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memory blindnessThis isn’t really about bad memory—it’s about something much scarier—the power of others to modify your memory without your awareness. New research out of California tells us that it is possible to change the statements of the person giving testimony in such a way that they may not even notice! To make matters worse, it is possible the altered testimony will be so firmly accepted as truth by the fact-teller that they even develop a false memory supporting the account.

The researchers label this effect “memory blindness” and define it as our failure to recognize our own memories. For those of you who remember the flurry of controversies about implanted memories and “False Memory Syndrome” (such as the McMartin Daycare scandal from 1983), and the research done by Ralph Underwager, Elizabeth Loftus, and Richard Ofshe, this will sound familiar. It was seen as something fairly common in children, but this research addresses how susceptible adults are, too.

You may think this impossible but the researchers found it not only possible but disturbingly easy to achieve. The researchers conducted two experiments. In the first, they showed 165 undergraduate student-participants a slideshow of a woman who interacted with three different people—one of whom ultimately stole her wallet. Fifteen minutes after they had watched the slideshow, participants were asked questions similar to what the police would ask (e.g., how tall was the thief, what was the thief wearing) and their responses were written down. Fifteen minutes after that response, the participants were shown their responses in written form but, the researchers had randomly changed three of their answers so they were incorrect. The researchers let another 15 minutes pass and then asked the participants the same “police type” questions to see if they changed their answers.

The majority of the group did not notice their responses had been changed and when asked the questions the second time, repeated the information that was not what they had initially reported but instead was the incorrect information inserted by the researchers.

As an aside, only 18% said they thought “something was odd” in how the experiment was conducted. The researchers do not know what the other 82% were thinking but had to assume they did not notice anything amiss with their responses.

In the second experiment, the researchers gathered 379 participants to watch a slide show of a man stealing a radio from a car. This time, instead of asking the participants what they had seen happen, they were asked to pick the thief out of a photo lineup (with “relatively dissimilar faces”). The misinformation in this second study was telling the participants they had selected a different person from the lineup than they had originally identified.

Over half (53.7%) changed their answer in the final photo array to match the false feedback—which means that 47.3% realized their choices had been changed.

The researchers say that eye witnesses given typed copies of their statements to sign may not notice errors (due to typographical mistakes or more nefarious reasons) and that reviewing their incorrect statements alone may contaminate their memories. Even though almost anyone would say that they wouldn’t fall for this kind of mistake, the majority of participants did not notice changes and modified their reports to match inaccurate reports of past behavior.

Still others might say the police would never alter statements intentionally, and to them we would encourage a review of the Hillsborough disaster in the UK (more than 25 years ago) where almost 100 people were crushed to death during a football match. A recent inquest uncovered the reality that eye-witness testimonies had been “deliberately altered” by the police.

It is disturbing to realize that our memories can be so easily messed with by researchers and more disturbing to see examples of the same thing done by the police. While we’ve blogged before about the lack of reliability of eye-witness testimony, this is certainly another one to add to the list of reasons to question the memory of those who assert they “saw it with my own eyes”. If memory can be altered in as short a time delay as 15 minutes, it can certainly be altered over the time it takes a case to come to trial.

Cochran, KJ Greenspan, RL Bogart, DF Loftus, E 2016 Memory blindness: Altered memory reports lead to distortion in eyewitness memory. Memory and Cognition.

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maladaptive daydreamingRemember Walter Mitty? He was a fictional character who escaped his dull day-to-day existence by constructing elaborate daydreams wherein he was the hero rather than a wallflower. Well, apparently Walter was not so unusual. There are people who spend as much as 60% of their time lost in daydreams. These are people who realize their fantasies are not real but find the fantasies so enjoyable they cannot seem to stop engaging in the behavior. They are calling it maladaptive daydreaming.

Maladaptive daydreaming was defined by Eli Somer (in 2002) as “extensive fantasy activity that replaces human interaction and/or interferes with academic, interpersonal or vocational functioning”. Somer also characterizes maladaptive daydreaming as having “themes that typically include highly complex fantasies of social attractiveness, power, fame, and love, as well as other fanciful plots, accompanied by acted out behaviors”.

There is an incredible amount of information on the internet about this condition—driven mostly by people who have it and want to educate others and relieve the isolation that often accompanies the condition. They have created information pages, symptom lists, descriptions of the behavior being uncontrollable by the person experiencing it, and much more.

The Atlantic recently shared a very readable article on the issue by an author who had experienced maladaptive daydreaming. One of the most descriptive sentences is this: “I made a lot of close friends [in college] and had a few boyfriends, but I found it tiring to keep up with their conversations while watching TV in my mind”. The author describes the proliferation of information on the disorder on the internet and concludes that her 12-year-old self (lost in maladaptive daydreaming) was certainly not alone.

One of the researchers mentioned in the Atlantic piece was Eli Somer (who defined the phenomenon) who is one of the authors of the new paper on maladaptive daydreaming we are looking at today. This article offers information on the daydream qualities of 340 “self-identified maladaptive daydreamers” in comparison to 107 controls—all 447 of whom responded to an online announcement for participation and then completed multiple questionnaires on-line. Here are some of the differences researchers identified between “maladaptive daydreamers” and their control subjects:

Maladaptive daydreamers “differed significantly from normative daydreaming in terms of quantity, content, experience, controllability, distress, and interference with life functioning”.

Maladaptive daydreamers reported higher symptoms of “attention deficit, obsessive compulsive and dissociation symptoms than did controls”.

Maladaptive daydreamers reported spending about 57% of their awake hours daydreaming—compared to 16% for control subjects.

Maladaptive daydreamers reported higher levels of difficulty limiting their daydreaming while at the same time being distressed over how much time they spent in daydream than did the control subjects.

There is now a discussion occurring as to whether maladaptive daydreaming is a condition of its own or symptomatic of another condition. Whichever decision is made, the authors believe that maladaptive daydreaming causes significant distress, interferes with life function, and needs more attention.

From a litigation advocacy perspective, this is an intriguing description of maladaptive daydreaming. While those who maladaptively daydream report they are rarely confused as to what is fantasy and what is reality—we anticipate this defense could certainly arise in the not to distant future.

An expert might testify that while the defendant did not usually have trouble distinguishing between fantasy and reality, in this instance the content of the maladaptive daydream was so disturbing, the dreamer sought to defend against a perceived attacker in the real world.

While another expert could counter that argument by pointing to the numbers of maladaptive daydreamers who do not report confusion between fantasy and reality—we suspect any juror hearing about the richness, depth and texture of maladaptive daydreams—and knowing the proportion of awake time invested in maladaptive daydreaming—would conclude it would be hard for the daydreamer to not be confused by the power of maladaptive daydreaming.

Our mock jurors would ask whether someone should not be held responsible for their actions while also getting treatment for a debilitating condition—they always want to address personal responsibility, and that would certainly be a good point for the prosecution to make. We foresee a lively deliberation room debate if this one ever makes it to the courtroom.

Bigelsen J, Lehrfeld JM, Jopp DS, & Somer E (2016). Maladaptive daydreaming: Evidence for an under-researched mental health disorder. Consciousness and Cognition, 42, 254-66 PMID: 27082138

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Dunning-Kruger-EffectWe’ve written a lot about other kinds of self-appointed experts on your jury (and how to dethrone them) but today’s work is a reflection of another aspect of perceived expert status.

When you think you already know a lot about something, you can become closed-minded. You finish the testimony before the witness does. A closed mind is a problem everywhere, but in a jury room it is dangerous.

We’ve seen this a lot in pretrial research (like this post about a retired teacher named ‘Victoria’) but today’s research tells us that when you see yourself as a relative expert on an issue—you are less likely to be open to other information and/or opinions.

It’s an assumption that is somewhat counter-intuitive since “real experts” need to be open to new information in order to remain “experts” as new knowledge is identified. Yet, these “self-appointed” experts, became quite dogmatic across all six experiments the researchers conducted. The researchers label this tendency the “earned dogmatism effect”—likely a close relative of the Dunning -Kruger effect.

A relatively easy example is when someone (for example, a doctor or a nurse in a personal injury case) is required to set aside their professional knowledge and rely solely on the testimony offered in trial. Their training and experience is not evidence, so if they believe something to be true that is inconsistent with the evidence, they are to rule out their experience, not the evidence.

Of course, humans rarely can do that. Typically, such actual ‘experts’ are stricken from the jury. The greater problem are informal ‘experts’, who think that because they can fix cars they know why a jet engine failed, or because they are married to a bookkeeper they understand the nuances of complex tax fraud. These informal experts are often much more difficult to identify, especially in courts where attorney voir  dire is limited or prohibited.

From a litigation advocacy perspective, you want jurors to be listening to new information you are presenting and we’d encourage you to review our earlier posts on how to maximize the chances of that happening and how to teach jurors to disrupt this self-appointed expert during deliberations. Self-appointed experts can range from retired schoolteachers like Victoria to shade tree mechanics and everything in between—you often don’t know they are there until they make themselves known verbally.

Ottati, V., Price, E., Wilson, C., & Sumaktoyo, N. (2015). When self-perceptions of expertise increase closed-minded cognition: The earned dogmatism effect. Journal of Experimental Social Psychology, 61, 131-138 DOI: 10.1016/j.jesp.2015.08.003

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screaming-womanIt’s tough to see the same old themes come up over and over again but—here we go again… Women who react emotionally are seen as less intelligent, but if they react in a “measured and manly way” they are thought not trustworthy. In other words, you can’t win for losing.

“Men were rated as both more emotionally competent and more intelligent in general when they showed restraint. For women, however, the opposite pattern emerged, in that they were perceived as more emotionally competent and intelligent when they reacted immediately.”

In other words, say the researchers, we expect men and women to act according to gender stereotypes and we are suspicious of those who fail to behave accordingly.

Participants in the first study (59 undergraduates from the University of Haifa in Israel—30 men and 29 women) were shown photos found to elicit both sadness and anger. Then they watched videos featuring different people allegedly reacting to those same images. Half of the actors reacted almost immediately (within 1/2 second) while others did not show an expression change for a second and a half. After viewing the videos of people reacting to the images, the participants rated each character for “emotional competence” and assessed their level of sensitivity, caring, and the appropriateness and authenticity of their reactions.

Men who paused for 1.5 seconds prior to changing their expression were seen as more emotionally competent. Women who paused were seen as less emotionally competent.

The second study (with 58 students) was much the same as the first but the participants also rated the perceived intelligence of the character in the video.

“Men who showed delayed reactions were perceived as significantly more intelligent than those who reacted immediately, whereas for women, delayed reactions resulted in less perceived intelligence.”

The authors say that these results reflect the strength of gender stereotypes about women as “more emotionally volatile but also more emotionally competent” and say that when women delay their reaction to an emotionally charged image they may be seen as “strategic rather than spontaneous”.

From a litigation advocacy perspective, this will be important when considering the impact of male and female witnesses, for preparation of parties, and even for attorney behavior in the courtroom. You are always being watched and evaluated. Assumptions are going to be made for better or worse.

Help jurors see your female witness/party/self as thoughtful and competent but as having learned to stop and consider actions and consequences prior to reacting. That is done more by offering jurors some context for respecting the witness or party, rather than trying to train them to significantly change their response style. In other words, this time it has to be about teaching the jurors how to judge quality, rather than teaching the witness how to overcome the gender bias.

Hess, U, David, S, & Hareli S (2016). Emotional restraint is good for men only: The influence of emotional restraint on perceptions of confidence. Emotion

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middle aged womanIf you are seeking empathy and understanding from jurors hearing your case—go for middle-aged adults—and, in particular, middle-aged women. If you are thinking the sample size of this study cannot possibly be large enough to draw that sort of conclusion—think again! This is a study based on 75,263 adults in the US.

In the study, late middle-aged adults said they were more likely to react emotionally to the experiences of others and that they were also more likely to try to understand how things looked from the perspective of others. Both men and women “of a certain age” were more likely to report higher empathy but women were especially likely to do so. (And in case, like us, you are finding it more difficult to ascertain just when “late middle age” might be—the researchers define this as someplace between 50 and 60 years of age.)

Basically, the researchers examined responses from the General Social Survey which measured empathy in both 2002 and 2004. And surprisingly, these were the two smallest samples (1,353 adults in 2002 and 1,330 in 2004). Additionally, the authors conducted an online survey of 72,580 US adults between 18 and 90 years of age wherein they measured both empathy and perspective taking. (Note: While the GSS surveys are random and nationally representative, the researchers large online sample is not.)

Here is what they found on empathy:

Women reported higher empathy than men in all three samples.

In 2002, the GSS sample showed no significant differences in empathy based on ethnicity. In 2004, African-Americans had lower empathic concern than European-Americans. And in the online survey—African-Americans, Asian Americans and “especially Hispanic Americans” reported higher empathic concern than European Americans. (The authors make a point of stressing that the effects were fairly small.)

The effects of age were consistent across all three samples. Empathic concern was higher in older than in younger adults. The most common interpretation of this is that younger jurors haven’t experienced enough pain and suffering to appreciate its debilitating effects.

And here is what they found on perspective taking (which is akin to empathy and basically assesses how likely you are to attempt to put yourself in the “shoes” of another). Note: perspective taking was only assessed in the online sample and not in the GSS samples.

Women had higher self-reported levels of perspective taking than did men.

European Americans had lower perspective-taking than those of other ethnic origins (this effect was small).

And older adults had higher perspective taking than younger adults.

The researchers explain their results in clear and easy-to-understand language. “Specifically, empathy was expected to show an inverse-U-shaped function across the adult life span, with middle-aged adults scoring higher than young adults and older adults. Indeed, we found empirical evidence for this pattern in the case of both empathic concern and perspective taking in all three samples.”

For the non-statisticians among you, what that means is that both younger and older adults are less empathic and less likely to take the perspective of others than are middle-aged adults.

The researchers don’t know whether this is a true age effect or the result of generational experiences since this age range reflects younger Baby Boomers who grew up during sweeping societal changes that emphasized the feelings and perspectives of others.

From a litigation advocacy perspective, this is an intriguing study. If we know that women report higher levels of empathy than do men and we know the same pattern holds true for self-reports of perspective-taking—and, we know that empathy seems to peak between ages 50 and 60—when all else is equal—you likely would be better off choosing the woman between 50 and 60 for your jury.

As an aside, we always caution against blanket assumptions that “women are better for Plaintiffs and men are better for Defendants”. It simply is untrue. But this finding, when coupled with other information from careful pretrial research, can be instructive in voir dire and jury selection.

O’Brien E, Konrath SH, Grühn D, & Hagen AL (2013). Empathic concern and perspective taking: linear and quadratic effects of age across the adult life span. The journals of gerontology. Series B, Psychological sciences and social sciences, 68 (2), 168-75 PMID: 22865821

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