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Archive for the ‘Simple Jury Persuasion’ Category

convincing graphWe’ve written about the lack of evidence for the much-feared “CSI Effect”. But here’s an interesting study about the simple “appearance of science” as opposed to the bells and whistles of high-tech “CSI”-like evidence. All it takes is the use of “scientese” (scientific sounding words)–not to be confused with “lawyerese” (which we wrote about here earlier). Or, if you don’t want to use those big and confusing words, try a simple graph like the one illustrating this post. Or presenting a formula like this: C21H29FO5. Either approach, say today’s researchers, will result in more people being convinced. And get this–in a counter-intuitive twist, those who believe more in science will be more persuaded! Even when they can’t tell you what the “scientese” means.

It’s sobering but, say the authors, there is a reason scientific findings are often communicated with graphs and formulas and even “trivial statistics” to make the article or news release more persuasive. What is that reason, you might ask? Because it works, respond the authors.

Much as we want to believe that facts matter, we’ve all seen cases where they really don’t. Often, the extra-evidentiary fog rules the day and mock trial deliberations are frighteningly unfocused until the facilitators arrive and begin to unravel where things went so very, very wrong. While it is distressing to watch, it is also extremely useful since it shows us how to plug holes in the case narrative so that the facts can matter (or at least jurors who support your case will know what they are and can get others back on track).

Here is some of what you can find in this article:

Brain images are incomprehensible to nearly all of us. What we know though, is that brain scans are scientific. So, to some of us at least, the presence of the brain imagery could signal scientific support. (In other words, it isn’t the “pretty picture” of the brain as much as the association with scientific support that draws the observer in. When this happens, the brain image serves as a sort of signal that there is a scientific basis for the claims.)

On the other hand, the graphs used in this study were not at all like pretty pictures of brain scans. They were simple, almost crude. (The illustration for this post is an example of the level of simplistic graphs the researchers used. Their rationale was that while brain imagery may confuse–these simple graphs would be easy for the observer to understand and gather that they add nothing to the observer’s understanding.) But they did. Participants in one study read information about a new medication which enhances immune function and thus reduces the likelihood you will get the common cold. Half the participants were shown a graph (see below) and half were not.

halo effect insert

The graph was powerfully persuasive. Participants who saw the graph said the medication was more effective and believed the medication would truly reduce illness. “In other words”, say the authors, “while only 2/3 of the people believed the medication would reduce illness without the graph, all but one participant in the graphs condition believed this.”

So the researchers went on to complete more research. They found that those participants who believed more strongly in science were more likely to be persuaded by the graphs. They also found that when they gave a chemical formula to participants (e.g., C21H29FO5), they were also more persuaded. In other words, the more “sciencey” the data seems to be, the more persuasive it is.

The authors today make several salient points we would do well to keep in mind:

People who were given graphs or formulas along with a narrative explanation of the medication had a greater belief in the medication efficacy. (This was true in not only a campus population, but also in an on-line panel and a general population sample.)

Graphs seem to signal a scientific basis for the claims. The effects of graphs hold true even when the graph adds no new information and does not help in deepening understanding of the information or in comprehending the data. The more you believe in science, the more powerfully persuasive the graph.

Let’s make this perfectly clear: a simplistic looking graph with no bells or whistles and that adds nothing to observer comprehension has the power to persuade. Because it’s “sciencey”.

Tal, A., & Wansink, B. (2014). Blinded with science: Trivial graphs and formulas increase ad persuasiveness and belief in product efficacy Public Understanding of Science DOI: 10.1177/0963662514549688

Images from article above.

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not-in-my-neighborhood-coverA couple of years ago we were working for the Plaintiff on pretrial research for a case against a large national healthcare corporation. The Plaintiff had been injured quite dramatically due to what she alleged was the Defendant’s lack of care (i.e., negligence) in selling her what company executives knew to be a pharmaceutical product scheduled for recall. The mock jurors listened carefully and were horrified by the extent of her injuries and then began to work hard to protect themselves from the randomness of the events.

“Well, I would have done some research first to see if there was any bad press on the product.”

“I always read all the fine print. I NEVER simply accept their terms without carefully reading every single word.”

“Even though this is a very common product and her reaction was very rare, she had a choice on whether to use the product so she has responsibility. They certainly never meant to hurt her.”

The facilitator listened to all the comments and simply continued to present the materials. As the day went on and jurors heard the breadth and depth of the Plaintiff’s injuries, they became more and more mired in their certainty that such a fate would never befall them. (We commonly see this in pretrial research where a seemingly random, and thus terrifying, event has occurred that results in horrible injury to or death of the Plaintiff. Mock jurors feel threatened and unsafe and construct narratives to defend against that fear.)

At the very end of the day, the facilitator asked if this behavior (by the Defendant) constituted business as usual. The majority of the jurors opined it did. Then the facilitator asked if this was how they wanted businesses run in their community. That is, did they want this sort of behavior to be business as usual in their community. Jurors blinked and no one spoke for almost 30 seconds. When they did begin to speak, they focused on righting a wrong and on sending a message. They saw the opportunity to protect themselves by awarding exemplary damages to the Plaintiff. Instead of blaming the victim (thus creating a buffer for feeling safer themselves) they could punish the Defendant (and both help the Plaintiff and make their community safer).

In this particular instance, the mock jurors quickly shifted the frame of their reaction, and found for the Plaintiff– they experienced empowerment almost that fast. Sometimes, many times, that doesn’t happen. When an act of extraordinary injustice occurs and is perpetrated by a powerful entity, there is a tendency to give up and think your actions and choices will not make a difference.

Researchers on the East Coast recently published work illustrating this particular effect. They focus on how most of us believe we evaluate injustices equally but the researchers believe our sense/estimation of the power of the perpetrator leads us to apply justice unequally. The researchers refer to this effect as psychological numbing. In short, when we see a powerful perpetrator, we believe our actions will be less effective and we are less willing to join in an effort to sanction or punish them. When large numbers of people are harmed or killed by the powerful perpetrator, we see less possibility in obtaining justice than we do when a small number of victims are harmed.

Over two experiments, the researchers found that:

The more normative (i.e., business as usual) observers saw the unjust event as being, the less likely they were to feel their actions would change the events before them.

Observers assess perpetrator power as a means of assessing how effective their actions will be. They are less likely to take action against a powerful perpetrator than a less powerful perpetrator.

From a litigation advocacy perspective, when we apply the results of this research to our previous mock trial project–we understand it this way. Our mock jurors saw the national healthcare corporation as powerful and did not want to exert energies when it would likely make no difference at all. Once the question was posed as to how they wanted business to be conducted in their town, jurors felt empowered. They wanted to send a message that would be heard and felt by their local organization as well as the national corporation.

The power of the national corporation was brought to the local level (and thereby decreased). Our mock jurors knew the place and they knew their experiences with it. They did not want what had happened to the Plaintiff to happen to them, to their friends, or to their loved ones. It’s a powerful response to a shrug and casual comment of “that’s how business is done”.

“Is that how you want business to be done in your community?”

Glasford, D., & Pratto, F. (2014). When extraordinary injustice leads to ordinary response: How perpetrator power and size of an injustice event affect bystander efficacy and collective action European Journal of Social Psychology, 44 (6), 590-601 DOI: 10.1002/ejsp.2051

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3D-image-water-parkEvidence admissibility issues aside, the answer is, “only if you can do it as well as they did in the 3D movie Polar Express”. As it turns out, 3D isn’t that much more impactful than 2D unless it’s done really, really well.

Psychologists and neuroscientists studying emotion often use film clips for their research. So when these researchers from the University of Utah thought about the influx of 3D films, they wondered if those films would have more emotional impact than the older 2D films–especially for younger viewers (whom we might consider potential jurors). Theoretically, 3D movies heighten the emotional experience (since you really don’t know what to expect or when the character will suddenly reach out from the screen and take a swipe at you). These researchers looked at a few movies that came in both 2D and 3D versions (My Bloody Valentine, Despicable Me, Tangled, and The Polar Express).

Rather than asking their 408 undergraduate participants (between 18 and 64 years of age; 62.75% female; 80% Caucasian, 9.8% Asian, 7% Hispanic, 1.23% Black or African-American, 1.23% Native Hawaiian or Pacific Islander, and .98% as American Indian or Alaska Native) for their emotional reactions to the 2D and 3D movies, they hooked them up with electrodes and measured heart rate, skin conductance (how much they were sweating), and other physiological responses to film scenes during the duration of the five-minute clips they were shown.

What they found, in brief, was that whether a film was 2D or 3D didn’t really matter in terms of the participants reactions. While they reacted emotionally, there were no real differences in how they reacted to the 2D versions of the films versus the 3D versions–with the exception of small differences in “electrodermal responses” between the 2D and 3D versions of The Polar Express. (They reacted more strongly to the 3D version.)

The researchers underscore the fact that the clip was far and away the best example of the 3D technology in the study, and the differences measured were small. But, they say, overall, there were no real differences between the emotional impact of 2D and 3D films.

This is good news for litigation advocacy as the cost of creating a 3D film and animation is high compared to 2D, and the road would likely be fraught with legal wrangling before any 3D film (sanitized of undue influence) made it to the jurors. (You may be interested in reading a Canadian author’s perspective on forensic 3D animation in The Jury Expert.)

Bride DL, Crowell SE, Baucom BR, Kaufman EA, O’Connor CG, Skidmore CR, & Yaptangco M (2014). Testing the Effectiveness of 3D Film for Laboratory-Based Studies of Emotion. PLoS ONE, 9 (8) PMID: 25170878

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defendant is animalHere’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

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persuasive videoIt’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

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