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Trust-InfidelityOur clients are routinely stunned by the accuracy of  mock juror impressions of witnesses and parties based on a 6 to 8 minute video clip from depositions. Mock jurors quickly assess character and are often eager to share their insights. Their comments can be insightful, surprising, and sometimes biting in their judgments. So, okay. It’s probably reasonable that brief observation can point out annoying or distracting behaviors, impressions of trustworthiness, and unflattering attire or hairstyles. But what about predicting infidelity after watching romantic partners interacting for no more than 3 to 5 minutes?

The researchers conducted two different experiments. The first included 51 undergraduates (16 men and 35 women aged 18-23 years with a median age of 19) who participated along with their romantic partners. The undergraduates (N = 51) completed questionnaires prior to the experiment to assess their “emotional and physical infidelity”, while the romantic partners (who may also have been college undergraduates) did not complete questionnaires. Then the couples were videotaped completing a drawing task where one of the partners was blindfolded and the other gave instructions on what to draw. Later, six trained coders watched the videotapes (with a focus on the five questions listed below in this post) and accurately predicted infidelity at a level above chance (p=.05).

In the second experiment, 43 undergraduates (21 male, 22 female, ranging in age from 18 to 33 years with a median age of 20) participated with their respective romantic partners. This time, both members of the partnership completed questionnaires and the researchers summed “infidelity mean scores” for each participant based on their responses to whether they had been unfaithful and how “far” their infidelity had gone. The participants then completed the same drawing task the participants in the first experiment completed. Five trained coders viewed the videos and rated the participants with a “perception of cheating index” (based on their own observations when considering the five questions listed below). Specifically, what that means is that the participants self-reported on their own infidelities (the mean infidelity score) and then the coders observed and rated the participants (the perception of cheating index). Again, the observers (aka coders) were able to identify who had cheated on their partner at a level above chance (p=.01). In this second experiment, the researchers found that the observer’s sense of how trustworthy and committed a person  was to the relationship mediated the judgments of infidelity.

What does this mean? Apparently, we can “see” infidelity, if we are simply asked to observe interactions and then consider the “right questions” (such as those the coders were assessing as they watched the videos).

“How likely is it that this person has shown interest in an alternative to his/her partner?”

“How likely is it that this person flirted or made advances on someone other than the partner?”

“How likely do you think it is that this person has had sexual intercourse with someone other than his/her partner?”

“How committed is the participant to the relationship?”

“How trustworthy did you perceive this person to be?”

While we have never asked the first three questions, the last two questions are quite similar to some of the judgments we ask our mock jurors to make about our witnesses based on short snippets of videotaped depositions.

A number of years ago we did a focus group on a case with salacious tales of infidelity, strained family relations and abortion. The Plaintiff was a wealthy Mexican-American man, and many of our mock jurors were Hispanic (of various national origins). We wondered how the bad facts of our client’s behavior would be heard by those jurors. What we saw was intriguing. The Plaintiff was honest. He neither denied nor minimized his behavior. He described what he’d done and was direct and engaging in his testimony. The jurors loved him! While they didn’t want a friend of theirs to date him, they also felt that he was honest, in spite of his infidelity. The mock jurors (from all ethnic groups) did not like his sexual behavior (well, to be fair, some of them did!), but they liked him and were actually more critical of his spouse (whom they saw as cold and punitive).

It is an intriguing case to consider in light of this research. What if that Plaintiff had lied or minimized his multiple infidelities? What if he had not been seen as trustworthy? We will never know because he did not and he was. While we can apparently “see” infidelity, it appears that trust trumps infidelity in the eyes of the observer.

Witnesses who tell the truth about bad facts but are also likable, may elicit unexpectedly positive reactions from the triers of fact.

LAMBERT, N., MULDER, S., & FINCHAM, F. (2014). Thin slices of infidelity: Determining whether observers can pick out cheaters from a video clip interaction and what tips them off Personal Relationships DOI: 10.1111/pere.12052

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mother of all gender gapsWe follow, as you may have noticed, attitudes, values and beliefs toward a wide variety of issues. So we were surprised to see this 2012 national poll from Quinnipiac University pop up in a number of recent blog posts. According to their survey, while Americans favored the legalization of marijuana (51% to 44%) there were significant age and gender gaps.

“Men support legalization 59 to 36% but women are opposed 52 to 44%.”

Younger voters, “18-29 years old support legalization 67 to 29% while voters over age 65 are opposed 56 to 35%.”

For some reason, a number of blogs picked up the survey about 2 years after it was completed and questioned why the gender gap in attitudes toward marijuana legalization existed. Michele Martinez Campbell at Narcolaw wonders if, as others have posited, it is “just that more men than women are potheads” and scoffs at that explanation as glib.Instead, she believes, “female opposition stems from questions about the impact legalization will have on public health, crime and the social fabric”.

Over at TheMoneyIllusion, Scott Sumner calls this “the mother of all gender gaps” and gets 47 comments. One of the commenters points out a similar gender gap on marijuana legalization in a 2014 survey in Germany (although he did not provide a URL), but still none of the commenters seem to notice the “new” survey they are talking about is 2 years old.

Finally, the discussion goes over to Marginal Revolution and Tyler Cowen amasses 113 comments (at this writing)–many of which are sexist although some are quite funny (“it’s hard enough to get the man to take the trash out when he isn’t stoned”). And again, despite the proliferation of comments, not a single commenter mentions the Quinnipiac survey they are hotly debating is from 2012 and not 2014.

It’s a curious pattern for sure–men trending more liberal and women more conservative. It is at odds with what tends to happen and therefore we think it could be important. But, we can’t just take 2012 data and interpret it through a 2014, post mid-term election lens. We need to see if the gender gap Quinnipiac reported in 2012, remains the same in 2014. Why? Attitudes toward marijuana legalization have been changing very quickly. In November of 2014, we simply cannot know if the “mother of all gender gaps” really does still exist based on survey data from 2012.

When using survey data and hypothesizing as to meaning in the current day, you need to be very sure your survey data is also current.

And it would be wise to go to the original source rather than parroting what others have said and furthering the inaccuracies.

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Marijuana-Gay-Marriage-WashingtonSometimes we run across odd associations as we peruse research literature. Here’s an article from Pacific Standard saying we can potentially predict when the legalization of marijuana will occur by looking at how quickly attitudes toward same-sex marriage shifted in the United States. And this prediction relies, not on pundits or polls, but rather on what they call “data science”.

Essentially, the article says, you can use “data on similar issues” to “build a mathematical model” and use that model to “estimate the likely outcomes for marijuana legalization across the country”. The article quotes University of Minnesota political science professor Andrew Karch. According to Karch, the spread of political policies (like same-sex marriage and marijuana legalization) “tend to follow predictable patterns”. He uses data from same-sex marriage approval ratings and legalization to predict when recreational marijuana will be legal across the country. He predicts seven years: that is, marijuana national legalization will occur within seven years, by 2021.

When, according to the article, 60% of states adopt legal marijuana, the federal government will probably take action. Apparently, 60% is the “tipping point” for federal action to make laws consistent across the country. These writers think that recreational marijuana may actually spread faster than same-sex marriage laws since there is so much money available to states who legalize. (Colorado reportedly collected $60-$70M in “recreational pot tax revenue” in 2014.)

This is a different relationship than a correlation. This is a relationship based on data points prediction: data science. We can’t say that this is a date to bet on, but most of us likely would not have predicted the speed with which same-sex marriage became accepted and legalized. The article is easy to read and offers graphics to show how the ideas work. It’s worth a read if you ever wonder about how statisticians make these kinds of predictions.

What Same-Sex Marriage Means for the Future of Recreational Weed. Pacific Standard, October 27, 2014.

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Brittany-MaynardBrittany 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.”

Maynard post insert

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.

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illegal-immigrants3You 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.

citizenship insert

 

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

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