Archive for the ‘Case Presentation’ Category
It’s a constantly moving target. Just over a year ago, we wrote about this on-going question and cited a Gallup Poll saying 65% of Black Americans have no preference when it comes to labels used to describe their racial or ethnic group. The authors of today’s research article would disagree. They say there are consequences (and loads of meaning) behind the two labels.
Stephen Pinker first coined the phrase euphemism treadmill in 1994. The phrase refers to a descriptive term that was once acceptable, but has now become pejorative. An example would be the word “crippled”, replaced by “handicapped”, which was then replaced by the phrase “person with disabilities” or, in some circles, “differently challenged”. When you write, and use an outdated, once acceptable but now pejorative phrase, you run the risk of being seen as biased, unaware, old school, or downright insensitive.
So, in 2013, Gallup said it really didn’t matter. Today’s writers demonstrate, via four separate studies, that we have very different associations to the labels “African-American” and “Black”. Specifically, we make assumptions about “Blacks” being lower in social status, less educated, and less competent than the “African-American”. In brief, here are their findings:
The label “Black” signals lower social class and status than does the label “African-American”. Further, the label “Black” evokes more negative stereotype content (as well as assumptions of lower status and less feelings of warmth) than does the label “African-American”.
Media articles on crime reports are more negative in emotional tone when they use the label “Black” then when they use the label “African-American”.
Whites view a criminal suspect more negatively when s/he is identified as “Black” rather than “African-American”.
The dilemma with these two polarizing labels (“Black” and “African-American) is that White observers are attaching presumptions based on racial labels. Instead of using either of these long-standing descriptors, these authors propose the use of a new descriptor: Americans of African Descent (AADs). Their belief is that use of a new label will short-circuit the stereotypes (positive and negative) that accompany the currently used labels and require judgements to occur based on the individual. Whether this will catch on or not, is anyone’s guess. But, staying on top of trends and labels is an important part of the work for all of us.
So, is it “Black” or is it “African-American”?
Or, should it perhaps be “Americans of African Descent”?
As mentioned above, Gallup says it doesn’t seem to really matter to the target individuals being described. But today’s authors say it matters a lot to the listener as “Black” and “African-American” have become cognitive shortcuts for many of us. So what to say?
The cynical might say it all depends on the reaction you want to evoke in the listener. That would mean that if you want to evoke a less positive attribution to a person, use the word “Black”, and if you want to imbue them with more of an upscale aura, use “African-American”. Either can be used to evoke the more negative or the more positive associations.
Our guess would be it’s a lot more nuanced than that. While there were a few more than 370 participants across four studies, we would like to see a bit larger sample to ascertain whether this stereotyping of racial labels occurs across the country or if it is limited to certain regions. We also don’t really know what stereotypes might arise if someone was described as an “American of African Descent”. Further, who knows how long the new label will encounter resistance, or how and when it might be co-opted by time.
In short, it’s an intriguing variable to consider. Are we indeed evoking racial stereotypes when we describe individuals as either “Black” or “African-American”? Is that what we really mean to do?
Hall, EV, Phillips, KW, & Townsend, SSM (2014). A rose by any other name? The consequences of subtyping “African-Americans” from “Blacks”. Journal of Experimental Social Psychology.
Brittany Maynard, the 29-year-old woman with an aggressive and terminal brain cancer who announced her intention to take her life, has put a face on the “death with dignity” movement. Her announcement that she would take her life thanks to Oregon’s right to die laws, spurred many “offers” of advice for her. Cannabis for cancer, stem cell therapy, choose life, and multiple offers of vitamin cures, dietary changes, and other ideas proliferate in comment sections.
Others in the comment sections express the idea that Maynard herself comments on in her video–i.e., no one else can know what is best for her and many comment they wish this option of choosing the time of death had been available to their loved ones who died of cancer. Maynard initially said she would die on November 2, but then, as the date approached, changed her mind saying it simply “wasn’t the right time yet” although she ultimately did take her life on November 1. Brittany Maynard has achieved her goal of a national discussion on death with dignity.
It’s an issue that the Pew Research Center also highlighted recently, saying it is an issue that divides America. Here are some of the attitudes Pew reported in their October 22, 2014 report on American attitudes toward doctor-assisted suicide laws.
While 2/3 of Americans say there are circumstances where a patient should be allowed to die, there is more division over allowing doctor-assisted suicides for the terminally ill. Pew says Americans are almost evenly split on the issue “with 47% in favor of such laws and 49% opposed. Views on doctor-assisted suicide are little changed since 2005.”
Surprisingly, there is no real difference in attitudes toward doctor-assisted suicide by age group: “Maynard’s generation is no more supportive of such laws than are older Americans: 45% of those ages 18-29 approve of assisted-suicide laws, while 54% oppose them.”
It’s an intriguing topic to consider in the context of jury selection. We agree with the Pew finding that young Americans have given little thought to end of life issues. But our experience has been that while our mock jurors have abstract beliefs about hot-button issues, when they see and hear the facts of a story and are faced with the obstacles and experiences of a Plaintiff–they often change their minds about how they would feel “in the Plaintiff’s shoes”.
One especially powerful pretrial research project we conducted showed a “day in the life” video of the Plaintiff who was paralyzed and had made clear his wish to be allowed to die (repeatedly). One male juror quietly muttered that the Plaintiff could not even raise a hand to achieve his goal. Others grimly nodded. In that case, there was consensus in the deliberation room as to what “should” be allowed to happen.
It’s a powerful thing to consider. We can “know” how we think we feel. But once we are in a horrible position, like Brittany Maynard has faced, the choices we will make are ones that could well be foreign to use before we were forced to consider them. Telling your client’s story without the use of “hot button phrases” that will keep jurors from listening could result in an outcome unexpected if you are predicting juror behavior from current research polls.
You are likely familiar with the fact that African-Americans and Hispanics often receive harsher sentences than do White defendants. So where do you think the undocumented immigrant or non-citizen would fall in that lineup? The undocumented receive the harshest sentences and non-citizens (who are in the country legally) come in second. Why? The authors of this paper have a hypothesis: we jury-eligible citizens are simply afraid, and are trying to maintain control of our country.
“…dominant group members feel threatened economically, politically, criminally, or culturally, and will step up efforts to maintain control when minority group populations are increasing.”
You may be surprised to know “more than 30,000 non-US citizens from approximately 150 countries” have been sentenced to time in US prisons by the federal courts each year since 2008. In fact, about half of all the offenders sentenced today in our federal courts are non-US citizens and a “large proportion are from Latin America”–leading some scholars to question if there was a “Hispanic penalty” in sentencing. Researchers examined archival data from US federal courts (using the US Sentencing Commission’s Standardized Research Files) in an attempt to examine if sentencing disparities existed between citizens and non-citizens. The findings are nothing less than stunning.
Compared to US citizens, non-citizen offenders are “over four times more likely to be incarcerated, and this effect is larger than the effects for race, ethnicity, gender, age, education, being convicted at trial, and any of the offense types”. (In other words, being a non-citizen trumps all the other extra-legal variables your client may embody.)
Non-citizens receive “roughly an additional 3.5 months of incarceration” when compared to citizens. “As a point of comparison, Hispanics receive between one and two months of additional prison time compared to whites.” This may sound relatively small, but as the authors point out, “When combining the citizenship penalty across the incarceration and length decisions, the cumulative increase in incarceration is 5,765 total prison years for 2008 alone”. While non-citizens receive higher sentences compared to citizens, the undocumented immigrant is at even higher risk for severe punishment than the legal immigrant.
In response to the questions raised about the “Hispanic penalty”, the researchers show that the “magnitude of the citizenship penalty is over four times stronger than Hispanic ethnicity” when it comes to sentencing. They go on to report that Hispanic ethnicity really explains almost none of the overall citizenship effect. These authors suggest that the harsher punishments observed for Hispanic defendants is more a function of their citizenship status than of their ethnicity.
Every ethnic group lacking US citizenship (including white non-citizens) receive harsher punishment than do defendants who are white citizens. For all races, citizens are punished less harshly than non-citizens.
As concerns about immigration have increased, so has the citizenship penalty. That is, the length of prison sentences assigned to non-citizens has grown substantially as the country has become concerned over the “dramatic influx of non-citizens and undocumented immigrants over the past two decades”. In areas where there are a higher influx of non-citizens, there is a higher “citizenship penalty” in sentencing.
From a litigation advocacy perspective, this article is useful to us in many ways. As the authors say, “citizenship appears to trump race and ethnicity when determining punishments for those who violate US law”.
Reading can help you obtain a sentence for your client that is consistent with those assigned to white defendants rather than incurring a citizenship penalty.
It can be used to educate jurors involved in sentencing decisions and judges making decisions on sentencing if your client is found guilty.
And unlike many statistically heavy articles that illustrate their findings with graphs and charts that are completely incomprehensible–this one makes the point clearly. The figure below (taken from the article itself) illustrates the differences in sentencing you see when you examine only race rather than incorporating citizenship status. This figure, presented and explained piece by piece, communicates clearly what happens with sentencing when the defendant is a non-citizen. Bias comes out in multiple ways we cannot see and, as these researchers clearly illustrate: citizenship trumps race and ethnicity.
Light, M., Massoglia, M., & King, R. (2014). Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts American Sociological Review, 79 (5), 825-847 DOI: 10.1177/0003122414543659
Our mock jurors (and many others as well) tend to believe the eyes are the “window to the soul” and that by simply looking at the eyes of another, they can intuit truthfulness and character. But it can be even easier! Just look at the face and you can actually assess introversion/extroversion, competence/incompetence, dominance/submission, and even trustworthiness/untrustworthiness. In short, if you are trustworthy, you have a more feminine face and tend to evidence positive emotions. If you are not trustworthy, you have a more masculine face and tend to evidence negative emotions. (See illustration above for an example. Doesn’t that woman on the right look more trustworthy than the man on the left?)
Unfortunately, this isn’t just some goofy research that we can make fun of and not take seriously. It is an example of the way we quickly look for shortcuts to assess character and personality traits. We all do it. And further, the consequences for the individual being judged are measurable and can be positive or negative. We know, for example, that attractive people get many benefits for simply being attractive. Apparently, we also have stereotypes about who appears trustworthy and who appears competent. We can take a glance at a face and make many assumptions. The problem is that our assumptions may be very wrong and it is very difficult to change first impressions.
The paper that forms the basis of this blog post was written to summarize the work on “facial morphological traits” and how they are linked to various social outcomes. While the early “science” of physiognomy (a system for identifying personality types and even criminality based on facial characteristics) has long been debunked, we still use many of the same sorts of shortcuts to make assumptions about each other. The research has shown many disturbing (and yet not hard to believe) results.
Politicians who possess particular facial characteristics (e.g., those viewed as reflecting competence and sociability) are more likely to win elections.
CEOs with faces that appear competent are more likely to be hired by large successful companies, even though their performance is no better than less competent-looking fellow applicants.
If you are in the military, you are more likely to be promoted to higher rank if your face appears dominant.
Defendants who have certain facial characteristics (e.g., appearing trustworthy or “baby-faced”) are less likely to be convicted of a crime than their peers who lack those characteristics.
There are multiple other findings that are clear examples of how you look being linked to social outcomes. The authors comment that there is causal evidence (not just correlational) showing facial appearance as influential in voting, economic exchanges, and legal judgments. We leap from facial appearance to character judgments of trustworthiness, competence, introversion, and dominance.
From a litigation advocacy perspective, this is obviously problematic if you have a deserving client who is not fortunate enough to have been born with the most acceptable facial characteristics. However, an intriguing fact is embedded in the article.
One study found that voters who have limited knowledge are more likely to vote for politicians with the most competent-looking faces. More knowledgeable voters showed no such tendency.
This bodes well for us. Educating jurors and finding likable things to show them about the client should mitigate first impressions. We often talk about the importance of using universal values in witness preparation and case narrative. The power of our stereotypes as we judge each other is shocking and illustrated clearly in the examples of trustworthy, extroverted, competent and dominant faces in the article itself. We need to pay attention to what we can do to reduce the biasing impact of facial appearance. The authors encourage awareness of just how challenging this goal will be:
“This is a challenging task because people are naturally inclined to draw inferences from faces to an extent that they may find it difficult to inhibit these tendencies. On the positive side, the evidence suggests that people sometimes rely on facial appearances less when they are armed with more relevant and valid types of information. Thus, in some contexts, educating people might be sufficient to reduce facial stereotyping. In other contexts, however, more research will be necessary to identify the best ways to mitigate the biasing influence of facial appearance. For instance, it still remains to be determined how justice can be truly blind – that is, how judges and juries can disentangle case-relevant facial information (e.g., expressions of remorse) from information that should be irrelevant to a case (e.g., facial morphological features perceived as criminal-looking).”
Olivola, C., Funk, F., & Todorov, A. (2014). Social attributions from faces bias human choices Trends in Cognitive Sciences, 18 (11), 566-570 DOI: 10.1016/j.tics.2014.09.007
Image taken from article referenced above.
Many have written about men being over-confident in comparison to women–although all of us may be more confident in our abilities than we generally should be. Prior research has shown us that men are more confident than women, and that happy people tend to view themselves more positively and happy people actually often perform better on quizzes and other tasks. So today’s researchers asked 107 undergraduates recruited from introductory courses required of all students (57 male and 50 female) to participate in their study.
First, the participants completed a half-hour quiz containing 20 trivia questions (samples of which can be found here) and 10 arithmetic problems. Then half of them watched nature scenes from Alaska’s Denali National Park while half listened to Robin Williams Live on Broadway comedy sketch. (This experiment was conducted several years prior to Robin Williams’ death.) After watching these video stimuli, the participants were asked to estimate how well they had done on the quiz and given financial incentive to guess correctly. Participants were offered $5 for guessing precisely correctly, $3 for guessing within three points, and just $1 for guessing within six points of their actual score.
And here is some of what the researchers found:
Men were more confident than women (overestimating their scores by about four points to women’s overestimation of two points on average).
Men who watched Robin Williams’ stand-up comedy performance overestimated their scores by 2 points more than those men who watched the nature scenes.
Women who watched the comedy performance were in no way different in terms of estimation of their test scores than were women who watched peaceful nature scenes.
The researchers think men and women regulate their emotions differently (although both genders found the Robin Williams video funny) and that men may be more grandiose after watching a master of comedy, thus inflating their score estimates even more. The researchers suggest we can all benefit from an awareness of how our mood affects our behavior. They suggest employees may wish to (prior to important decisions or meetings) “proactively put him- or her-self into a good mood”, but evidently there are limits to how far that should be taken. And they do not suggest concrete strategies to achieve this goal.
From a litigation advocacy perspective, this research offers a caution to male litigators. It is important to maintain your confidence, but don’t get carried away. The end result could be, although one study of 100 undergraduates is hardly conclusive, that jurors may see you as cocky and arrogant (i.e., over-confident) rather than a sincere advocate for your client. At the very least, know that in order to connect with your jury you need to be able to relate to where they are (emotionally and cognitively), and the jurors haven’t likely be watching comedies on the internet while they wait for the trial to get underway. Robin Williams is likely to put you over the top.
Ifcher, J., & Zarghamee, H. (2014). Affect and overconfidence: A laboratory investigation. Journal of Neuroscience, Psychology, and Economics, 7 (3), 125-150 DOI: 10.1037/npe0000022