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Archive for the ‘Forensic evidence’ Category

When my kids were younger, I used to talk to them about the difference between intent and impact as they struggled to understand the varying reactions of people to their behavior. Back in 2009, we posted on some new research showing that we reacted more indignantly when bad deeds were done “on purpose”. Here is some of what we wrote then and you may want to visit that post in full as well:

This is an intriguing study because it speaks to the heart of telling the emotional story at trial.  You want jurors to have an emotional response—a connection to your story, to your client. You want them to ‘want to’ find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was ‘intentional’, jurors may have a stronger emotional response to it. [snip]

Your goal is to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right”. Show them it isn’t right. Show them it isn’t legal. Give them facts to buttress their feelings in deliberations.

It is research we often consider when we hear that common refrain from our mock jurors—“it may be legal but it sure isn’t right”. But this is eight years later and technology has advanced to the point that we now have research telling us a brain scan can tell us whether someone was acting “knowingly” as opposed to “recklessly”.

We are grateful the researchers point out that their technique “represents a proof of concept, and not yet a usable tool”. Nevertheless, expect to hear this one coming to a courtroom before too long (much like the other neurolaw defenses we’ve covered here before).

Here’s what they did. The researchers used “neuroimaging and machine-learning techniques” (aka fMRI) to display varying brain activities related to whether the defendant “knew he was carrying drugs” or “merely aware of a risk that he was”. They clarify this question of “criminal intent” is what criminal juries must determine—in other words, was the defendant’s behavior “knowing” or was it “reckless”?

While there have been studies using fMRIs before this one, the authors say there are “no fMRI studies [snip] that have attempted to determine whether and how the ‘culpable mental states’ map onto differential activations in the human brain”. In other words, if you know you are behaving illegally do different parts of your brain “light up” as compared to when you are aware you might be acting illegally but proceed recklessly.

So, fMRIs are expensive but the researchers did 40 of them (20 men and 20 women). Half the participants were told they were carrying a suitcase containing contraband (the “knowing” condition) and half were told their suitcase might have contraband in it (the “reckless condition”). After that introduction, into the fMRI machines they went.

Those in the knowing condition (who knew they were carrying contraband) were more likely to “light up” in the anterior insula (said by the authors to be involved in the assessment of risk and uncertainty) and the dorsomedia area of the prefrontal cortex (said by the authors to be involved in assessing probabilities) of the brain.

Those in the reckless condition were more likely to “light up” the occipital cortex (said by the authors to reflect higher uncertainty).

The researchers comment on the small sample size and other issues with their study that preclude generalizability. For this show of reticence and respect for statistical realities we are grateful. The reality is that, no matter what areas of the brain light up, we can’t know if that shows the difference between “knowing” and “reckless” or if it is simply a response to risk level. Not to mention, these were imagined behaviors and not real ones.

Our mock jurors have been very suspicious of neurolaw findings and whether you can “prove” they mean what the researchers say they mean. Neurolaw developments remain a very interesting but “not ready for prime time” area of research, or perhaps better said, “not ready for a Daubert challenge”. If you are interested in knowing more about neurolaw, here’s a review of the book Law and Neuroscience.

Vilares I, Wesley MJ, Ahn WY, Bonnie RJ, Hoffman M, Jones OD, Morse SJ, Yaffe G, Lohrenz T, & Montague PR (2017). Predicting the knowledge-recklessness distinction in the human brain. Proceedings of the National Academy of Sciences of the United States of America, 114 (12), 3222-3227 PMID: 28289225

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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

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leadership-geneA recent symposium for IT executives included a presentation that pitched the idea of genetic screening of job applicants for traits like “honesty, leadership, being a team player, and having a high level of emotional intelligence”. While we think you may want to hang onto your checkbook if offered this sort of service, it is a disturbing outgrowth of the burgeoning research into genetic testing for almost everything. Here is a quote from the Seeker website which brought this possibility to our attention:

Although federal and states laws prohibit employers from requesting or using an employee’s genetic information, genetic testing is mainstream. Millions of people voluntarily pay to have their genomes analyzed thanks to inexpensive DNA kits available from companies like Ancestry DNA , Genome , 23andMe, Family Tree, to name a few. And research is moving forward in fields such as psychiatric genetics, trying to find correlations between genes and behavior.

“We fully appreciated the lack of legality and some of the issues with the science,” Furlonger told Seeker by email. “Nonetheless, it seems clear that work is being undertaken and therefore the current state should not be ignored.”

We are glad they appreciate the “lack of legality”. (Some researchers do not acknowledge the legal concerns—like this group on how to hire the “good psychopath” by testing them pre-hire.) The actual best answer to this question is that there is no gene for leadership (or honesty, or being a team player, or having high emotional intelligence) and there is no way testing of this sort would be useful to a company trying to figure out who to hire.

Neurolaw researchers (like Hank Greeley) are speaking up against this strategy:

“Why would an employer rely on imperfect, and generally weak, associations between genes and test scores instead of relying directly on the test scores?” said Henry Greely, director of the Center for Law and the Biosciences at Stanford University and the chair of steering committee of the Center for Biomedical Ethics. It’s like running, he said. Rather than look for genetic variations that indicate whether someone is a good sprinter or not, just watch a person sprint. That ought to tell you all you need to know.

We agree and are glad to have voices of reason speaking out against the desire to “push the hiring envelope” into areas that make no sense and violate medical privacy (as well as statistical integrity). Because while the genetic testing can’t tell you anything about the purported target traits, they can tell you things about the person that should not be a factor in hiring (including gender, possibly ethnicity, and medical issues). Will genetic testing results be a tool to worsen the problems of women and non-Asian minorities in breaking into STEM fields? Here’s what we wrote in August 2016 when we came across the “good psychopath” workplace fit test. We think it works for this idea too.

From a law office management perspective, we really would urge rejecting this sort of strategy. What they seem to intimate is that you want to find the 10% of the psychopathic population who have moderate psychopathic tendencies and then, divide them into primary and secondary psychopaths and then, figure out which of the primary psychopaths have really good social skills so their behaviors will not wreak havoc in your workplace.

Putting on our duly licensed Psychologist hats for a moment, the distinction seems to be a very slippery slope. Secondary psychopaths are trouble from the beginning. Primary psychopaths have better social skills so they can manage the day-to-day more successfully, but under stress they are going to create havoc, too. And we have never seen a trial team that isn’t under terrific stress. It is the nature of litigation, and stress tolerances need to be higher than average, not a potential area of weakness.

The authors put a troubling amount of faith in a psychological trait scale, when you can assess the same things by looking at work history, length of relationships, and having your own warning signs on high alert during the interview process. Use your intuition about whether someone will be a good fit. It is also risky to assume you can “get around” the Americans with Disabilities Act by using the PPI-R scale with job applicants when what you are measuring is psychopathy and resulting goodness of fit in your workplace.

And a high-functioning psychopathic attorney is just the kind of person to drag you through a lawsuit by claiming that you rejected him or her based on an ADA protected factor.

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CRISPR teaching videoWe’ve written about CRISPR (aka gene editing) before and even about concerns of Americans about use of emerging technologies, and while this post is sort of about CRISPR—it is also about visual evidence done right.

We often work on cases where jurors will need to understand very complex information. It may be a patent case or a complex business litigation case or something else that is technically daunting—but jurors often need to understand something very complicated. And often that something is very technologically advanced (and thus intimidating to the jurors).

It is almost always a very difficult process for the attorneys in a complex case (in which they have often been buried for years) to see through the many details of a complicated technology and tell a simple (yet accurate) story for jurors. We often test visual evidence in our pretrial research to see what resonates with jurors, what they remember, and what helps them to make sense of abstract and esoteric technology, processes, or patented ideas.

When we see terrific examples of visual evidence (culled from many different areas) we like to share them here to help you understand there really is a way to take very, very complex facts and details and make them accessible to those who have no experience whatsoever in the area and may be very intimidated by even attempting to understand the information.

Here is just such a video tutorial. This video uses cartoon images and plain language to explain the gene editing technique referred to as CRISPR. While the last parts of the video place it clearly in the pro-CRISPR camp, the first parts explain the technology clearly and succinctly. Because it is in a cartoon format (with which we are all familiar from childhood) it is non-threatening. Since it is visually presented, we are able to understand a tremendous amount of technical information without jargon or numbers that make less technical viewers’ eyes glaze over.

If CRISPR can be explained in a few minutes of cartoons, you can explain anything in ways the most naïve juror can understand. All you need is a fabulous visual evidence consultant. We happen to know a few of them!

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psychopath brain 2016This will shock you, or maybe relieve you: Psychopaths are different from the rest of us. Here’s another article saying there are measurable differences in how the brains of how criminal psychopaths work (and look) when compared to non-criminal psychopaths (those who have psychopathic traits but have not been convicted of criminal offenses) and non-psychopaths.

While many criminal offenders have psychopathic traits, there are some psychopaths who never commit offenses (at least, for which they are convicted). Today’s researchers wanted to see if there were “brain differences” visible on an MRI. They tested 14 convicted psychopaths and 20 non-criminals—half of whom who had a high psychopathy scale score but had not been convicted of any offenses. This is a very small group size but as they comment—it is the first time convicted offenders have actually been examined.

They found a few differences and the following is a summary of their findings:

Psychopaths (both criminal and non-criminal) have stronger reward centers in their brains

To clarify, the brain’s reward center—called the nucleus accumbens—“is responsible for recognizing and processing the rewards and punishments that follow from our actions”. The researchers had participants perform various tests while in an MRI scanner to measure brain activity. Those who had no significant psychopathic traits had a weaker response in the brain’s reward center than did both the criminal and non-criminal psychopaths.

Low self-control and less response to reward in criminal compared to non-criminal psychopaths

Good communication between the reward center of the brain and an area in the mid-brain is seen as reflecting good self-control. The authors found that criminal psychopaths did not have as good communication between those brain areas as did non-criminal psychopaths. While this is the first time criminal psychopaths were actually examined in this way (and there were only 14 of them) the researchers think it possible that the tendency to commit a criminal offense stems from a combination of a lack of responsiveness to reward and a lack of self-control.

Among the other lessons learned was a sense that when your reward center is extremely sensitive, you may be more likely to behave impulsively. The researchers think a sensitive reward center may be more predictive than a lack of empathy but obviously follow-up studies are needed. They also think that if future studies continue to show the brain plays an important role in criminal behavior—we may yet see brain scans being used in forensic examinations for diminished responsibility down the road.

While neurolaw advances are not being published as quickly as they were for a while, there are still multiple researchers working on the question of responsibility for criminal acts when your brain is demonstrably different from a non-psychopath. This is an interesting line of research in terms of comparing criminal psychopaths to non-criminal psychopaths and non-psychopaths. The small sample size is a concern and we need to wait for larger samples but the ideas are ones we think likely to continue to spark new research until we have to deal with these questions of responsibility in the courtroom. We’ve written about this area frequently so if you’d like to see what our mock jurors say in pretrial research, take a look at the neurolaw category in our blog.

Geurts DE, von Borries K, Volman I, Bulten BH, Cools R, & Verkes RJ (2016). Neural connectivity during reward expectation dissociates psychopathic criminals from non-criminal individuals with high impulsive/antisocial psychopathic traits. Social Cognitive and Affective Neuroscience, 11 (8), 1326-1334 PMID: 27217111

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