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Playing the race card: When it works and why it doesn’t
One of our most often accessed posts is in our Simple Jury Persuasion series and titled When to Talk about Race and When to Stay Silent. In the year following that post, two researchers examined when making race salient was useful for defense attorneys.
The article, with authors residing in and research done in the U.S., was published in a British journal and so they spell defense with a c instead of an s. To avoid confusion, and questions as to our proof-reading, we’ll spell it our way except in the actual citation below the post.
The researchers recruited 151 White college students and then had them read doctored trial transcripts. The transcripts varied based upon 1) Defendant race (either Black or White) and, 2) whether the Defense attorney made statements regarding race. In other words, the students were randomly given one of four possible scenarios: Black Defendant with race made salient by the Defense attorney; Black Defendant with no racially salient statements made by the Defense attorney; White Defendant with race made salient by the Defense attorney; or a White Defendant with no racially salient statements made by the Defense attorney.
The (12 page) trial transcript described a trial wherein a Defendant had been accused of simple assault after starting a bar fight following watching a football game on the bar TV where his favored team lost. The crime was interracial–that is, if the Defendant was Black, the victim was White and if the Defendant was White, the victim was Black. The Defendant was described as an out-of-towner who was traveling on business. The injuries to the victim were described as a “broken nose and a black eye”. In conditions where race was made salient by the Defense attorney, the following statements (from opening and closing statements) were included in the trial transcript:
“The defendant did what any (Black/White) man in this situation would do.”
and
“The only reason the Defendant, and not the supposed victim, is being charged with this crime is because the Defendant is (Black/White) and the victim is (White/Black).”
In those conditions where race was not made salient, the preceding statements were not included in the trial transcript. The research participants rated the guilt of the Defendant (on an 11-point scale ranging from definitely guilty to definitely not guilty) and those who found the Defendant guilty were asked to sentence the Defendant to a prison sentence ranging from 1 to 60 months in prison. They were also asked to rate the influence of Defense and Prosecution attorney statements and the race of the Defendant. (A previous mass testing session gave the researchers access to all participant scores on the Old Fashioned Racism Scale–see page 65 of the linked pdf for the scale questions.)
What the researchers found is intuitively compatible with our reading of the literature on what is now called “modern racism”.
In short, when the Defendant was Black, the racially salient statements of the Defense attorney helped with some White jurors.
Deviating from previous studies of the relationship of prejudice and the impact of making race salient, the difference in favor of the Black Defendant was not the same across all White participants. In previous studies, the use of racially salient statements lowered the proportion of White respondents finding the Black Defendant guilty across the board. That was not the case in this study.
Participants higher in prejudice/racial bias were more likely to find the Black Defendant guilty and more likely to find the White Defendant innocent.
The researchers say that it is important to consider that the research on this effect has been conducted using interracial crimes and it may not effect White jurors when both the Defendant and the victim are Black. They also discuss previous research that showed racially salient statements result in higher levels of cognitive processing among jurors. Thus, some jurors may focus more on the evidence and that may result in more Black Defendants being found guilty. Other jurors may be led by the increased cognitive processing to an over-emphasis on race and thus, the researchers say, more prejudiced jurors could find Black Defendants guilty.
These are nuanced findings and those very nuances are part of why it is so important to read original research sources and do pretrial research to see if the specific facts of your case are strengthened by making race salient or not. Also, we wouldn’t recommend the statements used in this research for any prosecutor or defense counsel. For research it’s fine, but not for the real world.
Despite Americans having elected (and re-elected) a biracial President, the impact of race in your specific case, with your specific Defendant or Plaintiff, and with your specific case facts and venue is anything but certain. For us, this is a both fascinating and very sad area of our work. We’ll keep reading the research. You keep coming back to check it out!
Bucolo, D., & Cohn, E. (2010). Playing the race card: Making race salient in defence opening and closing statements Legal and Criminological Psychology, 15 (2), 293-303 DOI: 10.1348/135532508X400824
Please, let me apologize. I didn’t mean for this to happen!
We’ve seen a lot of articles on the value of apology for victims (and we’ve written a number of them here) but there isn’t much out there on the value of the apology for the perpetrator of the wrong-doing. Victims tend to want apologies when they believe harm done was intentional. Victims, in this instance, often feel angry. Perpetrators, on the other hand, often especially want to offer an apology when the transgression was not intentional. Perpetrators, in this instance, often feel guilty for having harmed another.
European researchers believed these differing emotions (e.g., anger and guilt) can result in an “apology mismatch” and thus have impact on future forgiveness and reconciliation between the victim and the perpetrator. After three different experiments, the researchers reported that:
Apologies are driven by the perpetrator’s needs and they do not often consider the needs of the victim.
Perpetrator’s are more likely to apologize after unintentional transgressions due to higher levels of guilt.
Victims are not as angry after unintentional transgressions and therefore they are more likely to forgive the perpetrator.
Intentional transgressions result in the highest desire for apology from the angry victim and the lowest level of desire to apologize from the unrepentant perpetrator. A lack of apology can intensify the victim’s anger.
Ironically, the researchers cite prior research showing that when the angry victim receives the apology they say they want from the perpetrator of the intentional transgression–it doesn’t help as much as the victim anticipated it would.
Perpetrators may end up feeling guilt and thus apologizing for intentional transgressions that had unintended consequences such as pushing a friend into a pool and ruining a new smart phone in the friend’s pocket.
Overall, the researchers say, the desire for an apology and the desire to apologize are often mismatched and can result in grave difficulty reaching compromise. Those charged with mediating/negotiating solutions to such situations often find them more difficult than initially expected.
Our mock jurors often express distress in these situations. They wonder why the parties didn’t “work it out before it went so far”. When disputes involve conflict between family members, they always want the family members to drop lawsuits and go to counseling or just work out their disagreements and remember to love each other. Jurors don’t like conflict and tension any more than the rest of us do. They want to believe an apology can make all the difference in the world. The reality can be much more complex than any of us might imagine.
Consider also the import of this for mediation. Thinking in terms of the intangible/non-economic factors that facilitate resolution, this research is significant. The Plaintiff may be convinced that the wrong was done intentionally. The Defendant may feel that the damage that gave rise to the lawsuit was inadvertent, but may also feel angry or bitter that their error has been blown into a character attack. Strategies for diffusing the tension and bridging the misaligned perceptions end up feeling more like family therapy than law, but it is the very human nature of the process. What we have found can help is a mediation strategy (reinforced by the respective advocates of the parties) that:
You are justified in feeling wounded.
There are two issues at work: The compensable injury (the suit) and the personal affront (the emotional barrier to resolution).
The parties may never see eye-to-eye.
But even with the differences in perspective, both sides regret the situation, and also regret the related misunderstanding. Saying something like “I can’t honestly say that I see it the way you do, but I’m genuinely sorry that you are upset. I didn’t mean for any of this to happen” can often loosen deadlocks.
Leunissen, J., De Cremer, D., Reinders Folmer, C., & van Dijke, M. (2013). The apology mismatch: Asymmetries between victim’s need for apologies and perpetrator’s willingness to apologize Journal of Experimental Social Psychology, 49 (3), 315-324 DOI: 10.1016/j.jesp.2012.12.005
“The hubris penalty” is applied to “uppity” Black athletes
Do we think a football player should be punished for performing a celebration dance? It depends on his race. Even non-football fans have seen the celebration dances done by athletes following touchdowns. If the football player is Black, that arrogance should be punished. If White, it may still be arrogance, but that’s okay. Because they are White.
Wow. Researchers from Northwestern University wondered if Black football players would be seen more negatively (they call it “punished”) for celebration dances following touchdowns. There is research saying that members of high-status groups can behave arrogantly without penalty but that low-status group members cannot. The researchers conducted three different experiments:
The first experiment sampled 74 part-time MBA students (29 female, 45 male) who were all US born, “non-Black” and knowledgeable about American football. They read a description of Black or White football players who either celebrated with a “signature dance” following a successful touchdown or did not celebrate. They were then asked if the athlete should get a salary increase for the successful play.
Black football players who danced were punished financially more than Black football players who didn’t dance (and were therefore seen as more humble). White football players were not penalized similarly–that is, there was no difference in the recommended financial award for the arrogant versus the more humble White football player.
Study 2 sampled 54 non-Black males who could report the length of a football field. This was an age (19 years old to 75 years old) and income diverse (average income slightly below $73K/year) sample. The participants reviewed the same story as those in Study 1 had reviewed and were then asked this question: “If the average wide receiver in the NFL makes around $1M, how much do you think Malik Johnson (or Jake Biermann if the player was reported to be White) should make?”
The results were similar to Study 1 with Black football players celebrating being financially punished while White football players were not.
For Study 3 (now satisfied that Black football players were going to be punished for their arrogance) the researchers wanted to see why and when Black football players would be penalized. Again, 105 White participants able to report the length of a football field were gathered from an online sample. It was again a diverse sample: age ranged from 17 to 68; household income was on average $44K; and women (67 women, 38 men) were included in this sample. This time the participants read similar vignettes to the first two studies with some modifications: the football players in the vignettes were all Black and either celebrated against a White player, celebrated against a player who race was not specified, did not celebrate at all, and in a “humble” condition, the player simply immediately surrendered the football to a referee as prescribed by the official playbook.
Black players in the celebration against a White opponent condition were rewarded significantly less than the Black player in the no-celebration condition or the humble condition. Similarly, the Black player in the celebration condition not specifying the race of the opponent was also rewarded significantly less than those who did not celebrate and “marginally less” than the Black players in the humble condition.
When the Black football players celebrated, they were penalized more than those who did not celebrate/were humble.
The researchers call this effect the “hubris effect” and refer to the “historical” notion of the “uppity Black” who needed to be taken down a peg or two. This research shows what they describe as “robust evidence” for this sort of hubris penalty against Black athletes but no similar effect for White athletes. In other words, we think it’s okay for White athletes to be arrogant, but Black athletes should know their place.
They cite other disturbing and recent research finding similar patterns:
From a 2010 study: Blacks are penalized for over-performance academically and downplaying achievement or feigning incompetence helps to avoid backlash.
From a 2009 study: Black CEOs benefitted from features that made them seem less competent than “ordinary Blacks”. The assumption here was that too much competence could be threatening to Whites.
It’s a sad and frustrating window into the state of race relations/perceptions in the current day. From a litigation advocacy standpoint, this has multiple implications. [Please understand that we are no more enthusiastic over the following recommendations than we are with the bias that spawned them. We're taking life as it comes here, and trying to optimize a bad situation.]
Prepare your witnesses and parties with awareness of this dynamic and the expectation that Blacks must be humble.
If your Black client, party, or witness is of higher education, SES, attractiveness, et cetera–pay special attention to evoking juror awareness of “universal values” your client shares with the jurors so the jurors see your Black client as more like them than not like them. The goal with this strategy is to decrease the likelihood of your White jurors being threatened by a high achieving Black party or witness). It’s a case of being more ‘humble’ than should be appropriate. It’s wrong, but it helps.
Consider mitigating the tendency to lower awards to Black plaintiffs or to penalize Black defendants too harshly by using one of our favorite litigation advocacy techniques.
Hall, E., & Livingston, R. (2012). The hubris penalty: Biased responses to “Celebration” displays of black football players Journal of Experimental Social Psychology, 48 (4), 899-904 DOI: 10.1016/j.jesp.2012.02.004
Excuse me potential juror: Is your brain red or blue?
Brain researchers are increasingly focused on whether our brains are red or blue–as in Democrat or Republican. And there appears to actually be something to it. But it reminds me of that Dr. Seuss book One Fish Two Fish Red Fish Blue Fish. I confess the charm of Dr. Seuss wore off for me a great deal faster than it did for my kids… Even after reading his books aloud over and over and over and over again to my kids they still loved them. Once they began to read, I had to listen to them read them aloud over and over and over and over again. Of course, my antipathy toward Dr. Seuss was nothing compared to my feelings about a giant purple dinosaur whose name will not be spoken here. Suffice to say, his affections were most assuredly not returned by me. I couldn’t even listen to the YouTube video of that song without shuddering and I shut it off after the first line.
But I digress. In this study (freely accessible online thanks to PLoSONE) researchers look at how having either a Democrat or Republican political affiliation may change how your brain functions during risky decision-making. It is also important to note that these researchers use the descriptors Democrat/Liberal and Republican/Conservative interchangeably. They believe that this idea is valid and point to a 1998 article to explain:
“While party registration is not a perfect proxy for ideology, a realignment that started in the 1970s has caused the two to become increasingly correlated over the past 40 years. Political polarization at both the mass and elite levels have created a period where ideology and partisanship are substantially overlapping concepts. This trend has been even stronger in California (where the participants in this study resided) than in other states.”
Their use of a Democrat = Liberal and Republican = Conservative assumption is further supported by a more recent 2008 article:
“However, our evidence indicates that since the 1970s, ideological polarization has increased dramatically among the mass public in the United States as well as among political elites. There are now large differences in outlook between Democrats and Republicans, between red state voters and blue state voters, and between religious voters and secular voters. These divisions are not confined to a small minority of activists—they involve a large segment of the public and the deepest divisions are found among the most interested, informed, and active citizens. Moreover, contrary to Fiorina’s suggestion that polarization turns off voters and depresses turnout, our evidence indicates that polarization energizes the electorate and stimulates political participation.”
The current researchers cite prior research on what the brains of liberals and conservatives look like structurally. Using a “simple gambling game”, prior research found that “liberals and conservatives have significantly different brain structure, with liberals showing increased gray matter volume in the anterior cingulate cortex, and conservatives showing increased gray matter volume in the in the amygdala”.
For the current research, the researchers looked at what areas of the brain were used during those gambling tasks and found a difference in what parts of the brain were activated during those decisions. When considering risky decisions:
Democrats relied on the left insula (associated with social awareness and self awareness).
Republicans relied on the right amygdala (associated with the fight or flight system).
What was particularly surprising is that looking at the brain activity alone could show with 82.9% accuracy whether a person had voted Democrat or Republican. (In comparison, a model using the political affiliation of parents to predict a child’s political affiliation has only 69.5% accuracy!) The researchers believe that this information shows that Democrats and Republicans use their brains differently. They also believe that this research may result in new research on voter behavior that can help us understand better how people think.
From a litigation advocacy perspective, this is yet another finding that makes us wish for added functionality to Google Glass so we could see the “color” of potential juror brains. On the other hand, we sure would want to back up this assumption that political ideation equates to liberal vs. conservative attitudes with pretrial research on a pretty large scale. The size of the researcher’s sample for this study (N = 82; 35 males, 47 females) leaves much to be desired. Even the researchers wish they could have inquired more closely:
“Ideally, we would have also directly inquired about the individuals’ ideological self-identification and attitudes about a set of political issues. However, we were not able to re-contact the participants.”
So it isn’t quite perfect. But it’s a start. So, once having determined that Democrat = Liberal and Republican = Conservative, we have to determine whether it matters. And what the role might be in a particular case of such social or political alignment. In our experience, it has more salience in personal injury cases or cases involving ethnic minorities than it does on complex commercial or intellectual property cases. But ultimately, research on understanding jurors is interesting when it is descriptive, but only worthwhile when it becomes predictive of verdicts.
Schreiber D, Fonzo G, Simmons AN, Dawes CT, Flagan T, Fowler JH, & Paulus MP (2013). Red brain, blue brain: Evaluative processes differ in Democrats and Republicans. PLoS ONE, 8 (2) PMID: 23418419
“I’ve got proof I’m open-minded!”: Inventing racist roads not taken
In 2009, researchers found those who stated they supported Barack Obama in the 2008 Presidential election had a sense of having “moral credentials” that allowed them to then [overtly] favor Whites over Blacks on various tasks. And it’s still happening. Did voting for Obama offer deniability for other manifestations of racism?
The same research group has now found that when we are worried our current behavior “might seem racist” we tell ourselves that in the past we have not been racist when given the opportunity. It is, in essence, “the racist road not taken” and it paradoxically increases our willingness to express racially insensitive views. Unfortunately, it appears we simply make up (through memory distortion) that “racist road not taken”–as in, it never really happened.
The lead author explains it this way:
“Our research suggests that people demonstrate remarkable flexibility when it comes to convincing themselves that they have proven their lack of prejudice. The ability to point to blatantly racist behaviors that they didn’t perform seems sufficient for people to feel that they have non-racist credentials—even if virtually no one would have chosen to perform those racist behaviors. People are essentially willing to make a mountain of proof out of a molehill of evidence. What’s more, our results show that people are willing to go even farther and invent the molehill, convincing themselves that they passed up opportunities for racism that they didn’t actually have.”
Let’s take a look at what the researchers did via a succinct press release:
The researchers conducted a series of six experiments. The first three established that participants are more likely to express less racially sensitive views – such as saying they would prefer to hire white people instead of black people for a hypothetical job, or allocating funds to an organization serving a white community at the expense of one serving a black community – if they have specific examples of racist behavior they have foregone.
The last three focused on the memory distortion of participants—their invention of racist alternatives to their actions that they could have taken but did not.
One such experiment asked participants to identify a criminal from a lineup of suspects. The evidence clearly pointed to one particular suspect who was white. All participants accused this suspect, but one participant group was also given the opportunity to accuse a clearly innocent black suspect instead. This group later felt more comfortable expressing less racial sensitivity in response to additional scenarios since they had been faced with, but not taken, a racist viewpoint.
In a follow-up study, participants all passed up five opportunities to accuse a clearly innocent black suspect of a crime—that is, they could point to five racist roads not taken. But when participants were later made to worry about feeling prejudiced, they “remembered,” on average, that they had passed up nine opportunities for racism—in effect claiming that their past contained nearly twice as many racists roads not taken than it actually did.
In essence, the research participants found ways to say that they themselves were certainly not racist and they had the non-racist credentials to prove it. We see this sort of reaction routinely in our pretrial research with mock jurors. It’s a sort of “I don’t feel that way but I bet my neighbors do!” reaction. We purposely ask questions that will allow the mock jurors to excuse themselves but tell us honestly what they see as the prevailing attitudes in the venire. And the authors talk about this tendency in their article:
“When a racist is defined only as someone who constantly commits blatant acts of discrimination (e.g., accusing clearly innocent Black suspects of crimes), it is easier to feel that foregoing such acts proves that one is not a racist. We suspect people can draw on similarly narrow definitions of unethical behavior in other domains to convince themselves that foregoing a single opportunity to lie, cheat or steal proves they are not a liar, cheater or a thief and thus licenses them to commit other ethically questionable acts.”
This research is likely particularly scary for those representing minority clients. The opposing counsel could employ this research by incorporating the following into a closing statement:
“You may worry what others will think about a finding for [white party] in this case. It isn’t as though we are tricking you into making a biased or racist decision. We know that is not in your heart or mind, and I am sure you can point to past situations where you could have behaved in a racially biased manner but chose not to do so. We want you to deliberate based on the evidence. Not on fears of what others will think of your decisions.”
According to this research, that’s all it would likely take to elicit a sense of having “non-racist credentials” in jurors. Although it is only cold comfort, it is somewhat reassuring that the public has finally gotten to a place where blatant racism isn’t okay to admit, so that it needs at least a thin cloak of tolerance to make it acceptable.The desire to see ourselves as good, moral and possessing a variety of socially acceptable characteristics is powerful in many of us. The idea that we could have transgressed a lot more than we did could be a great source of comfort to those feeling threatened as to the public perception of their decisions.
Effron DA, Miller DT, & Monin B (2012). Inventing racist roads not taken: the licensing effect of immoral counterfactual behaviors. Journal of Personality and Social Psychology, 103 (6), 916-32 PMID: 23002956
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