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TJE_logoThe February 2015 issue of The Jury Expert has been uploaded and here’s what you’ll see if you visit the site:

Why Women Speak Up in the Jury Room by Suann Ingle. Many of us have read the book Lean In by Sheryl Sandberg. Suann read it and then saw the recent article by Sandberg and a colleague discussing why women don’t speak up at work. Suann has ideas about why women may not speak up in the corporate world but she also has ideas about why they do speak up in the deliberation room. If you want your female jurors to participate, take a look at Suann’s ideas on how to make that happen.

The Psychology of a Persuasive Settlement by Ken Broda-Bahm. “We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait, followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room.” So begins Ken Broda-Bahm’s article on the psychology of a persuasive settlement. This is an article that focuses on the issues that keep us (or rather, “the other side”) from settling a case when that is the most logical outcome.

Racial Disparities in Legal Outcomes: On Policing, Charging Decisions, and Criminal Trial Proceedings by Samuel R. Sommers and Satia A. Marotta. We don’t do reprints in The Jury Expert. But this time, we are doing a reprint, because this article was written in plain language and the content is so important we want to make sure everyone has a chance to read it. There are many ways racial bias factors in to legal decisions and this article focuses on how racial bias enters into decisions on policing, charging decisions, and criminal trial outcomes. This is a must read article.

Top 10 Most Accessed Articles from The Jury Expert in 2014! Here’s a look at what your colleagues have been clicking on and reading in 2014. Have you read all of our top ten? Now you can!

Road Warrior Tips. Here’s a few more tips and tricks from our “often on the road” ASTC member trial consultants. Make sure you know the newest tips and tricks!

Who is my ideal juror? by Jill Leibold. It’s a question often asked by trial attorneys. Jill Leibold has some thoughts on turning that question around so you ask who is not your ideal juror. She also has some ideas on how you can identify both your favorites and your not favorites so you go into jury selection more confidently.

Favorite Thing for February 2015! We like a good infographic here at The Jury Expert and this favorite thing entry gives you many infographics. If you, like me, have trouble remembering the different uses of the words “affect” and “effect”—you’ll love the infographic we are featuring!

Mea Culpa in the Courtroom [a TJE Classic] by Kevin Boully. Before May 2008, when we began to publish entirely online, The Jury Expert had some very good pieces that saw limited exposure. We devoted an entire issue to “the classics” that stood the test of time but didn’t have room for this one. How do you apologize effectively in the courtroom? Kevin Boully knows the literature and offers his perspective on the importance of both apology and the importance of doing apology right.

We hope you enjoy this issue of The Jury Expert and, tell your friends, colleagues, and opponents about us!

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hannibal lecterAt least that is the headline we’ve been reading about this research. We’ve written before about the psychopath. They are typically characterized as scary and “other” than us—not like us at all. They have been described as without conscience, and yet some of them are involved in corporations rather than prison. There actually are researchers who would say that because the brains of psychopaths are abnormal—they should not be punished for their behavior. Today’s spotlight is on an article which is of that ilk. These researchers say “one in five violent offenders is a psychopath”. That number is not really surprising since prevalence rates for psychopathy have been estimated at 15% to 25% of the male offender population. The researchers continue by saying psychopaths have higher rates of recidivism and do not seem to benefit from rehabilitation. The researchers say they know “why” this happens and they hope their work will improve childhood interventions to prevent or at least decrease violent behaviors in those with psychopathy.

They begin by reviewing the literature on the cold and premeditated aggression of the psychopath and posit that the behavior is due to abnormal and distinctive brain development that can be seen from a young age. The researchers recruited 50 men (aged 20 to 50 years; reading age higher than 10 years; no history of major mental or neurological issues) to participate in the study. Obviously, they chose some men who reported they were healthy, and others with a documented history of violent offenses. The study used the fMRI to examine brains, looking for similarities and differences in the brains of healthy non-offenders and violent offenders (some with psychopathy and some with antisocial personality disorder but who did not meet the criteria for psychopathy).

Their subjects were paid minimum wage for their time and included:

12 violent offenders with both antisocial personality disorder and psychopathy, and

20 violent offenders with antisocial personality disorder but not psychopathy, and

18 healthy non-offenders.

The offenders had been convicted of various violent crimes (e.g., murder, rape, attempted murder, grievous bodily harm) and the researchers recruited them from Britain’s probation system. The non-offenders were recruited from unemployment offices and from community webpages. All participants were interviewed and scored on the Psychopathy Checklist and the offenders’ criminal records were reviewed. Participants were asked to not use alcohol or illicit drugs for 2 weeks before and during the study and were given urine and saliva tests at each research session. They were also given an IQ test (the Wechsler Adult Intelligence Scale, third edition) and completed a reactive-proactive aggression questionnaire.

The researchers reported differences in brain regions related to empathy and the lack of empathy, processing prosocial emotions (like guilt and embarrassment) and moral reasoning. These regions are also associated with the ability to learn from rewards or punishment. If you don’t experience discomfort when you do something incorrectly, you are less likely to change your behavior the next time. As in “why can’t that boy stay out of trouble?” These researchers believe they have an idea about why junior keeps messing up.

Contrary to the attention grabbing headlines, it is not that psychopaths cannot learn from punishment. And they do “register” punishment. It is just that they do not modify their behavior after being punished. The researchers believe that the psychopath may fail to consider the negative consequences of an action and instead only focus on the positive. When caught, the psychopath is punished, and often incarcerated. Upon release, however, the psychopath is much more likely to re-offend and thus, is seen as not changing behavior as the result of punishment.

The researchers recommend that parents of children with psychopathy be taught “optimal parenting skills” in order to reduce the conduct problems among their children “except amongst those who are callous and insensitive to others”. They believe this sort of disciplined parenting, which works consistently to teach conduct disordered children the consequences of their actions, can interrupt the abnormalities of brain structure and actually modify behavior (and modify the brain at an age when the brain is more plastic and susceptible to change).

There are obvious concerns with this recommendation. In short, the impact of such a label (especially for pre-teens) is frightening. The New York Times wrote a plain language article on whether you can call a 9-year-old a psychopath which generated more than 600 comments. How would parents change their view of their child if they were told the child was a budding psychopath? How would teachers change their view of a child labeled a psychopath? How would parents and teachers change their behavior if a child was given that label? We know what happens when children are diagnosed with learning disorders, labeled “slow” and so on in the school system. They are expected to perform at a lower level and they do.

There is a huge body of literature on the “halo effect” (easily found through internet searches). Among kids in school, if even well-intentioned teachers are told that a student is a slow learner or a discipline problem, they later report that the student couldn’t understand as well as others, or had problems getting along. Conversely, if the reputation of a student is positive, the teacher is likely to spend more time and attention being helpful and supportive. Labels are dangerous, because they tend to allow people to stop looking carefully and using objective judgment. And with children, it can put them on paths for good or ill that are later very difficult to change.

From a litigation advocacy perspective, what does this mean? Let’s assume that these researchers are correct and the brain of the psychopath is different, and you can see those differences from a very young age. Does that mean psychopaths should not be held responsible for their behavior? That would likely not play well with an audience of jurors since the violent crimes of the psychopath are often heinous and clearly premeditated. Could they perhaps be thought of as legally responsible but not morally responsible? It is truly a dilemma for the attorneys involved and for the jurors who hear the case facts.

From the perspective of a world in which genetic coding or fMRI data is centrally and digitally maintained for entire lifetimes, there have long been concerns about how the data could be (mis)used. Of course it is highly confidential and protected by numerous laws, but so is my credit card information, my social security number, et cetera. If it was communicated to schools, employers, medical professionals, etc., it could permanently alter opportunities to live successful lives. And if the person already has psychopathic markers, surely knowing that isn’t going to improve their ambition toward good citizenship.

Gregory, S., Blair, R., ffytche, D., Simmons, A., Kumari, V., Hodgins, S., & Blackwood, N. (2015). Punishment and psychopathy: a case-control functional MRI investigation of reinforcement learning in violent antisocial personality disordered men The Lancet Psychiatry, 2 (2), 153-160 DOI: 10.1016/S2215-0366(14)00071-6

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2015 brain functionWe’ve seen the claims that people don’t find brain scans as alluring as they used to, but here is a study that says, “not so fast!”. It’s an oddly intriguing study involving not only invoking pretty pictures of brain function but also political affiliation and how that factors in to what one chooses to believe.

Much attention over recent years has been given to “an attack on science”, with many public figures (including elected officials) insisting that evolution is a hoax, climate science isn’t real, and vaccines are somehow more harmful than helpful. [For the record, here at the Jury Room we are big-time fans of science. I want to believe that our readers knew that already.]

Researchers discuss perceptions of “soft science” and “hard science” and the general sense that “hard science” is viewed as more reliable, accurate and precise. They describe multiple experiments showing people tend to prefer “hard science” data to data offered by those in “soft science”. The question these researchers focused on was whether “hard science” data (in this case, a brain scan) would be preferred over “soft science” data (in this case, cognitive test results). They also wondered if this preference (for “hard science” or “soft science” data) would be mediated by political orientation.

In the study (106 participants, 83 women, 23 men; ranging in age from 18 years to 47 years with an average age of 19.6 years; 77 identified as White, 17 said they were African-American, and “five or fewer” identified as Asian American, Latino/Latina or other) completed a pretest online which included two questions about their political preference (both used by the American National Election Studies).

Generally speaking, do you think of yourself as a Democrat Republican, Independent, or something else?

If you selected Democrat or Republican for the previous question, would you call yourself a strong Democrat or Republican or a not very strong Democrat or Republican?

Only those participants who identified as either Democrat or Republican were eligible to participate in the study which they were told would involve them reading about an ethics violation and then making judgments about the case.

In the study itself, participants read a one-paragraph case description about a politician elected to office in a geographically distant state who had recently been cited for three ethical violations. The paragraph informed them the ethics committee had questioned the politician’s memory and asked him to have an evaluation done on his memory to determine if memory issues would prevent him from carrying out his duties as an elected representative. Finally, the participants read that if the testing determined the politician was impaired, he would be forced to resign and the governor of the state would appoint a replacement to serve until the next election. The paragraph description concluded by saying the governor had announced that any replacement appointees would be members of the same political party as the governor.

There were (you knew this was coming) several variations in the information the participants read about the politician and his situation.

Half of the participants read that the politician tested was a Democrat and the governor of his state was a Republican. The other half read that the politician was a Republican and the governor of his state was a Democrat.

The researchers paid attention to the political identification of the participant and if the participant said they were Republican and read about a Republican politician—they were placed in a group for analysis that was labeled in-group. If, on the other hand, a Republican participant read about a Democratic politician, they were placed in a group labeled out-group for analysis purpose. (The same applied vice versa when party preference is opposite.) Further, if the participant endorsed a strong affiliation politically, they were classified in the strong political identification group and if they endorsed a weak affiliation politically, they were classified in the weak political identification group.

After reading the initial description of the situation, all participants read a two-paragraph description of an expert evaluation of the politician. The expert mentioned in this description was a “Dr. Daniel Weinberger”. The participants received differing information about how Dr. Weinberger had evaluated the politician’s cognitive function.

Half the participants read that Dr. Weinberger reviewed the politician’s medical history and gave him verbal or paper and pencil tests (commonly used by neuropsychologists).

The other half of the participants read that Dr. Weinberger reviewed the politician’s medical history and conducted an MRI of the politician’s brain. (It is important here to note that no MRI images were shown. All the participants saw were words describing the process and then, the outcome.)

The second paragraph offered a description of the results of the evaluations in ways consistent with either verbal or paper and pencil tests or an MRI. For all participants, the second paragraph ended with identical statements saying that the expert concluded the “politician was suffering from beginning-stage Alzheimer’s disease, that symptoms will continue, and the symptoms will interfere with the politician’s ability to perform his duties”.

And here are the findings:

Biologically based information (i.e., the brain MRI) was viewed more favorably (69.8% said the evidence the politician had early stage Alzheimer’s was strong and convincing) than the behaviorally based (i.e., cognitive testing) information (only 39.5% said the evidence the politician had early stage Alzheimer’s was strong and convincing).

When asked to identify the one most important reason they felt the way they did about the evidence presented, those who saw the behavioral evidence said it was subjective  and perhaps unreliable or irrelevant—more than 15% said the neuropsychological testing was unreliable or irrelevant. Not a single participant who saw the biologically based evidence said the MRI evidence might be unreliable—in fact, they saw it as objective, valid and reliable. (Anyone with any knowledge of the validating research and very detailed manuals accompanying psychological tests might find this, as the researchers say, “perplexing”. Of course, those who have that knowledge base would not qualify for inclusion in this study.)

Those participants who were in political out-group assignments (that is, Republican participants who read about a Democratic politician or Democratic participants who read about a Republican politician) were more likely to discount the behavioral science evidence than those in political in-group assignments.

In short, in this study, participants saw the MRI as more reliable and relevant than the cognitive testing, and those with strong political identities discounted the cognitive testing even more than those without the strong political sense of self.

Despite the reality that Alzheimer’s would always be diagnosed with cognitive testing, and brain scans used after testing was completed to rule out other explanations for impairments identified by testing—these participants preferred the verbally described brain images of “hard science” to the low-tech paper-and-pencil tests of the neuropsychologist. It’s a finding that underscores the importance of expert testimony informing jurors of how a diagnosis is made so they know if testing was performed because of the “wow” factor of a colorful MRI or to offer a research-based assessment of brain/memory impairment.

In other words, don’t believe everything you read– jurors can still be seduced by what looks like “hard science”. Your task is to show them what scientific findings are truly backed up by years of scientific research and development.

Munro, G., & Munro, C. (2014). “Soft” Versus “Hard” Psychological Science: Biased Evaluations of Scientific Evidence That Threatens or Supports a Strongly Held Political Identity. Basic and Applied Social Psychology, 36 (6), 533-543 DOI: 10.1080/01973533.2014.960080

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beeper vs iPhoneBack in the early ‘90s, I had a job that required me to carry a beeper. The constant awareness that I was “on call” was a source of strain and led me to complain I was never really “off duty”. Flash forward to this century and I cannot imagine being without my smart phone. In fact, I often double-check to be sure I have my iPhone when I am on the go so I never leave it behind. It’s a whole different sort of anxiety about being separated from my iPhone than I felt toward that beeper.

And I am not alone. Today’s researchers examine how many of us are anxious when separated from our instant access to email, texting, the internet, and the ability to make phone calls. They go so far as to say “cell phone separation can have serious psychological and physiological effects on iPhone users, including poor performance on cognitive tests”. Further, they say, “iPhone are capable of becoming an extension of our selves such that when separated, we experience a lessening of ‘self’ and a negative physiological state”. Seriously?

Researchers conducted what they call a “multistaged experiment”. They used a survey phase to recruit 208 participants from three separate journalism courses. Of those 208, 136 completed the online questionnaire to allegedly “understand media usage among a sample of college students”. (In truth, the researchers were looking for iPhone users and found 117 iPhone users in the 136 who completed the survey.)

Those 117 iPhone users were contacted again and told they could participate in a second study for additional course credit and a $50 gift card. Of the 117, 41 (73% female, average age 21.2 years, 88% White, 5% Black, 5% Asian and 2% Hispanic) agreed to participate in a 20 minute experiment.

The purpose of the 20 minute experiment was to see what happened to “perceived level of self, cognition, emotion and physiology” when the participant was separated from their iPhone and the iPhone was ringing. However, the participants were told they were testing the accuracy of a new blood pressure cuff while completing word search puzzles. The researchers had the participants complete word search puzzles while hooked up to the blood pressure cuff and either having their iPhone or not having their iPhone (since it was allegedly interfering with the blood pressure cuff operation and so the participant was asked to set their iPhone on a table four feet away from them).

The researchers found that participants separated from their iPhones had increases in heart rate, increases in self-reports of feeling unpleasant, found fewer words in their word search puzzles, increases in blood pressure levels, and higher self-reported anxiety.

The researchers conclude that being separated from your iPhone results in poorer cognitive performance and thus you may not want to be separated from your iPhone during tasks requiring significant mental performance (think test-taking, meetings, classes, and even perhaps, jury duty). The distraction and loss of your sense of self when separated from your iPhone may make you perform more poorly on those tasks. (Somewhere, Steve Jobs is smiling.)

While we wonder if this level of intrusive anxiety and poor performance is unique to college students (as measured by the FOMO scale) who have grown up with the constant presence of various cell phones and smart phones, it does raise the question of whether jurors are distracted from their deliberations by the court instructions to not use the internet, or post status updates about their experiences, or communicate with anyone, or quickly look up the definition of a word or phrase. And in Federal courts, you are usually banned from bringing the phone into the courthouse.

Being told to not use your phone is along the same lines as placing your iPhone out of your reach and not being able to answer it. Does it have the same effect? Are jurors struggling with distraction over not being able to use their phones? If yes, all the more reason to tell them why we don’t want them to use their smartphones. It probably won’t make the distraction go away, but it may help them understand why it is important.

Clayton, R., Leshner, G., & Almond, A. (2015). The Extended iSelf: The Impact of iPhone Separation on Cognition, Emotion, and Physiology Journal of Computer-Mediated Communication DOI: 10.1111/jcc4.12109

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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002

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