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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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Just how diverse is this group, really?

Wednesday, August 27, 2014
posted by Douglas Keene

Diverse PeopleWe often make assumptions when discussing diversity that we all perceive a group’s diversity in the same way. Today’s research shows that simply isn’t so. That is, you and I (depending on our racial in-group) can look at the same group and you might say it is diverse while I say it is not. What makes the difference? It’s an intriguing question.

These researchers discuss how diversity means different things to different people and yet, we often discuss diversity as though “everyone ought to know it when they see it”. In other words, we often conceptualize ‘diversity’ as objective rather than as something that will vary across individuals and situations. Their belief is that racial minorities look at groups and assess whether there is anyone else in the group from their own in-group since they believe that is the best predictor of whether they would be treated fairly by the group. The researchers review the lengthy history of research and polling results showing varying perceptions of race relations by Whites and minority group members. They then focus on differences in how groups are perceived (in terms of diversity) by African-Americans and by Asian Americans.

African-Americans, say the researchers are often lower status, have more negative stereotypes and report more discrimination than do other minority groups.

Asian Americans, on the other hand, are often granted higher status and report lower levels of discrimination than other minority groups. (We would point out that just because Asian Americans report less discrimination doesn’t mean they do not experience discrimination.)

The researchers completed three separate studies to see if there were differences between African-American and Asian Americans in terms of the perception of group diversity.

Study 1 included 1,899 American (391 Asian American, 620 African-American and 888 non-Hispanic White) members of a polling panel maintained by GfK. Participants read a short statement about a large corporation forming a management team for a new project and saw a photograph of the 6 managers. The racial composition of the management team was manipulated so there were 4 conditions: the Asian representation condition had 2 Asian-Americans and 4 White managers; the African-American representation condition had 2 African-American managers and 4 White managers; the Asian + African-American condition pictured 1 Asian American, 1 African-American and 4 White managers, and the final group was composed of a WhiteOnly condition that pictured 6 White team members. Participants were asked how diverse they thought the group pictured was.

Asian Americans thought the Asian representation group more diverse than the African-American representation group. African-American participants thought the African-American representation group was more diverse than the Asian representation group. This relationship was stronger for African-American participants than for Asian American participants.

Asian-Americans saw more diversity in the Asian + African-American representation than did African-American participants. The researchers say this means Asian-Americans and African-Americans responded differently to racial minority “out-group representation”.

Study 2 included 1,080 Americans recruited by Qualtrics of which 471 were Asian American and 574 were Black. The group was 57.8% female and ranged in age from 18 to 72 years with an average age of 34 years. 13% had graduate degrees, 32% had bachelor’s degrees, 39% had some college coursework completed and 15% had completed high school or earned a GED. Some participants in this study read that a research group found prejudice and discrimination against African-Americans had increased in recent years especially in terms of employment. Others read the same article but the words “Asian Americans” replaced “African Americans”. Then they looked at either the Asian representation, African-American representation, or Asian + African-American representation photos used in the first study and rated how diverse they thought the group pictured was.

Both Asian American and African-American participants saw the teams as more diverse when it included members of their racial in-group compared to when it included members of another racial minority group. (The effect was once again stronger for African-American participants.)

The need for in-group representation to see a group as diverse was stronger for Asian-Americans who read about higher levels of discrimination against their group in the workplace. For African-American participants, however, the level of in-group representation was equally important whether they had read about higher levels of discrimination against their group or not. The researchers thought this indicated discrimination was more chronically salient for African-American participants than for Asian American participants.

Study 3 included 380 upper-level undergraduate business majors (210 non-Hispanic White and 126 Asian American). Participants read that a large company had formed a new management team and saw headshots of eight people in business attire. Altogether, there were four racial compositions for the management team: Asian Majority (5 Asian and 3 White team members), African-American Majority (5 African-American and 3 White team members), Asian + African-American diversity condition (2 Asian, 3 African-American and 3 White team members), and White Only (8 White team members). Again they were asked to rate the diversity of the team and also asked to indicate how likely they thought the team was to be able to manage discrimination issues.

Asian American participants saw each team as differently diverse. They saw the Asian + African-American team as most diverse, then Asian Majority, then African-American Majority, and finally, White Only.

White participants saw the Asian + African-American condition as most diverse and the White Only condition as least diverse but thought the Asian Majority and African-American Majority conditions were the same in terms of diversity.

This research highlights the complexity of “diversity” and the importance of assessing perceptions of different racial groups when it comes to diversity. Overall, say the researchers, African-Americans are more chronically attuned to issues about race than are Asian-Americans. Therefore, how diverse a group is seen as being depends on how many African-Americans are represented.

There are many more details to be found in this complex and nuanced work. It’s also interesting to consider in light of the research on race and death penalty juries. Perhaps part of the reason African-Americans are so sensitive to whether a group will treat them fairly is because so often they are not treated fairly. We write a lot about bias. In this line of work, we see a lot of it. This particular research helps us understand some of the nuances more fully.

Bauman CW, Trawalter S, & Unzueta MM (2014). Diverse According to Whom? Racial Group Membership and Concerns about Discrimination Shape Diversity Judgments. Personality & Social Psychology Bulletin PMID: 25106545

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lying to womenBack in 2012, we wrote about which gender was the more moral in negotiations. (Spoiler alert: it was women.) Now we have a new article on why women get lied to in negotiations. Not when or if–but why. Basically, people believe women are more easily misled than men and people believe women to be less competent than men. Therefore, “negotiators deceived women more so than men, thus leading women into more deals under false pretenses than men”. The researchers completed three separate studies and (to add insult to injury) these were not experiments using the ubiquitous undergraduate. These research participants were adults in the working world.

In Study 1, 131 employees (75 male and 56 female) at an online marketing research website participated in the research. (Gender was the only demographic information collected so we don’t know their educational backgrounds, average age or racial identity.) Participants were asked to imagine they were selling a used car and posted an ad on a community website. They were then approached by a male (or female) buyer. The participants were told that the buyer appeared to be a typical (male or female) negotiator. They were then asked to rate the imagined buyer on eight different traits: warmth, kindness, business sense, ambition, gullible, naïve, arrogance or stubborn. The researchers added four additional traits: easily misled, impulsive, confident and knowledgeable.

Women were perceived as both less competent and more easily misled in negotiations than were men. (These variables were derived using multiple traits rated by participants: Ease of being misled = Easily misled + Gullible + Naïve + Impulsive; and Competence = Good business sense + Confident + Knowledgeable + Ambitious.)

In Study 2, 394 employees (116 female, average age 32 years, 74% White, 7% Black, 5% Hispanic, 11% Asian, 1% Native American and 2% ‘other’) at Amazon Mechanical Turk participated in the research. These participants were asked to imagine someone (the Seller) was selling an antique chair said to be worth $1,250 according to a popular buying guide. However, one of the legs was broken and would cost $250 to repair correctly. Instead, the Seller fixed it temporarily knowing it would become wobbly again with use. The only way the Buyer would know the chair was defective is if the information was disclosed by the Seller. Again, a male and female buyer approached the Seller.

Again, women were perceived as more easily misled and as less competent. Women were believed to be less able to detect deception on the part of the Seller.

Undaunted, the researchers continued on to Study 3. This time the participants were 298 full-time MBA students (221 of whom were male) enrolled in a negotiations course. They were paired into 149 dyads (65 male-male, 23 female buyer-male seller, 48 male buyer-female seller, and 13 female-female). Research participants completed the “Bullard Houses” role-playing exercise which basically simulates a real estate transaction. They were randomly assigned to negotiate as the buyer’s agent or the seller’s agent. The buyers’ agents could either tell the truth, misrepresent, or tell an outright lie about their intentions in order to lure the sellers’ agents into a deal. And you will never see this finding coming.

Female negotiators were deceived more than male negotiators.

The researchers say that women at the negotiating table are going to be offered less favorable deal terms (based on past research) and they are going to be lied to more often than men. As the researchers looked more closely at the ways in which women were deceived, they found that women were told more blatant lies than were men and men tended to be told the truth. The researchers summarize their findings this way:

“The gender bias in deception appears driven by a greater propensity to tell women blatant lies in a situation in which men tend to be told the truth.”

This study is disheartening for any number of reasons, and it raises questions about how universal this general pattern is. From a litigation advocacy perspective, this series of studies tends to indicate women may simply be lied to rather than being allowed to engage in actual negotiations about case issues. Are they more subject to men failing to properly disclose in discovery? More often victims of spoliation of evidence? Dirty tricks at trial?

The researchers wonder if their findings could help explain the gender gap at high levels in business organizations. Women, say the researchers, may shy away from negotiations since they will be lied to and thus be at increased risk of entering into deals on the basis of false pretenses. While okay as a hypothesis worthy of testing, it is not at all supported by evidence. Let’s see an experimental design that looks at “what do women do when they know that they are being lied to by men?”. And, let’s be clear– it is more than ironic (“sexist” comes to mind) to think of this in terms of women somehow being less effective because of their weariness over men lying to them. Aren’t we talking here about being lied to? By men? We would say that until the social stereotype that women are easy to mislead is changed, and men stop lying in ways that are less likely when dealing with other men, awareness will do little to change the outcomes of their negotiations, mediations, and settlement talks.

Kray, LJ, Kennedy, JA, & Van Zant, AB (2014). Not competent enough to know the difference? Gender stereotypes about women’s ease of being misled predict negotiator deception. Organizational Behavior and Human Decision Processes.

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RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

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narcissism savage chickenWe are all about short measures of psychological constructs. You might say watching the development of various scales is a hobby here (just look at all these posts!). With rare exception, courts don’t permit lengthy questionnaires, or questions that sound like a psychological screening test. So when the Neuroskeptic blogged about a new one-item scale for narcissism, it got our attention quickly. True to his name, the Neuroskeptic isn’t so sure this is a good measure of actual narcissism–although it is highly correlated with other self-report measures of narcissism.

We have different goals than the Neuroskeptic. To our way of thinking, it isn’t so important whether the single-item scale measures actual narcissism–but rather, how the individuals answer the question. That is, if someone describes themselves as either low or high in narcissism–does that make a difference in their ultimate verdict preference? Without further ado, here is the question:

To what extent do you agree with this statement: I am a narcissist? (Note: The word ‘narcissist’ means egotistical, self-focused, and vain.) Answer on a scale from 1 (not very true of me) to 7 (very true of me).

The article itself is published on PLoSONE and thus accessible to everyone (for which we thank the lead author, Sara Konrath). According to the researchers, people who score high on this single-item measure (aptly named the Single Item Narcissism Scale–SINS) also report both negative and positive traits.

“For example, they report more positive affect, more extraversion, and marginally less depression. Yet the SINS is also associated with less desirable intrapersonal outcomes, for example, less agreeableness, more anger, shame, guilt and fear, delayed/reactive aggression, having less committed relationships with others, and showing less prosocial behavior when ego threatened.”

In other words, say the researchers,

“…this scale may capture the more fragile, pathological and unhealthy aspects of narcissism. Not only do these people think they are great, but they also suffer from feelings of shame, guilt and fear”.

This single-item measure, while suspect to the Neuroskeptic, is of interest to us. It is both very brief (you can’t get much briefer) but also has the element of stealth. Who would know whether this query would be good or bad for their case unless they completed some pretrial research? From a litigation advocacy perspective, we don’t care whether a potential juror meets diagnostic criteria for narcissism. We just care whether their self-report is a variable that ultimately matters.

Konrath S, Meier BP, & Bushman BJ (2014). Development and Validation of the Single Item Narcissism Scale (SINS). PLoS ONE, 9 (8) PMID: 25093508

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