Archive for the ‘Simple Jury Persuasion’ Category
If only they would listen. It is so frustrating when you know you are right but no one is agreeing with you. When we wrote about myside bias last week, the article stimulating today’s post had not yet been published.
But the author experienced exactly what our client attorneys do when listening to mock jurors react to evidence presentations. Except this author wasn’t with a group of mock jurors, some of whom may not be well-educated, rational and analytical thinkers. No. The author was instead with a group of fellow scientific researchers. All of whom would arguably be rational and analytic thinkers. And they were arguing about ergonomics and whether sitting is killing us.
Specifically, they were arguing about the information presented in the infographic we blogged about two years ago. Okay, so maybe these scientists don’t keep up as well as they might and are still arguing about two-year-old infographics. That is not the point. This is the point.
“And then I realized something: it didn’t matter whether I was right; nobody was listening to me anymore.”
It goes to show you. It isn’t just that group of mock jurors who are too thick-headed to understand you are right. It isn’t just the judge, the arbitrator, the actual jurors, or the mediator who just don’t understand. It is instead a confusion about the difference between being “right” and being persuasive. And while you may be (inarguably) right, you may not be persuasive.
It’s a really hard thing to define and Chris Holdgraf (the author of the brief post) doesn’t really define the difference between being right and being persuasive. We’ve said before here that there really is no such thing as persuasion.
Instead there are well–crafted narratives that resonate with the listener’s values and beliefs and show them how your client is, in many ways, “like them”.
Through pretrial research (and many years of study and experience), we identify elements of the trial story that gave the potential to trigger resistance.
In other words, we want to see what elements need to be reframed to avoid that resistance so that new listeners can actually hear the story itself, rather than having alarms go off in their brains that cause them to stop listening.
So, it doesn’t really matter if you are talking to mock jurors, actual jurors, judges, arbiters, mediators, colleagues, or a group of research scientists. The goal is to keep them listening–which is, we think, the closest you can come to persuading. Keep them listening. Tell a story that resonates with their values. Help them see that their own values would be reflected in a verdict in favor of your client.
Holdgraf, C. 2013 On being ‘right’ in science. The Student Blog at PLoS Blogs.
Stanovich, KE, West, RF, & Toplak, ME (2013). Myside bias, rational thinking and intelligence. Current Directions in Psychological Science, 22 DOI: 10.1177/0963721413480174
“A picture is worth a thousand words”. Most of us think pictures are more persuasive than words. Recently I ran across a sentence in an article saying “it’s commonly believed that we remember 20% of what we hear and 80% of what we see”. Or something to that effect. I don’t know about you but I don’t remember 80% of anything I hear or see and I have a pretty good memory. So I went to our trial consultant email list and asked who could tell me if the statement was supported by research for which they could identify a citation. Immediately, I began to get information from visual consultants.
The classic study in the field was from something called the Weiss-McGrath Report and it did say that we retain more in memory from pictures. In fact, the widely propagated [untrue] statement from that research was that there was a 650% increase in information retention by jurors when oral and visual evidence are combined. Wow! No wonder it is so widely cited. Too bad it isn’t even a little bit true [see pages 27-30 of the linked pdf for explanation]. Shortly thereafter, Ken Broda-Bahm wrote in to say that the study was quoted very often but was in fact misquoted and pretty bogus and based on an undocumented 1856 reference. (That isn’t a typo. We really mean 1856.) We were referred to Ken Lopez’ blog post examining visual persuasion. Finally, Laura Rochelois came to the rescue. She recommended we look into a book written in this century (2009) by Richard Mayer.
Mayer’s book is an academic text but there are myriad posts online reacting to Mayer’s work. Among the search results, we found chapter-by-chapter summaries in pdf format online at Michigan State University. Another nice resource is a 20 minute video interview with Mayer available on YouTube.
In part, Mayer says that it isn’t video or animation that results in learning. What results in learning is good instructional design and presentation. However, according to Mayer, optimal learning and retention is best when words and pictures are presented. Learning is increased between 64% and 121% according to studies Mayer completed between 1989 and 1996.
So the answer to the question about using pictures, words, or both? Not just pictures. Not just words. Both.
Richard E. Mayer (2009). Multimedia Learning, 2nd Edition. New York: Cambridge University Press. DOI: 10.1017/CBO9780511811678
As trial consultants we are always alert to the possibility of new persuasion strategies. Often we find new perspectives in disciplines other than our own. Intriguing and powerful conclusions can stem from different sorts of thinking processes, based on different bodies of research.
Recently, we ran across the work of Arthur (Skip) Lupia whose presentations contain a treasure trove of findings applicable to courtroom persuasion. Lupia entreats presenters to make their message urgent and relevant to the specific audience and then “seize the opportunity to leave a cognitive legacy”. One aspect of what he says is that when you are making efforts to communicate, you need to pay attention to both awareness and credibility.
Awareness: There are a finite number of parking spaces in the brain for attention. Lupia says you have about 7 parking spaces (plus or minus two) and if your ideas are complex, you may need 3 or 4 of those parking spaces. There are many competitors for your spaces. For example, lunch plans, a grocery list, that odd buzzing sound coming from the overhead lights in the presentation room, what you plan to do this evening, and so on. Your verbal content needs to beat out the other competition for the listener’s attention [aka limited parking spaces].
Credibility: Having a Ph.D. or a J.D. doesn’t automatically give you credibility. Dressing a certain way doesn’t give you credibility. Having a certain personality doesn’t give you credibility. What gives you credibility in the audience’s perception, according to Lupia, is if you share their values and are seen as understanding them.
In short, Lupia (a mathematician and political scientist) says in order to be credible, you have to demonstrate both expertise in the subject area and shared interests with your audience.
“We can make presentations that please us. We can make presentations that affirm our values as scientists. And we can blame them [i.e., our audience] if it doesn’t work. But another choice we have is to try to persuade people who are different from us, and that requires a different communicative strategy.”
If you watch the video at the link above, you will see that Arthur Lupia has come a long ways from his initial efforts to persuade using mathematical equations and formulas. One of his most succinct recommendations for persuasive communication has three parts (and we could have written them ourselves!).
Keep the content of what you are saying close to the listener’s experience. (We see the importance of this directive routinely in high tech litigation.)
Make your content concrete and immediate. (In other words, don’t use jargon or lots of polysyllabic words. Don’t present abstractions. Tell your audience plainly and clearly what your position is and how it relates to the question at hand.)
Make the goal/call to action possible to achieve. (What do you want? Is it fairness? Justice? Compensation? Jail time? Tell the audience what you want and how they can achieve that goal.)
Jurors, in our experience, want very much to do the right thing. What Arthur Lupia’s work and evolving beliefs tell us is that we can communicate effectively to those different from us if we pay attention to speaking their language rather than solely our own.
[The paper below is illustrative of Lupia’s work on integrating the research to identify pathways to persuade those different from us, and how to change our focus of attention and be more successful in our efforts.]
Lupia, Arthur (2012). The Trouble with Voters and Those Who Try to Fix Them. SSRN Electronic Journal
None of us like to be lied to and we hunt for indicators of deception in the behavior of others. A dilemma occurs in our assessments of witnesses from other cultures–since social norms are culture-specific. We observe the behavior of others and make judgments as to whether they are lying according to our sense of whether they are violating social norms for no apparent reason. And when we don’t understand that cultural norms may be different for the speaker than they are for us, we are prone to make errors in our judgments as to their duplicity.
And it isn’t just us! I traveled to France and Germany a number of times to prepare witnesses who were going to testify in American courtrooms on sensitive issues related to whether they had designed dangerously defective products. As I got to know them, I learned that their beliefs about Americans in general were informed by bad movies, worse television, and unflattering news coverage. They were understandably terrified of testifying in front of their conception of “Americans”. I had to teach them about American courtrooms, the trial process, and how to understand juror decision-making. The trial process in the United States is very different from what happens in France, Germany, or (in civil trials) anywhere else on earth. Knowing what to expect helped them to diminish their anxiety as we began witness preparation processes.
Essentially, the Australian researchers we are talking about today did much the same thing. They wanted to see if educating people about cultural differences in non-verbal behavior would “counteract the cultural bias in deception judgments”. They recruited 69 (17 male and 52 female) older undergraduate students with an average age of 33.6 years. The students responded to an ad on psychology department bulletin boards with the title “Can you spot a liar?”.
The research participants were divided into three groups: a control group was given no information; those in the general condition group were told the video clips they were about to observe were of people from the Netherlands and that research has demonstrated that typical nonverbal behavior can vary across cultures. The third group, the specific information group, was told that the video clips were of people from the Netherlands and that research has demonstrated specific behavioral differences between the Dutch and the Australians. Specifically, Dutch people were described as smiling more, making less direct eye contact and having more hand and arm movements while speaking than are typical for Australians.
The researchers prepared 20 different video clips (duration of 30-40 seconds each) in which 10 amateur actors (half male and half female) each produced two versions of a rehearsed statement. One of the versions was nonverbally norm-consistent (that is, the actor gestured in ways Australians do as they speak) and the other was inconsistent with Australian social norms (that is, the gestures and non-verbal behavior was not commonly seen in the Australian culture but more akin to what some of the participants were told was common for the Netherlands). The actor in the video was describing someone they liked as the video was recorded, but the researchers turned the sound off as they played the video for the participants so all the participants would be able to rely on was the actor’s nonverbal behavior. In other words, the participants watched a video without sound and attempted to identify deception from nonverbal behaviors only.
All 69 participants/students viewed a number of video clips and judged whether each person in the videos was lying or telling the truth. They were asked to make the following judgments after each video: was this person lying or telling the truth; if they believed the person was being deceptive, what was the reason they believed the person was lying; and then how certain they were of their judgment.
And what they found was intriguing:
Participants in the control and general information groups were more likely to think the actors in the norm-inconsistent tapes were lying.
Participants in the specific information group did not see any difference between the norm-consistent and the norm-inconsistent tapes in terms of predicting lying.
It would seem that, in this instance, a little knowledge is a good thing. Those participants without specific information on how nonverbal behaviors vary across cultures were more suspicious of actors displaying norm-inconsistent behavior. On the other hand, those educated about what to expect in terms of nonverbal cultural differences were neither suspicious or not suspicious. They seemed to choose not to make assumptions based on nonverbal behavior alone.
This is instructive from both directions for witness preparation. While it’s salient for preparing foreign witnesses, it can apply equally well to Americans who come across as somehow ‘different’.
Prepare the jury for your witness. If you have a witness whose manner is likely to be seen as odd or unfamiliar to the jury, it can be useful to have a preceding witness describe them, perhaps make an aside about their lovable quirks, and establish the value of their testimony. This becomes especially important when your foreign witness has behaviors that could be seen as “odd” to your American jurors.
Educate your foreign witnesses about what to expect in American courtrooms and non-verbal behavior common in America so they are not prone to misinterpret what they see in the courtroom and become anxious.
Preparing foreign witnesses is a challenging yet very rewarding opportunity. It requires bridging the cultural gap between the assumptions of the witness and the assumptions of the jurors. It also requires sensitivity to foreign parties who see the American court system as frightening and threatening. Finally, it requires the awareness that things each of us take for granted can communicate vastly different information to the cross-cultural observer. The challenge is to balance diplomacy and tact with truthful feedback.
Castillo, P., & Mallard, D. (2011). Preventing Cross-Cultural Bias in Deception Judgments: The Role of Expectancies About Nonverbal Behavior. Journal of Cross-Cultural Psychology, 43 (6), 967-978 DOI: 10.1177/0022022111415672
While we know that eyewitness testimony is often suspect, it can be useful to help jurors know how to assess the validity of eyewitness testimony for themselves. You might be interested in a new study identifying a simple strategy for teaching them just that.
The authors point out that eyewitness testimony is frequently the primary (and often the sole) source of evidence in a criminal case. Yet, eyewitness error is also the leading cause of wrongful felony convictions. Their review of the literature indicates jurors have trouble evaluating eyewitness accuracy for a number of reasons.
They have limited knowledge of eyewitness testimony in general.
They rely on factors that are not good predictors of accuracy and inaccuracy (e.g., consistency of testimony, ability to recall minor details and the eyewitness’ confidence).
And they overlook factors that are good predictors of accuracy or inaccuracy (e.g., presence of a weapon, perpetrator use of a simple disguise like a hat, and police procedures in the specific case).
Jurors have trouble integrating what they do know about eyewitness factors into their judgment of the specific case. This is true even when they are given expert testimony during the course of the trial.
The researchers tested the “I-I-Eye” model (interview-identification-eyewitness model) for analyzing eyewitness accuracy. This model has three steps: first, the interview conducted by law enforcement is assessed; second, the identification procedures are identified using scientific guidelines; and finally, the actual eyewitness factors at the crime scene are assessed to determine how they might have affected eyewitness accuracy.
293 undergraduate students (enrolled in Psychology 101 naturally) from three different universities read a trial transcript for the robbery of a convenience store and murder of the store clerk with one eyewitness. The participants read either a case with strong eyewitness evidence or one with weak eyewitness evidence. The cases were made either strong or weak by the police procedures (either strong or inconsistent) described in the case transcript. One group of the participants was trained in the I-I-E model; another group was educated about the Biggers factors (the Supreme Court mandated model that came up for review in 2011); and a third group was simply given general information about a trial that would likely be received by jurors. Finally, a fourth group was given both the general information and the Biggers information.
The authors describe the information given to the research participants as follows:
“Jury Duty aid: The Jury Duty teaching aid (hereafter ‘JD’) was one of two control aids. It emphasized the importance of being fair and impartial, and weighing all of the evidence before reaching a verdict. It also presented information about a defendant’s right to a jury trial, identified the main participants in a criminal trial, and defined legal terms, such as opening statements, cross-examination, closing arguments, and jury instructions.
Neil v. Biggers aid: The Neil v. Biggers control teaching aid (hereafter ‘NvB’) described the five eyewitness factors that the Supreme Court stated jurors should consider when evaluating eyewitness accuracy (Neil v. Biggers, 1972). It also presented a rationale for each of the Biggers factors.
I-I-Eye aid: The I-I-Eye teaching aid described a three-step method for analyzing eyewitness accuracy. It instructed participants to first evaluate whether the eyewitness interviews were conducted properly, then to assess whether the identification procedures were conducted properly, and finally to evaluate whether the eyewitness factors at the crime scene were conducive to an accurate identification. The I-I-Eye aid gave participants examples of factors they should consider when evaluating the interview (e.g., open-ended questions vs. closed-ended or leading questions, the time between the crime and the interview), the identification procedure (e.g., a double-blind lineup vs. a non-double-blind lineup, the time lapse between the crime and the identification procedure, the size of the lineup, whether the suspect stood out from the fillers, and whether a statement of confidence was taken prior to any feedback) and the eyewitness factors at the crime scene (e.g., a same race or cross-racial identification, problems with alcohol or drug intoxication, the level of stress, the eyewitness’s age, and whether the perpetrator was disguised). The I-I-Eye aid emphasized the importance of interview and lineup variables on eyewitness accuracy because they can generally be controlled and documented, whereas the effects of crime scene factors on eyewitness accuracy can only be estimated. The participants were instructed that if the interview, lineup, or both were suggestive or unfair, they should question the accuracy of the eyewitness’s identification. They were also instructed that if the interview and lineup were conducted properly, then the eyewitness’s identification may still be accurate even if the eyewitness conditions during the crime were somewhat less than ideal.”
In each transcript, the eyewitness was a police officer and there was an alibi witness who was the “defendant’s girlfriend”. The researchers hypothesized that those who viewed the I-I-E aid would give more guilty verdicts for the strong eyewitness case and fewer guilty verdicts for the weak case when compared to those participants seeing either the Jury Duty aid or the Biggers aid. And they were right. Here is a graphic from the article showing the difference between jurors assessments of who was guilty and who was not across the strong and weak cases.
In brief, not only did the I-I-Eye training help participants better assess the quality of the eyewitness testimony–it increased their ability to do that by 25% to 28%. That’s a big margin of difference, and there was no traditional expert testimony. The authors say the benefit of using the I-I-Eye training is that it not only educates about eyewitness factors but also teaches the learner how to apply those factors to a specific case. They also comment that the I-I-Eye model could be of benefit to the legal system at multiple junctures in a case.
The authors’ assertion that there was no eyewitness testimony in the I-I-Eye training is obviously questionable. The training itself is expert testimony of a sort, and it isn’t clear to us that courts would allow it. If allowed, though, training could be incorporated into testimony by an eyewitness expert to aid jurors in assessing the accuracy of testimony.
Clearly, the results of this study indicate that jurors will evaluate the testimony with much more confidence about credibility. It also seems likely that if jurors knew more about what makes eyewitness testimony more reliable, investigators will begin conducting interviews in a way that is consistent with the identified strategies. Minimizing inaccurate eyewitness testimony (or teaching jurors how to evaluate it) should reduce conviction errors and cases of false imprisonment.
Pawlenko, NB, Safer, MA, Wise, RA, & Holfeld, B. (2012). A teaching aid for improving jurors’ assessment of eyewitness accuracy. Applied Cognitive Psychology.