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Archive for the ‘Pre-trial research’ Category

Time for an update on who lies, why they lie, and how you can spot them. We’ve written a lot about deception in the past but there’s always more to say (believe it or not). We’re going to cover several articles in this post and discuss each of them briefly so you can explore the items in greater depth if they strike a chord of interest.

60% of us lie in everyday conversation 

When we think of liars, we often think of “them”. But new research out of the University of Massachusetts at Amherst says it is more common than not to lie routinely and often. The study used 121 pairs of undergraduates who were told the purpose of the study was to examine how people interact when they meet someone new. They all had ten minutes to converse but some were told to make themselves seem likable, some were told to make themselves appear competent, and others (the control group) were not told to present themselves in any specific way. After the interaction, the research participants were shown videotapes of the interaction and asked to point out any lies they had told.

The researchers found that, in their research sample, “60% lied at least once during a 10-minute conversation and told an average of two or three lies”.

It’s hard to say if this rate of lying would occur in interactions where no one is told to behave or present themselves in a certain way. But it makes it clear that if you are trying to make a good impression, you may lie more often than not. And if you are talking with someone who is likely attempting to impress you, take their claims with a grain of salt.

Spotting a liar

We routinely see how-to articles on spotting a liar but it is easier said than done. Here’s one from NBC News that tries to summarize the research on deception but ends up sensationalizing the results a bit (aka perhaps lying). They say that if you say you never lie, you are a liar and they comment on how poorly people fare when they attempt to detect deception. And then they give you “five steps to becoming a human lie detector” and give glossy explanations of how to understand the research. We think this one is worth your time if you want a quick overview of the research and want to see how people learn their information and misinformation on spotting deception.

Are scheming and dishonesty just part of being human?

Finally here’s an article from National Geographic on “why” we lie. This is a really wide-ranging article that shares a lot of information on various types of lies and liars as well as the motivations for lying by various people. It will teach you a lot about hoaxers, con artists, and visual artists that try to fool you, and enlighten you on things that are, in fact, lies—but also very cool and funny. It’s a weirdly wonderful journey through the neuroscience of lying and all the motivations behind various kinds of lies. They even get to fake news and its proliferation as well as the advantages to us of all the technology available to us—and the reality that technology has opened up “a new frontier for deceit”.  And if you want even more, there is a good writeup in The Guardian of a pathological liar who was also very bright and a medical researcher. Despite his accomplishments, he just couldn’t stop lying.

From a litigation advocacy perspective, these are important areas on which to keep informed. It is important to maintain an awareness of what jurors see as “indicators” of deception—whether those indicators are truly indicative of deception or not. The more you know about what people assume, the better you can prepare witnesses and the better you can monitor your own distracting non-verbal behaviors that might just make some juror solemnly declare to others in the deliberation room that you were obviously lying in your closing statement.

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Today’s highlighted research looks at ways to communicate with people who ignore evidence that contradicts their beliefs and values. This tendency is called “dogmatism” and essentially reflects one’s (un)willingness to revise their beliefs when presented with new evidence. And some people simply will not revise their beliefs no matter what the evidence! We’ve all seen it—the self-appointed expert who knows they are right while others are so very wrong. In fact, we’ve seen it so often in pretrial research that we wrote a post on a way to dethrone that self-appointed expert.

This is a very interesting study that may be much more broadly applicable to cherished beliefs in general (e.g., your eating habits, your political opinions, and your beliefs about climate change and evolution) rather than only to religion (which is what these researchers studied). In brief, the researchers looked at what factors drove dogmatism in people who were religious versus those who were not religious.

And they found a strange similarity: Regardless of whether you were in the religious or not-religious group—if you were a critical thinker, you were less dogmatic. But when you factor in moral concerns—the two groups have very different responses.

For religious people, emotional resonance (i.e., something that ‘feels’ right to you) results in more certainty—if a position is more morally correct from their perspective—the more certain they feel.

So, the researchers say, to effectively communicate your information, you should appeal to the religious dogmatist’s sense of moral concern. Identify their strongly held position, and support the way it applies to your case, and emphasize that “wrong is wrong”.

For nonreligious people, a position involving moral concerns actually results in less certainty.

For this group, the researchers say, to effectively communicate your information, you should appeal to the non-religious dogmatists unemotional logic. Reinforce the moral position (to the extent that it is widely held) and offer the evidence and reasoned judgment that everyone wants.

The researchers also say that whether the person was religious or not, the more rigid the individual (whether rigidly religious or rigidly logical)—the less likely the person was to be empathic (i.e., consider the perspectives of others).

From a litigation advocacy perspective, you want to be able to talk to both extremes (the religious dogmatist and the nonreligious dogmatist). Of course in an ideal world, you would not have people with strong dogmatism and/or rigidity on your jury. Since the world of voir dire and jury selection is an imperfect one, you want to build both moral concerns and logic into your case narrative.

This research really focuses on what we have talked about and blogged about for many years. You need to tell a story that resonates with the strongly held beliefs and problem-solving approaches to which jurors relate. Without appearing to pander, talk about moral right and wrong. For the dogmatic and non-religious jurors, go through the evidence that establishes the case. But you can also anchor it to the moral guideposts that the religiously dogmatic rely on, it deepens the connection.

The result of getting it just right is that both personality types will hear you supporting their sensibilities for reaching a verdict.

Friedman, JP Jack AI 2017 What makes you so sure? Dogmatism, fundamentalism, analytic thinking, perspective taking, and moral concern in the religious and nonreligious. Journal of Religion and Health.

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We’ve written about CRISPR (aka human gene editing) before, and wanted to share this new survey with you. When last we blogged, it was to cover the Pew survey on fears about gene editing (and the potential for creation of a super-human). As you can imagine, there was some ambivalence over whether this was a good thing, as well as concerns about the creation of a society where genetically enhanced people ruled those who were not genetically enhanced. Here’s what we wrote a year ago: .

You may be surprised at how ambivalent the public is about using these new tools. As Pew says, “Americans are more worried than enthusiastic” about how these tools will be used. And, as this technology veers more and more into public awareness, being aware of the ambivalence with which Americans view this ground-breaking technology is going to become increasingly important for trial lawyers.

So we were surprised to see a new headline in the online publication The Verge saying that ⅔ of Americans now approve of human gene editing to treat disease. It seemed odd since just last year, Pew’s survey told us this about sick little babies:

Even when it comes to gene editing with the promise of helping prevent diseases for their own babies [emphasis added]—48% support the idea and 50% do not.

And now ⅔ of Americans support gene editing? It just seemed like too sudden a turn around. And—as it turns out, it was. You have probably figured out by now that this is just the latest in a string of directives from us to go to the original source to make sure things are interpreted correctly in secondary source materials.

While the Verge article is based on the full survey results, it does not accurately reflect the ambivalence in the actual survey published by Science Magazine. The graphic illustrating this post shows you that what the headline writers over at The Verge did was to count those who supported human gene editing for specific use as a therapeutic tool to correct disease in human beings. But that leaves out a big part of the picture.

This headline does not include the concerns of those who don’t want the changes to be hereditary and thus change the human germline [aka, these changes would now be inheritable] down the road—which would ostensibly mean that if you are going to have gene editing done, you must either be a male or agree never to have children if you are female so that the germline remains unchanged by human intervention.

And, as you might intuitively predict, what the Science Magazine survey really showed us was that people who had high levels of knowledge on gene editing were more likely to support its use, while those who were religiously active were less likely to support the use of gene editing on humans due to ethical and moral concerns. What both groups agreed on, however, was that scientists should not make these choices alone. Both groups wanted scientists to somehow “engage the public” in a dialogue so that the eventual use of human gene editing would be one that reflected the concerns and wishes of all of American society. That’s a pretty tall bar.

We know that how you ask a question makes a huge difference. If someone is asked whether they think gene editing should be used to protect people from hereditary diseases, they may initially agree. However, when you then ask if they would agree to allow those changes to ‘permanently change the human germline’, you see more resistance to the entire process of human gene editing. As we said back when we blogged on the Pew survey of American attitudes toward gene editing,

From a litigation advocacy perspective, these responses are not necessarily intuitive. While we might intuit that allowing babies to be born without diseases would be a positive thing, respondents did not necessarily agree. They see it as being more complex. Although the parents of that baby struggling with a serious disease would likely strongly support the new technology for helping their child, others might well say “that sounds good, but this is a slippery slope and where will it lead?”.

As with all “hot button” issues, this is one that will require careful pretrial research to identify the most effective way to tell a story that will not set off knee-jerk morally based reactions to the use of new technologies. People want to feel safe from disease, but also from a world where science fiction movies come to life. Equally uncertain is how people see the role of government in nurturing innovation while protecting the public from science run amok.

We think those recommendations still make sense today. When you have an exciting whiz-bang technology like CRISPR, you may get so excited about it that you presume jurors will be excited (and support your case) too. But slow down—with any great advance in technology, there is also often great fear, so do some pretrial research to see how mock jurors respond to your presentation of the technology. It’s likely going to be a pretty complicated response that will require refining your presentation in ways you might not predict.

Dietram A. Scheufele, Michael A. Xenos, Emily L. Howell, Kathleen M. Rose, Dominique Brossard, Bruce W. Hardy. U.S. attitudes on human genome editing. Science Magazine, 11 AUGUST 2017 VOL 357 ISSUE 6351.

Images taken from Science Magazine article cited above

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The graphic illustrating this post contains false data. It is just one example of the way false information has been used to heighten racial tensions in the past few years. The graphic is shown here with FALSE in big red letters to help you remember the data shown is simply not true (we’ve blogged about the importance of this visual strategy before here.

The information contained in this post IS true and comes from a new Marshall Project investigation into 400,000 murders by civilians between 1980 and 2014. They begin the report with these bold statements (which are backed up by actual data). Keep in mind that these statistics DO NOT include police shooting of citizens.

When a white person kills a black man in America, the killer often faces no legal consequences.

In one in six of these killings, there is no criminal sanction, according to a new Marshall Project examination of 400,000 homicides committed by civilians between 1980 and 2014. That rate is far higher than the one for homicides involving other combinations of races.

You may not find this statement as difficult to believe now given the racial tensions exploding all around us in the US but it is still alarming evidence suggesting that Black lives are less valued than other lives. This is not an isolated phenomenon:

“The disparity persists across different cities, ages, weapons, and relationships between killer and victim”.

This is a very important report for you to read if you want to understand the actual numbers surrounding the killing of Black men by White people who are not employees of law enforcement organizations. (That one is a whole different post!)

First, it is important to understand just what is considered a “justifiable homicide” and the Marshall Project defines the concept this way:

Little large-scale research has examined the role of race in “justifiable” homicides that do not involve police. The data examined by The Marshall Project are more comprehensive and cover a longer time period than other research into the question, much of which has focused on controversial “Stand Your Ground” laws.

In the United States, the law of self-defense allows civilians to use deadly force in cases where they have a reasonable belief force is necessary to defend themselves or others. How that is construed varies from state to state, but the question often depends on what the killer believed when pulling the trigger.

“If there are factors—even if they’re stereotypes—that lead the defender to believe he’s in danger, that factors in, whether it’s a righteous cause or not,” said Mitch Vilos, a Utah defense lawyer, gun rights advocate and the author of “Self-Defense Laws of All 50 States.”

As hinted at in the excerpt above, the Marshall Project Report highlights the reality that stereotypes and fears not based in facts may result in wrongful killings that are then not punished accordingly because “it was a mistake”. We wrote about these sorts of irrational fears and stereotypes in an article published after the Trayvon Martin killing as well as on the blog. You can see the full article which was published in The Jury Expert here: The ‘Hoodie Effect’: George, Trayvon and How it Might Have Happened.

Here are a few facts presented in the report (which, again, is based on actual data from the FBI and not just made up to inflame emotions).

The vast majority of killings of Whites are committed by other Whites, and the overwhelming majority of killings of Blacks is by other Blacks.

But killings of Black males by Whites are more than 8x as likely as all others combined to be labeled justifiable [killings].

In comparison, when Hispanics killed black men, about 5.5 percent of cases were called justifiable. When whites killed Hispanics, it was 3.1 percent. When blacks killed whites, the figure was just 0.8 percent. When black males were killed by other blacks, the figure was about 2 percent, the same as the overall rate.

Since this report is about killings labeled as “justifiable”, it doesn’t even address wrongful convictions of Black Americans. For that, you can review this March 2017 report from the University of Michigan: Race and wrongful convictions in the United States..

The actual report contains many graphics showing how the numbers compare to each other and the graphics are eye-opening (to say the least). If you want to be fully informed on the facts involved when it comes to race and murder in the US, you need to read this brief report.

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Every once in a while we run across a tip in the social sciences research that is just begging to be used in litigation advocacy. A while back we found a UK researcher named Tim Perfect who told us a very simple thing: “When you want to increase both volume and accuracy in witness recall, don’t have them tell a story backwards. Just have them close their eyes! It really does increase the number of accurate observations recalled.” We liked his work so much we asked him to write up his research for publication in The Jury Expert (where many others have liked it as well!).

And today, we have another wonderful tidbit of the same sort for you. Anyone who has prepared witnesses for courtroom testimony or deposition knows it can be an anxiety-provoking experience. Witnesses who are anxious will fidget, squint, lick their lips, contort their bodies, rock back and forth in their chairs, or stick their fist in their mouths as we saw in one very unfortunate mock trial example. Jurors take note of these things and, often, come to the conclusion that the witness is lying as opposed to showing anxiety. So for all those who have tried to calm an anxious witness down, here’s an easy (and free) strategy that requires no specialized fMRI equipment or high-tech accoutrements.

Just use pronouns.

How? It is a simple strategy and (in truth) one both of us have used in previous professional lives helping psychotherapy clients manage their own anxieties in stressful situations. What you want is to help the person see themselves testifying as though they were watching a movie of themselves and not projecting their anxieties as they imagine themselves testifying.

The research on which we base this recommendation was summarized at ScienceDaily where the authors said this:

Before any potentially stressful event, people often engage in self-talk, an internal dialogue meant to moderate anxiety.

This kind of self-reflection is common, according to Mark Seery, a University at Buffalo psychologist whose new study, which applied cardiovascular measures to test participants’ reactions while giving a speech, suggests that taking a “distanced perspective,” or seeing ourselves as though we were an outside observer, leads to a more confident and positive response to upcoming stressors than seeing the experience through our own eyes. The findings, published in the Journal of Experimental Social Psychology [snip] illustrate how the strategic use of language in the face of tension helps people feel more confident.

It’s something sports psychologists do routinely—they help athletes visualize themselves executing an action successfully. When we did this with psychotherapy clients, we often asked them to observe themselves from a perspective well above the situation in which they found themselves. They could be like a fly on the wall (or see themselves sitting in a chair oddly positioned up by the ceiling) and describe what was happening to “that person” (who was actually them) in the interaction. Then they could play out (like in a movie) how they wanted “that person” to behave and practice doing it that way.

This is a strategy easily generalizable for use in the preparation of witnesses for courtroom or deposition testimony. For example, you might ask the person what they imagine as they consider testifying in court (or deposition) and (if they are anxious about it) they will probably say something like this:

The idea of all those people staring at me makes me short of breath and sweaty feeling. It just really scares me.

You want them to change that self-talk using pronouns to something like this:

When Doug thinks about testifying, Doug is anxious about all the people watching him.

And then, over time and witness preparation, to something like this:

When Doug testifies, the goal he focuses on is being calm, listening carefully, and accurately telling his truth. Doug understands the importance of communicating clearly to the jury and believes he can do that effectively while still being truthful.

You may be concerned that this sort of “self-distancing” strategy would lead to a witness who seems disconnected from their testimony. According to the researchers, you needn’t be concerned. Again, here is an excerpt from the summary over at ScienceDaily:

“We found that self-distancing did not lead to lower task engagement, which means there was no evidence that they cared less about giving a good speech. Instead, self-distancing led to greater challenge than self-immersion, which suggests people felt more confident after self-distancing.”

Seery points out that some of the most important moments in life involve goal pursuit, but these situations can be anxiety provoking or even overwhelming. “Self-distancing may promote approaching them with confidence and experiencing them with challenge rather than threat.”

From a litigation advocacy perspective, this is exactly where you want a witness to be as they consider testifying. You want them to see it as a challenge rather than a threat. Using pronouns to help them distance from the anxiety while rising to the challenge of testifying may help the anxious witness bridge that transition.

Streamer, L Seery, MD Kondrak, CL Lamarche, VM Salesman, TL 2017. Not I, but she: The beneficial effects of self-distancing on challenge/threat cardiovascular responses. Journal of Experimental Social Psychology, 70, 235-241.

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