Archive for the ‘Decision-making’ Category
We all want our expert witnesses to be influential with jurors. But when you have an expert testifying about forensic science (like fingerprint or DNA identification) what part of the testimony is going to influence jurors the most? Will it be the science? The technology used by the witness to interpret and understand the data? Or some characteristic of the witness? A new study tells us what jurors find most influential as they make decisions about your case.
You may find these results distressing (or you may breathe a sigh of relief over them). The researchers were interested in seeing how much the
“science” (i.e., how has the method the witness used to determine their findings been tested and validated) was persuasive, to what degree the
“technology” (i.e., is the technology older or is it new, whiz-bang technology of the latest findings) was persuasive, or, to what degree
“individual characteristics” of the witness (i.e., education and experience) was the most persuasive to jurors.
So was it the whiz-bang of the technology or the validation of the technology used? Nope. The individual background and experience of the expert witness was what most persuaded jurors. In other words, credibility turned on whether the jurors found the expert witness was qualified and had the experience base to understand the science and communicate their findings effectively. And in our experience, the likability and personal appeal of the expert is a significant additional factor that goes well beyond credentials.
Courts have long asserted standards for admissibility of scientific evidence and testimony. Jurors always insist that they need to understand the science in order to judge the merits of a technological or scientific dispute, but in truth most jurors get tired of trying to figure it out pretty quickly, unless they have a background that gives them a head start. Ultimately, the messenger is a crucial part of the evidence, and for those who struggle to understand it, the messenger (i.e., your expert witness) is a crucial factor.
Many of us also have beliefs that the latest technology is more persuasive than tired, old-fashioned and low-tech ways of interpreting data. But in this study, jurors compared fingerprint experts using either whiz-bang technology with computerized matching of prints or a visual scan of the fingerprints using the ACE-V (analyze, compare, evaluate, and verify). While the ACE-V method may “sound” good to jurors, the National Academy of Sciences (NAS) report in 2009 stated that the ACE-V method of fingerprint analysis was “not specific enough to qualify as a validated method”.
Regardless of the invalidation of the ACE-V method, the experienced expert won out over the technology. The researchers thought perhaps jurors were not confident that the witness using whiz-bang technology knew enough about how to interpret the results accurately.
So, what it came down to both times (across two experiments) was juror evaluations of the experience of the testifying forensic scientist. Researchers said the jurors “leaned on the experience of the testifying forensic scientist to guide their assessments of the soundness of his [sic] findings”. In another section of the paper, the researchers opine that witness “experience serves as a proxy for scientific validity”.
Even more disturbing, the researchers asked participants for the “total number of college and graduate level classes in science, math, and logic that you have completed”. They thought those who were more educated in scientific methods would focus more on the scientific validity of the analysis used by the testifying expert. This was not the case.
“It may be that jurors simply didn’t perceive a connection between the scientific validation of a forensic technique and its accuracy.”
From a litigation advocacy perspective, this speaks to the importance of educating jurors at a level they can understand about the science behind the expert’s interpretation. We have blogged before about using skepticism in direct examination and this approach (wherein you have your expert discuss the methods used by the other expert and why your expert’s strategy is more reliable and valid) would be a good strategy to discredit opposing counsel’s expert.
Overall, when your case relies on science and technology, use pretrial research to ensure jurors understand enough of the science to make educated and informed decisions about the evidence. If you do not make sure you are teaching at a level they understand, it is likely they will fall back, like the jurors in this research, on their intuition about witness experience and training (and probably on how likable, knowledgeable, confident, and trustworthy is the expert) rather than on whether the expert used credible methods used to analyze the evidence.
Koehler, J., Schweitzer, N., Saks, M., & McQuiston, D. (2016). Science, technology, or the expert witness: What influences jurors’ judgments about forensic science testimony? Psychology, Public Policy, and Law, 22 (4), 401-413 DOI: 10.1037/law0000103
We have written a lot about how women are treated unequally (which can, sometimes, make it hard to be a woman). Initially, we illustrated these posts with various photos of Tammy Wynette but we decided to stop picking on her for one song (“Stand By Your Man”). So this post illustrates a rough truth (that still exists today) and we are illustrating it with an ironic cross-stitch project.
Researchers wondered if being agreeable (aka ‘nice’) versus being disagreeable (aka ‘nasty’) would make a difference in salary treatment for either men or women. (You know how this works out already.) We should note that the study (using 375 men and women randomly drawn from 1,390 employees) only sampled one company. So, it may not be entirely generalizable. Mmm-hmm—we’ve blogged about this issue before and that study had the same results.
For those that want to know these things, the researchers looked at both objective (e.g., tenure, education, performance reviews) and subjective (e.g., how the individual perceived the fit between their education, experience and performance with their income and professional rank). They also used several research measures for dominance and agreeableness. The researchers compared the objective and subjective data with actual income and promotion statistics within the company.
Dominant and assertive woman (aka nasty) who clearly express their expectations and do not retreat from their demands, are compensated better than their more accommodating (aka nice) female peers.
The same goes for dominant men versus their more conciliatory male counterparts — (wait for it) but even dominant women earn far less than all of their male colleagues, dominant or otherwise.
So, be a dominant and assertive female (aka ‘nasty’ among other things) and you will earn more than your less assertive female colleagues, but the most milquetoast of men will still out-earn you based on nothing but gender. The researchers said something else that was somewhat shocking:
The nice women we polled in our study even believed they were earning more than they deserved. This blew our minds. The data show that they earn the least, far less than what they deserve. And they rationalize the situation, making it less likely that they will make appropriate demands for equal pay. [In comparison, nearly everyone else—nasty women, nice men, and nasty men reported they felt dissatisfied with their compensation.]
From a law office management perspective, this research has much to say about equity, understanding gender bias and gender differences, and how to evaluate, compensate, motivate and retain attorney-associates. The researchers suggest organizational management strategies (thankfully) as follows:
Design evaluation and compensation systems so they are structured and based on objective data (and less dependent on negotiation skills). This may actually help you retain and motivate employees of both genders with varying levels of experience.
Consider being more transparent about compensation so that employees (the nice, the nasty, the male, the female) know what will need to be done to progress in status and compensation within your organization.
Perhaps the most important takeaway from this article is that ‘nasty’ women who complain they are not being treated fairly may very well be accurately assessing their situation. There have been many articles on the exodus of female attorneys from law firms. The ABA Journal, Law Practice Today, law.com, the Washington Post, researchers from Stanford University, and countless blogs have written about the issues. The two recommendations from these researchers (indented above) may well help you staunch that (out)flow when it comes to your individual organization.
Biron, M., De Reuver, R., & Toker, S. (2015). All employees are equal, but some are more equal than others: dominance, agreeableness, and status inconsistency among men and women European Journal of Work and Organizational Psychology, 25 (3), 430-446 DOI: 10.1080/1359432X.2015.1111338
We love Pew Research and their work on cataloguing how society here in the United States changes slowly or quickly (as the case may be) over time. A review of their hard work gives you a sense of what changes are underway in our now constantly changing “new normal”. They have published a lot in 2016 to help us understand how our potential jurors are changing. Take a look at just a few of the sixteen stories they deem “striking” from 2016. We’re telling the Pew story with their own pictures. Go to the site itself to read the details. [The spacing on this post is beyond us so please scroll…thanks!]
Significant demographic changes in America have reshaped our major political parties—our political parties look very different now than they did during the George W. Bush presidency.
And voters are divided on where the country is headed as well as whether that direction is better or worse.
Millennials are now the largest generation of living Americans (bigger than Boomers)
And more of the Millennials live with their parents than ever seen with young people before (although it should be noted that this trend has been growing for years now and it is not a Millennial “thing”).
Along with generational shifts, we are also seeing increased racial tensions with about four-in-ten blacks (43%) being skeptical that America will ever make the changes needed for blacks to achieve equal rights with whites.
And we are wary of what new technologies will mean for our lives.
The Pew summary of the 16 most striking findings in their surveys published in 2016 is fascinating reading if you want to know (as most of us do) how the country is changing and what that may mean for our potential jurors. There is more division and demographic change than we’ve seen in some time and it will most likely play a significant role in how your case is heard by jurors.
Take a look at Pew’s end of year summary and update yourself on how things stand now on a wide variety of subjects that may be part of your own up coming case narratives.
Images taken from Pew site
Here’s an update on the stash of tattoo posts we have here. This is a collection of new research on tattoos (to make sure we are up to date) that will undoubtedly help you decide what your individual ink means/will mean, and of course, what it suggests about your jurors, your clients, your kids, and maybe you, too! We’ll start out with the punch line from one of the articles (Galbarczyk & Ziomkiewicz 2017): women do not find tattooed men irresistibly attractive despite what men think about other men with tattoos.
Do women really “dig” tattoos? (Not so much)
Men apparently believe that a man with tattoos is likely to be serious competition for the attention of a woman. Women themselves do not generally see tattooed men as the be all, end all. That (perhaps surprising) conclusion is according to new research out of Poland where 2,584 heterosexual men and women looked at photos of shirtless men. In some of the photographs, the man’s arms were marked with a smaller black symbol (see graphic illustrating post for one of the photo pairs). Men rated these tattooed men higher in terms of what (they thought) women would look for in a long-term partner. Women did not agree and rated the tattooed men as worse candidates for long-term relationships than the men pictured without tattoos. Once again, men don’t seem to understand what women find attractive. The authors wanted to figure out if women or men were more drawn to tattoos on men and they conclude this way: “Our results provide stronger evidence for the second, intrasexual selection mechanism, as the presence of a tattoo affected male viewers’ perceptions of a male subject more intensely than female viewers’ perceptions.”
In other words, when men get tattooed, other men are going to be more impressed than will women. For men who are homophobic, this could be a traumatizing study.
Are tattooed adults more impulsive? (Not really)
There’s been a plethora of research done on whether the personalities of tattooed adults are different from the personalities of adults with no tattoos. And, after multiple grants of academic tenure—the answer is….not really. This study (Swami, et al.), done in Europe, had 1,006 adults, complete psychological measures of how impulsive and prone to boredom they were. About 1/5 of the participants (19.1%) had at least one tattoo but there were no real differences in terms of gender, nationality, education or marital status. There were also no strong differences in either impulsivity or likelihood of becoming bored—not for those with one tattoo and not for those with more than one tattoo (the highest number among the individual participants was 23 tattoos).
The authors concluded that tattooed adults and non-tattooed adults are more similar than different. (This doesn’t really surprise us as tattoos have become much more normative, although—there is nothing normative about having 23 tattoos.)
So are tattooed women less mentally healthy than non-tattooed women? (Nope)
Women with tattoos have been seen as deviant and anti-social in past research.
If that seems odd to you, know this: When I was in graduate school, there was a widely held view that women with multiple ear piercings as more likely to have personality psychopathology. Multiple piercings were outside the norm of behavior then, and are now, much more common.
So—here’s a study out of Australia (Thompson, 2015) looking at whether that is still the case. This study was completed using an internet survey (710 women) which asked participants to complete the Loyola Generativity Scale. The term generativity comes to us from psychological research and is, very simply, the desire we have (or do not have) to contribute positively to the future. You will often see generativity used to describe the desire to mentor younger people in career or other life areas.
The people who developed the scale describe it this way: “Generativity is a complex psychosocial construct that can be expressed through societal demand, inner desires, conscious concerns, beliefs, commitments, behaviors, and the overall way in which an adult makes narrative sense of his or her life.” (With no offense intended to the scale developers, it is likely easier for you to think of generativity as a desire to positively contribute to future generations.) Essentially, this researcher wanted to see if women with tattoos would have the same level of generativity as women without tattoos.
As in the study of risk-taking and impulsivity that preceded this one, there were no differences between tattooed and non-tattooed women in terms of their level of generativity. What was seen as edgy and counter-cultural 30 years ago is now merely a personal expression and fashion statement.
Finally, can we trust tattooed adults if they have a tattoo with a Christian-theme? (It depends)
This research focused on what they identified as “mixed signals” which they defined as a signal projecting untrustworthiness (in this case, a tattoo) but where the theme or content of the signal suggests trustworthiness (in this case a tattoo of a religious symbol, the cross). Interestingly, this researcher chose to place the tattoos on the neck (either on the side or centered under the chin). While the third photo may look like a necklace to you, it is actually a tattoo. Some were photos of men or women with cross tattoos, others were men or women with star tattoos, while still others saw men or women with no tattoos.
Participants included 326 people who were shown 26 photographs and asked to rate trustworthiness of the person pictured on a scale from 1 (extremely low trust) to 7 (extremely high trust). Only after they had rated the photos were the participants asked whether they would identify as Christians (58.9% did) and if they had tattoos themselves (31% did). The results here are (ironically) mixed.
Christian participants rated the face without tattoos (which perhaps would have communicated shared values) as more trustworthy than the tattooed faces but they also rated faces with the religious tattoo as being more trustworthy than non-Christians did. Non-Christian participants thought the religious tattoo face less trustworthy and the star tattoo face more trustworthy.
From a litigation advocacy perspective, this series of articles on tattoos and what they mean in the present day to the observer, tells us you cannot rely on knowledge from a few years ago to inform you on what a tattoo means now. It is the same with venires—old knowledge is old knowledge. Do not assume that the venire is the same as it was 5 years ago—or that neck tattoos are always signs of deviance. Update yourself. Jurors will probably feel it and be more open to your message.
Galbarczyk, A., & Ziomkiewicz, A. (2017). Tattooed men: Healthy bad boys and good-looking competitors Personality and Individual Differences, 106, 122-125 DOI: 10.1016/j.paid.2016.10.051
Swami, V., Tran, U., Kuhlmann, T., Stieger, S., Gaughan, H., & Voracek, M. (2016). More similar than different: Tattooed adults are only slightly more impulsive and willing to take risks than Non-tattooed adults Personality and Individual Differences, 88, 40-44 DOI: 10.1016/j.paid.2015.08.054
Thompson, K. (2015). Comparing the psychosocial health of tattooed and non-tattooed women Personality and Individual Differences, 74, 122-126 DOI: 10.1016/j.paid.2014.10.010
Timming, A., & Perrett, D. (2016). Trust and mixed signals: A study of religion, tattoos and cognitive dissonance Personality and Individual Differences, 97, 234-238 DOI: 10.1016/j.paid.2016.03.067
Images from Galbarczyk & Ziomkiewicz and Timming et al. articles
We’ve seen the reports of hate crimes skyrocketing—both in general, and specifically for Muslims. Now a new report says the self-reports of discrimination from Latinos have doubled in the past decade. The study used data from the National Latino Health Care Survey (a telephone survey of 800 Latino adults completed in 2013). The lead author says this is particularly chilling given the verbiage used during the US presidential elections toward immigrants and immigration. In a news release on the article, the lead author says the research suggests an “increasingly negative immigration policy environment and anti-immigrant sentiment is likely to engender higher levels of discrimination”.
Here are some of the main points in the article:
68.4% of the survey participants reported discrimination. This is comparable to the level of discrimination reported by Blacks in the US (although more than twice as high as the rate found in 2002-2003—which was 30%).
More anti-immigrant state level policies were associated with higher levels of discrimination (perhaps because the government was seen as sanctioning discrimination against immigrants).
Both foreign and US-born Latinos were stigmatized by anti-immigrant policies.
Although anti-immigrant policies are not about health, they can negatively impact health (in part through exposure to increased discrimination).
The authors conclude their article by saying this:
As the recent political rhetoric serves to further marginalize (Latino) immigrants, and comprehensive immigration reform remains a political topic, it is more important than ever to understand the health impact of anti-immigrant policies on all Latinos.
From a litigation advocacy perspective, as Texas-based trial consultants we have always seen anti-immigrant sentiments [typically surrounding questions of legal status] in our pretrial research and have blogged about it a number of times. What this says to us is that, regardless of where your case is to be tried in the US—you need to pay attention to anti-immigrant sentiments if your client, the parties, the witnesses, or you yourself—are non-White. You will need to evaluate whether race or ethnicity is salient to your case and then make decisions about how to best advocate based on that reality.
Almeida, J., Biello, K., Pedraza, F., Wintner, S., & Viruell-Fuentes, E. (2016). The association between anti-immigrant policies and perceived discrimination among Latinos in the US: A multilevel analysis SSM – Population Health, 2, 897-903 DOI: 10.1016/j.ssmph.2016.11.003
Article is available open access at: http://www.sciencedirect.com/science/article/pii/S2352827316301471