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catfishA few weeks ago, I was eating a late lunch and turned on the TV and watched the Katie Couric talk show for the first time. She was talking to two 20-something guests about the perils of online dating. They talked about ways to protect yourself from deceptive “catfishing” by using Google image search or examining social network profiles for inconsistencies and at one point Katie said “My gosh, you have to be like Columbo these days!”. Both of her young guests smiled politely but their blank faces made it clear they had no idea who Columbo was.

One of the guests was Nev Schulman from the movie Catfish. If you don’t know this story, Nev met a woman named Megan online who was gorgeous and a dancer and a singer and he fell in love. When he showed up on her doorstep to meet her in person, Megan turned out to be a 40-something housewife named Angela who was diagnosed with schizophrenia and caring for two disabled stepsons. Part of the reason Nev was on the Katie show was to advertise his new TV show (Catfish the TV show). In this show, Nev travels the country visiting people who are involved in online relationships with people who always seem to turn out to be imposters hiding behind fake profiles. He teaches them how to investigate their online loves and dispenses a blend of empathy and sincerity that is very likable while their fantasies crumble about their feet.

Shortly after I watched this show, I saw a story at Courthouse News about a woman suing Match.com for $10M because someone she met on their website “hid in her garage, stabbed her 10 times and kicked her in the head until she ‘stopped making the gurgling noise’”. She says Match.com didn’t warn her about the possibility of meeting “an individual whose intention was not to find a mate, but to find victims to kill or rape”. She did not sue her attacker. She couldn’t. He died in prison while “serving 28 to 70 years for killing an ex-girlfriend”.

Match.com begs to differ:

“What happened to Mary Kay Beckman is horrible, but this lawsuit is absurd,” Match.com said. “The many millions of people who have found love on Match.com and other online dating sites know how fulfilling it is. And while that doesn’t make what happened in this case any less awful, this is about a sick, twisted individual with no prior criminal record, not an entire community of men and women looking to meet each other.”

It isn’t as though these are isolated cases or very, very fringe behavior. These are sad, sad stories involving a pretty universal desire to be loved and cherished. It’s been hard to miss the publicity surrounding Notre Dame’s Manti Te’o and his own catfishing experience with a very unlucky (and then dead and then alive again) girlfriend. The “girlfriend” turned out to be a disturbed young man who once auditioned for the television show The Voice.

It’s a difficult issue. We’ve worked a couple of cases where people were assaulted by others they had met online. One case involved a minor girl and the other involved a grown woman. In both cases, the assailant lied about who they were, how old they were, and what their intentions were, while all the while enticing the victim to meet them. Both stories were horribly sad and life-changing for the victim. Yet, in both situations, our mock jurors said the fault lay with the victim for “lying to her mother and meeting this guy” or “telling him where she lived”. Jurors thought these women had learned a very hard and cruel lesson but they should not be compensated by the online service for using bad judgment.

There are discussions occurring as to how to respond from a legal standpoint to the perpetrators of these hoaxes. In our experience, jurors think these are examples of poor personal responsibility by the victim of the hoax. The online service was scrutinized, but overall the mock jurors felt that users of these services know that there is no vetting of community members, and anyone who assumes authenticity in online disclosures is, at best, naïve. This is an area we will keep up with as new definitions and practices emerge to keep up with our changing definitions of what constitutes a “relationship” in a social media world.

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facebook-graph-searchWe are always on the prowl for tools to help with litigation research. This one took us a little by surprise when we read a piece on it in the Atlantic. While Facebook apparently rolled this service out to be more of an information source, we wonder if they thought about how Graph Search could be used for more nefarious or humiliating purposes. For example, here are some recent graph searches done on Facebook and helpfully posted on Tumblr within 24 hours of Graph Search’s launch.

Current employers of people who like racism.

The spouses of people who like Prostitutes.

The mothers of Jews who like Bacon.

Single women who live nearby and like getting Getting Drunk.

And there are likely a lot more out there without the faces and names blurred for privacy. This new Facebook tool raises two issues for us:

First, please check your Facebook Privacy Settings again! This is something you need to do routinely but especially now! What you assume is private or only available after hours of scrolling through your own ancient history is now accessible and quickly.

Second, this raises many questions about litigation research. Now you can quickly search for attitudes and opinions toward various corporations or litigation issues. How do people feel about your corporate client? About gay marriage? About gun control? About deception? Some of the answers you may already know–because they are controversial and divisive. But the resource may also give you new areas for discovery or for questions in pretrial research.

One could argue that Facebook posts are less “troll-ish” than what you see in the Comments section of mass media news sites. People on Facebook are, after all, posting for their friends (however loosely defined). But we don’t know that for sure. Regardless, this is a sure tool for social media analysts to apply to multiple questions, and a potentially valuable online discovery tool. Your peers have already been at least considering it. As has the mass media.

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We’ve written for The Jury Expert a fair amount. In case you don’t know, The Jury Expert is a free publication from the American Society of Trial Consultants that is all about the art and science of litigation advocacy.

Our articles in The Jury Expert are focused on litigation advocacy and meant to help you do your job with the latest information available. Take a look at what we’ve done in the past couple of years.

The ‘Hoodie Effect’: George, Trayvon and How it Might Have Happened

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

Two trial consultants apply social science research findings to the crafting of plaintiff and defense trial narratives. How can the George Zimmerman/Trayvon Martin case be explained to jurors?

Book Review: Ideology, Psychology, and Law

by Rita R. Handrich, Ph.D.

A review of the new encyclopedia of the intersection of the law and mind sciences: Ideology, Psychology, and the Law (2012).

Talkin’ ‘bout our Generations: Are we who we wanted to be?

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

The four generations in the jury box: the same and yet, different.

Generation X members are “active, balanced and happy”. Seriously?

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

What’s happened to Generation X? An update on these now 30-45 year old jurors–you may be surprised at what they’ve done.

Between Coddling and Contempt: Managing and Mentoring Millennials

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

See Part 1 of this article: Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y) in the July 2010 issue of The Jury Expert   “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just…

Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials (aka Generation Y)

by Douglas L. Keene, Ph.D. and Rita Handrich, Ph.D.

See the follow-up to this article: Between Coddling and Contempt: Managing and Mentoring Millennials in the September 2010 issue of The Jury Expert.    For Baby Boomers, the don’t-trust-anyone-over-30 lyrics to “My Generation” by Pete Townshend of The Who (1965) bespoke the generation gap. Pete wrote these lyrics at the…

Panic Over the Unknown: America Hates Atheists

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

“If ‘Guess Who’s Coming to Dinner’ was remade today, the ‘shocking’ guest would no longer be a highly accomplished, educated and sophisticated black man (Sidney Poitier) but a highly accomplished, educated and sophisticated atheist.”1 “The prisons are probably filled with people who don’t have any kind of a spiritual or…

Online and Wired for Justice: Why Jurors Turn to the Internet (the “Google mistrial”)

by Douglas L. Keene, Ph.D. and Rita R. Handrich, Ph.D.

“There is an online quitting-Facebook-for-Lent support group. But how is it possible to communicate support on Facebook without breaking your vow? Serving on a jury is one of those instances when the cell phone and the laptop are best left at home1.” Trials have been being disrupted due to the…

Book Review: The Juror Factor: Race and Gender in America’s Civil Courts

by Rita R. Handrich, Ph.D.

Sonia Sotomayor’s nomination to the US Supreme Court in May 2009 unleashed a storm of controversy based on her remarks on her own judicial decision-making:  “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better

Fairness, Justice and True Understanding: The Benefits of Peremptory Strikes

by Douglas L. Keene, Ph.D.

Editor’s Note: It’s been a busy month for juries in the news and Doug Keene (President of ASTC) has spent hours on the phone with reporters attempting to clarify the issues and to communicate the position of the American Society of Trial Consultants (ASTC) on issues related to jurors and…

Cross-Examination of the Narcissistic Witness

by Douglas L. Keene, Ph.D.

Editors Note: Following publication of our September 2008 feature on the preparation of narcissistic witnesses, Doug Keene received queries about how to conduct cross-examination with a narcissistic witness. This brief article addresses questions on how to approach this challenging cross-examination process.    Have faith It is natural to fear that…

The Preparation of Narcissistic Witnesses: “I’m Better Than I Need To Be!”

by Douglas L. Keene, Ph.D.

Shortly after the July issue of TJE published, we received an email from an attorney-reader in response to the Christie Brinkley divorce coverage wherein the court-appointed psychologist described Peter Cook, as a “narcissist with an insatiable ego who needs constant reassurance that he is a terrific guy” (CBS News.com, 7/8/2008).”I…
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Yes, says Amy St. Eve  (a federal judge in Chicago). While the judge doesn’t do either Facebook or Twitter herself, she has polled jurors in her courtroom by asking two questions embedded in a larger written survey:

“Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?”

“If so, what prevented you from doing so?”

Judge St. Eve acknowledges the sample of 140 actual jurors from both civil and criminal trials (drawn from her courtroom and the courtroom of a colleague, her co-author) is not a scientific one and thus open to criticism around basic issues such as generalizability. She writes in the description of the survey itself: “We expect a Daubert challenge from some in the blogosphere”.

The findings were recently published in the Duke Law and Technology Review and give a positive response to the question of the influence of the courtroom judge on individual jurors. [She also cites our work on jurors and the internet so we know she’s done her homework!] The lengthy introduction to the survey results is a good review of what has been published on the issue to date.

The vast majority (92%) of the jurors completing the survey reported no temptation (none at all!) to communicate about a case through social media.

Only six of those completing the survey said they were tempted and four did not do so because of the judge’s orders. However, not one of these six reported they actually did communicate about the case via social media.

“Our key takeaway from the informal survey is that courts should routinely and frequently instruct jurors not to communicate about the case through social networking services, because jurors tend to follow the judge’s social media instructions.”

From our perspective, Judges St. Eve and Zuckerman’s survey results paint a very rosy picture indeed. We imagine there is pressure to report obedience when you are filling out a survey for the judge and a quick search of Twitter using the hashtag meant to group tweets together finds a plethora of tweets indicating jurors are being quite disobedient and sometimes quite amusing.

There is nothing funny, however, about mistrials resulting from social media quips and insults. What we do agree with the authors on is the right of the jurors to respect from the court. They quote Judge Linda Giles in a 2011 Boston Bar Journal column:

“If jurors are going to be asked to sacrifice some of their personal freedom and forego their case-specific e-mailing, texting, blogging, instant messaging and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.”

We would go even further than this. If Judge St. Eve and Judge Zuckerman have demonstrated the sort of thoughtfulness in the courtroom that their carefully prepared paper reflects–we would think their respective jurors probably do listen well and take their roles seriously.

We would urge Judges St. Eve and Zuckerman to carry their research to the next logical step and ask about doing internet research.  Our work with jurors suggests that this is a  much more pervasive temptation, and logically it is of greater potential harm to  justice. The prospect of a juror being guided by evidence gathered outside the courtroom (and outside the ability of the parties to challenge) needs to be thwarted, and a careful study of  how and when this occurs would help judges craft effective instructions.

Jurors are not easily fooled. When a judge carefully explains the rationale behind the ‘no social media’ or ‘no online research’ policy, it will make sense. Every juror can relate to the desire for a fair trial. The problem is that they  don’t have the experience as jurors or litigants to appreciate the reasons that justice is undermined when the rules are broken. The recent death penalty verdict overturned by a series of careless tweets, despite warnings by the judge to stop, only underscores the very real cost and unfairness of social media involvement in cases very serious to the parties involved.

St. Eve, A., & Zuckerman, MA (2012). Ensuring an impartial jury in the age of social media. Duke Law and Technology Review, 11 (1)

Read the full article here.

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Yikes. Who would have imagined that social science researchers sometimes could occasionally disturb us.  And other times make us laugh. And other times amuse us. But this time the reaction is hard to categorize as the researchers say their results may help explain everything from unrequited love to the uprisings of the Arab Spring! Ah, the researchers may need to have their grandiosity evaluated.  Or–maybe not.  Social science ‘string theory’, anyone?

It started when they wondered what would happen if there was a rule for which people perceived there was some ‘wiggle room’. So they examined reactions to a speed limit change.

Participants read that lowering speed limits in cities would make people safer. Some read that government leaders had decided to reduce speed limits. Of those people, some were told that this legislation would definitely come into effect, and others read that it would probably happen, but that there was still a small chance government officials could vote it down.

People who thought the speed limit was definitely being lowered supported the change more than control subjects, but people who thought there was still a chance it wouldn’t happen supported it less than these control subjects. Laurin [the first author] says this confirms what she suspected about absoluteness; if a restriction is definite, people find a way to live with it.”

It’s an interesting hypothesis. [Thanks to second author Aaron Kay, you can find the full pdf of this article here.]

Consider the impact of rules on sworn jurors.  We have been watching and weighing in on issues on jurors and the internet for a number of years now. Suggestions are often made for how to curtail the issues of the Google mistrial. But they are just that, suggestions. This research advises that we need to be more extreme and absolute and unequivocal in demanding that jurors do no research on the internet about the cases they for which they sit in judgment.  “It’s not a good idea– It’s the law”.  And, of course, as always, it’s critically important to explain the ‘why’.

And one more thing! This isn’t just about explaining Arab Spring or the Google mistrial. It’s also about unrequited love. Back to the press alert:

And how does this relate to unrequited love? It confirms people’s intuitive sense that leading someone [on] can just make them fall for you more deeply, Laurin says. “If this person is telling me no, but I perceive that as not totally absolute, if I still think I have a shot, that’s just going to strengthen my desire and my feeling, that’s going to make me think I need to fight to win the person over,” she says. “If instead I believe no, I definitely don’t have a shot with this person, then I might rationalize it and decide that I don’t like them that much anyway.”

As people who have also provided a lot of counseling to the heartbroken (in an earlier phase of professional life) we would suggest that it may be up to the person feeling unrequited to walk away even if the door in your face seemed equivocal.  Aren’t we talking about love?  Ah, but I digress… and yet the lesson is apparent. If you are not interested, be perfectly clear. Crystal clear.

Ultimately, the research appears to affirm a maxim of life that bears reminding; we tend to hear and see what we want, unless it is inescapably clear that only one thing is being said.  Whether we like it or not. Or as Paul Simon put it “A man hears what he wants to hear and disregards the rest.”

 

http://www.youtube.com/watch?v=AdKjEHfHINQ

Laurin, K., Kay, A., & Fitzsimons, G. (2011). Reactance versus Rationalization: Divergent Responses to Policies that Constrain Freedom. Psychological Science.

Paul Simon lyrics from “The Boxer

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