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.

Image

No related posts.

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

Image

Related posts:

1. Arkansas: If a judge calls you a ‘slut’ in open court, it doesn’t show prejudice
2. Eliot Spitzer, Uncivil Behavior & Possibilities of Redemption
3. Charlie Sheen or Tiger Woods? When behavior doesn’t fit the image

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

Image 

No related posts.