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Archive for the ‘Pre-trial research’ Category

How big is that potential juror’s house? 

Wednesday, March 25, 2015
posted by Douglas Keene

tiny houseTiny house craze aside, could this be a secret jury selection strategy? In June 2014, the Pew Research Center published a study showing that liberals prefer small, walkable communities while conservatives prefer the more sprawling suburbs. While about half of Americans prefer urban living and half prefer rural life—the split is apparently highly partisan. So Lisa Wade of the blog Sociological Images asks the question for us: “Can you guess someone’s political preferences by the size of their house?”.

To which we would add, “or by their zip code?” It’s an intriguing idea. Say you’ve done pretrial research and have learned your case plays better to those with either more conservative or more liberal leanings. Can you quickly choose between the urban and suburban dweller with positive results for your case? If you’ve read this blog for long, you already know the answer: it probably depends. The goal of research such as this—as far as jury selection is concerned—is to reduce uncertainty. Not everyone in a big suburban house is conservative, and not everyone who lives in a smaller home in a city is liberal. But the research points out a variable that already feels familiar to all of us involved with litigation—there are pockets of conservatism and liberalism.

Not all people live in what researchers would identify as their preferred setting. You will find liberals in the country or suburbs and conservatives in the city. Career focus, phase of life issues from childcare to elder care, financial status, convenience, as well as varying attitudes, beliefs and values, all factor into one’s home address. Microtargeting strategies for advertising, political campaigning have been in use for years, identifying people by factors such as living on specific blocks within zip codes, size and value of homes, ownership of cars, membership in certain churches, and use of particular credit cards. It only makes sense that jury selection would ultimately tap into these strategies. We have been factoring them in for years.

Some of the findings can be understood in practical terms.

We tend to have greater empathy for people we come into contact with, people we feel we relate to and understand (people “like me”).

Those in racially homogeneous precincts don’t feel as able to relate to other races than those who live in mixed race areas.

People who only hang out with the affluent, or with the financially stressed, don’t identify as readily with those who live at the other end of the financial spectrum.

And we tend to gravitate toward those who we feel understand us, as neighbors, fellow church-goers, and cohorts in various other dimensions.

We like people best who are most like us.

While, under strict time and information constraints, you may choose to use broad stereotypes (and this one is at least supported by data rather than assumptions), given the opportunity, there are plenty of other clues you may want to consider in addition to rural, urban, and suburban addresses.


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light skinned black manMost of us have heard of the preference for lighter skin within the African-American community. Some of us have also heard of “colorism” in general—a bias shared by many in our culture. Recently, author Lance Hannon (a sociologist from Villanova University) used data from the 2012 American National Election Study and found that Whites in America tended to see light-skinned Blacks and Hispanics as more intelligent than those with darker skins.

The National Election Study requires interviewers to sit down in a face-to-face survey with respondents (who disclose their income and education level and take a brief vocabulary test). Hannon identified 223 Black or Hispanic respondents who were interviewed by White survey takers. The White interviewers were asked to list each individual respondent’s skin tone on a 10 point scale as well as to estimate the respondent’s intelligence on a 5-point scale ranging from “very low” to “very high”.

What he found is disturbingly consistent: “white observers will look at two identically qualified minorities and assess the lighter skinned one as more intelligent”. Other factors about the respondent simply did not seem to matter.

Specifically, regardless of the respondent’s age group, gender, income, or their vocabulary test score, those respondents the interviewer’s described as “lighter” in skin tone were seen as “more intelligent”.

Educational level of the respondent did predict the interviewer’s assessment of their intelligence, but not as strongly as the respondent’s skin tone predicted the interviewer’s estimate of their intelligence.

If this finding is supported by follow-up studies (which appears likely), it has far-reaching implications for our society. When skin tone has a larger role in estimating intellect than educational level—the tendency to equate lighter skin with higher intelligence is obviously deeply entrenched.

From a litigation advocacy perspective (and an inclusive workplace perspective), this research informs us on biases we may assume without question.

When assessing jurors for your specific case, pay more attention to education and curiosity than to skin tone in estimating intelligence.

Do the same in the workplace. When you are assessing workplace performance, set skin tone (and gender, and age, and ethnicity) aside. Focus instead on concrete behavioral indicators that deserve reward.

Just as we have “learned” to have biases against race and color, we need to “unlearn” those biases and make ourselves consciously aware of them—whether it is in the courtroom or the workplace.

Hannon, L. (2015). White Colorism Social Currents, 2 (1), 13-21 DOI: 10.1177/2329496514558628


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Red States, Blue States and Brain States 

Wednesday, March 11, 2015
posted by Douglas Keene

red and blue brain_83860474Neurolaw interest has been building for years among those of us who work in litigation advocacy. But what about among the public—those who may serve as jurors, for example? Earlier this year, we wrote about a study done in the United Kingdom that showed citizens there were more confused than intrigued by neurolaw principles. Here is part of what we said back in January:

“The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique.They also  found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness.”

So that was in the United Kingdom. What about here in the United States? These researchers first used a small sample (N = 89) online to identify the ways the public  thought fMRI findings, for example, might be used in the legal system. A quarter (25%) said “none” (i.e., they did not think of any ways an fMRI might be used in the legal system. Slightly more than a third (34%) listed “lie detection”; 36%  mentioned it might be used in the assessment of a criminal defendant (e.g., support for an insanity case); and 2% mentioned brain injury cases. The authors indicate only a few participants mentioned topics such as addiction, juvenile justice, or brain death.

The authors thought the topics offered by the participants in their pilot study meant that when Americans are asked to think of neurolaw, most of them focus on the criminal domain. So, the researchers used a large, published poll (done through Columbia Law School) administered in 2011 to gather information from a “truly nationally representative sample”. The survey (a random-digit-dial telephone survey) resulted in a sample of 1,010 respondents all from the continental United States.

The researchers wanted to know whether attitudes toward the use of neurolaw varied based on political affiliation and based on how the use of neurolaw was described. All of these respondents were read the following during their telephone survey:

“Recently developed neuroscientific techniques allow researchers to see inside the human brain as never before.”

The researchers divided up the participants into three groups (i.e., a control group, a “prosecution” treatment group, and a “defense” treatment group).

Control group participants were asked if they approved or disapproved of legal reforms based on advances in neuroscience. Ultimately, 9% strongly disapproved and 9% strongly approved. 40% were undecided and the remainder were split between approving and disapproving. The distribution of responses was roughly normal and approval/disapproval of neurolaw was the same for Democrats as it was for Republicans and Independents.

Prosecution treatment group participants were asked if they approved or disapproved of prosecutors using neuroscientific evidence to show that criminal defendants deserved lengthy prison sentences.

Defense treatment group participants were asked if they approved or disapproved of defense attorneys using neuroscientific evidence to show that criminal defendants deserved reduced sentences.

Normally, we would not expect to see differences based on self-reported political party affiliation for reasons we’ve written about earlier. But, in this case, (which is why you should never assume) political affiliation matters!

Republicans had less approval for neurolaw when it was framed as helping the defense than when there was no framing (i.e., in the control group) or when it was framed as helping the prosecution.

Democrats did not differ in their approval for neurolaw in the three conditions.

Independents leaned toward the Republican perspective, although the results were not statistically significant. The researchers thought perhaps the Independents were “closet partisans” who tended to see issues of law and order similarly to the Republicans.

The authors summarize their findings by saying that the American public is largely undecided as to their attitudes toward neurolaw but that how neurolaw is framed (as benefitting either the prosecution or the defense or no one) matters when self-identified Republicans are assessing whether they approve or disapprove of neurolaw’s use. The researchers see this as representing the Republican’s law and order values. If neurolaw helps the defense, Republican’s don’t think it is a good thing. However, the authors also opine that neurolaw is not yet a polarizing political issue. On the other hand, neurolaw can be presented in such a way as “to excite partisan differences” if it is presented as something that will help “defendants get off easy” for their crimes.

While this may have something important to add to the neurolaw discussion, it seems likely to mirror the overall prevailing view of criminal prosecution/defense leanings more generally. Republicans generally have a more pro-prosecution view than do Democrats, so it isn’t much of a surprise that Republicans would look less favorably on a strategy that might favor defense. So it leaves open the question of whether this research is testing bias or views of neuroscience.

More broadly, this study highlights the importance of framing when asking for what appear to be standard reactions to a specific topic. While the question is not as obvious as with push polls, the same sort of reactivity appears to occur when neurolaw is described as benefitting either the prosecution or the defense—at least for Republicans.

If those skeptical about neuroscience being used by defendants  were taught that validation of neuroscience has been established through application by prosecutors, they might be more receptive to it being employed by defendants as well. They are more likely to grant credence to prosecution strategies, so in a paradoxical way, boot-strapping the defense use of neuroscience—by reframing it to be a method used by prosecutors— could raise acceptance among some who are skeptical of defendants.

Shen, F., & Gromet, D. (2015). Red States, Blue States, and Brain States: Issue Framing, Partisanship, and the Future of Neurolaw in the United States The ANNALS of the American Academy of Political and Social Science, 658 (1), 86-101 DOI: 10.1177/0002716214555693


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The Personal Sense of Power Scale 

Monday, March 9, 2015
posted by Rita Handrich

personal-power-12-14We give you information about various scales from time to time and always put “Scale” in the title of the post so they are readily searchable. This one is a brief measure of the individual sense of personal power. We heard about this scale after writing up a recent blog post and thought it interesting enough to include here.

Essentially, this is an 8-item measure you can use to determine the sense of personal power an individual believes they have. And even if you have no intention of making use of the scale, you can look at it to understand what researchers identify as the characteristics of personal power. A key factor in reaching conclusions about the validity of this scale is that the researchers found (in 5 studies with 9 separate samples and a total of 1,141 participants) that “those who think they can get their way in a group also believed that they can influence fellow group members’ attitudes and opinions”. The authors list varying instructions to be given depending on whether you are using the scale to assess one’s sense of personal power with friends, parents, groups, negotiations, and other interactions. “Personal power”, say the researchers, is not the same across all relationships and so assessing specifically for the group in which you are interested is important.

This article on scale development was published in a mainstream psychological journal and they carefully developed and carefully analyzed the variations in sense of personal power across distinct relationships. Additionally, they were interested in whether a personality factor like dominance or socioeconomic status were also related to one’s sense of personal power.

Overall, the researchers found a number of variables related to (and not related to) personal power.

Those who had higher internal locus of control (i.e., beliefs that we control our own fate) also saw themselves as having a higher power in their relationships with others.

The personal sense of power was positively related to being extraverted, being conscientious, being open to new experiences and positively related to self-esteem. A personal sense of power was negatively related to being neurotic.

“…individuals can reliably gauge their power in single discrete dyadic interactions, longer-term relationships, larger social groups, and in general, across all important relationships and groups.”

Contrary to many academically designed scales, the items on this one are both low in number (only eight items) and couched in plain language. They are placed on a 7-point Likert scale ranging from strongly disagree to strongly agree. Here are three questions from the scale (if you want to see all of them, go to the article itself.

Even if I voice them, my views have little sway.

I think I have a great deal of power.

My ideas and opinions are often ignored.

The remaining five items are similar in language and complexity to these. They are user-friendly and surprisingly jargon-free. Personal power and the impact it has in a group of decision-makers is interesting, and it raises additional questions. Some people with personal power are charismatic, while others are simply self-involved. Some have influence, others make people want to wring their necks. In jury selection, we consider who the leaders are likely to be, who the followers are, and whether what we can understand of the personalities and styles of jurors will produce cooperation and collaboration, or whether people will rush to judgment in an effort to get away from one another. The concepts embedded in this scale may help you make those determinations.

Anderson, C., John, O., & Keltner, D. (2012). The Personal Sense of Power. Journal of Personality, 80 (2), 313-344 DOI: 10.1111/j.1467-6494.2011.00734.x


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i-am-powerfulWe have written about power poses and other strategies to help yourself feel powerful.  Be clear, though—you do not become more powerful by doing such things, but it might make you feel that way, which in itself can be communicated as confidence or authority. This post isn’t about how to make yourself feel powerful, it is about those who perceive themselves as already powerful. In short, those who see themselves as powerful draw more inspiration from themselves than they do from others. It apparently doesn’t matter if you really are powerful, only that you think you are powerful. The authors begin by quoting from Matthew McConaughey’s Oscar acceptance speech in 2014.

McConaughey “recalled someone asking him ‘Who’s your hero?’. He replied: “You know who it is? It’s me in ten years”. [snip] Apparently, Matthew McConaughey derives inspiration from his future self.”

So the researchers took a look at how this happens. How do you draw inspiration from yourself rather than drawing inspiration from the example of others. They give the example of the sort of  person we have all encountered, who goes on and on about their accomplishments and experiences. The dynamic is not only one exemplified by famous actors.

The researchers planned four separate studies with 555 participants across all four studies (3 studies performed with Dutch undergraduates and one with undergraduates at UC Berkeley). In the first three experiments all participants completed a measure of their personal sense of power, and other tasks (including writing tasks and various efforts to measure how the participants were “inspired”). In the final study, the researchers “primed” the participants to experience either a high or low sense of personal power. What the researchers wanted to know was if the participants who felt “powerful” would report they drew more inspiration from themselves than they drew from others.

Their findings are consistent with Matthew McConaughey’s Oscar speech (even in the fourth study where participants were “primed” for high power sense of self rather than just reporting it was the way they saw themselves).

The powerful are more inspired by their own experiences than are those that do not see themselves as powerful.

And the powerful are more inspired by their own experiences than by the experiences of others.

The authors conclude that the reason powerful people talk more, are poor perspective takers, are less prone to consider the opinions of others, and less likely to take expert advice (all findings in previous research) is because “the powerful prefer to entertain their own rather than other people’s experiences and ideas, because they are more inspired by their own internal states than by those of others”. The authors close by returning to consider the case of Matthew McConaughey. They say,

“Inspiration is always within reach for their powerful—entertaining their own uplifting experiences is enough to spark the flame.”

It brings to mind how important it is to look at how a persuasive person with high socio-economic status and confidence  (a “powerful” person) may function in jury deliberations. If you want to avoid having a jury dominated by this person, take the time to teach all jurors “how to deliberate” so if they feel run over by jurors who feel empowered to drive the verdict—others have ammunition with which to disrupt that intention.

Van Kleef, G., Oveis, C., Homan, A., van der Lowe, I., & Keltner, D. (2015). Power Gets You High: The Powerful Are More Inspired by Themselves Than by Others Social Psychological and Personality Science DOI: 10.1177/1948550614566857


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