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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

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older adults and fraudOf course you did. But you may want to take a look at this study because, maybe, it isn’t true after all. It certainly is a well-known myth if it is not true. This appears to be one of those situations where we add up what we know and then come up with a conclusion that just doesn’t appear to be true. Here’s what we know: research on cognitive age-related changes and emotional age-related changes tells us there are indeed shifts that can increase the vulnerability of the older adult to consumer fraud. We conclude, thus, they are defrauded more often.

This research, which is actually simply a review of the actual data on consumer fraud, says the older adult may be more at risk but there is no data-based evidence to say they actually are defrauded at a higher rate than younger adults. In fact, the older adult may be more savvy than we assume–these researchers say perhaps it is the protective factor of “increased experience and changes in goals, lifestyle, income, as well as purchasing and risk behaviors”. Or, in less geeky language–with age comes both wisdom and caution, as well as awareness of the old saying, “if it sounds too good to be true, it probably is…”.

So why is it so commonly believed that senior citizens are taken in by con artists and scammers? The writers of the current article identify 5 reasons we may hypothesize older adults are more often victims of consumer fraud (and these are drawn from research):

Older adults have less accurate episodic memory and are at increased vulnerability to misinformation.

Older adults have slower cognitive processing and therefore take longer to review and process information than younger adults.

Abstract reasoning and novel problem-solving ability peak about age 30 and then decline across the remainder of the lifespan. (This is such a bummer, but we can slow the decline by continuing to challenge ourselves through learning new things, playing music, learning languages, and stimulating a brain that functions better under the stress of new thinking).

Mild cognitive impairment is associated with a reduction in math and financial skills such as managing a checkbook and understanding bills. (This could result in increased vulnerability to fraud.)

After experiencing a financial loss, consumers can be uncertain whether their particular loss comes from a legitimate business arrangement or from deceitful practices. None of us like to be deceived and there is conjecture that older adults may not want to believe they have been tricked and therefore do not file reports as victims of fraud.

Those 5 findings are backed up by research. Older adults could be more at risk simply by virtue of aging and some of the issues we will all face at one time or another. But being at risk does not mean you will necessarily fall prey to consumer fraud. Yet the belief that older adults are victimized by consumer fraud at a high rate relative to other age groups is part of our social fabric. We all “know” this is true. Except it does not appear to be true.

Part of the issue is that researcher interpretations about what their findings might mean have been misinterpreted by the media as fact rather than mere conjecture or hypotheses for future work. Then the ‘facts’ are picked up by other media outlets and blogs and we hear things like “fraud prevalence has reached epidemic levels in older adults” or “older adults are disproportionately vulnerable to frauds”. Hypotheses, conjectures or questions become perceived as fact and become part of our popular “wisdom” about older adults. The following graph is taken from the article cited at the end of today’s post. The graph presents the fraud reported during 2010, 2011 and 2012. Contrary to our expectations, those who are actively defrauded are more likely very young or in the middle of their lives.

You may opine that the elderly are just too embarrassed to report their being defrauded, but there is no data to support it. In fact, the authors say at this point we can neither say older adults are subject to more or less fraud. There is simply no evidence to support the idea that older adults are disproportionately the victims of consumer fraud.

From a litigation advocacy perspective, this is one more reason to never assume that a given belief is true. Widely held stereotypes are often untrue. This apparently is but one of those widely held (but not supported by data) beliefs.

Ross, M, Grossman, I, & Schryer, E (2014). Contrary to psychological and popular opinion, there is no compelling evidence that older adults are disproportionately victimized by consumer fraud. Perspectives on Psychological Science.

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less than fully humanHere’s an intriguing article on how some nurses cope with stress. If you think, based on the title of this post, they do it by dehumanizing their patients, you would be correct. Somehow we think this is not a good thing to admit on the witness stand, but it is an understandable and human reaction to the stressful and often upsetting work that nurses have to do.

Essentially, what these researchers found was that “the more patients are perceived as rational and moral, the more nurses are likely to suffer from stress, while the more patients are perceived in terms of instinct, drive, impulsiveness, the less nurses suffer from stress. In other words, it seems that perceiving patients as less than human makes more bearable their suffering and protects nurses from stress symptoms”.

There is no argument that those in the nursing profession experience very high levels of stress. There are likely a range of coping mechanisms nurses employ to maintain their emotional balance and avoid burnout.

A few years ago, we were in Kentucky researching juror reactions to a wrongful death case and watching deposition excerpts of a nurse struggling to maintain her composure while answering questions about her own actions during the ultimately catastrophic delivery of a child. She was clearly distraught in our eyes. However, when mock jurors observed her, several saw her as cold, uncaring, and “not even shedding a tear for this poor baby”. It was so far from what the labor and delivery nurse was really feeling that the mock juror reactions were a shock to her.

It became important in witness preparation to help her share the joy and privilege she felt at assisting in the birth of a child, feeling the joy of each family over her years of service, and then juxtaposing the trauma of seeing a childbirth go terribly wrong despite doing everything she felt able to do to prevent it. She went from being cold and uncaring during pretrial research to being one of the best witnesses for the Defense. And the best way to prep her and to structure her direct examination would not have been clear without that pretrial research. Instead of being professionally aloof, she was encouraged to join with the jurors in their emotional distress, while talking about the reasons she was unable to prevent the tragic outcome. In this case it did appear that the responsibility for the birth trauma was not hers, and once she became more ‘real’ to the jurors, they saw it the same way.

It’s interesting, with that case in mind, to review this research. It is one thing to use various strategies to cope in the moment. It is another to use that same strategy in an attempt to seem strong and competent on the witness stand when the observing jurors want to see your humanity and your caring for the person (or in this case, newborn) who died. Part of being mentally healthy is being able to flexibly move between different modes of self-presentation depending on the situation in which you find yourself.

When we are under stress (like when testifying about our role in the death of a newborn in a wrongful death suit), it is natural to become more rigid and less flexible. Anyone who has a heart is deeply disturbed by the outcome, and the best nurses want to distance themselves from the tragedy. The challenge is to understand what the listener wants from you. They want to trust your skills, but also your humanity. They want to know you care. They want to know you feel sad for the parents that will never again hold their child. You don’t have to have done anything wrong to have those feelings and jurors will understand that. It’s a strange concept, but sometimes witness preparation is a lot like a mini-therapy session wherein  the goal is to learn to communicate the whole of your message effectively.

Trifiletti, E, Di Bernardo, GA, Falvo, R, & Capozza, D (2014). Patients are not fully human: a nurse’s coping response to stress. Journal of Applied Social Psychology. 

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The American Bar Association is seeking nominations until August 8, 2014 [THAT's TODAY!] 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

angels_and_demonsThis isn’t a teaser for Dan Brown’s book. In fact, don’t get us started on that. Instead it’s a report on two newer (circa 2013) measures of more credible interest: the Belief in Pure Evil Scale and the Belief in Pure Good Scale. We know. You’ve been waiting forever to have good and evil more clearly quantified. But don’t be so quick to dismiss. If you work in the criminal courts, these could be very useful for you.

Before you pooh-pooh the idea as ridiculous, these concepts are “reliable, unitary and stable constructs” with eight “theoretically independent dimensions”. What that means is, there really is something tangible and concrete here to measure. And the reason it matters is that those who score higher on a belief in pure evil were more likely to support the “death penalty and preemptive military aggression” and less likely to support “criminal rehabilitation, proracial policies and beneficial social programs”. It doesn’t stop there. Those who score higher on a belief in pure good are more likely to oppose “proviolent foreign relations and torture) and to support “criminal rehabilitation and diplomacy”. In other words, say the researchers, these are concepts that relate to “aggressive and prosocial” orientations toward others.

The Huffington Post covered this work and had this to say about those who believe in pure evil:

Those who believe in ‘Pure Evil’ consider bad or criminal behavior is willful, conscious and driven primarily by the wish to inflict harm, merely often for pleasure. If you believe in ‘Pure Evil’, you also deem that evil-doers will implacably continue being dangerous. This necessarily follows if certain culprits are indeed the embodiment of undiluted viciousness. On both sides of conflict, if each sees the other side as ‘evil’, this inevitably results in reciprocal and escalating prejudice with violence. People scoring higher in ‘Belief in Pure Evil’ feel that pre-emptive violence and aggression are justified to root out evil-doers.”

And they had this to say about those who believe in pure good:

Believers in ‘Pure Good’ accept the existence of pure altruism, that some people, though rare, intentionally help others just for the sake of helping, with no personal benefit or hidden agenda. They also judge that even the most ghastly perpetrators – i.e., wayward criminals, can see “the error of their ways” and reform, i.e., they are not ‘Purely Evil’. Those who more strongly believed in ‘Pure Good’, supported criminal rehabilitation and opposed the death penalty. Those who score higher in ‘Belief in Pure Good’ are more likely to believe that doing good means not harming others (unless one’s country or allies are directly endangered).” 

That’s the good news. These concepts appear to have merit and to be distinct constructs. The other news is that these scales are way too long and the individual questions are much too controversial to be permitted in most courts or most cases. But the concepts are powerfully evocative and we thought it was worthwhile to let you know they were out there and give you a glimpse of the items measuring them. We’ve done this before with the GASP Scale, the Depravity Scale, the Islamophobia Scale, the CAST Scale and even the Spitefulness Scale. So why not the Belief in Pure Evil Scale and the Belief in Pure Good Scale?

Here are a few questions from the 22-item Belief in Pure Evil Scale:

Evil people hurt others because they enjoy inflicting pain and suffering.

Evil people have an evil essence, like a stain on their souls, which is almost impossible to get rid of.

If we catch an evildoer, we should just lock them up and ensure they never get out.

Evil people are so narcissistic and full of themselves.

Here are a few questions from the 28-item Belief in Pure Good Scale:

People have to believe in “pure good” to have a peaceful and orderly society.

Purely good people always try to avoid hurting others, even when it means helping those in need.

The forces of evil will fail when they try to corrupt pure-hearted people.

Pure-hearted people respect all life and therefore believe anyone is worthy of being helped and cared for.

From a litigation advocacy perspective, we look forward to these concepts being measured in language admissible in court (less creepy and much shorter). Until then, however, it is curious whether case narratives naturally evoke a variation on this theme.

Our mock jurors routinely talk about their task as being one of assessing which side is “most right” or what decision is “fair”.

Sometimes they talk about their disgust with a Defendant and, in those cases, their themes are not far from “pure evil”. We’ve also seen instances where mock jurors discuss a Plaintiff (or the spouse of a Plaintiff) in themes closely resembling “pure good”.

It’s an intriguing idea to consider. How can this narrative be framed in ways that elicit the sense of a conflict between good and evil, fair and unfair, right and wrong. Those themes often emerge in mock juror reactions to case narratives and that is the intent. The question this research raises though is just who will react in the opposite way than we expect? That is, who will choose evil over good, unfair over fair, and wrong over right? Based on the mock jurors we’ve seen, we can’t see that happening in a deliberation room and having any measurable impact on the majority of jurors. But it’s intriguing to consider.

Webster RJ, & Saucier DA (2013). Angels and demons are among us: Assessing individual differences in belief in pure evil and belief in pure good. Personality & Social Psychology Bulletin, 39 (11), 1455-70 PMID: 23885037

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