Archive for the ‘Pre-trial research’ Category
Here’s an intriguing note from Pacific Standard on whether the US government can ever be trusted. They refer to the American National Election Study (ANES) adding a “never” response to its annual survey of trust in the federal government. The traditional question has been:
“How much of the time do you think you can trust the government in Washington to do what is right—just about always, most of the time or only some of the time?”
This year, they added a “never” option and a lot of people took it. The graphic illustrating this post shows the results ANES got from their updated question about how much the government can be trusted, and how it varied by political orientation. Then they also showed this graph which reflects how trust has varied over time depending on whether the President is a Republican or a Democrat.
They conclude three things from this data:
“Trust took a dive in the 1960s and ’70s and never really recovered.
Republican trust is much more volatile, with greater fluctuations depending on which party is in the White House.
Republicans really, really hate President Obama.”
We don’t disagree with their conclusions but tend to look at the figures a little differently. We ask a similar question in our pretrial research and we have absolutely never gotten this sort of pattern. We are very surprised that slightly over 50% of the Republicans in the sample said you can “never” trust the federal government. It just doesn’t mesh with what we have seen year after year after year. We have seen, and Gallup recently published a poll validating it, that increasing numbers of mock jurors are describing themselves as politically independent. Historically, most of our mock jurors said they were either Republican or Democrat, a few would say Independent and maybe one was unaffiliated. Now, what we see is about half saying they are politically unaffiliated, with a third or more saying they are Independent or Libertarian. A minority identify now as either Republican or Democrat.
What we get most often in response to a query on how much one can trust the federal government is a normal bell curve pattern of results with significantly more people choosing the middle options (some of the time or most of the time) and a few saying “always” or “never”. We are interested in those who say “always” or “never”–and usually, a little more interested in those who say “never”.
Often, the “never” responders are fringe dwellers and idiosyncratically reactive for their own (sometimes unidentifiable) reasons. They may be attention-seeking during group discussions, will say outrageous things to provoke, and refuse to engage, consider other perspectives, or to change their mind during free deliberations. These are people who are certain of their rightness and who react unpredictably. Needless to say, if they also respond in a reactive fashion on a few other innocuous questions we routinely ask, they are not someone we want to hear our case–mainly because, they will refuse to listen, and even if they do listen, their reaction will likely be idiosyncratic and unpredictable. (See, for example, our post on “Victoria”.)
It’s an intriguing part of what we do. We track pop culture. We watch surveys and polls and other measures of public opinion. And often we have different interpretations than the pollsters or surveyors do–based on what our own work tells us. It’s especially intriguing when we see patterns begin to shift–only to find it validated later by the pollsters (as in the example with people gravitating toward a politically independent self-description). It provides a profile of how our culture and society is evolving that can only be discerned through ongoing research.
Conspiracy theories that arise during pretrial research are instructive for filling holes in the case narrative. Recently though, Popular Mechanics ran a feature on a number of conspiracy theories we haven’t heard arise in our work (so far). The conspiracy theories run the gamut from the government burying Atlanta, Georgia (very recently) in “poisonous snow” that did not burn but instead, “blackens, twists like plastic, and stubbornly refuses to melt”, to sharks involved in attacks off the coast of Egypt really being “remote-controlled Israeli spies”.
Recently we wrote about Bigfoot believers and the fact that almost 1/3 of Americans believe Bigfoot exists. (As an aside, we have been told that Bigfoot used to exist but a Las Vegas hunter has since claimed to have killed the Bigfoot near San Antonio, TX and will soon be taking the body on the road so you can see it with your own eyes). Popular Mechanics does not include Bigfoot in their list of outrageous conspiracy theories. Among the theories they do include, like the moon really being a hologram, were a few that we would love to hear jurors or mock jurors share. In public. If for no other reason but to see the reactions of the others gathered, and possibly to see whether the judge would consider them too crazy to serve. Obviously, we don’t get out enough because most of these were completely new to us. Forewarned though, is forearmed.
The lizard people: We think it possible this one could arise in cases of government corruption or political malfeasance. Only four in a hundred Brits (allegedly) believe this theory but a close friend of Princess Diana claims Diana confided that the British royal family were actually lizard people. Apparently, “cleverly disguised reptilian aliens traveled to Earth thousands of years ago to infiltrate our highest echelons of government”. There are YouTube videos described as “terrifying” and also videos to debunk the videos. Popular Mechanics opines this one may actually be true due to “lack of any better explanation for Rob Ford”.
The Siri Apocalypse: This one could come up in a high-tech patent or IP dispute as jurors debate the merits of technology in society. If you read this blog regularly, you know we have a fondness for Siri (the iPhone personal assistant). But who knew she was scheduling events without our asking, like designating July 27, 2014 as the “appointed time for the Opening of the Gates of Hades”. We tried this one and it didn’t work but Siri seems to know a lot, so who knows what Steve Jobs might be orchestrating from beyond the pale?
Denver International Airport is, quite literally, hell on earth. As far as we know, this one wasn’t started by frustrated, stranded travelers. But one can never be sure. And, like many conspiracy theories, this one is quite complex. These theorists believe DIA to be the “den of the devil”, that a FEMA death camp is hidden beneath the airport, that the terminal runways form a swastika, and the walls are lined with satanic symbols (in the guise of artwork). There is even a two-part YouTube documentary on the coverup at DIA. It’s certainly worth a tour next time you are stranded in Denver. Just don’t undertake the tour alone!
In short, there are many topics about which conspiracy theories emerge, yet, in our experience, a good conspiracy theorist is very good at connecting the dots between your case and their bizzaro-world. We’ve seen cases where fairly routine facts led to proclamations of very unlikely sexual partners imagined, cocaine use assumed when a not well-liked witness sniffled, and a social media site being described as “the devil’s work” by a school teacher to the agreement of a significant portion of other mock jurors in the room. Still, it is within the realm of possibility that you may hear about lizard people, Siri, and the devil’s den being in Denver.
When these sorts of comments are made, we always take time to make sure we understand how the connection was made and how others in the room reacted to the suggestion so we can then plug that hole in the narrative. Now, there may be no real hole in your narrative and you may just have an odd, idiosyncratic association on the part of a single juror. It is always to your benefit to consider when to plug a hole, when to leave it open (and maybe open it just a little wider), and when to add information when there isn’t a hole–but it’s better to not have jurors wondering and creating a hole where none really existed.
We’ve written a number of times about the role of non-belief or of strong religious beliefs on juries and juror decision-making. The majority of research, largely based on White participants, has shown repeatedly that for White Christians, if you are an non-believer (e.g., an Atheist or a Muslim), you will be looked on less favorably than you if you were a Christian. We’ve written about countering that negative judgment at some length over in The Jury Expert.
But what about Black Christians? Will Black Christians also have a negative judgment of those who don’t share their religious beliefs? The answer, according to today’s research, is a resounding “it depends”.
The research participants were 175 Black Christian undergraduates in the United States. Seventy-six per cent were female and the average age was 19.3 years. They were shown a “target” who was named Aisha. She was “Christian, Muslim or Atheist, and either Black or White. In the Muslim condition, Aisha wore a hijab.” Participants were asked to rate Aisha on both positive and negative traits and to list the things they considered as they evaluated Aisha on these traits. They also completed demographic and personality measures assessing their “need to belong, motivation to control prejudice, social desirability, and numerous measures of religiosity”.
What this research shows is that some Black Christians will judge a nonbeliever (e.g., an Atheist or a Muslim) more negatively than they will judge a fellow Christian, but others will not take the person’s religion into account at all. Apparently, the difference is whether the individual Black Christian is “religiously conscious”. There is no standardized measure of religious consciousness and it is hard to tell exactly what that phrase means from the article itself. The authors say it refers to whether one is “conscious of the religion of others”. In other words, it relates to whether one views another in terms that include their religion, or in entirely non-religious terms.
The first and third authors “coded participant responses for explicit mentions of religion [in their description of the person being judged]; initial inter-rater reliability was 0.82 and subsequent discussion resolved all differences until the agreement reached 100%.”
Based on this method of assessing “religious consciousness”, the authors found 70 participants mentioned Aisha’s religion and 105 did not. The participants who mentioned or did not mention Aisha’s religion did not differ on demographic or personality measures. What the researchers found is this:
Only Black Christians who were religiously conscious (e.g., the 70 who mentioned Aisha’s religion) showed intergroup bias. That means the majority of the participants (e.g., the 105 who did not mention her religion) did not show any intergroup bias. (There was no significance for these participants as to whether Aisha was Black or White.)
Keep in mind that this sample may not be normative. First, most Black teenagers are not in college, which makes this sample more questionable for generalization. Second, the age of these research subjects places them firmly amidst Gen Y, a well researched group whose acceptance of out-groups such as atheists and religious minorities is higher than older people. And third, the frequency of Muslims in the African American population is more common (and possibly more accepted) than in the White American population.
Nonetheless, these findings are quite different than the patterns seen in research on White Christians (who display a strong bias in favor of those who share their beliefs). In this sample, only 40% had a more negative view of Aisha when she was an Atheist or a Muslim, than they did when she was a Christian. In this issue of The Jury Expert, Gayle Herde suggests some ways of “listening” to juror responses in voir dire to assess whether their religious beliefs are intrinsic (i.e., “religion is a way of life”) or extrinsic (“religion is a part of life”). It is possible that Herde’s distinction could explain some of the differences in “religious consciousness” but it would have to be tested with greater care for us to know.
So the answer to the question posed in the title of this post is that based upon this research, if your client is Atheist or Muslim you would prefer a Black Christian juror since they are more likely than White Christian jurors to omit the inclusion of religious beliefs in their judgment of the individual.
And, if you can figure out a way to assess whether that Black Christian is “religiously conscious” or “intrinsically religious”, you will be more clear about whether you want those particular Black Christian jurors weighing their decisions in your deliberation room.
Van Camp, D., Sloan, LR, & ElBassiouny, A. (2014). Religious bias among religiously conscious Black Christians in the United States. The Journal of Social Psychology, 154 DOI: 10.1080/00224545.2013.835708
Last fall we wrote about how having a dark-skinned avatar in an immersive virtual reality experience can reduce your implicit bias against dark-skinned people. Now Illinois researchers show us that the avatar assigned in online gaming also influences behavior. How? If you are assigned to be a hero, you do good. If you are assigned to be a villain, you do not do good. Okay. That makes sense in an online role-playing game–-but the point of the research is that the online role-play (as hero, villain, or neutral geometric figure) made a difference in the real world after the online gaming ended.
The researchers did two separate experiments:
Experiment 1: 194 undergraduates (95 male, 99 female, average age 20.3 years) were told they would be involved in two separate studies: a game usability test and a blind tasting test. They were randomly assigned an avatar (a hero–Superman, a villain–Voldemort, and a neutral avatar–a simple circular shape). After they battled their opponents for 5 minutes online, they were asked how much they identified with their avatar on a 7-point scale ranging from 1 (not at all) to 7 (very much). Then they were told they were moving on to the second study–the blind taste test. They were given tastes of both chocolate and chili sauce and then asked to choose one or the other to give a a (fictitious) future participant to consume. They were told the future participant would eat all of the food provided and the participants could pour as much as they wanted into a container for the future participant.
While the conscious level of identification with the avatar made no difference, participants with heroic/Superman avatars gave more chocolate to the fictitious future participant than did either those with villainous/Voldemort or neutral (circular) avatars. Participants with villainous/Voldemort avatars gave more chili sauce than did participants who had heroic/Superman avatars or neutral/circular avatars.
Experiment 2: 125 undergraduates participated (44 male, 81 female, average age 19.4 years). The design was the same except the researchers added a condition to test whether role play assignment (as either hero or villain) was more powerful in real world conditions than “common behavioral priming or perspective taking”. The researchers also simplified the experiment by dropping the neutral/circular avatar and focusing on how much chili sauce was given to the fictitious future participant. To clarify–some participants played the online game with either the heroic or villainous avatar while others were asked to be an observer of the online game for 5 minutes but “take the perspective of” either the hero or villain avatar/player.
Again, villains poured more chili sauce for the future participant than did the heroes. Those playing heroes poured less chili sauce than those observing and taking the perspective of heroes. Similarly, those playing villains gave more chili sauce than those observing and taking the perspective of the villain.
In short, say the researchers, “acting as a hero or villain” means you are more likely to repeat heroic or villainous behavior than you would if you are simply asked to “think of yourself as being” either the hero or the villain. They encourage game developers to design more heroic avatars to encourage more real-world prosocial behavior.
From a litigation advocacy perspective, you cannot ask people to actually “be” pro-Plaintiff/Prosecution or pro-Defense for a few minutes and then send them off to deliberate and expect a positive outcome for your case. All you can do is ask them to have empathy, or put themselves in the position of, your client. And, this research would say that isn’t nearly as powerful.
We would beg to differ. The researchers are talking about the impact of online gaming on the quantity of chili sauce or chocolate left for someone else to eat. It’s a little different from the real life and critically important issues often presented to jurors. We certainly don’t advocate asking jurors to take on the role of hero or villain overtly.
What we do advocate doing is asking jurors to take on the hero role (or to not take it on) without actually asking overtly.
From a Civil perspective: We would use the “be the very best you you can be” strategy. Obviously it would be a little differently framed for these two roles but the idea is to create empathy for either the Plaintiff or the Defendant. This would be akin to the request for the juror to take on a “hero” role. They are being asked to rise above petty bias and consider the situation from the position of the individual person involved. It is, in some ways, a “but for the grace of God, there go I” sort of strategy that encourages identification with the actual person or with the situational/genetic influences that may have driven the Defendant’s bad behavior.
From a Criminal perspective: Consider increasing the urge to punish the Defendant by focusing on the egregious nature of the crime. Create a virtual environment in which the jurors imagine that this is a threat to society that they can reduce. By focusing on the socially inappropriate behavior in the fact pattern, they become more inured to the aggressive punishment that is being sought. Of course, this is typically how a prosecutor would handle criminal cases, but the reason for doing so is endorsed by this research. Criminal defense strategy would be to focus on externalities, like the role that the defendant having been treated ruthlessly would affect him, or the way in which the conduct of anyone ‘primed’ him or her to act improperly. It is a way to make people identify with their own role in the trial, and orient them toward one frame of reference or another.
Yoon G, & Vargas PT (2014). Know Thy Avatar: The Unintended Effect of Virtual-Self Representation on Behavior. Psychological Science PMID: 24501111
About a year ago we wrote about people making up “racist roads not taken” in the past to excuse biased or racist behavior in the moment. Racist behavior or decisions in the moment were excused because “back then I had the chance to behave in a racist way but did not, so it’s okay for me to behave in a racist way now”. Because they had established their bona fides as an honorable person before, people permit dishonorable conduct later without self-reproach. As it turns out, the “racist road not taken” tended to not really exist, but served to excuse the current behavior to the observer.
Today’s research is examining how aggressive behavior toward gay men varies depending on what we think an observer might think about it. Researchers asked 166 heterosexual undergraduate students (102 men, 64 women) about their level of internal motivation and external motivation to respond without prejudice several weeks prior to the experimental session. When the experimental session began, participants were allowed to choose whether to deliver “painful electric shocks” to an “unseen male opponent who was either explicitly labeled as gay or stereotypically implied to be gay”.
As you have probably figured out already, there was no male opponent. Like the famous research conducted by Stanley Milgram on authoritarianism, it was a ruse to test willingness to use the punishment. The researchers wanted to know how delivery of the shocks would vary depending on whether the participant was told the unseen male opponent was gay versus whether they were given information that was gay-stereotypic. The implied homosexuality was theorized to give the research subject plausible deniability that they even realized the unseen male was gay.
And here is what the researchers found:
Regardless of whether they had been told the unseen male was gay or not, participants high in internal motivation to respond without prejudice were less likely to administer shocks. The researchers said this made sense since responding in a non-biased way was personally important to these participants. Not stated as clearly is the possibility that people who harbor one social value (anti-prejudice) also tend to be charitable and less aggressive.
Participants who were low in both internal and external motivation to respond without prejudice administered shock at higher levels. This also makes sense since these are participants for whom responding without prejudice is not important personally, and, they don’t really care if others react negatively to their responding in a prejudiced fashion.
However, for those participants who were low in internal motivation (i.e., it wasn’t particularly important for them to respond in a non-biased fashion) but high in external motivation (i.e., they really care about what others think of them), the level of aggression varied depending on whether they were explicitly told the unseen male was gay or not.
Those who were told the unseen male was gay aggressed at a low level. However, those who were given gay-stereotypic descriptions but not explicitly informed the unseen male was gay, aggressed at high levels. The researchers explain this by saying these participants were concerned about what the observer would think of them. Thus, when they had plausible deniability (i.e., they were given gay-stereotypic information only) as to the sexual orientation of the unseen male to whom they were administering painful electric shocks, they shocked him a lot.
The researchers say their results are both discouraging and encouraging. Discouraging because simply possessing a gay-stereotypic trait exposes an individual to aggression from people who harbor prejudice toward them. Yet it was encouraging that those for whom it is personally important to respond without prejudice do not aggress (i.e., deliver painful shocks) even when they have plausible deniability that they knew the target was gay. For the third group– prejudiced but sensitive to social approval– the norms of the group they find themselves in becomes critically important. That is, office culture, school climate, and the influence of family and friends becomes crucial.
During pretrial research, we’ve seen over and over again that if mock jurors “think” something about someone’s sexual orientation (i.e., they are gay, lesbian, bisexual, transgender, or queer) or their sexual behaviors (i.e., they are having an affair, they are likely adulterous or constantly on the sexual prowl), the juror ends up building a story narrative around that supposition–which may or may not be true. The amount of focus on this part of the person’s sexual identity becomes far less if it is simply stated as an irrelevant background fact.
We think of it as the juror going down a rabbit trail and thus use pretrial research to identify issues we need to explicitly address to keep jurors on the path of facts and evidence rather than veering off onto the path of fantasy, conspiracy, and salaciousness. Of course, there are also times when you really want jurors to go down that extra-evidentiary rabbit trail (depending on the narrative you are trying to create) but knowing which trails are enticing to jurors is useful when identifying narrative gaps you really do not wish to fill. The takeaway here is to know when your jurors are going to go down rabbit trails, understand the result of this digression, and decide when you need to plug those holes with facts, and when your client benefits from simply letting them be.
We saw this powerfully illustrated in a recent mock trial in the oil and gas industry when mock jurors decided that the best way to explain the nefarious behavior of the handsome, young Defendant was to presume a sexual affair between the Defendant and his much older and matronly former supervisor. The imagined affair was irrelevant to the story, but it allowed them to see him more clearly as lacking virtue. It was one of those moments where you catch your breath in either horror or fascination (or both) as you peer through the mirrored glass of the observation room.
Cox WT, & Devine PG (2014). Stereotyping to infer group membership creates plausible deniability for prejudice-based aggression. Psychological Science, 25 (2), 340-8 PMID: 24335602