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Archive for the ‘NeuroLaw’ 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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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

WOD-Neuroscience

We regularly follow the neurolaw literature and about a year ago, we blogged about how judges are softer on crime when educated about the brains of psychopaths. Well. Judges are people too and a recently published study shows it isn’t just judges who are affected by neuroscience education. While the idea that flashy pictures alone can unduly influence jurors during a “his or her brain made him do it” defense presentation has been debunked, apparently a lecture on neuroscience can still influence individual ideas about punishment and the Defendant’s responsibility for their actions.

The researchers were interested in seeing if they could manipulate beliefs about free will among their participants. They began with the assumption that most of us believe in free will as opposed to determinism or fate. Then in four separate experiments with undergraduate college students, the researchers measured attitudes toward punishment for criminal behavior and then began to erode the participants beliefs in free will by educating them on neuroscience.

What they found was that as knowledge about neuroscience increased, the belief in free will decreased as did the length of sentences recommended for criminal behavior.

In other words, as participants learned more about the biological (or as the researchers labeled it, mechanistic) bases for behavior, they held the alleged criminal less responsible and believed the punishment should be less severe. The participants educated about neuroscience had less of a desire for retribution than did those who were not educated in neuroscience. From a litigation advocacy perspective, these studies have important ramifications.

If the findings are accurate, a convicted Defendant whose defense included a neuroscience education might receive in a lesser sentence.

The Prosecutor will want to focus on personal responsibility and the controversial nature of neuroscience research in order to maximize punishment decisions.

Shariff AF, Greene JD, Karremans JC, Luguri JB, Clark CJ, Schooler JW, Baumeister RF, & Vohs KD (2014). Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution. Psychological science PMID: 24916083

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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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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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Top Ten Blog Posts for 2013!

Monday, January 6, 2014
posted by Douglas Keene

top ten 2013We like to look back at the end of the year to see which posts had the most traffic on our blog. It’s a way for us to know what you like to read and to see what sorts of posts attract attention regardless of when they were written. Here is a traditional Top 10 countdown–starting with the post that was our #10 and ending up with our #1 post (as measured by internet traffic) for the calendar year 2013. 

#10: “A new question for the jury: Did my brain implant make me do it?”. A post from December 20, 2013 that caught fire and made it into our top 10 posts for 2013. Some people need deep brain stimulation (DBS) to treat serious medical conditions. But for a few, DBS results in inappropriate and sometimes illegal behavior. This is a twist on the neurolaw question: “Did my brain make me do it?”.

#9: “Jury Sequestration: ‘Not even the Bible is left in your hotel room’”. Written during the Trayvon Martin trial–this post was very popular among those following that trial and wondering what sequestration would truly mean for the 6 jurors.

#8: “Simple Jury Persuasion: Tattoo you?”. Should a trial lawyer be tattooed? It’s a big question. This research says it depends on just who you are trying to persuade.

#7: “Simple Jury Persuasion: The Alpha Strategies”: This post highlights the difference between the alpha and the omega strategies of persuasion by looking specifically at the alpha strategies (a direct form of persuasion).

#6: “Excuse me, potential juror, but just how big is your amygdala?”. There is tremendous interest in the new neurolaw findings and this post summarized an article positing that conservatives have larger amygdalas while liberals have larger cingulate cortexes. This, according to the authors, is critically important for understanding the decision-making of these two groups. Uh-huh.

#5: “A screwdriver: The new addition to your trial toolbox? (We think not.). This was an odd one where researchers found if you tilt chairs to the left (subtly) the unsuspecting sitter agrees with the Democrat Party more than those sitters in chairs subtly tilted to the right (who agree more with the Republican Party). We think it best to not tinker with the chairs in the deliberation room or in the jury box.

#4: “When you wear glasses you are less attractive but more smart and trustworthy.” This one summarizes research that says if you want to increase perceptions of your trustworthiness and intelligence without decreasing your attractiveness–there is a specific sort of eyeglass frame to investigate.

#3: “No one makes a deal on a handshake these days!”. Here’s one on how hard it is to believe multimillion dollar deals are still based on verbal contracts and handshakes.

#2: “Women who stalk: Who they are and how they do it”. This post looks at the research on female stalkers and all we need to say here is you really do not want a female stalker. Of course, you don’t want a male stalker either.

And here it is. Our most popular post during the 2013 calendar year….

#1: “The glasses create a sort of unspoken nerd defense.” This is the first post we did on this research which was misinterpreted by the media and resulted in a lot of lawyers buying glasses for their clients to wear. The followup posts on this research also made our Top 10 via a “nerd defense” search of our blog.

So that’s our 2013 rundown. Please join us as we roll out 2014 and continue to bring you the latest in research and strategy for the art and science of courtroom advocacy.

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