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In voir dire and jury selection, seemingly small differences can help you make decisions that are good for your case facts. Recently, the Pew Research Center put out a survey showing that gun owners who are also NRA members have a “unique set of views and experiences”. Pew says something we love—and that we’ve said for decades—demographics don’t really help to choose a jury.

“While the demographic profile of NRA members is similar to that of other gun owners, their political views, the way they use their firearms, and their attitudes about gun policy differ significantly from gun owners who are not members of the organization”.

So what are the ways in which NRA gun owners appear to differ and that you can perhaps use to winnow down to the values and beliefs and attitudes that potentially make a difference? Read on.

NRA members skew more heavily to the political right than other gun owners.

Gun owners who belong to the NRA own more guns (the report says five more) than those who do not belong to the NRA (the report says perhaps just one).

NRA members are more likely to carry a gun with them outside their house all or most of the time.

Nearly half of NRA members say owning a gun is “very important” to their overall identity while only 20% of non-NRA-members say the same.

NRA members are more likely to say that owning a gun is essential to their personal freedom (92%) than non-NRA members (70%).

NRA members are more likely to contact a public official about a gun policy (46%) than are non-NRA members (15%).

The full report explores the political affiliations of NRA members and non-members and looks into some of the differences between and within the political groups of NRA members and non-members. Depending on your case facts, some of these differences may be useful to you in voir dire. Regardless, if your case facts involve guns—this is a must read for trial.

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Perhaps we should lower our standards on what sources are good for an entire blog post as these combination posts seem to increasingly inhabit our blog. We simply run across a lot of things that we want you to know about but we don’t want to repeat what you can find elsewhere. So, sit back and click some links and see some of the stuff we thought too interesting to pass up!

Cross-examining a psychiatrist or a psychologist (aka shrinks)

Much has been written on the intricacies of cross-examining mental health professionals and a quick internet search will give you more than a million things to read. Rather than taking all that time, we’ll just send you to the ABA Journal and their brief article on how to be effective while cross-examining  these witnesses. We’ll help convince you to visit the article by sharing just a few of their recommendations: confine your questions to their reports, determine whether they have taken a complete patient history to support their eventual diagnosis, verify entries (even degrees) on their resumés, and much, much more.

If you want more, here is a resource-rich webpage on deposition and cross-examination questions for mental health experts. Finally, having a trial consultant with a background in expert testimony and psychological testing can also be very helpful.

Digital gaps between urban and rural America

We’ve done research in Los Angeles and witness preparation in France a number of times recently but you will often find us in rural areas, in places the internet forgot, and in areas the people are so charming and gracious you may just want to stay. One of our favorite stories about rural pretrial research is this one which involved multiple high-tech company clients who were stunned at the dearth of technological savvy among the mock jurors only a few years ago:

Other very rural venues have shown us the extent to which the internet has passed by some Americans completely. At one site, of 36 mock jurors, only 4 had internet access. At another, of 48 jurors, only 11 had ‘smart phones’ while a majority didn’t understand the question. Most had “not heard of” Amazon.com’s website. One called a major social networking site, “the devil’s work” and others nodded somberly.

While we were taken aback during that research, a new Pew Research report tells us the urban/rural digital gap still remains. It is less pronounced than it once was, but the divide remains. You will want to read this report—even if you don’t do much rural work. It’s a way to keep track of just how different urban and rural jurors are and how access to information (as well as the value placed on that access) varies dramatically between city and rural residents.

Empathy gaps in the brain of the psychopath

We’ve written before about the psychopath (quite a lot, actually) but here is another review of the many ways the brain of the psychopath differs. The writeup summarizes the work of a team of researchers from Harvard who studied inmates in two Wisconsin medium-security prisons. These researchers believe that psychopathy reflects a “brain wiring dysfunction”. Alas for some of us, the researchers say this (and we wonder just how convincing it would be to jurors who like their food and drink perhaps a little too much):

“The same kind of short-sighted, impulsive decision-making that we see in psychopathic individuals has also been noted in compulsive over-eaters and substance abusers.”

Gender pay gaps—it’s worse than you may think for women of color

The Institute for Women’s Policy Research has released a new report that is pretty much certain to make you want to overeat M&Ms or ice cream (but that could just be me). In one of more depressing and heavily hyper-linked summaries of the gender pay gap—they include this discouraging information on the realities for women of color.

“Hispanic women will have to wait until 2248 and Black women will wait until 2124 for equal pay.”

We won’t make you do the math. That is 232 years for Hispanic women and 108 years for black women. That’s beyond ridiculous. Don’t bury your head in the sand. Read this report and be informed. Then do something about it.

The Police and Law Enforcement (PLE) Scale

This is a new 8-question scale meant to document Black men’s perception of bias and discrimination directed toward them by members of the police force. Here is a bit of what the researchers say about their reasons for developing the measure:

The researchers note that most scientific literature on the subject typically includes the police’s point of view of the experience and rarely that of the person who had the interaction with the police. The new Police and Law Enforcement Scale can help to balance out the record so that it includes the perspective of individuals who have interactions with police.

“There is a substantial gap between what you hear from black men regarding their experiences with law enforcement officials during their lives and what is in the scientific literature,” said Devin English, a psychology Ph.D. student at the George Washington University and lead author of the study. “We see our study as helping to document what black men have been experiencing for centuries in the United States.”

This measure is meant to assess the level of institutionalized racism experienced by community members and is also seen as a step to improve public health (since discrimination is known to decrease physical as well as emotional well-being. The researchers are hopeful the scale can improve dialogue across the US on racial discrimination in policing.

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I was in graduate school in the early 1980s when Carol Gilligan’s book (In a Different Voice) came out and we thought we were quite amusing when we always voiced the title in a high-pitched tone. Thirty-five years later, we have research telling us we really may pitch our voices differently when speaking to someone we perceive as having higher status.

Today’s researchers wondered if how dominant or prestigious the person to whom one was speaking was perceived to be, would influence voice pitch in undergraduates. They planned a simulated interview task and wrote up brief descriptions of the photos to help pilot study participants categorize the photos as Dominant, Prestigious, or Neutral (i.e., photos perceived as either Dominant, Prestigious or Neutral).

Here are the descriptions they used:

Dominant: An approximately 36-45 year old male. He is an extremely dominant individual. This person likes to be in control and to get their way. They will use force, coercion, and intimidation to achieve their goals if necessary.

Prestige: An approximately 36-45 year old male. He is a highly valued, prestigious and influential individual. He has many valued skills and qualities and others follow him freely. This ultimately leads to his achieving his goals.

Neutral: These descriptions were not given. These photos were composed of those that scored neither high in Dominance or high in Prestige.

Then, the researchers had participants (48 total, 24 men and 24 women; average age 20.8 for the men and 20.2 for the women) complete a simulated job interview task. Participants were told they were pilot testing a new form of interviewing that did not require the interviewer and the interviewee to be in the same room for the interview. They were shown different photographs (with either Dominant, Prestigious or Neutral photos of the interviewers presumably asking the questions) and recorded their answers to varying interview questions with the idea that the photograph at which they looked was the person asking the questions.

The researchers found that the individual participants would alter their pitch (and other vocal characteristics) in response to people of high social status. This would happen even when the participant perceived themselves as having a high social status.

The researchers think an interview situation is one where the interviewer has a perceived dominance and so the interviewee raises the pitch of their voice to show the interviewer they are not a threat.

This was not the case with participants who described themselves on pre-study questionnaires as dominant—they actually lowered their voices! Conversely, those that described themselves as low in dominance, pitched their voices higher for the responses.

People that rated themselves as high in prestige, do not change the volume of their speech no matter to whom they are speaking. The researchers think this is meant to signal the person is calm and in control in the situation.

We have several concerns with this study. It has a small sample of participants and they are all quite young and may have been intimidated by the high dominance or high prestige descriptions of their alleged interviewers. Nonetheless, it seems intuitive that we would modify our voice pitch or other characteristics depending on to whom we were speaking. But it is an initial venture, and not conclusive.

Does the voice rise due to tension (which affects vocalization) or deference of some sort?

Is there a reason to imagine that anything but fearfulness might produce the vocal shift?

Do people respond differently to those whose pitch rises, or to those who are at a lower pitch?

Is it (as Carol Gilligan explored 35 years ago) mainly another manifestation of gender bias, or can anyone enhance their credibility and acceptance by working at keeping their voice in a lower register? [Gilligan’s book includes considerations of how women’s gender-informed voices (i.e., perspective, values, life experiences, insights) are crucial for a balanced understanding of life.] The study does raise questions about how to interpret the results, but certainly offers worthwhile considerations for witness presentation.

You want your witnesses voice pitch and tone to be the same whether a dominant attorney or a seemingly kind attorney is questioning them. Don’t let them hear you sweat.

Videotaped practice can be useful in helping witnesses see and hear how their voice pitch changes depending on their emotional reactions to the questioner’s tone or visual appearance.

Experience tells us clearly that a more credible witness is going to have similar tone and pitch during direct and cross-examination. I wonder what the future research will tell us?

Leongómez JD, Mileva VR, Little AC, Roberts SC (2017) Perceived differences in social status between speaker and listener affect the speaker’s vocal characteristics. PLoS ONE 12(6): e0179407.

https://doi.org/10.1371/journal.pone.0179407

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Here’s another post on a variety of things too good to bypass completely, that we didn’t want to use for entire posts. You will see, as before, these combination posts are educational and help you become a scintillating conversationalist. At least we think so.

We’ve worked at lot in East Texas [and elsewhere] on patent cases so you might think the recent TC Heartland decision would make us mourn the end of an era [see the coverage at SCOTUS blog]. Instead, it’s a chance to return to my home state (Delaware) for IP cases more often than I do them in my adopted state (Texas)! You don’t meet many people from Delaware when you are not in Delaware, but I can tell you that it was a great place to grow up and attend college. I’ve been following the legal publications analyses of this SCOTUS reversal with interest, but this plain language post from the Harvard Business Review caught my eye. It is one of the clearest explanations I have seen of the likely impact of the decision.

If you want to get away with financial misconduct on Wall Street—be a man

You may think this is a pretty obvious one since fewer than 10% of the CEOs and CFOs in the financial services industry are women—but here’s a hard fact from a new study on financial misconduct among more than 1.2M financial advisors between 2005 and 2015.

Compared to men, women disciplined for financial misconduct were 20% more likely to lose their jobs and 30% less likely to get a new job in the industry within a year.

Women were punished more despite the fact that male misconduct cost the companies more ($40K compared to $32K).

For men, only 28% of the financial misconduct charges came from within their firm. This compared to 44% of misconduct charges for women coming from within their own firm.

And among both men and women who were disciplined, females were punished more severely (despite the fact that men were three times more likely to have a prior record of misconduct and twice as likely to be repeat offenders).

Intriguingly, only in companies where women were in at least ⅓ of the management roles was misconduct dealt with the same way for male and female employees.

Dodgy politicians—is this déjà vu

Way back in 2010, we wrote a blog post on an article referring to “artful dodgers” (who happened to also be politicians) who did not answer questions posed to them but answered other questions instead. So when we saw this article from BPS Research Digest, we were sure we’d seen it before! The authors think witnessing question dodging makes the observer think the dodger is less trustworthy. We thought that too and back in 2010, made the following recommendations in the event you are faced with a ‘not-so artful dodger’ opposing witness.

In this instance, you are drawing the witness’ (and ultimately the jury’s) attention to the fact a question was not answered. Pay attention in deposition when witnesses do not answer questions. Get it on tape: “I asked you this but you answered something else. Try again.” You do not have to be nasty. Simply patiently ask for the answer to your actual question. When jurors see taped deposition like this, it can be devastating to witness credibility.

Don’t allow opposing witnesses to be non-responsive. Ask them if they recall the question. Ask them to repeat the question (which makes it more difficult to ignore it). Politely correct their paraphrasing. Make it clear to the jury that they are dodging, and that is not okay. It may seem a simple thing but when we have data showing people forget the actual question posed—the witness’ style may be more important than the substance of a less ‘artful dodger’.

Do honest people get their dream jobs? Maybe…

Remember the job interview technique that has the applicant volunteer a critique of themselves as a worker and potential employee? The advice often dispensed some years ago was to say things like, “I’m a workaholic” or “I am often over-responsible” or something else akin to what is now called humble bragging. Here’s a fun piece over at the Daily Mail that tells you “honest people are up to three times more likely to land their dream role when up against other high-ranking candidates”. Commenters do not take the earnest tone of the article particularly seriously, you may want to make a point of reading the comments.

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We’ve written about eyewitnesses and problems with accuracy here often. Today we have an article that tells us 242 people were wrongly identified by eyewitness testimony and served years in prison prior to being exonerated by DNA testing. Researchers at Florida Atlantic University wondered how memory in people might be altered by police use of “individual mugshots, an array of mugshots, composite sketches, and lineups” as well as subtle innuendos. Specifically, they wanted to answer this question:

Does presenting a picture along with a question like ‘is this the person who did it?’ create an association between those two things that could then cause an eyewitness to later falsely remember seeing that person doing that action?”

The researchers used 80 undergraduates (median age 19 years) and 40 “older adults” (median age 71 years) to test their question. Each participant was shown a series of videos snippets of actors doing simple actions and were then instructed to remember which actor did which task. The researchers created 84 mugshots from these video snippets and also created a series of various scenarios of the events depicted in the video snippets. Each participant was shown two mugshots: one was an actor who’d appeared in the video snippets and the other was a new, random actor (who had not been in the video snippets). They completed this task 36 times (each time choosing either one of the mugshots or neither of the mugshots as the person who had completed each task). They were also asked how confident they were in their identification on each of the 36 individual trials.

As participants looked at the mugshots, they were asked a question like “which of these people did you see watering a plant?”. After the mugshot presentations, the 40 older adults and half of the younger adults (another 40) were tested immediately to see how much they are able to recognize correctly. The remaining (40) younger adult were brought back three weeks later to be tested again. And what did the researchers find? It varied by age.

Both younger and older participants were more likely to falsely recognize events if the actors appearing in those events had also appeared in the mugshots.

For older adults, mugshot viewing meant they experienced a sense of familiarity when they saw the actor performing in the video snippets even if a different action had been asked about when they viewed the mugshots. (The researchers say this likely meant the older adults recognized the familiar face, but were unable to call up the source or reason for their familiarity.)

This finding leads the researchers to hypothesize that the viewing of mugshots itself may make a face seem familiar to the older adult.

Younger adults were more likely to falsely recognize a suspect if the mugshot of the actor was accompanied by a question about the action the actor was now seen performing in the video snippets. (The researchers think this indicates the young adults formed a specific association between the pictured actor and the queried action which caused them to falsely recall the actor performing the queried action.)

This finding leads the researchers to hypothesize that the viewing of the mugshot, when coupled with the question of whether this person committed a certain act, may leave the younger witness overly confident that they saw something they did not actually see.

The researchers indicate this is (yet another) concerning finding for eyewitness testimony. They express concern that this type of false memory can lead to a “high level of confidence, especially in younger eyewitnesses” since they firmly believe they “saw” the suspect committing the crime. And we have other data to say high confidence in an eyewitness is very persuasive to jurors. The researchers suggest strategies for eye-witness testimony also recommended in prior research.

After viewing mugshots, an eyewitness should not be asked for further identifications. For example, if there are multiple eyewitnesses, only some should be exposed to mugshots and the others can make their identification from a lineup.

If there is only one witness, they will likely be asked to identify the perpetrator in the early stages of the crime’s investigation. This means their memory could be contaminated as the investigation continues. Thus, the literature suggests, “other forensic evidence” should be used to support the witness testimony.

From a litigation advocacy perspective, it is in your best interest to carefully examine the process through which eyewitnesses have been led during the investigatory phases. When memory is so very easy to contaminate (and we know eyewitness testimony is notoriously invalid), it is important to consider educating the jurors on eyewitness errors.

The problem is (as mentioned above) that a falsely confident eyewitness can be a compelling factor in jury deliberations. And in at least 242 cases, those confident eyewitnesses were very, very wrong.

Kersten, AW, Earles, JL (2016). Feelings of familiarity and false memory for specific associations resulting from mugshot exposure. Memory and Cognition, 45(1): 93.

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