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Archive for the ‘Pre-trial research’ Category

TJE_logoWe’ve written for The Jury Expert a fair amount. In case you don’t know, The Jury Expert is the online journal published by the American Society of Trial Consultants dedicated to 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. The last time we updated you on the articles we’ve written for The Jury Expert was in July of 2012. Take a look at what we’ve done in the past couple of years.

Loyalty, Longevity and Leadership: A Multigenerational Workforce Update: Our most recent article was written as we prepared for a large CLE presentation on the multigenerational law office. Do you wonder how to maximize the contributions of Baby Boomers, Gen X’rs and Millennials? This paper is as up to date as you can get on multigenerational issues in the workplace. Here’s a preview: “As we prepared for the mock trial research with mock jurors of varying generations, our client said, “50 year old GenXers?”. It’s hard to believe GenXers are really that old, but do the math—time has continued its inexorable march. Do that math a few more times and you will see the oldest Millennials are in their early thirties and the oldest Boomers are turning 70! It is easy to lose track of the passage of time and many of us tend to retain our outdated impressions of younger generations frozen in time. But they are growing older (just like we are) and changing as they mature. It’s imperative that we all keep our internal stereotypes up-to-date with reality in order to not be left behind with an outdated vision of who will come to interviews or even serve on our juries”.

Book Review: Law and Neuroscience: A book review from Rita on a reference book and textbook covering the fast changing world of neurolaw. As a voracious reader and a veteran scourer of electronic databases, I often prepare myself to be disappointed when opening newly published professional books since they are almost always out of date by the time they are published. This one is different. When I read the quote below, I grinned and realized this volume would not simply summarize, but also inform readers and encourage the development of critical thinking through the relaying of case narratives and interpretation of research and law that is naturally engaging to those of us with an interest in the area.

“Even if fMRI could reliably diagnose psychopathy, it wouldn’t necessarily reduce a defendant’s culpability in the eyes of a judge or a jury. Ultimately, the law is based on an individual’s rational, intentional action, not brain anatomy or blood flow”, says Stephen Morse, professor of law and psychiatry at the University of Pennsylvania. “Brains don’t kill people. People kill people,” says Morse.

Demographic Roulette: What Was Once a Bad Idea Has Gotten Worse: We wrote this paper based on new survey data that said (to us) what we’ve been saying for years: “You can’t deselect (or select) jurors based on demographic information.” Here’s a peek: “Almost eighty years following Clarence Darrow’s distillation of how religion shapes jury behavior, the belief that demographics could be the holy grail for the selection of jurors persists. It is routine for our [attorney] clients to comment, in the midst of a mock juror deliberation, “Well, it looks like older women are good for us!” and for the associates to quickly add this to their notes for use in the upcoming jury selection. The lingering hope that demographics could predict a juror’s eventual vote represents a pesky and persistent belief. Too bad it’s rarely true.”

Book Review- Social Media as Evidence: Cases, Practice Pointers, and Techniques: Another book review from Rita—this one on social media issues. Here’s a little from the introduction: “The social media landscape shifts quickly and keeping up with changes in platforms, privacy settings, and case law is more than a full-time job. Websites used for juror research may be purchased by other websites and, suddenly, their results are identical. You can spend hours doing painstaking research and inadvertently “make contact” with a juror because you don’t understand how different social media websites notify users of who has looked at their social media profiles. You may think you are being very, very careful, and yet leave a trail behind you—sometimes called “cyber crumbs” or “electronic footprints” that can unintentionally identify you as having peered into the social media life of someone you (likely) do not know.”

The “Why” and “How” of Focus Group Research: Doug wrote this one for an issue of The Jury Expert prior to beginning to publish online. It’s been re-published as part of an issue on articles that stand the test of time. Here’s a sample: “Properly conducted focus groups are extremely useful in getting reactions to a wide array of aspects of the case. While it is not prudent to expect that the “verdict” of a small group research project will be repeated at trial, it is very likely that the same values, hot buttons, and sensibilities that engage the research group will resonate in the jury room”.

Intergenerational Law Offices, Intergenerational Juries: Values, Priorities, and Decision-Making: Another in the series of articles we’ve written on multigenerational issues—this one focused on the office and the courtroom. Here’s a sample of what you’ll find in this article: “The legal blawgosphere has been filled with anecdotal tales of what is termed “generational conflict” for years now. Based on conversations with our clients, contentious inter-generational interaction is not just out there “on the web”. It’s everywhere. We’ve written extensively on issues related to generations–both in the courtroom and in the office. As litigation consultants, we hear senior partners aiming sharp criticism toward both younger jurors and younger lawyers (especially new law school graduates), and we see the associates roll their eyes and grit their teeth at the disrespect they feel from some partners. The work ethic of the younger attorneys (judged as inadequate by older attorneys) is blamed for their trouble in finding jobs. “If they were not so lazy”, the opinion seems to go, and “if they did not want instant success, they wouldn’t have such a tough time finding work.” It is, in short, their own fault they are unemployed. They have bad values. Or so it is said by many of their elders. Especially the subgroup of employers, supervisors, and– occasionally– parents. But is that accurate? It turns out that it’s likely untrue.”

“Only the Guilty Would Confess to Crimes”: Understanding the Mystery of False Confessions. We wrote this paper as we researched the literature about false confessions in preparation for a case involving a man who spent 8 years on death row for a crime he had nothing to do with. This published about the time the documentary “Central Park Five”  came out, and it’s been consistently accessed by readers since then. Here’s an introductory view: “It is naturally hard to understand why anyone would confess to a crime they had not committed. Yet, in North America we can trace false confessions back to at least 1692 and the Salem Witch Trials where “large numbers of mostly women were tried for witchcraft on the basis of confessions extracted by torture and threats” (Kassin, 2010). More than 300 years later, people continue to falsely confess to crimes ranging from academic cheating to murder. But the mystery of why someone would falsely confess persists. Unlike the Salem Witch Trials, most false confessions today are provided under psychological duress, but without torture or threats of physical harm. Do the generally accepted modern police methods still produce false confessions, or does the responsibility for false confession fall entirely on the confessor? There is a tendency to believe “others” might well confess under duress–but most people think they, themselves, would never do such a thing (Horgan, Russano, Meissner & Evans, 2012). This belief illustrates the reality that most of us have no idea of what it feels like to undergo an interrogation. More than 80% of those taken into custody by the police waive their Miranda rights (Sangero & Halpert, 2011)”.

Book Review: Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations: Another book review from Rita—this one reviewing false confessions research. Here’s some thoughts from early in the review: “This is a collection of chapters written by well-known scholars in the area of false confessions and police interrogations. A review of the Table of Contents shows a stimulatingly broad range of topics. You will find the expected reviews of research on police interrogations and false confessions and then everything from juvenile interrogations, the difference between false confessions and false guilty pleas (which takes you into the shadowy arena of plea bargains), chapters on recording the interrogation (one of which educates on camera angles that reduce observer bias), how to most effectively give the oral Miranda warning, the expert witness (including identification of the five most common challenges to expert testimony and suggestions for refuting those challenges), and a whole lot more.”

Hydraulic Fracking & The Environment: Juror Attitudes, Beliefs, and Priorities:  We were hired to work on fracking cases for both Plaintiffs and Defendants, and in preparing to address the complex and highly charged issues associated with fracking we discovered that information on attitudes toward fracking was hard to find for mere mortals. And what you did find was often driven by political agendas more than science. Here’s a description of what you’ll find in this paper: “In this paper we generally describe typical positions taken by both Plaintiffs and Defendants, but we will not attempt to weigh the scientific evidence that is typically presented in the toxic tort actions. Instead, we will focus attention on jurors, and the related concerns that litigants are going to face from jurors before the first word is spoken. Americans are consistently concerned about the environment, especially the environment of their own ‘backyard’. This concern is seen in surveys done at national, state, and local levels. As is typical in surveys, the closer the issue is to the respondent’s individual life circumstances, the more concern they express. “

Book Review: The Science of Attorney Advocacy: Rita wrote this book review in July, 2012. Here’s how the review starts: “This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.”

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The Bias Awareness Scale 

Monday, August 17, 2015
posted by Douglas Keene

Bias Awareness ScaleHere’s a new way to measure our awareness of our own biases in four easy questions. Yes. Four. We are constantly writing about bias here and when we see ways to measure bias it is usually convoluted or prohibitively expensive, or contains language not suitable for courtroom use. This scale, however, is different—it is short (four questions) and as it happens, being aware of your own biases leaves you better equipped to respond to what the authors call “contemporary race challenges”.

Essentially, the researchers say that “modern racism” is a form of racism that has largely gone underground. Many of us “think” we are not racist, but, in truth, most of us do harbor at least some racist thoughts and beliefs. The researchers reference the idea of being “colorblind” to race and say that strategy simply doesn’t work. Our society is such that, subtle but racially charged/biased statements are all around us and if we are “colorblind” we will not “see” or “hear” those subtly biased statements. The “blindness” is with regard to awareness of our own biases, not to their existence. According to this research, “accepting” our racial bias is a key factor in being aware of and working toward change in racial bias around us.

So. Without further ado, the researchers gathered 902 participants across three separate studies and had them complete a range of other psychological tests and this new 4-question measure of bias awareness. We know you want the questions so here they are!

Even though I know it’s not appropriate, I sometimes feel that I hold unconscious negative attitudes toward Blacks.

When talking to Black people, I sometimes worry that I am unintentionally acting in a prejudiced way.

Even though I like Black people, I still worry that I have unconscious biases toward Blacks.

I never worry that I may be acting in a subtly prejudiced way toward Blacks (reverse scored).

The questions are placed on 7-point scales anchored with strongly disagree (1) and strongly agree (7). The higher the cumulative score on the four questions, the more the individual is aware of their racial biases. Based on their findings, the researchers believe that bias feedback will be more useful to those who are aware of their racial biases (as measured with the Bias Awareness Scale).

That is, those participants with higher scores on the scale are receptive to the feedback and work to modify/monitor their behaviors and emotions. They were also more likely to perceive acts of subtle bias as racial discrimination.

Those that are unaware of their own biases tend to become defensive and reject the feedback that they have biases—and their behaviors and emotions remain the same.

From a litigation advocacy perspective, this is a tricky one. Unless your case facts lend themselves to concern about racial bias, it would be hard to get these questions admitted for a supplemental jury questionnaire. They are especially suitable for trials related to allegations of hate crimes, use of deadly force or undue force against Black subjects, employment discrimination, and related disputes. These are such brief questions though that it would be curious to see how everyday (randomly selected) mock jurors would respond to them and if their responses are somehow related to eventual verdict on the case. This scale is not one we can use immediately but it is one that could have some utility. We’ll be pondering this one.

Perry, S., Murphy, M., & Dovidio, J. (2015). Modern prejudice: Subtle, but unconscious? The role of Bias Awareness in Whites’ perceptions of personal and others’ biases Journal of Experimental Social Psychology, 61, 64-78 DOI: 10.1016/j.jesp.2015.06.007

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no internet post insert 2015We know who they are and we’ve done a lot of pretrial research with them! It’s like walking backwards in time. Perhaps the most shocking example we’ve seen was one in very rural Texas which we blogged about in a post on working in very rural areas:

“Other very rural venues have shown us the extent to which the internet has passed by some Americans completely. At one site, of 36 mock jurors, only 4 had internet access. At another, of 48 jurors, only 11 had ‘smart phones’ while a majority didn’t understand the question. Most had “not heard of” Amazon.com’s website. One called a major social networking site, “the devil’s work” and others nodded somberly.”

Granted, this was about 5 years ago, but I am confident that this remains one of those corners of the “late-adopter” universe. You have to do a very different presentation for jurors who have never heard of Amazon and don’t know what you mean by “a smart phone”. Especially when smart phones have become pretty ubiquitous across the country. This disconnect from technology is the sort of information you want to know prior to trial since it can require a significant retooling of the case narrative for these jurors to understand the case facts—especially when the case is one of a high-tech nature.

Here is what the Pew study reported about those 15% of Americans who don’t use the internet:

34% of those who do not use the internet say it is because they have “no interest” or the internet is “not relevant” to their lives. 32% say the internet is “too difficult to use” and 8% say they are simply “too old to learn”. 19% said it was too expensive.

40% of older adults (65 and up) say they do not use the internet (compared to only 3% of the 18 to 29 years olds).

33% of adults with less than a high school education say they never go online.

Adults with household incomes below $30K a year are about 8x more likely than most affluent adults to not use the internet.

Rural Americans are about 2x as likely to never use the internet than are urban or suburban residents.

20% of Blacks and 18% of Hispanics do not use the internet compared with 14% of Whites and 5% of English-speaking Asian-Americans (which are the group least likely to be offline).

In other words, people who do not use the internet look identical to those in our large research project described earlier. And their world view is different from that of the urbanite/suburbanite. A woman in a mock trial referred to social media as “the devil’s work”. She was an older, White, retired schoolteacher who had apparently been distressed by the participation of students in social networking sites prior to her retirement. While her statement generated giggles and good-natured hisses from counsel who allegedly represented the devil (from the privacy of a closed-circuit viewing room)—there was no mirroring humor in the mock juror presentation room to her remark. They simply nodded with somber expressions. And after that understanding was seen (through the miracle of modern technology) in the observation room, all frivolity was gone. It was a big case with multiple defendants and they had all just realized they were not in “Kansas” (or New York, Los Angeles, Chicago, Dallas, Washington, DC, Atlanta, et cetera) anymore.

From a litigation advocacy perspective, presenting a case to people who do not use the internet means you have to think about what you are going to say, examples you will use, effective metaphors, whether you will use computerized presentations or visual evidence boards, and so on. You need to be sure that what you say is understood by the listeners. If that isn’t a scary thing to you, it probably should be a scary thing. Once you step into rural America, you are likely to be unfamiliar with the world view shared by your jurors.

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evangelicosAt least those are the findings of the Religious Understandings of Science (RUS) study which is based on a “nationally representative survey of more than 10,000 Americans”. Sponsored by the American Association for the Advancement of Science (AAAS), this study (completed in early 2014) hit the media about a year later. Sociologist Elaine Howard Ecklund conducted the study and says evangelicals are actually less conflicted about the relationship between religion and science than are many (non-evangelical) Americans.

Here are some of her findings:

60% of evangelical Protestants (and 38% of all surveyed) believe “scientists should be open to considering miracles in their theories or explanations”

50% of evangelicals believe that science and religion can work together and support one another—as compared to only 38% of Americans

18% of scientists attend weekly religious services—as compared to 20% of the general US population

15% of scientists consider themselves “very religious” while 19% of the general population would describe themselves this way

13.5% of scientists read religious texts weekly as compared with 17% of the US population

19% of scientists pray several times a day as compared with 26% of the US population

11% of evangelical Protestants consult a religious text or religious leader for questions about science while less than half that number in the US population would do the same

We are offering this information to our readers to familiarize you with the study, in anticipation that you may encounter other references to it. It has what appear to us to be some serious flaws. To say the least, some of the findings are curious. The proportion of people believing scientists should incorporate miracles into their theories or explanations is particularly odd, and raises significant questions about the research sample and methodology. Our pretrial research is conducted without regard to religious orientation, but we pay attention to it since it might be a variable of which our clients need to be aware. And over the past twenty years, we’ve watched the number of mock jurors who attend religious services regularly dwindle. Our experience of observing these shifts in our randomly selected mock jurors deviates dramatically from Ecklund’s sample.

So what do these survey results mean? It’s complicated. Some point to the Ham-on-Nye debate as highlighting the conflicts between science and religion—even though some say Nye won the debate handily. A recent post on ScienceDaily’s website tells us that scientists have impact on the public’s perceptions of the relationship between religion and science—and scientists who are not atheists will win more people over to their way of seeing things—at least, according to Ecklund who was quoted in the story.

Given that there are more people in the U.S. population (and hence in our data) who would identify as a Christian than atheist, Collins is likely to have more impact with that audience,” Ecklund said. Ecklund said that the experiment’s findings have important implications for how institutions and their representatives shape public opinion.

A few points to consider are that this study evidently had a disproportionately high representation of evangelical Christians for it to reflect American society as a whole. When miracles are considered part of the science debate (setting aside the question of what is meant by “miracle”) many would consider the problems to be large. If by “miracle”, this is limited to a divine role in the creation of the universe, or even as the nexus of the “big bang”, it probably gets higher acceptance. But if this is taken to apply to the evolution/creationism debate, acceptance of biblical literalism, and divine intervention in daily lives, the conflicts between science and evangelical religion get more shrill.  Before we can accept these findings, it is important to understand what is meant by “religious” in the findings shared above, what beliefs are elements of an “evangelical” and what is meant by “scientist”. It is not clear from reading the study summary how Evangelicals see science and religion working together. Does that mean the power of prayer is real, or does it mean that they consider creationism a scientific explanation?

From a litigation advocacy perspective, we think it’s important to know about this study but we are not sure it matters as you go to the courtroom. To the extent that her survey data is valid, it describes beliefs and attitudes that you should understand as you approach trials.  Some courts are shy about allowing questions regarding religious beliefs, and if so, the questions during voir dire need to be couched in terms of strongly held beliefs or devotion or faith (trigger words for many) to a code of beliefs relevant to the issues at trial. This study focuses on evangelical beliefs, not merely religious people. But a lot of devoutly religious people are somewhat fatalistic (“it is God’s will”) or highly moralistic in ways that either reject passing judgment on others (such as Jehovah’s Witnesses) or affirm passing judgment on others as their role in doing God’s will by representing God’s moral code as they believe it.

In any of these circumstances, it is crucial that a trial attorney understands the extent to which religious beliefs will color a person’s view of the facts, or indeed, whether those beliefs will trump the instructions of the court. Instead of focusing on religious involvement or lack thereof, we tend to look at conservative affiliations to help us consider how the world is framed for any individual potential juror. The simple way of thinking of this is that everyone tends to hang around with others who are of similar beliefs. So if someone is a devout Unitarian, they are likely to see the world differently than someone who is devoutly evangelical. We like this article written by Gayle Herde for The Jury Expert in early 2014. Rather than focusing on whether someone is an evangelical, Herde encourages us to listen differently during voir dire in order to “hear” religiosity in an indirect way. It’s good advice.

Ecklund, EH, & Scheitle, C (2014). Religious Communities, Science, Scientists, and Perceptions:A Comprehensive Survey. Annual Meetings of the American Association for the Advancement of Science.

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Donald-TrumpDonald Trump has been getting a lot of press since he announced his candidacy for President. He is labeled a racist by critics, yet leads the polls of Republican presidential candidates. CNN has an explanation of why they think Trump continues to poll so well (he is attacking fellow Republicans and connecting with angry voters who are frustrated with political inaction), while others see his polling as reflecting his bombastic troll-like style, and the Huffington Post announced this week they will only cover his campaign as “entertainment” since it is certainly not politics. A new Gallup poll tells us Trump’s appeal may be short-lived since 75% Americans do not consider Trump to be a serious candidate (and only 3 in 10 view Trump favorably). He certainly is getting a lot of media attention though and today’s research tells us exactly why that happens.

It might be called the “Donald Trump effect” according to Pacific Standard’s website. The researchers doing the work don’t call it that though. They simply say that in the United States, politicians from the right are the most frequently quoted voices in news stories on immigration. They actually compared France, Norway and the United States but we are focused here on their US findings since the Donald Trump candidacy is receiving so much coverage.

In the US, the research focused on the New York Times, the Wall Street Journal, USA Today, NPR.org, and CNN.com from January 1, 2011 to June 30, 2012. The time frame was chosen since this represented a time period when unauthorized immigration was a popular news topic in all three countries. Essentially, the researchers counted up the comments on immigration and noted who made the comments. Compared to European publications where the primary theme of immigration stories was problems facing immigrants due to restrictive and inhumane national laws—American publications tended to focus on a theme of problems caused for authorities by immigrants.

Here is some of what they found in the US publications listed above (percentages do not add to 100%):

45% of the quotes came from government officials

23% of the quotes were from right-leaning politicians

11% of the quotes were from left-leaning politicians

10% of the quotes were from immigration advocacy organizations

8% of quotes were from citizens and documented immigrants, and

5% of the quotes were from undocumented immigrants

The researchers say that how reporters choose who they will quote in stories tends to define the frame and focus of the articles/interviews. Thus, US articles tend to focus more on the problems caused for authorities by undocumented immigrants (while European publications tended to focus more on problems of the immigrants). The researchers also say that the “debate” in the US is not so much a developing debate as it is a “shouting match” wherein voices tend to speak in chorus (as encouraged by political party “talking points”) rather than actually responding to the content of opposing viewpoints.

It’s definitely a hot-button issue, in some areas more than others. Living and working a fair amount in Texas, we hear the question a lot: “Are they legal?”. This paper is an intriguing look at differences between press coverage of hot-button issues in the three countries, but from a litigation advocacy perspective it is also an intriguing study of the way the general public is exposed to information about immigration.

If the loudest voices are those of right-leaning politicians, it makes sense that jurors (and all of us, in truth) are going to have heard those arguments (that immigrants make trouble for the authorities) more than any other arguments on immigration.

It then makes sense that when your case involves immigration issues, you test (pretrial) for not only attitudes toward immigration generally, but also for beliefs about whether immigrants are more a problem for the authorities or if the laws are so restrictive they cause a problem for immigrants.

Benson, R., & Wood, T. (2015). Who Says What or Nothing at All? Speakers, Frames, and Frameless Quotes in Unauthorized Immigration News in the United States, Norway, and France American Behavioral Scientist, 59 (7), 802-821 DOI: 10.1177/0002764215573257

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