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Archive for the ‘Internet & jurors’ Category

beeper vs iPhoneBack in the early ‘90s, I had a job that required me to carry a beeper. The constant awareness that I was “on call” was a source of strain and led me to complain I was never really “off duty”. Flash forward to this century and I cannot imagine being without my smart phone. In fact, I often double-check to be sure I have my iPhone when I am on the go so I never leave it behind. It’s a whole different sort of anxiety about being separated from my iPhone than I felt toward that beeper.

And I am not alone. Today’s researchers examine how many of us are anxious when separated from our instant access to email, texting, the internet, and the ability to make phone calls. They go so far as to say “cell phone separation can have serious psychological and physiological effects on iPhone users, including poor performance on cognitive tests”. Further, they say, “iPhone are capable of becoming an extension of our selves such that when separated, we experience a lessening of ‘self’ and a negative physiological state”. Seriously?

Researchers conducted what they call a “multistaged experiment”. They used a survey phase to recruit 208 participants from three separate journalism courses. Of those 208, 136 completed the online questionnaire to allegedly “understand media usage among a sample of college students”. (In truth, the researchers were looking for iPhone users and found 117 iPhone users in the 136 who completed the survey.)

Those 117 iPhone users were contacted again and told they could participate in a second study for additional course credit and a $50 gift card. Of the 117, 41 (73% female, average age 21.2 years, 88% White, 5% Black, 5% Asian and 2% Hispanic) agreed to participate in a 20 minute experiment.

The purpose of the 20 minute experiment was to see what happened to “perceived level of self, cognition, emotion and physiology” when the participant was separated from their iPhone and the iPhone was ringing. However, the participants were told they were testing the accuracy of a new blood pressure cuff while completing word search puzzles. The researchers had the participants complete word search puzzles while hooked up to the blood pressure cuff and either having their iPhone or not having their iPhone (since it was allegedly interfering with the blood pressure cuff operation and so the participant was asked to set their iPhone on a table four feet away from them).

The researchers found that participants separated from their iPhones had increases in heart rate, increases in self-reports of feeling unpleasant, found fewer words in their word search puzzles, increases in blood pressure levels, and higher self-reported anxiety.

The researchers conclude that being separated from your iPhone results in poorer cognitive performance and thus you may not want to be separated from your iPhone during tasks requiring significant mental performance (think test-taking, meetings, classes, and even perhaps, jury duty). The distraction and loss of your sense of self when separated from your iPhone may make you perform more poorly on those tasks. (Somewhere, Steve Jobs is smiling.)

While we wonder if this level of intrusive anxiety and poor performance is unique to college students (as measured by the FOMO scale) who have grown up with the constant presence of various cell phones and smart phones, it does raise the question of whether jurors are distracted from their deliberations by the court instructions to not use the internet, or post status updates about their experiences, or communicate with anyone, or quickly look up the definition of a word or phrase. And in Federal courts, you are usually banned from bringing the phone into the courthouse.

Being told to not use your phone is along the same lines as placing your iPhone out of your reach and not being able to answer it. Does it have the same effect? Are jurors struggling with distraction over not being able to use their phones? If yes, all the more reason to tell them why we don’t want them to use their smartphones. It probably won’t make the distraction go away, but it may help them understand why it is important.

Clayton, R., Leshner, G., & Almond, A. (2015). The Extended iSelf: The Impact of iPhone Separation on Cognition, Emotion, and Physiology Journal of Computer-Mediated Communication DOI: 10.1111/jcc4.12109

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spiral of silenceWe’ve blogged a fair amount on the impact of the internet and social networking on jurors but here is something unexpected. People that engage in social media are less likely to discuss heated topics in the news, not more likely. This is according to a recent Pew Research report.

Back in 1974, Noelle-Neumann described the “spiral of silence” which basically describes a tendency to not speak up when we perceive our own beliefs and opinions to be in the minority. With the advent of intense social media involvement, researchers had hoped there would be more willingness to engage in discussion that truly reflected a variety of beliefs and values. Alas, it is not so.

The new report on the Pew website essentially says the relative anonymity afforded by the internet doesn’t make us (or at least most of us) brave enough to stand up for what we believe. It’s a sad commentary and what it seems to say is the “new transparency” of social media is just another public facade people who hold minority opinions feel they must maintain. Perhaps it is due to FoMO–another recent blog post of ours.

Regardless, here is some of what the Pew report finds in data collected from 1,801 adults between August 7th and September 16th, 2013–using the example of the Edward Snowden-NSA story. As background, the Snowden story was chosen since previous Pew surveys found the public was split on this story: 44% said the release of classified information harms the public interest and 49% said it serves the public interest. Of the 1,801 adults surveyed, 80% of the adults in this survey were internet users. 71% were Facebook users and (only) 18% of them were Twitter users.

While 86% were willing to have an in-person conversation about the Snowden-NSA story, only 42% of Facebook and Twitter users said they were willing to post about it online. The researchers believe social media users are particularly attuned to the opinions of those around them and are thus less willing to disagree with them.

Even when holding other factors (like age, gender, education, race, and marital status) constant, social media users are less likely to say they would join in (even in person) than non-social media users of the internet. Facebook users are only half as willing to discuss the Snowden-NSA story at a physical public meeting as a non-Facebook user. Twitter users are less likely to be willing to share their opinions in the workplace than internet users who do not use Twitter.

Social media users who think their social media friends and followers disagree with them on the Snowden-NSA issue were “more likely to self-censor their views on the story in both social media and in face-to-face encounters”.

In both face-to-face and online environments, people were more willing to openly express their views if they thought others agreed with them. 86% said they were “very” or “somewhat” willing to have a conversation about the story in at least one face-to-face setting, but only 42% of Facebook and Twitter users would discuss the story on social media.

The Pew Foundation graphic illustrates this clearly:

Pew spiral blog insert

 

From a litigation advocacy perspective, the chilling effect of social media involvement on one’s willingness to state a differing opinion is of great concern. We have always taken the lone naysayer in pretrial research seriously and expressed appreciation for their courage in speaking up in disagreement. This survey highlights the need to establish a friendly and receptive juror-centric tone (rather than one of client advocacy and confrontation) in voir dire. And it is yet another reason to teach jurors in actual trials how to deliberate and to make clear for them the importance of allowing disagreement and the expression of differing opinions.

One day perhaps we will all feel able to express what we believe to others. Social media, contrary to the expectations of many, has not changed the desire to not make waves and to self-censor opinions we believe will be unpopular.

We have all seen the evidence of what are commonly known as “trolls” on comment pages for various news sites and high-traffic. These people are not those identified by this Pew Report and we’ve covered a research study that helped us to understand those who actually comment on major news sites are probably not people we want as jurors!

KEITH HAMPTON, LEE RAINIE, WEIXU LU, MARIA DWYER, INYOUNG SHIN, AND KRISTEN PURCELL (2014). Social Media and the ‘Spiral of Silence’. Pew Research Internet Project.

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The Fear of Missing Out (FoMO) Scale

Friday, September 12, 2014
posted by Rita Handrich

Fomo-Meme 2Social media applications have made it much easier for us to know what our friends are doing. While this knowledge can have positive benefit, it can also result in a paralyzing fear of missing out (popularly known as FoMO). FoMO has even made the Oxford Dictionary and is defined there as “anxiety that an exciting or interesting event may currently be happening elsewhere, often aroused by posts seen on a social media website”. Researchers in 2011 and 2012 defined FoMO as “the uneasy and sometimes all-consuming feeling that you’re missing out — that your peers are doing, in the know about, or in possession of more or something better than you”. The researchers from today’s article define FoMO as “a pervasive apprehension that others might be having rewarding experiences from which one is absent” and say that “FoMO is characterized by the desire to stay continually connected  with what others are doing”.

FoMO is apparently one reason people are so drawn to multiple social media sites. Someone who actively uses Twitter, Facebook, FourSquare, Instagram and Pinterest (for example) could be experiencing FoMO (along with not having time to perform an actual job). FoMO could also be a reason behind the obsessive checking of smartphones during actual face-to-face conversations. There are multiple articles devoted to overcoming FoMO. Obviously FoMO is a serious problem for some people, so it is good academics have come to our rescue and developed a scale (the first) to measure the Fear of Missing Out (FoMO).

The researchers developed a 10-item Fear of Missing Out Scale and their results indicated something shocking: “the young, and young males in particular, tended towards higher levels of FoMO”. Further, they mention those high in FoMO tend to use Facebook during university lectures and compose and read emails and texts while driving. You may wonder what sorts of questions are used to measure something as clearly destructive as FoMO. We are here to serve. This is a 10 item measure and we will share 4 of those questions with you so you have a sense of the kinds of questions that will measure FoMO. These questions are rated on a 5-point Likert scale of “not at all true about me” to “extremely true of me”.

I fear others have more rewarding experiences than me.

I get anxious when I don’t know what my friends are up to.

Sometimes I wonder if I spend too much time keeping up with what is going on.

When I go on vacation, I continue to keep tabs on what my friends are doing.

From our perspective, it makes sense that this is a phenomena largely experienced by the young. Social media activities can take a tremendous amount of time if you really engage in it. The preoccupation with all things social media is a constant concern for trial lawyers and court personnel who worry about what we used to call the Google mistrial. The one benefit of the FoMO Scale we can see for litigation advocacy is the way the scale designers asked about social media involvement.

Rather than asking if participants used social media platforms, they asked very specific questions. They asked participants if they used social media “within 15 minutes of waking up”, “while eating breakfast”, “when eating lunch”, “when eating dinner”, or “within 15 minutes of going to sleep”. They asked how often in the past week (from “not once” to “every day”) they had used social media during all those times. Those with more extreme usage responses were (not surprisingly) higher in FoMO. The lesson?

Heavy social media users are likely to be more distracted, have a shorter attention span, more likely to reflexively use social media during trial, and want to get jury duty over ASAP so they can get back to tracking what really matters. You probably already knew that but with this new information you can impress everyone you know by saying, “This juror is going to be trouble for us since s/he has a high FoMO”. Thank goodness for academic research on scale development.

Przybylski, AK, Murayama, K, DeHaan, CR, & Gladwell, V (2013). Motivational, emotional, and behavioral correlates of fear of missing out. Computers in Human Behavior, 29, 1841-1848

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jury_room_525The options for online searches of potential jurors seem to be a fast-moving target. Our experience is that often there is simply no time for more than the most cursory efforts that often happen during a very short voir dire session itself. In other cases, if there is time to conduct such research, sometimes the information required to do accurate online research (i.e., full name, address, date of birth) are not provided. Yet presentations talk about the importance of a thorough search and some go so far as to say it is not ethical to forego such background internet research into potential jurors [citing the 2010 Missouri Supreme Court standard]. So it was good to see this (hard to obtain) article from last year on what is actually being done in the trenches.

Researchers did their own background search of an actual jury venire using the following sites as search tools: Google, MySpace, Facebook, LinkedIn, and GoogleBlogSearch. They actually found information on more than a third (36%) of the jurors (in our experience, this is a fairly high proportion, and suggests that this was probably an urban venire).

They performed four separate searches on each of the five sites: full name, full name + state, full name + city, and full name + date of birth.

However, 94% of the information they found was procured via simple Google searches. Only 6% of the information they found was unique to other internet sites. On the other hand, their strategies for ensuring they had the correct “Joe Johnson” were not as intensive as we actually do in our internet searches where accuracy is critical.

The researchers’ [common sense] interpretation of finding the vast majority of information in one spot was that it really was not particularly efficient nor effective to search multiple sites– it is more efficient to stick with Google.

They then turned to lawyers, trial consultants, law students and undergraduates to see the level of information known on social media, attitudes toward use of that information in jury selection, and what was actually being done (and taught) in the trenches of litigation advocacy and law school classrooms about juror’s right to privacy as well as the possible ethical issues in using online search tools for jury selection.

Study participants identified four areas wherein they saw ethical issues:

  1. juror rights [either a right to privacy or the idea that they should not post information online if they wanted privacy],
  2. defendant/accuser rights [a fair and impartial jury is a constitutional right but some thought these online searches ethical and indicative of competent lawyering while others did not],
  3. court processes [some felt the jury selection process should be uniform across individual jurors and those with online presence would be subject to unfair scrutiny] and,
  4. the sites themselves [using the sites for purposes other than social networking is inappropriate and the information is of questionable validity].

It’s an interesting article although the sample sizes are quite small (175 undergraduates, 27 law students, and 11 trial consultants and trial lawyers). The authors see this as an initial foray with follow-up work to be done in the future. The takeaway for us is this: when time pressure is intense–the most bang for your buck comes from a Google search. When you have ample time and budget (perhaps for the high-profile trial) using other searches may be worthwhile if the extra 6% is critical information to have. If, for instance, the value of their home, the model of car they drive, the level of their education, or the number of people who live with them is crucial, there are better ways to find it unless you do a lot of drilling-down through Google links. The authors also recommend the use of paid search sites and perhaps, even a private investigator.

We think we’ve seen the gamut of investigations, ranging from none to those using both paid search sites (in the event you don’t know this, “privacy” is largely a pleasant fiction) and private investigators. Even in the latter cases, though, our work in slogging through site after site after site (in search of that elusive 6%) did yield information previously unknown. Whether it was essential information or not is highly variable. The overall cost benefit analysis of social media research during voir dire remains, for us, an open question. It just depends.

Neal, TMS, Cramer, RJ, Ziemke, MH, & Brodsky, SL (2013). Online searches for jury selection. Criminal Law Bulletin, 49 (2)

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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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