Archive for the ‘Simple Jury Persuasion’ Category
Here’s a pretty simple way for Prosecutors to motivate jurors to lock up a Defendant and throw away the key. It’s all about language. There are words you can use to evoke a more negative (animalistic) sense of the Defendant and there are words that, while still describing egregious behavior, are more neutrally descriptive. The researchers say that when the observer sees the Defendant as more animalistic, they recommend a harsher punishment because they see the Defendant as more likely to re-offend, and scarier.
Specifically, participants who were presented the case in the animalistic condition recommended “on average that the perpetrator spend an extra 1-2 years in prison, 33% more time than participants in the non-animalistic condition”.
Defendants who were seen as more animalistic “are viewed as particularly likely to continue to engage in acts of violence” and thus are sentenced to longer incarcerations.
Here are the passages the researchers had their participants read to evoke a sense of the Defendant as either an animal or not…
Animalistic condition: “At around 9pm, the perpetrator slunk onto the victims premises. He crept into the house via the kitchen door. He confronted the victim in the living room. He roared at the victim before pounding him with his fists. The attack was savage and the victim’s blood splattered on the floor, walls, and ceiling. The perpetrator dashed away from the premises via the kitchen door.”
Non-animalistic condition: “At around 9pm, the perpetrator stole onto the victims premises. He crept into the house via the kitchen door. He confronted the victim in the living room. He shouted at the victim before punching them with his fists. The attack was sustained and the victim’s blood painted the floor, walls and ceiling. The perpetrator ran away from the premises via the kitchen door.”
While the researchers acknowledge this sort of description of the crime is not typical of what is used in court–they do believe it is typical of what is often in the media and thus will likely influence people as they make decisions as to guilt and punishment.
From a litigation advocacy perspective, we know metaphors are powerful. Our brains respond to the use of metaphor on multiple levels. When animalistic metaphors are used to describe a Defendant, jurors (and media members in the courtroom) may become caught up in the imagery that is evoked from that language and demand a harsher punishment than might be objectively based on the act and the law. Prosecutors can subtly use this sort of metaphor to describe the behaviors and Defense attorneys will need to be vigilant to replace that imagery with something more human and relatable.
Vasquez, EA, Loughnan, S, Gootjes-Dreesbach, E, & Weger, U (2014). The animal in you: Animalistic descriptions of a violent crime increase punishment of perpetrator. Aggressive Behavior, 40, 337-344
It’s hard to know why research that is a almost a decade old is seen as fodder for a recent Op-Ed in the New York Times, but so it goes. Jennifer Mnookin, a law professor at UCLA, certainly has an impressive resumé, and it is likely most readers of the NYT are not familiar with camera perspective bias. We blogged about this research back in 2010 and mentioned it in our 2012 article on false confessions.
In short, the camera perspective bias research says that when confessions are videotaped, they “should be videotaped in their entirety and with a camera angle that focuses equally on the suspect and interrogator”. Apparently, if the videotape is focused only on the defendant, the observer is less likely to see the police interview as coercive–even when the interrogator makes an explicit threat. When the video is focused on both the interrogator and the defendant, the observer’s bias disappears.
Mnookin’s essay in the NYT describes the camera perspective bias and states that while videotaping interrogations is generally a positive thing, it doesn’t prevent the videotapes from being misleading, to jurors or even legal experts. This shouldn’t surprise us, says Mnookin, since the research has found that even “professionals like judges and police interrogators are not immune” to the camera perspective bias. Mnookin discusses the complexity of disentangling the false confession from the true confession and says videos may make that already difficult task nearly impossible.
“And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.”
Mnookin’s op-ed piece echoes what many of the experts in the false confessions area have said for years: videotaping interrogations will not fix the problem of false confessions, it is simply a step on the way to making them less likely to occur. Multiple reader comments on Mnookin’s op-ed are remarkably cogent and coherent, in contrast to most comments on major news sites these days. Many of the commenters identify themselves as attorneys and offer thoughts on the advantages of videotaped interrogations, eye-witness fallibility, and the ethics of courtroom personnel. If a reader actually wants to be educated on the issues surrounding videotaped interrogations, it could happen here.
Daniel Lassiter (the researcher responsible for much of the research on camera perspective bias) came to the same conclusions back in 2010 that Mnookin shares in her current-day NYT op-ed.
“The video recording of police interviews and interrogations will bring an unprecedented degree of openness to the process that all interested parties can agree is essential to a fair and humane criminal justice system. That being said, it is far from certain whether this reform will actually reduce the number of wrongful convictions attributable to police-induced false confessions.”
Lassiter’s hope, back in 2010, was that as knowledge continued to grow in the area of false confessions, then jurors could be educated to see the videotaped interrogation as [just] one piece of data upon which to base decisions. We may not yet be at Lassiter’s 2010 wish for the courtroom, but hopefully we are moving in that direction.
On a related note, we are fans of the Sundance Channel’s fictional series Rectify which follows the post-release (based on new DNA evidence) life of a man who spent 19 years on death row for the rape and murder of his teenage girlfriend. This is not a feel good television show. It is dark, disturbing, confusing and poignant all at once. There are no easy answers. Just very hard questions. Did he or didn’t he? We are almost through Season 2 and do not yet know.
Lassiter GD (2010). Videotaped interrogations and confessions: what’s obvious in hindsight may not be in foresight. Law and Human Behavior, 34 (1), 41-2 PMID: 20087637
We’ve written a number of times about bias against Muslims. But here’s a nice article with an easy to incorporate finding on how to reduce bias against your female client who wears a Muslim head-covering. (In case you have forgotten, we’ve already written about head-coverings for the Muslim man.) The graphic illustrating this post shows the variety of head-coverings Muslim women might wear and the initial findings (as to which head covering style results in the most bias) will probably not surprise you.
Researchers did four studies to see how people reacted to Muslim women wearing veils. They consistently found these reactions:
Responses were more negative when the Muslim woman wore a veil of any kind compared to no veil at all.
When the various veils were compared, the niqab or burqa (where only the eyes are exposed or even the eyes are covered) were seen most negatively.
Not surprising, as we said. In Western society, we like to see who we are talking to, and place a high priority on ‘looking people in the eye’. And our society holds (and expresses freely) negative beliefs about Muslim head-coverings for women. Those beliefs may range from a head-covering being a symbol of extreme or even terroristic beliefs, to a belief that a woman is being subjugated merely because she wears this garb. Yet, there are a litany of reasons women may wear head-coverings. There are also reasons women do not wear head-coverings. There is tremendous diversity within the Muslim community related to this issue, especially among Muslims in the US.
That very diversity is at the heart of what these (intuitive) researchers did next. Instead of just showing photos of women in various styles of head-coverings, for the final experiment, the researchers gave research participants “an article that focused on the reasons that Muslim women often give for choosing a full face veil”. And guess what happened?
Participants had more “positive imagined contact experience and gave more positive ratings of how they felt they would communicate with the Muslim woman wearing such a veil”.
In other words, when allowed to “fill in” the reasons the Muslim woman wore a veil, participants went to negative stereotypes and showed negative perceptions toward the woman. On the other hand, when given information about the variety of reasons Muslim women might have to choose a head-covering, negative assumptions/perceptions decreased. And that was when considering interactions with a Muslim woman in a full head-covering. The researchers say that for the least bias, if a religious Muslim woman wants to wear a head-covering, the hijab is likely the best choice. That may, however, not be an option given her religious beliefs. In either case, this research would say to give jurors information about your client’s choice to wear a Muslim head-covering (of any style) and it will reduce negative assumptions.
Yes, once again it appears that information is a great antidote to bias.
The very process of sharing the reasons for wearing a head-covering with jurors, gives them the opportunity for emotional connection with your client. Her sharing reasons for the head-covering allows them to ‘see’ her individuality and religious conviction. We’d call that both making your client more similar to the jurors (through the use of universal values) and giving jurors an opportunity to see “beneath the head-covering” to the woman herself.
Everett, J., Schellhaas, F., Earp, B., Ando, V., Memarzia, J., Parise, C., Fell, B., & Hewstone, M. (2014). Covered in stigma? The impact of differing levels of Islamic head-covering on explicit and implicit biases toward Muslim women Journal of Applied Social Psychology DOI: 10.1111/jasp.12278
This is something we’ve told our clients about for a number of years because it simply made sense. Now we have a current research citation for it rather than using research that is more than a decade old! We see this “new” strategy as a variation on the “you may want to disagree” strategy–or, perhaps, as an update.
What we especially like about this one is that it tells us how to make something totally implausible seem more acceptable to the listener. Say, something implausible like….Bigfoot! Actually, it goes beyond that. This research shows us how to increase the likelihood you can convince others of supernatural events having occurred. It’s all, as you may have surmised, about the narrative frame. You do not, say the authors, want to begin your narrative by starting off with an admission of long-standing beliefs in the frankly bizarre. That would totally undermine your credibility. Instead, begin by presenting yourself as a skeptic of such events. The authors explain it in this, uniquely academic, fashion:
“The presentation of the evidence that converted the narrator within the account itself offers the audience an invitation to go on the same journey from scepticism to belief along with the narrator.”
We don’t really say it like that (frankly, there should be a rule against anyone saying it like that), but we do essentially recommend that our clients embed their initial skepticism in questions for expert witnesses who explain how something works or in direct examination questions for the witness who is explaining why something was done the way it was done. The off-hand, seemingly casual, inclusion of initial skepticism bypasses juror resistance to persuasion and takes them on our client’s journey of discovery. Just like the author said above.
Here is what the researcher did. She had research participants in two different experiments (a total of 215 participants) read a description of either a “precognitive dream” in which the narrator predicted and ultimately prevented a car accident, or of a telepathic experience in which the narrator thought of “an old friend, Sally” and then half an hour later, learned Sally had been hospitalized. The research participants were placed into three different conditions as they read the descriptions:
The narrator claimed to be skeptical of the paranormal prior to describing the event.
The narrator said s/he really had no interest at all in the paranormal prior to describing the event.
Or, the narrator admitted to being a fervent prior believer.
After reading the descriptions of the events from the skeptical narrator, the disinterested narrator, or the avid believer narrator, the research participants were asked whether they saw the event described as being truly paranormal, just a coincidence, or the product of a gullible narrator.
In both experiments, having a skeptical narrator increased the likelihood participants would see the event as possibly being paranormal. The researcher clarifies that the disinterested narrator did not result in an increase in those seeing the events as paranormal.
“The narrator must establish a prior position contrary to the one they are now assumed to hold in order to influence the audience.”
However, when participants were warned about the “avowal of prior skepticism” technique in Experiment 2, the pattern was reversed–that is, a skeptical narrator was less likely to result in participants seeing an event as paranormal.
When the narrator held a position of prior belief, s/he was seen as more gullible and easily convinced only when female and not male! The researcher thinks it likely is due to men being seen as relatively rational and skeptical when it comes to the paranormal and telepathy while women are not seen that way. We have at least 33 thoughts on this finding.
The author concludes the paper with this straightforward paragraph:
“In conclusion, the present research supports the proposition that an avowal of prior scepticism serves to increase the plausibility of a paranormal causal explanation for an anomalous event as long as the audience are not pre-warned. An avowal of prior belief serves to increase the perceived gullibility of a female, but not a male, narrator, suggesting a bias towards more readily perceiving a woman than a man as gullible.”
From a litigation advocacy perspective, when you have a pretty unbelievable story to tell, embedding skepticism into your narrative can be a powerfully persuasive tool. And if your opponent employs this strategy, you may want to educate jurors on the “avowal of prior skepticism” strategy to “undo” their efforts at persuasion.
Stone, A. (2013). An Avowal of Prior Scepticism Enhances the Credibility of an Account of a Paranormal Event Journal of Language and Social Psychology, 33 (3), 260-281 DOI: 10.1177/0261927X13512115
We’ve written before about visual identity (in the context of covering inflammatory tattoos with makeup for trial) and want to point you to an article in the new issue of The Jury Expert. Bronwen Lichtenstein and Stanley Brodsky (neither of whom are depicted in the image for this post) have an article titled Moving From Hapless to Hapful with the Problem Defendant.
The article describes the way in which one’s appearance can result in assumptions and judgments being made that do not facilitate justice for your client. The authors describe what they call the “hapless defendant” and describe the possible (negative) reactions counsel may have to their client–and by extension, the reaction jurors may have to the defendant based on appearance and behavior.
But then, rather than saying counsel should improve on the defendant’s appearance, behavior, and testimony–the authors actually tell you how to do that in a way that is inexpensive and manageable with an initial investment of time (not money) from you.
“We start with the undeniable fact that many aspects of the U.S. court system have enormous rolling momentum that keeps such hapless defendants uninformed, unprepared, and, for the most part, unsuccessful in their own defense. These defendants are sometimes seen as doomed when defended by public defenders with oppressively heavy caseloads or by court appointed attorneys who have little time to work with them. This article is about the need for quick and effective transformations in representation and interactions so that such defendants have a modestly improved chance of success at their own trials.”
This article is not filled with pie-in-the-sky, idealistic notions about permanent changes in how a defendant presents to the world at large. Instead, it recognizes the transient nature of the changes proposed with the idea that by offering these supports to your hapless defendant, you increase the chance of justice being done in the courtroom for this specific trial. Low-cost. Volunteers. A structured process. Okay–so it is kind of idealistic. It is also a practical and very do-able example of how to put the best of our justice system into action on behalf of those who cannot mobilize to do that for themselves.
“These defendants are people who engage in a process of unknowing self-sabotage that is seeded in social and demographic qualities. We have coined the term hapful to counter the notion of the unlucky, socially stigmatized defendant who comes to court. We propose mobilizing transient changes in behavior, improved attractiveness, limited goals, and assistance from helpful others. By becoming hapful for a little while, accused offenders who are often seen as lowlifes or hopeless victims of social injustice might be now presented and briefly re-conceptualized as persons worthy of thoughtful attention and respectful dispositions.”
Lichtenstein, B, & Brodsky SL (2014). Moving from hapless to hapful with the problem defendant. The Jury Expert, 26 (2)