four separate experiments with undergraduate college students, the researchers measured attitudes toward punishment for criminal behavior and then began to erode the participants beliefs in free will by educating them on neuroscience.

What they found was that as knowledge about neuroscience increased, the belief in free will decreased as did the length of sentences recommended for criminal behavior.

In other words, as participants learned more about the biological (or as the researchers labeled it, mechanistic) bases for behavior, they held the alleged criminal less responsible and believed the punishment should be less severe. The participants educated about neuroscience had less of a desire for retribution than did those who were not educated in neuroscience. From a litigation advocacy perspective, these studies have important ramifications.

If the findings are accurate, a convicted Defendant whose defense included a neuroscience education might receive in a lesser sentence.

The Prosecutor will want to focus on personal responsibility and the controversial nature of neuroscience research in order to maximize punishment decisions.

Shariff AF, Greene JD, Karremans JC, Luguri JB, Clark CJ, Schooler JW, Baumeister RF, & Vohs KD (2014). Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution. Psychological science PMID: 24916083

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silver-racial-index-2Every 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.”

views of white americans

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.

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empathy-9550064_lIf 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

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