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Have you been keeping up with the ‘sexsomniac’ defense?
It’s been used successfully several times since we first wrote about it back in December of 2009. In 2009, we told you about a landscaper named Jan Luedecke who got drunk at a party in 2003 and fell asleep. He woke up and then went to a woman asleep on another couch, put on a condom and raped her. She awoke to find a man lying on her. Mr. Luedecke’s defense was ‘sexsomnia’–he says he was “half-asleep” and he was acquitted!
“After the appellate court upheld Luedecke’s acquittal in February 2008, the woman told reporters, ‘I know what happened, and he knows what happened. I am not out for revenge, but I believe in accountability and consequences for actions, and he has not faced any of them’.”
And he isn’t the only one. Multiple male defendants have protested they sexually assaulted women while “asleep” and have been acquitted. Take a look at this story from November, 2008 and this one from October, 2009 and this one, from January, 2011.
While juries are reluctant to acquit based on “my brain made me do it” defenses, we have been following this area since we began our blog. Even though scientists working in the area generally believe we simply do not know enough about the brain to “prove” assaultive behavior is caused by brain “misfires” or “faulty wiring”–expert witnesses continue to testify to the contrary. In the instance of the ‘sexsomnia defense’, they have been able to convince jurors to acquit despite the fact that a woman has been sexually assaulted.
Finally, though, there is a ‘guilty’ verdict in a ‘sexsomnia defense’. This one has a twist though. The prosecutor pointed out all the inconsistencies in the defendant’s story by comparing the defendant’s story with the stories of sexual assaults found by juries to be driven by “faulty brain wiring”.
This strategy is akin to what we recently documented with the ‘epilepsy defense’ although, in that instance, despite documented seizures, the defendant was held accountable for his behavior and sentenced to jail.
In the most recent sexsomniac defense, 20-year-old Zack Thompson pled sleepwalking/sleep disorder and no recollection of raping a 17-year-old girl at a Portugese resort. Sleep disorder specialists tested him, found his behavior and subsequent memory loss of the event to be likely due to heavy drinking rather than a sleep disorder and he then pled guilty to rape. He is now serving 6 years in prison.
“Nottinghamshire Police sought guidance from experts about the condition and invited sleep disorder expert Professor Mark Pressman to assess him.
The American psychologist, who has more than 30 years experience with sleep-related disorders, found Thompson behaviour was not consistent with the actions normally displayed by sleepwalkers.
He added that his alleged memory loss was instead “highly likely” to have been the result of drinking excess alcohol.
On hearing the assessment, Thompson withdrew his sleepwalking defence and went on the claim he was “insane”.
This too was rejected by an experienced psychiatrist.
After two-and-a-half years, Thompson finally pleaded guilty to rape at Nottingham Crown Court on March 1 this year and has now been sentenced to jail.”
Essentially, this case was seen as different and the way the case was decided gives legitimacy to the sexsomniac defense. A quick web search on “sexsomnia defense and responsibility” yields multiple stories in both Europe and Australia of successful and unsuccessful defenses in this area.
You might notice if you read these links that the original story we blogged about was from Canada. The rest are from the UK. It raises interesting questions about the local popularity of story lines and why an explanation seems to gain currency in one culture or region and not others. The other common thread among the stories appears to be heavy consumption of alcohol, generally on the part of everyone involved.
It is curious to us. US juries seem to have little tolerance for letting rapists, gropers, flashers, and other sexual offenders go free despite concurrent physical circumstances. Our mock jurors push the theme of personal responsibility for behavior.
So we find ourselves at the same question we asked in 2009. Where does responsibility end?
Zaharna, M., Budur, K., & Noffsinger, S. (2007). ‘Sexsomnia’ disrupts sleep, threatens relationships, and has forensic implications. Current Psychiatry (July)
Image taken from Zharna, Budur and Noffsinger, 2007.
“Stop picking fights and get some emotional intelligence!”
Now that’s a great line. The kind I wish I had the presence of mind to say when someone furious is trying to bully me into acquiescence. Of course, the kind of person who would be the best recipient of the line is also unlikely to make good use of it. Sigh. Fortunately, I have not been prey to that sort of behavior in years. So when this research came across my desk I was intrigued.
We hear so much about anger management (and I, for one, believe it’s almost always a good thing) but these researchers say that maybe we don’t need to be so focused on always maintaining our cool. There are times when getting angry is actually a smart, strategic move.
Emotional intelligence “refers to the ability to perceive, control and evaluate emotions. Some researchers suggest that emotional intelligence can be learned and strengthened, while others claim it is an inborn characteristic.” We’ve known about emotional intelligence for decades now. It is widely seen as a good thing and as a visible indicator of good mental health. In general, people who are emotionally intelligent gauge their emotional expression to the message they want to communicate.
Researchers were curious about whether emotionally intelligent people sometimes chose to feel bad in order to be more effective. That is, whether the communication of aggressive distress can be useful. They knew it was a counter-intuitive hypothesis as it would seem that in order to control your emotions you would want to maintain a neutral or positive internal state. Their hypotheses were supported by the data:
“People who indicate they want to feel angry more than others are more, rather than less, emotionally intelligent when anger is likely to serve them well. In contrast, people who want to feel happy more than others are actually lower in emotional intelligence when happiness is unlikely to be useful. Such findings raise the possibility that wanting to feel good at all times may not necessarily be an intelligent choice.”
We’ve done a number of mock trials around family disputes over the past few years and this research is applies well to the intense emotions aroused in these disputes. Here in Texas (where, if you’re rich enough and angry enough you can have a jury decide the major issues in your divorce case), we seem to have a fair number of such situations–whether divorce or business valuations when family relationships break down irrevocably. It is always stressful for the family to endure the candid comments of the jurors (both mock and real), their snap judgments and their often unflattering assessments of character and motivations.
But even more telling is how presciently the mock jurors are able to ‘see’ subtle indications of leaking rage and hostility that only former loved ones can elicit. Family members on both sides of these disputes feel enraged, betrayed, deceived and cheated. And how can it be otherwise?
Our task in these volatile situations is to help our witnesses understand that their most effective emotional state when testifying requires some emotionally intelligent processing of their emotions. Unresolved anger is often seen as unreasonable, that the distressed person won’t be satisfied even by a just verdict. The risk is that even when the anger is justified, the jury adopts a feeling of alienation from the witness, or hopelessness to make a constructive difference. Rage (even when masked) is perceived via subtle signs such as uneven breathing, posture, a trembling voice, or a flash of eyes quickly veiled. It’s amazing how much jurors can ‘see’ when they are not caught up in the emotional drama of the upset. Families observing these research projects are often amazed at how quickly the jurors are able to identify the root of the problem/conflict–when it took the family a long, long time to understand the situation (and often even longer to choose to act).
Emotions cloud our thinking and they cloud our judgment. Yet, according to this research, there are times when emotions can facilitate accuracy in communicating our message. We think family disputes and court testimony from family members is not the place to get comfortable with your anger. Jurors want the dispute resolved by the family. They want to feel there is a possibility of future reconciliation.
Testimony showing healthy sadness or even anger over the damaged relationships is met with empathy from mock jurors. In our most recent project, one of the mock jurors referred to the visible sense of loss and love in a witness’ deposition as a reflection of “family values, still”. And that’s what you want. A conflict involving family that has escalated out of control and yet, reflects hope still.
Ford BQ, & Tamir M (2012). When getting angry is smart: Emotional preferences and emotional intelligence. Emotion (Washington, D.C.) PMID: 22309721
The new issue of The Jury Expert is up!
It’s been a while since we touted The Jury Expert here. It’s a terrific publication for learning of the latest in litigation advocacy. Keene Trial has been instrumental in the rebirth of The Jury Expert with Rita Handrich serving as Editor since the online debut in May, 2008.
Articles in The Jury Expert are written by ASTC-member trial consultants and researchers working in areas relevant to courtroom persuasion and advocacy. So, in one place, you get the latest in research, practice applications, and strategies to inform your work. And, did we mention it’s free and presented as a service to the litigation community by the American Society of Trial Consultants? You’ll want to bookmark the site (if we say so ourselves)! Just think of it as our gift to you…
Here is the latest Table of Contents for the issue publishing yesterday.
Intellectual Property Cases: Ten Lessons From Pre-Trial Research
by Ellen Brickman and Julie Blackman of DOAR Consulting
Ten lessons learned from mock jurors participating in pre-trial research on intellectual property cases.
Principles in Persuasion: Beyond Characteristics of the Speaker
by Brad Bradshaw of Bradshaw Litigation Counseling
What do you need to know about persuasion? The author of a recent book on persuasion summarizes the research so you know what to do now.
The Art of Rehearsing for the Courtroom
by Suann Ingle and Nancy Geenen of Suann Ingle Communications
Does it matter if you actually rehearse for mock trials? The answer is yes and these two consultants tell you why as well as the all-important ‘how’.
Vocal Pitch in the Courtroom
by Jessica Boyle and Stanley Brodsky of the University of Alabama
High voice, low voice, male voice, female voice? What the research says about your vocal pitch and persuasion in the courtroom.
Road Warrior Tips (March, 2012)
Submitted by various ASTC frequent flyers
Do you know what the nastiest, germiest thing in your hotel room is? Think again. And learn how to avoid taking bedbugs around the country with you! These two tips and much more more in this growing category.
Harming Children: Uncovering and Overcoming Bias When Defending Sex Crimes Against Children
by Beth Bochnak of NJP Litigation Counseling (formerly the National Jury Project)
In our last issue we focused on ‘sensitive topics’ and approaching them successfully. Here’s another one: an SJQ (and the rationale for various questions) for defending those accused of sex crimes against children.
A Big Book Filled With Big Ideas
by Steve Perkel of Archer & Greiner, PC
A review of Daniel Kahneman’s (500 page!) tome Thinking, Fast and Slow. What can we learn from this book to inform litigation advocacy. Steve says “a lot” but we have to give it time to percolate.
Weird Science: How Misperceptions of Litigation Consulting Can Drive Juror Cynicism
by Ken Broda-Bahm of Persuasion Strategies
You probably saw the “Why does everyone hate jury duty?” ‘surveys’ floating around the web. A trial consultant takes a look at the original article questioning our system and ponders how cynicism plays a role in the responses.
Irises, Tulips, Last Minute Scrambles & Gratitude
from Rita Handrich, Editor of The Jury Expert
Usually we keep this stuff from you. This issue though, a behind-the-scenes look at what members of the ASTC (American Society of Trial Consultants) are really like. Famous old saying: “Character will out”.
Should you maybe change your last name so people like you better?
So you may have read about the life-long curse of an unpopular first name. But there’s more. Before you run off to change your first name, you may want to consider your last name as well!
I’ve always liked my last name. It’s unusual and it’s phonetic. Hand. Rich. Simple. I never understood why people mangled it so much. Hendricks. Handrick. Handridge. By the time I completed my Ph.D., I knew I would rarely be Dr. Handrich. Instead, I went by Rita. When I worked in an environment where it was unseemly to be called by your first name, the residents of that facility gratefully called me “Dr. H”.
So seeing this research on how much more people like ‘simple’ and common names doesn’t seem particularly novel to me but then my last name is simple compared to the exemplar used by the researchers: Colquhoun.
We’ve talked about how women with masculine-ish sounding first names [like Jim] are more likely to become judges. But there is a whole lot more. Your first name portends both your income and educational level. Boys with girls’ names are more likely to be suspended from school. (But Johnny Cash told us that one long ago.) The popularity of your first name also predicts whether you will be a juvenile delinquent! Surely that is enough. Well, guess what. The simpler your last name, the more likely you are to advance in a law firm! Seriously? Let’s back up a bit and go through the research.
This research is based on the literature on processing fluency. In short, the same body of research that talks about why we don’t like to listen to people with accents speak English. It’s simply too much work. Researchers conducted five separate experiments to look at the effect of an easy to pronounce last name.
Experiment 1 found that people with easy to pronounce last names were seen as more likable.
Experiment 2 found that political candidates on ballots were more popular when they had easy to pronounce last names.
Experiment 3 found that when political candidates names were embedded in a newspaper story about a local election, the candidate with the easier to pronounce last name was deemed “more suitable” for the position than those with harder to pronounce last names.
Experiment 4 found that when participants rated both in group (a citizen of their own country) and out group (a citizen from another country) surnames, they found the easier to pronounce surname more “likable”.
Experiment 5 gathered a list of 500 US lawyers first and last names from law firm websites.
“To sample randomly but widely, we extracted 50 names from each of ten firms that varied in size from the largest US firm to the 178th largest US firm (using the website: http://www.ilrg.com/nlj250).”
The names were then rated by undergraduate research participants for ease of pronunciation and foreignness. The researchers determined that attorneys with foreign sounding names had likely been employed for shorter periods of time and thus only ran comparisons on those with Anglo-American sounding surnames. You know what they found. The easier to pronounce names were of those lawyers occupying superior positions in company hierarchies.
Wow. This takes that first-impression effect and ramps it up a few notches. All the witness preparation in the world can’t change the impact of your surname. Or can it? We would argue it can. You can diminish the impact of an unusual last name by simply asking the witness about pronunciation and offering a self-deprecating apology for inquiring. Share their understandable difficulty. The witness can then (charmingly) explain the pronunciation of their last name and offer a simplified version for use in court. (“If you prefer, you can simply call me Dr. C.”) If opposing counsel persists in struggling (genuinely or not) with the witness’ surname regardless of the encouragement to use the simpler version, the witness can make eye contact and smile at jurors and the damage is likely reversed. After all, making something difficult when an easy solution is offered starts to sound rude.
The most important thing is that jurors see someone being “different” as unimportant to them while they struggle with issues that really do matter. Jurors only ask that your client or witness communicates with them in a respectful, clear and comprehensible fashion. That’s a lot more important than a difficult to pronounce last name.
And by the way. It’s Hand-rich. But you can call me Rita.
Laham, S., Koval, P., & Alter, A. (2012). The name-pronunciation effect: Why people like Mr. Smith more than Mr. Colquhoun. Journal of Experimental Social Psychology, 48 (3), 752-756 DOI: 10.1016/j.jesp.2011.12.002
Feeling good about yourself? Allow us to introduce our mock jurors!
Most of us believe we are able to manage how we come across to others. Especially in a 6 minute time frame. So. It’s a wake-up call to have a group of mock jurors, representing a cross-section of your community– quickly and with eerie accuracy– rip aside the veil.
Recently we conducted a mock trial in which 6-9 minute excerpts from deposition videos were shown to mock jurors. And here is what the jurors said about various witnesses:
Fidgety, lots of “you knows”. Not confident in his delivery. He’s being methodical and accurate in his recollections but his style doesn’t leave overall good impression.
His hair was distracting. He slumped over too much, a bit disheveled.
If he says “you know” one more time, my ears will bleed.
Looks like Newt Gingrich but without a lot of confidence; very flat.
The repetition of use of words such as ‘you know’, ‘um’. It is possible that he felt nervous but seemed likely he was trying to recall a fabricated story.
When someone is telling the full truth, they often say it with more conviction and less hesitation.
Looked like he was chewing gum. Also that he looked to the side as if looking for assurance or guidance.
Shifty. I wouldn’t buy a car from this salesman.
This was not a good witness. He said I don’t recall too much and his body language made him look dishonest.
Doesn’t seem to recall too much or many of specifics. He really doesn’t seem to recall or have total recall of conversations.
Lots of “if” disclaimers. Seemed a bit defensive and foggy in recollections. Lots of pauses, as if trying to decide whether to be truthful.
He was constantly shifting around and moving his eyes like a kid caught by his parents. He did not give helpful information.
Mumbling makes him seem dishonest.
Came across as shady and arrogant.
Our clients (who were described in the comments above) tried to act amused by the criticism, but were clearly were taken aback. Were these jurors the first people to ever think such things about these people? Maybe not. But it was a level of candor that was rare indeed, and one that they absolutely had to hear. Speech patterns, bad habits such as fidgeting/gum chewing/poor posture, hairstyles, character aspersions–nothing was overlooked and no opinion was held back by the mock jurors. The witnesses had come across badly but it wasn’t because they were bad people. They were angry about being asked what they considered stupid questions for what they considered a frivolous lawsuit . They didn’t appreciate how their attitude could be used by the opposition.
The bad news was they were embarrassed and taken aback. The good news is they are ready for witness preparation practice. Their attorneys understand the need for a “back story” to prepare jurors for the reasonable distress that the clients feel about being wrongly accused.
It was difficult to sit through but ultimately very worthwhile. One of our long-time clients says “jurors almost always get it right” and we agree with that sentiment. And when you can give them the complete story without unnecessarily off-putting and distracting behavior, they have an even better chance of getting it right.
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