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Archive for the ‘Pre-trial research’ Category

genetic defenseThe growing body of research on genetic variations and their relation to crime may leave you uncertain about how to best defend your client charged with a violent crime. Do you encourage jurors to support an insanity defense by using a genetic defense or does that route backfire and leave jurors seeing your client as “different, dangerous, and likely to reoffend”? New research says it isn’t all straightforward and jurors may hear your defense in a way that biases them against your client.

Researchers in Canada conducted three experiments with a total of more than 600 participants to examine the effect a genetic defense for a violent crime might have on the listener. The researchers offered variations on a nature versus nurture defense in a (fictional) murder committed by a college student.

Specifically, one group read that the defendant had a genetic variation associated with aggression and violent tendencies (i.e., MAOA which is also nicknamed “the warrior gene”).

The second group read that the defendant had been beaten as a child by his single mother and grew up in a neighborhood populated with gangs. Both of the first two groups were told that either a genetic (i.e., nature) or environmental (i.e., nurture) background could result in a four-fold increase in the likelihood of violent behavior.

The third group (a control group) read about the murder but did not receive any information on the defendant.

The researchers spend some time explaining the concept of mens rea:

“a legal concept pertaining to one’s malicious intent and volition to commit a crime” is necessary for a conviction. Perceiving someone’s actions as being beyond their control likely leads to the perception that the perpetrator lacked mens rea”.

Here is what they found across three studies (with both online recruits and university students as participants):

The group of participants who saw the genetic explanations for the murder were more likely to see the Insanity defense and Diminished Capacity defenses as legitimate than were those in the environmental explanation condition.

Those who were in the genetic condition also saw the perpetrator as less in control over his actions and less likely to be truly intending to harm the victim—but the genetic explanation did not change their sense the perpetrator knew the potential outcome of his actions.

Overall, say the researchers, the participants believed that the genetic explanations “diminished the defendant’s agency”. In other words, they explain, “despite knowing that his actions could have killed the victim, he neither was able to control his behavior nor did he really intend to kill the victim”.

Only participants in the third study thought the genetic defense decreased criminal responsibility. However, the length of the sentences assigned did vary somewhat. Those who had genetic explanations rather than environmental explanations thought the defendant had less conscious behavioral control. At the same time though, genetic defenses resulted in more sense the defendant would reoffend than did environmental defenses and that predicted lengthier sentences (since the defendant would be dangerous).

The researchers see this as the double-edged sword of the genetic defense: Jurors may see your client as less criminally responsible but they are more concerned about recidivism and dangerousness so they will want to lock your client up for a longer time. This is complicated by whether the jurors feel that he is NGRI (not guilty by reason of insanity) or GBI (guilty but insane). A NGRI verdict ends the trial, foregoing a punishment phase, while the latter can result in sentencing.

From a litigation advocacy perspective, this dilemma reminds us of our writings on the psychopath. Telling jurors that your client is a psychopath can be very convincing as a “his brain made him do it” sort of defense. The problem is that people are (fairly enough) very frightened by violent psychopaths, and have the belief that they are not subject to rehabilitation. Punishment is necessarily lengthened as jurors want to remain safe rather than having “that animal” back out on the streets.

It’s a good reason to carefully think through the pros and cons of any defense that leads the listener to see your client as irrevocably damaged. In some cases, your task is to make your client appear to be potentially rehabilitatable so that jurors don’t throw in a lengthy sentence to keep themselves “safe”. In other cases, it is enough to try to achieve a verdict that reflects psychiatrically impairment, instead of a guilty result. If the cause of the ‘insanity’ is a treatable condition, it is a much safer strategy to pursue from a punishment standpoint, but it is also harder to convince a jury of the non-volitional cause.

Cheung BY, & Heine SJ (2015). The Double-Edged Sword of Genetic Accounts of Criminality: Causal Attributions From Genetic Ascriptions Affect Legal Decision Making. Personality & Social Psychology Bulletin PMID: 26498975


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guiltproneThree years ago we wrote about the goodness of fit for the guilt-prone with the presiding juror position. Counter-intuitive as it may seem, there were a number of reasons supporting them in that role. And today, new research gives us another reason the guilt-prone may be more skilled at leadership—they are more able to identify emotions of others.

The Australian researchers wanted to see how guilt-prone and shame-prone people differed in their abilities to correctly identify the emotion experienced by others. They begin by defining the difference between guilt and shame.

“…a key difference between shame and guilt lies in the perceived role of the self in the problematic behavior. With experiences of shame, the focus of the individual’s negative evaluation is squarely on the self (e.g., “How could I have done that?”), with the transgression or failure viewed as evidence that the self is defective (e.g., “I am a terrible person”).

In contrast, the individual experiencing guilt is focused not on the self, but squarely on their problematic behavior (e.g., “How could I have done that?”) and the ways in which they may make amends for their failure or transgression (e.g., “I need to fix this”).”

While experiences of shame are highly aversive—they are also associated with feelings of “inferiority, exposure, powerlessness and a strong desire to conceal one’s real or imagined deficiencies”. Guilt, on the other hand, is described as “unpleasant and niggling, but less aversive than shame”.

Given those definitions, the researchers asked 363 students and community members (age range 18-67 years with an average age of 27.48 years; 71% White, 12% Asian, 4% Hispanic, 3% African and 10% of other or mixed ethnicity) to predict how they would feel in 11 hypothetical and negative scenarios. The scenarios were taken from a measure of what is called “self-conscious affect”. The researchers used only those scenarios measuring shame-proneness and guilt-proneness. For example, one scenario involved a big mistake on a work project and the students selected their most likely reaction. If they chose “I should have recognized the problem and done a better job”, the researchers categorized them as guilt-prone. If, on the other hand, they selected a response such as “I would feel like I wanted to hide”—they were categorized as prone to shame.

After this task, they looked at photographs of actors dramatizing different facial emotions and chose one of five emotions as best fitting the emotion on the actor’s face: happiness, sadness, disgust, fear, anger or shame. What the researchers found is this:

Those participants whose responses on the first task indicated a guilt-prone perspective were better at identifying emotions on the second task even when the emotions dramatized were lower intensity. The authors say that past research also supports their findings—in the past, guilt-prone people have been reported as having overall better than usual psychological adjustment and to have good relationship skills.

Conversely, participants whose initial responses categorized them as shame-prone were not very good at accurately identifying emotions and the authors say this is consistent with past research demonstrating shame-prone people have lower levels of empathy.

The researchers conclude that when people who are guilt-prone experience guilt following a transgression, “they remain firmly focused on the negative impact that their transgressive behavior may have had on others”. Thus, according to the researchers (and consistent with past research) the guilt-prone person is likely to be compelled to learn from their bad behavior and make attempts to repair things. Conversely, the shame-prone person is less likely to have empathy for the experience of the other—they focus so much on their “badness” that they are blinded to the feelings of others.

We view this on a somewhat less complicated level. People who feel guilt are thinking in terms of having failed the expectations of others. It is an outwardly focused, interpersonal emotion. Shame is a defensive frame of reference, focused on themselves, rather than others. People feeling guilt are concerned about the feelings of others, while those feeling shame are concerned about how they are judged by others. While our primary focus in this blog is litigation applications, this research also contains intriguing implications for hiring decisions. Which employee—guilt-prone or shame-prone— is more likely to admit a mistake, and which one is more likely to hope no one notices?  Which one is more likely to be an effective manager or team leader? Which is more likely to be proactive in the face of possible problems? Overall, you can’t beat a guilt-prone employee.

From a litigation advocacy perspective, this is an intriguing study. If indeed you can categorize people based on their responses to negative situations (like the example offered earlier on a bad mistake made at work) into either guilt-prone or shame-prone individuals—that may work well for your case. (Of course, you’d want to test this in pretrial research to see if being either guilt-prone or shame-prone worked well for your case.) If you are curious as to whether you are more guilt-prone or shame-prone or more prone to blame others for bad things that happen (i.e., externalization-prone), you can take and score the TOSCA-3 here.

Treeby MS, Prado C, Rice SM, & Crowe SF (2015). Shame, guilt, and facial emotion processing: initial evidence for a positive relationship between guilt-proneness and facial emotion recognition ability. Cognition & Emotion, 1-8 PMID: 26264817


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The Motivation to Express Prejudice Scale 

Wednesday, November 18, 2015
posted by Douglas Keene

motivation to prejudiceWe hear a lot more these days about covert or “modern prejudice” than we do about plain old overt prejudice. So it’s a little surprising to see this measure but it makes sense. There are some people who do want to express prejudice and here is a scale you can use to measure their wishes to behave prejudicially.

The researchers conducted 7 separate studies with more than 6,000 participants and were able to design a measure that is reliable for scale versions targeted at Black people and gay men. Here is some of what the researchers report:

The motivation to express prejudice is an independent construct that can be measured reliably.

People who are highly motivated to express prejudice are likely to resist pressure to support organizations promoting intergroup contact.

People who are high in motivation to express prejudice may not actually consider themselves to be prejudiced. (The researchers point to survey results showing that people higher in motivation to express prejudice do not believe that opposition to same-sex marriage is “prejudice”. Instead, they may see themselves as being “realistic, virtuous or moral”. They are not ashamed and don’t view themselves as morally inferior for holding their views, they have formed or internalized justifications that provide comfort to them.

The researchers think their measure may be useful in understanding the extreme behavior of those congregating on hate websites. And here are some of the questions on the scale since we know you always are curious about them. These questions are taken from the version of the scale used to measure motivation to express prejudice against Black people. The gay men version was identical except the term “Black people” was replaced with “gay men”.

I minimize my contact with Black people in order to avoid disapproval from others.

According to my personal beliefs, I should express negative feelings about Black people.

Avoiding interactions with Black people is important to my self-concept.

My beliefs motivate me to express negative views about Black people.

It’s odd to see a scale so openly endorsing the expression of prejudice and apparently that’s why it works to measure the motivation to express prejudice. It is looking for extreme and openly expressed views, and doesn’t create the ‘false positive’ results that more subtle measures might.

People who score highly on motivation to express prejudice toward either Black people or gay men are going to avoid contact so their views will not be challengeable.

It also appears they would not respond positively to peer pressure in the deliberation room to modify their beliefs.

These are strong statements and are unlikely to be allowed in court because they would be seen as prejudicial. There are also great risks that in asking the questions you are likely to offend those who hold those views but don’t want to disclose them, and even some people who are horrified by the implication of the questions and question why you would even pose them. There are certainly other ways to assess racism and bias and prejudice though and if you are paying attention during pretrial research with African-American or gay (or seemingly gay) parties—we’d hazard a guess that you will see some intriguing reactions from mock jurors who are not paying attention to what they are saying or doing. Use those reactions to help you craft a narrative that makes your client more “like” the jurors than “not like” them.

Forscher PS, Cox WT, Graetz N, & Devine PG (2015). The motivation to express prejudice. Journal of Personality and Social Psychology, 109 (5), 791-812 PMID: 26479365


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ConcealedCarryRecently we conducted a focus group where two participants likely had concealed handguns in their possession during the group. Both were older—one male and one female mock juror, and neither did a single thing that was inappropriate during the project (which happened to involve a shooting). We discovered their concealed carry status when reviewing final questionnaires after the group was complete and observed how unexpected we found concealed carry permits on those particular two mock jurors. There was nothing we saw or could discern to make these two jurors any more or less likely to be carrying weapons. But then, the group was held in Texas.

With the ongoing occurrences of mass shootings at schools and in other public places, concealed carry laws have become a hotter topic than usual with some saying the shootings could have been stopped by citizens with concealed weapons and others arguing that more citizens carrying weapons could result in more violence and accidental shootings. At least one professor at the University of Texas in Austin has announced he will resign his position with a new law allowing people on campus to carry concealed weapons.

Now Gallup has released a nationally representative poll in the US (conducted October 7-11, 2015 via telephone interview with a random sample of 1,015 adults [60% were cellphone respondents and 40% landline respondents] living in all 50 US states and Washington, DC) on whether the country would be safer if people carried more concealed weapons. Here are a few findings from the Gallup poll:

Slightly more than half of the respondents (56%) thought the country would be safer if people who’d completed training courses and passed a criminal background check could carry concealed weapons.

Democrats and those with postgraduate educations are least likely to believe concealed weapons will make us safer.

Republicans and gun owners are more likely to believe concealed weapons will make us safer.

Younger Americans (below age 30) are more likely to say concealed weapons will make us safer.

Despite the failure of national legislative proposals to require background checks for gun purchasers, 86% of respondents favored this sort of law and only 12% opposed it (2% expressed no opinion).

However, nearly half of those favoring required background checks doubt they would reduce the number of mass shootings in this country.

From a litigation advocacy perspective, it’s important to know the range of views on gun control, background checks and concealed carry permits on your panel when the case involves a shooting (whether with a concealed carry permit or not).

As the economy has worsened, we’ve had recruiters for mock jurors in small rural communities call us and say those turned away due to demographic slots being filled have threatened us with bodily harm for not selecting them.

Our mock jurors tell us they are not as afraid of those who “know what they are doing” carrying concealed weapons as they are of those who are demonstrably unstable and just carry for defensive purposes which could be seen as necessary for a fairly minor offense.

It is a scary time for many as they hear of yet another mass shooting in the US and begin to wonder just how safe they are when at work, in a shopping mall, a crowded restaurant, or at any public event. This Gallup poll illustrates the difference between the opinion of the large majority of Americans and our legislative representatives when it comes to background checks and gun control.


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racial bias in crosswalkApparently yes, at least according to today’s researchers. And you likely will be somewhat taken aback by just which group you choose to make wait.

Researchers wanted to study whether the pedestrian’s race had anything to do with yielding behavior of motorists at crosswalks. They tested with 173 motorists and 6 trained male pedestrian-confederates (3 Black and 3 White) in Portland, Oregon. The confederate pedestrians were all about the same age, were trained to walk in the same way/speed, were dressed identically and each was easily racially identifiable. The crossings were done across three separate months and always at non-peak hours and with only the confederate-pedestrian in the crosswalk.

“Black pedestrians were passed by twice as many cars and experienced wait times that were 32% longer than for White pedestrians.”

And let’s keep in mind that this is in Portland, Oregon. Having spent quite a bit of time in this wonderful city, one of the things that is strikingly peculiar is that drivers are almost annoyingly prone to yielding to both other drivers and pedestrians. Locals joke about it. Yet this is another study about implicit bias and how our attitudes are uncomfortably reflected in things we do (like deciding whether or not to yield to a pedestrian) on a daily basis. The researchers describe the differences in how Black and White pedestrians were treated by drivers as “stark”.

They are certainly not alone in their findings. Previous research on implicit bias has shown minorities to be medically misdiagnosed in greater numbers, have more difficulty having their resumes seriously considered for jobs, and famously more trouble hailing a taxi.

The researchers think their results reflect the experience of micro-aggressions for the Black pedestrian. One might say it really isn’t that big of a deal but if you consider the time this adds on to a stroll across town—it becomes increasingly significant.  And as an indicator of anonymous racism (failure to acknowledge the pedestrian rights—or perhaps the mere existence— of a Black pedestrian trying to cross the street), this is about far more than cars and walkers. The researchers are now doing a followup project over the next 18 months (also in Portland) to examine the relationship of race and gender in pedestrians and drivers and also examining the influence of crosswalk design and street signage on yielding behavior.

Another motivator behind this work is the disparity in pedestrian injuries and fatalities:

The National Highway Traffic Safety Administration reports 4,735 pedestrians were killed in traffic crashes in 2013, representing 14% of all traffic fatalities.

Between 2000 and 2012, the Centers for Disease Control and Prevention reported that African-American and Hispanic males were more than twice as likely than white men to die in traffic crashes.

It is possible that, as people experience micro aggressions repeatedly, they might “force the right of way when cars are not stopping, potentially putting yourself into dangerous situations”?

From a litigation advocacy perspective, this work speaks to the need to carefully assess whether racial bias plays a role in how jurors respond to your case, and whether you, as an attorney, are prone to minimizing the needs or views of minority jurors. The research on classroom behavior (boys, as well as white people generally get called on to participate in discussions more often) supports this same pattern. In our work, we’ve found that when racial differences are present but non-salient, it can be particularly tricky to predict how racism emerges (to the detriment of the ethnic minority).

Despite popular sentiment—we clearly still have a long ways to go on how race influences us—especially when we are unaware.

Goddard, T., Kahn, K., & Adkins, A. (2015). Racial bias in driver yielding behavior at crosswalks Transportation Research Part F: Traffic Psychology and Behaviour, 33, 1-6 DOI: 10.1016/j.trf.2015.06.002


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