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Asian stereotypes: Furtive, sneaky, dishonest and trying to one-up Americans
Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.
It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.
As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.
In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.
In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.
Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”. [We would then encourage you to consider the bias implicit in that belief…] But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.
As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.
Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.
Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.
Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.
Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.
Perhaps it is a combination of all those factors.
Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.
It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.
You don’t have to drink to show intoxicated recall and behavior!
Last year we blogged about a surprising study showing the recall accuracy of intoxicated witnesses. In that study, research participants who’d been drinking were just as accurate as sober research participants in describing events they had observed. New research, however, aligns more with what we expected regarding perceptual impairment from drinking. Well, sort of…
What the research actually shows is that you don’t have to have been drinking at all–merely seeing billboards or other images of alcohol is enough!
“Simply seeing images of alcohol, but not drinking it, influences behaviors like racial bias on a subconscious level. Walking by a bar or seeing an ad for beer could be enough to affect someone’s mindset. You don’t have to be aware of the effects for it to affect you”.
It reminds those of us of a certain age of Jimmy Carter’s comment that while he had always been faithful to his wife, he had “sinned in his heart”. Here we have people acting as if under the influence merely by being exposed to the idea of drinking. This obviously has scary ramifications for all of us since the media is saturated with images of alcohol and lunch or dinner at a restaurant can result in looking at both images on the menu and ‘samples’ at tables about you whether you actually drink or not. You could close your eyes but ultimately there appears no other way to avoid this sort of bias exposure. It could be kind of humorous if it wasn’t also pretty disturbing in its scope.
Here’s a succinct description of the actual process the researchers used to test their hypothesis:
“The recent study found that participants who had initially viewed a series of magazine ads for alcoholic beverages made more errors indicative of racial bias in a subsequent task than did others who had initially seen ads for non-alcoholic beverages, such as water or coffee.
Test participants were shown a series of ads for either alcoholic or non-alcoholic beverages. They then completed a computerized task in which pictures of white and black men’s faces were shown for a split second, followed immediately by either a picture of a handgun or a tool. Numerous previous studies using this same task have shown that people often mistakenly identify tools as guns following presentation of a black face, a response pattern attributed to the effects of racial stereotypes. The fast pace of the experiment kept participants from thinking about their responses, which allowed the subconscious mind to control reactions.”
What this research (along with other studies we have reported to you) demonstrates is that in 2012, we still assume black men are aggressive, violent and dangerous. We still assume white men are higher status occupationally than black men regardless of how they are dressed. And, according to this research, when we are primed by alcohol (whether via direct ingestion or merely viewing advertisements for alcohol), we are more likely to see black men as wielding weapons (as opposed to say, wallets, cell phones or car keys).
The researchers show awareness of how insidious and dangerous this ‘priming’ is:
“The findings reported here suggest that people could be more likely to act upon their prejudices simply for having entered a bar, watched an alcohol advertisement, or passed a relevant billboard on the highway.”
It’s like the recent research on how religious primes can increase our racial prejudices without even trying. We like to believe we are rational beings who make choices as to how we act and make decisions. Here are, not one but two studies that would beg to differ. We need to take both of them into consideration, so that jurors have conscious awareness of potential biases in their decision-making processes.
Stepanova, E., Bartholow, B., Saults, J., & Friedman, R. (2012). Alcohol-related cues promote automatic racial bias Journal of Experimental Social Psychology DOI: 10.1016/j.jesp.2012.02.006
Black? On trial in Florida? You don’t want an all-white jury!
Infographics are fabulous inventions. We can spend a long time describing the results of a study or we can simply show you a picture. In this case, it’s an infographic designed by Duke University.
Yes, you saw that right. Some new research mirrors the findings of research conducted three decades ago!
If you were a black criminal defendant in Florida between 2000 and 2010, with an all white jury you were convicted 81% of the time. On the other hand, if you were a white criminal defendant with an all white jury, you were only convicted 66% of the time. If, however, there were African Americans (even just one) on your jury–the difference in conviction rates between black and white defendants almost disappeared.
Justice is not intended to be a random event and one of the researchers speaks to that in a story on the research.
“The findings imply that the application of criminal justice is “highly uneven,” Bayer said, because conviction rates vary substantially with random variation in the racial composition of the jury pool.
“Simply put, the luck of the draw on the racial composition of the jury pool has a lot to do with whether someone is convicted and that raises obvious concerns about the fairness of our criminal justice system,” Bayer said.”
There are clearly issues that need to be addressed and it likely is not only in Florida. While there are ways to reduce these sorts of verdict discrepancies by raising jurors’ awareness of the need to behave in a non-biased fashion, it is disturbing that the difference between conviction of white and black defendants is demolished by having a single juror of color.
If you are a defense attorney, this is likely a good article as evidence that, even in 2012, your African American client is less likely to get a fair trial with an all-white jury.
Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The Impact of Jury Race in Criminal Trials The Quarterly Journal of Economics, 127 (2), 1017-1055 DOI: 10.1093/qje/qjs014
The foreign-language effect: ESL Jurors
We’ve seen multiple examples of jurors being excused because they learned English as a second language (ESL) and their English is limited. But new research shows us that there may be an advantage to the juror thinking in English when it is their second language.
Researchers were interested in if and how the use of a foreign language affected judgment and decision making. They tested three groups of university students: Americans, Koreans and native English-speaking students studying in Paris, France. All of the research participants had chosen a language to study at university. The researchers discuss two different points of view on decision-making and bias. One view is that thinking in a foreign language takes so much effort that you will make fast and not particularly systematic decisions. The other view is just the opposite–that when thinking in a foreign language, you make slower and more systematic decisions.
After conducting four experiments, the researchers reported that when you are thinking in a foreign language, you are more likely to apply systematic thinking to what you hear than you are to rely on stereotypes and heuristics. In other words, you have less (not more) bias in your decision-making processes.
The researchers hypothesize that when you are thinking in a foreign language, you automatically have more psychological distance from the situation and are more able to consider rationally without excessive emotional interference.
We know that the more emotions enter into a decision-making process, the more biased the thinking processes.
We also know that trial lawyers are often wary of the English-as-a-second-language juror.
What this research says is that, if English is chosen as an area of study with the goal of mastering the language, these jurors will focus and exert cognitive effort to process the evidence in a non-biased and non-emotional way. [We can’t know about those who end up in America but exert little effort to learn the language as this research was done on students who had chosen to learn foreign languages in a university.]
This study is an interesting start, but the limitations of this study are several, as they relate to trial advocacy. First, these are college students with a heightened interest in different cultures (they are studying outside their native culture and language). They may be brighter than many jurors. Second, many ESL jurors in the United States are undereducated, disempowered, and poor. They are not likely to be as assertive as the native English speakers in the jury. The effects described in the study may be exactly on point for the study subjects, but they may not generalize in a way that is meaningful for jury applications. Other biases and perspectives need to be kept in context when the goal is one of determining trial outcomes.
It’s another “don’t guess and don’t generalize” lesson for voir dire. Not all for whom English is a second language should be automatically discounted for jury participation.
Keysar, B., Hayakawa, S., & An, S. (2012). The Foreign-Language Effect: Thinking in a Foreign Tongue Reduces Decision Biases Psychological Science DOI: 10.1177/0956797611432178
Dining while black: “Because they tip for ****!”
Wow. So much for that “post-racial society”. On the heels of the new Duke study about all white juries in Florida convicting black defendants 16% more (still) than juries with even a single black member, we also have a study out of North Carolina State University on what the authors dub “tableside racism”. In other words, if you go out to eat, are you treated differently based on race? In a word, yes.
Here are two questions from a survey conducted of 200 waitstaff working at 18 full-service restaurants in 2004.
“Which is the most ideal race to serve?”
White: 64.7%
“Which is the least ideal race to serve?”
African American: 54.6%
Further, 38.5% said race influenced their manner of waiting on restaurant patrons and 52.8% of servers saw co-workers providing poorer service to African American patrons. More than half of the servers [57%] acknowledged they also had provided poorer service to African American patrons. A 2012 follow-up paper offers specific documentation of waiters paying each other to wait on the “black tables”, discriminatory behaviors clearly evidenced while African American patrons waited to be served, and comments by wait staff clearly evidencing wide-spread bias against African American customers for being poor tippers and “difficult” customers.
Denny’s and Cracker Barrel are perhaps the most well-known of the restaurant discrimination lawsuits, but a full 23.5% of the 81 published federal court opinions between 1990 and 2002 involved dine-in restaurants. [When fast food restaurants are included, the percentage increases to 36% of the identified opinions.]
It’s a disturbing and intriguing study when we consider the role of race in litigation advocacy. The restaurant servers had multiple negative adjectives to describe African American patrons: picky, demanding, hyper-sensitive, rude, mean, et cetera. It is likely a reflection of the attitudes just beneath the surface for many Americans. Yet, there are some differences:
Our mock jurors often deny bias on their own part but emphatically insist that “the real jurors from this area” will undoubtedly be biased. Over the years, we’ve only had one overtly race-driven conflict in our pretrial research groups but we’ve had a lot of covert conflicts (some of them very thinly veiled).
In this survey, more than half of the servers reported they both saw discrimination by peers and participated (i.e., were discriminatory) themselves. This may reflect the difference between completing questionnaires anonymously and having a face to face discussion with peers and a facilitator. Our mock jurors may simply be (usually) less willing to acknowledge their own biases.
Customer service work is hard. It is likely servers make sweeping generalizations about customers since their salary is largely tip-based. As the researchers say, it behooves restaurants to discourage this sort of behavior and to encourage good service for everyone to avoid a self-fulfilling prophecy where African American customers are lower tippers based on poor service.
Being aware of these stereotypes is important as you prepare your case narrative, introduce your African American client or witness to the jurors, and prepare your witness for testimony. The pervasiveness of racial discrimination is rampant. You have to intervene directly and strategically to have the optimal outcome for your client.
We are a long, long way from being a post-racial society. Until then, we need to plan, assess, investigate, and intervene strategically to keep covert and overt bias from preventing a fair trial.
Brewster, Z., & Rusche, S. (2012). Quantitative Evidence of the Continuing Significance of Race: Tableside Racism in Full-Service Restaurants Journal of Black Studies, 43 (4), 359-384 DOI: 10.1177/0021934711433310
Sarah E. Rusche, & Zachary W. Brewster (2008). ‘Because they tip for shit!’: The Social Psychology of Everyday Racism in Restaurants. Sociology Compass, 2 (6), 2008-2029
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