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We’ve written about eyewitnesses and problems with accuracy here often. Today we have an article that tells us 242 people were wrongly identified by eyewitness testimony and served years in prison prior to being exonerated by DNA testing. Researchers at Florida Atlantic University wondered how memory in people might be altered by police use of “individual mugshots, an array of mugshots, composite sketches, and lineups” as well as subtle innuendos. Specifically, they wanted to answer this question:

Does presenting a picture along with a question like ‘is this the person who did it?’ create an association between those two things that could then cause an eyewitness to later falsely remember seeing that person doing that action?”

The researchers used 80 undergraduates (median age 19 years) and 40 “older adults” (median age 71 years) to test their question. Each participant was shown a series of videos snippets of actors doing simple actions and were then instructed to remember which actor did which task. The researchers created 84 mugshots from these video snippets and also created a series of various scenarios of the events depicted in the video snippets. Each participant was shown two mugshots: one was an actor who’d appeared in the video snippets and the other was a new, random actor (who had not been in the video snippets). They completed this task 36 times (each time choosing either one of the mugshots or neither of the mugshots as the person who had completed each task). They were also asked how confident they were in their identification on each of the 36 individual trials.

As participants looked at the mugshots, they were asked a question like “which of these people did you see watering a plant?”. After the mugshot presentations, the 40 older adults and half of the younger adults (another 40) were tested immediately to see how much they are able to recognize correctly. The remaining (40) younger adult were brought back three weeks later to be tested again. And what did the researchers find? It varied by age.

Both younger and older participants were more likely to falsely recognize events if the actors appearing in those events had also appeared in the mugshots.

For older adults, mugshot viewing meant they experienced a sense of familiarity when they saw the actor performing in the video snippets even if a different action had been asked about when they viewed the mugshots. (The researchers say this likely meant the older adults recognized the familiar face, but were unable to call up the source or reason for their familiarity.)

This finding leads the researchers to hypothesize that the viewing of mugshots itself may make a face seem familiar to the older adult.

Younger adults were more likely to falsely recognize a suspect if the mugshot of the actor was accompanied by a question about the action the actor was now seen performing in the video snippets. (The researchers think this indicates the young adults formed a specific association between the pictured actor and the queried action which caused them to falsely recall the actor performing the queried action.)

This finding leads the researchers to hypothesize that the viewing of the mugshot, when coupled with the question of whether this person committed a certain act, may leave the younger witness overly confident that they saw something they did not actually see.

The researchers indicate this is (yet another) concerning finding for eyewitness testimony. They express concern that this type of false memory can lead to a “high level of confidence, especially in younger eyewitnesses” since they firmly believe they “saw” the suspect committing the crime. And we have other data to say high confidence in an eyewitness is very persuasive to jurors. The researchers suggest strategies for eye-witness testimony also recommended in prior research.

After viewing mugshots, an eyewitness should not be asked for further identifications. For example, if there are multiple eyewitnesses, only some should be exposed to mugshots and the others can make their identification from a lineup.

If there is only one witness, they will likely be asked to identify the perpetrator in the early stages of the crime’s investigation. This means their memory could be contaminated as the investigation continues. Thus, the literature suggests, “other forensic evidence” should be used to support the witness testimony.

From a litigation advocacy perspective, it is in your best interest to carefully examine the process through which eyewitnesses have been led during the investigatory phases. When memory is so very easy to contaminate (and we know eyewitness testimony is notoriously invalid), it is important to consider educating the jurors on eyewitness errors.

The problem is (as mentioned above) that a falsely confident eyewitness can be a compelling factor in jury deliberations. And in at least 242 cases, those confident eyewitnesses were very, very wrong.

Kersten, AW, Earles, JL (2016). Feelings of familiarity and false memory for specific associations resulting from mugshot exposure. Memory and Cognition, 45(1): 93.

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Recently we saw the 50th anniversary of the Supreme Court case Loving v. Virginia (1967) which ruled marriage across racial lines was legal throughout the US. In honor of this milestone, Pew Research Center has released a series of articles examining intermarriage in the US. We think it a good use of blog space to update you on the frequency of intermarriage in this country (which is rising—just like the US population is becoming increasingly racially diverse).

Less than a year ago (September 2016) , we posted on those who find interracial marriage “icky” so here are some prevalence numbers on intermarriage in the US. This posts reviews just a few of the pieces of information Pew shares across four different articles:

Intermarriage: 

10% of married Americans in 2015 had a spouse of a different race or ethnicity. Pew says that translates into 11M intermarried people in the US.

Since 1980, the percentage of Blacks who married someone of a different race or ethnicity has tripled (from 5% to 18%).

Whites have also experienced a dramatic increase in intermarriage since 1980 (from 4% to 11%) but they remain the least likely of all major racial and ethnic groups to marry someone of a different race or ethnicity.

Asian (29%) and Hispanic (27%) newlyweds are the two most likely groups to intermarry. Of those newlyweds who were also born in the US, the percentages are even high among Hispanics (39%) and Asians (46%).

Male Black newlyweds (24%) are more likely than female Black newlyweds (12%) to intermarry. The opposite gender patter is true for Asian newlyweds with 36% of Asian women intermarrying compared with 21% of Asian male newlyweds. (Pew says the gender comparisons among White and Hispanic newlyweds who intermarry are roughly similar.)

As the prevalence of intermarriage increasing, American attitudes toward intermarriage have also become more accepting. In the past 7 years, says Pew, the number of Americans saying marrying someone of a different race is good for society has risen from 24% to 39%. Similarly, opposition to intermarriage is undergoing an even more dramatic decline according to Pew—although there is a sharp partisan divide in attitudes toward intermarriage. (Democrats and Independents leaning Democrat (49%) say intermarriage is a good thing for our society but only 28% of Republicans and Independents leaning Republican agree.)

Intermarriage also varies by education with 46% of Hispanic newlyweds with a college degree intermarrying (as compared to 16% with a high school diploma or less). Among Black newlyweds with a college degree, 21% intermarry compared to those with some college (17%) or a high school diploma or less (15%).

Cohabitation with a partner of a different race or ethnicity

Cohabitation is on the rise (6%) in the US, while marriage is declining (although half of American adults are married). Cohabitants with a partner of a different race or ethnicity (18%) are similar in number to married people in the US (17%) in an intermarriage.

Cohabitation with someone of a different race or ethnicity also varies by age or generation. It is likely not surprising that Millennials and GenXers (about 20% each) have a higher rate of living with a partner of a different race or ethnicity than do Boomers (13%) and Silents (9%).

Cohabitation also varies by race and ethnicity (much like marriage) in the US. White adults are least likely to cohabit with a partner of a different race or ethnicity (12% compared with 11% of White newlyweds). Black cohabitants (20%) and Hispanic cohabitants (24%) also loosely mirror the intermarriage rates among Black (18%) and Hispanic (27%) newlyweds. Asian cohabitants with partners of a different race or ethnicity (46%)show a very different pattern from Asian newlyweds (29%).

Education level and cohabitation mirrors the numbers among newlyweds with a partner of a different race or ethnicity, with those with more education somewhat more likely to have a significant other of a different race or ethnicity.

Metropolitan area variations in intermarriage 

It is likely not surprising that intermarriage is more common in metropolitan areas (18% of newlyweds) than in rural areas (11%).

There is huge variation in metro areas with Honolulu, Hawaii (42%) having the highest share of intermarried newlyweds, compared to Las Vegas, Nevada and Santa Barbara, California coming in at a tie for second (at around 30%). These are all very racially and ethnically diverse areas and Pew thinks the diversity contributes to higher intermarriage rates.

Intermarriage is also typically more common among members of the military and thus metropolitan areas with military bases nearby often have higher rates of intermarriage.

On the low-end in terms of frequency, you will see only 3% of newlyweds intermarry in Jackson, Mississippi and Asheville, North Carolina. Pew also reports rates in Greenville, South Carolina and Birmingham, Alabama (each about 6%), Chattanooga, Tennessee (5%), and Youngstown, Ohio (4%). Pew introduces some interesting numbers on population diversity here. While Jackson and Birmingham have fairly diverse populations—Asheville and Youngstown do not.

Pew explains by citing the geographical disparity in the number of those who say more interracial marriage is bad for society. Unlike in the West (4%) and Northeast (5%)—there are higher numbers of people disapproving of intermarriage in the South (13%) and the MidWest (11%). If you are curious about specific numbers for various metropolitan areas, Pew has that too!

From a litigation advocacy perspective, if race or ethnicity is a factor in your case (either salient or not salient with non-salient being the most dangerous in terms of racial biases)—this is a good resource to use to draw initial hypotheses (for testing in pretrial research) regarding which jurors may be least biased against your case facts.

Before we had this kind of data, we would ask ourselves some simple questions that still appear to be worthwhile, based on the research.

Which jurors are likely to have had genuine relationships with people [ethnically] similar to my client?

Which jurors are likely to show more open-mindedness toward my client?

Which people are likely to be uncomfortable or opposed to intermarriage?

The research is largely what would have been predicted. If there is somehow an issue in your case about intermarriage, younger and better-educated people are more tolerant, while older and less well-educated are most opposed. Maybe it is simply a function of exposure and life experience, or discomfort with the pace of social change in those who may be more rooted in the past. In any case, intolerance has to be considered a factor.

May 18, 2017. Intermarriage across the US by metro area. http://www.pewsocialtrends.org/interactives/intermarriage-across-the-u-s-by-metro-area/

May 18, 2017. In US metro areas, huge variation in intermarriage rates. http://www.pewsocialtrends.org/interactives/intermarriage-across-the-u-s-by-metro-area/

May 18, 2017. Intermarriage in the U.S. 50 Years After Loving v. Virginia. http://www.pewsocialtrends.org/2017/05/18/intermarriage-in-the-u-s-50-years-after-loving-v-virginia/

June 8, 2017. Among US cohabiters, 18% have a partner of a different race or ethnicity. http://www.pewresearch.org/fact-tank/2017/06/08/among-u-s-cohabiters-18-have-a-partner-of-a-different-race-or-ethnicity/

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Recently, several articles have come out on Millennials and women but neither were enough to fill an entire post—so we’re combining them into a single post so that we do not miss passing on the information.

“Psychologically scarred” Millennials are “killing industries”

This article is almost funny but they are blaming Boomers (the parents of the Millennials) for the “industry-killing” habits of the Millennials. They quote Millennials who say this is “just some more millennial-blaming BS” and apparently, headlines saying Millennials have “killed off” another corporation or even industries are very common.

The buying habits of Millennials are very different from their parents’ habits. They do not, according to this article in the Business Insider, buy napkins, play golf, buy homes or cars, nor do they want to eat at Buffalo Wild Wings or Applebee’s. They have also been accused of damaging industries like retail in general, movies, Home Depot, the love of running, McDonald’s, wine, classiness (this is pretty funny although it is hardly an ‘industry’), the diamond industry, the crowdfunding industry, and the credit industry.

Naysayers say it isn’t the Millennial Generations fault—no, no, no! It is the fault of their Boomer parents who created the environment that has “restricted their income and shaped their financial perspective”. An analyst at Morgan Stanley (whom, we are sure, has no financial interest in this generation at all) says the Millennials have “a very significant psychological scar” from the great recession. They want to avoid risk and they enjoy independent restaurants more than chain restaurants.

“Aspirational banking” and the Millennial

Recently, my 20-something daughter related a story to me about a friend who banked with a well-known bank and was concerned about their ethical failings widely reported in recent times. She told him she had been happy with her (also well-known) bank and he reacted dramatically, “The man who founded that bank had very poor ethics and so I could never bank there”. She thought it was amusing that while her friend’s bank was in current ethical issues — he would dismiss her bank due to the founder (who died in 1913).

Later when I saw this article from JWT Intelligence, I sent it to her. It is likely related to the “industry-killing” habits described earlier in this post but explains in detail how the financial industry is attempting to adapt and survive by appealing to Millennial’s spending practices. The Millennial wish to have their values reflected in the organizations they support appears to be resulting in banks working on online platforms and apps while simultaneously attempting to be transparent and honest.

Every entrepreneur responds to opportunities and this situation is no different. There’s an app for that. The American bank, Aspiration, has launched a new feature on their app to allow customers to see how their spending decisions line up with their personal values. The app is called The Aspiration Impact Measurement (AIM). In response to the belief that Millennials are not just concerned but feel an obligation to the planet, other companies are launching apps to measure the carbon footprint of your purchases as well as sustainable investment options.

Who’s smarter? Men or women? Answers vary across the life cycle

When we are five years old, boys think boys are smarter and girls think girls are smarter. Not long after (about age 6 according to Sociological Images), gender stereotypes kick in and girls agree with boys—boys are smarter (and boys agree). The author (a sociologist) thinks much of this is passed down from parents (who are more likely to ask Google if their son is a genius and more likely to ask Google if their daughter is attractive). Sigh.

Let’s fast forward to college when most of these folks leave home. Again, the trend continues. Males overestimate male achievement in the sciences and underestimate female achievement in the sciences. Need facts? In a 2016 study, male students with a 3.0 GPA were estimated as “equally smart” to female students with a 3.75 GPA. It continues after college when “More so than women, men go into and succeed in fields that are believed to require raw, innate brilliance, while women more so than men go into and succeed in fields that are believed to require only hard work.”

Reading the rest of this post does not get better. There are many studies showing the diminishment of women’s intelligence and mercifully, only a few are documented here. But it is enough to know we still have a long way to go (baby).

The gender gap in criminal offending and heart rate

Recently we published a post on the gender differences in committing homicide and this is a follow-up piece of information that is odd at best. To clarify, this study is not about homicide but about criminal behavior in general. The researchers conclude that the lower resting heart rate of men “partly explains the higher rate of criminal offending”. We encourage you to read the rest of this press release since there is limited gender comparison in the literature on criminal offending.

“Researchers examined data from a longitudinal study that measured the heart rate of participants at age 11 and found that heart rate partly explains gender differences in both violent and nonviolent crime assessed at age 23.”

Is taking maternity leave a bad thing for women?

According to new work with participants from both the US and the UK—women are “damned either way” on maternity leave. The authors summarize these findings as follows:

Women who choose to take maternity leave are seen as less competent at work and less worthy of organizational rewards.

Women who choose not to take maternity leave are seen as worse parents and less desirable partners.

Reading information like this is disheartening. But then, on the other hand, we have programs like the one highlighted in this article on my niece who recently had a baby. There are good things happening. And we have a way to go.

An update on Andrea Yates who drowned her five children to “protect them from Satan”

This book chapter (also available at SSRN) updates us on the original trial facts and the eventual retrial and finding of not guilty by reason of insanity. Despite the fact that this case educated the world on postpartum depression and psychosis, according to the author, no real changes have been made in Texas’ insanity law.

This chapter explains how the states definition of insanity “influenced the first trial and both constrained and confused how the jury could view Yates’ actions”.

Deborah W. Denno. (2017). Andrea Yates: A Continuing Story About Insanity. In The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies, p. 367- 416 (Mark D. White, Ed. 2017) (Cal.: Praeger) Fordham Law Legal Studies Research Paper No. 2909041. On SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2909041.

Thekla Morgenroth, Madeline E. Heilman. (2017)  Should I stay or should I go? Implications of maternity leave choice for perceptions of working mothers. Journal of Experimental Social Psychology, 72, p 53-56.

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And it doesn’t really matter if the expert is male or female, if they are young or old, and they can be any ethnicity! In other words, said the researchers—the variables we have read so much about (i.e., gender, age, ethnicity) are not as notable as whether someone “looks like” our stereotype of a “good scientist”. Very intriguing in the search for the “perfect expert”. The researchers completed six separate studies and we want to give you the results using their words because the findings are so very consistent across the studies.

In the first two studies, the researchers asked participants to rate actual “faces of scientists from physics (N = 108) and genetics/human genetics (N = 108) departments of 200 US universities” on attractiveness and intelligence and to say how interested they would be in hearing the scientist’s work. Here’s how they summarize their results:

In sum, scientists who appear competent, moral, and attractive are more likely to garner interest in their work; those who appear competent and moral but who are relatively unattractive and apparently unsociable create a stronger impression of doing high-quality research.

[As a digression, one of the most interesting lectures I sat through in undergrad social psychology a whole bunch of years ago described the LLAAT, or the “Looks Like an Astronaut Test”. Yes. NASA conducted a study to determine whether people’s visual impressions of astronaut candidates was actually predictive of their success in the training program. Supposedly, it was useful. I can’t locate this study anymore, so I can’t verify the study, but it seems a fair precedent for the current research. And, at 19, this struck me as very funny.]

In plain English, when you are less attractive and less socially skilled, you are seen as doing better quality research—perhaps because you fulfill our stereotypes of what a “nerd” should look like. Maybe the fact that you look like you have a very limited social life makes you a credible candidate for weekends in the library or laboratory.

In the next two studies, the participants were shown photos of scientists paired with various science news articles. “Study 3 examined whether the effects of face-based impressions were moderated by the scientist’s gender, academic discipline, and communication format (text versus video); study 4 explored the distinct contributions of facial competence and attractiveness, and the moderating influence of participant demographics.” And here is what they found:

Taken together, these studies show that facial appearance affects the public’s selection of science news stories. [While participants initially were drawn to the research of attractive scientists, they were more interested in listening to the less attractive scientists. We also want to insert here that the researchers describe the less attractive scientists as those with “interesting faces”.]

For the final two studies, “Finally, we tested the consequences of face-based impressions for the public’s appraisal of a scientist’s work. We paired articles from news websites with faces that did or did not look like good scientists.” [Helpful translation: whether they were “interesting looking” or more classically attractive.] The researchers describe their findings this way:

Research that was paired with the photo of a good scientist was judged to be higher quality, and this effect was unaffected by the scientist’s gender and discipline.

That was in Study 5. In Study 6, the trend continues. “Participants read four physics news stories, each paired with a male face from one cell of the design. They were subsequently shown the face–article pairings one at a time and asked to imagine that they had been selected to judge how much each piece of research deserved to win a prize for excellence in science.

More-competent-looking scientists were judged more deserving of the prize.” [We don’t say this often but are these researchers not just the nicest and kindest researchers ever? Not unattractive or nerdy, but “interesting looking” and “more competent looking”.] One of our favorite neuroscience bloggers, the Neuroskeptic, dubs this the ‘ugly Einstein’ effect. The Neuroskeptic is obviously not as kind as these researchers but his thoughts are (as usual) worth reading.

Here’s how the researchers describe their overall results:

People reported more interest in the research of scientists who appear competent, moral, and attractive; [so we are initially drawn to the kinds of photos you would see of models pretending to be scientists—but….] when judging whether a researcher does “good science,” people again preferred scientists who look competent and moral, but also favored less sociable and more physically unattractive individuals.

From a litigation advocacy perspective, what this says is you want an expert who “looks like” our stereotypical image of a friendly, but slightly nerdy, high school Chemistry or Physics teacher. Or someone who looks like many of the cast members from the popular TV show who illustrate this post. These are “real scientists” who do “good science” and who presumably will display substance over style. [This is feel good science for all the “interesting looking” and “competent looking” among us.]

This article also echoes what we’ve heard from mock jurors for years. They want to hear from “real people” who can speak to them without being condescending yet also teach them what they need to know. They see those witnesses as much more credible and believable than their more traditionally attractive, polished and urbane colleagues.

Gheorghiu, A., Callan, M., & Skylark, W. (2017). Facial appearance affects science communication. Proceedings of the National Academy of Sciences (PNAS). DOI: 10.1073/pnas.1620542114

(Open access here: http://www.pnas.org/content/early/2017/05/16/1620542114.full.pdf).

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If you are young(er) you likely know precisely what vocal fry means and if you are old(er)—probably not so much. It is a cultural phenomenon seen primarily (but not only) in young(er) women as described at the Mental Floss website:

“Vocal fry describes a specific sound quality caused by the movement of the vocal folds. In regular speaking mode, the vocal folds rapidly vibrate between a more open and more closed position as the air passes through. In vocal fry, the vocal folds are shortened and slack so they close together completely and pop back open, with a little jitter, as the air comes through. That popping, jittery effect gives it a characteristic sizzling or frying sound.”

While it is nice to have a specific definition, it is also nice to hear examples of ‘what’ vocal fry actually sounds like so you can know it when you hear it. Vocal fry is the subject of intense scrutiny by bloggers covering linguistic changes, is seen as yet another entry in the endless complaints on women who have the temerity to speak in public, and as something that bugs older, white men in particular. Vocal fry has been likened to what used to be called “valley girl speak”, is used by almost 2/3 of college students, and is a characteristic which spreads as described in the video below.

You can hear a few more examples of vocal fry and what to do about it here, here, and here. Singers use vocal fry (sometimes artificially lowering their voices to enhance the ‘fry’) and researchers are looking into how vocal fry enhances emotionality in songs. Some say the denigration of vocal fry in women is just one more way in which women are criticized and maybe that is just how their voice sounds. (It is a parallel argument to what we saw in our recent post on resting bitch face [RBF]).

Yet, vocal fry annoyed one man so much he took his significant other to a speech therapist to cure her of her annoying style of speaking (and naturally wrote an article about the experience to make her even more self-conscious than did the speech therapist). Others justify their criticism of vocal fry use by saying it will hurt your chances of getting a job (but only if you are a woman—not if you are a man) and this one is apparently backed up by actual research!

“Young adult female voices exhibiting vocal fry are perceived as less competent, less educated, less trustworthy, less attractive, and less hirable. The negative perceptions of women who use vocal fry are stronger when the listener is also a woman. Collectively, these results suggest young American women should avoid vocal fry in order to maximize labor market perceptions, particularly when being interviewed by another woman.”

While the use of vocal fry is often attributed to women only, men apparently do a lot of vocal fry(ing) also and you can listen to this audio link of famous males using vocal fry as they speak. Apparently, radio shows, podcasts, and even television shows get multiple complaints from viewers about the annoying female vocal fry but they receive few if any complaints when male reporters use vocal fry. Hmmmm.

Here’s a thought from a 2013 Slate article (which also echoes the idea that older men in positions of authority find vocal fry particularly annoying):

As women gain status and power in the professional world, young women may not be forced to carefully modify totally benign aspects of their behavior in order to be heard. Our speech may not yet be considered professional, but it’s on its way there.

Once, an anxious parent wrote into Liberman’s blog to complain that a Ph.D. daughter populates her speech with uptalks (i.e., raising vocal inflection at the end of sentences), as do her doctor/lawyer peers. Could Liberman point to any research proving the “negative effects” of this feminine affectation?

“You’re certainly entitled to your crotchets and irks, just as your adult daughter is entitled to her prosodic preferences,” Liberman responded. “But in order for the two of you to get along, something’s going to have to give. And realistically, it’s you.”

In other words, listeners may want to get over it. But what does that mean from a litigation perspective? One of the key concerns for any public speaker (including lawyers, witnesses, and everyone else), is credibility. Styles of speech can appear sincere, frivolous, knowledgeable, or phony. As one who finds this style of speech an affectation, it reflects something about the values, priorities, and preferences of the speaker.

The speaker is working on making an impression, rather than coming across as authentic and persuasive. If a person wants to appear genuine and authoritative, examining the factors (including speech and accent) that guide impressions is worthwhile. This is one of those cases where you may want to consider pretrial research and getting mock juror reactions to a witness’ speech patterns. If they find the witnesses style of speaking “annoying”—it may be worth doing some preparation to modify speech patterns for testifying. The witness would still say the same things—they might just say them a bit differently.

It reminds me of a mock trial we did in East Texas where the attorney was concerned about how an actual jury would react to the speech of a man with vocal fry as an artifact of a chronic disease. We decided to test the younger male witness and did so by simply questioning him about his illness and how his voice related to that illness. Upon hearing that explanation, jurors embraced his testimony warmly.

But for witnesses with vocal fry unrelated to any medical condition, you cannot say, “I am younger, and people my age and most of my friends talk this way” and expect to be embraced. Instead, you may have to work on your speaking voice and intonation to see if it can be modified for courtroom testimony. While it will likely be irritating to the individual witness (particularly if they understand that men are not described as annoying when they use vocal fry)—it is likely to be more irritating to be dismissed by your audience in the courtroom as lacking in credibility.

Anderson RC, Klofstad CA, Mayew WJ, & Venkatachalam M (2014). Vocal fry may undermine the success of young women in the labor market. PLoS ONE, 9 (5) PMID: 24870387.

You can also find the full-text here: https://doi.org/10.1371/journal.pone.0097506

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