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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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gruesome crimeJust say his brain made him do it! That is the conclusion of new research on the relationship between gruesomeness of the crime and the harshness of the sentence. In case you can’t intuit this one, the more gruesome (and disturbing) the crime, the harsher the sentence tends to be. But if the assault was merely moderately gruesome — even though it could have been deadly– there are ways to minimize punishment decisions. 

Researchers at Duke University found that “if the focus is drawn away from the mind of a perpetrator by providing biological explanations of personality instead of traits, people may not make the same social cognitive inferences”. So how did they come to that conclusion (and what does that quotation mean)?

First of all, it’s a small sample (N = 11), likely because it’s expensive and time consuming to use an MRI machine. The researchers conducted brain MRIs while the participants read a number of different vignettes about crimes either strong in violence-related disgust or weak in disgust. The idea was for the researchers to see which areas of the brain were activated while reading the vignettes (that were either disgustingly gruesome or not so much) and then to see whether the participants chose punishment less than the US Federal Sentencing Guidelines or chose the harsher recommended sentence. (We’ve written about disgust before and these researchers equate “gruesome” with “disgusting”–apparently thinking of the visceral reaction to gruesome photos or mental images elicited from written descriptions.)

Here are examples of the vignettes used:

Rob Whitley was on his lunch break. He saw his boss at the hot dog stand and approached him while taking out a pair of scissors. He stabbed his boss on the side of the neck first, and then the lower back, causing the victim serious blood loss and requiring hospitalization. (This vignette was described as high in disgust.)

John Noel was at a bar and saw his ex-girlfriend’s new lover, James. Although John was not expecting to see James there, John took out the gun he regularly carried in his back pocket and tried to shoot James, but missed. (This vignette was described as low in disgust.)

Both of these crimes (whether high or low in disgust) would be prosecutable for aggravated assault. Participants were asked to rate how morally reprehensible the act was, how severe the punishment should be, and how much they were disgusted by what they read. However, as is typical in research like this, there was another twist: The researchers added a single sentence to the end of each vignette describing the perpetrator’s personality using either personality traits or biological language. That is, “Gerald frequently proves to have an impulsive personality” versus “Terry has a gene mutation that has been associated with impulsivity” when the crime was premeditated murder.

And here is what they found:

When the perpetrator was described as having biological reasons for impulsivity (rather than as being impulsive), he was seen as being less responsible and punished less severely.

When crimes were strong in disgust, there were harsher sentences but there was no relationship between how personality was described (biological or trait description) and punishment.

Crimes weak in disgust resulted in less harsh punishment than the guidelines recommended while crimes strong in disgust were punished at the recommended level.

In other words, if the crime is pretty gruesome (and these researchers say therefore one jurors would see as disgusting) your client is likely to get the harsher sentence regardless of whether you invoke a neurolaw (his brain made him do it) sort of defense. But, if the crime isn’t gruesome and you invoke a neurolaw defense, your client may be seen as less responsible for his actions and punished less.

Ultimately, this dovetails well with what we’ve known for many years– its about what the jury focuses on. If the jury spends a lot of time talking about the crime and the injuries it caused, the defendant is in trouble. If there is a credible mediating explanation such as a neurolaw defense or other circumstantial evidence and the jury spends time talking about human behavior instead of terrifying assault, the defendant is in better shape.

Overall, it is important to remember that this is a study based on such a small sample of people (N = 11) that their results might not be verifiable, even when it makes intuitive sense. However,  it is worth remembering that according to this study, gruesomeness/disgust of the crime affects the assignment of responsibility but likely does not affect sentencing decisions.

Capestany BH, & Harris LT (2014). Disgust and biological descriptions bias logical reasoning during legal decision-making. Social Neuroscience, 9 (3), 265-277 PMID: 24571553

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THE BIG BANG THEORYLawyers are often taken aback when they hear mock jurors discussing their case and demonstrating little understanding of what was actually presented in evidence. We tend to see that emotional reaction go hand in hand with the excess consumption of peanut M&Ms. The more distorted the mock juror’s understanding of the evidence, the more the supply of peanut M&Ms in the room dwindles and the more attorneys pace back and forth and talk with their mouths full. 

My Dad was a pilot stationed in Italy during WWII, and enjoyed telling a story about a guy in his flight group who somehow thought that if he spoke English slowly and LOUDLY, the Italians (who spoke not a word of English) would understand him. The fact that it never worked didn’t make a difference to him. He blamed the Italians for not getting it. As smart as our readers are, I’m thinking that you know where this is heading…

It’s probably a good thing that the National Science Foundation surveys the American public routinely to see what we really know. And it’s probably a good thing for you to read it and understand how to gauge the appropriate level at which to present your case.

80% of Americans say they are interested in “new scientific discoveries”: That’s quite a lot of us. We would guess that while many are “interested”, few really bother to understand or seek out specifics beyond the headlines.

It’s the internet, not TV (and certainly NOT print media although online versions of newspapers are popular): First off, most people’s information about science and technology comes from the internet (40%, up from about 33% in 2010) and then TV. We are all familiar with the ever-present use of smart phones to look up a term or clarify our understanding, or see when our favorite reality show is showing reruns. A significant proportion still get their science and technology information from TV viewing, though. So what are they watching on TV or streaming on the internet? Bill O’Reilly, Jon Stewart, the Discovery Channel, or $10M Bigfoot Bounty? It would likely be to your benefit to know.

Zoos, aquariums, and museums: The majority of Americans say they visited a zoo, aquarium or museum in 2012 but attendance is down at zoos and aquariums. Science museums tend to be visited by those with higher income and education.

Americans scored 64% on a science factual quiz in 2012: And this is similar to our scores in previous years. Surprisingly, perhaps, Europeans score at about the same level as Americans. Questions posed had to do with evolution, the big bang theory, whether the sun revolves around the Earth or the Earth revolves around the sun, and so on. Yes, there is a big faction in our country that believes the Biblical account of creation dates the Earth to about 6,000 years, but they remain familiar with more scientifically validated ‘truths’.

We can answer a little on research design but are uncertain of specifics: Most Americans could answer two multiple-choice questions about probability but had trouble describing why one would need a control group in scientific experimentation. There was also difficulty in describing what makes an activity “scientific”.

And the list goes on and on. Americans are divided on climate change. Our support for oil and nuclear energy has rebounded. We have trouble identifying just which occupations are “scientific” and we have difficulty distinguishing science from pseudoscience. We’re not particularly concerned about genetically modified food stuffs compared to other countries. We see using stem cells from human embryos in medical research as “morally acceptable”.

We have an obligation to understand what language our jurors speak. If they don’t understand you, being loud or repetitious isn’t going to help you in court any more than it helped my father’s friend in Italy. If you know the limits of their knowledge, you can present the evidence in a way that teaches, not merely in a way that  justifies argument.

We work on a great deal of patent litigation, sometimes on software code or scientific processes that not even the lawyers for the parties truly understand. The judge doesn’t understand it. Certainly the jurors don’t. But a version of this densely scientific material can be taught. Understanding and patient testimony from an expert can reassure jurors that this witness can be trusted, and that this person will help them find their way through this strange wilderness of code, formulas, or physics.

Would trials be better if they were more like peer-review panels? Arguably, Markman hearings, rulings on motions in limine, and summary judgment decisions already get pretty close to that situation. We find that leaving the balance of the judging to actual citizen jurors usually has them finding a just verdict.

It’s worth a look at the overview of findings and the entire report itself. The results are sometimes surprising and other times disturbing. It’s information you can use to understand the level of knowledge to expect from your audience at trial.

National Science Board. 2014. Science and Engineering Indicators 2014. Arlington VA: National Science Foundation (NSB 14-01). http://www.nsf.gov/statistics/seind14/content/overview/overview.pdf

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A new issue of The Jury Expert!

Friday, February 7, 2014
posted by Rita Handrich

TJE_logo-300x99The Jury Expert is a trial skills magazine for attorneys, written by trial consultants, and published by the American Society of Trial Consultants as a (free) service to the litigation community. The February 2014 issue just published and it was worth waiting for!

Here’s a description of what you will see in our latest issue when you visit The Jury Expert’s website:

The ABCs of Religiosity: Attitudes, Beliefs, Commitment, and Faith: Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.

Neuroscience, The Insanity Defense, and Sentencing Mitigation: Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly.

A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America: Alexis Forbes brings us all up to date on research, why it’s important to understand this culture, and terminology. She includes helpful charts that visually demonstrate the relationships between common terms and even a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this!

Defense Responses to Jailhouse Informant Testimony: Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.

Metaphors and the Minds of Jurors: We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor–how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.

Why Do We Ask Jurors To Promise That They Will Do the Impossible? Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.

A new Favorite Thing: Hate spam? Especially hate how you are able to catch it at your laptop or desktop but it creeps onto mobile devices? Here’s a terrific and inexpensively priced product that will make you smile every time you get email showing you what they caught at the server level so you never have to waste time deleting spam from your smart phone or tablet again! (You are welcome.)

The Top 10 Favorite Articles from The Jury Expert in 2013! Don’t you hate it when you don’t know about something many of your friends, colleagues, and opposing counsel know? Here’s a shortcut for you: This is a list of the top 10 articles our readers (your friends, colleagues and opposing counsel) explored in 2013. Catch up quick!

As Editor of The Jury Expert, one of the real benefits for me is reading all this information first. I love learning new things and being surprised by novel ways of considering complex issues. Please visit this new issue of The Jury Expert now.

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brain pornIt’s been a while since we’ve done an update on neurolaw in the courtroom. The idea that pretty and colorful pictures of the brain (aka fMRIs) can give us a window into motivations, intent, and the creepiness of others captures our imagination. New research though, cautions us that perhaps (like the vast over-estimations of the CSI Effect) we’ve been a bit too imaginative about the impact of what is often called “brain porn” on our jurors.

Why is it called ‘brain porn’? Because the pretty and colorful pictures shown are believed to be powerfully seductive to jurors–it’s science, after all! NPR recently wrote about a series of studies (new and forthcoming) that say perhaps the tide has changed and people are now more suspicious (as opposed to the initial thrill) by what we can really learn from those neuroscientist’s pretty pictures. It’s called “neuro-skepticism”.

Back in 2008, two (now) famous studies told us that when you show people photos of fMRI scans, that information is more powerful than a bar chart showing actual data counts (McCabe and Castel, 2008). The second (Weisberg, Keil, Goodstein, Rawson & Gray, 2008) essentially said that poor explanations of varying psychological phenomena were seen as more convincing when accompanied by neuroscience information that was irrelevant to the explanation. (And this is a reason you have to keep reading the current research rather than relying on old research that had a finding you think important. Times change! And so do reactions of people to things like the pretty pictures generated by the fMRI.)

Flash forward to 2013:

“In one set of studies, authored by Hook and Farah and published in the September issue of the Journal of Cognitive Neuroscience, people judged research summaries that included fMRI images no more surprising, innovative, worthy of funding, or illustrative of good scientific reasoning than summaries accompanied by other images, such as photographs associated with the summarized research. (Hook and Farah’s initial experiment did find that fMRI images increased people’s ratings that the research summary was interesting, but this small effect wasn’t replicated in their subsequent experiments.)

Another set of studies, authored by Schweitzer, Baker, and Risko and forthcoming in the December issue of the journal Cognition, found that neuroimages only boosted assessments of scientific reasoning under very particular conditions. When participants read two fake research summaries that both involved flawed reasoning, the second was perceived to be better if it was the only one of the two stories to contain a 3-dimensional fMRI image, suggesting that something about the comparison between (poor) studies that did and did not involve brain images led to an advantage for the former.”

In other words, the seductive allure of the colorful brain images appears to have waned. The effect is now likely neither particularly powerful or persuasive. That’s another way of saying that the neurolaw craze may have gone the way of the CSI Effect and is now much ado about nothing. No longer novel. No longer an expectation. What they do say that is particularly important for litigation advocacy is this:

“Anything that smacks of hard, objective science might be enough to fool people’s judgments when more effective ways to assess scientific quality aren’t readily available, either because information is limited or the individual lacks relevant expertise.”

Note that quote is not really about either neuro-images or neuroscience. Instead it is about something familiar to us all. When opposing counsel puts up information that sounds important, intelligent, and scientific, you need to educate jurors on how to understand it differently and how other experts might beg to differ with their conclusions. Too often jurors are stuck with either believing one presentation that they don’t really understand, or another view that is equally incomprehensible. So they end up judging the messenger instead of the message, which includes demonstrative images and data transformations (like neuro-images). And we choose to blame the ‘stupid gullible jurors’ who are left with the responsibility of trying to find the truth in the dark.

We’ve seen highly technical information presented effectively a number of different ways, but perhaps most often, it’s done through the direct examination of a well-prepared expert who is relatable; a person jurors experience as being respectful and not condescending while also teaching them what they need to know to do their civic duty.

Recently, we saw it very effectively done by showing jurors an educational (and brief) video found on YouTube (seriously) that quickly and succinctly explained a very complicated process in a way everyone in the room understood (and they were thrilled to be able to ‘get’ why this was such an important issue). Those mock jurors were grateful to Defense counsel for teaching them something they saw as critically important for their decision-making in the case. (And their gratitude was evident in their increased receptivity to his case throughout the remainder of that trial.)

You can do it with days and days of eye-glazing testimony from various experts. Or you can do it relatively efficiently with a really good expert witness who understands the goal of his or her testimony is to teach the jurors important information clearly and concisely. And you can maybe even do it with a YouTube video to guide the expert direct examination. We know (through very painful and mind-numbing experience) which version jurors prefer.

For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita

Hook CJ, & Farah MJ (2013). Look again: effects of brain images and mind-brain dualism on lay evaluations of research. Journal of Cognitive Neuroscience, 25 (9), 1397-405 PMID: 23879877

Schweitzer NJ, Baker DA, & Risko EF (2013). Fooled by the brain: re-examining the influence of neuroimages. Cognition, 129 (3), 501-11 PMID: 24041836

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