Archive for the ‘Case Presentation’ Category
Conspiracy theories that arise during pretrial research are instructive for filling holes in the case narrative. Recently though, Popular Mechanics ran a feature on a number of conspiracy theories we haven’t heard arise in our work (so far). The conspiracy theories run the gamut from the government burying Atlanta, Georgia (very recently) in “poisonous snow” that did not burn but instead, “blackens, twists like plastic, and stubbornly refuses to melt”, to sharks involved in attacks off the coast of Egypt really being “remote-controlled Israeli spies”.
Recently we wrote about Bigfoot believers and the fact that almost 1/3 of Americans believe Bigfoot exists. (As an aside, we have been told that Bigfoot used to exist but a Las Vegas hunter has since claimed to have killed the Bigfoot near San Antonio, TX and will soon be taking the body on the road so you can see it with your own eyes). Popular Mechanics does not include Bigfoot in their list of outrageous conspiracy theories. Among the theories they do include, like the moon really being a hologram, were a few that we would love to hear jurors or mock jurors share. In public. If for no other reason but to see the reactions of the others gathered, and possibly to see whether the judge would consider them too crazy to serve. Obviously, we don’t get out enough because most of these were completely new to us. Forewarned though, is forearmed.
The lizard people: We think it possible this one could arise in cases of government corruption or political malfeasance. Only four in a hundred Brits (allegedly) believe this theory but a close friend of Princess Diana claims Diana confided that the British royal family were actually lizard people. Apparently, “cleverly disguised reptilian aliens traveled to Earth thousands of years ago to infiltrate our highest echelons of government”. There are YouTube videos described as “terrifying” and also videos to debunk the videos. Popular Mechanics opines this one may actually be true due to “lack of any better explanation for Rob Ford”.
The Siri Apocalypse: This one could come up in a high-tech patent or IP dispute as jurors debate the merits of technology in society. If you read this blog regularly, you know we have a fondness for Siri (the iPhone personal assistant). But who knew she was scheduling events without our asking, like designating July 27, 2014 as the “appointed time for the Opening of the Gates of Hades”. We tried this one and it didn’t work but Siri seems to know a lot, so who knows what Steve Jobs might be orchestrating from beyond the pale?
Denver International Airport is, quite literally, hell on earth. As far as we know, this one wasn’t started by frustrated, stranded travelers. But one can never be sure. And, like many conspiracy theories, this one is quite complex. These theorists believe DIA to be the “den of the devil”, that a FEMA death camp is hidden beneath the airport, that the terminal runways form a swastika, and the walls are lined with satanic symbols (in the guise of artwork). There is even a two-part YouTube documentary on the coverup at DIA. It’s certainly worth a tour next time you are stranded in Denver. Just don’t undertake the tour alone!
In short, there are many topics about which conspiracy theories emerge, yet, in our experience, a good conspiracy theorist is very good at connecting the dots between your case and their bizzaro-world. We’ve seen cases where fairly routine facts led to proclamations of very unlikely sexual partners imagined, cocaine use assumed when a not well-liked witness sniffled, and a social media site being described as “the devil’s work” by a school teacher to the agreement of a significant portion of other mock jurors in the room. Still, it is within the realm of possibility that you may hear about lizard people, Siri, and the devil’s den being in Denver.
When these sorts of comments are made, we always take time to make sure we understand how the connection was made and how others in the room reacted to the suggestion so we can then plug that hole in the narrative. Now, there may be no real hole in your narrative and you may just have an odd, idiosyncratic association on the part of a single juror. It is always to your benefit to consider when to plug a hole, when to leave it open (and maybe open it just a little wider), and when to add information when there isn’t a hole–but it’s better to not have jurors wondering and creating a hole where none really existed.
I did not intend to binge watch the newly-released second season of House of Cards. But once I saw the first episode, I could not stop and watched the entire season over the next 4 days. As a fellow fan, I understood Barack Obama’s tweet about the show
and thus, you will find no spoilers here. Suffice to say, the first episode destroyed any ability I had to wait and allow the story to slowly unfold. So when I saw the Atlantic’s recent story on “ruthless winners” featuring the example of Claire Underwood on House of Cards–I had to go read it (although you should not if you have not yet watched all of Season 2!). Essentially, the Atlantic piece asks why we root for the ruthless pragmatist–from Frank and Claire Underwood to Walter White in Breaking Bad to Tony Soprano in the Soprano’s. It’s a worthwhile question for us to consider. I find myself both shocked and intrigued as I watch these shows. It’s a phenomena we’ve written about before here. They are so evil and dishonest and yet, so creative in their machinations. They are evil geniuses–and now we may know why.
Harvard researcher Francesca Gino has published a new paper on the link between dishonesty and creativity. She says, “by acting dishonestly, people become more creative, which allows them to come up with more creative justifications for their immoral behavior, and therefore more likely to behave dishonestly”.
Gino recruited 153 people online and asked them to “quickly scan a series of numbers to find combinations that added up to ten”. They knew that if they were randomly selected for a bonus, they would receive $1 for every combination they found (they were self-reporting their solutions). After that they were asked to do the Remote Association Task (which measures creative thinking). In this study, 59% of the participants “over-stated” the number of problems solved on the number test. (Another way to communicate the participants over-stated their results would be to come right out and say they lied.) But, the liars performed better on the creative thinking test.
Next, Gino tried a similar experiment with 101 college students. In this experiment, 51 of the 53 participants with the opportunity to lie, lied. And yes, they performed better on the creative thinking test than did their peers who had no opportunity to lie or cheat. It was as though dishonesty was favored by participants inclined to “feel unconstrained by rules” and that freed them up to think more creatively.
Getting back to Frank and Claire Underwood, they have certainly had a lot of practice behaving dishonestly, feeling “unconstrained by the rules” and thus thinking of creative strategies to manipulate others. We’ve blogged before about a study concluding that creative people make us anxious and uncertain. Perhaps this study can explain why… we simply don’t trust them!
It’s also a good thing to consider if your client is a creative type– an artist, inventor, software writer, poet, actor, etc. Present testimony showing their good works, honest treatment of others, and overall good character. Your creative client needs to defy any “evil genius” characterization. Make sure jurors know that.
Gino F, & Wiltermuth SS (2014). Evil Genius? How Dishonesty Can Lead to Greater Creativity. Psychological Science PMID: 24549296
Most of us realize that real life stalking is a serious issue and very frightening to the victim, whether male or female and whether young or old. But what about cyber stalking? While research on real life stalking has grown over the past two decades, actual research on cyber stalking is sparse–despite ever-increasing depictions on television and in movies.
Recently, German researchers did a large scale survey of 6,379 participants on a large German social network (StudiVZ) to assess the prevalence of cyber stalking. They asked the participants to complete a measure of well-being (the WHO-5 Wellbeing Index), as well as other measures describing demographics, and level of internet use. Of the 6,379 participants, 42% were female, the average age was 24.4 years, 75% had the equivalent of a high school education, 50% were currently college students, 38% were employed and 11.4% were unemployed. The majority (59.6%) were not married. So, basically a gen-Y sample.
The researchers wanted to determine the prevalence of cyber stalking using the definitions for stalking in the real (offline) world. They required three criteria (which were used in the first population-based study on stalking in Germany): unwanted internet contacts/harassment; a duration of more than 2 weeks; and harassment that provoked fear.
The researchers are quick to say that “Facebook stalking” (referring to gathering info on someone from Facebook profiles) should not be included in cyberstalking definitions since it “trivializes the seriousness of cyberstalking”. They recommend classifying “Facebook stalking” as a “less severe method of online pursuit” under either the category of “cyber obsessional pursuit (COP)” or “online obsessive relational intrusion”. Okay, those terms sound much less severe, right?
Here is what they found about cyberstalking among users of this widely used German social media platform:
43.4% of the participants said they had experienced online harassment at least once. However, when the other two criteria for offline stalking (i.e., a duration of more than 2 weeks and the harassment causing fear), the prevalence dropped to 6.3%.
Those who had been stalked (the 6.3% meeting all three criteria), were more likely female (80.5%), less educated, more likely to be unemployed, and more likely to be single.
Thirty-two per cent of the segment that were cyberstalking victims reported their cyberstalking lasted up to a month, 45% said it had lasted up to a year, while 22% said it continued for more than a year. Twenty-seven percent were stalked several times daily, 21% were contacted daily, 30% were contacted several times a week, 11% once a month, and 11.5% were only contacted occasionally. (Keep in mind that this is a study of over 6000 participants, so the subgroup that qualified under the definition of being cyberstalked was nearly 400 strong).
The victim-participants reported being stalked through emails, defamation to others online, messages posted about them online, encouraging others to also send harassing messages to the victim (“stalking by proxy”), sent email viruses, downloaded data from the victim’s computer without the knowledge of the victim, and other avenues for online intrusion.
Victims reported their cyberstalkers were often known to them and listed cyberstalkers as distant relatives, family members, ex-partners, friends, acquaintances, or some other person. The majority of cyberstalkers (69.4%) were male although a significant proportion (28.1%) were female. The gender of the remaining 2.5% was unknown. The researchers note that this proportion of female stalkers is higher than the offline female stalker rate in Germany and hypothesize that the avoidance of the direct confrontation may make cyberstalking more attractive for women (since more women than men use indirect stalking behaviors).
Motivation(s) for the stalking (from the victim’s perspective) was mainly (62%) seen as the result of either a real or perceived rejection, jealousy (55%), a desire for a romantic relationship (49%), or revenge (40%). Thirteen percent of the victims were unable to identify any cyberstalking motive at all. These motivations are very similar to the motivations ascribed to offline stalkers.
There was overlap between cyberstalking and offline stalking with only 1/4 of the victims experiencing cyberstalking alone . Forty-two percent reported simultaneously occurring offline and cyberstalking, 16.5% said cyberstalking was followed by offline stalking, and 15.8% said offline stalking came first and cyberstalking began later.
In those cases where both offline stalking and cyberstalking were present, 12% said they had been “grabbed or held down”, 8.8% reported being hit with the hand and 3.8% reported having “been attacked with objects”.
In terms of the emotional and physical response to the cyberstalking, only 2.5% of the victims reported no symptoms at all. Among the symptoms reported were “feelings of inner unrest” (78.2%), distrust of others (68.2%), sleep disturbance (64.2%), feelings of helplessness, anger and aggression (55%), and multiple other issues often seen in victims of offline stalking (e.g., upset stomach, headaches, social withdrawal and depression, panic attacks, relationship wariness, and more).
These reactions are very similar to the reactions reported by offline stalking victims. Further, there were no differences in the reactions of male and female victims. The researchers believe this to be the result of including the presence of fear in the criteria of cyberstalking since “victims’ fear levels are the best predictor of physical and psychological health consequences”.
Overall, the researchers say the prevalence rate for cyberstalking was estimated at 6.3% which “is similar to the prevalence estimate for offline stalking in Germany”. The psychological and physical health impact is also similar. The researchers believe that cyberstalking is as serious a situation as offline stalking but also acknowledge the correlation between mental health symptoms and being a victim of cyberstalking could mean if you have mental health issues you are at higher risk for being cyberstalked. Unhealthy people often have unhealthy relationships. But with that said, it is both foolish and unfair to presume that someone who is being stalked (cyber or not) has mental health problems apart from the stalking.
In terms of litigation advocacy, this study offers a large sample where half of the sample was non-students and as the researchers put it, “this study offers a broader empirical data basis to shed light on cyberstalking and its impact upon victims”. It’s a good way to communicate the seriousness (and the impact on both men and women) of being a victim of cyberstalking.
Dreßing, H., Bailer, J., Anders, A., Wagner, H., & Gallas, C. (2014). Cyberstalking in a Large Sample of Social Network Users: Prevalence, Characteristics, and Impact Upon Victims Cyberpsychology, Behavior, and Social Networking, 17 (2), 61-67 DOI: 10.1089/cyber.2012.0231
The sad and painful tale of Dylan Farrow has emerged again following her letter to the NYT after Woody Allen received the Golden Globes Lifetime Achievement Award. Woody Allen responded to Ms. Farrow’s open letter and she responded to his response. The internet has been on fire with reactions, pro-Farrow, pro-Allen, and everything in between. You can find them with a simple internet search and we won’t link to them here.
This post isn’t really about the letter, the responses, or the internet reaction to them. Instead, it’s about the original judge in the dispute and a cautionary tale for the attorneys who hire expert witnesses everywhere. I first saw the judge’s written opinion when it was sent around on a mailing list. It reads like a “don’t do this” text for the would-be forensic expert witness. There are so many legitimate reasons this case would not have succeeded at trial–regardless of Mr. Allen’s actual culpability.
Among the trial attorney lessons to be culled from the judges’ opinion, are the following:
Be sure your experts are really experts.
“Both Dr. Coates and Dr. Schultz expressed their opinions that Mr. Allen did not sexually abuse Dylan. Neither Dr. Coates nor Dr. Schultz has expertise in the field of child sexual abuse.” (p 22)
Make sure your expert keeps notes made during the process of report completion.
“The notes of the [Yale-New Haven] team members were destroyed prior to the issuance of the report, which, presumably, is an amalgamation of their independent impressions and observations. The unavailability of the notes, together with their unwillingness to testify at this trial except through the deposition of Dr. Leventhal, compromised my ability to scrutinize their findings and resulted in a report which was sanitized, and therefore, less credible.” (p 23)
Make sure your expert documents rationale behind conclusions and does not draw conclusions about anyone s/he has not seen.
“Dr. Herman faulted the Yale-New Haven team for making visitation recommendations without seeing the parent interact with the child; for failing to support adequately their conclusions that Dylan has a thought disorder; for drawing any conclusions about Satchel, whom they never saw; for finding that there was no abuse when the supporting data was inconclusive; and for recommending that Ms. Farrow enter into therapy.” (p 23-24)
Make sure your expert doesn’t say anything ridiculous like they just “know” when someone is not telling the truth.
“He claimed to have an intuitive ability to know if a person is truthful or not. He concluded, “based on my experience”, that Dylan lacked credibility.” (p 24)
Reading the written opinion is disturbing. The level of dysfunction in the Farrow/Allen household appears to have been very high and the judge’s opinion leaves little to the imagination when describing impressions of the adult parties. It is hard to imagine that Yale is particularly proud of the standard of practice by their ‘experts’, if the judge’s characterizations are accurate. It violates both common sense and standards of practice employed by psychologists who do custody evaluations (see the guidelines published by the American Psychological Association). All the more reason to ensure your expert is going to have the highest standards of practice possible and thereby not contribute to a possible miscarriage of justice.
Last fall we wrote about how having a dark-skinned avatar in an immersive virtual reality experience can reduce your implicit bias against dark-skinned people. Now Illinois researchers show us that the avatar assigned in online gaming also influences behavior. How? If you are assigned to be a hero, you do good. If you are assigned to be a villain, you do not do good. Okay. That makes sense in an online role-playing game–-but the point of the research is that the online role-play (as hero, villain, or neutral geometric figure) made a difference in the real world after the online gaming ended.
The researchers did two separate experiments:
Experiment 1: 194 undergraduates (95 male, 99 female, average age 20.3 years) were told they would be involved in two separate studies: a game usability test and a blind tasting test. They were randomly assigned an avatar (a hero–Superman, a villain–Voldemort, and a neutral avatar–a simple circular shape). After they battled their opponents for 5 minutes online, they were asked how much they identified with their avatar on a 7-point scale ranging from 1 (not at all) to 7 (very much). Then they were told they were moving on to the second study–the blind taste test. They were given tastes of both chocolate and chili sauce and then asked to choose one or the other to give a a (fictitious) future participant to consume. They were told the future participant would eat all of the food provided and the participants could pour as much as they wanted into a container for the future participant.
While the conscious level of identification with the avatar made no difference, participants with heroic/Superman avatars gave more chocolate to the fictitious future participant than did either those with villainous/Voldemort or neutral (circular) avatars. Participants with villainous/Voldemort avatars gave more chili sauce than did participants who had heroic/Superman avatars or neutral/circular avatars.
Experiment 2: 125 undergraduates participated (44 male, 81 female, average age 19.4 years). The design was the same except the researchers added a condition to test whether role play assignment (as either hero or villain) was more powerful in real world conditions than “common behavioral priming or perspective taking”. The researchers also simplified the experiment by dropping the neutral/circular avatar and focusing on how much chili sauce was given to the fictitious future participant. To clarify–some participants played the online game with either the heroic or villainous avatar while others were asked to be an observer of the online game for 5 minutes but “take the perspective of” either the hero or villain avatar/player.
Again, villains poured more chili sauce for the future participant than did the heroes. Those playing heroes poured less chili sauce than those observing and taking the perspective of heroes. Similarly, those playing villains gave more chili sauce than those observing and taking the perspective of the villain.
In short, say the researchers, “acting as a hero or villain” means you are more likely to repeat heroic or villainous behavior than you would if you are simply asked to “think of yourself as being” either the hero or the villain. They encourage game developers to design more heroic avatars to encourage more real-world prosocial behavior.
From a litigation advocacy perspective, you cannot ask people to actually “be” pro-Plaintiff/Prosecution or pro-Defense for a few minutes and then send them off to deliberate and expect a positive outcome for your case. All you can do is ask them to have empathy, or put themselves in the position of, your client. And, this research would say that isn’t nearly as powerful.
We would beg to differ. The researchers are talking about the impact of online gaming on the quantity of chili sauce or chocolate left for someone else to eat. It’s a little different from the real life and critically important issues often presented to jurors. We certainly don’t advocate asking jurors to take on the role of hero or villain overtly.
What we do advocate doing is asking jurors to take on the hero role (or to not take it on) without actually asking overtly.
From a Civil perspective: We would use the “be the very best you you can be” strategy. Obviously it would be a little differently framed for these two roles but the idea is to create empathy for either the Plaintiff or the Defendant. This would be akin to the request for the juror to take on a “hero” role. They are being asked to rise above petty bias and consider the situation from the position of the individual person involved. It is, in some ways, a “but for the grace of God, there go I” sort of strategy that encourages identification with the actual person or with the situational/genetic influences that may have driven the Defendant’s bad behavior.
From a Criminal perspective: Consider increasing the urge to punish the Defendant by focusing on the egregious nature of the crime. Create a virtual environment in which the jurors imagine that this is a threat to society that they can reduce. By focusing on the socially inappropriate behavior in the fact pattern, they become more inured to the aggressive punishment that is being sought. Of course, this is typically how a prosecutor would handle criminal cases, but the reason for doing so is endorsed by this research. Criminal defense strategy would be to focus on externalities, like the role that the defendant having been treated ruthlessly would affect him, or the way in which the conduct of anyone ‘primed’ him or her to act improperly. It is a way to make people identify with their own role in the trial, and orient them toward one frame of reference or another.
Yoon G, & Vargas PT (2014). Know Thy Avatar: The Unintended Effect of Virtual-Self Representation on Behavior. Psychological Science PMID: 24501111