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“Glasses can’t hide neck tattoos”
It’s been more than a year since we first wrote about the “nerd defense”. Essentially, this is the practice of sticking eyeglasses on your allegedly dangerous defendant to communicate their innocence to members of the jury. But now, the Washington Post has finally picked up the practice and we thought we’d mention it again.
Here’s how the Post describes the evolving use of the “nerd defense”.
“Attorneys say inmates trade them before hearings, while friends and family sometimes deliver them during jailhouse visits. Some lawyers even supply them themselves.
They often escape notice — as was the case with another murder defendant who wore glasses with thick, black frames during a summer murder trial. Convicted of first-degree murder in August, his glasses never came up in court.
But the eyewear sported during the trial of Carter and his friends, which began its fifth week in D.C. Superior Court on Tuesday, has attracted attention. Court observers say prosecutors seized an opportunity to suggest to jurors that the defendants were dishonest in misrepresenting their appearance.”
Some would say this is simply another example of defendants cleaning up prior to court appearances–they come in dressed in suits and with haircuts–why not eyeglasses? Others say it is going too far–like the furor over the court order to pay for makeup to cover a defendant’s racist face and neck tattoos in Florida.
But there is a flaw in the strategy that is pretty odd to overlook. The entire premise of the ‘nerd defense’ is based on a distortion of the original research (cited below). The research suggests that jurors perceive the glasses-wearer as being smarter and less threatening, but it isn’t likely to have a significant affect on the verdict. When we initially blogged about the study, it was this misunderstanding that we found most interesting.
“Our line of research suggests that the presence of eyeglasses on a defendant may significantly affect verdict outcome. However, this effect is likely to be small and indirect. In both scenarios, the presence of eyeglasses increased ratings of defendants’ intelligence. For the violent crime scenario, this increase was associated with less guilty verdicts. Eyeglasses also decreased ratings of defendants’ as threatening; however, this decrease was not significantly related to verdict. Thus, how intelligent a defendant appeared was a better predictor of verdict outcome than how physically threatening he appeared. Future research should examine if other indicators of intelligence (level of education, vocabulary, etc.) produce the similar effects.” See the full article here.
In other words, the glasses had a small pro-defense effect. No get-out-of-jail-free magic. Yet, trial lore spreads and criminal defense lawyers have defendants in eyewear for court proceedings.
We don’t think jurors are that easily fooled. Instead, we concur with the commenter on the Washington Post article from whom we stole the title of this blog post: “Glasses can’t hide neck tattoos”! [They can’t hide character, either.]
Brown, M. J., Henriquez, E., & Groscup, J. (2008). The effects of eyeglasses and race on juror decisions involving a violent crime. American Journal of Forensic Psychology , 26 (2), 25-43
The new issue of The Jury Expert is up!
It’s been a while since we touted The Jury Expert here. It’s a terrific publication for learning of the latest in litigation advocacy. Keene Trial has been instrumental in the rebirth of The Jury Expert with Rita Handrich serving as Editor since the online debut in May, 2008.
Articles in The Jury Expert are written by ASTC-member trial consultants and researchers working in areas relevant to courtroom persuasion and advocacy. So, in one place, you get the latest in research, practice applications, and strategies to inform your work. And, did we mention it’s free and presented as a service to the litigation community by the American Society of Trial Consultants? You’ll want to bookmark the site (if we say so ourselves)! Just think of it as our gift to you…
Here is the latest Table of Contents for the issue publishing yesterday.
Intellectual Property Cases: Ten Lessons From Pre-Trial Research
by Ellen Brickman and Julie Blackman of DOAR Consulting
Ten lessons learned from mock jurors participating in pre-trial research on intellectual property cases.
Principles in Persuasion: Beyond Characteristics of the Speaker
by Brad Bradshaw of Bradshaw Litigation Counseling
What do you need to know about persuasion? The author of a recent book on persuasion summarizes the research so you know what to do now.
The Art of Rehearsing for the Courtroom
by Suann Ingle and Nancy Geenen of Suann Ingle Communications
Does it matter if you actually rehearse for mock trials? The answer is yes and these two consultants tell you why as well as the all-important ‘how’.
Vocal Pitch in the Courtroom
by Jessica Boyle and Stanley Brodsky of the University of Alabama
High voice, low voice, male voice, female voice? What the research says about your vocal pitch and persuasion in the courtroom.
Road Warrior Tips (March, 2012)
Submitted by various ASTC frequent flyers
Do you know what the nastiest, germiest thing in your hotel room is? Think again. And learn how to avoid taking bedbugs around the country with you! These two tips and much more more in this growing category.
Harming Children: Uncovering and Overcoming Bias When Defending Sex Crimes Against Children
by Beth Bochnak of NJP Litigation Counseling (formerly the National Jury Project)
In our last issue we focused on ‘sensitive topics’ and approaching them successfully. Here’s another one: an SJQ (and the rationale for various questions) for defending those accused of sex crimes against children.
A Big Book Filled With Big Ideas
by Steve Perkel of Archer & Greiner, PC
A review of Daniel Kahneman’s (500 page!) tome Thinking, Fast and Slow. What can we learn from this book to inform litigation advocacy. Steve says “a lot” but we have to give it time to percolate.
Weird Science: How Misperceptions of Litigation Consulting Can Drive Juror Cynicism
by Ken Broda-Bahm of Persuasion Strategies
You probably saw the “Why does everyone hate jury duty?” ‘surveys’ floating around the web. A trial consultant takes a look at the original article questioning our system and ponders how cynicism plays a role in the responses.
Irises, Tulips, Last Minute Scrambles & Gratitude
from Rita Handrich, Editor of The Jury Expert
Usually we keep this stuff from you. This issue though, a behind-the-scenes look at what members of the ASTC (American Society of Trial Consultants) are really like. Famous old saying: “Character will out”.
Are female stalkers less likely to be violent than male stalkers?
It’s been almost a year since we first wrote about female stalkers. That was research with a US sample. Now we see some new research out of Sweden and Australia with some interesting similarities and contrasts.
This new research provides a terrific reference list of prior work done on women stalkers and reports a high rate of psychosis among women stalkers. Delusions are the most common symptom in two of the three major studies completed so far. Half of the women stalkers described in prior research had character disorders and women were more likely than men to target a former professional contact (like mental health professionals, teachers or lawyers!). It appears that male stalkers are less particular, and more likely to target strangers. Women stalkers seek intimacy.
Researchers in the current study wanted to see if they could identify predictors of violence in female stalkers. They gathered a sample of 71 female [50 from Sweden] and 479 male [289 from Sweden] stalkers from both Sweden and Australia. Women accounted for about 9% of stalkers in both countries. This paper is full of important information and we are going to summarize for brevity.
There were no significant differences between the Swedish and Australian samples with regard to target gender, age, or how long they stalked their targets.
Female stalkers were, on average, 37.4 years of age (not that different than male stalkers at 37.7 years).
Females were less likely to have a criminal history (28%) than were males (63%) but they were equally likely to have a restraining order concerning their current target (28% versus 35%, respectively).
Mental disorders were prevalent (women, 84%; men, 79%) with women more likely diagnosed with personality disorder (71% versus 57%) and borderline personality disorder being most common among the women (33%). Men and women were equally likely to be diagnosed with Axis I mental disorders (such as depression, anxiety, bipolar disorder or substance use) but women stalkers were slightly (but not significantly) more likely to be psychotic (38% to 20%).
Women more often targeted someone known to them (94%). Women were more likely to stalk professional contacts (13% vs 5%); friends/family members (13% vs 5%); or neighbors (14% vs 5%). Men were more likely to target an ex-intimate partner (60% vs 40%); or strangers (17% vs 6%). Women were also more likely to engage in same-gender stalking (50% vs 13%).
More than half of the women stalkers (52%) were classified as “rejected stalkers” where the stalking arose after the breakdown of an intimate relationship. One-third (36%) were classified as “resentful stalkers” where the stalking was an effort to punish the victim for a perceived slight or mistreatment. Another group (9%) were “intimacy seekers” who wished to establish a “loving and intimate” relationship with the victim.
Female stalkers were more likely to communicate via email, letter or fax and less likely than male stalkers to physically follow their target.
Female stalkers in this research stalked for a duration of between one week and 11 years (!) with a median stalking time of 31 weeks. Men, on the other hand, stalked between 1 week and 20 years (!) with a median of 21 weeks.
There was no difference in frequency of violence among female (23%) stalkers and male stalkers (31%).
Women’s violent behavior ranged from slapping and pushing to serious assaults.
Violent female stalkers were more likely to be abusing substances, to be a former sexual intimate and to have a “rejected” motivation for the stalking.
Women stalkers who were “resentful” were much less likely to be violent and violence, in general, was related to following or accosting the victim.
Both male and female stalkers were significantly more likely to be violent towards an opposite-gender target; women were more likely to be violent when stalking with a desire for “intimacy”.
While victims of female stalkers often report they are taken less seriously by the authorities, there is no reason for that perspective. Women stalkers are just as likely as male stalkers to be violent. If you or your client are being stalked by a female who is a former romantic partner, there is a high risk for violence–especially if you are the one who is viewed (by the stalker) as ending the relationship.
This study confirms many of the findings in the US sample we wrote about last year. Stalking, whether by a male or female, needs to be taken seriously via all remedies possible. Education about the differences (or rather the lack thereof) between male and female stalkers will be critical in convincing potential jurors of the seriousness of these threats. Addressing embarrassment or shame at being the male victim of a female stalker is also an important endeavor. There is nothing flattering or amusing about this.
Sometimes litigation advocacy challenges our beliefs about the ‘gentler’ sex. This is one of those times.
Strand, S., & McEwan, T. (2011). Violence among female stalkers Psychological Medicine, 42 (03), 545-555 DOI: 10.1017/S0033291711001498
Romantic stories on every corner
Romance has no place in trial, right? Emotion is seen as manipulative, and what jurors really want is the facts. We have made the point repeatedly, and we stick by it. Sort of. But our position is nuanced.
Jurors want– even more than facts– to affirm their strongly held values. [I hope regular readers of this blog will find that theme familiar.] And sometimes those values can be viewed as emotional, romantic, or even sappy. I remember during the 1980’s, during a time when drive-by shootings and gang violence was on the news almost daily, a bumper sticker that offered the ironic slogan “Practice random acts of kindness and senseless beauty”. It was surprising, charming, hokey, and idealistic. But it made people smile. CNN’s extremely popular series on American Heroes, documenting everyday people doing extraordinarily generous things, is a blockbuster ratings booster, as well as a real tear-jerker. We like it.
Trial stories that engage jurors’ values and aspirations won’t change the facts. But they will have jurors rooting for the person who they attach to those values, whether it is a witness’ testimony, or a clients position. Modesty is a virtue, but so are generosity, humanitarianism, selflessness, heroism, valor, and courage. Most of us have a few isolated, proud moments that can fit into these categories without too much strain, and sometimes they can color people’s impressions even if it isn’t the dominant feature of the life story.
Everyone was deeply moved by “Schindler’s List”, without thinking about whether Oscar Schindler was a nice man, or a broader assessment of his life (which was not a uniformly flattering picture). What he did for his workers (concentration camp prisoners who were kept alive by his efforts) was extraordinary and admirable. The book and film are breathtaking. But it is also true that he was a member of the Nazi party, a spy for the Abwehr, and an opportunistic businessman. Yet he will be remembered always as hero and protector to 1,000 Jewish laborers kept alive to work in his factories. He did more for them than he needed to, and he became devoted to their survival. The story of Schindler’s List is a very noble chapter in a long, uneven, and complex life.
A witness at your trial can be “the guy who was in the Peace Corps” or “the woman who volunteers at the YMCA”, even though those facts are unrelated to the content of their opinion. The stories can reflect components of jurors’ strivings, even if the virtue is unrelated to the issue at hand.
Imagine a trial in which Oscar Schindler is charged with vehicular manslaughter in a drunk driving tragedy. Or being sued in a contract dispute at his enamelware business. Do you imagine the jury would view him the same way they would any other businessman? Would the deliberations be dominated by the trial issues or the character he displayed through his noble defense of his workers? I can only imagine the discussion being redirected to the facts, only to have jurors saying “Well that’s true, but do you want to punish the guy who also did…”
And sometimes they can sweep across the globe. This blog was actually inspired by a news article I read recently about the Little Free Library (see photo above). Three years ago Todd Bol wanted to create a tribute to his mother, who had been a school teacher. He constructed a weatherproof box, placed it on a post outside his home, and filled it with books. He put a small sign on it, and encouraged passers-by to take a book, and return a book. Neighbors loved it. They offered to build one of their own, and it spread.
It has gone viral. Now Little Free Libraries have found their way into at least 28 states and 6 countries (including Ghana, Australia, and Afghanistan. They are in front of homes, shops, and clinics. For those who are handy, Bol’s website offers suggestions and construction plans. For those who are not, you can buy a pre-built Little Library. If you aren’t handy but can’t afford one, they may be able to help you out. If you want, you can donate money to help the cause.
The take-away here is that this is a story of a modest virtue– honoring his mother– and a selfless spirit that will dominate Todd Bol’s identity for the rest of his life. I hope he is a wonderful person, but even if he isn’t, no jury in the world would ever forget this part of his story.
Feeling good about yourself? Allow us to introduce our mock jurors!
Most of us believe we are able to manage how we come across to others. Especially in a 6 minute time frame. So. It’s a wake-up call to have a group of mock jurors, representing a cross-section of your community– quickly and with eerie accuracy– rip aside the veil.
Recently we conducted a mock trial in which 6-9 minute excerpts from deposition videos were shown to mock jurors. And here is what the jurors said about various witnesses:
Fidgety, lots of “you knows”. Not confident in his delivery. He’s being methodical and accurate in his recollections but his style doesn’t leave overall good impression.
His hair was distracting. He slumped over too much, a bit disheveled.
If he says “you know” one more time, my ears will bleed.
Looks like Newt Gingrich but without a lot of confidence; very flat.
The repetition of use of words such as ‘you know’, ‘um’. It is possible that he felt nervous but seemed likely he was trying to recall a fabricated story.
When someone is telling the full truth, they often say it with more conviction and less hesitation.
Looked like he was chewing gum. Also that he looked to the side as if looking for assurance or guidance.
Shifty. I wouldn’t buy a car from this salesman.
This was not a good witness. He said I don’t recall too much and his body language made him look dishonest.
Doesn’t seem to recall too much or many of specifics. He really doesn’t seem to recall or have total recall of conversations.
Lots of “if” disclaimers. Seemed a bit defensive and foggy in recollections. Lots of pauses, as if trying to decide whether to be truthful.
He was constantly shifting around and moving his eyes like a kid caught by his parents. He did not give helpful information.
Mumbling makes him seem dishonest.
Came across as shady and arrogant.
Our clients (who were described in the comments above) tried to act amused by the criticism, but were clearly were taken aback. Were these jurors the first people to ever think such things about these people? Maybe not. But it was a level of candor that was rare indeed, and one that they absolutely had to hear. Speech patterns, bad habits such as fidgeting/gum chewing/poor posture, hairstyles, character aspersions–nothing was overlooked and no opinion was held back by the mock jurors. The witnesses had come across badly but it wasn’t because they were bad people. They were angry about being asked what they considered stupid questions for what they considered a frivolous lawsuit . They didn’t appreciate how their attitude could be used by the opposition.
The bad news was they were embarrassed and taken aback. The good news is they are ready for witness preparation practice. Their attorneys understand the need for a “back story” to prepare jurors for the reasonable distress that the clients feel about being wrongly accused.
It was difficult to sit through but ultimately very worthwhile. One of our long-time clients says “jurors almost always get it right” and we agree with that sentiment. And when you can give them the complete story without unnecessarily off-putting and distracting behavior, they have an even better chance of getting it right.
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