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If you read this blog routinely, you know we like the work done by the Pew Research Center that keeps us abreast of how demographic patterns are changing. They’ve done it again with some trends for us to watch as 2017 marches forward. Here are some of the highlights from their report on how the world around us is changing.

Millennials are now the largest generation in the US. In 2016, according to this new report, there were about 79.8M Millennials (aged 18 to 35 in 2016) compared to about 74.1M Boomers (aged 52 to 70 in 2016). The Millennial population is expected to continue to grow until 2036 as a result of immigration.

Fewer of us are marrying although we are increasingly cohabiting and Pew discusses the “gray divorce” rate (divorces among those 50 and older) which has roughly doubled between 1990 and 2015.

More of us are living in multigenerational households (with two or more generations). This is due to economic changes as well as the changing racial and ethnic makeup of the country. Also, for the first time in 130 years, more Millennial-aged people are living with their parents than in any other living situation.

Women may never make up half of the US labor force although the gender pay gap has narrowed from women earning 64 cents for every dollar earned by men in 1980 to women earning 83 cents for every dollar earned by men in 2015.

Immigrants are responsible for overall workforce growth in the US. If not for immigrants, the average working age population in the US would decrease in size by 2035. They also report public opinion has turned more positive for immigrants this year. Similarly, since 1970, the increase in the annual number of US births is driven by immigrant women. Babies born to Muslim mothers will outnumber babies born to Christian mothers by 2035.

The US admitted 84,995 refugees in 2016, this is the most admitted since 1999. The graphic illustrating this post shows which states most refugees went to live in. About half (46%) the 2016 refugees were Muslim.

There is more information in the Pew report on demographic changes shaping our country and the world this year. Read it to keep yourself abreast of changing demographics in our country and around the world—as well as in all of our panels of prospective jurors.

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Of course it isn’t a surprise that they are gravely disturbed, but who knew it was neuropsychological?  This is an article from researchers at Northwestern University and looks very specifically at similarities and differences in the neuropsychological test scores of those who killed only children and those who killed some adults as well as children.

The researchers start by telling us that the murder of a child is among the “rarest and least understood categories of homicide”. It is a fairly gruesome inquiry that the researchers say is made all the more necessary with media coverage that has mostly focused on women who kill their children (often in an intense post-partum psychosis). The researchers say that the homicide of children occurs in many contexts and not all of those contexts include mental illness. They carefully review the literature on child homicide and even discuss the differences between mothers and fathers who kill their children. We are going to focus here on the neuropsychological differences between those that kill only children and those who kill adults as well as one or more children.

We also note that this is a small sample of 33 people (27 men and 6 women) convicted of 1st degree murder in three states (i.e., Illinois, Missouri, Indiana) who were referred for forensic neuropsychological evaluations to assess fitness to stand trial, criminal responsibility, or sentencing. Of this small group, the average age was 32 years, 48.5% were Black, 36.4% were Caucasian, and 12.1% were Hispanic while 3.0% were described as “other” in terms of race/ethnicity. The researchers said those convicted murderers who had killed adults as well as children were comparable to what is known of other murderers. However, when they looked at those convicted murderers who had killed children only, a different pattern emerged.

Here is what they report on those murderers who killed only children:

The murders are less likely to be premeditated and the murderer is less likely to have traits associated with premeditation (e.g., a diagnosis of antisocial personality disorder and/or substance abuse).

Child murderers were more likely to kill with their hands—as by drowning or beating.

Child murderers were more likely to score lower on measures of language and verbal memory (which the researchers link to poor conflict mediation skills).

The researchers suggest that, since those who kill children only, seem to have deficits (intellectual and interpersonal)—it may be useful to identify them and offer training in problem solving and communication skills. They suggest it may take more organization than the “child only” murderers have to kill multiple victims who are both adults and children.

From a litigation advocacy perspective, the horror related to a murder of this sort makes it difficult for jurors to consider mitigating circumstances. If these researchers are accurate, these are murderers who used their hands to kill innocent children—very personal and inescapably deliberate— and the act will likely be seen as heinous and unforgivable. Those who kill or abuse children are not viewed positively in the prison environment and there is no reason to believe jurors are going to view them more positively either. Jurors will likely be disgusted by the defendant’s behavior but may also respond well to the idea of the defendant receiving rehabilitative services (such as problem-solving and communication training, anger management, and more) so that there is less likelihood of a similar situation arising in the future. This sort of research can potentially explain why something horrible happened and offer jurors information on rehabilitation strategies that will make history less likely to repeat itself.

Azores-Gococo, N., Brook, M., Teralandur, S., & Hanlon, R. (2017). Killing A Child. Criminal Justice and Behavior. DOI: 10.1177/0093854817699437

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Resting Bitch Face’ is, in case you missed it, the condition of having a neutral facial expression that people perceive as sour, unpleasant, and generally bitchy. Long before was RBF was a thing, a woman in my graduate school class told me that professors often thought she was angry because her face carried a flat expression when she was thinking. “It’s just how my face is!” she protested. Years later, allegedly not until 2013 (although it hit the Urban Dictionary in 2011), the phrase went viral.

It is a “real thing” say scientists, is seen in the famous and the not-famous, has caused some to become depressed, is mostly attributed to women but also seen in men, and some say it reflects contemptuousness. There is support for RBF from social media (sort of), it inspires creativity and career advice, and constant social directives to ‘smile’ or ‘be kind’. There have also been multiple (tenure-seeking) scientific studies on first impressions (which includes the impressions made about RBF particularly in women). RBF even resulted in a video parodying all those direct-to-consumer medical ads.

The term has many detractors who do not think it is at all funny (for the most part) and they wonder why women are expected be always smiling and inviting. They say it is a variation on the “Smile honey!catcalls from men congregated in groups as the woman walks by. As the name would suggest, it is a sexist distinction. There are slide shows designed to show multiple other meanings for expressions deemed to be RBF. Detractors also have career advice, decry the constant focus on women expending energy to appear pleasant to everyone, have created posters, have published articles on the costs of RBF at work, and made angry comments about health professionals giving advice on avoiding the RBF expression as you mature.

From a litigation advocacy perspective, we actually rely on first impressions when doing pretrial research with mock jurors and have blogged about the importance of the first impression and strategies for being more likable a lot here. But the concept of RBF is not something we’ve discussed, and frankly, it is a dilemma. Gravity and age give all of us a more RBF facial expression. We need to disconnect the initial negative impression some jurors may have formed due to RBF. Some good advice comes from, of all places, the Business Insider:

“I’ve heard people with resting bitch face sometimes tell me that they’ll contextualize it verbally for other people. That they’ll say, “I’m not unhappy with you. I’m not displeased with the situation. I just look this way.” And that’s a really honest way to talk about this facial expression that they’re giving, because facial expressions are so critical to how we perceive what other people are telling us.”

This is just part of the video transcript on the website (with the author publicizing his new book) and this may be a good way to talk to witnesses, or parties, or yourself (if you have RBF). The message is so similar to what my friend in graduate school said to me as we first met, “That’s just how my face is”. Humanizing the party/witness with the RBF can help jurors (many of whom will have RBF themselves) reshape their first impressions of him or her.

What is instructive is that the speaker on the video has a constant grin on his face (perhaps Resting Happy Face) that makes his spoken message much less empowering than the written transcript provided under the video.

When you are testifying in court, interposing a laugh, or learning to ‘force’ a slight lift to the corners of your mouth can negate the ‘resting’ expression that may look a bit sour or unhappy.

Perhaps the best advice to give to someone who is concerned about being observed (and judged for having RBF) is just this:

So listen to me. You do not have Resting Bitch Face. You just have a face. There’s nothing wrong with it. Don’t let anyone tell you otherwise.

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All this week, we have focused on research about lying but there are multiple other articles we want to share with you that will not require a full post. Think of this post as an update on deception that will aid you in preparation for court (and life in general).

Small, self-serving lies change our brain and make us more likely to lie for personal gain

It really is like a slippery slope. Like much deception research these days, this project used fMRIs to scan participants brains while they lied. First they told small lies and their brain’s amygdala lit up. As they told additional lies the amygdala became less bright as their brain got used to lying. This study was published in Nature Neuroscience which is not open access but you can read a summary of the work over at Medical News Today.

Misleading ourselves to better mislead others

Scientific American recently published an article on how we can use self-deception in order to more effectively persuade others. The article describes research (soon to be published in the Journal of Economic Psychology) that was first proposed in the 1970s and focuses on how we seek information to support what we want to believe and avoid information that does not support what we want to believe. Anyone who has done any pretrial research has seen this phenomenon play out over and over again through the darkened glass of the observation room. The author quotes one of the researchers to end the article in this somewhat disturbing paragraph:

Von Hippel [one of the authors] offers two pieces of wisdom regarding self-deception: “My Machiavellian advice is this is a tool that works,” he says. “If you need to convince somebody of something, if your career or social success depends on persuasion, then the first person who needs to be [convinced] is yourself.” On the defensive side, he says, whenever anyone tries to convince you of something, think about what might be motivating that person. Even if he is not lying to you, he may be deceiving both you and himself.

Comparing fMRI and polygraphs for lie detection

You know that polygraphs are not admissible in court and that there have been many (many) questions on the utility of fMRI research on deception when we cannot really know what it means when certain areas of the brain light up. All we can say is that they light up. In this interesting research out of the University of Pennsylvania, researchers compared fMRI readings to polygraph readings and found something surprising. When neuroscience experts (who had no prior experience in lie detection) were able to use fMRI results completed by “liars”, they were much more accurate in identifying deception than were polygraph examiners looking at the same “liars”. You can read a brief news release here or a more comprehensive neuroscience blog post here.

An update on the courtroom readiness of the fMRI for lie detection

Lest you think the preceding study means fMRI is ready for a courtroom closeup—the Macarthur Foundation Research Network on Law and Neuroscience has recently released a 4-page brief summarizing the state of fMRI research and readiness to be used in courts of law. Here is what they conclude [and we quote]:

At present, many of the issues that concern the scientific community with respect to the use of fMRI for lie detection are likely to be problematic for the legal community, at least in most contexts. In fact, much of the existing research on deception has no bearing on the question that matters most to judges, lawyers, defendants, and juries, i.e., “Can fMRI-based lie detection methods provide a legally relevant answer to a specific question?”

Most scientists—including many who have reported detecting lies in the laboratory with a high degree of accuracy—agree that more and different research will need to be conducted before fMRI-based lie detection is ready for its day in court.

While the short answer is “it is not ready”—you may want to go read this for yourself and impress others with your knowledge of the specifics on why not.

Garrett N, Lazzaro SC, Ariely D, & Sharot T (2016). The brain adapts to dishonesty. Nature Neuroscience, 19 (12), 1727-1732 PMID: 27775721http://www.nature.com/neuro/journal/v19/n12/full/nn.4426.html

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When litigation cases rely on science or highly technical information, it is critical to help jurors understand the information underlying the case at a level that makes sense to them. If they do not understand your “science”, they will simply guess which party to vote for or “follow the crowd”. Here’s an example of what happened when scientists “followed the crowd” to see what fields of science were seen as most precise (and therefore reliable).

You can see from the graphic illustrating this post that too many people are watching CSI shows on TV. When forensic science is more “certain” than nanotechnology or aerospace engineering, and even mechanical physics—we have a problem! The authors actually agree with us in this press release:

“The map shows that perceptions held by the public may not reflect the reality of scientific study,” Broomell said. “For example, psychology is perceived as the least precise while forensics is perceived as the most precise. However, forensics is plagued by many of the same uncertainties as psychology that involve predicting human behavior with limited evidence.”

Be that as it may, when these researchers from Carnegie Mellon set out to see which branches of science the public feels most certain about—that is what they found. It is part and parcel of the frustration we often see from our attorney-clients when what they have presented is not what our mock jurors have retained.

We’ve also talked about the newer findings of political polarization coloring reactions to almost everything. The researchers also found political differences in the evaluation of whole fields of science here (again quoting the press release from Carnegie Mellon).

While political affiliations are not the only factor motivating how science is perceived, the researchers did find that sciences that potentially conflict with a person’s ideology are judged as being more uncertain. “Our political atmosphere is changing. Alternative facts and contradicting narratives affect and heighten uncertainty. Nevertheless, we must continue scientific research. This means we must find a way to engage uncertainty in a way that speaks to the public’s concerns,” Broomell said.

In other words, people believe what they choose to believe and you can’t predict how they will engage or not engage. And finally, they also make this comment which we are hearing more and more in the mass media—essentially, the responses these participants gave have no apparent relation to facts.

However, our results also suggest that evaluations of specific research results by the general public (such as those produced by climate change, or the link between autism and vaccination) may not be strongly influenced by accurate information about the scientific research field that produced the results.

This is an area of lament from many who deal in data and facts. We are living in a post-expert world (and some would say post-truth and post-facts). So what are you to do?

From a litigation advocacy perspective, this study tells us how important it is to make scientific research relevant and common-sense (or even counter-intuitive) to your jurors. They need to understand it and have it make sense to them or be allowed to revel in the counter-intuitive nature of the findings.

Feeling comfortable with the “science” (whatever it may be) is a much better way to ensure consistency from your jurors than relying on the chart illustrating this post to predict how listeners will react to the particular science upon which your case relies.

Broomell, S., & Kane, P. (2017). Public perception and communication of scientific uncertainty. Journal of Experimental Psychology: General, 146 (2), 286-304 DOI: 10.1037/xge0000260

Image taken from the article itself

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