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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

dead white womanIf you are a murdered white female, your case will be investigated and prosecuted (and probably more severely sentenced) than any other murder victim (especially if you are allegedly killed by a Black defendant).

This fact comes from a disturbing look at “prosecutorial files on over 400 homicide cases from Caddo Parish, Louisiana (the Shreveport area) in the 21 years between January 1, 1988 and December 31, 2008”. This is roughly the average rate for homicides per capita in the US (2011 had 16,238 homicides nationally).

The researchers looked at 431 cases including 203 with an initial charge of first-degree murder, 202 cases with an initial charge of second-degree murder, and 26 cases of manslaughter. They tallied sentence severity, number of pages in the case file, victim-defendant relationship (family, friend or other intimates; acquaintances; associated by some other known category), victim and defendant race and victim gender. They also tracked “aggravating circumstances” such as arson, age of victim (under 12 or over 64), burglary, drugs, drive-by shooting, heinousness, knowingly endangering more than one person, multiple victim homicide, offender with prior homicide record, robbery, kidnapping, rape, witness intimidation, or police killed during the course of the crime.

What they found is disturbing (although consistent with what we know about bias and the race of murder victims and murder defendants).

While White defendants (in general) received somewhat longer prison sentences than Black defendants, those convicted of killing Whites received much harsher sentences than those who killed Blacks–with those convicted of killing Whites 5.75 times more likely to be sentenced to death than those convicted of killing Blacks.

Blacks killing Whites received the most severe sentences.

The odds of a death sentence and the odds of a prison sentence of 40 years or more are higher in cases with female victims than those with male victims.

In 77.8% of the case where the murder victim was a White female, the offender was sentenced to death or to prison for more than 40 years. Those convicted of killing White females are 11.58 times more likely to be sentenced to death than those convicted of killing Black males.

The average number of prosecutorial case file pages in the 431 cases examined was 423 pages. However, case files were “significantly longer for cases with White defendants, White victims, cases in which Blacks were convicted of killing Whites, cases with female victims (especially White female victims), cases where the homicide occurred between strangers, and cases with more aggravating factors present”.

White female homicide case victim files had an average of 530 additional pages in the prosecutorial files than case files with Black male victims.

Even after controlling for aggravating circumstances, cases with White female victims resulted in “a greater volume of investigative product” (that is, more pages in the case file) than any other homicide cases.

Overall, say the researchers, cases with White female victims resulted in the highest number of case file pages (i.e., the most investigative work) and the most severe sentences. In contrast, Black male homicide victims received the least investigative attention and the least severe sentences.

From a litigation advocacy standpoint, this is truly an indictment of the process. Aggravating circumstances make no difference in whose cases are investigated aggressively and thus the heinousness of the crime does not drive the investigation. Gender and race does. This disparity appears to be an artifact of what prosecutors deem to be most worthy of effort in homicide investigations. While this is some (small) comfort to the murdered White woman’s loved ones, it is offensively unfair to those murder victims who are not White females, and arguably, to a justice-minded populace. And, for all of us, it is a sad statement when a measure like simply counting pages in a prosecutorial file shows us what the system values.

Pierce, G., Radelet, M., Posick, C., & Lyman, T. (2014). Race and the Construction of Evidence in Homicide Cases American Journal of Criminal Justice, 39 (4), 771-786 DOI: 10.1007/s12103-014-9259-1


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

catcallsWhen this cat-calling video first came out, it went viral as an example of the harassment women face when walking alone on the streets of New York City (and presumably other cities as well).

But soon, viewers began to question the neighborhoods she was walking in and why most of the cat-callers were African-American or Latino. Critical reviews began to hit Twitter. The blog Mass Appeal looked carefully at landmarks visible in the video to identify where each instance of harassment occurred and over half of the harassment happened on a single street–125th Street in Harlem. They designed the graphic illustrating this post, question how people (and the media) might respond if the harassers were white, and close with this powerful statement.

While there’s no doubt that street harassment is a very real issue that effects [sic] women every day, it’s unfair to judge the whole of NYC based on the reactions of people primarily from one or two specific races, cultures, or neighborhoods especially given the cultural norms thereof. This viral video can serve as a great introduction to those who don’t believe that street harassment even exists, but it raises a lot of questions about race and culture that need to be answered in order to more deeply understand the issues at hand.

Sociological Images blog follows up on the Mass Appeal post with this thoughtful summation:

Did the time the producers spent in Harlem involve denser rates of harassment, supporting hypothesis #1. Did they spend an extra amount of time in Harlem because they have something against black men? That’d be hypothesis #2. Or is it hypothesis #3: they were thoughtless about their decisions as to where they would do their filming. Honestly, it’s hard to say without more data, such as knowing how much time they spent in each neighborhood and in neighborhoods not represented in the video. But if it’s true that they failed to sample the streets of New York City in any meaningful way – and I suspect it is – then hypothesis #3 explains at least some of why black men are over-represented. And that fact should motivate us all to do our methods right. If we don’t, we may end up offering accidental and fallacious support to ideas that we loathe.

Commenters at Sociological Images offer unsolicited critiques of the post itself.

The skill of critical thinking is a difficult thing to teach. While there was initial acclaim and then a storm of criticism–most viewers will not think a lot about whether a video is done correctly, the power of the editor in cutting 10 hours of walking down to a few minutes of catcalls, whether all neighborhoods were walked so they can tell whether the video is truly representative of NYC, and why so many of the cat-callers are African-American or Latino. They will simply accept the video as truth and perhaps incorporate this as their definition of the reality of walking in New York City.

But there is hope. is now offering a Critical Thinking Seminar handout for teachers along with a 6 minute video of a 90-minute seminar and a 2 page handout. They encourage teachers to incorporate this skill into lesson plans and give information about how the particular lesson plans meets Common Core Standards.

The newly published book, Law and Neuroscience (see a review here) also offers skills in critical thinking for those of us who want to learn more about the emerging area of neurolaw. Critical or analytical thinking is tough to teach in the abstract, yet this text does just that by offering both sides of the arguments (as well as the middle perspective) on neuroscience use in the courtroom. These authors use case law to tell memorable stories of how neuroscience found its way into the courtroom. Then, rather than quickly moving on, they present criticisms, limits, and cautions. That strategy offers the reader the opportunity to consider all sides of a controversy and come to their own conclusions.

Both of these resources remind me a lot of a type of pretrial research we offer that one of our long-time clients describes to other attorneys as, “it’s kind of like when Doug does Oprah”. The entire day is spent with mock jurors bouncing back and forth brainstorming about their differing perspectives on a case as the evidence unfolds. To the point where they sometimes just look at each other and laugh as they hear yet more new information that threatens to make them reconsider their conclusions yet again. The process is truly a lesson in critical thinking and while the mock jurors likely do not know that, the observing attorneys learn a tremendous amount about how specific case facts can send the non-critical thinker down a rabbit trail that can torpedo their case.

Image from Mass Appeal blog 

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

Image from The Jury Expert

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

angel-and-devil-doodleWe’ve written before about moral licensing–it’s the cognitive process we use to say “I’m not prejudiced, in the past I’ve done good things for this group”. In other words, we look back in our individual histories to find examples of when we’ve been good to justify our current “bad” behavior. It doesn’t seem to matter that, often, our memory of the good we’ve done historically is either inflated or non-existent. But, it works the other direction too!

You may recall the concept of prospective memory errors also known as “forgetting to remember” (like when you say to yourself, “I will remember to pick up milk on the way home”, and then you forget). The same idea applies to a second form of moral licensing. Rather than recalling past good behavior to justify current bad behavior–we simply point to the idea that we will behave positively in the future to excuse our bad behavior in the now. And this is about much more than having that ice cream cone or an extra piece of chocolate [or even eating until you feel a little sick at a holiday spread] and promising yourself that you will be “good” later.

Researchers in Florida conducted four different studies (with close to 400 participants) to explore the effect of prospective moral licensing (i.e., planning to do something positive in the future) on decisions made currently. In the first two studies, they asked participants to commit to taking part in a fundraiser by skipping a meal. (This was a moral task.) Then, the participants were asked to complete a hiring task where they read a vignette and imagined they were the police chief in a small white and racially prejudiced town in which the police department personnel themselves can be hostile to Black officers. Participants thought the new police officer position would be more suited to a white applicant. The researchers concluded the idea of doing something “good” in the future (i.e., participating in the skip a meal fundraiser), gave participants “prospective moral licensing” to behave in a racially biased fashion in the now.

After these two studies, the researchers wanted to be sure they were interpreting the results correctly so they asked participants in the next two studies to commit to a moral task or a non-moral task. The third study asked half the students to donate blood in “the next few weeks” (a moral task) and the other half were asked about a non-moral task (asking if the student would like notifications of new studies they could participate in) and then asked them to complete a measure of racial bias (the Attitudes Towards Blacks Scale). The fourth study asked half the students to participate in the meal-skipping fundraiser used in Study 1 (the moral task) and the other half were asked about a non-moral task. The researchers then asked them all to rate their attitudes on a listing of negative stereotypes about Blacks. In both of studies 3 and 4, participants who were asked to complete a moral task in the future had higher negative attitudes toward Blacks. The researchers conclude prospective moral licensing is at work again since the participants who agreed to do a moral task in the future scored higher on negative attitudes toward Blacks than those participants who did not agree to a moral task.

In other words, say the researchers, prospective moral licensing gives us the ability to maintain our self-image as a “good person” without doing any actual “good works”. It is possible, based on these findings, that prospective moral licensing will actually result in less good being done since the individual has already received the benefit of their prospective moral licensing.

From a litigation advocacy perspective, this is a difficult article. Seeing a sign for a blood drive and mentioning to your fellow jurors that you plan to donate blood once your jury service is over, could become prospective moral licensing for biased behavior in the deliberation room. But we really have no way of knowing. Our recommendation against the bias of the prospective moral license?

When you are Plaintiff or criminal Defense, focus your jurors on fairness and the importance of treating the Plaintiff or Defendant in a non-biased way.

Don’t leave to chance the possibility that moral licensing could subconsciously enter into their decision-making. Call it out: “We all want to do the right thing. We have all done good and generous things in the past, and we plan to do them in the future. In fact, your doing your civic duty as jurors in this case is a current good act on all of your parts. But the generosity or thoughtfulness we might have shown in the past, and no good act we might do in the future, can replace our obligation to do the right thing now. In this place, today, each of you needs to call upon what you know in your own heart and mind to do the right thing for justice.”

The authors conclude their article with very clear descriptions of how the prospective moral licensing effect works:

“Morality is an important part of a person’s self-concept. This can lead to situations where moral actions are used to license morally questionable actions. The current work provides evidence that people can feel morally licensed even for actions they anticipate doing in the future. Anticipating doing a moral action in the future licenses individuals to act in morally questionable ways in the present by permitting people to gain moral credit for actions they anticipate doing. Thus, simply planning to do good later can allow you to be bad now.”

Cascio, J., & Plant, E. (2015). Prospective moral licensing: Does anticipating doing good later allow you to be bad now? Journal of Experimental Social Psychology, 56, 110-116 DOI: 10.1016/j.jesp.2014.09.009


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