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Archive for the ‘Generation or Age of Juror’ Category

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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RIP Demographics? Well, probably not…

Friday, August 22, 2014
posted by Douglas Keene

RIP demographicsWe’ve just published a new article in The Jury Expert that “should” signal the death of the simplistic use of demographics in voir dire and jury selection. Will it? Not likely. Partly this is the fault of courts that are becoming increasingly restrictive of time and the scope of questions posed to jurors. If litigants cannot ask substantive questions, they are left to rely on the broad impressions, which are often wrong and are generally based on stereotypes rather than knowledge of individual biases.

Be that as it may, we still think it’s important for all of us to know how changes in society as a whole will make a difference in how we need to think about voir dire. There are changes that have shifted the landscape of our communities and venires, and even our basic assumptions about there being a continuum from liberal to conservative with a moderate center. Some of these big changes have now been documented. You know that moderate center? Well, to the extent it is still there, it is vastly more complex, and defies labeling. You know how Democrats are more liberal and Republicans are more conservative? We can no longer make those blanket assumptions.

Americans are now more focused on specific issues. You will find, for example, a Democrat who leans left on many issues but is more conservative on issues involving faith and family. You will find, as another example, Republicans who lean right on many issues but support other issues that “Republicans just don’t support”. And in the center, you will find many people (indeed, the majority) who are not consistently liberal and not consistently conservative. On the other hand, they are also not consistently moderate. We’ve been watching this shift for almost a decade now with political affiliation simply no longer being an effective way of understanding individual mock jurors.

It really is about the issues. It’s something we have said for years– it isn’t demographics, it is the person and what matters in their life experience. Demographics (even tidy, long-standing descriptors like political affiliation and whether one is liberal or conservative) do not tell the story nearly as well as the individual’s values, attitudes, beliefs and experiences. But, don’t just take our word for it. How about considering the results of a 2014 survey of more than 10,000 Americans (randomly selected and nationally representative)? The results represent an eye-opener that allows us to compare American opinions and how they have shifted and turned upside down in the two decades since Newt Gingrich’s Republican Revolution of 1994.

Please visit our new articleDemographic Roulette: What Was Once a Bad Idea Has Gotten Worseover at The Jury Expert. We are pleased and flattered that Paul Begala (Democratic strategist, author and CNN Contributor) reviewed the issues and our article, and offered his take on the study.

Tell us what you think. We think it should be a game-changer.

Douglas L. Keene, & Rita R. Handrich (2014). Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse. The Jury Expert, 26 (3.)

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older adults and fraudOf course you did. But you may want to take a look at this study because, maybe, it isn’t true after all. It certainly is a well-known myth if it is not true. This appears to be one of those situations where we add up what we know and then come up with a conclusion that just doesn’t appear to be true. Here’s what we know: research on cognitive age-related changes and emotional age-related changes tells us there are indeed shifts that can increase the vulnerability of the older adult to consumer fraud. We conclude, thus, they are defrauded more often.

This research, which is actually simply a review of the actual data on consumer fraud, says the older adult may be more at risk but there is no data-based evidence to say they actually are defrauded at a higher rate than younger adults. In fact, the older adult may be more savvy than we assume–these researchers say perhaps it is the protective factor of “increased experience and changes in goals, lifestyle, income, as well as purchasing and risk behaviors”. Or, in less geeky language–with age comes both wisdom and caution, as well as awareness of the old saying, “if it sounds too good to be true, it probably is…”.

So why is it so commonly believed that senior citizens are taken in by con artists and scammers? The writers of the current article identify 5 reasons we may hypothesize older adults are more often victims of consumer fraud (and these are drawn from research):

Older adults have less accurate episodic memory and are at increased vulnerability to misinformation.

Older adults have slower cognitive processing and therefore take longer to review and process information than younger adults.

Abstract reasoning and novel problem-solving ability peak about age 30 and then decline across the remainder of the lifespan. (This is such a bummer, but we can slow the decline by continuing to challenge ourselves through learning new things, playing music, learning languages, and stimulating a brain that functions better under the stress of new thinking).

Mild cognitive impairment is associated with a reduction in math and financial skills such as managing a checkbook and understanding bills. (This could result in increased vulnerability to fraud.)

After experiencing a financial loss, consumers can be uncertain whether their particular loss comes from a legitimate business arrangement or from deceitful practices. None of us like to be deceived and there is conjecture that older adults may not want to believe they have been tricked and therefore do not file reports as victims of fraud.

Those 5 findings are backed up by research. Older adults could be more at risk simply by virtue of aging and some of the issues we will all face at one time or another. But being at risk does not mean you will necessarily fall prey to consumer fraud. Yet the belief that older adults are victimized by consumer fraud at a high rate relative to other age groups is part of our social fabric. We all “know” this is true. Except it does not appear to be true.

Part of the issue is that researcher interpretations about what their findings might mean have been misinterpreted by the media as fact rather than mere conjecture or hypotheses for future work. Then the ‘facts’ are picked up by other media outlets and blogs and we hear things like “fraud prevalence has reached epidemic levels in older adults” or “older adults are disproportionately vulnerable to frauds”. Hypotheses, conjectures or questions become perceived as fact and become part of our popular “wisdom” about older adults. The following graph is taken from the article cited at the end of today’s post. The graph presents the fraud reported during 2010, 2011 and 2012. Contrary to our expectations, those who are actively defrauded are more likely very young or in the middle of their lives.

You may opine that the elderly are just too embarrassed to report their being defrauded, but there is no data to support it. In fact, the authors say at this point we can neither say older adults are subject to more or less fraud. There is simply no evidence to support the idea that older adults are disproportionately the victims of consumer fraud.

From a litigation advocacy perspective, this is one more reason to never assume that a given belief is true. Widely held stereotypes are often untrue. This apparently is but one of those widely held (but not supported by data) beliefs.

Ross, M, Grossman, I, & Schryer, E (2014). Contrary to psychological and popular opinion, there is no compelling evidence that older adults are disproportionately victimized by consumer fraud. Perspectives on Psychological Science.

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The Silent Generation: Who are they now?

Friday, August 1, 2014
posted by Rita Handrich

The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

Silent-Generation

The US Department of the Census just released a report on what it is like to be 65+ in the United States and we are sharing some of the highlights with you. We recently wrote about our youngest jurors (the Millennials) and this report highlights our oldest jurors–those 65 years of age and beyond (the Silent Generation makes up the bulk of this group). The very thorough report is 192 pages long but here are a few tidbits about our oldest jurors.

The percentage of the population aged 65 and over among the total population increased from 4.1% in 1900 to 12% in 2010 and is projected to reach 20.9% by 2050. Of course, average life expectancy in 1900 was only until ages in the 40’s.

In 2010, Alzheimer’s was the fifth leading cause of death among those aged 65 and older. (While other causes of death were largely in decline, death from Alzheimer’s rose more than 50% between 1999 and 2007.

Almost 40% of those 65 and above had one or more disabilities in 2010. The most common issues were walking, climbing stairs and doing errands alone.

The older White living-alone population was less likely to live in poverty than the older Black living-alone, older Hispanic living-alone and older Asian living-alone populations.

States with the highest proportions of age 65+ residents were Florida, West Virginia, Maine, and Pennsylvania. Each of these states had above 15% residents aged 65+.

In 2010, internet usage among the 65+ population was up 31% points from a decade earlier.

This group was the only age group to have higher voter participation in the 2012 presidential election than in the 2008 presidential election.

Obesity is not just a problem of the young. Between 2003 and 2006, 28.7% of older men and 30.6% of older women were obese (BMI greater than or equal to 30).

In other words, they are a lot like every other mock juror in the room.

About the same time the Census Department issued their report on being 65+ in America, Gallup released a new report on confidence in physical appearance. And here’s something to help those of us on this side of 65 smile with anticipation as we age. We’re going to get better looking each day.

“Though many may pine for the physical appearance they had in their younger years, America’s seniors are the most confident in their looks. Two-thirds (66%) of Americans aged 65 and older “agreed” or “strongly agreed” that they always feel good about their physical appearance, compared with 61% of 18- to 34-year-olds. Middle-aged Americans (54%) are the least likely to report feeling good about their appearance.”

US Department of the Census. 2014 65+ in the US. http://www.census.gov/content/dam/Census/library/publications/2014/demo/p23-212.pdf

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age_biasWe’ve written about the older juror before and the benefits of having them on your jury (sometimes). When it comes to actual trial practice, Prosecutors are more likely to use their peremptories to strike the younger potential juror while Defense attorneys are more likely to use theirs to strike the older potential juror. So, is it true that the older juror is more conviction-prone? Sadly, it would seem so

Researchers examined data from more than 700 felony trials in Florida’s Sarasota and Lake Counties from 2000-2010. They were able to collect data not only on seated jurors but also to gather the same data on the entire pool for comparison. The researchers found the voir dire pattern noted above (with Prosecutors striking the younger juror and Defense attorneys striking the older juror) but note that the protected categories of race and gender were not disproportionately struck. That is, prosecutors and defense attorneys were about equally likely to strike black versus white and female versus male potential jurors.

The researchers look at how the age composition of the jury pool (randomly selected to appear that particular day) is related to conviction rate. They found that the average age of the venire drawn for a case is highly correlated to the age of the seated jury. That is, when potential jurors are called for jury selection, if the average age is above 50 (which happens in about half the trials in these counties), the seated jury will also be older. If the average age of the jury pool is below 50, the seated jury will also be younger. Makes sense.

When the average age of the jury pool is greater than 50 years, there is a 79% conviction rate.

When the average age of the jury pool is less than 50 years, there is a conviction rate of only 68% (and yes, those differences are statistically significant).

 In other words, the older juror is more likely to convict. Conviction rates, say the authors, rise 1% with each year of increase in the average age of a jury. Specifically, “if a male defendant, completely by chance faces a jury pool that has an average age above 50, he is [snip] more likely to be convicted than if he faces a jury pool with an average age less than 50”.

Obviously, the age of the jury has nothing at all to do with the evidence you present, the quality of your presentation, or the merits of the prosecution. It is a randomly occurring event which, in turn, can mean that an acquittal or conviction can also be a random event. The authors question if this represents a “fundamental lack of equity with respect to the quality of true nature of the evidence in a case”. They believe this random conviction increase provides an argument for increasing the number of jurors in Florida from the current 6 required (except for death penalty cases) to a higher number in order to reduce the random variations in outcome that are independent of the evidence admitted and presented.

And until that happens (or if it happens), it probably makes sense to keep using peremptories to attempt to either increase or decrease the age of your jury.

Anwar, S., Bayer, P., & Hjalmarsson, R. (2012). The role of age in jury selection and trial outcomes. National Bureau of Economic Research Working Paper. DOI: 10.2139/ssrn.2014963

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