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Archive for the ‘Pre-trial research’ Category

Here’s another combination post offering multiple tidbits for you to stay up-to-date on new research and publications that have emerged on things you need to know. We tend to publish these when we’ve read a whole lot more than we can blog about and want to make sure you don’t miss the information.

Juror questions during trial and the prevalence of electronic and social media research

The National Center on State Courts just published a study authored by a judge in the Pennsylvania Lawyer on whether allowing jurors to ask questions during trial will help resolve issues of electronic and social media research during trial. The judge-author suggests the judicial directives to not conduct any form of research (the instructions usually itemize various forms of social media as examples of “what not to do”) do not stop the research from happening—it simply makes the research surreptitious rather than public. Since this publication is in the Pennsylvania Lawyer, they focus on Pennsylvania jury instructions but also discuss how other venues have used (and controlled) juror questions during trial. The article offers suggestions developed in the subcommittee on civil jury instructions. It is well worth a read if you have questions about the practice of allowing juror questions.

We should question alibis and the weight we place on them during jury deliberations

Given all the concerns about the accuracy of eye-witness testimony, it only makes sense we should also closely examine alibis and whether we simply accept them as true. A new article in Pacific Standard magazine says we need to pay attention to alibis as new research is telling us that accuracy of alibis resemble the vagaries of faulty eye-witness testimony. According to the new research, we tend not to remember mundane events (like where we were on August 17, 2009). The authors of the study described say that the wrong people can end up in jail due to alibi inconsistency and eyewitness mis-identification.

The curious impact of donning a police uniform

New research published in Frontiers in Psychology tells us that putting on a police uniform automatically affects how we see others and creates a bias against those we consider of lower social status. Essentially, say the researchers, the uniform itself causes shifts (likely due to the authority communicated by the uniform) resulting in judgment of those considered to be lower status (i.e., in this study those wearing hoodies were identified as having a lower social status). The researchers think it possible that police officers (who put on their uniforms) may perceive threat where none exists.

Identifying lies with fMRI machines

We’ve written about identifying deception using fMRIs frequently at this blog and here’s a four-page “knowledge brief” from the MacArthur Foundation Research Network on Law and Neuroscience. You can also download this summary at SSRN. This is a terrific (and brief) summary on everything you need to know about what fMRI machines can tell us about deception and what they cannot tell us about deception. You could think of this as a primer on fMRIs and how they work (and don’t work) as well as a guide to deposition testimony of an expert witness touting the deception-identifying abilities of the machine. This resource is very worth your time.

Ciro Civile, & Sukhvinder S. Obhi (2017). Students Wearing Police Uniforms Exhibit Biased Attention toward Individuals Wearing Hoodies. Frontiers in Psychology, (February 6,)

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We’ve written before about American attitudes toward China and Asians in general and are used to seeing knee-jerk negative reactions toward Asian companies or parties across the country as we complete pretrial research.

But, like other biases and attitudes all over the media these days, American attitudes toward China have been getting worse in the past decade. You likely know we hold Pew Research in high regard for measuring shifting attitudes in this country. We often look to their work to take a “national temperature” on various issues so we can then see if those attitudes are stronger or weaker in various venues in which we work. Earlier this month, Pew published a brief article on attitudes Americans have toward China and, as you might predict, our attitudes toward China are not particularly warm.

Here are a few highlights from the Pew report:

As you can see in the graphic illustrating this post (taken from the Pew site), American attitudes toward China are now (since 2015) more negative than the attitudes of Chinese citizens toward America. In fact, as of May 2015, the majority of Americans (55%) had unfavorable attitudes toward China.

It is more common for older (ahem, Pew says you are “older” if you are 50 years of age or above) Americans to view China unfavorably. However, negative views of China increased 21 percentage points among those aged 18 to 34 in the US between 2006 and 2016 (so it isn’t just the “old folks”).

US Republicans have consistently been more negative toward China than US Democrats. However, negative attitudes have increased among members of both political parties by more than 20 percentage points over the past decade.

American citizens see their country as declining while Chinese citizens see their country as ascending.

From a litigation advocacy perspective, it is imperative for you to be aware of the almost instantaneous reactivity to Chinese or Asian parties or products in your case. The vitriolic nature of the bias initially caught us off guard, but now we wait for it. Our various posts on negative attitudes we’ve seen in the literature and in our pretrial research (here, here, here, and here) may be useful for you to review in order to see ways the bias or negative attitudes arise. You may also want to review one of our perennially popular posts on when you want to talk about race and when you want to be very, very quiet.

Pew Research Center (February 10, 2017). Americans have grown more negative toward China over the past decade. http://www.pewresearch.org/fact-tank/2017/02/10/americans-have-grown-more-negative-toward-china-over-past-decade/

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Time for another one of those combination posts on things much too good to overlook. This time we are almost all about various sorts of bias to keep you up to speed on the different ways we make (and teach) biased judgments.

Bias is taught—even to artificial intelligence

We hear a lot about how parents pass biases on to their children but how about how the creators of artificial intelligence devices pass on their own biases to their creations? Scientific American has an article explaining how those who create artificial intelligence program in their own biases. Say it isn’t so, you exclaim! Here’s an example of a “computer algorithm that identifies black defendants as more likely to commit a future crime even though the program was not designed to consider race” in computation. Some have referred to this as a “white guy problem” in artificial intelligence and it has been linked to the problem of fake news. There’s an intriguing story of a researcher who set out to prove stereotypes on criminal-physiognomy wrong—and found quite the opposite and leaped to a “reckless conclusion” that “facial structure predicts criminality”. Yikes. You will want to read this one!

Your friends are secretly accessing your Facebook account

You should probably change your password. According to a study of more than 1300 Facebook users, new research found that 24% of them (more than one in five) had snooped “on the Facebook accounts of their friends, romantic partners, or family members, using the victims’ own computers or cellphones”. You may have seen examples of this where the status of a parent with multiple children is changed to say something like “Kelsey is my favorite child” (and that would mean Kelsey has accessed that parental account). The more concerning access is the “jealous snoop” who, according to the researchers, will access your personal messages for 15 minutes or longer (typically to the detriment or even dissolution of the relationship). You can read the entire research paper here.

The bamboo ceiling: Where are the Asian-Americans in leadership? 

Harvard Business Review blogs posts an intriguing article on diversity and how Asian-Americans out-perform other minorities and Whites in terms of education, employment and income. However, Asian-Americans are under-represented in leadership leading to the term “the bamboo ceiling”. The bamboo ceiling is actually worse than the glass ceiling effect for women. Why is this happening? The writers suggest it happens because of stereotypes about Asian-Americans. Further, those who stand up and behave differently than their ethnic stereotypes often experience a backlash (meaning they still do not advance). The authors recommend that we rethink what a “good leader” looks like as the worker population in the US continues to diversify. (You may also find the lessons we’ve learned about attitudes toward Asian-Americans in litigation interesting.)

How fast does racial bias kick in? The time it takes for your heart to beat

New research in Nature Communications tells us that our heartbeat itself can increase pre-existing racial biases. When participants saw a Black person approaching during a heartbeat (as opposed to in between their heartbeats) they were more likely to see the situation as life-endangering. We are impressed that they could time the image display that precisely. As you might imagine, this is thought to have strong implications for addressing the high number of shootings of unarmed Blacks. We wrote about this sort of research in a paper following the Trayvon Martin shooting and this work focuses again on whether a Black (or White) individual was holding a gun or simply a mobile phone. The researchers found that when the image of the approaching (either Black or White) person was flashed at them at the moment their heart beat (rather than in between heartbeats) they were about 10% more likely to perceive the object held by the Black person as a gun. Multiple news outlets have picked up this story. You can read summaries at Science Daily, Science Newsline, or Newswise. You can read the complete article here.

Can you really overcome unconscious bias?

Yes, says Jordan Axt writing in Scientific American blogs. He describes a series of studies published recently in the Journal of Experimental Social Psychology. Axt and his co-author, had participants play a card game where either black or white avatar faces were (randomly) selected to represent their player. What they found was that those participants who wanted to behave in non-biased ways were more resistant to “learning” black faces as avatars would mean a losing hand. The author says that “performance only suffered when the task supported potentially unwanted racial associations”. They believe that our underlying attitudes “may have the first word but not the final say in behavior”.

Azevedo, R., Garfinkel, S., Critchley, H., & Tsakiris, M. (2017). Cardiac afferent activity modulates the expression of racial stereotypes Nature Communications, 8 DOI: 10.1038/ncomms13854

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It is disconcerting to watch the political upheaval in this country but similar things seem to be happening around the world. We just found a new group that measures societal changes in trust. Edelman has surveyed “tens of thousands of people across dozens of countries” for the past 17 years measuring levels of trust in business, media, government, and non-governmental organizations (NGOs) which are typically non-profit. According to Edelman, this year is the first time the average level of trust (“to do what is right”) in all four types of institutions decreased. They also report the following statistics:

71% of survey respondents said government officials are not at all or somewhat credible.

63% said CEOs are not at all or somewhat credible.

60% of respondents trusted “a person like yourself” (which was in line with trust in a tech expert or an academic). In other words, they say, peers are now on par with experts.

NGOs were most trusted, Business was a close second (only one point behind NGOs), media came in third, and government came in fourth. (These place finishes should be considered skeptically since their combined overall approval rating was less than 50%.)

The following graphic shows a comparison of 2016 and 2017’s trust ratings for the four areas surveyed.

In addition to the Executive Summary, you can view Global Results, and watch a video on what Edelman calls a trust implosion. When trust declines, populism rises says Edelman—and we have seen that internationally as well as here at home.

From a litigation advocacy perspective, perhaps most important for our work is their lessons on how trust has been broken—housed over at Scribd. Here are a few of their lessons we see as related to litigation advocacy:

Leading the list of societal concerns and fears we measured that are commonly associated with populist actions are corruption (69% concerned; 40% fearful); globalization (62% concerned; 27% fearful); eroding social values (56% concerned; 25% fearful); immigration (55% concerned; 28% fearful); and the pace of innovation (51% concerned; 22% fearful).

People are nearly four times more likely to ignore information that supports a position they don’t believe in; don’t regularly listen to those with whom they often disagree (53%); and are more likely to believe search engines (59%) over human editors (41%).

53% agree that the pace of change in business and industry is too fast. They worry about losing their jobs due to lack of training or skills (60%); foreign competitors (60%); immigrants who work for less (58%);  jobs moving to cheaper markets (55%); and automation (54%).

The trust crisis demands a new operating model for organizations by which they listen to all stakeholders; provide context on the issues that challenge their lives; engage in dialogue with them; and tap peers, especially employees, to lead communications and advocacy efforts.

We will be paying careful attention to these issues as we pursue pretrial research and litigation advocacy in 2017. The ways that people (aka “jurors”) evaluate cases will reflect the kinds of mistrust and alienation that this study identifies. Anger seems to be intense, we are devaluing experts, concerned about those different from us, and not listening to those with whom we disagree. These states of being have direct relevance to our efforts to teach, explain, and persuade.

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Some interesting research is described in plain language over at the Vox website by Joshua Knobe (an academic from Yale). The article highlights a question we’ve been wondering about that may be important for all of us to consider over the next four years as we plan strategies for litigation.

The question is this: Just how hard is it to get people to move from a perspective of seeing some behavior as morally outrageous to seeing that same behavior as acceptable or even normal? And the answer is disturbing: it is pretty darned easy.

The author discusses how it is important that we continue to see morally outrageous behavior as not normal and that we do not move it to something as simple as bad or wrong. He offers examples of how cognitive science can help us to understand how we begin the process of moving behavior from “morally outrageous” to “bad or wrong” and perhaps, on to “that is just how s/he is”.

Recent studies have taught us a lot about what happens when people classify events as normal or abnormal. [snip] Our minds use the normal-abnormal distinction to rule out many options in advance. At the core of this research is a very simple idea: When people are reasoning, they tend to think only about a relatively narrow range of possibilities. [snip] One important question about human cognition is how people end up choosing one option over the other in a case like this.

[snip] This is where the notion of normality plays its most essential role. Of all the zillions of things that might be possible in principle, your mind is able to zero in on just a few specific possibilities, completely ignoring all the others. One aim of recent research has been to figure out how people do this. Though the research itself has been quite complex, the key conclusion is surprisingly straightforward: People show an impressive systematic tendency to completely ignore the possibilities they see as abnormal.

We make use of the normal-abnormal distinction when thinking about causality.

That last sentence from the Vox article is why we are sharing it with you here today. We know our mock jurors always want to know ‘why’ or to hear about the motivations of the parties. What this research tells us is that if jurors see behavior as abnormal—they are less likely to view the morally outrageous behavior as acceptable or valid. Or they may be more likely to see the behavior as totally unacceptable and worthy of punishment.

Yet, we have to be careful with these research findings and not assume we know how to use them. Here, again, is an example taken from the Vox article (and real life).

For an especially striking example, consider a real-world problem that arose in Arizona’s Petrified Forest National Park. Tourists were stealing bark from the trees, and the park as a whole was gradually being destroyed. What could be done to stop this theft? The staff of the park decided in the end to put up a sign:

‘‘Your heritage is being vandalized every day by theft losses of petrified wood of 14 tons a year, mostly a small piece at a time.’’

The goal was to raise awareness of the problem, making people see more clearly what was so bad about stealing from the park. Perhaps the sign did succeed in raising awareness, but it also had another, more surprising effect.

By drawing attention to the fact that people often steal, it made people see theft as normal.

Many of the park visitors might have seen theft as something that wasn’t even worth considering (like trying to eat your shoe), but the sign helped to switch them over to seeing it as something that might be bad but was still among the normal options (like eating chocolate cake). A systematic study examined the [counter-intuitive persuasive] impact of this sign.

The key result: Putting up this sign actually led to an increase in the total amount of theft.

In the story above, the park took down the sign and stopped informing visitors of the thefts (and thus normalizing theft and making it a behavioral option). From a litigation advocacy perspective, we want to work to maintain the (moral) outrage and horror associated with egregious behavior and not do or say anything that would normalize it. That is easier said than done though, as Joshua Knobe comments in closing the Vox article.

So then, what is to be done? I wish I could say that cognitive scientists have settled on a different but equally effective solution and that all we need to do now is go out and implement it. Unfortunately, however, that is not the case. Research in cognitive science has done a lot to give us a deeper understanding of the problem we now face, but it has not yet furnished us with a workable way of addressing it.

Thus, it is for all of us to focus on how we can seek to not dull jurors’ minds to the horribleness of egregious conduct.

A number of years ago we worked on a criminal case in which an employer was drugging female employees and taking nude photos of them while they were unconscious. What we noted in pretrial research was that the more often we showed the photos of the women, the less impact it had. The Defense would want to work to maximize the photos being shown while the Prosecutor would want to limit the photos to maximize the visual (and emotional/moral) impact.

The next few years will be a challenge for each of us as we work to understand more about how to either maintain the moral outrage of jurors at egregious behavior or trying to dull the impact of the egregious behavior through repeated exposure (depending on our side of the aisle). The actual research the Vox article is based upon is available here.

Thomas F. Icard, Jonathan F. Kominsky, & Joshua Knobe (2017). NORMALITY AND ACTUAL CAUSAL STRENGTH. Cognition

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