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conspiracy theoriesIt is no secret that we are intrigued by conspiracy theorists here at The Jury Room. Not only are they good for entertainment value during pretrial research, they are also very useful to help us plug holes in case narrative that could derail deliberations. When it comes to the actual trial though, conspiracy enthusiasts are usually seen as too risky for either side, and their presence often results in agreed strikes.

Here’s an interesting piece of research that doesn’t really help us to identify the individual conspiracy buff, but, does tell us the sort of environment in which the conspiracy theorist thrives.

These researchers believe that emotional uncertainty creates a desire (even a need) to compensate. We try to achieve a sense of certainty and, despite how odd it may sound, there is comfort in the conspiracy theory (since it can provide an explanation for why things are the way they are). Whether it is a reasonable or logical explanation is not what is important. And it isn’t just conspiracy theories that give us comfort in times of uncertainty. Horoscopes, seeing real or even illusory patterns, belief in a strong government or a “controlling and interventionist god”– all these things give a sense of stability and order in the world. Or as the authors put it,

“Whether one finds comfort in a strong government, astrological predictions, or vast conspiracies mapping out our fates, all are responses potentially driven by the uncertain seeking predictable structure in our capricious world.”

So, the researchers wanted to see if emotional uncertainty could affect conspiracy beliefs, beliefs in the paranormal, or the tendency to defend government actions. They used emotions that resulted in both certainty and uncertainty, as well as positive and negative emotions. Specifically, they examined happiness and contentment (certain and positive emotions); anger and disgust (certain and negative emotions); surprise and hope (uncertain and positive emotions); and worry and fear (uncertain and negative emotions). Once they identified these emotions, they asked 251 participants (112 male, average age 32.5 years) recruited from an online survey program to:

“Please recall a particular incident in which you were very [emotion]. What made you feel [emotion]? Recall this situation as vividly as you can. Please describe this situation in which you were [emotion] — what happened, how you felt, etc.”

By asking for this description of the situation, the researchers are “priming” the research subjects to re-experience the emotions. In this pretest, they found that when they asked participants to respond to this stimulus, participants felt the emotion described and their experiences were indeed experienced as either certain or uncertain (as the researchers had intended). The researchers then moved on to three separate experiments.

In the first experiment, the researchers examined the support of governmental defense and had 98 participants complete the same emotional recall task. They found that those in uncertain emotional conditions scored higher on (that is, they felt more strongly positive about government defense.

When they were uncertain, they wanted stronger governmental defense.

On the second experiment, the researchers looked at conspiracies and the paranormal. The 97 participants completed the same emotional recall task as before and were then asked to read scenarios that were purposely ambiguous “as to whether several individuals were coordinating their efforts to obtain an outcome”. Then they answered items from two scales measuring their belief in the paranormal. Again, those in uncertain emotional conditions showed greater endorsement of conspiracy beliefs and greater endorsement of belief in the paranormal.

When they were uncertain, there was higher belief in both conspiracy and the paranormal.

Finally, in the third experiment, the researchers looked at whether they could intervene in a way that would negate the power of the uncertain emotions. They cite prior research saying “having individuals contemplate and affirm important values they hold increases many positive states, including perceptions of personal control”. This time the researchers asked 161 participants (161 male, average age 29.8 years) to identify which of six values taken from  the Allport-Vernon-Lindzey Values scale were most important to them. In the affirmation condition, the participants were asked to complete a subscale on the same value they had ranked most important. This, said the researchers, gave the participants the opportunity to self-affirm (that is, focus on things of greatest importance to themselves, giving them a greater sense of self-assurance). Those in the no-affirmation condition completed a subscale on the value they ranked as least important to them (and thus had no affirmation).

This time, those who had uncertain emotions but were given a chance to self-affirm, had no desire for increased government defense. In other words, self-affirmation worked to help participants feel they had control and structure and thus they did not look to external aids (like increased government defense) to help them feel safer.

Overall, say the researchers, uncertainty in emotional state–regardless of whether it is positive or negative– leads to a desire for structure and a sense of control. Thus, uncertain people are prone to accept conspiracy theories, belief in the paranormal, and to endorse agreement with higher levels of governmental defense. Those tendencies can be curbed, however, by offering the uncertain individual self-affirmation. Self-affirmation stabilizes the uncertainty and allows the individual to respond in a measured way not driven by the uncertainty.

This raises interesting questions about case presentation at trial. There is a tendency to want to satisfy jurors’ interest in “knowing” all of the facts. But this research says that in some cases, leaving jurors with a sense of uncertainty or foreboding might actually bring them to a state of mind more useful to your case.

Do you want to focus their attention on a particular alleged wrong-doer (typically a Plaintiff or Prosecution goal), or do you want to create a diffusion of responsibility, where it is borne by a number of parties, perhaps some not named in the dispute (more likely a Defense goal)?

So part of the task for the psychologically savvy trial lawyer is to give thought to what kind of emotional tone is best for jurors to carry into deliberations.

Do jurors tend to favor your position when they feel centered, focused on their values and priorities, and confident?

Do they think your way when they are worried or anxious, uncertain about life, and powerless?

This knowledge won’t change the facts, and the impact of this research is nuanced. But when you are seeking out every advantage you can identify, this is one that shouldn’t be overlooked.

Whitson, J., Galinsky, A., & Kay, A. (2015). The emotional roots of conspiratorial perceptions, system justification, and belief in the paranormal Journal of Experimental Social Psychology, 56, 89-95 DOI: 10.1016/j.jesp.2014.09.002

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brain scienceIf you think neurolaw and neuroscience are everywhere–and don’t find it particularly challenging to talk about brain science, apparently you are living in a very rarified environment. It’s hard to believe but evidently, most people do not think the exploding field of brain science is fascinating! Instead, when they think of brain science they think of things that are far removed from their daily lives and things that make them anxious. [Or bore them to tears.] For litigators this has crucial ramifications, since any body of technical information that is worth presenting to a jury requires understanding if it is to be useful.

UK scientists interviewed 48 London residents about “brain science”. They found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness. Maybe… too little too late?

The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique. The individual quotes the researchers included however, highlight the lack of awareness of brain science or research:

“Brain research I understand, an image of, I don’t know, a monkey or a dog with like the top of their head off and electrodes and stuff on their brain.” [Male participant]

“It does conjure up images of, you know, strange men in white coats.” [Female participant]

“You just, like I say, blind people with science, don’t you. And then it becomes a subject that you just don’t understand. With me, I just switch off. I’m not understanding what you’re talking about here, so I just switch off.” [Male participant]

“Where do these people come from, that actually understand these things?” [Female participant]

The researchers highlight the reality that most people do not see “brain science” as something relevant or a part of their lives. However, if an individual developed a mental illness or a neurological condition–they believe they would have more interest in learning. Without those catalysts, however, they have little interest in pushing themselves to understand more. The researchers report the concept of “brain science” seemed foreign or “baffling” to most of those interviewed.

From a litigation advocacy perspective, this study highlights the importance of teaching the science. Whether “the science” of a specific case is patent law, high-tech and abstract concepts, or actual “brain science”–jurors need to hear it and have a sense that they understand it enough to actually make judgments on the case. Keep in mind that they are going to judge it whether it is understood or not. The question is simply whether the judgment is going to be informed by bias, by knowledge, or by a coin flip and a longing to be done with jury duty. We know from 20 years of interviewing jurors that they strongly prefer having clear understanding. And that, dear litigator, is up to you.

We have worked on cases in which animation helped jurors make sense of complex computer programming and on others where the analogy of ordering a pizza with different toppings or a hamburger with or without special sauce were used to help jurors understand different technology applications in an especially complex patent infringement case. We’ve also worked on cases where there were allegations of neurological injuries but a very normal looking Plaintiff and jurors had to “see” the injuries somehow to help them understand what had been lost.

Never lose sight of how foreign the concepts truly are, and help jurors understand so they do not have to “shut off” as one of the interviewees in this study confessed to doing. Often, our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar. Just because you have been buried in a case for years and live, eat and breathe the science, doesn’t mean jurors will have a clue about what you are presenting to them. Teach them in a way that helps them relate the abstract and esoteric to their everyday lives. It empowers them to make the right call. If you don’t know how to explain it to ‘real people’, gather a group of mock jurors and ask them what makes sense, where they get lost, and what analogies are most useful to them. If you invite them to the conversation in the right way, they’ll tell you.

O’Connor, C., & Joffe, H. (2014). Social Representations of Brain Research: Exploring Public (Dis)engagement With Contemporary Neuroscience Science Communication, 36 (5), 617-645 DOI: 10.1177/1075547014549481

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Same sex marriage is okay but please, no PDA!

Wednesday, December 17, 2014
posted by Douglas Keene

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

same sex pdaWe’ve blogged a number of times about changing attitudes toward same sex marriage.  The majority of Americans now support same sex couples being allowed to marry but that doesn’t mean we want to watch “them” be publicly affectionate.

And “we” are not alone. Even gays and lesbians express some discomfort with public displays of affection (PDA) for same-sex couples. The authors see this as “entrenched prejudice” on the part of heterosexuals and perhaps, as an “internalized stigma” for gays and lesbians responding to the survey.

The researchers surveyed 1,073 Americans (258 lesbians, 310 gay men, 240 straight women and 265 straight men). They were randomly assigned to read vignettes about a couple who met, fell in love and had been living together for the past 2 years. One-third read about “Brian and Jennifer”. Another third read about “Heather and Jennifer” and the final group read about “Brian and Matt”.

After they read the vignettes describing either a heterosexual couple, a lesbian couple or a gay couple, they were asked to respond to a series of queries about this specific couple’s rights. Some of the questions were of a more formal legal nature (like about inheritance or hospital visitation rights) while others were more informal such as their right to tell others they were a couple, hold hands or kiss in public settings. For each question, participants responded on a 4-point Likert scale ranging from strongly agree to strongly disagree.

On formal (legal) rights, there were no differences for heterosexual males approval for the same rights for heterosexual, gay or lesbian couples. Heterosexual women were more approving of insurance benefits for the lesbian couple than the heterosexual couple. Gay and lesbian participants were more approving of all the formal rights for gay and lesbian couples than for heterosexual couples (which makes sense, since they are seeing these couples as “in group” members).

When it comes to informal rights, the picture grows murkier.

Heterosexual males were less approving of informal privileges [defined here as holding hands in public or kissing] for both the gay and lesbian couples than for the heterosexual couple–and they were significantly less approving of the gay couple than the lesbian couple.

Heterosexual females also approved more of the heterosexual couple’s informal privileges than either the gay or lesbian couples–but they did not approve of the lesbian couple over the gay couple.

Lesbian and gay participants were sometimes more willing to grant informal privileges to the heterosexual couple over their own in-group couple. Lesbians and gays were both less approving of their own in-group couple holding hands in public compared to the heterosexual couple. Lesbians thought it was okay to kiss on the cheek or French kiss for both lesbian couples and heterosexual couples, but gays were significantly less approving of the gay couple kissing on the cheek or French kissing than they were for the heterosexual couple.

The authors say that the bias against these informal rights may reflect attitudes that are changing more slowly than our attitudes toward legal rights. They also highlight the reality that the gay couple are penalized more than the lesbian couple and more work should explore this issue.

From a litigation advocacy perspective, this is useful information. When we think about our changing jurors and their changing attitudes toward same-sex marriage, this survey warns us to make no assumptions on what behaviors are seen as “acceptable” in public. Homophobic responses and disapproval can arise anywhere–much like bias that arises covertly around issues of race and citizenship. Being aware of how bias against sexual orientation continues can aid you in party and witness preparation for in court appearance, behavior and testimony.

Doan, L., Loehr, A., & Miller, L. (2014). Formal Rights and Informal Privileges for Same-Sex Couples: Evidence from a National Survey Experiment American Sociological Review, 79 (6), 1172-1195 DOI: 10.1177/0003122414555886

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

dead white womanIf you are a murdered white female, your case will be investigated and prosecuted (and probably more severely sentenced) than any other murder victim (especially if you are allegedly killed by a Black defendant).

This fact comes from a disturbing look at “prosecutorial files on over 400 homicide cases from Caddo Parish, Louisiana (the Shreveport area) in the 21 years between January 1, 1988 and December 31, 2008”. This is roughly the average rate for homicides per capita in the US (2011 had 16,238 homicides nationally).

The researchers looked at 431 cases including 203 with an initial charge of first-degree murder, 202 cases with an initial charge of second-degree murder, and 26 cases of manslaughter. They tallied sentence severity, number of pages in the case file, victim-defendant relationship (family, friend or other intimates; acquaintances; associated by some other known category), victim and defendant race and victim gender. They also tracked “aggravating circumstances” such as arson, age of victim (under 12 or over 64), burglary, drugs, drive-by shooting, heinousness, knowingly endangering more than one person, multiple victim homicide, offender with prior homicide record, robbery, kidnapping, rape, witness intimidation, or police killed during the course of the crime.

What they found is disturbing (although consistent with what we know about bias and the race of murder victims and murder defendants).

While White defendants (in general) received somewhat longer prison sentences than Black defendants, those convicted of killing Whites received much harsher sentences than those who killed Blacks–with those convicted of killing Whites 5.75 times more likely to be sentenced to death than those convicted of killing Blacks.

Blacks killing Whites received the most severe sentences.

The odds of a death sentence and the odds of a prison sentence of 40 years or more are higher in cases with female victims than those with male victims.

In 77.8% of the case where the murder victim was a White female, the offender was sentenced to death or to prison for more than 40 years. Those convicted of killing White females are 11.58 times more likely to be sentenced to death than those convicted of killing Black males.

The average number of prosecutorial case file pages in the 431 cases examined was 423 pages. However, case files were “significantly longer for cases with White defendants, White victims, cases in which Blacks were convicted of killing Whites, cases with female victims (especially White female victims), cases where the homicide occurred between strangers, and cases with more aggravating factors present”.

White female homicide case victim files had an average of 530 additional pages in the prosecutorial files than case files with Black male victims.

Even after controlling for aggravating circumstances, cases with White female victims resulted in “a greater volume of investigative product” (that is, more pages in the case file) than any other homicide cases.

Overall, say the researchers, cases with White female victims resulted in the highest number of case file pages (i.e., the most investigative work) and the most severe sentences. In contrast, Black male homicide victims received the least investigative attention and the least severe sentences.

From a litigation advocacy standpoint, this is truly an indictment of the process. Aggravating circumstances make no difference in whose cases are investigated aggressively and thus the heinousness of the crime does not drive the investigation. Gender and race does. This disparity appears to be an artifact of what prosecutors deem to be most worthy of effort in homicide investigations. While this is some (small) comfort to the murdered White woman’s loved ones, it is offensively unfair to those murder victims who are not White females, and arguably, to a justice-minded populace. And, for all of us, it is a sad statement when a measure like simply counting pages in a prosecutorial file shows us what the system values.

Pierce, G., Radelet, M., Posick, C., & Lyman, T. (2014). Race and the Construction of Evidence in Homicide Cases American Journal of Criminal Justice, 39 (4), 771-786 DOI: 10.1007/s12103-014-9259-1

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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

catcallsWhen this cat-calling video first came out, it went viral as an example of the harassment women face when walking alone on the streets of New York City (and presumably other cities as well).

But soon, viewers began to question the neighborhoods she was walking in and why most of the cat-callers were African-American or Latino. Critical reviews began to hit Twitter. The blog Mass Appeal looked carefully at landmarks visible in the video to identify where each instance of harassment occurred and over half of the harassment happened on a single street–125th Street in Harlem. They designed the graphic illustrating this post, question how people (and the media) might respond if the harassers were white, and close with this powerful statement.

While there’s no doubt that street harassment is a very real issue that effects [sic] women every day, it’s unfair to judge the whole of NYC based on the reactions of people primarily from one or two specific races, cultures, or neighborhoods especially given the cultural norms thereof. This viral video can serve as a great introduction to those who don’t believe that street harassment even exists, but it raises a lot of questions about race and culture that need to be answered in order to more deeply understand the issues at hand.

Sociological Images blog follows up on the Mass Appeal post with this thoughtful summation:

Did the time the producers spent in Harlem involve denser rates of harassment, supporting hypothesis #1. Did they spend an extra amount of time in Harlem because they have something against black men? That’d be hypothesis #2. Or is it hypothesis #3: they were thoughtless about their decisions as to where they would do their filming. Honestly, it’s hard to say without more data, such as knowing how much time they spent in each neighborhood and in neighborhoods not represented in the video. But if it’s true that they failed to sample the streets of New York City in any meaningful way – and I suspect it is – then hypothesis #3 explains at least some of why black men are over-represented. And that fact should motivate us all to do our methods right. If we don’t, we may end up offering accidental and fallacious support to ideas that we loathe.

Commenters at Sociological Images offer unsolicited critiques of the post itself.

The skill of critical thinking is a difficult thing to teach. While there was initial acclaim and then a storm of criticism–most viewers will not think a lot about whether a video is done correctly, the power of the editor in cutting 10 hours of walking down to a few minutes of catcalls, whether all neighborhoods were walked so they can tell whether the video is truly representative of NYC, and why so many of the cat-callers are African-American or Latino. They will simply accept the video as truth and perhaps incorporate this as their definition of the reality of walking in New York City.

But there is hope. ProCon.org is now offering a Critical Thinking Seminar handout for teachers along with a 6 minute video of a 90-minute seminar and a 2 page handout. They encourage teachers to incorporate this skill into lesson plans and give information about how the particular lesson plans meets Common Core Standards.

The newly published book, Law and Neuroscience (see a review here) also offers skills in critical thinking for those of us who want to learn more about the emerging area of neurolaw. Critical or analytical thinking is tough to teach in the abstract, yet this text does just that by offering both sides of the arguments (as well as the middle perspective) on neuroscience use in the courtroom. These authors use case law to tell memorable stories of how neuroscience found its way into the courtroom. Then, rather than quickly moving on, they present criticisms, limits, and cautions. That strategy offers the reader the opportunity to consider all sides of a controversy and come to their own conclusions.

Both of these resources remind me a lot of a type of pretrial research we offer that one of our long-time clients describes to other attorneys as, “it’s kind of like when Doug does Oprah”. The entire day is spent with mock jurors bouncing back and forth brainstorming about their differing perspectives on a case as the evidence unfolds. To the point where they sometimes just look at each other and laugh as they hear yet more new information that threatens to make them reconsider their conclusions yet again. The process is truly a lesson in critical thinking and while the mock jurors likely do not know that, the observing attorneys learn a tremendous amount about how specific case facts can send the non-critical thinker down a rabbit trail that can torpedo their case.

Image from Mass Appeal blog 

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