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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”.
So maybe your faith can’t move mountains but you can predict who wins American Idol
You just have to believe. In your emotions, that is. Too often we blame our emotions for our negative behavior–like overeating, or other misbehavior. As Jonah Lehrer aptly observes, “People commit crimes of passion. There are no crimes of rationality.”
Researchers at the Columbia Business School asked research participants (aka undergraduate students) to tell them if they trusted their emotions more or if they trusted their logical/rational side more. But these researchers didn’t just ask about it. They did a “manipulation of participants’ trust in their feelings”.
They actually came up with a procedure called the “trust-in-feelings manipulation”. In essence, when you want to assign a participant to the “high trust in feelings” condition, you simply ask them to describe TWO situations where they trusted in their feelings. And when you want to assign someone to the “low trust in feelings” condition, you ask them to describe TEN situations where they trusted their feelings. It’s a lot easier to identify two situations than it is to identify ten. [And apparently pretty easy to skew our sense of confidence in ourselves as well.]
As it turns out, if you were assigned to the “high trust in feelings” condition, you were much more likely to accurately predict the 2008 Democratic Presidential nominee; predict box office success in movie releases; predict the winner of American Idol; predict the ups and downs of the stock market; predict the winner of a football championship; predict the weather; and predict the weather in 2 days as well as in 2 weeks.
In a word? Spooky. When the research participants knew something about the area (like a knowledge of politics, the performers on American Idol, or were familiar with football rules), their accuracy improved. The researchers have typically academic language to explain this phenomenon. Instead, let’s return to Jonah Lehrer at Wired.com:
“The larger lesson, then, is that our emotions are neither stupid nor omniscient. They are imperfect oracles. Nevertheless, a strong emotion is a reminder that, even when we think we know nothing, our brain knows something. That’s what the feeling is trying to tell us.”
It’s like the fMRI study we wrote earlier this week. Even when we don’t know we know, we do know. So when you are in the midst of trial, trust your gut. Think of it as intuition, “a knowingness”, or whatever you want to call it. You use your rational self in preparing for trial and gathering information and planning a strategy. You involve your emotional self as you assess most effective ways of proceeding. And in trial, if you feel funny about how jurors are responding–there is probably a reason for that. Trust it.
Michel Tuan Pham, Leonard Lee, & Andrew T. Stephen (2012). Feeling the Future: The Emotional Oracle Effect. Journal of Consumer Research, 39
You can see the full text of the article here.
Are we all Millennials at heart? On cynicism when exposed to deception
When my now 20 year old son was an adolescent he would often talk back to the TV during advertisements with “Yeah, right!” and I worried (like a good psychologist-parent) that I was raising a “too cynical” child. He grew out of the vocalization but not out of the tendency toward cynicism which I know now is a generational trait. Or not.
New research says we all (unless brain injured or quite advanced in age) note deception in advertising and our brains warn us about the deception.
Researchers hooked participants up to fMRI machines while they watched a series of print advertisements. They were not asked to assess the merits (i.e., evaluate) the ads, just to passively observe. The researchers exposed the participants to three (pre-tested) advertisements deemed “highly believable”, “moderately deceptive” or “highly deceptive”. What they found is intriguing in terms of how our brains deal with threats (even well beyond adolescence).
When the print ads were either “moderately deceptive” or “highly deceptive”, the fMRI results showed increased attention was paid to the ad. Specifically, the precuneous area of the brain (associated with focusing conscious attention) was activated. The more deceptive the ad, the more the precuneous was activated. In short, the more deceptive the ad, the greater the threat and the more the participant focused their attention on the ad itself.
Intriguingly, ads that were “moderately deceptive” caused more overall brain activity than the “highly deceptive” ads. The researchers suspect it is because participants had to work harder with the “moderately deceptive” ads to ascertain the truth while they were able to quickly evaluate and toss away the “highly deceptive” ads.
So how is this connected to litigation advocacy? In several ways.
Most deception in cases that make it to trial is going to be of the “moderately deceptive” type. The good news is that jurors will automatically focus more on those issues to attempt to intuit the truth behind the evidence presented to them.
What we see (over and over again) is that jurors do not want to be told what to think. They want to figure it out for themselves. Most effective is a tight case narrative that answers the questions that naturally emerge in the minds of jurors as they hear your story–and you want to let them draw their own conclusions.
Second, it isn’t just our youngest jurors (the Millennials) who are suspicious and look for deception everywhere. They may simply be more consciously aware of that process. For the rest of us though, our brains are lighting up. Make us consciously aware of our suspicions by questioning witnesses, subtly displaying doubt on your own face, and giving jurors alternatives to opposing counsel’s explanations.
Craig, A., Loureiro, Y., Wood, S., & Vendemia, J. (2011). Suspicious Minds: Exploring Neural Processes During Exposure to Deceptive Advertising. Journal of Marketing Research, 1-12 DOI: 10.1509/jmr.09.0007
Leading from the bottom: Dealing positively with organizational dysfunction
Are you now, or have you ever been, in a crazy organization? Perhaps at work, at church, or a professional group (let’s not even consider a crazy family this time). It’s easy to get mad. It’s easy to be negative. And it’s understandable when some people throw up their hands and just quit. When you are involved in an organization whose leadership you disagree with–whether a non-profit, a small business, or a law firm–you have to find ways to manage yourself when leaving is not an option you wish to exercise.
And it’s hard. Litigation consulting can be a lonely business. Most of us work alone and when we find kindred spirits it’s a wonderful thing. It was in that spirit that a small group of us listened recently to trial consultant Karen Lisko offer a strategy for turning frustration into productive outcomes.
“When I was an undergraduate at the University of Arizona, I happened to sign up for a theology class that would have a profound effect on my life. The priest taught it based on one simple premise — bottom up. He taught that all great faiths, countries, and organizations survive because their members fervently believe that the power is at the bottom, not at the top. From that vantage point, you stick with the organization because of the principles and the group, not because of the leadership.
Why not turn frustrations now toward a positive rebellion that rallies the group around what brought them together in the first place? In essence, we encourage them to lead their membership from the bottom.”
I also recall a moment when my mother-in-law approached the head minister of her church during a time of great controversy, and told him that while she disagreed with him, she wasn’t going to leave, as others had. She explained to him “I’m staying because this is my church– our church– and you aren’t going to take it from me.”
It’s a fresh perspective that allows lots of productive strategies to emerge. All of us need that sort of contribution from “fresh eyes” now and then. Whether you are in the throes of case preparation and can’t see the forest for the trees, or in the middle of [yet] another meeting to rehash the same old stuff with partners and associates–fresh perspective is imperative. It can move you from frustrated, stuck, and pessimistic to energized, optimistic and excited for the future.
We’ve written before about leading our unethical leaders and other organizational issues–like psychopaths in the boardroom and those selfish meanies in your office. And those tactics come from a variety of fields of study. Add theology to the list. Lead from the bottom!
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